PEACEFUL SETTLEMENT PEACEFUL SETTLEMENT OF DISPUTESOF DISPUTES

PROFESSOR

DR. ABDUL GHAFUR HAMID

6.1 6.1 The principle of peaceful The 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….

Obligation to settle disputes Obligation 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

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….

Peaceful means of dispute settlement [two Peaceful 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).

6.2 6.2 Negotiation, Mediation, Inquiry Negotiation, Mediation, Inquiry and Conciliationand Conciliation

NegotiationNegotiationNegotiation 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’.

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.

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.

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.

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;

Conciliation Conciliation [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.

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]

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’.

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.

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.

6.4 International Court of 6.4 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.

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.

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.

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.

6.5 6.5 Jurisdiction of the CourtJurisdiction of the Court

The ICJ has two main categories of jurisdiction, namely:

(1) Jurisdiction in contentious cases

(2) advisory jurisdiction

(1) (1) Jurisdiction in contentious Jurisdiction 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.

‘‘Consent’ is the basis of the Court’s Consent’ 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.

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.

Monetary GoldMonetary Gold case case (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.

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.

Ways of expressing consent to the Ways 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.

(A) (A) Consent Consent ad hocad hoc: : By a special agreement By 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).

(B) (B) By a compromissory clause in By 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.

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.

(C) (C) By By 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.

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.

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.

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.

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.

(D) (D) By accepting compulsory By 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:

Art. 36 Art. 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.

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’.

Art. 36 Art. 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”

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.

Reservations in the US’s declaration Reservations 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,…

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.

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.

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.

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.

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.

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].

Norwegian Loans case Norwegian 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.

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.

Judge Lauterpacht ’s individual Judge 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.

Lauterpacht ’s opinion Lauterpacht ’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.

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.”