(p. 718) 32 Third-Party Settlement of International Disputes
The judicial settlement of international disputes is only one facet of the enormous problem of the maintenance of international peace and security. In the period of the UN Charter the use of force by individual states to address international disputes is impermissible,1 and in fact few disputes are finally resolved by force. However, there is no obligation in general international law to settle disputes, and procedures for settlement by formal and legal procedures are consensual in character.
The context of judicial settlement in international relations is thus different to that of municipal courts, and this type of settlement is relatively exceptional in state relations (though less so than previously).2 This chapter considers the problems of international legal process; that is, the process between states or otherwise at the international level and involving states.3 Settlement by political means, including through organs of international organizations, must be set aside.4 However, the two approaches to settlement are not completely divorced. Political organs, like the General Assembly and Security Council, may concern themselves with factual disputes and legal issues,References(p. 719) although the basis for action remains political.5 So also governments conducting negotiations with a view to settling disputes commonly take legal advice, and confidential legal advice may be weighty and reasonably objective.
(A) Arbitration and the Origins of International Dispute Settlement
In both national and international legal history, the judicial process develops out of less formal administrative and political procedures. International practice has long included negotiation, good offices, and mediation as informal methods of settling dis-putes.6 Treaties establishing machinery for peaceful settlement frequently provide for these, as well as conciliation. Conciliation is distinct from mediation and emerged from the commissions of inquiry provided for in the Hague Conventions for the Pacific Settlement of International Disputes of 18997 and 19078 and the commissions which figured in the series of arbitration treaties concluded by the US in 1913 and 1914 (the Bryan treaties).9 Conciliation has a semi-judicial aspect, since the commission of persons empowered has to elucidate the facts, may hear the parties and must make proposals for a settlement, which is normally non-binding.
Before conciliation was established, interstate arbitration had long been a part of the scene, having the same political provenance. However, arbitration evolved as a sophisticated procedure similar to judicial settlement. The salience of arbitration increased considerably after the successful Alabama Claims arbitration of 1872 between the US and Great Britain.10 At this stage, arbitral tribunals were often invited by the parties to resort to ‘principles of justice and equity’ and to propose extra-legal compromises.References(p. 720) However, by the end of the nineteenth century, arbitration was primarily if not exclusively associated with a process of decision according to law, supported by appropriate procedural standards. The contrasts with judicial settlement (as it developed post1922) are principally these: the agency of decision in arbitration would be designated ‘arbitral tribunal’ or ‘umpire’;11 the tribunal consists of an odd number, usually with national representatives; the tribunal is usually created to deal with a particular dispute or class of disputes; and there is more flexibility than in a system of compulsory jurisdiction with a standing court.12 Due to this distinction, states see arbitration as a suitable mechanism for settling a certain class of dispute and indeed, of the cases referred to interstate arbitration, the majority have concerned territorial or quasi territorial disputes.13
(B) The Idea of Judicial Settlement of International Disputes
In the modern period there is no sharp line between arbitration and judicial settlement: the latter category is applicable to any international tribunal settling disputes involving states in accordance with international law. Moreover, the permanent institutions developed historically from arbitral experience. It is now common to see the development of integrated systems of dispute resolution which include international ‘courts’ of relatively formal jurisdiction and process, whilst reserving certain sui generis questions for arbitral tribunals convened under the procedures of the same system, for example, in the procedures of UN Convention on the Law of the Sea (UNCLOS)14 and the WTO. But independent systems exist as expressed through the actions of many ad hoc arbitral tribunals,15 mixed commissions and semi-permanent specialized tribunals.16
The international character of the tribunal derives from organization and jurisdiction. A national tribunal may apply international law: when it does so it is no longer simply an organ of the national legal system, but it does not act independently of theReferences(p. 721) national system, it is not settling issues between legal persons on the international plane, and its jurisdiction does not rest on international agreement.
3. The International Court of Justice17
(A) Historical Overview: The Permanent Court of International Justice
The ‘World Court’ is the label commonly applied to the Permanent Court of International Justice and the International Court of Justice, the latter a new creation in 1945 but substantially a continuation of the earlier body. The Permanent Court began to function in 1922 but as a new standing tribunal it developed from previous experience. Arbitral practice contributed to the development in two ways. Its positive influence shows in certain similarities between the Court and arbitral practice: the institution of national judges, the use of special jurisdictional agreements, the power to decide ex aequo et bono, and the application of some basic principles; for example, that, absent contrary agreement, an international tribunal may determine its own jurisdiction.18 The negative influence was more decisive, since criticism of the Permanent Court of Arbitration, that it was not a standing court and could not develop a jurisprudence, led to a draft Convention Relative to the Creation of a Permanent Court of Arbitral Justice at the Second Hague Peace Conference in 1907.19 The Convention remained unadopted because of disagreement on the number of judges, some representatives demanding as many judges as there were states members of the Court.20
In 1920 the Council of the League of Nations appointed an advisory committee of jurists to prepare a draft Statute for a Permanent Court of International Justice.21 The draft Statute sprang from three sources: the draft Convention of 1907, a proposal of neutral states for compulsory jurisdiction, and the Root–Phillimore plan for the election of judges. The draft Statute provided for compulsory jurisdiction, but in the Council and the Assembly of the League the great powers and their supporters resisted this successfully. In the Assembly, however, a weak compromise was agreedReferences(p. 722) in the form of the ‘optional clause’. As amended, the Statute came into force in 1921.22 However, the Statute contained no provision for its own amendment and all changes required unanimous approval, a slow procedure. After the Second World War the Permanent Court could have been revived, but the San Francisco conference decided to create a new court, two important considerations being the dislike of bodies related to the League of Nations felt by the US and USSR, and the problem of amending the Statute if the old Court were to be related to the United Nations.23
The new court has a much closer relationship with the UN. The UN Charter provides (Article 92) that the International Court is ‘the principal judicial organ of the United Nations’; all UN members are ipso facto parties to the Statute of the Court (Article 93). But in other respects the new Court is a continuation of the old: the Statute is virtually the same; jurisdiction under instruments referring to the old Court has been transferred to the new; and there is continuity of jurisprudence.
(B) Organization of the Court
A crucial issue for the creation of a standing international tribunal in which states may have confidence is judicial appointment.24 The Statute emphasizes the independence of judges once appointed. No judge may exercise any political or administrative function, engage in any other professional occupation (Article 16(1)), act as agent or counsel in any case, or participate in the decision of a case with which he or she has previously been connected in another capacity (Article 17; see also Article 24). Dismissal requires the unanimous opinion of the other judges (Article 18(1)). When engaged on Court business members have diplomatic privileges and immunities (Article 19). Salaries are fixed by the General Assembly, may not be decreased during the term of office, and are free of all taxation (Article 32).
The present Court has 15 judges. Five judges are elected every three years. Article 2 of the Statute provides that ‘the Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law’. This formula takes in professors, professional lawyers, and civil service appointees: many judges have been advisers to national foreign ministries. In other provisions of the Statute the question of nationality acquires significance. No two members may be nationals of the same state (Article 3(1)), and Article 9 requires electors to bear in mind ‘that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should beReferences(p. 723) assured’.25 The principle stated is unimpeachable but practical application is difficult; the system of election ensures the composition of the Court reflects voting strength and political alliances in the Security Council and General Assembly. The permanent members of the Security Council normally have judges on the Court. But judges are elected as individuals and do not represent their states of origin.
The electoral system is based on the Root–Phillimore plan of 1920 and involves independent, simultaneous voting by the Security Council and the General Assembly. States which are parties to the Statute of the Court but not UN members are permitted to nominate and elect, specially augmenting the General Assembly.26Candidates must obtain an absolute majority in both organs to be elected (Statute Article 10).27 In practice political calculations feature prominently, and the attitude of judges in particular cases has occasionally affected the voting when they are considered for re-election. But it is difficult to see a way out: the Court’s existence is apparently conditioned on a political basis for elections.
Article 31 of the Statute provides that a party to a case has an effective right to representation by a national judge, and, if there is no judge of its nationality, by a judge ad hoc (who may be of some other nationality). The judge ad hoc is appointed by the party concerned and commonly (though not invariably) supports its view of the case when on the bench.28
(C) Jurisdiction in Contentious Cases29
The Court has jurisdiction in contentious cases only between states and only on the basis of consent.30 The Court has often referred to the fact that its jurisdiction depends on the will of the parties.31 This principle, reflected in Article 36 of the Statute, rests on international practice in dispute settlement and is a corollary of the sovereign equalityReferences(p. 724) of states, in the absence of contrary provision. The competence of a tribunal vis-à-vis the merits of a claim may be challenged in various ways. Objections to jurisdiction strike at the competence of the tribunal to give rulings as to the admissibility of the claim or the merits. An objection to the admissibility of a claim, for example for non-exhaustion of local remedies, challenges the validity of a claim in a manner which is distinct from issues as to jurisdiction or merits. In practice, the Court may join certain preliminary objections to the merits provided that ‘the objection does not possess, in the circumstances of the case, an exclusively preliminary character’ (Rules Article 79(9)).32 It may also decline jurisdiction on grounds of judicial propriety.33
In the Legality of the Use of Force cases, the reference to ‘special provisions contained in treaties in force’ was read down to refer only to those treaties in force at the time the Statute was concluded.35 Unlike the situation in 1921, there were in 1945 no such treaties.36
Thus access to the Court by non-members is controlled under Article 35(2) by the Security Council. In Security Council Resolution 9, it was provided that the Court would be open to a state which deposits with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court, undertakes to comply in good faith with any decision it may render and accepts all the obligations of a UN member under Charter Article 94.37 That said, neither Article 35(2) nor Security Council Resolution 9 exclude the possibility that the Security Council may authorize a state to appear ad hoc before the Court without lodging the required declaration.38
Parties to the Statute do not thereby submit to the jurisdiction of the Court: further consent is required. But they are bound to accept the jurisdiction of the Court toReferences(p. 725) determine its own jurisdiction (Article 36(6)).39 Further, they are subject to the Court’s jurisdiction to indicate interim measures of protection (or ‘provisional measures’) to preserve the respective rights of the parties (Article 41).40 Unless it is apparent that there is no consent to the jurisdiction, the Court will assume the power to indicate such measures, without prejudice to the question of its jurisdiction to deal with the merits of the case.41 In LaGrand, the Court established that such interim measures are binding.42 Lastly, under Article 62 the Court may permit third-party intervention in cases in which a state has a legal interest which may be affected by the decision in the case.43
(i) Matters specially provided for in the Charter
Article 36(1) of the Statute includes within the jurisdiction ‘all matters specially provided for in the Charter of the United Nations’. This was inserted in the (ultimately frustrated) expectation that the Charter would provide for compulsory jurisdiction. In Corfu Channel the UK argued that Article 36(1) of the Statute could be referred to Article 36(1) and (3) of the Charter, which provide for reference of legal disputes to the Court on the recommendation of the Security Council, and that a recommendation involved a decision which was binding in accordance with Article 25 of the Charter. The Court did consider the point, but in a joint separate opinion seven judges rejected the argument, inter alia on the ground that the term ‘recommendation’ was non-compulsory.44
(ii) Transferred jurisdiction: Articles 36(5), 37
Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of InternationalReferences(p. 726) Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.
Two limitations are prominent: the treaty or convention must be ‘in force’ between the litigating states, and all parties to the dispute must be parties to the new Statute. In Nicaragua, the Court held that the Nicaraguan Declaration of 1929 constituted a valid acceptance of jurisdiction by virtue of Nicaragua’s ratification of the Charter in 1945, despite the fact that the Declaration of 1929 had not previously acquired binding force.45
(iii) Consent ad hoc: jurisdiction by special agreement
The consent of the parties may be given ad hoc to the Court’s jurisdiction over a specific dispute. Normally, consent will take the form of a special agreement (compromis). But consent ad hoc may also arise where the plaintiff state has accepted the jurisdiction by a unilateral application followed by a separate act of consent by the other party.46 Voluntary jurisdiction is thus not restricted by formal requirements: Article 36(1) says simply that ‘the jurisdiction of the Court comprises all cases which the parties refer to it’. Special agreement is an attractive method of consenting to the Court’s jurisdiction and has been regularly used.
(iv) Advance consent: treaties and conventions
Article 36(1) refers also to ‘all matters specially provided for…in treaties and conventions in force’.47 A great many multilateral and bilateral treaties contain clauses granting jurisdiction in advance over disputes involving their interpretation or application.48 Although the jurisdiction is likewise by consent of the parties, it can be described as ‘compulsory’ in the sense that binding agreement is given in advance of any dispute. However, the label ‘compulsory jurisdiction’ is often used to describe jurisdiction arising under Article 36(2) of the Statute.
(v) Advance consent: declarations under the optional clause49
Article 36(2) of the Statute, commonly referred to as the optional clause, provides as follows:
References(p. 727) 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 state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
(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 or extent of the reparation to be made for the breach of an international obligation.
Jurisdiction is accepted via unilateral declarations deposited with the Secretary-General, the declarant being bound to accept jurisdiction vis-à-vis any other declarant insofar as the acceptances coincide. On the principle of reciprocity, the lowest common factor in the two declarations is the basis for jurisdiction, and thus a respondent state can take advantage of a reservation or condition in the declaration of the applicant state.50The independent declarations are binding in that withdrawal is possible only in accordance with principles analogous to the law of treaties,51 and they operate contractually with a suspensive condition, viz., the filing of an application by a state with a coincident declaration.52 This involves acceptance of jurisdiction in advance for categories of disputes which are usually mere contingencies. The commitment in relation to any other state fulfilling the conditions of the Statute is usually described as compulsory jurisdiction, although, as with jurisdiction by treaty or convention, the basis is ultimately consensual.
The origin of the optional clause lay in a compromise, achieved in 1920 and maintained in 1945, between a system of true compulsory jurisdiction based on unilateral applications by claimants, and independent, treaty-based jurisdiction. The expectation was that a general system of compulsory jurisdiction would be generated as declarations multiplied. The conception was sound enough, but the conditions in which the system has functioned have reduced its effectiveness. In 1934 there were 42 declarations in force, reducing to 32 by 1955 but increasing since then to 67 as of 2012. This figure represents only a third of all independent states (193 are parties to the Statute).53 The negative factors are principally the lack of governmental confidence inReferences(p. 728) international adjudication, the practice of making declarations subject to various reservations and conditions, frequently arbitrary and ambiguous, and the tactical advantages of staying out of the system.
(vi) Consent post hoc: forum prorogatum
Lauterpacht wrote that ‘exercise of jurisdiction by virtue of the principle of forum prorogatum takes place whenever, after the initiation of proceedings by joint or unilateral application, jurisdiction is exercised with regard either to the entire dispute or to some aspects of it as the result of an agreement, express or implied’.54The principle operates because the Statute and rules of court as interpreted contain no mandatory rules as to the formal basis on which the applicant founds jurisdiction, nor as to the form of consent. Consent may take the form of an agreement on the basis of successive acts of the parties, and the institution of proceedings by unilateral application is not confined to cases of compulsory jurisdiction.55 Thus, in Corfu Channel,56 Albania accepted jurisdiction in a communication to the Court. Informal agreement, agreement inferred from conduct, or formal agreement, in each case after the initiation of proceedings, may result in prorogated jurisdiction. More recent examples include two cases where France informed the Court that it consented to jurisdiction.57However, the Court will not accept jurisdiction unless there is real, not merely apparent, consent.58 Resort to technical constructions in order to promote jurisdiction in particular cases may discourage appearances before the Court.
(vii) Jurisdiction to decide ex aequo et bono59
Article 38(2) of the Statute gives the Court power to decide a case ex aequo et bono if the parties agree. This provision qualifies Article 38(1), which refers to the function of the Court as being to decide ‘in accordance with international law’ such disputes as are submitted to it. The power to decide ex aequo et bono has not yet been exercised, and is not easily reconciled with the judicial character of the Court.
(D) Jurisdictional Exceptions and Reservations
(i) Matters of domestic jurisdiction
A plea that the issue concerned is a matter of domestic jurisdiction may appear as a preliminary objection or as a plea on the merits: strictly speaking the plea is available,References(p. 729) apart from any reservation on the subject, in accordance with general principles of international law.
One form of this reservation has created particular controversy. In 1946 the US deposited a declaration with a reservation of ‘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’. Seven other states have used this ‘automatic’ reservation,60 which seems incompatible with the Statute, contradicting the Court’s power to determine its own jurisdiction and not accepting genuinely jurisdiction ante hoc.61
(ii) Time limits and reservations ratione temporis
Declarations may be expressed to be for a term of years.62 Some are expressed to be terminable after a period of notice; some immediately. While a power of termination immediately on notice weakens the system of compulsory jurisdiction, it is not incompatible with the Statute.63 The Court has held that, absent express provision, reasonable notice of termination may be given.64 Once the Court is seized of a case on the basis of declarations in force at the date of application, however, subsequent expiry of a declaration or other basis of jurisdiction does not affect its jurisdiction in that case.65
(iii) Reservation of past disputes
Reservation of past disputes is common, and the reservation may be extended, as in the ‘Belgian formula’, which refers to all disputes arising after a certain date ‘with regard to situations or facts subsequent to the said date’. Disputes oft en have a long history, and this formula is ambitious. The Court has taken the view that the limitation takes in only situations or facts that are the source, the real cause, of the dispute.66
References(p. 730) (E) The Advisory Jurisdiction67
Article 65(1) of the Statute provides that the Court ‘may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter…to make such a request.’ Charter Article 96 empowers the General Assembly and Security Council so to request, and provides that the General Assembly may authorize other organs and specialized agencies to do so.68 The advisory jurisdiction aims to assist the political organs in settling disputes and provides authoritative guidance on points of law arising from the function of organs and specialized agencies. Thus some requests for opinions relate to specific disputes or situations, for example, the various opinions relating to South West Africa (Namibia). Some relate to interstate disputes referred to the Court without the consent of all parties;69 such requests utilize political organs as an indirect means of seizing the Court of precise disputes. Others, as in the Reservations case,70have involved general and abstract questions. The origin of many requests in actual disputes has given a contentious aspect to advisory proceedings. Thus Article 68 of the Statute provides that the provisions applicable in contentious cases shall guide the Court ‘to the extent to which it recognizes them to be applicable’.71 In Status of Eastern Carelia72 the Council of the League of Nations asked for an opinion on a dispute between Finland and the USSR. The USSR objected and the Court refused jurisdiction on the ground that the requesting organ was not competent to seek an opinion in the circumstances: no state can be compelled to submit disputes to a tribunal without its consent, and the USSR was not bound by the Covenant. In the Namibia,73 Western Sahara,74 and Wall75 opinions, Eastern Carelia was distinguished on the basis that the situations involved did not constitute an interstate dispute, and the political organ making the request was concerned in the exercise of its own functions under the Charter, and not the settlement of a particular dispute.76
References(p. 731) There is no separate proceeding to deal with preliminary objections to advisory opinions, as there is in contentious proceedings, but objections arise frequently and relate both to jurisdiction as such and to questions of propriety. Objections might involve the incapacity of the requesting body77 or concern the subject-matter of the request, as where a plea of domestic jurisdiction is made.78 The Court refused a request by the World Health Organization (WHO) for an opinion on the legality of nuclear weapons on the basis that the question was not ‘within the scope of the activities’ of the WHO;79 although it did provide an opinion addressing effectively the same issue when asked by the General Assembly.80
[T]he Court has repeatedly stated that the fact that a question has political aspects does not suffice to deprive it of its character as a legal question…Whatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, in the present case, an assessment of an act by reference to international law. The Court has also made clear that, in determining the jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have…82
As the Court is unwilling to decline jurisdiction by adverting to the political implications of opinions, the issue becomes one of propriety. In the Admissions83 and the Expenses84 opinions, the Court dealt with issues of interpretation which had considerable political ramifications. Significantly, the organs concerned were unable to act on these two opinions. In refusing to decline requests by virtue of its discretion over advisory jurisdiction, the Court has reiterated that as it is an organ of the UN a request for an advisory opinion should not, in principle, be refused.85 Furthermore, the EasternReferences(p. 732) Carelia principle, that the matter concerned a dispute between two states and jurisdiction could not be exercised without their consent, can be advanced as an issue both of jurisdiction and of propriety.86
(F) An Evaluation of the Court87
In the period 1922–46 the Permanent Court dealt with 33 contentious cases and 28 advisory opinions; from 1946 to June 2012 the International Court has dealt with approximately 58 judgments on the merits, 23 preliminary objections, eight judgments on jurisdiction and admissibility, and 30 requests for provisional measures, as well as 26 requests for advisory opinions. As of June 2012, there are 13 contentious cases pending. The tempo of the Court has fluctuated since 1945, and acceptance of compulsory jurisdiction under the optional clause has been slow to develop. Several factors explain state reluctance to resort to the Court: the political fact that hauling another state before the Court is often regarded as unfriendly; the greater suitability of other tribunals and other methods of review for regional and technical matters; the general conditions of international relations; and a preference for the flexibility of arbitration versus compulsory jurisdiction. Given the conditions of its existence, the Court has made a reasonable contribution to the maintenance of civilized methods of settling disputes, but it has not been prominent in the business of keeping the peace; indeed, the provisions of the Charter do not place emphasis on the role of the Court. In certain respects, however, the Court has been influential—in the development of international law as a whole and in the giving of advisory opinions on the interpretation of the Charter88 and other aspects of the law of international organizations. When, in its advisory opinions, the Court has pronounced on the interpretation of the Charter, it has pronounced boldly on political issues (which did not surrender such character because they were also legal issues), including most recently in the Kosovo advisory opinion.89 Its decisions on land and maritime boundary disputes have mostly found acceptance.
The work of the Court in the last quarter century has been characterized by a variety of elements. In the first place, the number of contentious cases before the Court has significantly increased, despite a number of disputes being referred to ad hoc arbitral tribunals. Many of the new cases have been based upon special agreements. There have also been cases initiated by unilateral application and a number of applicationsReferences(p. 733) for permission to intervene in existing proceedings. In recent years the Court has had a full calendar of cases, a pattern likely to continue.
(i) The Permanent Court of Arbitration90
The precursor of ‘modern’ international tribunals is an institution, the Permanent Court of Arbitration (PCA), which is not a court and does not, itself, arbitrate, but which has endured and adapted. Until 1920 the PCA was the major organization for arbitration, but was then largely replaced by the Permanent Court of International Justice. It was established under the Hague Convention for the Pacific Settlement of International Disputes of 189991 as an arbitration secretariat and mechanism. The basis of the ‘Court’ is an arbitral panel to which parties may nominate four persons. When parties to the Convention agree to submit a dispute to the PCA, each appoints two arbitrators from the panel, and the four arbitrators select an umpire. Thus a tribunal is constituted only to hear a particular case.
Between 1900 and 1932, 20 cases were heard, but then occurred almost seven decades of hibernation. Recently, however, the PCA has reinvented itself, adopting a series of new arbitral rules and hosting a significant number of arbitrations, interstate and other.92 Under the UNCITRAL Arbitration Rules, the Secretary-General of the PCA may, absent agreement by the parties, designate an appointing authority for the purposes of a private arbitration.93