International Dispute Resolution - International Law

Under the UN Charter (UNC) Art 2(3), all UN Members are required to settle disputes by peaceful means so as to avoid endangering international peace and security and justice.

Where the dispute threatens peace and security [STATES ONLY]

Under UNC Art 33, the state parties to a dispute likely to endanger international peace and security must seek to settle their disputes by negotiation, mediation, arbitration and various other peaceful means if the dispute is likely to endanger international peace and security; they may be called upon by the Security Council to do so.

• The Security Council may make recommendations to the parties: UNC Art 36 and (if requested by the parties) Art 38

• Where parties fail to resolve a dispute of this kind, they must refer it to the SC for recommendations: UNC Art 37

Negotiation

Negotiation is the most common method of resolving disputes.

• Impartial third parties, such as distinguished statesmen, may provide ‘good offices’ to facilitate the settlement of disputes (Beagle Channel Arbitration)

Mediation and conciliation

Flexible and non-binding means of settlement, usually adopted by treaty. There is no clear line distinguishing the two techniques. If the dispute involves states, they must consent.

• The role of the mediator is to facilitate negotiations between the parties and where appropriate propose ways of settlement.

• In conciliation, the third party has a more active semi-judicial role in considering the factual and legal issues and in making recommendations and findings.

International arbitration

Parties (state or otherwise) may consent to enter arbitration. Arbitration is an agreement to refer a dispute to an independent umpire. Decisions are made according to agreed procedures and legal principles and will be binding on the parties.

• In commercial arbitration there will often be a clause in a contract requiring arbitration if a dispute arises

• Arbitration may be between states, state and company (eg investment disputes), or company and company

• Arbitration is usually created in response to a specific dispute or kind of dispute, does not involve a permanent body and the state parties will agree upon the legal issues to be determined and the law and procedure to be applied.

• The members of the arbitral tribunal are often selected on the basis that each party appoints one arbitrator, the third being agreed between them or appointed by the Permanent Court of Arbitration.

PROS: Cheaper, faster than going to ICJ; can involve considerations other than law; does not require state vs state

Human rights treaty monitoring committees

Treaty monitoring committees are set up to apply and monitor human rights obligation. These permit individuals to have standing. The committee looks at the treaties and ultimately renders a decision as to whether a state is in breach or in compliance with its obligations.

[X] may argue that the ICJ does/does not have jurisdiction to hear [issue] because [X/Y] has not consented to its jurisdiction. The principle of state sovereignty means that states cannot be compelled to submit to the jurisdiction of the court without consent.

The ICJ will have jurisdiction if one of the following apply.

A declaration accepting compulsory jurisdiction

Under Art 36(2) of the ICJ Statute, states may make a declaration accepting the court’s compulsory jurisdiction for future disputes. [These declarations may be withdrawn, but require a period of notice to do so]

This consent to jurisdiction can be unconditional or be limited by subject matter or a condition of reciprocity (that is, jurisdiction is accepted if the other party has also accepted compulsory jurisdiction).

• The ICJ Statute saves declarations agreeing to the jurisdiction of the PCIJ under the Statute for the PCIJ, so parties who made such declarations are bound unless they revoked the declaration.

Where the consents have different conditions attached

Where both parties have consented, the ICJ will consider ‘the extent to which the two Declarations coincide in conferring jurisdiction’ (Anglo-Iranian Oil Co case). The reciprocity principle means that only matters within the common intention of the parties will fall within the jurisdiction of the court.

• A state cannot use the principle of reciprocity to avoid the terms of its own declaration (Interhandel case).

Special agreement between the parties (compromis)

If states have not made a declaration, they may still agree between themselves to submit a particular matter to the ICJ by special agreement (known as the compromis). They will agree on the scope of the dispute and questions in issue, and then submit a jointly agreed memorandum to the court.

This consent is valid for the case only.

Forum prorogatum

The ICJ has asserted jurisdiction where a state makes a unilateral application and the court concludes that the respondent state has subsequently consented. Consent may be express or inferred from conduct so long as it is genuine.

• EG: Albania was held to have agreed to the jurisdiction of the ICJ in an official letter after the UK made a unilateral application in the Corfu Channel case.

Treaty provision that the ICJ determines disputes under that treaty

If a treaty contains a clause stating that disputes under it will be referred to the ICJ, it is deemed that state parties, by consenting to the treaty, have consented to the court’s jurisdiction over disputes arising under that treaty.

• Treaty provisions providing for the jurisdiction of the PCIJ will be saved as applying to the ICJ (Art 37 ICJ Statute).

The ICJ may decline to determine a matter that will affect a third party state. The ICJ has held itself competent to decide matters in the absence of a third party state which is merely ‘affected’ by a decision (Nauru case), but not where its interests form the subject matter of the decision (Monetary Gold case). The distinction is unclear.

• A party’s interests are considered to ‘form the subject matter’ where the decision would have material or substantial effects for the third party state (East Timor Case)

Advisory Opinions provide guidance on legal principles the UN organs and specialised agencies should apply when carrying out their functions. They are not binding, but...