Anbar E Afshan 6431-FSL/LLB/F21

Public international Law II

I. Peaceful settlement of international disputes
II. Forceful settlement of international disputes
Peaceful settlement
Pacific Settlement of Disputes , Pacific: Peaceful/amicable.

It is fair to say that international law has always considered its fundamental purpose to be the
maintenance of peace. Basically, the techniques of conflict management fall into two categories:

I. Diplomatic procedures ( non-binding )

II. Adjudication ( Binding )

Diplomatic procedures involve an attempt to resolve differences either by the contending parties
themselves or with the aid of other entities by the use of the discussion and fact-finding methods.
Adjudication procedures involve the determination by a disinterested 3rd party of the legal and factual
issue involved, either by arbitration or by the decision of judicial organs. States are not obliged to
resolve their differences at all, and this applies in the case of serious legal conflicts as well as political
disagreements. All the methods available to settle disputes are operative only upon the consent of the
particular states. The mechanisms dealing with the peaceful settlement of disputes require in the first
instance the existence of a dispute. The definition of a dispute has been the subject of some
consideration by the International Court, but the reference by the Permanent Court in the Mavrommatis
Palestine Concessions (Jurisdiction) Case to ‘a disagreement over a point of law or fact, a conflict of legal
views or of interests between 2 personal constitutes an authoritative indication. A distinction is
sometimes made between legal and political disputes, or justiciable1 and non-justiciable2 disputes.
Whether any dispute is to be termed legal or political may well hinge upon the particular circumstances
of the case the views adopted by the relevant parties and the way in which they choose to characterize
their differences.

Art 2(3) of the UN 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’.

Article 2 (4) - Prohibition of threat or use of force in international relations. Article 2 (4) of the Charter
prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial
integrity and political independence of other States

States have a free choice as to the mechanism adopted for settling their disputes.

1
Justiciable refers to a matter which is capable of being decided by a court. Justiciable means that a case is
suitable for courts to hear and decide on the merits.
2
if a case is not justiciable, the court must dismiss it. Before agreeing to hear a case, a court first examines its
justiciability.
The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation
among States develops this principle and notes that:

33(1) states shall accordingly seek early and just settlement of their international disputes by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies
or arrangements or other peaceful means of their choice.

The same methods of dispute settlement are stipulated in article 33(1) of the UN Charter, although in
the context of disputes the continuance of which being likely to endanger international peace and
security. The 1970 Declaration, which is not so limited, asserts that in seeking an early and just
settlement, the parties are to agree upon such peaceful means as they see appropriate to the
circumstances and nature of the dispute.

There would appear, therefore, to be no inherent hierarchy with respect to the methods specified and
no specific method required in any given situation. States have a free choice as to the mechanisms
adopted for settling their disputes. This approach is also taken in a number of regional instruments,
including the American Treaty on Pacific Settlement (the Pact of Bogotá), 1948 of the Organization of
American States; the European Convention for the Peaceful Settlement of Disputes, 1957; and the
Helsinki Final Act of the Conference on Security and Co-operation in Europe, 1975.

Exception : in case of self-defense.

DIPLOMATIC METHODS OF DISPUTE SETTLEMENT

1. Negotiation
Of all the procedures used to resolve differences, the simplest and most utilized form is understandably
negotiation. It consists basically of discussions between the interested parties with a view to reconciling
divergent opinions, or at least understanding the different positions maintained. It does not involve any
3rd party, at least at that stage, and so differs from the other forms of dispute management.
Negotiations are the most satisfactory means to resolve disputes since the parties are so directly
engaged. In addition to being an extremely active method of settlement itself, negotiation is normally
the precursor to other settlement procedures as the parties decide amongst themselves how best to
resolve their differences.

Negotiations, of course, do not always succeed, since they do depend on a certain degree of mutual
goodwill, flexibility and sensitivity. The International Court has observed that negotiations are distinct
from mere protests or disputations and require at the least, ‘a genuine attempt by one of the disputing
parties to engage in discussions with the other disputing party with a view to resolving the dispute.”

Example: July 2001: Agra Summit: Pervez Musharraf and Atal Bihari Vajpayee met in Agra in July 2001
to discuss and resolve the decades-long Kashmir conflict. This was the first meeting of both the premiers
after the Kargil War of 1999. The two-day summit was marked by high drama. Prolonged meetings
between the two leaders and their foreign ministers led to two failed attempts at a joint agreement. The
talks ended in failure, which left Musharraf exasperated and he left Agra in a huff.

North Sea Continental Self Cases

OVERVIEW OF THE CASE

(These cases concerned the delimitation of the continental shelf of the North Sea as between
Denmark and the Federal Republic of Germany, and as between the Netherlands and the Federal
Republic, and were submitted to the Court by Special Agreement.)

In certain circumstances there may exist a duty to enter into negotiations arising out of particular
bilateral or multilateral agreements. it is possible that tribunals may direct the parties to engage in
negotiations in good faith and may indicate the factors to be taken into account in the course of
negotiations between the parties. Where there is an obligation to negotiate, this would imply also an
obligation to pursue such negotiations as far as possible with a view to concluding agreements.

The court held that:

“The parties are under an obligation to enter into negotiations with a view to arriving at an agreement,
and not merely to go through a formal process of negotiation as a sort of prior condition; they are under
an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case
when either of them insists upon its own position without contemplating any modification of it.”

The Legality of the Threat or Use of nuclear weapons

The same above point was also emphasized by the International Court in the Legality of the Threat or
Use of Nuclear Weapons, to ‘pursue negotiations in good faith on effective measures relating to
cessation of the nuclear arms race at an early date and to nuclear disarmament.

The Court then declared that:

The legal import of that obligation goes beyond that of a mere obligation of conduct: the
obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all
its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on
the matter in good faith.
2. Good offices and Mediation
The employment of the procedures of good offices and mediation involves the use of a 3rd party to
encourage the contending parties to come to a settlement. Unlike the techniques of arbitration and
adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its
termination by themselves. Technically, good offices are involved where a 3rd party attempts to
influence the opposing sides to enter into negotiations and provide friendly environment where the
parties cannot be influenced, without necessarily offering the disputing states substantive suggestions
towards achieving a settlement. Whereas mediation implies the active participation in the negotiating
process of the 3rd party itself and assists the parties involved in a dispute or negotiation to achieve a
mutually acceptable resolution of the points of conflict and thus provides guarantee. Mediation can be
by , by an individual , many individuals, states , many states, regional organizations head etc.

Sometimes good office provider turns to mediator too.

Examples
 • The good offices method is the role played by the US president in 1906 in the concluding the
Russian-Japanese War.
• The Hague Conventions of 1899 and 1907 laid down many of the rules governing these 2
processes. The Conventions laid a duty upon the parties to a serious dispute or conflict to resort
to good offices or mediation as far as circumstances allow, before having recourse to arms
• The Prime Minister of United Kingdom, Mr. Wilson provided his good offices to India and
Pakistan which resulted the parties to reach an agreement to refer Kutch issue to an Arbitral
Tribunal.
• In the year 1949, the Security Council rendered good offices in the dispute between the
Netherland Government and Republic Indonesia.
• Soviet Union President Kosygin mediated in the Dispute between India and Pakistan which
resulted in the conclusion of Tashkent agreement in 1966.

3. Inquiry
Where differences of opinion on factual matters underlie a dispute between parties, the logical solution
is often to institute a commission of inquiry to be conducted by reputable observers to ascertain
precisely the facts in contention. The value of inquiry within specified institutional frameworks
nevertheless has been evident. Its use has increased within the UN generally and in the specialized
agencies. Third party intervention is involved , the inquiry commission inquires through judicial process
and works on judicial grounds. They provide reports and the reports are non-binding.

Example : On 27 December 2007, former Pakistani Prime Minister Mohtarma Benazir Bhutto was
assassinated. After a request from the Government of Pakistan and extensive consultations with
Pakistani officials as well as with members of the United Nations Security Council, the Secretary-General
appointed a three-member Commission of Inquiry to determine the facts and circumstances of the
assassination of the former prime minister. The duty of carrying out a criminal investigation, finding the
perpetrators and bringing them to justice, remains with the competent Pakistani authorities.

Provisions for such inquiries were first elaborated in the 1899 Hague Conference as a possible
alternative to the use of arbitration.

Dogger Bank incident of 1904

Inquiry was most successfully used in the Dogger Bank incident of 1904 where Russian naval ships fired
on British fishing boats in the belief that they were hostile Japanese torpedo craft. The Hague provisions
were put into effect and the report of the international inquiry commission contributed to a peaceful
settlement of the issue. This encouraged an elaboration of the technique by the 1907 Hague
Conference, and a wave of support for the procedure. Thus, Russia had to pay a heavy compensation.

The United States, for instance, concluded forty-eight bilateral treaties between 1913 and 1940 with
provisions in each one of them for the creation of a permanent inquiry commission. These agreements
were known as the ‘Bryan treaties.

4. Conciliation
The process of conciliation involves a 3rd party investigation of the basis of the dispute and the
submission of a report embodying suggestions for a settlement. As such it involves elements of both
inquiry and mediation, and in fact the process of conciliation emerged from treaties providing for
permanent inquiry commissions. The rules dealing with conciliation were elaborated in the 1982
General Act on Pacific Settlement of International Disputes (revised in 1949). The conciliation procedure
was intended to deal with mixed legal–factual situations and to operate quickly and informally.

Nevertheless, conciliation processes do have a role to play. They are extremely flexible and by clarifying
the facts and discussing proposals may stimulate negotiations between the parties.

The Iceland–Norway dispute over the continental shelf delimitation3

The conciliation procedure was used in the Iceland–Norway dispute over the continental shelf
delimitation between Iceland and Jan Mayen Island. The agreement establishing the Conciliation
Commission stressed that the question was the subject of continuing negotiations and that the
Commission report would not be binding, both elements characteristic of the conciliation method. The
Commission had also to take into account Iceland’s strong economic interests in the area as well as
other factors. The role of the concept of natural prolongation within continental shelf delimitation was
examined as well as the legal status of islands and relevant state practice and court decisions. The
solution proposed by the Commission was for a joint development zone, an idea that would have been
unlikely to come from a judicial body reaching a decision solely on the basis of the legal rights of the
parties. In other words, the flexibility of the conciliation process seen in the context of continued
negotiations between the parties was demonstrated.

Such commissions have also been established outside the framework of specific treaties, for example
by the United Nations.

Instances would include:

• Conciliation Commission for Palestine under General Assembly resolution 194 (III), 1948.
• The Conciliation Commission for the Congo under resolution 1474 (ES-IV) of 1960.
• Denish conciliation commission 1952.

BINDING METHODS OF INTER-STATE DISPUTE SETTLEMENT

Arbitration

Arbitration exists in domestic law and notably in commercial matters but an arbitration also exists in
international law. Arbitration is a binding method of dispute settlement in the sense that it results in

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Iceland and Norway of May 28, 1980, concerning fishery and continental shelf questions–to make
recommendations with regard to the dividing line for the continental shelf area–claim by one Party to a
continental shelf area extending beyond the 200-mile economic zone–to take into account the Party’s strong
economic interests in these sea areas, the existing geographical and geological factors and other special
circumstances–recommendations must be unanimous and are not binding on the Parties–reasonable regard to be
paid by the Parties to recommendations as a useful basis for the resolution of the outstanding issues during the
negotiation following the conciliation.
the decision taken by a third party which is binding on the parties to the dispute and which settles the
dispute by application of the rules of international law.

History

Arbitration is an old institution of international law and in its modern form it is usually traced back to
the Jay Treaty of 1794 a treaty concluded in London between the young United States of America and
Great Britain the Jay Treaty is named after John Jay the first Chief Justice of the United States and
negotiator after London treaty. It is a treaty of amity4, Commerce and navigation which established
mixed commissions of arbitration to solve certain pending disputes that existed between the two parties
and later under the Washington treaty concluded in 1871 the same two countries agreed to settle
through arbitration important claims relating to the damages caused to American merchant ships by
warships among which the Alabama warship that were built in Britain and sold to the Confederate
States during the American Civil War the US government claimed that by letting those ships being sold
the British government had failed to meet its obligations under the laws of neutral neutrality during the
Civil War in the US and this led to a famous arbitration held in the town hall of the city of Geneva the
tribunal upheld the u.s. claim and ordered Great Britain to pay fifth and a half million dollars in gold for
the losses coast to the u.s. Merchant Navy which was a huge sum of money at the time that was duly
paid by the British government and a success of the Alabama proceedings in a complex matter
stimulated further arbitrations and led to the conclusion of the 1899 Hague Convention for the Pacific
settlement of international disputes.

Article 15 of the Hague Convention defines arbitration as follows

“International arbitration has for its object the settlement of differences between States by judges of
their own choice and on the basis of respect for law”

and of quote the 1907 Hague Convention repeated that definition in its article 37 and it added quite
obviously that

“ Recourse to arbitration implies an engagement to submit in good faith to the award”

Formation of International arbitration

and under the 1899 convention the permanent Court of Arbitration or PCA was established the
permanent Court of Arbitration is an international organization but it is not a court despite its name it is
an organization providing administrative support to arbitral tribunals it is there to facilitate arbitration
so as to encourage States to resort to arbitration each state party to the Hague conventions may
nominate up to four members of the PCA who are experts of international law and those members of
the PCA are then put on the list from which disputing States may pick up and choose their arbitrators
however even states that are parties to the conventions they may decide to establish arbitration
tribunals outside the PCA but what is great about the PCA is that it has all the rules of procedure ready it
has all the administrative facilities ready all the experience and the professionalism to conduct
arbitration the PCA has its seat in The Hague and it shares with the International Court of Justice the
building of the peace palace again it can also host arbitration at other locations around the world so the
PCA is very convenient for states. It is very convenient for them to refer to the PCA to set up an

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friendly relations.
arbitration. Originally the PCA was established to facilitate and to serve into interstate arbitral tribunal.
The PCA may also serve as registry in cases involving a state or an international organization on the one
hand and a private party on the other and it notably hosts some 50 currently some 50 investment
disputes between corporations and states. the PCA has also served for instance as registry in the

The Abyei Arbitration which was a case between the Republic of Sudan and a non-state actor which
was at the time the Sudan's people liberation movement / Army which later became the government of
South Sudan the fundamental rule in this matter is that there is no international arbitration no state to
state arbitration and no mixed arbitration between a state and another entity without the consent of
both disputing parties both claimant and respondent must have consented to submit their dispute over
a specific object to arbitration such consent can be given after the dispute has arisen after states have
for instance realized that they would not find an agreed settlement so that they just agreed to go to
arbitration and in such a case the disputing parties agree on a special agreement or a compromiss
and in it they specify not only the object of the dispute to be educated upon but they also specify the
various institutional and procedural aspects relating to the arbitral tribunal and this is where states can
simply refer to the PCA rules if they wish so. but consent to arbitration can even be given before any
dispute arises and such consent is then expressed in a treaty in advance the treaty provision by which
states express their consent to arbitration is called a compromis reclose and again states may refer
to the pc to PCA arbitration or they may also agree on any other institutional or procedural rules
compromise reclose can be inserted in specific treaties for the purpose of the settlement of the disputes
relating to the interpretation and application of that specific treaty or they can be inserted in bilateral or
multilateral treaties providing for arbitration in relation to any type of dispute arising between the
contracting parties when they agree on a compromise reclose states may insert certain prior conditions
that have to be met before resorting to arbitration and for instance they can agree that before resorting
to arbitration the disputing parties must have conducted negotiations for a certain period of time and
that it is only if negotiations have failed that any of the parties may resort to arbitration or they may also
agree on a cooling-off period or on some specific notification requirements those prior requirements are
treated as judicial requirements that is they must be met in order for consent to arbitration to exist.

Grounds of nullity of award

Arbitral awards5 are final and binding. In certain circumstances, however, they can be
challenged or annulled through judicial proceedings. The annulment of arbitral awards (also
known as “setting aside” or “vacatur”) refers to the legal process by which a court sets aside or
nullifies an arbitration award that has been issued by an arbitral tribunal.
Grounds

• improper constitution of the Tribunal: departure from the parties’ agreement or from
the ICSID Convention’s procedure for appointing or challenging arbitrators. An award
was annulled for the very first time on the grounds of improper constitution of the

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Awards: the final and binding decision made by a sole arbitrator or an arbitral tribunal, which resolves, wholly or
in part, the dispute submitted to his/its jurisdiction
 tribunal in June 2020, in Eiser Infrastructure Limited and Energia Solar Luxemburg
S.À.R.L. v Kingdom of Spain. In this case, the ad hoc Committee annulled the award
because a conflict of interest of one of the arbitrators may have existed. According to
the ad hoc Committee, the failure to disclose such potential conflict of interest may
have affected the outcome of the award. For that reason, the ad hoc Committee was
satisfied to annul the award.

• manifest excess of powers by the Tribunal: deviation from the arbitration agreement or
failure to apply the proper law.
• corruption on the part of a Tribunal member: acceptance of undue instructions or
compensation in connection with the arbitration.
• a serious departure from a fundamental rule of procedure: breach of basic procedural
principles related to the fairness and integrity of the proceedings, and
• failure to state reasons: lack of elements which allow to understand the tribunal’s
reasoning in reaching its conclusion.
International Court of Justice
The impetus6 to create a world court for the international community developed as a result of
the atmosphere engendered by the Hague Conferences of 1897 and 1907. The establishment of
the Permanent Court of Arbitration, although neither permanent nor, in fact, a court, marked
international law an important step forward in the consolidation of an international legal
system. However, no lasting concrete steps were taken until after the conclusion of the First
World War. The Covenant of the League of Nations called for the formulation of proposals for
the creation of a world court and in 1920 the Permanent Court of International Justice (PCIJ)
was created. Permanent Court was intended to provide a reasonably comprehensive system
serving the international community. It was intended as a way to prevent outbreaks of violence
by enabling easily accessible methods of dispute settlement in the context of a legal and
organizational framework to be made available.
The PCIJ was superseded after the Second World War by the International Court of Justice
(ICJ), described in article 92 of the Charter as the ‘principal judicial organ’ of the United
Nations. In essence, it is a continuation of the Permanent Court, with virtually the same statute
and jurisdiction, and with a continuing line of cases, no distinction being made between those
decided by the PCIJ and those by the ICJ.
THE ORGANISATION OF THE COURT
The ICJ is composed of fifteen members:
Article 2, Statute of the ICJ states that:

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Driving force
 “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”

The procedure for the appointment of judges is interesting in that it combines both legal and political
elements, while seeking to exclude as far as possible the influence of national states over them.

Root-Phillimore plan (1920): the members of the court are elected by the General Assembly and Security
Council form a list of qualified persons drawn up by the national groups of the Permanent Court of
Arbitration, or by specially appointed national groups in the case of UN members that are not
represented in the PCA. The elections are staggered and take place once every three years, with respect
to five judges each time.

The members of the Court are elected for nine years and may be re-elected. They enjoy diplomatic
privileges and immunities when on official business, and a judge cannot be dismissed unless it is the
unanimous opinion of the other members of the Court that he or she has ceased to fulfil the required
conditions. The Court elects a president and vice-president for a three-year term which can be renewed,
and it is situated at The Hague.

The aim of election procedures is to produce a judicial body of independent members art 31 of the
Statute provides that judges of the nationality of each of the parties in a case before the Court shall
retain their right to sit in that case, the parties to a dispute are entitled to choose a person to sit as
judge for the duration of that case, (Ad Huge Judge). where they do not have a judge of their nationality
there already.

Controversial with independence of Court! The reason for the establishment and maintenance of this
provision is political.

Art 29 of the Statute provides for the establishment of a Chamber of Summary Procedure for the
speedy dispatch of business by five judges. More controversially, a 7-member Chamber for
Environmental Matters was established in July 1993. art 26 deals with the creation of chambers for
particular categories of cases. Yet ICJ has not taken any summary procedures.

the Gulf of Maine case: Canada and the US threatened to withdraw the case if their wishes as to
composition were not carried out. Judge Oda has underlined that ‘in practical terms.

JURISDICTION OF INTERNATIONAL COURT OF JUSTICE

General:

The issue of judicial function was examined in an important joint declaration by seven judges in Serbia
and Montenegro v. UK: when choosing between various grounds upon which to accept or reject
jurisdiction, there were three criteria to guide the Court.

1. Consistency with previous case-law in order to provide predictability

2. Certitude, whereby the Court should choose the ground most secure in law

3. The Court should be mindful of the possible implications and consequences for the other pending
cases.
Nevertheless, political factors cannot but be entwined with questions of law. The Court has noted that it
was only concerned to establish that the dispute in question was a legal dispute, and other factors at
present do not influence this.

The Court’s essential function is to resolve in accordance with international law disputes placed before it
and to refrain from deciding points not included in the final submissions of the parties. The obligation to
decide was referred to by the Court in the Libya/Malta case  the duty of the Court is to give the fullest
decision it may in the circumstances of each case.  this obligation is subject to jurisdictional limitations
and questions related to judicial propriety.

the nature of a legal dispute

art 36(2) of the Statute requires that a matter brought before it should be a legal dispute. 
Mavrommatis Palestine Concessions (Jurisdiction) case: a dispute could be regarded as ‘a disagreement
over a point of law or fact, a conflict of legal views or of interests between two persons’. It is to be
distinguished from a situation which might lead to international friction or give rise to a dispute.

In the Interpretation of Peace Treaties case, the Court noted that ‘whether there exists an international
dispute is a matter for objective determination’ and pointed out that in the instant case ‘the two sides
hold clearly opposite views concerning the question of the performance or the non-performance of
certain treaty obligations so that international disputes have arisen’.

• In order for a matter to constitute a legal dispute, it is sufficient for the respondent to an
application before the Court merely to deny the allegations made.

It is for the Court itself to determine the subject-matter of the dispute before it. This will be done by
taking into account not only the submission but the application as a whole, the arguments and other
documents referred to, including the public statements of the applicant.

Contentious jurisdiction

The jurisdiction of the Court falls into two distinct parts: its capacity to decide disputes between
states, and its capacity to give advisory opinions when requested so to do by particular qualified
entities.

The Court has underlined that the question as to the establishment of jurisdiction, is a matter for the
Court itself. Further, jurisdiction must be determined at the time that the act instituting proceedings
was filed, so that if the Court had jurisdiction at that date, it will continue to have jurisdiction
irrespective of subsequent events. Once the Court has reached a decision on jurisdiction, that decision
assumes the character of res judicata, that is it becomes final and binding upon the parties. Subject only
to the possibility of revision under art 61 of the Statute, the findings of a judgment are to be taken as
correct, and may not be reopened on the basis of claims that doubt has been thrown on them by
subsequent events.

It is necessary that the application is admissible. Admissibility refers to the application of relevant
general rules of international law, such as exhaustion of local remedies in cases concerning diplomatic
protection. Objections to admissibility normally take the form of an assertion that, even if the Court has
jurisdiction and the facts stated by the applicant state are assumed to be correct, nonetheless there are
reasons why the Court should not proceed to an examination of the merits. Together they form the
necessary prerequisite to the Court proceeding to address the merits of a case. Also of relevance in the
pre-merits consideration is the question of standing or jurisdiction ratione personae, which refers to the
question of the receivability of the request which constitutes a procedural step independent of the basis
of jurisdiction invoked.

Art 34 of the Statute declares that only states may be parties in cases before the Court. Art 93 of the UN
Charter provides that all UN members are ipso facto parties to the Statute of the ICJ, and that
nonmembers may become a party to the Statute on the conditions determined by the General
Assembly. Art 35(2) of the Statute provides that the conditions under which the Court shall be open to
states other than those parties to the Statute shall be laid down by the Security Council. Although only
states may be parties before the Court, the Court may request information relevant to cases before it
from public international organisations and may receive information presented by these organisations
on their own initiative.

Under art 79(9) of the Rules, there are three ways in which the Court may dispose of a preliminary
objection to jurisdiction. It may uphold the challenge, reject the challenge or declare that the objection
does not possess an exclusively preliminary character, in which case the matter will be dealt with
together with a consideration of the merits.

Article 36 (1)

The Court has jurisdiction under art 36(1) of its Statute in all cases referred to it by its parties, and
regarding all matters specially provided for in the UN Charter or in treaties or conventions in force. As in
the case of arbitration, parties may refer a particular dispute to the ICJ by means of a compromis, which
will specify the terms of the dispute and the framework within which the Court is to operate.

The doctrine of forum prorogatum: the idea whereby the consent of a state to the Court’s jurisdiction
may be established by means of acts subsequent to the initiation of proceedings. This will arise where
one party files an application unilaterally, inviting another state to accept jurisdiction. If the other state
accedes to this, then the Court will have jurisdiction. Consent has to be clearly present and must be
voluntary and indisputable. A particularly difficult case with regard to the question as to whether
relevant events demonstrated an agreement between the parties to submit a case to the Court is that of
Qatar v. Bahrain. There was disagreement over the substance of the Minutes and thus over the subject
matter of the dispute  the Court concluded that it was sufficient that Qatar accepted the
characterisation of Bahrain.

The Court will only exercise jurisdiction over a state with its consent. As a consequence, the Court will
not entertain actions between states that in reality implied a third state without its consent.

 Monetary Gold case, where it was noted that where the legal interests of the third party ‘would form
the very subject matter of the decision’, the Court could not entertain proceedings in the absence of
that state.

Apart from those instances where states specifically refer a dispute to it, the Court may also be granted
jurisdiction over disputes arising from international treaties where such treaties contain a
‘compromissory clause’ providing for this. Quite a large number of international treaties do include a
clause awarding the ICJ jurisdiction with respect to questions that might arise from the interpretation
and application of the agreements. Where a treaty in force provides for reference of a matter to the PCIJ
or to a tribunal established by the League of Nations, art 37 of the Statute declares that such matter
shall be referred to the ICJ, provided the parties to the dispute are parties to the Statute. Under art
36(6) of the Statute, the Court has the competence to decide its own jurisdiction in the event of a
dispute.

Art 36 (2)

This article has been of great importance in extending the jurisdiction of the ICJ. It is the so-called
‘optional clause’ and it stipulates that the state parties to the present Statute may at any time declare
that they recognise 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 the
interpretation of a treaty, any question of international law, the existence of any fact which could
constitute a breach, and the nature or extent of the reparation to be made for the breach. This provision
was intended to operate as a method of increasing the Court’s jurisdiction. Declarations pursuant of art
36(2) are dependent upon reciprocity for operation. The doctrine of the lowest common denominator
operates since the acceptance, by means of the optional clause, is in relation to any other state
accepting the same obligation.  declarations are not identical in terms, narrower limits etc.

Nicaragua case: Nicaragua had declared that it would accept the compulsory jurisdiction of the PCIJ in
1929 but had not ratified this. The US argued that Nicaragua never became a party to the Statute and
could not rely on 36(5). The Court noted that the Nicaraguan declaration had a certain potential effect
and that ratification of the Statute in 19465 by Nicaragua had the effect of transforming this potential
commitment into an effective one. Therefore, Nicaragua could rely on the US declaration of 1946
accepting the Court’s compulsory jurisdiction as the necessary reciprocal element. The reservations that
have been made in declarations by states under the optional clause vary a great deal from state to state,
and are usually an attempt to protect the vital interests.

• Connally amendment: all matters within the domestic jurisdiction as determined by that
particular state are automatically excluded from the purview of the Court.  has been widely
questioned, the definition of domestic jurisdiction is an issue of international and not domestic
law.

Many reservations relate to requirements of time (ratione temporis), according to which acceptances of
jurisdiction are deemed to expire automatically after a certain period or within a particular time after
notice of termination has been given to the UN Secretary-General. Reservations may also be made
ratione materiae, excluding disputes where other means of dispute settlement have been agreed. A
state may withdraw or modify its declaration.

Sources of law, propriety and legal interest

In its deliberations, the Court will apply the rules of international law as laid down in art 38 ( treaties,
custom, general principles of law). However, the Court may decide a case ex aequo et bono (on the basis
of justice and equity untrammelled by technical legal rules where the parties agree). This has not yet
occurred. The question of gaps in international law arose in the Advisory Opinion concerning the Legality
of the Threat or Use of Nuclear Weapons. The Court was unable to give its view on a crucial issue in
international law, it could not conclude definitively whether the threat or use of nuclear weapons would
be lawful or unlawful in an extreme circumstance of self-defence.
Even where the Court has established its right to exercise jurisdiction, the Court may well decline to
exercise that right on grounds of propriety.  Northern Cameroons case: the Court may pronounce
judgement only in connection with concrete cases where there exists an actual controversy involving a
conflict of legal interests between the parties. The Court’s judgment must have some practical
consequence, thus removing uncertainty.

Evidence

Unlike domestic courts, the ICJ is flexible with regard to the introduction of evidence. The Court has the
competence inter alia to determine the existence of any fact which if established would constitute a
breach of an international obligation. The Court may make on-site visits or obtain expert opinion. The
Court will make its own determination of the facts and then apply the relevant rules of international law
to those facts it has found to exist and which are necessary in order to respond to the submissions of the
parties, including defences and counter-claims.

the burden of proof lies upon the party seeking to assert a particular fact or facts, although the Court
has also stated that there was no burden of proof to be discharged in the matter of jurisdiction. The
actual standard of proof required will vary with the character of the particular issue of fact. In the
Genocide Convention (Bosnia v. Serbia) case, the Court emphasised that it had long recognised that
‘claims against a state involving charges of exceptional gravity must be proved by evidence that is fully
conclusive’. Evidence which has been illegally or improperly acquired may also be taken into account,
although no doubt where this happens its probative value would be adjusted accordingly. In dealing
with questions of evidence, the Court proceeds upon the basis that its decision will be based upon the
facts occurring up to the close of the oral proceedings on the merits of the case.

Provisional measures

Under art 41 the Court has the power to indicate, if it considers that circumstances so require, any
provisional (or interim) measures which ought to be taken to preserve the respective rights of either
party. In the LaGrand Case the Court declared that: ‘the context in which art 41 has to be seen within
the Statute is to prevent the Court from being hampered in the exercise of its functions because the
respective rights of the parties to a dispute before the Court are not preserved. The contention that
provisional measures indicated under art 41 might not be binding would be contrary to the object and
purpose of that article.

Third party intervention

there is no general right of intervention in cases before the Court by third parties as such, nor any
procedure for joinder of new parties by the Court itself, nor any power by which the Court can direct
that 3rd states be made a party to proceedings, with the exception of art 62 and 63.

Remedies

There has been relatively little analysis of the full range of the remedial powers of the Court. In the
main, an applicant state will seek a declaratory judgment that the respondent has breached
international law. Requests for declaratory judgement that the respondent has breached international
law. Requests for declaratory judgements may also be couple with a request for reparation for losses
suffered as a consequence of the illegal activities or damages for injury of various kinds, including non-
material damage. The issue of reparation was also raised in the Gabcikovo-Nagymaros Project case,
where the court concluded that both parties had committed internationally wrongful acts and that
therefore both parties were entitled both to receive and to pay compensation. The Court took a further
step when, in the LaGrand case, it referred to the ‘obligation to review’ of the US in the cases of
conviction and death sentence imposed upon a foreign national whose rights under the Vienna
Convention on Consular relations had not been respected, while in operative paragraph of the
deposited, the Court, by a majority of fourteen votes to one, concluded that in such situations, ‘the US,
by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence
by taking account of the violation of the rights set forth in that Convention’.

Enforcement

once given, the judgement of the Court under art 60 is final and without appeal.

Application for interpretation of a judgment

in the event of dispute as to the meaning or scope of the judgement, the Court shall construe it upon
the request of any party.

Application for revision of a judgement under art 61 of the Statute, an application for revision of a
judgement may only be made when based upon the discovery of some fact of such a nature as to be a
decisive factor, which fact was, when the judgment was given, unknown to the court and also to the
party claiming revision, provided that such ignorance was not due to negligence.

Examination of a situation after the judgment

the Court may have the competence to re-examine a situation dealt with by a previous decision where
the terms of that decision so provide.

Non-Appearance The Court is compelled to act on behalf of the absent defendant government in the
sense of providing legal argumentation to support its case.

The advisory jurisdiction of the Court

in addition to having the capacity to decide disputes between states, the ICJ may give advisory opinions.
Art 64 of the State declares that ‘the court may give an advisory opinion on any legal question at the
request of whatever body may be authorised by or in accordance with the Charter of the UN to make
such a request’, while art 96 of the Charter notes that a well as the GA and SC, other organs of the UN
and specialised agencies where so authorised by the Assembly may request such opinions on legal
questions arising within the scope of their activities. In the Western Sahara case, the ICJ gave an
advisory opinion as regards the nature of the territory and the legal ties therewith of Morocco and
Mauritania at the time of colonisation, notwithstanding the objections of Spain, the administering
power. There are a variety of other issues currently facing the Court. As far as access to its concerned, it
has, for example, been suggested that the power to request advisory opinions should be given to the UN
secretary General and to states and national courts, while the possibility of permitting international
organisations to become parties to contentious proceedings has been raised. The proliferation of judicial
organs on the international and regional level has been one characteristic of recent decades. The
European Court of Justice, the European Court of Human rights, and the Inter American Court of Human
Rights are joined by the 2 tribunals examining war crimes in Bosnia and Rwanda and by the new
International Criminal Court, while an African Court of Human rights is likely to be established before
too long.