Peaceful Settlement of Disputes

Author: Beáta Bolyová, Nikolas Sabján

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Learning objectives: Understanding XY.

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A. Introduction

B. Diplomatic means

C. Legal means

2. Judicial Settlement

Judicial settlement is the second binding method of peaceful settlement of disputes indicated in Art 33 of the UN Charter. ICTs are permanent bodies and as compared to arbitration, their composition is the same (depending on the electoral cycle of the judges and procedures of having ad hoc judges joining the bench), and they function under their respective statutes and procedural rules irrespective of the wishes of the litigants. Not every permanent ICT however is tasked with the resolution of international disputes, for example, only individuals can be the defendants before international criminal courts and tribunals (such as the International Criminal Court), and only staff members of international organizations can raise their grievances before international administrative tribunals (eg  the International Labour Organization Administrative Tribunal, United Nations Administrative Tribunal). On the other hand, there are ICTs that can deal with both cases between individuals and states as well as between two states including the European Court of Human Rights (ECtHR) which is up to date the only one which has had inter-state cases. In addition to their adjudicatory powers, ICTs can also have advisory functions in issuing advisory opinions - however, there are also bodies which can only render non-biding decisions in considering cases, such as the UN human rights treaty bodies, which do not qualify as ICTs.

i. Evolution

The first regional court, the Central American Court of Justice, was founded to maintain peace and resolve disagreements among five Central American states in 1907 and operated between 1908 and 1918, dealing with inter-state disputes as well as complaints by individuals against the respective governments.

In 1920, the Permanent Court of International Justice (PCIJ) was created by the predecessor of the UN, League of Nations, as a part of the new international system after the end of the World War I and was officially dissolved in 1946 when its successor, the Internatioal Court of Justice (ICJ) started its mandate.  During its existence, the PCIJ had 29 contentious inter-state cases and issued 27 advisory opinions, and was the first permanent ICT with general jurisdiction, in principle accessible to all states.

The ICJ is currently the only ICT with world-wide reach and general jurisdiction, founded by the UN Charter Arts 92–96, being the UN’s principal judicial organ and thus having a crucial role in peaceful settlement of disputes as well as in clarification and refinement of international law norms. It was established by the UN Charter as one of UN´s six principal organs. It has its seat at the Peace Palace in The Hague, Netherlands. The ICJ’s mandate is to settle legal disputes submitted to it by states and to give advisory opinions on legal questions referred to it by UN organs and specialized agencies in accordance with international law. The Court is composed of 15 judges elected for nine years by an absolute majority of votes in both, the UN General Assembly and the UN Security Council. The subject matter of the cases before the court includes a wide variety of international law issues, for example disputes over treaty law, state responsibility, territorial sovereignty, cases involving the use of force, crime of genocide, the law of the sea, consular and diplomatic relations, and many others.

Furthermore, in 1996, the International Tribunal for the Law of the Sea (ITLOS) was established to adjudicate disputes arising out of the interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS), and also has jurisdiction with regards to “matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal” (UNCLOS Statute, Art 21). These disputes can include the delimitation of maritime zones, protection and preservation of the marine environment, navigation, as well as conservation and management of the living resources of the sea. UNCLOS requires its States Parties to settle their disputes regarding the interpretation or application of the UNCLOS by peaceful means as listed in the UN Charter. Accordingly, under the Convention, adjudication before ITLOS is only one of the four different means that the states can choose - if they fail to make a choice, they are however bound to resort to compulsory dispute settlement, an arbitral tribunal constituted in accordance with Annex VII to the UNCLOS.

While predominantly used to address applications of individuals claiming breaches of their human rights against governments, there is also a number of regional adjudicatory mechanisms which have a mechanism to resolve inter-state disputes. These include the ECtHR set up by the European Convention on Human Rights in 1959, the Inter-American Court of Human Rights under the American Convention on Human Rights since 1979, and the African Court on Human and Peoples' Rights established by the Protocol to the African Charter on Human and Peoples’ Rights which entered into force in 2004.

ii. Jurisdiction

This chapter looks at the circumstances in which international courts and tribunals possess the power to adjudicate and the scope of this power. It addresses the question of whether the ICT seised of a case can hear the case and render a binding decision. The jurisdictional requirement reflects that in inter-state dispute settlement, the parties are sovereign states and centres at the role of state consent. Compared to national law, there is no compulsion to adjudicate a dispute, however, consent can be given to adjudication in general (for example as a part of a treaty) and can but does not have to be given in relation to a specific dispute. In practise this can lead to situations where a state consented to jurisdiction of an ICT in advance, but once a case is brought against it, it is unwilling to participate, while as a matter of law, the consent and therefore jurisdiction can be established. Consent as a basis for jurisdiction can be found for example in Art 36(1) of the ICJ Statute, requiring that ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters provided for in (…) treaties and conventions in force.’

It is a well established principle that the ICT before which a case has been brought has the power to decide whether it has jurisdiction (also called compétence de la compétence or kompetenz-kompetenz, found in Art 36(6) ICJ Statute and Art 288(4) UNCLOS).

There is a difference between the states having access to the ICTs and jurisdiction. For example, if a state is a member of the UN, it has access to its principal judicial organ, the ICJ, which however does not automatically mean that the ICJ will have the power to decide a case brought by or against that state. However, in comparison, if a state becomes a party to UNCLOS, access and consent to jurisdiction are established by the same act, since the treaty specifies that by signing and ratifying it, the state also consents to its default settlement of disputes mechanism (UNCLOS Arts 291, 282; ITLOS Statute Art 20). Accordingly, before looking into whether the ICT has jurisdiction, the necessary first step is to see whether all the parties have access to it. While in many cases this might be obvious, the question becomes contentious for example if the statehood of the entity about to bring a case is uncertain. Moreover, even if access and jurisdiction are established, the scope of jurisdiction is an important aspect to keep in mind, since it might be limited and the ICT will not have the power to decide on matters outside of it.

a. Contentious Jurisdiction

Here, the term “jurisdiction” is used as the power of the international courts and tribunals to decide disputes as defined in their respective Statutes. The ICJ can have jurisdiction under four circumstances – if, before a dispute arises, there is a treaty in force between the states which contains a „compromissory clause“ providing for dispute resolution before the Court, or if the states have made a declaration under Art. 36(2) of the Court´s Statute, accepting its jurisdiction (also called „compulsory jurisdiction“ under the „optional clause“). Once the consent of the parties has been given, the Court can establish its jurisdiction even if a party is unwilling to litigate and refuses to appear before the Court when an actual dispute arises (ICJ Statute Art 53, see also Art 28 ITLOS Statute). However, the appearing State does not automatically win by default and the Court has to be satisfied that it has jurisdiction and that the claims are well founded in law and fact. After a dispute has already arose, the states can negotiate a special agreement, granting jurisdiction to the Court over the specific dispute („compromis“), or if a state has made an unilateral reference of a dispute to the Court, the other party can consent in a response („forum prorogatum“).

When it comes to compromissory clauses, there are two types of treaties that can contain them: treaties with general acceptance of the Court´s jurisdiction (e.g. jurisdiction in Nicaragua v. Honduras based on Pact of Bogota, Art. 31), or treaties concluded on specific subject-matter that include a provision that disputes under the treaty can be unilaterally referred to the Court (e.g. Ukraine v. Russia and CERD Art. 22). Compromissory clauses are generally not widely supported and are subject to substantial reservations.  

Optional clause declarations are made by states unilaterally, accepting the Court´s jurisdiction usually under different conditions included in reservations. Jurisdiction of this type is referred to as „compulsory,“ but only becomes compulsory once the declaration has been voluntarily made. Mutual obligations arise only when other states deposited their declarations as well, in fact creating a series of bilateral relationships between the accepting states. Common reservations include a reciprocity requiremet (a case can be brought against a party only if the other party also has a declaration in force), a time limitation (excluding disputes that arose before a certain date), or exclusion of certain matters (eg military activities or maritime delimitations). Reservations themselves operate reciprocally – for example a state with a reservation excluding its military activities from adjudication cannot bring a claim concerning military activities against another.

Another means of consenting to jurisdiction are special agreements, which are retrospective compared to prospective compromissory clauses and declarations addressing future disputes. Special agreements allow for the parties to define the scope of the matter they wish to have adjudicated, but also for instance request a chamber instead of a full bench. While the jurisdiction of the ICT is usually clearly established, a problem that might arise is the question of whether the parties intended to refer a case to the ICT (Qatar v Bahrain: compromis in minutes agreeing on submission of the dispute to the ICJ which were found to create a binding obligation).

Forum prorogatum occurs rarely, and means that after a party has brought a case before the ICT, the other one responds with a successive act that is regarded as submission to the ICT´s jurisdiction, for example appearing and arguing the merits of the case (but not appearing only to argue that the ICT has no jurisdiction). For example in the Case concerning Certain Criminal Proceedings in France, France consented to ICJ´s jurisdiction after proceedings were initiated by Congo) (ICJ Rules Art 38(5); ITLOS Rules Art 54(5)).

If the consent to jurisdiction is based on a treaty (a special agreement between the parties or containing a compromissory clause), they have to be registered with the UN Secretariat under Art 102 of the UN Charter, otherwise it cannot be invoke before any organ of the UN (including the ICJ, but not arbitral tribunals or ITLOS).

Under UNCLOS, the states are free to choose between ITLOS, ICJ, arbitral tribunal, or special arbitral tribunal as a method of binding settlement of their disputes. If the parties to the dispute accepted the same procedure, it will be used unless they agree otherwise. An arbitral tribunal under Annex VII of UNCLOS is the default method if they made no choice or accepted different methods. This is different to the ICJ, as under UNCLOS, jurisdiction is accepted automatically when becoming a party to UNCLOS (with exceptios under UNCLOS Art 298 allowing for some types of disputes to be excluded), while before the ICJ they have to take an additional action to that effect. Similarly to the ICJ, when it comes to ITLOS, jurisdiction can be established if the parties accepted it via a declaration (UNCLOS Art. 287,1), through an agreement (UNCLOS Art. 287.4-5), or a compromissory clause (ITLOS Statute Art. 21). It is also open to non-state entities under certain circumstances (ITLOS Statute Art. 20.2).

The ICTs have to establish that they do have jurisdiction necessary to consider the case, but given the fact that contentious jurisdiction is based on state consent (especially given the nature of optional clause declarations), there can be disagreements on whether it covers the specific dispute in question, and the states can raise objections against it themselves.

Accordingly, what the ICT will look at is first the existence of adjudicative power (have the conditions for vesting the ICT with adjudicative power been met). Second, it will examine the scope of the adjudicative power. This includes personal jurisdiction (ratione personae), subject-matter jurisdiction (ratione materiae) and the temporal scope of jurisdiction (ratione temporis). Third, it will look at admissibility - the exercise of the adjudicative power (can the ICT exercises its jurisdiction – see 4.2.4). Personal jurisdiction depends on over what categories of parties can the ICT adjudicate (States in ICJ Statute Art 34, States Parties and other entities expressly provided for in UNCLOS in ITLOS Statute Art 20) or what qualifications do they have to have to bring a case before the specific ICT or be a respondent to such action. Subject matter-jurisdiction concerns the type of dispute that can be heard and decided upon by the ICT and can be limited either by the terms agreed upon in the special agreement, reservations made to compromissory clauses or declarations, but also by the constituent documents of the ICT (eg “legal disputes” in ICJ Statute Art 36.2 or disputes related to UNCLOS in UNCLOS Art 288(1)2)). Lastly, temporal jurisdiction concerns whether the rights and obligations were in force at the time when the claims arose, whether the parties to the dispute met the personal jurisdiction requirements as of the date of the institution of the proceedings, and whether the given consent was limited in time.

b. Advisory Proceedings

Advisory proceedings generally allow the ICTs to render legal opinions at the request of international organizations, and are technically not means of settling disputes. However, complex issues arise if the ICTs are asked to opine in the context of disputes between states, which is often the case. For example, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, where Israel had not consented to have the dispute adjudicated, the Court found thet ‘the opinion is requested on a question which is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute,’ and held that ‘in the circumstances, the Court does not consider that to give an opinion would have the effect of circumventing the principle of consent to judicial settlement.’ An ICJ advisory opinion is non-binding and can be requested by the UN General Assembly, UN Security Council, or specialised agencies authorised by the General Assembly (UN Charter Art. 96). A similar procedure exists before ITLOS based on Art 138 of the ITLOS Rules.

iii. Admissibility

Admissibility determines whether a claim qualifies to be adjudicated by an ICT that has jurisdiction and looks at whether it is appropriate for the ICT to exercise its power to adjudicate. While the ICTs have to look at whether they have jurisdiction, issues of admissibility have to be raised. If sustained, both objections to jurisdiction (that the ICT cannot hear the case) and objections to admissibility (that the ICT should not hear the case)  prevent the ICT from hearing and deciding upon the merits. Similarly to jurisdictional objections, the ones relating to admissibility are usually addressed in the preliminary objections phase of the proceedings. ICJ explains that ‘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.’

Since both concepts are related, there are variations in different fields of law and before different adjudicative bodies as to whether the question is one of jurisdiction or admissibility (eg nationality of an investor generally would be a issue of admissibility in diplomatic protection claims, but a jurisdictional issue in an investor-state arbitration). While the distinction is of procedural importance for example in investment arbitration (where jurisdictional issues can be reviewed by an ad hoc annulment committee per ICSID Art 52), the ICTs in interstate disputes are not particularly precise on the distinction as neither decisions can be reviewed by a higher ICT.

Grounds for inadmissibility include the lack of standing, for example non-exhaustion of local remedies or non-compliance with the nationality requirement in cases where diplomatic protection over individuals is invoked if it is not an actio popularis claim, lack of real purpose (eg hypothetical questions in Northern Cameroon), mootness (eg in Nuclear tests, France declared that no more tests will be made and Australia had therefore achieved its objective, Burkina Faso/Niger where the states agreed upon a part of their border but asked the Court to also indicate it via a decision to acquire res judicata status), lack of legal interest (eg in Barcelona Traction, Belgium´s action against Spain was dismissed as it alleged an injury to a Canadian company), or legal interest of a third state (when a third state’s rights would form the very subject-matter of the decision; Monetary Gold & Nicaragua).

iv. Procedure

Proceedings can be instituted by a notification of sepcial agreement or application, if they meet the formal requirements and contain the appropriate consent by the governments in question. After the proceedings were instituted, the parties can apply for provisional measures of protection and raise preliminary objections over the jurisdiction and admissibility. If these were not raised and the ICT satisfies itself that it has jurisdiction, it can move to consider the merits including establishing the facts and applying the relevant law, and render a binding judgment.

a. Manifestly Unfounded Claims

*Only ITLOS, not ICJ*

b. Provisional Measures of Protection

The ICTs usually have the power to indicate interim measures which does not require additional consent from the parties conferred to them explicitly (Art 41 ICJ Statute; Art 290 UNCLOS; Art 25 ITLOS Statute) or could be considered to be an inherent power necessary for the performance of the ICT´s functions. Their purpose is to preserve the parties´ rights (protective function), to stop further disruption of the ongoing situation while the dispute is being considered and avoid irreparable damage, as well as to avoid aggravation of the dispute. Provisional measures can be issued at a request of a state (ICJ Rules, Art 76), or propio motu (Art 75.1).

There is an obvious tension between the fact that these questions are usually time-sensitive and that an ICT has to have the power granted to it by the parties to take steps with regards to the issue. Consequently, the ICT does not need to take a final decision and satisfy itself that it has jurisdiction (ICJ – not in the Statute but eg Nuclear Tests, Fisheries; UNCLOS 290(1),290(5); ICSID 36(3)). If a request for provisional measures is made, it will first make a prima facie determination of whether it has jurisdiction without prejudice to merits (ie the ICT can later consider the jurisdictional question fully and change its determination), then consider whether provisional measures should be ordered depending on the circumstances. Here the ICTs generally look at the link between the rights and measures sought, plausibility (existence of the alleged rights), urgency of the situation, whether the measure is needed to protect the rights which are the subject-matter of the judgment, the probability that they will be damaged (preventing irreparable prejudice), and other factors.

There is a difference in language with regards to this type of measures, often called provisional measures, interim measures, or precautionary measures, as well as whether they are “indicated” (ICJ), “prescribed” (ITLOS), “recommended” (ICSID tribunals), or granted (a more neutral term). Provisional measures before the ICJ (LaGrand) and ITLOS (290.6) are legally binding.

c. Preliminary Objections over Jurisdiction and Admissibility

States can raise objections as to whether the international court or tribunal has jurisdiction or whether the case is admissible. Jurisdictional and admissibility disputes are often a separate stage of the proceedings and are addressed in the beginning in the form of a judgment. If a preliminary objection is filed within the prescribed time limits (Art 79 ICJ Rules and Art 97 ITLOS Rules), the proceedings on the merits are suspended until the objection is resolved and the ICT has established that it has jurisdiction. The ICT determines the question itself under the „compétence de la compétence“ principle. The ICT can either reject the arguments in full and move to consideration of the merits of the case, it can accept some of them and move to consider only the issues which are admissible and fall within the scope of its jurisdiction, or accept them and therefore not consider the merits as it does not have the power to do so.

d. Third-Party Intervention

Generally, states cannot bring a case directly concerning the rights of another state which did not consent to the ICT´s jurisdiction (Monetary Gold; rights which would not only be affected, but form the subject-matter of the decision - Nicaragua). Consequently, non-party states whose interests would be affected by a decision can intervene (Arts 61, 62 ICJ Statute; Arts 31, 32 ITLOS Statute). Before the ICJ, states have the right to intervene (the Court has to grant the right when a state chooses to exercise it) if the case involves interpretation of a treaty that it is a party to, and they have the right to request intervention (the Court has discretion on whether to grant it) when their rights could be affected by the decision.

e. Counter-Claims

The ICTs are not limited to considering claims raised by the party which applied to them but can also address claims raised by the responding party. These can be entertained if they are within the jurisdiction of the Court and are directly connected to the subject matter of the dispute (ICJ Rules, Art 80, ITLOS Rules 98.1). If a counter-claim is brought by the respondent state, the applicant can raise a preliminary objection.

f. Establishig the Facts

To consider the merits, the ICTs have to establish the facts to be able to apply the law to them.

*evidence*

In addition to parties presenting evidence, ICTs have different tools at their disposal, such as site-visits, commission expert opinions (ICJ Statute Art 50), calling for evidence to be produced, and issue rules and practise directions.

v. Outcome

Judgments are final and legally binding on the parties to the specific dispute, and formally do not have the power of precedents (ICJ 59-60, UNCLOS 296). This stems from the res judicata principle, which ‘signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose.’ The binding nature of the judgments does not apply to states which had intervened through a request approved by the ICJ. The judgments contain ‘the date on which it is read; the names of the judges participating in it; the names of the parties; the names of the agents, counsel and advocates of the parties; a summary of the proceedings; the submissions of the parties; a statement of the facts; the reasons in point of law; the operative provisions of the judgment; the decision, if any, in regard to costs; the number and names of the judges constituting the majority; a statement as to the text of the judgment which is authoritative‘ (Art 95.1 ICJ Rules, Art 125 ITLOS Rules).

ICTs generally allow for individual opinions to be appended by the judges, a possibility often used especially at the ICJ. A claim that is upheld engages legal consequences for the unsuccessful party, in line with remedies following the responsibility of states for internationally wrongful acts.  If a party refuses to implement a binding judgement of the ICJ, the successful party has recourse to the UN Security Council that can make recommendations according to the UN Charter (Art 94.1).

vi. Post-Adjudicatory Proceedings

There are limits to the principle of finality of judgments that safeguard the sound administration of justice. If one or both parties consider that there is a dispute as to the meaning or scope of the judgment, they can generally request its interpretation (ICJ Art 60, ITLOS Art 33). The necessary consent to jurisdiction over interpretation is supplied from jurisdiction over the original case, there is no need to prove the dispute in the sense of showing prior diplomatic negotiations, and the request´s object has to be interpretation, not seeking an appeal or re-hearing of the case (Chorzow). The power to interpret is accordingly narrowly construed to clarify the operative parts of the judgment if their meaning is obscure or appears contradictory.

Moreover, revision of the judgment might be possible to take into account decisive new evidence that was unknown to the party and the ICT at the time when the judgment was rendered (ICJ Art 61, ITLOS Art 179, ICSID 51). Here, the WTO DSU is another exception since it does not grant express powers of revision or interpretation. For example, before the ICJ, revision proceedings are commenced by a judgment which recognises the existence of the new facts, their decisive character, and the admissibility of the application (61, ITLOS Rule, ICSID 51.1). The necessary requirements are the discovery of the new facts in existence at the time of the judgment, that they are decisive, were unknown to the party claiming them as well as the ICT at the time of the judgment (PCA-end of oral proceedings), which was not due to negligence of that party, and that the time limits for requests are met (as in line with the res judicata principle, the judgments are not subject to unlimited uncertainty).

*After responsibility for an internationally wrongful act has been found, there is another type of post-adjudicatory proceedings concerning the determination of reparation to be given.*

These proceedings result in a new case and are not the continuation of the previous one. However, the consent to jurisdiction in the original case the proceedings are derived from also extends to them.

Further Readings

• Laurence Boisson de Chazournes, Marcelo Kohen, and Jorge E. Viñuales (eds), Diplomatic and Judicial Means of Dispute Settlement (Martinus Nijhoff Publishers 2012)
• Gary B Born, International Arbitration: Law and Practice (3rd ed, Wolters Kluwer 2021)
• Tony Cole and Pietro Ortolani, Understanding International Arbitration (Routledge 2020)
• John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (OUP 1999)
• ICJ, The Permanent Court of International Justice / La Cour permanente de Justice internationale / El Tribunal Permanente de Justicia Internacional (2012)
• Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (CUP 2005)
• Robert Kolb, The International Court of Justice (Hart 2013)
• Sven MG Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation (TMC Asser Press 2008)
• Sven MG Koopmans, Negotiating Peace: A Guide to the Practice, Politics, and Law of International Mediation (OUP 2018)
• John Merrills and Eric De Brabandere, Merrills' International Dispute Settlement (7th ed, CUP 2022)
• Mary Ellen O'Connell, Anna Spain Bradley and Amy J. Cohen, International Dispute Resolution: Cases and Materials (3rd ed, Carolina Academic Press 2021)
• David Palmeter, Petros C Mavroidis and Niall Meagher, Dispute Settlement in the World Trade Organization: Practice and Procedure (3rd ed, CUP 2022)
• Cesare Pr Romano, Karen J Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2014)
• Yoshifumi Tanaka, The Peaceful Settlement of International Disputes (CUP 2018)
• The Registrar of the International Court of Justice, The International Court of Justice Handbook (2018)
• Hugh Thirlway, The International Court of Justice (OUP 2016)
• UN Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (UN 1992)
• Andreas Zimmermann and Christian J Tams, The Statute of the International Court of Justice: A Commentary (3rd ed, OUP 2019)

Conclusion

• Summary I
• Summary II