Peaceful settlement of international disputes
- 1 General information
- 2 Means of peaceful settlement of disputes
- 3 International arbitration
- 4 The recourse to the International Court of Justice
- 4.1 When can the Court hear a case? When can she judge? Who can she judge?
- 4.2 There are three aspects of competence
- 4.3 How can I give my consent?
- 5 Annexes
- 6 References
General information[edit | edit source]
The importance of the peaceful settlement of disputes[edit | edit source]
The peaceful settlement of disputes is the subject we have constantly encountered during this course.
The dispute is therefore somewhere, not what is normal, but it is the least intimate at which the value of rules of international law can be measured because it is in the case of implementation and in the case of divergences that we see what must be done.
The peaceful settlement of disputes emerges from different aspects:
- peacekeeping: peace is the condition to which everything else is subordinate, with peacekeeping involving a system whereby States can forward the complaint and have it dealt with. There is a close link between peacekeeping and the progress of disputes towards a solution.
- justice component: reflects the importance of the peaceful settlement of disputes, because is it not right to offer means of realizing one's rights to those who hold them? The legal system can only function properly if the subjects who are composed do not too often have a disappointment in the realisation of their rights, otherwise the whole legal system suffers and the whole justice system is wrong.
- legal security: it has been said that material rules are always somewhere as strong as the means of enforcement. We can grant rights as much as we want, but if there is no way to realize them they float in weightlessness.
- question of order: the law is still as dedicated as ever to maintaining order, a mature legal system deals with disputes between its members, in the primitive legal system private justice is applied. A more mature legal system seeks to enforce an order and deals with disputes between its members. Between two states that distrust each other, even the easiest compromises will be extremely difficult to achieve; since this is the case, it is normal for them to become institutionalized and seek to provide services to their members because dispute resolution has a beneficial feedback for the social body. Cooperation requires trust and dispute resolution.
The predominant role of consensus and sovereignty[edit | edit source]
One would expect international law to pay particular attention to disputes and strong and binding rules in this regard; however, this is not the case; quite the opposite is true. International law is based on the rule of consent, disputes are settled by agreement.
- Why is this the case?
Resolving disputes is deciding on concrete claims between States, resolving disputes is deciding who is right, it is deciding the dispute on the merits; if States were obliged to buy dispute resolution without their agreement then it would mean that these States would no longer be sovereign. Sovereignty is the ability to decide in the last resort. If another decides on a dispute and forces a solution, then we are no longer sovereign because we no longer decide as a last resort.
States have always considered that the resolution of binding disputes without their agreement would be incompatible with their sovereignty, and a system would be organised in which supranationality is required. In each case, the resolution of disputes must be accompanied by an agreement.
There can be no dispute settlement without an agreement that reduces the ability of the international legal order to digest disputes and bring them to a solution.
- Is it so serious to resort to the will of States?
Not necessarily, between a decision that needs to be settled and the settlement of the dispute, time passes; in the end, if the States concerned cannot live with the solution, then the dispute is not resolved. We must ensure that States can live with the solution.
The fact that the agreement and consent of the States concerned are required is not a great loss, as the disputes are complex and have their roots in history.
Means of peaceful settlement of disputes[edit | edit source]
Assent can be given on an ad hoc basis, apart from the question of general assent to resolve a dispute, the issue of consent is in the choice of how to resolve a dispute.
In international law, the principle is that there is a free choice of means, in addition to which consent to a means of dispute settlement must be given concrete form:
The means of political solution are negotiations, good offices, mediation, conciliation and investigation; one State may wish to negotiate, another State may be interested in settling the dispute by going before the International Court of Justice through a jurisdictional means of settling a dispute which is recourse to arbitration and recourse to the tribunal
States may disagree on the means and as long as they disagree, the dispute cannot be resolved.
There are also objective reasons for wanting to favour this or that means, it may be a question of knowing what spectrum of discussion we want.
By choosing the means of political settlement, it is possible to deal with the whole dispute in all its aspects, including the political, psychological and financial aspects, there is total flexibility, it is possible to talk about everything and agree on everything, it is possible to attack the whole dispute in all its aspects. Before the International Court of Justice, we can only settle legal aspects, we must reduce disputes to legal aspects.
The International Court of Justice is not going to settle the political aspect of the dispute; according to the spectrum we want, at that moment we prefer negotiation, if we try to settle only one aspect of the dispute then we are interested in another method of settlement.
A powerful state always prefers negotiation because in direct negotiation, alone, a bilateral negotiation between a very powerful state and a very weak state, it is interesting for a powerful state to enter this constellation to play on its power. For the weak state, it wants everything but direct negotiation because it knows it will have a much more difficult position. The weak state has an interest in going to the International Court of Justice where power plays no role.
There are fundamental reasons, interests, visions of the dispute that make us prefer this or that means, the choice of means can be indifferent, even tough.
How do we solve it?[edit | edit source]
As long as States have a favourable position to settle the dispute, the work of the mediator or a personality will be to bring the parties together and find transactional solutions where everyone is satisfied.
There are political and jurisdictional means to resolve disputes, at the same time, there is the old distinction between legal and political disputes:
- quality of the dispute;
- quality of the medium.
Normally, political disputes must be directed to a political means while legal disputes can be directed to a means of jurisdictional solution; this is the question of choosing the right means.
Beyond that, there is no clear distinction because the two aspects are always intertwined in international law, which is a political right between nations, it is a public right between nations, every question of international law has its political aspect; one cannot by nature distinguish a legal and political dispute, one can only distinguish the claims of the parties in dispute.
If a State claims something from another State on the basis of a rule of international law then there is a legal dispute, a violation of the law comes with a duty to compensate.
On the other hand, all disputes based not on the application of the law, but rather on the modification of the law or which are in areas where there are no legal rules such as foreign policy, for example, in these cases we ask for the modification of the law, we want to establish a new regime or we ask for a certain foreign policy outside a rule of law.
In the choice of means of dispute settlement, there are, apart from the particular interests of a particular State, either the choice of political or judicial means; what exactly is the scope of this distinction in terms of means?[edit | edit source]
If we are going to talk about political modalities, we will always seek compromises and transactions, we are looking for a perspective outside the law, we are not seeking to enforce the law as it is, but to negotiate compromises, which means in international law to create new law crystallized in an agreement that is a treaty being a source of international law; we are looking for a settlement, a compromise that will create new law that will give great flexibility to address the whole dispute, but the political means of resolving a dispute do not lead to an automatic binding solution, the solution must be accepted by States in consensus:
- States must have the same attitude with initial consent;
- agree on the means;
- find an agreement in the negotiation.
The political means of settling a dispute are not binding, because the political process is based on a transaction, no one is obliged to compromise on their rights, if a state has rights, they are not obliged to abandon them for a compromise; they buy the ability to negotiate in a very flexible way by the relative disadvantage that the solution will not necessarily be adopted given that each of the states in dispute will have a veto right until the last moment.
In court proceedings, there are exactly the opposite advantages and disadvantages; the area of the treaty dispute is narrowing, it is only about the application of the law. Court proceedings buy back the disadvantage of reducing the dispute by the binding nature of the decision rendered, avoiding a step of consent: one must agree for an international tribunal to take up the case, but once the jurisdiction of a tribunal has been accepted, then the procedure takes its course and the judgment rendered is binding on the States concerned. There is also the possibility that the recalcitrant State may be turned away, the procedure continues even in the absence of such a State.
Assent relates to the acceptance of jurisdiction, consent is required to establish the jurisdiction of the Court, but once established, there are modalities to override the will of States.
Negotiation remains an extremely flexible process governed by international law in general so that it cannot be abused, for the rest, international law remains discretionary, but there are certain rules of good faith for example such as certain defects of consent such as fraud and corruption. Negotiations are formal or informal.
The good offices, in the good offices there is the intervention of a third party who uses its moral or political authority to establish contact between the States in dispute or restore this link if it had previously been broken in order to ensure that the States in question engage in negotiations and often the one offering the good offices, offers logistics. States will be provided with a discreet framework, a few officials, etc. The logistics are made so that States can move forward in the negotiations, but they do not participate; the negotiations are facilitated, but they do not participate.
If we do more than that, then we automatically become a mediator, and it is common for the person offering good offices to become a mediator later on.
The mediator engages in negotiations, he tries to approach the States not only to ensure that they negotiate, but he tries to bring them closer together in substance by making compromise proposals.
In order for a mediator to be successful, he or she must be accepted by the parties and, normally, should be equidistant to them.
The mediator must have certain qualities, they are high-ranking diplomats, you have to know the case very well, the sensitivity of the parties. The success of mediation depends on the circumstances.
Conciliation is a more formalized procedure, there is a conciliation commission often composed of five persons appointed as arbitrators who listen to the arguments first by written document and then by oral presentation, study the documents and try to find a compromise drawing up a report in which it makes a proposal for the settlement of the dispute; if the States then accept there is a compromise, if one of the States refuses, then the dispute is not resolved.
Investigation is a means of settling disputes concerning points of fact, sometimes between States it is not the consequences of certain acts that are contentious, but rather the existence of certain facts.
International arbitration[edit | edit source]
Arbitration differs from the Court of Justice in that it is less institutionalised, two disputing States may decide to appoint certain persons as arbitrators and to re-establish a tribunal that will make an award binding on the States parties to the dispute.
In arbitration agreements, States may determine the terms of the arbitration, the arbitrator is a body of the parties to the dispute that can appoint persons who will function as an arbitral tribunal and render their judgment.
The recourse to the International Court of Justice[edit | edit source]
The International Court of Justice is not intended as a body that arbitrates in a binding manner all legal disputes between States.
The International Court of Justice is a service court, i.e. it is a court that is made available to States, which can use it if they so wish when they have disputes.
Jurisdiction can only be established if there is consent. It is a service court rather than a court of constraint. The International Court of Justice has succeeded in settling a significant number of disputes.
The first remark is that the current Court, the International Court of Justice, is the successor of the Permanent Court of International Justice, the latter was linked to the League of Nations and existed between 1920 and 1946 with the last judicial acts made in 1939; dissolved in 1946, its successor is the International Court of Justice. The current Court cites the case law of the former Court as its own.
The second remark is that the International Court of Justice is composed of 15 judges elected for nine years and eligible for re-election; the age of the judges means that they have been able to run for two terms. The renewal of the Court is done every three years by 1/3, so 1/3 of the judges, i.e. 5 places are filled every three years, which does not mean that five new judges will arrive since one can be re-elected. There are also ad hoc judges who are judges for individual cases; States that do not have national judges sitting may refer ad hoc judges. The ad hoc judge is elected when none of the States parties to the proceedings has a national judge in the ordinary composition; this may amount to up to 17 judges sitting in a given case.
The Court is composed of 9 judges present, i.e. a quorum under Article 25.3 of the Statute of the Court. Judges are required to vote, there is no abstention of votes in a court so that a simple majority is required on each point of the system; each of the judges must vote on the points of the system, one can decide by a majority vote. It is also possible that the votes will be equally divided, the casting vote is the casting vote of the president who will be the president in article 55 of the statute.
There may be chambers if the parties choose not to have the full composition, States with a dispute may choose not to solicit all judges, but to request a chamber of 5 judges in Article 26 of the Statute. The most precise is Chamber 26.2 where the parties may elect the five judges of the Court whom they wish to see sit in their case.
The third remark concerns the way in which judges are elected either by the United Nations and the Security Council through a relatively complicated practice in Article 2 of the Statute by an absolute majority of votes.
The fourth remark is that there is an article 9 in the Statute of the Court recalling that in the election of judges, the General Assembly and the Security Council must take into account the major legal systems. There is an equitable geographical distribution because the International Court of Justice is a fair court, there is a key to distribution, the Americas have three judges, always one American, three Asian judges, always one Chinese, three African judges, one of whom comes from the Maghreb parties, three European judges, one of whom is British and one French judge represented on the Security Council, and two Central and Eastern European judges, always one Russian.
The jurisdiction of the International Court of Justice must be studied first and foremost, this gives a relatively clear view of what the Court can do.
When can the Court hear a case? When can she judge? Who can she judge?[edit | edit source]
The International Court of Justice has jurisdiction in two clearly distinct types of proceedings on all points except for the procedure:
Litigation procedure - litigation[edit | edit source]
In contentious proceedings, States, usually two States, a requesting State and a respondent State, confront each other before the Court on any issue. If the Court has jurisdiction, it will make a binding judgment, the binding character emerges from a principle of the quality of the court which makes binding judgments because the court applies the law which is binding on the parties, therefore the court which applies the law makes a binding judgment.
This is also apparent from the texts in Article 94.1 of the Charter and Article 59 of the Articles of the Statute of the International Court of Justice. States that have ratified the Charter and/or the Statute have accepted this provision, hence the binding nature of the Court's judgments. Judgments of the Courts are called judgments of judgments, the Court also makes orders that accompany the proceedings, judgments relate to litigation.
Advisory procedure[edit | edit source]
Advisory jurisdiction means that certain organs of the United Nations may bring an action before the Court for an opinion of law. However, the advisory opinion is not legally binding, it is a legal opinion that clarifies the body that requests it on the legal aspects of one or other of its activities without this opinion binding the requested body.
The purpose of this non-binding nature is to ensure that the body seeking the opinion can deal with the matter in non-legal terms. On the other hand, we do not want the political organ of the United Nations to be forced to put what the Court has given as its opinion because we do not want the Court to necessarily decide in law, we prefer to solicit the parties to reach an agreement.
These two procedures lead to very different results: binding for the contentious procedure, non-binding for the consultative procedure.
The Court's jurisdiction in contentious matters, in judicial matters jurisdiction means the ability of the International Court of Justice to decide a dispute submitted to it on the merits, States submit a problem to the Court on a different question.
Sometimes the defendant questions the Court's jurisdiction, it is the very first defence strategy, in which case a second dispute is grafted onto the first, there is a substantive dispute and a dispute over the Court's jurisdiction.
The Court is called upon to decide this dispute, if its jurisdiction is challenged, the Court will listen to the parties and decide through a judgment.
When the defendant raises a challenge to the Court's jurisdiction, it will be said that the defendant has raised a preliminary objection. The Court will first have to decide on the question of exceptions, if the Court does not have jurisdiction, this means that it has not been granted the right to speak on the merits, no State is obliged to postpone a dispute if the Court does not have jurisdiction.
There are three aspects of competence[edit | edit source]
- personal jurisdiction - jurisdiction rationae personae: who may remain before the Court?
- substantive jurisdiction - subject-matter jurisdiction: what kinds of questions may be submitted to the Court?
- consensual jurisdiction - jurisdiction ratione concensus: question of consent, it is necessary to ensure that the litigants appearing before the Court have given jurisdiction to the Court.
Personal competence[edit | edit source]
Personal jurisdiction is regulated by article 34.1, which is a model of brevity, only States have the right to appear before the Court: only States may appear before the Court, other entities to the State may not appear before the Court. An international organization as well as an individual cannot appear before the Court. For international organizations, arbitration is provided for because they cannot go before the International Court of Justice.
Not only must we be a state, but we must also be a member of the United Nations that has automatically ratified the status since it is an integral part of the Charter. Or a State has ratified or acceded to the Statute without being a member of the United Nations, which is why the Statute is formally separate from the Charter.
The Statute in 35.2 and 35.3 gives way to the Court for States that are neither members of the United Nations nor have ratified the Statute; the Court is a Service Court, but under conditions specified by Security Council Resolution 91 of 1996, which is that basically States not party to the Statute recognize the principles of the Statute and a financial contribution.
Whether a state is a party to the sometimes simple status, but sometimes diabolically difficult in the case of state succession, for years it has been uncertain whether Serbia and Montenegro are parties to the status, Serbia and Montenegro claim to be continuing states of the former Federal Yugoslavia. The Court in the genocide case had to navigate.
Material competence[edit | edit source]
Material jurisdiction presupposes three conditions:
- there must be a dispute between the States parties to the proceedings;
- the dispute must be of a legal nature;
- the applicable law must be international law.
The Litigation Court only settles disputes, if there is no dispute, the Court has nothing to say, there is a dispute, this is specified in the case of Mavrommatis: "A dispute is a disagreement on a point of law or fact, a contradiction, an opposition of legal theses or interests between two persons. »
What is crucial for the dispute is that throughout the proceedings, the claim of one State continues to encounter opposition from the other; States may also abandon certain claims during the proceedings, at which point the dispute could disappear during the Hague proceedings. At that time, the Court considered that there was no longer any object to be decided, as in the case of the nuclear tests between France, New Zealand and Australia. It is the Court itself that determines whether there is a dispute and what its nature is.
Both parties, in concert, or either the applicant, either the two sets, or the applicant, must place their application to the Court in the field of law, they must make legal claims. All claims must be formulated in terms of law. It is this subjective criterion that is decisive.
If, on the other hand, the applicant or both parties in concert, if the applicant or both States do not rely on the law, but ask the Court to recognize that State X should change its foreign policy contrary to the interests of State Y.
In principle, the claim must be formulated in terms of law, but not only on the basis of international law; the Court cannot be asked to apply national law; sometimes international law refers to domestic law, but on a reference from international law. Sometimes there are difficulties that lead to further intellectual development.
Consensual competence[edit | edit source]
The States appearing before the Court must have consented to its jurisdiction. If the Court were to make judgments against the will of States, States would not implement the judgments.
Consent protects sovereignty, but also the Court, it means that States accept that the Court may decide the dispute. It operates as a filter, contrary to what the philistine thinks, just because the International Court of Justice does not have a police force does not mean that the judgments are not applied. No court in the world has a quota of the rank of the International Court of Justice.
Consensual jurisdiction is strongly emphasized by the Court, for example in the case of East Timor in the 1995 case "The Court will recall in this respect that one of the fundamental principles of its Statute is that it cannot settle a dispute between States without their consent to its jurisdiction".
How can I give my consent?[edit | edit source]
There are two main modalities and two sub-modalities:
Acceptance of the Court's jurisdiction by consent before the dispute arises and consent given after the dispute arises: When you give your consent before a dispute arises, you do not know what dispute may arise, you give your consent in blank, you submit to the Court for future disputes, the commitment is strong. When one consents to the jurisdiction or jurisdiction of the Court after a dispute has arisen, it is because one consents to the Court deciding that consent only.
The scope of consent is significantly greater when consent is given before a dispute arises than after. States more easily give their post hoc consent.
Category before the dispute arose: there are two main gateways to the Court:
- treaties which give jurisdiction for a particular class of disputes to the International Court of Justice
The treaty is consensual, States give their consent to the ratification of the treaty and all its clauses. Treaties provide for the settlement of a dispute.
- treaties that do not have as their object the settlement of the dispute, but any object
Like the prohibition of chemical weapons, customs regimes, the natural environment, etc.; it is possible to insert in these treaties an arbitration clause which is generally found towards the end of the treaty, the parties to the treaty agree to grant the competence of the International Court of Justice to hear a dispute which may arise between them concerning the interpretation and application of the said convention.
Article 9 of the Genocide Convention provides that any State party to the Convention may bring an action before the International Court of Justice. The Court has jurisdiction on the basis of agreement. In the case of arbitration clauses, the Court's jurisdiction is limited, knowing what belongs to the convention and what is customary law applied in connection with the convention is relatively difficult.
optional clause of mandatory jurisdiction - optional clause[edit | edit source]
Jurisdiction is mandatory, but acceptance is optional, because it is possible to make a declaration that one accepts jurisdiction, but one may also not make it; mandatory jurisdiction does not mean jurisdiction without consent, there is mandatory consent to say that there is jurisdiction accepted in advance.
The optional clause is an ingenious way for States wishing to submit to the Court to do so through a unilateral declaration; depending on the latter, a State may declare that it submits to the Court's jurisdiction over any other State that has also submitted jurisdiction to the Court, but this may also be limiting.
Between the various States that have made this declaration of optional jurisdiction there is a link of mandatory jurisdiction; the optional clause is a practical way of trying to extend the mandatory jurisdiction of the Court, it is an important link that requires the defence in the future of cases that one does not want to defend before the Court simply because one has submitted an undertaking. About a third of the world's States are bound by optional clauses.
States making declarations may make open declarations which may submit to the Court for no reason whatsoever, but States may also put reservations in these declarations as temporal reservations as disputes after a certain date, or else personal reservations, there are material reservations, certain matters may be excluded, such as, for example, in the case of free fishing jurisdiction Spain v. Canada is a question which concerned certain areas of the high seas.
For these reservations, there is reciprocity. When a State makes a unilateral declaration under article 36.2 and makes a reservation, it wishes to protect itself against another State bringing an action before the Court, the reservation serves as a shield or it can be invoked reciprocally by the requesting State.
State A with its reservation and State B, B brings the case against the Court, if A raises its reservation, the Court has no jurisdiction. There could be inequality before the Court, but this is not the purpose of putting obstacles in the way of bringing cases before the Court.
In Article 36.2, it is possible that State B may raise the reservation for its benefit on a reciprocal basis. It is therefore not necessary to have made a reservation to invoke its benefit. Once the case is brought before the Court, State A is a reserving State, State B is a defendant.
First of all, the optional declaration takes effect immediately upon its deposit, i.e. as soon as it is received by the Secretary-General of the United Nations, a declaration can be deposited and attacked immediately thereafter. It is possible to insert a reserve to protect against surprise attacks, but the surprise attack is not necessarily a bad thing, because the Court's jurisdiction is recognized.
An optional declaration may also be withdrawn, a State may denounce an optional declaration, this is an old practice; to denounce the optional declaration there are procedures:
- if the declaration contains a time limit for denunciation, then it must be applied.
- if the statement does not say anything about time limits for denunciation, the Court determined in the Nicaragua case that a reasonable time limit is required, this is difficult to determine, six months as it is a very widespread practice in the statements.
There are modalities of referral after the dispute has arisen; one wishes to refer the dispute to the Court for dispute X already arisen, there are two modalities:
- special agreement: an agreement, normally concluded between two States, whereby the two States submit a dispute to the Court in which they specify and submit to the Court what they wish the Court to do; in delimitation disputes, States must cooperate.
- or by the extended forum: it is a way of expressing consent in an informal way; the extended forum means that in the absence of a title of jurisdiction, the jurisdiction of the Court can be established if the defendant does not object. How can this happen? In the case of State X bringing an action before the International Court of Justice against Y, there is no jurisdiction, Y has the possibility of making a choice: refusing to appear before the Court and at that time the Court finds it and the case remains as it stands, but it is possible that Y may accept, there is no opposition on the part of the defendant, there is an acceptance by a letter from Y. The extended forum is a submitted consent to send a letter or not to adhere to the jurisdiction of the Court. It is a flexible consent that sees either a flexible or informal consent or an implicit consent by not raising a preliminary case within the time limit. Walls, it is simply a matter of expanding a title of jurisdiction such as allowing the Court to recognize customary law, but this is only possible if the defendant consents. As can be seen, it does so? if the plaintiff presents arguments and the defendant does not raise a preliminary objection then the Court will consider that the defendant has accepted this extension of the jurisdiction of the International Court of Justice.
Reciprocal independence of the bases of competence[edit | edit source]
Each of the titles is dependent, each of the tracks is self-contained, a title may for example cover some aspects of the case while a title may cover other aspects of the case.
Perpetuation of the fuero[edit | edit source]
There is in domestic law and also in international law and therefore in the International Court of Justice the principle of perpetuation of the fuero - perpetuatio fori - which means that jurisdiction is judged only at the time when the matter is brought before the Court. That's when she needs to be competent. If a credential subsequently ceases to have value because it expires, the Court's jurisdiction remains until the end of the case. If a clause is denounced, because it expires in three weeks, the International Court of Justice has jurisdiction until the final judgment.