Settlement of International Disputes
Topic Covered:
What are the peaceful means of settlement of international disputes?
Describe the constitution, function, and jurisdiction of the International Court of Justice.
How does it differ from a permanent court of Arbitration and the Permanent Court of International Justice? Evaluate the role of ICJ in the establishment of World Peace.
What is the Advisory Jurisdiction of ICJ?.
The General Obligation
On 15th Nov. 1982, the General Assembly of UNO after reaffirming the need to exert utmost efforts in order to settle any conflicts and disputes between States exclusively by peaceful means and to avoid any military action and hostilities, which can only make more difficult the solution of those conflicts and disputes, approved the Manila Declaration on the Peaceful Settlement of International Disputes.
This created a general obligation on the member states to adopt ways to resolve international disputes peacefully. In particular, it obligated that States parties to a dispute shall continue to observe in their mutual relations their obligations under the fundamental principles of international law concerning the sovereignty, independence and territorial integrity of States, as well as other generally recognized principles and rules of contemporary international law.
It obligates the States to seek in good faith and in a spirit of cooperation an early and equitable settlement of their international disputes by any of the following means: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements, or agencies or other peaceful means of their own choice, including good offices. In seeking such a settlement, the parties shall agree on such peaceful means as may be appropriate to the circumstances and the nature of their dispute.
Thus, the following are peaceful means of settlement of international disputes.
- Non-Judicial Methods of Settlement
- Mediation: It is a non-binding procedure in which a neutral intermediary assists the parties in reaching a negotiated settlement of the dispute. In a growing number of cases, parties agree to first try to settle their dispute through mediation, and to resort to arbitration only if the dispute has not been settled within a certain period of time.
While both arbitration and mediation are usually private dispute resolution procedures based on a party agreement they differ in a number of important aspects. Arbitration is an adjudicative procedure and in this respect resembles court litigation. Once the parties have submitted a dispute to arbitration, neither party can opt out unilaterally, and any decision rendered by the arbitral tribunal will be binding on both parties.
Mediation, in contrast, is a voluntary process that depends on the continuing cooperation of both parties since either party can withdraw at any time.
Employed over the years in diplomatic matters, recently parties have begun using mediation to resolve transnational business disputes prior to binding dispute settlement alternatives or litigation. This alternative is particularly popular among Asian cultures. The mediation mechanism may be generally defined as the intervention of an unbiased third party in a dispute so as to facilitate party resolution of differences on a voluntary basis. The process differs from conciliation and arbitration with respect to the involvement and powers of the third party.
Notwithstanding this definition, currently, no consensus exists about the specifics of transnational mediation or its procedures, thus further complicating matters when it is employed as the only contractual means of dispute settlement. More specifically, when international parties use mediation exclusively, there is no guarantee of a binding or definitive outcome at all.
International dispute resolution organizations offer procedural rules for mediation. Since mediation has only recently come to the forefront, however, these rules remain vague in many areas. For example, the mediator’s duties are not detailed specifically. The International Chamber of Commerce Rules of Optional Conciliation merely states that the mediator has the discretion to conduct the proceedings as he or she sees fit. The only restriction imposed on the mediator by many of these rules is that the mediator operates under the principles of impartiality, equity, and justice. Mediators are left to determine the contents of these principles.
Given the lack of rule specificity and the discretion granted to the mediator, the success of the mediation often depends on the talents and temperament of the mediator. His or her ability to get the disputants to negotiate and work towards compromise is of utmost importance.Ultimately, if these techniques fail and the parties are not satisfied with the settlement, they can pursue other methods of dispute resolution, such as traditional litigation or arbitration. - Conciliation – In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for figuring out the best solution for the parties. The conciliator, not the parties, often develop and proposes the terms of the settlement.
The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator.
The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of the fault and a mediator does not assume sole responsibility for generating solutions.
Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediator’s priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable.
The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to the mediator seeking help in finding their own best solution.
Also, the role of the attorneys is different in mediation. Attorneys are more active in mediation in generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators.
Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case.
Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a substantial conflict from developing. Mediation is closer to arbitration in the respect that it ”intervenes” in a substantial dispute that has already surfaced that is very difficult to resolve without “professional” assistance. The parties approach mediation as an alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including in the early stages.
- Mediation: It is a non-binding procedure in which a neutral intermediary assists the parties in reaching a negotiated settlement of the dispute. In a growing number of cases, parties agree to first try to settle their dispute through mediation, and to resort to arbitration only if the dispute has not been settled within a certain period of time.
- Settlement by The International Court of Justice – The International Court of Justice was established by the Charter of the United Nations, which provides that all Member States of the United Nations are ipso facto parties to the Court’s Statute. The composition and functioning of the Court are organized by this Statute and by the Rules of the Court which are drawn up by the Court itself. The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly.
Composition of ICJ – The ICJ is composed of fifteen judges elected to nine-year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–12 of the ICJ statute. Judges serve for nine-year terms and may be re-elected for up to two further terms. Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court.
Should a judge die in office, the practice has generally been to elect a judge of the same nationality to complete the term. No two may be nationals of the same country. According to Article 9, the membership of the Court is supposed to represent the “main forms of civilization and of the principal legal systems of the world”. Essentially, this has meant common law, civil law and socialist law (now post-communist law).
Differences with Permanent Court of International Justice – The Permanent Court of International Justice, sometimes called the World Court, was the international court of the League of Nations, established in 1923. Between 1922 and 1940 the Court dealt with 66 contentious cases between States and delivered 27 advisory opinions. It was replaced in 1946 by the International Court of Justice when the United Nations was organized.
Differences with PCA – Unlike the ICJ, the PCA is not just open to states but also to other parties. The PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties. The PCA administers cases arising out of international treaties (including bilateral and multilateral investment treaties), and other agreements to arbitrate. The cases conducted by the PCA span a wide range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, human rights, international investment (investor-state arbitrations), and matters concerning international and regional trade.
Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the request of the parties. Many decisions and related documents are available on the PCA website.
Jurisdiction of ICJ
As stated in Article 93 of the UN Charter, all 192 UN members are automatically parties to the Court’s statute. Non-UN members may also become parties to the Court’s statute under the Article 93(2) procedure. For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party. And Nauru became a party in 1988. Once a state is a party to the Court’s statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.
The International Court of Justice acts as a world court. The Court has a dual jurisdiction : it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction).- Contentious Issues – In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court’s jurisdiction may be founded.
First, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on “special agreement” or “compromise”). This method is based on explicit consent rather than true compulsory jurisdiction. It is, perhaps, the most effective basis for the Court’s jurisdiction because the parties concerned have a desire for the dispute to be resolved by the Court and are thus more likely to comply with the Court’s judgment.
Second, 36(1) also gives the Court jurisdiction over “matters specifically provided for … in treaties and conventions in force”. Most modern treaties will contain a compromissory clause, providing for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations, nor did it comply with the judgment. Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration.
Third, Article 36(2) allows states to make optional clause declarations accepting the Court’s jurisdiction. The label “compulsory” which is sometimes placed on Article 36(2) jurisdiction is misleading since declarations by states are voluntary. Furthermore, many declarations contain reservations, such as exclusion from jurisdiction of certain types of disputes (“ratione materia”). The principle of reciprocity may further limit jurisdiction. Of the permanent Security Council members, only the United Kingdom has a declaration. In the Court’s early years, most declarations were made by industrialized countries. Since the Nicaragua Case, declarations made by developing countries have increased, reflecting growing confidence in the Court since the 1980s. Industrialized countries however have sometimes increased exclusions or removed their declarations in recent years. Examples include the USA, as mentioned previously and Australia which modified their declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor who gained their independence two months later).
Finally, 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice’s statute. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.
In addition, the Court may have jurisdiction on the basis of tacit consent (forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction will be established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu Channel Case (UK v Albania) (1949) in which the Court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.
Examples of contentious cases include:
A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law.
A dispute between Tunisia and Libya over the delimitation of the continental shelf between them. - Advisory Jurisdiction – An advisory opinion is a function of the Court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court’s help in deciding complex legal issues that might fall under their respective mandates. In principle, the Court’s advisory opinions are only consultative in character, though they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court’s authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.
Advisory Opinions have often been controversial, either because the questions asked are controversial, or because the case was pursued as an indirect “backdoor” way of bringing what is really a contentious case before the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case.
- Contentious Issues – In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court’s jurisdiction may be founded.
- International Arbitration: The Hague Peace System –International arbitration is the process of resolving disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding.
Arbitration is today most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions (International Commercial Arbitration). It is also used in some countries to resolve other types of disputes, such as labour disputes, consumer disputes, and for the resolution of certain disputes between states and between investors and states.
As the number of international disputes mushrooms, so too does the use of arbitration to resolve them. There are essentially two kinds of arbitration, ad hoc and institutional. An
institutional arbitration is one that is entrusted to one of the major arbitration institutions to handle, while an ad hoc one is conducted independently without such an organization and according to the rules specified by the parties and their attorneys. The following are various avenues for International Arbitration.- Permanent Court of Arbitration (PCA) – The Permanent Court of Arbitration (PCA), is an international organization based in The Hague in the Netherlands. It was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution.
The creation of the PCA is set out under Articles 20 to 29 of the 1899 Hague Convention for the specific settlement of international disputes which was a result of the first Hague Peace Conference. At the second Hague Peace Conference in 1907, the earlier Convention was revised and improved by the 1907 Convention for the Pacific Settlement of International Disputes. - International Commercial Arbitration (ICA)
- International Centre of Settlement of Investment Disputes (ICSID)
- WIPO Arbitration and Mediation Center (World Intellectual Property Organization)
- WTO Dispute Settlement System
- Court of Arbitration for Sport (CAC)
- Society of Maritime Arbitrators (SMA)
- Permanent Court of Arbitration (PCA) – The Permanent Court of Arbitration (PCA), is an international organization based in The Hague in the Netherlands. It was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution.
- Ad Hoc Inter-State Arbitration
- The Iran-US Claims Tribunal
- The International Centre for Settlement of Investment Disputes
- Settling Disputes about Human Rights
- Dispute Settlement in the Law of the Sea
- Settlement of International Economic Disputes
- Regional Organizations and Dispute Settlement
Keywords: Settlement of International Disputes
