1. PEACEFUL SETTLEMENTPEACEFUL SETTLEMENT
OF DISPUTESOF DISPUTES
PROFESSOR
DR. ABDUL GHAFUR HAMID

2. 6.16.1 The principle of peacefulThe principle of peaceful
settlementsettlement
Objective of the UN: Article 1(1)Objective of the UN: Article 1(1)
One of the major objectives of the United
Nations is described in Art. 1(1) of the
Charter as being
“to bring about by peaceful means, and in
conformity with the principles of justice and
international law, adjustment or settlement
of international disputes or situations which
might lead to a breach of the peace….

3. Obligation to settle disputesObligation to settle disputes
peacefullypeacefully: Article 2 (3): Article 2 (3)
“peaceful settlement of disputes” is a cardinal
principle of international law and a basic principle
of the United Nations. Art. 2(3) of the Charter
provides that:
“All Members shall settle their international
disputes by peaceful means in such a manner that
international peace and security, and justice, are
not endangered….”
 It is the logical corollary of the principle of non-
use of force set forth in Article 2(4) of the Charter

4. Peaceful means of dispute settlementPeaceful means of dispute settlement::
[Article 33][Article 33]
1. The parties to any disputes, the
continuance of which is likely to endanger
the maintenance of international peace and
security, shall, first of all, seek a solution by
negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements,
or other peaceful means of their own
choice….

5. Peaceful means of dispute settlement [twoPeaceful means of dispute settlement [two
categories]categories]
These methods can be categorized into:
(1) Diplomatic means: (negotiation,
mediation, enquiry, and conciliation); and
(2) Adjudicative means: (arbitration and
judicial settlement).

6. 6.26.2 Negotiation, Mediation, InquiryNegotiation, Mediation, Inquiry
and Conciliationand Conciliation
NegotiationNegotiation
Negotiation is the simplest means and
always the first step of settling state
differences.
it is also a technique for preventing them
from arising. Since prevention is better than
cure, there is a form of negotiation, known
as ‘consultation’.

7. Good offices and MediationGood offices and Mediation
 When the parties to an international dispute are
unable to resolve it by negotiation, the
intervention of a third party is a possible means of
breaking the impasse and producing an acceptable
solution.
 Sometimes third states, or IOs, or often even an
eminent individual, may try to help the disputing
states to reach agreement. Such help can take two
forms: good offices and mediation.

8. Good offices and MediationGood offices and Mediation [Cont.][Cont.]
 Good offices: A third party (as a ‘go-between’)
tries to persuade disputing states to enter into
negotiations; when negotiations start, its functions
are at an end. …
 Mediation: As compared with offering good
offices, a mediator, on the other hand, is more
active and actually takes part in the negotiations
and may even suggest terms of settlement to the
disputing states.

9. InquiryInquiry
 The main purpose of inquiry is ‘fact-finding’.
 After some negotiations, disputing states may
sometimes agree to appoint an impartial body… to
carry out an inquiry; the object of the inquiry is to
produce an impartial finding of disputed facts, and
thus to prepare the way for a negotiated
settlement.
 Korean Air Line Flight KE 007 incident (1983);
inquiry by the SG of the ICAO.

10. ConciliationConciliation
 Conciliation is referring the dispute to a
commission of persons whose task it is to
elucidate the facts and to make a report containing
proposals for a settlement.
 Report of the commission does not have the
binding character of an award or a judgment.
 It differs from ‘inquiry’ in that the main object of
inquiry is the elucidation of the facts, in the hope
that the parties will of their own accord be able to
settle the dispute;

11. ConciliationConciliation [Cont.][Cont.]
whereas the main object of conciliation is to
provide the active services of a commission of
persons in bringing the parties to an agreement.
 It differs from arbitration and judicial settlement
in that under conciliation the parties are under no
obligation to adopt the proposed settlement;
whereas a legal obligation exists to comply with
the award or judgment of a duly constituted
tribunal.

12. 6.3 Arbitration6.3 Arbitration
 Arbitration can be defined as “a procedure for the
settlement of disputes between states by a binding
award on the basis of law and as a result of an
undertaking voluntarily accepted”.
 Arbitration has been used for a long time by states
to settle their disputes and it may be considered
the most effective method, in view of the large
number of cases and variety of types of disputes
that have been settled in this way. [See: RIAA]

13. Consent: a prerequisiteConsent: a prerequisite
Arbitration depends upon the willingness of the
states involved to submit to adjudication. Consent
can be on an ad hoc basis or based on a treaty.
The identity of the arbitrators, the formulation of
the question to be submitted to the tribunal, the
rules of law to be applied and the time limit within
which an award must be made must also be
mutually agreed upon by the states concerned.
Such issues are spelt out in a ‘special agreement’
between the parties known as the ‘Compromis’.

14. party autonomyparty autonomy
Arbitration is a device for leaving the
settlement of disputes as much in the hands
of the parties as is possible.
Parties are free in deciding the law to be
applied, and also the method of settlement,
including the place where the dispute is to
be settled, by whom and in accordance with
what procedures.

15. Arbitration v CourtArbitration v Court
 Party autonomy
 Judges of their own choice: sole arbitrator, arbitral
tribunal, mixed arbitral commission
 Specialty: arbitrators can be experts in a particular
field of law
 Confidentiality: Arbitration sits in private.
 No appeal: The award is final and without appeal.
 Effective enforcement: 1958 New York
Convention on the Recognition and Enforcement
of Foreign Arbitral Awards.

16. 6.4 International Court of6.4 International Court of
JusticeJustice
Article 92 [Charter]
The International Court of Justice shall be
the principal judicial organ of the United
Nations. It shall function in accordance with
the annexed Statute, which …forms an
integral part of the present Charter.

17. Composition of the CourtComposition of the Court
 The Court consists of fifteen judges of high moral
character.
 The judges must possess the qualifications
required in their countries for appointment to the
highest judicial office, or must be jurists of
recognized competence in international law.
 The Court may not include more than one judge of
any nationality.

18. Composition of the CourtComposition of the Court [Cont.][Cont.]
 The composition of the Court should represent the
main forms of civilization and the principal legal
systems of the world.
 The recent practice has been to select four judges
from West European states, one from the US, two
from South America, two from East European
states and six from Asia and Africa.
 The five permanent members of the Security
Council are always represented by a judge in the
Court.

19. Composition of the CourtComposition of the Court [Cont.][Cont.]
Judges ad hoc or national judges [Art. 31]
If a state appearing before the Court does
not have a judge of its own nationality at
the Court, it may appoint an ad hoc judge
for the particular case.
Such an ad hoc judge takes part in the
decision of the Court on terms of complete
equality with other judges.

20. 6.56.5 Jurisdiction of the CourtJurisdiction of the Court
The ICJ has two main categories of
jurisdiction, namely:
(1) Jurisdiction in contentious cases
(2) advisory jurisdiction

21. (1)(1) Jurisdiction in contentiousJurisdiction in contentious
casescases
Access to the Court: Article 34 [Statute]
(1) Only States may be parties in cases before the
Court. …
- The Court is not open to private individuals or
corporations.
- International organizations also have no locus
standi as parties in a contentious proceeding.
They have only the right to request advisory
opinions.

22. ‘‘Consent’ is the basis of the Court’sConsent’ is the basis of the Court’s
jurisdictionjurisdiction
Article 36 [Statute]
1. The jurisdiction of the Court comprises all cases
which the parties refer to it and all matters
specially provided for in the Charter of the United
Nations or in treaties and conventions in force. …
The phrase “all cases which the parties refer to it”,
clearly indicates that the Court can exercise
jurisdiction only when the parties refer the case to
it.

23.  The word “parties” is in the plural, and implies
that all the parties to the dispute must agree that
the dispute should be referred to the Court.
 Therefore, the Court’s jurisdiction is not
compulsory; it is voluntary only.
 The Court on a number of occasions declared that
its jurisdiction in contentious cases is dependent
on the consent of the parties.
 It is reaffirmed in Monetary Gold case.

24. Monetary GoldMonetary Gold casecase
(1954) ICJ Rep., p. 19, at p. 32(1954) ICJ Rep., p. 19, at p. 32
 In this case, gold belonging to the National Bank
of Albania had been seized by Germany from a
bank in Rome during the World War II. It had
since fallen into the hands of the allied forces,
consisting of France, the UK and the US.
 Italy and Albania disputed over the gold before an
arbitral tribunal and the tribunal decided that the
gold belonged to Albania.

25. Monetary GoldMonetary Gold case [Cont.]case [Cont.]
 Italy instituted proceedings before the ICJ, against
the three allied powers claiming the gold, But
Albania, in whose favour the arbitrator had
decided, declined to be a party to the case before
the ICJ.
 The Court held that it did not have jurisdiction
because Albania, whose legal interests would form
the very subject-matter of the decision, did not
consent to its jurisdiction.

26. Ways of expressing consent to theWays of expressing consent to the
jurisdiction of the Courtjurisdiction of the Court
Consent of a state to appear before the Court may
take several forms, for example:
(A) Consent ad hoc: by a special agreement
(compromis);
(B) By a compromissory clause in a treaty;
(C) By forum prorogatum; or
(D) By accepting compulsory jurisdiction
under Art. 36 (2) of the Statute.

27. (A)(A) ConsentConsent ad hocad hoc::
By a special agreementBy a special agreement
((compromis)compromis)
 The classic method by which the parties refer a
case to the Court is by a special agreement
(compromis).
 This is an agreement whereby two or more states
agree to refer a particular and defined matter to the
Court for a decision.
 Examples: Case concerning Pulau Ligitan and
Pulau Sipadan (Indonesia v Malaysia); case
concerning Pulau Batu Puteh (Malaysia v
Singapore).

28. (B)(B) By a compromissory clause inBy a compromissory clause in
a treatya treaty
 States can agree in advance by treaty to confer
jurisdiction to the Court.
 That is what Art. 36 (1) means when it refers to
“matters specially provided for… in treaties”.
 There are several hundred treaties in force which
contain such a jurisdictional clause stipulating
that if parties to the treaty disagree over its
interpretation or application, one of them may
refer the dispute to the Court.

29. Compromissory clauseCompromissory clause [Cont.][Cont.]
Such a clause is known as a
“compromissory clause”.
The treaty may be a general treaty of
peaceful settlement of disputes, or a treaty
regulating some other topic and containing
a compromissory clause.

30. (C)(C) ByBy forum prorogatumforum prorogatum
There is no reason why each party should
not make a separate reference to the Court
by a unilateral application [under Article
40(1) of the Statute].
While the Court is considering the
unilateral application of one state, the other
may expressly or impliedly signify its
consent to the jurisdiction.

31. Forum prorogatumForum prorogatum [Cont.][Cont.]
Such consent may be express or implied. It
can be implied if the defendant state
defends the case on the merits without
challenging the jurisdiction of the Court.
(Like an estoppel by conduct.)
In such circumstances the jurisdiction is
known as forum prorogatum.

32. Corfu Channel CaseCorfu Channel Case
(Preliminary Objection(Preliminary Objection))
1948 ICJ Reports 151948 ICJ Reports 15
 The United Kingdom, on May 22, 1947, brought a
claim against Albania before the ICJ by unilateral
application in accordance with Article 40(1).
 It argued that the Court had jurisdiction under
Article 36(1) of its Statute on the ground that the
SC of the UN, after dealing with the dispute under
Article 36 of the Charter, by a resolution, decided
to recommend both the UK and Albania to refer
the present dispute to the ICJ.

33. Corfu Channel CaseCorfu Channel Case
[Judgment][Judgment]
 …The letter of July 2, 1947, addressed by the
Albanian government to the Court, constitutes a
voluntary acceptance of its jurisdiction.
 Albanian Govt. declare in that letter that it “fully
accepts the recommendation of the SC”, … it
accepts in precise terms “the jurisdiction of the
Court for this case”. The letter of July 2, therefore,
…constitutes a voluntary and indisputable
acceptance of the court’s jurisdiction.

34. Forum prorogatumForum prorogatum [Cont.][Cont.]
 The doctrine relied upon by the Court to find its
jurisdiction in Corfu Channel case is that of the
forum prorogatum.
 Applications relying on forum prorogatum have
since been made in some later cases.
 In each case the respondent state took no positive
action and eventually the case was struck off the
Court’s list. To avoid this kind of “fishing” for
jurisdiction , (Art. 38.5 of)the Rules of Court was
amended.

35. (D)(D) By accepting compulsoryBy accepting compulsory
jurisdiction under Art. 36 (2)jurisdiction under Art. 36 (2)
Art. 36 [Statute]
(2) The States parties to the present Statute
may at any time declare that they
recognize as compulsory ipso facto and
without special agreement, in relation to
any other states accepting the same
obligation, the jurisdiction of the Court in
all legal disputes concerning:

36. Art. 36Art. 36 [Cont.][Cont.]
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if
established, would constitute a breach of
an international obligation;
(d) the nature and extent of the reparation to
be made for the breach of an international
obligation.

37. Art. 36 (2)Art. 36 (2) [explanation][explanation]
 Article 36(2) of the Statute provides what is
known as ‘compulsory jurisdiction’ of the ICJ.
 It is compulsory once it is voluntarily accepted.
 By the use of the term ‘may’, Article 36(2) is not
obligatory upon Member States.
 There is no obligation to make a declaration under
Article 36(2). That is the reason why it is called
the ‘optional clause’.

38. Art. 36Art. 36 [Cont.][Cont.]
(3) The declaration referred to above may be made
unconditionally or on condition of reciprocity on
the part of several or certain states, or for a
certain time.
….
(6) In the event of a dispute as to whether the Court
has jurisdiction, the matter shall be settled by the
decision of the court. [This provision is known
as “jurisdiction over jurisdiction”] “comp`etence
de la comp`etence”

39. Art. 36 (3)Art. 36 (3) [Explanation][Explanation]
 Under Article 36(3), the declarations may be made
unconditionally or on condition of reciprocity or
for a certain time.
 As declarations may be made conditionally, Some
states have accepted the compulsory jurisdiction
with ‘reservations’.
 These reservations may exclude from the
acceptance of compulsory jurisdiction a particular
dispute or whole class of disputes.

40. Reservations in the US’s declarationReservations in the US’s declaration
accepting compulsory jurisdictionaccepting compulsory jurisdiction
[See Textbook, p. 481]
 This declaration shall not apply to: …
(b) disputes with regard to matters which are
essentially within the domestic jurisdiction of the
United States of America as determined by the
United States of America: or
(c) disputes arising under a multilateral treaty, unless
(1) all parties to the treaty affected by the decision
are also parties to the case before the Court,…

41.  The first reservation is known as “automatic
reservation” or “self-judging reservation”. The
second one is “multilateral treaty reservation”.
 There are 63 declarations in force under the
“Optional Clause” system in accordance with
Article 36(2) of the Statute.
 France terminated its declaration in 1974 as a
result of the Nuclear Tests cases.
 The United States terminated its declaration in
1985 because of the Nicaragua case.

42. The principle of reciprocityThe principle of reciprocity
[p. 480][p. 480]
 States which accept the jurisdiction of the Court
under the optional clause system [Article 36(2)]
do so only ‘in relation to any other state accepting
the same obligation’.
 This is known as the ‘principle of reciprocity’.
This principle has two aspects:
 The first aspect is that the optional clause system
applies only between those States which have
accepted compulsory jurisdiction.

43.  Therefore, both parties to a dispute must have
made declarations under Article 36(2) in order that
the Court may exercise jurisdiction.
 The second aspect concerns the ‘subject matter’
over which the Court may have jurisdiction by
virtue of the phrase: ‘accepting the same
obligation’.
 Thus the principle of reciprocity means that the
Court has jurisdiction over the areas (or subject-
matters) in respect of which no reservations are
made by both States’ Declarations.

44.  According to Article 36(3), states may make
‘reservations’ when accepting the jurisdiction of
the Court. By virtue of the principle of reciprocity,
one state may rely on the reservations contained in
another state’s Declaration.
 For example, Suppose that State A’s Declaration
contains a reservation regarding ‘delimitation of
the continental shelf’. There is no such reservation
in State B’s Declaration.

45.  If there is a dispute between A and B regarding
delimitation of the CS. The Court has no
jurisdiction because there is no consent to
jurisdiction by State A as far as delimitation of the
CS is concerned.
 It implies that state B also can take the benefit of
the reservation of State A even though there is no
such reservation in its Declaration.

46. Norwegian Loans CaseNorwegian Loans Case
(France v Norway) 1957 ICJ Rep. 9(France v Norway) 1957 ICJ Rep. 9
 France brought a claim against Norway before the
ICJ. Both France and Norway had made
declarations under Article 36(2) accepting the
compulsory jurisdiction.
 The French Declaration contains the following
reservation: “This declaration does not apply to
differences relating to matters which are
essentially within the national jurisdiction as
understood by the Government of the French
Republic.” [self-judging reservation].

47. Norwegian Loans caseNorwegian Loans case [Cont.][Cont.]
 Norway objected to France’s action by arguing
that the issue was essentially a matter within
Norway’s ‘domestic jurisdiction’.
 Although Norway did not have such a reservation
in its declaration, it submitted that it could rely on
the fact that France did have such a reservation.
 The Court upheld Norway’s submission and held
that it had no jurisdiction.

48. Norwegian Loans caseNorwegian Loans case
[Judgment][Judgment]
 The Court does not consider that it should
examine whether the French reservation is
compatible with Article 36 (6) of the Statute…
 The validity of the reservation has not been
questioned by the Parties. It is clear that France
fully maintains its Declaration, including the
reservation, and that Norway relies upon the
reservation….
 The Court considers that the Norwegian
Government is entitled, by virtue of the condition
of reciprocity, to invoke the reservation contained
in the French Declaration.

49. Judge Lauterpacht ’s individualJudge Lauterpacht ’s individual
opinionopinion
 The French reservation is contrary to Art. 36 (6)
and therefore null and void.
 However, the question as to whether the entire
declaration becomes void remains.
 Lauterpacht refered to the “doctrine of severance
of contract”: if part of the contract is illegal, it is
necessary to consider whether the illegal part is
the essential portion of the contract. If it is so, the
entire contract would be tainted with illegality and
void.

50. Lauterpacht ’s opinionLauterpacht ’s opinion [Cont.][Cont.]
 But if the illegal part is not the essential part, then
it has to be severed from the contract and the
remaining portion of the contract will be valid.
 Applying this principle to the instant case,
Lauterpacht said that the reservation was the
essential part of the declaration and could not be
severed. Therefore, the entire declaration was
tainted with illegality and void.
 Accordingly, the Court had no jurisdiction.

51. Judge Guerrero (dissenting opinion)Judge Guerrero (dissenting opinion)
“I do not agree that the Court is without
jurisdiction when its lack of jurisdiction is
founded on the terms of a unilateral
instrument which I consider to be contrary
to the spirit and to the letter of the Statute
and which, in my view, is, for that reason,
null and void.”