Peaceful Settlement of Disputes

- Art. 1(1), UN Charter: one of the purposes of the UN is 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
- States are obliged to resolve their disputes by peaceful means. The principle of peaceful
settlement of disputes, enshrined in Article 2(3) UN Charter, is the other side of the
coin regarding the prohibition of the use of force in international relations.
- Art. 2(3), UN Charter: All members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and justice, are not
endangered.
- It is a natural corollary to the obligation of states to refrain from the threat or use of
force as enshrined in Art. 2(4)
- The 1982 Manila Declaration on the Peaceful Settlement of International Disputes
imposes upon States the obligation to seek, in good faith and a spirit of cooperation,
an early and equitable settlement of their disputes.
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‘DISPUTE’
- Mavrommatis Palestine Concessions case, ‘dispute’: A disagreement over a point of law
or fact, a conflict of legal views or of interests between two persons.
- A ‘dispute’ is a disagreement about something and an ‘international dispute’ is a
disagreement, typically, but not exclusively, between States, with consequences on the
international plane.
- International law sets out various means of dispute settlement, both diplomatic and
legal. These are stipulated in Art 33 UNC as well as in an important resolution of the
UNGA, the 1982 Manila Declaration on the Peaceful Settlement of Disputes.
- There is no hierarchy among these methods and the choice belongs to the disputing
States.
ART. 33
- A range of dispute settlement methods have been developed, many of which are
enumerated in Art 33 UN Charter and the 1982 Manila Declaration.
- Art. 33(1), UN Charter: The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall first seek a
solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements or other peaceful means of
their choice.
- The effect of these provisions is that, in the event of a dispute, member States are not
allowed to use force and must attempt to settle the dispute peacefully.
- However, consent is a prerequisite to the dispute settlements.
- The Status of Eastern Carelia: No state can without its consent be compelled to submit
its dispute with other states either to mediation or arbitration or to any other kind of
pacific settlement.
LEGAL METHODS
- The ICJ, the principal judicial organ of the United Nations, is a standing court to which
States may bring their legal disputes.
o The court’s jurisdiction is based upon the consent of the parties to the
dispute.
o This consent may be expressed either directly in respect of a specific
dispute or in advance of future disputes.
o The court is also empowered to provide advisory opinions to UN organs
and specialized agencies.
- Legal methods entail a referral of the dispute to the ICJ or arbitration.
- Until the 20th century, States could only submit their differences to international
arbitration.
- The establishment of the Permanent Court of International Justice (PCIJ) in the 1920s
and its successor, the ICJ in 1945, as the main judicial organ of the United Nations,
provided States with a standing forum for the adjudication of their disputes
- This forum is however, open only to States that have given their consent. This is the
most significant difference from national courts, in which the applicant can submit
his/her case unilaterally.
- The ICJ functions on the basis of a set of detailed rules set out in the UNC, the ICJ
Statute and finally, the Rules of the Court.
- The Court’s decisions are final and binding upon the parties.
- In the overwhelming majority of the cases, State do comply with the decisions of the
Court.
- If they fail to do so, there is the possibility of the Security Council taking action.
CATEGORIES OF DISPUTE SETTLEMENT
- As under Art. 33(1), there are two categories of dispute settlement:
o Diplomatic means: Where parties retain control over the dispute
whereby they may accept or reject a proposed settlement
▪ Negotiation, enquiry, mediation, and conciliation
▪ In general, States initially attempt to negotiate.
▪ If this proves unsuccessful, they will try other methods of
political resolution such as inquiry, mediation, conciliation, as
well as resort to regional organization or the ‘good offices’ of
the UN Secretary General.
 ▪ These are the political or diplomatic methods, which are
complemented by the legal methods, i.e. arbitration or
adjudication by the ICJ.
▪ The outcome arising from legal methods is final and binding,
whereas this is not the case with diplomatic methods.
o Legal means: Has the effect of legally binding decisions ordered upon
parties to the dispute
▪ Arbitration and judicial settlement

Negotiation

- Negotiation is often resorted to by States before they make use of other means of
dispute settlement.
- International treaties recognise negotiation as a prerequisite to other forms of
settlement.
- It may be bilateral or multilateral, but where it involves more than two States, it often
takes the form of a conference.
- It is more than mere deliberation or a means of settling differences, as it can also help
prevent disputes from arising.
- Most of the treaties make a failure to settle a dispute by negotiation a condition
precedent to compulsory arbitration or judicial settlement.
- It is, therefore, not surprising that negotiation comes first in the list of means of pacific
settlement of disputes stipulated in Article 33(1) of the Charter of the United Nations.
- Negotiation consists of discussions between the concerned parties with a view to
understand the opposing positions and opinions and reconcile the differences.
- It is very suited to the clarification and elucidation of the opposing contentions.
- It is the most satisfactory means to settle disputes since it is a voluntary bilateral and
self-help means; the parties are directly engaged in the process; intervention by any
third party in the process is not necessary.
- Negotiations, however, do not always succeed in reaching solutions to disputes or
differences between the parties.
- Negotiation may also exist alongside other process of dispute settlement.
- For example, in the Aegean Continental Shelf case (Greece v Turkey) (1978), the
Court indicated that the initiation of negotiations during litigation is not a bar to the
exercise of its powers and vice versa.
- On specifically how the negotiations must be conducted was discussed in the case of
North Sea Continental Shelf cases (Germany v Denmark/ Netherlands),
Judgement, ICJ, Rep (1969), p 3.
 o In this case, the Court decided that according to customary international law
the delimitation of continental shelf boundaries between neighbouring States
must be effected by agreement in accordance with equitable principles.
o It was later held that ‘the parties are under an obligation to enter into
negotiations with a view to arriving at an agreement; 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 and modification of it’.
- Consultation: When a government anticipates that a decision or a proposed course of
action may harm another State, discussions (in the form of a consultation) with the
affected party can provide a way of preventing a dispute by creating an opportunity
for adjustment.
o A good example of the value of consultation is the Dispute Settlement
Understanding (DSU) of the World Trade Organization, which contains in Article
4(3) an obligation to enter into consultations in good faith on request
- The effect of a negotiation is that it may lead to an agreed solution in the form of a
compromise by a State, for the sake of peace or friendly relations.
- However, when a State refuses to conduct a negotiation, or to follow through on a
negotiated agreement, other means of dispute settlement must be used.

Mediation and good offices

- When a dispute is unable to be resolved wholly by negotiation, the intervention of a

third party in the form of mediation or good offices may produce an acceptable
solution.
- The mediator is expected to do more, in the sense of being an active participant,
authorized to advance fresh ideas and transmit the parties’ proposals to each other.
- Mediation can only take place if the parties to a dispute consent and a mediator is
available.
- Good offices: Involves the participation of a third party (a State, an individual, or a body)
in bringing the parties to the dispute together, provided that the offer of good offices
is accepted by the parties.
o The third party participating must be impartial in order to facilitate the
communication between the parties, and does not participate in the actual
settlement of the dispute.
o Once the settlement of the dispute begins, the third party’s role comes to an
end.
o An early example of good offices is one contributed by President Roosevelt in
1905-1906 to end the Russo-Japanese War. The United Kingdom used its good
offices to effect a ceasefire in 1965 in the Rann of Kutch dispute between India
and Pakistan. In the dispute between Argentina and Chile over the
 implementation of the Beagle Channel award, both sides accepted Cardinal
Antonio Samore as a mediator, upon the proposal by the Pope.
o E.g: In 1993, Norway offered its services to facilitate secret talks which took
place in Norway, between the Palestinian Liberation Organisation (PLO) and
Israel, which later led to the signing of the Oslo Agreement.
- In fact, the united nations, especially the Secretary General, and other regional
organizations commonly act as ‘mediators’ or provide ‘good offices’.
- Once mediation has been accepted, the task of the mediator is to devise or promote
solutions that are acceptable to both parties.
- Much can be achieved by simply facilitating communication, especially if the parties
are unable to deal with each other directly.
- This was the case with the Diplomatic Hostages dispute between Iran and the USA in
1980, in which Algeria acted as an intermediary and only with such assistance did they
conclude the Algiers Accords, which led to the establishment of the Iran-US Claims
Tribunal in the Hague in 1981.The success of mediation ultimately depends on the
parties’ readiness to compromise.
- Sometimes, good offices or mediation are expressly provided for in the constituent
instrument of an international organization, as in the case of the WTO Dispute
Settlement Understanding.

Inquiry

- Involves third party investigation of the facts surrounding the dispute.

- Inquiry relates to the resolution of a disputed issue of fact; it can be either a process
performed in the course of another dispute settlement procedure, for example, in the
context of arbitration or adjudication or as a distinct and autonomous fact-finding
process.
- In this case, it will take the form of a specific institutional arrangement which may be
selected in lieu of arbitration or other means.
- A commission of inquiry will be established to ascertain the conditions under which a
specific situation occurred.
- Such commissions of inquiry were envisaged by the 1899 Hague Convention.
- They are rarely used in practice and resemble arbitration.
- Disputing States may agree to appoint an impartial body to carry out an inquiry to
produce an impartial finding of disputed facts, and thus, prepare the way for a
negotiated settlement between the parties; the object of the inquiry is to produce an
impartial finding of disputed facts, and thus to prepare the way for a negotiated
settlement. The parties are not obliged to accept the findings of the inquiry, but almost
always do accept them.
 - Parties involved in a dispute are required to provide assistance and cooperate during
the investigation, which may involve examination of witnesses and site visits.
- At the conclusion of an inquiry a report containing the factual findings is submitted to
the parties and may contain non-binding recommendations.
- Dogger Bank incident: In 1904, the Russian Baltic fleet, on its way to the Pacific to
engage in the war with Japan, attacked British fishing vessels operating around the
Dogger Bank in the North Sea, in the mistaken belief that they were Japanese vessels.
The parties appointed a commission of inquiry composed of senior naval officers from
Great Britain, Russia, the United States, France and Austria with the primary fact to
establish the facts. On the basis of the report of the commission, Russia agreed to pay
$65,000 in compensation
- E.g: In 1983, an investigation was conducted on the Korean Air Line Flight, which
involved the shooting down of a South Korean jumbo jet over Soviet territory helped
provided the basis for a resolution condemning the Soviet attack. The resolution
facilitated an amendment to the Chicago Convention on Civil Aviation designed to
reduce the risk of such incidents.
- In the case of Red Crusader case (1962) 35 ILR 485,
o a Scottish trawler was arrested in 1961 off the coast of the Faroe Islands by
Danish authorities. Through the exchange of notes between the governments
of the UK and Denmark, a commission of inquiry was set up to investigate the
circumstances surrounding the arrest. In addition to written memorials there
was also oral evidence and cross-examination of witness. Based on the report
of the Commission, the two States decided to waive their claims.
o In fact, the united nations, especially the Secretary General, and other regional
organizations commonly act as ‘mediators’ or provide ‘good offices’.
- In the Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010
Flotilla Incident (September 2011),
o a very interesting commission of inquiry was set up by the UN to investigate
the events surrounding the interdiction and killing of Turkish activist on board
the Turkish-flagged M. V. Marmara by Israeli forces on 31 May 2010.
o The UN Secretary General established a Panel of Inquiry which issued its report
in September 2011.
o The report took the view that the blockade of Gaza was legal; however, Israel
was found to have used ‘excessive and unreasonable’ measures in boarding the
M.V. Marmara, resulting in ‘inacceptable’ loss of life.

Conciliation

- If mediation is essentially a continuation of negotiations, conciliation is a continuation

of mediation in a formal or institutionalized sense.
 - It involves a commission set up by the parties either on a permanent or an ad hoc basis,
which proceeds to an impartial examination of the dispute and proposes settlement
terms.
- However, this settlement will not be binding upon the parties.
- Although conciliation is regularly included in provisions on dispute settlement, the
number of cases in which it has actually been used remains very small (e.g. Conciliation
Commission on the Continental Shelf Area between Iceland and Jan Mayen:
Report and Recommendations to the Government of Iceland and Norway,
Decision of June 1981 XXVII RIAA, pp 1-34)
- The process of settling a dispute by referring it to a commission of persons whose task
is to establish the facts and to make a report containing non-binding proposals for a
settlement.
- Unlike a commission of inquiry, the commission conducting conciliation not only help
establish the facts, but also examines the dispute as a whole.
- Parties are free to reject the proposed solution, accept it, or consider it as a source for
the future resolution of the dispute.
- Multilateral treaties (e.g: VCLT; UNCLOS) often provide for compulsory conciliation as
it is considered a popular alternative to binding procedures:
- It satisfies States which wish to have a pre-established mechanism relating to the
settlement of disputes that may arise under a particular treaty
- It is acceptable to State which do not wish to have imposed upon them any legally
binding solution to a future dispute

CONCLUSION (FOR POLITICAL MEANS)

 States are under an obligation to resolve their disputes in a peaceful manner.

International law distinguishes between political and legal means.
 Political means are not binding upon the disputants, who are free to follow the
outcome or pursue other means of settlement.
 Amongst these, the primary role is ascribed to negotiation, which is usually the starting
point for any dispute settlement, whereas mediation, conciliation, and inquiry
encompass the involvement of a third party.
 This third party or the relevant commission is activated upon the consent of the parties
to the dispute.

LEGAL METHODS

1) Arbitration

- The origins of arbitration in the modern era can be traced back to the 1794 Jay
Treaty between Great Britain and the USA.
 - The parties to a dispute on a legal matters set up a tribunal on the basis of
international law and agree to treat its decision as binding.

- Each party selects one or two members of the arbitral tribunal, while the
president of the tribunal, the umpire, is selected by consent, the arbitrators, or
the president of the tribunal, the umpire, is selected by consent, the arbitrators,
or the president of the ICJ.

- Frequently, they will resort to an established arbitral institution, such as the

Permanent Court of Arbitration, otherwise it is considered to be ad hoc.

- Arbitration, like conciliation, can be employed when dispute arises or stipulated

in advance in a treaty.

- Arbitration clauses are found in the dispute settlement provisions of multilateral

and bilateral conventions, as either an optional or compulsory procedure, and
often in combination with other methods.

- An example is the 1982 UN Convention on the Law of the Sea, which provides
for compulsory settlement of disputes and which gives a prominent role to
arbitration as the default rule.

- Disputes between foreign investors and host States are usually resolved
through investment arbitration which is frequently triggered by bilateral
investment treaties (BITs).

- These are entered into by host State and the investor’s home State.

- Investment arbitration is governed by international law and its outcome is

binding on the disputants.

- States also select the applicable law and other procedural matters and rules,
such as the public character of the proceeding.

- 1899 Convention for the Pacific Settlement of International Disputes:

International arbitration has for its object the settlement of disputes between
States by judges of their own choice and on the basis of respect for law.
Recourse to arbitration implies an engagement to submit in good faith to
the award.

The main features of arbitration:

- Consent is a prerequisite in arbitration, as it depends upon the willingness of

the States involved to submit to adjudication.
- Arbitration focuses on party autonomy, in that the settlement of dispute is left
in the hands of the parties as they are free to decide on the factors that will
affect the conduct of the arbitration.
- Unlike other forms of dispute settlement, it provides parties with the
opportunity of obtaining a binding decision from judges of their own choice.
- Arbitration may be conducted as a result of a treaty of arbitration concluded
for the purpose of settling a particular dispute.
- States may conclude a general treaty of arbitration stipulating the kinds of
differences that may arise in the future that shall be settled by way of
arbitration.
- A treaty, which is not one of arbitration, may contain a clause providing that
any differences concerning matters of the treaty shall be determined by way of
arbitration.
- The selection of arbitrators: This may be agreed upon by the States
themselves or by way of an agreed mechanism to determine the arbitrators.
- Rainbow Warrior case: The UN Secretary-General was called upon to arbitrate.
- Parties may also appoint a body of individuals as an arbitration commission.
- However, the freedom that States enjoy in the appointment of the arbitrators
may undermine the treaty of arbitration itself.
- Interpretation of Peace Treaties with Bulgaria, Hungary and Romania: The
former enemy States (Bulgaria, Hungary and Romania) deliberately failed to
appoint members of the arbitral commission, thus rendering the arbitral
provision of the treaties inoperative.
- The selection of the form of an arbitral tribunal: The tribunal may consist of a
single arbitrator or a body comprising of two or more arbitrators.
- Heads of State or judges from neutral countries are the most likely candidates
to be a sole arbitrator.
- E.g: The King of Italy in the 1931 Clipperton Island Arbitration between France
and Mexico; the Chief Justice of the US Supreme Court in the Tinoco Arbitration
between Britain and Costa Rica.
- Where the tribunal consists of a collective body, it may be in the form of a joint
commission, or a mixed commission.
- Joint commission: Has an equal number of arbitrators nominated by each party.
As the arbitrators represent the State that has appointed them, for that reason
joint commissions often fail in reaching any kind of agreement.
- Mixed commission: Has an odd number of arbitrators who do not represent the
States. Its neutrality increases the likelihood of a successful arbitration.
 - The choice of applicable law: The treaty of arbitration usually stipulates the
principles (general rules of international law) according to which the arbitrators
have to give an arbitral award.
- However, parties are free to specify the law applicable to their dispute and
may decide to apply the principles of equity in order to reach an equitable
solution.
- The effect of an arbitral award: An arbitral award is binding upon the States,
unless the treaty of arbitration provides otherwise.
- General rule: A decision of an arbitral tribunal should not be disturbed unless it
was made under an error of law or fact, irregularity in appointment of
arbitrators, or an essential procedural error.
- Maritime Delimitation between Guinea-Bissau and Senegal: An appeal to the
ICJ against an arbitral award is only allowed where:
- An arbitral body has exceeded the powers conferred upon them in deciding for
the dispute, which nullifies the arbitral award.
- There is failure to reach a decision by a true majority
- There is an insufficiency of reasoning (adequate legal arguments) to support
the decision of the arbitral tribunal. If a statement of reasoning is clear and
precise, regardless of how brief it is, it will be deemed sufficient.
- If an arbitral decision is overturned on appeal, the award will be null and without
binding force.

2. Adjudication by the International Court of Justice (ICJ) (Statute of the ICJ)

- It is the principal judicial organ of the UN (Art 92 UNC). It is a successor to the PCIJ.

- The ICJ is a standing mechanism for the judicial settlement of disputes between States,
should they wish to make use of it.

- No dispute can be the subject of a decision unless the disputing parties have consented
to the Court’s jurisdiction.

- Access to the Court is enjoyed by all member States of the UN.

- It is not open to international organisation or individuals.

- It is also empowered to provided advisory opinions to questions referred to by UN

organs or other competent agencies.

- The legal framework of the Court is set out by the UNC, the ICJ Statute, and Rules.

Composition:
 - The court consist of 15 judges, elected by the Security Council and the General
Assembly for terms of nine years.
- Judges can be re-elected and this is frequent, but care is taken that the membership of
the Court is regularly renewed.
- Judges are elected in their individual capacity and not as representatives of their States
and undertake a solemn oath of impartiality in the exercise of their function.
- The disqualification or withdrawal of a judge from a case is provided in the ICJ Statute;
the commonest ground for exclusion is one’s prior involvement in a case, e.g. as
Counsel of a State.
- The presence on the bench of a judge with the nationality of one of the parties was not
seen as a ground for withdrawal; on the contrary, this ensures that the court will fully
understand the circumstances of the case.
- Accordingly, the ICJ Statute ensures equality by enabling the other party (i.e. which
does not have a national sitting as judge) to nominate someone as a judge solely for
that case, with the title of judge ad hoc.
- Moreover, in cases where neither party has a judge of its nationality, each party may
choose a judge ad hoc.

- Art. 3: ICJ consists of fifteen members, and no two members may be nationals of the
same State.
- Arts. 4 – 14: Judges are elected by the Security Council and the General Assembly in
accordance with the procedures provided.
- Art. 25: The Court normally sits as a full Court of fifteen judges, although cases may be
referred to an ad hoc chamber of three or more judges
- There can be no appeal from a chamber decision to the full Court.
- Art. 19: The members of the Court, when engaged on the business of the Court, shall
enjoy diplomatic privileges and immunities

- Ad hoc or national judge:

- Art. 31(1): A judge of the nationality of a State party to a case retains the right to sit in
(hear) the case
- Arts. 31(2) & (3): A party that does not have a national on the Court may choose an ad
hoc judge to sit in the case.
- When one party has a national, the other may choose an ad hoc judge
- When both parties do not have nationals, both parties may choose ad hoc judges

Contentious jurisdiction:

- Art. 35(1): Access to the court is open to States who are parties to the Statute.
 - Art. 93(1), UN Charter: All UN members are parties to the Statute
- Art. 93(2), UN Charter: Non-UN member States may become parties to the Statute by
complying with the conditions set by the General Assembly on the recommendation of
the Security Council
- Art. 35(2): Access to the court to States who are not parties to the Statute are, subject
to special provisions of treaties in force (at the date of the entry into force of the
Statute), to be determined by the UNSC.

JURISDICTION

- It has already been emphasised that the jurisdiction of the Court, like that of any
international judicial or arbitral body, is based upon the consent of States. such consent
is expressed in particular ways.

- Before enumerating these, it should be recalled that ‘only States may be parties to cases
before the Court (Art 38 ICJ).

- To be a party to a case, a State must also be one of those to which the Court is open
under Art 35 – that is, parties to the ICJ Statute (and UN Members) or non-State parties
upon the recommendations of the Security Council.

- Art. 36(1): The jurisdiction of the court comprises of all cases which the parties refer
to it and all matters specially provided for in the UN Charter or in the treaties and
conventions in force.

- This provision implies that all the parties to the dispute must agree for it to be referred
to the court.
- The court has expressly declared that its jurisdiction in contentious cases is dependent
on the consent of the parties (Monetary Gold case), thus Art. 36(1) provides for the
court’s voluntary jurisdiction.

- Consent to refer the dispute to the court may be expressed by four ways:

o A special agreement (compromis): Where two or more States agree to refer a

particular and defined matter to the court for a decision.

▪ The easiest way for two States that wish to have their dispute settled by the
ICJ is to express their consent by entering into an agreement to that effect.

▪ This is the classic compromis, also used in order to submit a case to

arbitration.

▪ Such an agreement will define the dispute and record the agreement of the
parties in accepting the Court’s decision as binding.
 ▪ There have been few cases submitted to the Court by compromis, e.g.
Continental Shelf (Libyan Arab Jamahiriya/Malta, 1985).

o A clause in a treaty: Where a treaty has a jurisdictional clause stipulating that

disputes are to be referred to the court, by being a party to the treaty, States thus
agree to confer jurisdiction on the court to decide on any disputes that may arise.

▪ There are numerous cases whereby States have already given their consent
to submit future disputes to the Court.

▪ This is achieved by concluding a treaty providing that all disputes relating

to its interpretation or application may be referred by any party to the Court
by a unilateral act.

▪ Such a clause, known as a compromissory clause, is frequent and is found

either in the final clauses of a treaty or optional protocols.

▪ The submission to the Court may be preceded by negotiations but the

existence of such a clause suffices as a jurisdictional basis.

▪ Compromissory clauses triggered the Court’s jurisdiction in US Diplomatic

and Consular Staff in Tehran (US v Iran, 1980), specifically the Optional
Protocol to the 1961 Vienna Convention on Diplomatic Relations.

▪ The same instrument was also utilized in Application of the Interim

Accord of 13 September 1995 (the former Yugoslavia Republic of
Macedonia v Greece, 2011).

▪ Case Concerning Application of the International Convention on the

Elimination of all Forms of Racial Discrimination (Georgia v Russian
Federation), Preliminary Objections, Judgment of 1 April 2011.

▪ Georgia instituted proceedings against the Russian Federation in respect of

a dispute concerning ‘actions on and around the territory of Georgia’ in
breach of the 1965 International Convention on the Elimination of All
Forms of Racial Discrimination (CERD). Jurisdiction was claimed on the
basis of Art 22 CERD, which contained a compromissory clause. However,
the Court upheld the preliminary objections of Russia on the basis that the
two disputants had not negotiated prior to the Georgia application, as
dictated by Art 22 CERD.

▪ Such contractual consent to the jurisdiction of the Court may be given not
only through a compromissory clause, but also by a treaty that had been
concluded for the purpose of making advance provision for the settlement
 by the Court of all or some of the disputes that may subsequently arise
between the parties.

▪ Such a treaty was the 1928 General Act for Pacific Settlement of
International Disputes, unsuccessfully used in the Aegean Sea
Continental Shelf Case, 1978.

o Optional Clause

▪ Under Art 36(2) ICJ Statute, a State may deposit with the UN Secretary-
General a declaration whereby it accepts the jurisdiction of the Court in
respect of international legal disputes in relation to any other State
accepting the same obligation.

▪ States making such declarations accept the jurisdiction of the Court as

compulsory.

▪ Nonetheless, a reservation to an optional clause declaration is possible.

▪ This is linked with the idea of ‘reciprocity’ enshrined in Art 36(2) ICJ Statute,
namely that the acceptance of jurisdiction is contingent on any other State
accepting the same obligation.

▪ Of the limited group of States that have made such a declaration (around
60), many have appended reservations.

▪ The effect of these reservations is that one needs to find the lowest
common denominator of the jurisdiction not excluded by reservations on
each side and consider whether the particular dispute falls within this.

▪ Is such a common denominator exists the Court enjoys jurisdiction.

▪ Reservations to optional clause declarations vary from:

• a) rationae temporis reservations, i.e. the Court would have jurisdiction

over all disputes arising from a particular date onwards (e.g. declaration
by the former Republic of Yugoslavia in 1999 in Legality of Use of Force,
Yugoslavia v Belgium 1999);

• b) rationae personae reservations, e.g. the ‘commonwealth’ reservation

excluding disputes among commonwealth States;

• c) rationae materiae reservations, namely that a State excludes

particular disputes from the jurisdiction of the Court e.g. declaration of
Greece excluding military measures taken for self-defence)
 o Forum prorogatum: For the Court to exercise jurisdiction on the basis of forum
prorogatum, the element of consent must be either explicitly or clearly deduced
from the relevant conduct of a State.

▪ An application may be made which in effect invites the State named as

respondent to consent to jurisdiction simply for the purpose of that particular
case, despite the absence of any of the previous jurisdictional bases.

▪ In view of its potential abuse, a special provision was included in Art 38(5) of
the Rules of the Court, whereby an application of this kind is treated for
procedural purposes as ineffective until the consent of the named respondent
is expressed in writing.

▪ Such means of establishing jurisdiction were used in the case of Certain

Questions of Mutual Assistance in Criminal Matters (Djibouti v France, 2008).

- Consent is said to be express in the Mutual Assistance case: Djibouti had

commenced proceeding in the case by filing a unilateral application against
France. In response, in a letter to the Court, France expressly agreed to the
court’s jurisdiction in the case.
- Consent can be implied if the respondent State defends its case without
challenging the jurisdiction of the court.
- Corfu Channel case: The court inferred consent from the unilateral application
of the UK coupled with subsequent letters to the court’s registrar from
Albania indicating acceptance of the court’s jurisdiction.

Acceptance of the court’s compulsory jurisdiction under Art. 36(2)

- Art. 36(2): States may declare that they recognise the court’s
compulsory jurisdiction without special agreement, in relation to any
other State accepting the same obligation, in all legal disputes
concerning:
- 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 or extent of the reparation to be made for the breach of an
international obligation

- The provision is not obligatory upon States, as there is no obligation to

make a declaration under Art. 36(2), thus making it an optional clause.
The court will only exercise its compulsory jurisdiction once it is
voluntarily accepted by the parties.
- Principle of reciprocity: States only accept the court’s compulsory
jurisdiction in relation to any other State accepting the same obligation.
- Both parties to a dispute must have made declarations under Art. 36(2)
- The court may only exercise its jurisdiction over the subject-matters
common to both States’ declarations.
-
If State A makes a declaration subject to reservation X and State B makes a declaration
subject to reservation Y, the court has jurisdiction to hear disputes between these two
States only insofar as they are not covered by reservations X or Y.
- Interhandel case: Reciprocity enables a party to invoke a reservation
which it has not expressed in its own declaration, but which the other
party has expressed in its declaration.
- Reciprocity enables the State which has made a wider acceptance of the
jurisdiction of the court to rely upon the reservations laid down by
the other party.

Reservations: The court has accepted that States may attach reservations to their
declarations in regards to certain States, time, or subject matter (Art. 36(3)) - Types of
reservation:
- Reservations relating to other parties (ratione personae)
- E.g: In order to avoid being surprised by suits, States have made a
reservation excluding the court’s jurisdiction over applications filed less
than 12 months prior to the other party’s acceptance.
- Case Concerning Legality of Use of Force (Yugoslavia v UK): On the basis
of such a reservation, the court dismissed the case against the UK.

- Reservations relating to time (ratione temporis)

- To exercise a time limit over the court’s jurisdiction.
- The Phosphates in Morocco case: France made a declaration accepting
jurisdiction of the court over any disputes which may arise after the
ratification of the declaration in 1931 with regards to facts or situations
subsequent to such ratification. Held: Where the facts and situations of
the dispute occurred earlier (in 1920) than the ratification of the French
Declaration, the dispute thus, fell outside the court’s jurisdiction.

- Reservations as to subject matter (ratione materiae)

- To limit the subject matters over which the court may exercise its
jurisdiction.
- E.g: Philippines has made a reservation against disputes concerning its
continental shelf.

- Fisheries Jurisdiction case: Declarations and reservations are to be read

as a whole.
-
- Anglo-Iranian Oil Co. case: In interpreting the relevant words of a
declaration including a reservation, the court must seek the
interpretation which is in harmony with a natural and reasonable way
of reading the text, thus having due regard to the intention of the
State concerned at the time when it accepted the compulsory
jurisdiction of the court.

Norwegian Loans case: The French Declaration included a reservation which excluded
the court’s jurisdiction from matters which are within the national jurisdiction of
the State. Norway, though not having made such a reservation in the Norwegian
Declaration, relied on the reservation and challenged the court’s jurisdiction on the
ground that the dispute was within its national jurisdiction. Held: Based on the
principle of reciprocity, the court agreed that Norway was entitled to rely on the
reservation made in the French Declaration, as a result of which excluded the court’s
jurisdiction.
- However, in a separate opinion, Judge Lauterpacht stated that such a
reservation, which allows the State to claim itself the power to
determine whether a matter is within national jurisdiction or not, is
considered an “automatic reservation” which is inconsistent with the
Statute.
- Termination of declaration
- A declaration made for an indefinite period of time is terminable on
“reasonable” notice (Nicaragua case (Jurisdiction and Admissibility))
- Notice should be given
- Termination should not be allowed unless done within a reasonable
period after the notification (in practice, it is usually six months)
- A declaration that is made for a certain time and is terminable upon
notice given at the end of such period

Incidental proceedings

- Independent of the main proceedings, the court may be called upon to exercise
incidental jurisdiction in regards to preliminary objections, applications to
intervene, and ordering provisional measures.

Preliminary objections:

- A well established principle of the law relating to international arbitral and

judicial proceedings is that a tribunal or court has power to decide, with binding
effect for the parties, any question as to the existence or scope of its own
-
jurisdiction (the principle of competence de la competence enshrined in Art
36(6) ICJ Statute).
- The Court must exercise this power in any case in which the existence of its
jurisdiction is disputed. It would do so either proprio motu or after a
‘preliminary objection’ raised by the respondent.
- If the respondent considers that the court lacks jurisdiction he may normally
raise an objection at an early stage.
- This may include an objection to the jurisdiction of the court or to the
admissibility of the application.
- Art. 36(6): In the event of a dispute as to whether the court has jurisdiction, the
matter shall be settled by the decision of the court.
- Also known as compétence de la competence (the jurisdiction to decide
jurisdiction)

- Preliminary objection: Any objection by the respondent to the jurisdiction of

the court or to the admissibility of the application, or other objection, the
decision upon which is requested before any further proceedings (Art. 79(1),
Rules of Court).
- Objections to jurisdiction: A denial that the respondent State ever gave its
consent to the dispute being brought before the court, or that the particular
dispute falls within the category of disputes for which it did accept jurisdiction.
- Objections to admissibility: May include several grounds such as, the applicant’s
lack of locus standi; the non-exhaustion of local remedies; the essentiality of a
third party’s presence to the proceedings; failure to comply with the procedures
required by the treaty; failure to comply with the nationality of the claim.

The effect of a preliminary objection is that if any objection is upheld, any further
proceedings in the case will be interrupted and suspended, as it will be appropriate for
the court to deal with the objection before enquiring into the merits of the case ( The
Panevezys-Saldutiskis Railway case)
- A separate proceeding will then be held to deal with the preliminary objection
in which the applicant State has the opportunity of responding in writing to the
objection.
- The court may choose to uphold an objection or reject it, or declare that the
objection does not possess an exclusively preliminary character, as a result of
which the objection will be represented and reargued along with the merits of
the case.

Objection against admissibility includes:

-
- claims that the applicant lacks locus standi, i.e. absence of a particular legal
interest (see e.g. South-Western African cases, Ethiopia/Liberia v South
Africa, 1966);
- that local remedies have not been exhausted (e.g. Interhandel case,
Switzerland v US, 1959),
- that the case is, or has become, ‘without object’ or moot (e.g. Northern
Cameroons, 1963); and
- that the presence as a party of a third State is essential to the proceedings,
because its rights or obligations would form the very subject matter of the
decision, namely the Monetary Gold principle

Provisional measures:

- According to Art 41 ICJ Statute, the Court has ‘the power to indicate, if it
considers that circumstances so require, any provisional measures which ought
to be taken to preserve the respective rights of either party’.
- For a long time it was debated whether the measures so indicated created an
obligation of respect, binding on the State addressed.
- This was fuelled by the wording of Art 41, which uses the terms ‘indicate’ or
measures to be taken’.
- The question long remained unsettled. The matter was addressed in the
following case:
o LaGrand (Germany v USA) (Merits), Judgment, ICJ Rep (2001), p
466
▪ The court decided that thee provisional measures addressed to
the USA, i.e. the non-execution of Walter LaGrand, which had
not been complied with (the person was executed despite the
provisional measures order of the Court), had created a legal
obligation, the breach of which gave rise to a duty of reparation.
The court warranted its conclusion on an interpretation of Art 41
as having been intended to achieve that result
- Art. 41(1): The court has power to indicate any provisional measures which
ought to be taken to preserve the respective rights of either party.
- To avoid facing the difficulty of indicating provisional measures to a case which
the court may ultimately decide it lacks jurisdiction in, there are two pre-
conditions established to the granting of such measures:
- The existence of a prima facie case for the exercise of jurisdiction by the court
over the merits of the dispute
-
- Nicaragua case: The court should not indicate such measures unless the
provisions invoked by the applicant State appear, prima facie, to afford a basis
on which the jurisdiction of the court might be founded.
- The existence of a risk of imminent and irreparable damage to the rights of the
applicant State

- Aerial Incident at Lockerbie case: Libya alleged that the interpretation of the
UNSC Resolution imposing sanctions in response to Libya’s refusal to hand over
two Libyan nationals suspected of destroying a Pan Am Flight over Lockerbie
amounted to a prima facie case over which the court should exercise its
jurisdiction. Libya also argued that the use of sanctions and possible use of
force put Libya’s interests at risk of suffering irreparable and imminent damage.
ICJ, in rejecting the provisional measures, held:
- It did not find that the UNSC Resolution was ultra vires, or that there was an
existence of a risk of imminent and irreparable damage to Libya’s rights. In fact,
the court found that non-compliance of the Resolution would more likely
impair the rights of the US than Libya.
- Provisional measures often lack in compliance by States, as the court has often
issued such measures without determining their binding force against the
parties.
- However, in the LaGrand case the court examined its binding force for the first
time: The power to indicate provisional measures entails that such measures
should be binding as the power in question is based on the necessity, to
safeguard, and to avoid prejudice to, the rights of the parties as determined by
the final judgment of the court.
Intervention:

- Art. 62(1): If a State considers that it has a legal interest which may be affected
by the decision of the case, it may submit a request to the court to intervene.
- Land, Island and Maritime Frontier Dispute: The court allowed Nicaragua to
intervene although the case was in regards to the legal regime of the Gulf of
Fonseca.
- However, an intervening State is not bound by the court’s judgment as it is not
a party to the case (absence of a jurisdictional link)
- Art. 63(2): In a case where the main issue is the construction of a multilateral
treaty to which a third State is a party that State has the right to intervene.
- Art. 63(1): The registrar of the court must then notify all potentially relevant
States of the proceeding.
- If a State decides to intervene, it will be bound by the construction of the treaty
given by the court.

Enforcement of judgment

- A judgment given by the ICJ is final and without appeal.

- However, in some instances, States have failed to comply with the court’s
judgment.
- Corfu Channel case: Albania did not adhere to the court’s order to pay
compensation to the UK.
- In situations of non-compliance with the court’s decision, there are four ways
of enforcing the judgment:
- Self-help
- This can only be applied within Arts. 2(3) & (4), UN Charter, limiting the use of
force by a State.
- Cooperation of third States
- Recourse to national courts
- Enforcement through international organisations
- Art. 94(2): If a State fails to perform its obligations imposed upon it under a
judgment by the court, the aggrieved party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide
upon measures to be taken to give effect to the judgment.

Jurisdiction over third party States

- General principle: The court has no jurisdiction to rule on the rights and
obligations of third States, where consent is the basis of the court’s jurisdiction.
 - Thus, the court may not give judgment on a case between two States that would
require it to rule upon the rights and obligations of a third State, which had not
given its consent.
- This is subject to the intervention under Arts. 62 & 63.
- East Timor case: The court cannot rule on the lawfulness of the conduct of a
State when its judgment would imply an evaluation of the lawfulness of the
conduct of another State which is not a party to the case.
- In this case, the effect of the judgment requested by Portugal would amount to
a determination that Indonesia’s entry into and continued presence in East
Timor is unlawful and that, as a consequence, it does not have the treatymaking
power in matters relating to the continental shelf resources of East Timor. Thus,
Indonesia’s rights and obligations would constitute the very subject matter of
such a judgment made in the absence of that State’s consent.
- However, Indonesia had no wish to become a party to the case and could not
be brought before the court under Art. 36(2), as it had not made an “optional
clause” declaration.
- Such a judgment would oppose the “well-established principle of international
law embodied in the Statute, namely, that the court can only exercise
jurisdiction over a State with its consent”.

Advisory jurisdiction

- Aside from the court’s jurisdiction in contentious cases, it also exercises an

advisory jurisdiction, in which the court presents its opinion on certain matters.
- Art. 65(1): 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 UN
Charter.
- Art. 96(1), UN Charter: The UNGA and the UNSC are entitled to make a request
for an advisory opinion, and other organs and specialised agencies may also
make such a request when authorised by the UNGA.
- The UNGA and the UNSC may submit any legal question for the court’s
consideration, while other organs of the UN and international specialised
agencies may only submit questions relating to legal issues arising within the
scope of their activities.
- Legal Consequences of the Construction of a Wall by Israel in the Occupied
Palestinian Territory: Where the UNSC was actively engaged in the situation in
Palestine, Israel argued that the UNGA had exceeded its competence by making
a request for an advisory opinion. In its argument, Israel relied on Art. 12, UN
Charter, which disallows the UNGA to make any recommendation with regards
to a dispute or situation in which the UNSC is exercising its functions. ICJ held:
- An advisory opinion cannot be regarded as a recommendation under Art. 12,
UN Charter. Although Art. 24 entrusts the UNSC with the main responsibility for
maintenance of international peace and security, the interpretation of Art. 12
has changed in that there is now an increasing tendency for both, the UNSC
and UNGA to deal in parallel with the same matter. Thus, UNGA’s actions was
consistent with Art. 12 and did not exceed its competence.
- In regards to specialised agencies, the conditions necessary for the court to
exercise its advisory jurisdiction was provided in the Legality of the Threat of
Use of Nuclear Weapons case in which the WHO requested an advisory opinion:
- The UNSC must authorise the specialised agency to submit a request
- The opinion requested must concern a legal question
- The question must be one arising within the scope of activities of the requesting
agency
- In that case, the court rejected the WHO’s request as, instead of focusing on
the effects on health of the use of nuclear weapons and the issue regarding
preventive measures to be taken in order to protect the human population in
the event of such weapons being used, which is within the scope of WHO’s
activities, the request was centred on the legality of the use of nuclear weapons
in the context of their health and environmental effects. However, the same
request was then made by the UNGA, to which the court delivered an advisory
opinion.
- By virtue of Art. 65(1), the court has the discretion as to whether or not it will
give an advisory opinion that has been requested.
- However, only “compelling reasons” could lead the court to make such a refusal:
- WHO in the Nuclear Weapons case: Where there was a lack of jurisdiction
- Eastern Carelia case: Where the nature of the advisory opinion would be
deciding the dispute without the consent of one of the parties and without its
account of the facts. The refusal was due to the unusual circumstances of the
request which were that:
- The question directly concerned an already existing dispute
- One of the parties to the dispute refused to participate in the proceedings
- The refusing party was neither a party to the Statute, nor a member of the
League of Nations (as it was then)
- Legal Consequences of the Construction of a Wall by Israel in the Occupied
Palestinian Territory: Israel argued that the request for an advisory opinion
concerned a contentious matter between Israel and Palestine, in respect of
which Israel did not consent to the court’s jurisdiction. ICJ, in outlining the
difference between its contentious jurisdiction and advisory jurisdiction
with regard to consent, held:
 - Whilst in contentious cases the consent of all the parties to the dispute is
necessary in order to establish the court’s jurisdiction, in advisory proceedings
the consent of the parties is not necessary as an advisory opinion has no
binding force and is given not to the States, but to international
organisations requesting it.
- Only when an advisory opinion has the effect of evading ‘the principle that a
State is not obliged to allow its dispute to be submitted to the court without its
consent’, would the issue of lack of consent compel the court to decline its
jurisdiction.
- Advisory opinions are of a consultative character, and thus, not binding on
the requesting entities. It is up to the entities to decide on the usefulness of an
advisory opinion and on the appropriate course of action.
PROCEDURES
- The procedure in contentious cases are set in motion by the conclusion of an
agreement (compromis) or by the filling of an application from one State
instituting proceedings against another.
- The proceedings are such are divided as follows: in a first stage the parties
exchange written pleadings (Memorial by the applicant and Counter-Memorial
by the respondent, followed by a Reply and a Rejoinder).
- There then follows a hearing at which the parties address their arguments to
the Court.
- Evidence is normally submitted in the form of documents or other forms;
witnesses may provided written evidence or appear at the hearing instead.
- The burden of proof rests with the party alleging the fact or making a claim
(onus probandi incumbit actori).
- In line with the principle iura novit curia (the law is known to the Court), the
parties are not required to prove the existence of the rules of international law
they invoke.
- The sources of international law are enumerated in Art 38 ICJ Statute.