PEACEFUL SETTLEMENTPEACEFUL SETTLEMENTOF DISPUTESOF DISPUTESPROFESSORDR. ABDUL GHAFUR HAMID
6.16.1 The principle of peacefulThe principle of peacefulsettlementsettlementObjective of the UN: Article 1(1)Objective of the UN: Article 1(1)One of the major objectives of the UnitedNations is described in Art. 1(1) of theCharter as being“to bring about by peaceful means, and inconformity with the principles of justice andinternational law, adjustment or settlementof international disputes or situations whichmight lead to a breach of the peace….
Obligation to settle disputesObligation to settle disputespeacefullypeacefully: Article 2 (3): Article 2 (3)“peaceful settlement of disputes” is a cardinalprinciple of international law and a basic principleof the United Nations. Art. 2(3) of the Charterprovides that:“All Members shall settle their internationaldisputes by peaceful means in such a manner thatinternational peace and security, and justice, arenot endangered….” It is the logical corollary of the principle of non-use of force set forth in Article 2(4) of the Charter
Peaceful means of dispute settlementPeaceful means of dispute settlement::[Article 33][Article 33]1. The parties to any disputes, thecontinuance of which is likely to endangerthe maintenance of international peace andsecurity, shall, first of all, seek a solution bynegotiation, enquiry, mediation,conciliation, arbitration, judicial settlement,resort to regional agencies or arrangements,or other peaceful means of their ownchoice….
Peaceful means of dispute settlement [twoPeaceful means of dispute settlement [twocategories]categories]These methods can be categorized into:(1) Diplomatic means: (negotiation,mediation, enquiry, and conciliation); and(2) Adjudicative means: (arbitration andjudicial settlement).
6.26.2 Negotiation, Mediation, InquiryNegotiation, Mediation, Inquiryand Conciliationand ConciliationNegotiationNegotiationNegotiation is the simplest means andalways the first step of settling statedifferences.it is also a technique for preventing themfrom arising. Since prevention is better thancure, there is a form of negotiation, knownas ‘consultation’.
Good offices and MediationGood offices and Mediation When the parties to an international dispute areunable to resolve it by negotiation, theintervention of a third party is a possible means ofbreaking the impasse and producing an acceptablesolution. Sometimes third states, or IOs, or often even aneminent individual, may try to help the disputingstates to reach agreement. Such help can take twoforms: good offices and mediation.
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 intonegotiations; when negotiations start, its functionsare at an end. … Mediation: As compared with offering goodoffices, a mediator, on the other hand, is moreactive and actually takes part in the negotiationsand may even suggest terms of settlement to thedisputing states.
InquiryInquiry The main purpose of inquiry is ‘fact-finding’. After some negotiations, disputing states maysometimes agree to appoint an impartial body… tocarry out an inquiry; the object of the inquiry is toproduce an impartial finding of disputed facts, andthus to prepare the way for a negotiatedsettlement. Korean Air Line Flight KE 007 incident (1983);inquiry by the SG of the ICAO.
ConciliationConciliation Conciliation is referring the dispute to acommission of persons whose task it is toelucidate the facts and to make a report containingproposals for a settlement. Report of the commission does not have thebinding character of an award or a judgment. It differs from ‘inquiry’ in that the main object ofinquiry is the elucidation of the facts, in the hopethat the parties will of their own accord be able tosettle the dispute;
ConciliationConciliation [Cont.][Cont.]whereas the main object of conciliation is toprovide the active services of a commission ofpersons in bringing the parties to an agreement. It differs from arbitration and judicial settlementin that under conciliation the parties are under noobligation to adopt the proposed settlement;whereas a legal obligation exists to comply withthe award or judgment of a duly constitutedtribunal.
6.3 Arbitration6.3 Arbitration Arbitration can be defined as “a procedure for thesettlement of disputes between states by a bindingaward on the basis of law and as a result of anundertaking voluntarily accepted”. Arbitration has been used for a long time by statesto settle their disputes and it may be consideredthe most effective method, in view of the largenumber of cases and variety of types of disputesthat have been settled in this way. [See: RIAA]
Consent: a prerequisiteConsent: a prerequisiteArbitration depends upon the willingness of thestates involved to submit to adjudication. Consentcan be on an ad hoc basis or based on a treaty.The identity of the arbitrators, the formulation ofthe question to be submitted to the tribunal, therules of law to be applied and the time limit withinwhich an award must be made must also bemutually agreed upon by the states concerned.Such issues are spelt out in a ‘special agreement’between the parties known as the ‘Compromis’.
party autonomyparty autonomyArbitration is a device for leaving thesettlement of disputes as much in the handsof the parties as is possible.Parties are free in deciding the law to beapplied, and also the method of settlement,including the place where the dispute is tobe settled, by whom and in accordance withwhat procedures.
Arbitration v CourtArbitration v Court Party autonomy Judges of their own choice: sole arbitrator, arbitraltribunal, mixed arbitral commission Specialty: arbitrators can be experts in a particularfield of law Confidentiality: Arbitration sits in private. No appeal: The award is final and without appeal. Effective enforcement: 1958 New YorkConvention on the Recognition and Enforcementof Foreign Arbitral Awards.
6.4 International Court of6.4 International Court ofJusticeJusticeArticle 92 [Charter]The International Court of Justice shall bethe principal judicial organ of the UnitedNations. It shall function in accordance withthe annexed Statute, which …forms anintegral part of the present Charter.
Composition of the CourtComposition of the Court The Court consists of fifteen judges of high moralcharacter. The judges must possess the qualificationsrequired in their countries for appointment to thehighest judicial office, or must be jurists ofrecognized competence in international law. The Court may not include more than one judge ofany nationality.
Composition of the CourtComposition of the Court [Cont.][Cont.] The composition of the Court should represent themain forms of civilization and the principal legalsystems of the world. The recent practice has been to select four judgesfrom West European states, one from the US, twofrom South America, two from East Europeanstates and six from Asia and Africa. The five permanent members of the SecurityCouncil are always represented by a judge in theCourt.
Composition of the CourtComposition of the Court [Cont.][Cont.]Judges ad hoc or national judges [Art. 31]If a state appearing before the Court doesnot have a judge of its own nationality atthe Court, it may appoint an ad hoc judgefor the particular case.Such an ad hoc judge takes part in thedecision of the Court on terms of completeequality with other judges.
6.56.5 Jurisdiction of the CourtJurisdiction of the CourtThe ICJ has two main categories ofjurisdiction, namely:(1) Jurisdiction in contentious cases(2) advisory jurisdiction
(1)(1) Jurisdiction in contentiousJurisdiction in contentiouscasescasesAccess to the Court: Article 34 [Statute](1) Only States may be parties in cases before theCourt. …- The Court is not open to private individuals orcorporations.- International organizations also have no locusstandi as parties in a contentious proceeding.They have only the right to request advisoryopinions.
‘‘Consent’ is the basis of the Court’sConsent’ is the basis of the Court’sjurisdictionjurisdictionArticle 36 [Statute]1. The jurisdiction of the Court comprises all caseswhich the parties refer to it and all mattersspecially provided for in the Charter of the UnitedNations or in treaties and conventions in force. …The phrase “all cases which the parties refer to it”,clearly indicates that the Court can exercisejurisdiction only when the parties refer the case toit.
The word “parties” is in the plural, and impliesthat all the parties to the dispute must agree thatthe dispute should be referred to the Court. Therefore, the Court’s jurisdiction is notcompulsory; it is voluntary only. The Court on a number of occasions declared thatits jurisdiction in contentious cases is dependenton the consent of the parties. It is reaffirmed in Monetary Gold case.
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 Bankof Albania had been seized by Germany from abank in Rome during the World War II. It hadsince fallen into the hands of the allied forces,consisting of France, the UK and the US. Italy and Albania disputed over the gold before anarbitral tribunal and the tribunal decided that thegold belonged to Albania.
Monetary GoldMonetary Gold case [Cont.]case [Cont.] Italy instituted proceedings before the ICJ, againstthe three allied powers claiming the gold, ButAlbania, in whose favour the arbitrator haddecided, declined to be a party to the case beforethe ICJ. The Court held that it did not have jurisdictionbecause Albania, whose legal interests would formthe very subject-matter of the decision, did notconsent to its jurisdiction.
Ways of expressing consent to theWays of expressing consent to thejurisdiction of the Courtjurisdiction of the CourtConsent of a state to appear before the Court maytake 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 jurisdictionunder Art. 36 (2) of the Statute.
(A)(A) ConsentConsent ad hocad hoc::By a special agreementBy a special agreement((compromis)compromis) The classic method by which the parties refer acase to the Court is by a special agreement(compromis). This is an agreement whereby two or more statesagree to refer a particular and defined matter to theCourt for a decision. Examples: Case concerning Pulau Ligitan andPulau Sipadan (Indonesia v Malaysia); caseconcerning Pulau Batu Puteh (Malaysia vSingapore).
(B)(B) By a compromissory clause inBy a compromissory clause ina treatya treaty States can agree in advance by treaty to conferjurisdiction 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 whichcontain such a jurisdictional clause stipulatingthat if parties to the treaty disagree over itsinterpretation or application, one of them mayrefer the dispute to the Court.
Compromissory clauseCompromissory clause [Cont.][Cont.]Such a clause is known as a“compromissory clause”.The treaty may be a general treaty ofpeaceful settlement of disputes, or a treatyregulating some other topic and containinga compromissory clause.
(C)(C) ByBy forum prorogatumforum prorogatumThere is no reason why each party shouldnot make a separate reference to the Courtby a unilateral application [under Article40(1) of the Statute].While the Court is considering theunilateral application of one state, the othermay expressly or impliedly signify itsconsent to the jurisdiction.
Forum prorogatumForum prorogatum [Cont.][Cont.]Such consent may be express or implied. Itcan be implied if the defendant statedefends the case on the merits withoutchallenging the jurisdiction of the Court.(Like an estoppel by conduct.)In such circumstances the jurisdiction isknown as forum prorogatum.
Corfu Channel CaseCorfu Channel Case(Preliminary Objection(Preliminary Objection))1948 ICJ Reports 151948 ICJ Reports 15 The United Kingdom, on May 22, 1947, brought aclaim against Albania before the ICJ by unilateralapplication in accordance with Article 40(1). It argued that the Court had jurisdiction underArticle 36(1) of its Statute on the ground that theSC of the UN, after dealing with the dispute underArticle 36 of the Charter, by a resolution, decidedto recommend both the UK and Albania to referthe present dispute to the ICJ.
Corfu Channel CaseCorfu Channel Case[Judgment][Judgment] …The letter of July 2, 1947, addressed by theAlbanian government to the Court, constitutes avoluntary acceptance of its jurisdiction. Albanian Govt. declare in that letter that it “fullyaccepts the recommendation of the SC”, … itaccepts in precise terms “the jurisdiction of theCourt for this case”. The letter of July 2, therefore,…constitutes a voluntary and indisputableacceptance of the court’s jurisdiction.
Forum prorogatumForum prorogatum [Cont.][Cont.] The doctrine relied upon by the Court to find itsjurisdiction in Corfu Channel case is that of theforum prorogatum. Applications relying on forum prorogatum havesince been made in some later cases. In each case the respondent state took no positiveaction and eventually the case was struck off theCourt’s list. To avoid this kind of “fishing” forjurisdiction , (Art. 38.5 of)the Rules of Court wasamended.
(D)(D) By accepting compulsoryBy accepting compulsoryjurisdiction under Art. 36 (2)jurisdiction under Art. 36 (2)Art. 36 [Statute](2) The States parties to the present Statutemay at any time declare that theyrecognize as compulsory ipso facto andwithout special agreement, in relation toany other states accepting the sameobligation, the jurisdiction of the Court inall legal disputes concerning:
Art. 36Art. 36 [Cont.][Cont.](a) the interpretation of a treaty;(b) any question of international law;(c) the existence of any fact which, ifestablished, would constitute a breach ofan international obligation;(d) the nature and extent of the reparation tobe made for the breach of an internationalobligation.
Art. 36 (2)Art. 36 (2) [explanation][explanation] Article 36(2) of the Statute provides what isknown 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 notobligatory upon Member States. There is no obligation to make a declaration underArticle 36(2). That is the reason why it is calledthe ‘optional clause’.
Art. 36Art. 36 [Cont.][Cont.](3) The declaration referred to above may be madeunconditionally or on condition of reciprocity onthe part of several or certain states, or for acertain time.….(6) In the event of a dispute as to whether the Courthas jurisdiction, the matter shall be settled by thedecision of the court. [This provision is knownas “jurisdiction over jurisdiction”] “comp`etencede la comp`etence”
Art. 36 (3)Art. 36 (3) [Explanation][Explanation] Under Article 36(3), the declarations may be madeunconditionally or on condition of reciprocity orfor a certain time. As declarations may be made conditionally, Somestates have accepted the compulsory jurisdictionwith ‘reservations’. These reservations may exclude from theacceptance of compulsory jurisdiction a particulardispute or whole class of disputes.
Reservations in the US’s declarationReservations in the US’s declarationaccepting compulsory jurisdictionaccepting compulsory jurisdiction[See Textbook, p. 481] This declaration shall not apply to: …(b) disputes with regard to matters which areessentially within the domestic jurisdiction of theUnited States of America as determined by theUnited States of America: or(c) disputes arising under a multilateral treaty, unless(1) all parties to the treaty affected by the decisionare also parties to the case before the Court,…
The first reservation is known as “automaticreservation” or “self-judging reservation”. Thesecond one is “multilateral treaty reservation”. There are 63 declarations in force under the“Optional Clause” system in accordance withArticle 36(2) of the Statute. France terminated its declaration in 1974 as aresult of the Nuclear Tests cases. The United States terminated its declaration in1985 because of the Nicaragua case.
The principle of reciprocityThe principle of reciprocity[p. 480][p. 480] States which accept the jurisdiction of the Courtunder the optional clause system [Article 36(2)]do so only ‘in relation to any other state acceptingthe same obligation’. This is known as the ‘principle of reciprocity’.This principle has two aspects: The first aspect is that the optional clause systemapplies only between those States which haveaccepted compulsory jurisdiction.
Therefore, both parties to a dispute must havemade declarations under Article 36(2) in order thatthe Court may exercise jurisdiction. The second aspect concerns the ‘subject matter’over which the Court may have jurisdiction byvirtue of the phrase: ‘accepting the sameobligation’. Thus the principle of reciprocity means that theCourt has jurisdiction over the areas (or subject-matters) in respect of which no reservations aremade by both States’ Declarations.
According to Article 36(3), states may make‘reservations’ when accepting the jurisdiction ofthe Court. By virtue of the principle of reciprocity,one state may rely on the reservations contained inanother state’s Declaration. For example, Suppose that State A’s Declarationcontains a reservation regarding ‘delimitation ofthe continental shelf’. There is no such reservationin State B’s Declaration.
If there is a dispute between A and B regardingdelimitation of the CS. The Court has nojurisdiction because there is no consent tojurisdiction by State A as far as delimitation of theCS is concerned. It implies that state B also can take the benefit ofthe reservation of State A even though there is nosuch reservation in its Declaration.
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 theICJ. Both France and Norway had madedeclarations under Article 36(2) accepting thecompulsory jurisdiction. The French Declaration contains the followingreservation: “This declaration does not apply todifferences relating to matters which areessentially within the national jurisdiction asunderstood by the Government of the FrenchRepublic.” [self-judging reservation].
Norwegian Loans caseNorwegian Loans case [Cont.][Cont.] Norway objected to France’s action by arguingthat the issue was essentially a matter withinNorway’s ‘domestic jurisdiction’. Although Norway did not have such a reservationin its declaration, it submitted that it could rely onthe fact that France did have such a reservation. The Court upheld Norway’s submission and heldthat it had no jurisdiction.
Norwegian Loans caseNorwegian Loans case[Judgment][Judgment] The Court does not consider that it shouldexamine whether the French reservation iscompatible with Article 36 (6) of the Statute… The validity of the reservation has not beenquestioned by the Parties. It is clear that Francefully maintains its Declaration, including thereservation, and that Norway relies upon thereservation…. The Court considers that the NorwegianGovernment is entitled, by virtue of the conditionof reciprocity, to invoke the reservation containedin the French Declaration.
Judge Lauterpacht ’s individualJudge Lauterpacht ’s individualopinionopinion The French reservation is contrary to Art. 36 (6)and therefore null and void. However, the question as to whether the entiredeclaration becomes void remains. Lauterpacht refered to the “doctrine of severanceof contract”: if part of the contract is illegal, it isnecessary to consider whether the illegal part isthe essential portion of the contract. If it is so, theentire contract would be tainted with illegality andvoid.
Lauterpacht ’s opinionLauterpacht ’s opinion [Cont.][Cont.] But if the illegal part is not the essential part, thenit has to be severed from the contract and theremaining portion of the contract will be valid. Applying this principle to the instant case,Lauterpacht said that the reservation was theessential part of the declaration and could not besevered. Therefore, the entire declaration wastainted with illegality and void. Accordingly, the Court had no jurisdiction.
Judge Guerrero (dissenting opinion)Judge Guerrero (dissenting opinion)“I do not agree that the Court is withoutjurisdiction when its lack of jurisdiction isfounded on the terms of a unilateralinstrument which I consider to be contraryto the spirit and to the letter of the Statuteand which, in my view, is, for that reason,null and void.”