INTERNATIONAL LAW

Seminar 6
SETTLEMENT OF
INTERTNATIONAL DISPUTES

LLM. NGUYEN Cong Dinh

Overview
 INTERNATIONAL DISPUTE

Dispute
• A disagreement on a point of law or fact, a conflict of legal
views or interest between the parties.
International Dispute
• Actual disagreement between States regarding the
conduct taken by one of them for protection or vindication
of the interests of the other;
• A disagreement on a point of law or fact, a conflict of legal
views or of interests between two States. Disputes relate
to an alleged breach of one or more legal duties. They
may also relate to a question of attribution of title to
territory, to maritime zones, to movables or to parts of the
cultural heritage of a State.
 THE PRINCIPLE OF PEACEFUL SETTLEMENT

• One of the major objectives of the United Nations is

described in Art. 1(1) of the Charter “to bring about by
peaceful means, and in conformity with the principles
of justice and international law, adjustment or
settlement of international disputes or situations which
might lead to a breach of the peace...”;
• Obligation to settle disputes peacefully: Article 2 (3)
“All Members shall settle their international disputes by
peaceful means in such a manner that international
peace and security, and justice, are not endangered...”
 PEACEFUL MEANS OF DISPUTE SETTLEMENT

(Art. 33, Charter of UN) The parties to any disputes, the

continuance of which is likely to endanger the maintenance of
international peace and security, shall:
• first of all, seek a solution by negotiation;
• Enquiry;
• Mediation;
• Conciliation;
• Arbitration;
• Judicial settlement;
• Resort to regional agencies or arrangements; or
• Other peaceful means of their own choice...
 PEACEFUL MEANS OF DISPUTE SETTLEMENT

These methods can be categorized into:

• Diplomatic means: (negotiation, mediation,
enquiry, and conciliation); and
• Adjudicative means: (arbitration and judicial
settlement).
 DISPUTE SETTLEMENT BY DIPLOMATIC MEANS

NEGOTIATION
• Negotiation is the simplest means and always the
first step of settling state differences;
• It is also a technique for preventing them from
arising. Since prevention is better than cure, there
is a form of negotiation, known as “consultation”.
 DISPUTE SETTLEMENT BY DIPLOMATIC MEANS

GOOD OFFICES AND MEDIATION

• When the parties to an international dispute are unable
to resolve it by negotiation, the intervention of a third
party is a possible means of breaking the impasse and
producing an acceptable solution.
• Sometimes third states, or IOs, or often even an
eminent individual, may try to help the disputing states
to reach agreement. Such help can take two forms:
good offices and mediation.
 DISPUTE SETTLEMENT BY DIPLOMATIC MEANS

GOOD OFFICES AND MEDIATION

• Good offices: A third party (as a “go-between”) tries to
persuade disputing states to enter into negotiations;
when negotiations start, its functions are at an end;
• Mediation: As compared with offering good offices, a
mediator, on the other hand, is more active and
actually takes part in the negotiations and may even
suggest terms of settlement to the disputing states.
 DISPUTE SETTLEMENT BY DIPLOMATIC MEANS

INQUIRY
• The main purpose of inquiry is “fact-finding”.
• After some negotiations, disputing states may
sometimes agree to appoint an impartial body to carry
out an inquiry;
• the object of the inquiry is to produce an impartial
finding of disputed facts, and thus to prepare the way
for a negotiated settlement.
 DISPUTE SETTLEMENT BY DIPLOMATIC MEANS

CONCILIATION
• Conciliation is referring the dispute to a commission of
persons whose task it is to elucidate the facts and to
make a report containing proposals for a settlement;
• Report of the commission does not have the binding
character of an award or a judgment.
• It differs from “inquiry” in that the main object of inquiry
is the elucidation of the facts, in the hope that the
parties will of their own accord be able to settle the
dispute;
 DISPUTE SETTLEMENT BY DIPLOMATIC MEANS

CONCILIATION (CONT.)
• Whereas the main object of conciliation is to provide
the active services of a commission of persons in
bringing the parties to an agreement;
• It differs from arbitration and judicial settlement in that
under conciliation the parties are under no obligation to
adopt the proposed settlement; whereas a legal
obligation exists to comply with the award or judgment
of a duly constituted tribunal.
 INTERNATIONAL INSTITUTIONS AND
DISPUTE SETTLEMENT

REGIONAL ORGANISATIONS
• UN Charter recognizes the existence of regional
arrangements or agencies for dealing with such matters
relating to the maintenance of international peace and
security;
• Members of the UN entering into regional arrangements or
agencies are to settle local disputes peacefully before
referring them to the Security Council;
• Security Council encourages the development of the
peaceful settlement of local disputes through such regional
arrangements, however, the roles of the Security Council
and General Assembly remains unaffected.
 INTERNATIONAL INSTITUTIONS AND
DISPUTE SETTLEMENT

REGIONAL ORGANISATIONS – EUROPE

• The European Convention for the Peaceful Settlement
of Disputes adopted by the Council of Europe in 1957;
• Legal disputes (as defined in article 36(2) of the
Statute of the ICJ) are to be sent to the International
Court, although conciliation may be tried before this
step is taken;
• Other disputes are to go to arbitration, unless the
parties have agreed to accept conciliation
 INTERNATIONAL INSTITUTIONS AND
DISPUTE SETTLEMENT

INTERNATIONAL ORGANISATIONS AND FACILITIES

• Specialised international organizations usually have their
own procedures for settling disputes between their
members relating to the interpretation of their constitutional
instruments (vary from organisation to organisation);
• General pattern involves recourse to one of the main
organs of the institution upon the failure of negotiations;
• There are a number of procedures and mechanisms which
seek to resolve disputes in particular areas, usually
economic disputes (Ex: dispute settlement procedures
under GATT 1994).
DISPUTE SETTLEMENT BY ADJUDICATIVE MEANS
ARBITRATION

ARBITRATION
• Arbitration can be defined as “a procedure for the
settlement of disputes between states by a binding
award on the basis of law and as a result of an
undertaking voluntarily accepted”;
• Arbitration has been used for a long time by states to
settle their disputes and it may be considered the most
effective method, in view of the large number of cases
and variety of types of disputes that have been settled
in this way.
DISPUTE SETTLEMENT BY ADJUDICATIVE MEANS
ARBITRATION

CONSENT OF PARTIES
• Arbitration depends upon the willingness of the states
involved to submit to adjudication. Consent can be on
an ad hoc basis or based on a treaty.
• The identity of the arbitrators, the formulation of the
question to be submitted to the tribunal, the rules of
law to be applied and the time limit within which an
award must be made must also be mutually agreed
upon by the states concerned. Such issues are spelt
out in a special agreement between the parties
known as the “Compromis”.
DISPUTE SETTLEMENT BY ADJUDICATIVE MEANS
ARBITRATION

PARTY AUTONOMY
• Arbitration is a device for leaving the settlement of
disputes as much in the hands of the parties as is
possible;
• Parties are free in deciding the law to be applied, and
also the method of settlement, including the place
where the dispute is to be settled, by whom and in
accordance with what procedures.
DISPUTE SETTLEMENT BY ADJUDICATIVE MEANS
ARBITRATION

ARBITRATION v. COURT
• Party autonomy;
• Judges of their own choice: sole arbitrator, arbitral
tribunal, mixed arbitral commission;
• Specialty: arbitrators can be experts in a particular field
of law;
• Confidentiality: Arbitration sits in private;
• No appeal: The award is final and without appeal;
• Effective enforcement: 1958 New York Convention on
the Recognition and Enforcement of Foreign Arbitral
Awards.
 THE UN SYSTEM’S DISPUTE SETTLEMENT
THE SECUTIRY COUNCIL

• The members of the UN conferred on the Security Council

primary responsibility for the maintenance of international peace
and security and agreed to accept and carry out the decisions of
the SC;
• The SC may “investigate any dispute, or any situation which
might lead to international friction or give rise to dispute, in order
to determine whether the continuance of the dispute or situation
is likely to endanger the maintenance of international peace and
security”;
• the SC can call upon the parties to settle their dispute and may
intervene if it wishes at any stage of a dispute or situation, the
continuance of which is likely to endanger international peace
and security, and recommend appropriate procedures or
methods of adjustment (not binding).
 THE UN SYSTEM’S DISPUTE SETTLEMENT
THE SECUTIRY COUNCIL

• Where the parties to a dispute cannot resolve it by the

various methods mentioned in article 33, they should refer
it to the Security Council;
• The Council, where it is convinced that the continuance of
the dispute is likely to endanger international peace and
security, may recommend not only procedures and
adjustment methods, but also such terms of settlement as it
may consider appropriate;
• Once the Council has determined the existence of a threat
to, or a breach of, the peace or act of aggression, it may
make decisions which are binding upon member states of
the UN, but until that point it can issue recommendations
only.
 THE UN SYSTEM’S DISPUTE SETTLEMENT
THE SECUTIRY COUNCIL

Peacekeeping and observer missions

• The SC may establish such subsidiary organs as it deems
necessary for maintaining international peace and security:
• powers of investigation (Art. 34 Charter);
• powers to recommend appropriate procedures or
methods of dispute settlement (Art. 36-38 Charter);
• powers of recommendation or decision in order to
maintain or restore international peace and security (Art.
39 Charter).
• The Security Council may take such action by land, sea or
air forces as may be necessary to maintain or restore
international peace and security.
 THE UN SYSTEM’S DISPUTE SETTLEMENT
THE GENERAL ASSEMBLY

• General Assembly may discuss any question or matter

within the scope of the Charter (the maintenance of
international peace and security);
• GA may make recommendations to the members of
the UN or the Security Council (resolutions and
declarations of the General Assembly (which are not
binding) have covered a very wide field);
 THE UN SYSTEM’S DISPUTE SETTLEMENT
THE GENERAL ASSEMBLY

Peacekeeping and observer missions

of the Genral Assembly
• The General Assembly has powers to discuss and make
recommendations on matters concerning the maintenance
of international peace and security (under Art. 10, 11);
• the Assembly may recommend measures for the peaceful
adjustment of any situation regardless of origin (no binding
decision);
• The Assembly may also establish such subsidiary organs
as it deems necessary for the performance of its functions
(Art. 22) and entrust functions to the Secretary-General
(Art. 98)
 THE UN SYSTEM’S DISPUTE SETTLEMENT
THE SECRETARY-GENERAL

• The Secretary-General is entitled to bring to the attention of

the Security Council any matter which he thinks may
threaten the maintenance of international peace and
security;
• The good offices and mediation activity of the Secretary-
General in some cases may arise either because of
independent action by the Secretary-General (or by the
invitation of the parties) or as a consequence of a request
made by the Security Council or General Assembly;
 INTERNATIONAL COURT OF JUSTICE

Article 92 [Charter]
The International Court of Justice shall be the
principal judicial organ of the United Nations. It shall
function in accordance with the annexed Statute,
which ... forms an integral part of the present Charter.
 INTERNATIONAL COURT OF JUSTICE

Composition of the Court

• The Court consists of fifteen judges of high moral
character;
• The judges must possess the qualifications required in
their countries for appointment to the highest judicial
office, or must be jurists of recognized competence in
international law;
• The Court may not include more than one judge of any
nationality.
 INTERNATIONAL COURT OF JUSTICE

Composition of the Court (CONT.)

• The composition of the Court should represent the
main forms of civilization and the principal legal
systems of the world;
• The recent practice has been to select four judges
from West European states, one from the US, two from
South America, two from East European states and six
from Asia and Africa;
• The five permanent members of the Security Council
are always represented by a judge in the Court.
 INTERNATIONAL COURT OF JUSTICE

Jurisdiction of the Court

• The ICJ has two main categories of jurisdiction,
namely:
• Jurisdiction in contentious cases;
• Advisory jurisdiction.
 INTERNATIONAL COURT OF JUSTICE

Jurisdiction in contentious cases

Access to the Court: Article 34 [Statute]
• Only States may be parties in cases before the
Court…
• The Court is not open to private individuals or
corporations;
• International organizations also have no locus standi
as parties in a contentious proceeding. They have
only the right to request advisory opinions.
 INTERNATIONAL COURT OF JUSTICE

"Consent' is the basis of the Court's jurisdiction

• The jurisdiction of the Court comprises all cases
which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in
treaties and conventions in force … (Article 36
[Statute]);
• The phrase “all cases which the parties refer to it”,
clearly indicates that the Court can exercise
jurisdiction only when the parties refer the case to it.
 INTERNATIONAL COURT OF JUSTICE

Ways of expressing consent to the

jurisdiction of the Court
Consent of a state to appear before the Court may take
several forms, for example:
• Consent ad hoc: by a special agreement;
• By a compromissory clause in a treaty;
• By forum prorogatum; or
• By accepting compulsory jurisdiction under Art. 36 (2)
of the Statute.
 INTERNATIONAL COURT OF JUSTICE

Consent ad hoc: By a special agreement

• The classic method by which the parties refer a
case to the Court is by a special agreement;
• This is an agreement whereby two or more states
agree to refer a particular and defined matter to the
Court for a decision;
• Examples: Case concerning Pulau Ligitan and
Pulau Sipadan (Indonesia v Malaysia); case
concerning Pulau Batu Puteh (Malaysia v
Singapore).
 INTERNATIONAL COURT OF JUSTICE

By a compromissory clause in a treaty

• States can agree in advance by treaty to confer jurisdiction
to the Court;
• That is what Art. 36 (1) means when it refers to “matters
specially provided for... in treaties”;
• There are several hundred treaties in force which contain
such a jurisdictional clause stipulating that if parties to the
treaty disagree over its interpretation or application, one of
them may refer the dispute to the Court.
• Such a clause is known as a “compromissory clause”;
• The treaty may be a general treaty of peaceful settlement
of disputes, or a treaty regulating some other topic and
containing a compromissory clause.
 INTERNATIONAL COURT OF JUSTICE

By forum prorogatum
• There is no reason why each party should not make a
separate reference to the Court by a unilateral application
(Article 40(1) of the Statute);
• While the Court is considering the unilateral application of
one state, the other may expressly or impliedly signify its
consent to the jurisdiction;
• Such consent may be express or implied. It can be implied
if the defendant state defends the case on the merits
without challenging the jurisdiction of the Court. (Like an
estoppel by conduct.);
• In such circumstances the jurisdiction is known as forum
prorogatum.
 INTERNATIONAL COURT OF JUSTICE

By forum prorogatum
Example: Corfu Channel Case
• The United Kingdom, on May 22, 1947, brought a claim against
Albania before the ICJ by unilateral application in accordance
with Article 40(1);
• It argued that the Court had jurisdiction under Article 36(1) of its
Statute on the ground that the SC of the UN, after dealing with
the dispute under Article 36 of the Charter, by a resolution,
decided to recommend both the UK and Albania to refer the
present dispute to the ICJ;
• Albanian Govt. declare in the letter of July 2, 1947 that it “fully
accepts the recommendation of the SC” ... it accepts in precise
terms “the jurisdiction of the Court for this case”. The letter,
therefore, constitutes a voluntary and indisputable acceptance of
the court's jurisdiction.
 INTERNATIONAL COURT OF JUSTICE

By accepting compulsory jurisdiction under Art. 36 (2)

Art. 36 [Statute]
(2) The States parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other states
accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning:
• the interpretation of a treaty;
• any question of international law;
• the existence of any fact which, if established, would
constitute a breach of an international obligation;
• the nature and extent of the reparation to be made for the
breach of an international obligation.
 INTERNATIONAL COURT OF JUSTICE

By accepting compulsory jurisdiction

under Art. 36 (2)
Art. 36 [Statute]
• Article 36(2) of the Statute provides what is known as
“compulsory jurisdiction” of the ICJ;
• It is compulsory once it is voluntarily accepted;
• By the use of the term “may”, Article 36(2) is not
obligatory upon Member States;
• There is no obligation to make a declaration under
Article 36(2). That is the reason why it is called the
“optional clause”.
 INTERNATIONAL COURT OF JUSTICE

By accepting compulsory jurisdiction

under Art. 36 (3)
Art. 36(3) [Statute]
The declaration referred to above may be made unconditionally
or on condition of reciprocity on the part of several or certain
states, or for a certain time.
• The declarations may be made unconditionally or on
condition of reciprocity or for a certain time;
• As declarations may be made conditionally, Some states
have accepted the compulsory jurisdiction with
“reservations”;
• These reservations may exclude from the acceptance of
compulsory jurisdiction a particular dispute or whole class of
disputes.
 INTERNATIONAL COURT OF JUSTICE

Reservations in the US's declaration accepting

compulsory jurisdiction
This declaration shall not apply to:
(b) disputes with regard to matters which are essentially
within the domestic jurisdiction of the United States of
America as determined by the United States of America:
or
(c) disputes arising under a multilateral treaty, unless (1)
all parties to the treaty affected by the decision are also
parties to the case before the Court,...
 INTERNATIONAL COURT OF JUSTICE

The principle of reciprocity

• States which accept the jurisdiction of the Court under the
optional clause (Article 36.2) do so only “in relation to any
other state accepting the same obligation”
• This principle has two aspects:
• The optional clause system applies only between those
States which have accepted compulsory jurisdiction => both
parties to a dispute must have made declarations under
Article 36(2) in order that the Court may exercise jurisdiction;
• The “matter” over which the Court may have jurisdiction by
virtue of the phrase: "accepting the same obligation” => the
principle of reciprocity means that the Court has jurisdiction
over the areas (or subject matters) in respect of which no
reservations are made by both States Declarations.
 INTERNATIONAL COURT OF JUSTICE

The principle of reciprocity

• According to Article 36(3), states may make reservations
when accepting the jurisdiction of the Court. By virtue of the
principle of reciprocity, one state may rely on the
reservations contained in another state's Declaration;
• For example, Suppose that State A's Declaration contains a
reservation regarding delimitation of the continental shelf.
There is no such reservationin State B's Declaration;
• If there is a dispute between A and B regarding delimitation
of the CS. The Court has no jurisdiction because there is no
consent to jurisdiction by State A as far as delimitation of
the CS is concerned.