WEEK 1 - INTRODUCTION TO INTERNATIONAL COURTS AND TRIBUNALS
LECTURE 1
what is international dispute settlement?
wide range of disputes:
- bilateral (two states) or multilateral (more parties) disputes
o bilateral disputes on maritime boundaries
o but also multilateral South China Sea case
- factual/legal disputes
o factual: just about what happened (series of events/one particular event)
o legal: what the law is/whether it exists at all
- wide range of subjects as well
- no rule in IL that disputes must be settled
o total free to let disputes exist
o but if they do decide to settle, obliged by PIL to do so peacefully
o art. 2(3) & (4) 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
o instead, the use of art. 33 UN Charter
- art. 33 UN Charter
o The parties to any dispute, 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
o The Security Council shall, when it deems necessary, call upon the parties to
settle their dispute by such means.
- non legal methods: resolution is not reached on the basis of the law (solution more on
the basis of politics, finances)
- legal methods: based on the law (arbitration/judicial settlement)
spectrum ranges from no third parties at all (negotiations) to high third party
involvement (judicial settlement)
no hierarchy between these methods and can be used simultaneously
it does not contain entirely ‘like’ things, different methods of settlement and then
mentions the resort to regional agencies or arrangements, so different institutions
,range of methods listed (non-legal and legal)
non legal:
- enquiry: process by which disputed facts are clarified by ad-hoc commission
o value lies in establishing an impartial record of the facts, which helps establish
fault and causation, and how to calculate loss and injury
- conciliation: further formalized the role of the third party, which may investigate a
dispute and propose a solution, usually thought the submission of a non-binding final
report to be considered by the parties
o third party values the facts and law (more holistic approach)
o sounds more like arbitration/adjudication
enquiry and conciliation produce non-binding outcomes
legal methods:
- arbitration is a procedure for the binding settlement of a dispute through the
application of legal rules by decision-makers who are selected by and with the
participation of the disputing parties
o high degree of control over who hose decision makers are
o ad hoc/temporary, as decision makers are only involved in that particular case
- adjudication also involves a procedure for the binding settlement of a dispute
through the application of legal rules, but decision-makers are members of a
permanent institution
litigation does not mean that dispute is settled
- eg North Sea Continental Shelf (just wanted the court to tell them how to draw the
line, not what the line was)
- sometimes we don’t always seek compliance
- in rare cases it could cause of the problem going forward
why use a binding method?
- one of the parties really think that they have a strong legal case
- small state can use this to rebalance the power rebalancing difficult in negotiations
- bringing case helps to force the other party back to the negotiating table
- given course of action could help provide political cover at the domestic level
Shirley Scott article
international Court of Justice
- established in 1945 at the same time with the UN
, o principle judicial order
o ICJ Statute is annexed to the UN Charter
o one of main organs of the UN (next to SC/GA)
o The Hague (instead of New York): predecessor was PCIJ (1922, but in
association with the League of Nations), also located here
- ICJ unique:
o oldest standing international court
o subject matter jurisdiction of the whole field of PIL (general jurisdiction)
o important role in the field of the development of PIL
composition of the bench
- arts. 2,3,9 ICJ Statute
o high moral character
o qualification of their country for highest court or jury councils
o representative body should represent different legal regions the world
- practical composition
o 3 seats for African judges
o 2 Latin America/Caribbean
o 3 from Asia
o 5 Western Europe
o 2 Eastern Europe
European emphasis?
o always 5 nationals of P5, but practice broke down in 2018
- election of judges (arts 8 & 10 ICJ Statute)
o for 9 years
o elections every 3 years (preventing for judicial memory)
o PCA National Groups (art. 6): looks at possible candidates and proposes
• election is simultaneous voting (GA and SC, absolute majority)
o when not member of PCA, also allowed to set up own National Group
o unusual for them to have judicial background
- judges are not representatives of their home state
- judges ad hoc
o when state does not have one of its nationals on the bench, then it can
choose one
o does not have to have to have the nationality of the requesting state
o role has faced criticism
, • judgements tend to align with the arguments of the appointed states
• where there are two judges ad hoc (both parties): they. tend to cancel
each other out
• Cecily: still valuable confidence that states have in the process
(that judges ad hoc will take arguments seriously)
- Chambers (art. 26)
o 5 members
o to move more efficiently with the number of cases, but parties have to request
these Chamber
o but parties tend to value having all 15 members more than only 5 (possibility
to choose their own judges) tended to look more like arbitration tribunal
o so discontinued in 2016
contentious jurisdiction
- more weight
- jurisdiction to decide legal disputes submitted to the Court by States
- limited to states alone (art. 34 ICJ Statute)
o individuals, NGO’s, state-like entities, IO’s are left out
- judgements are binding
non-contentious jurisdiction: Advisory Opinions
- court limited to giving advisory opinions on legal questions, and have to be brought
by a very limited number of agencies
o UNGA (mostly); UNSC; Specialized agencies authorized by GA
o art 96 UN Charter
- AO’s are not binding
- in practice however:
o states could be involved in the AO request, because they are party to GA, but
there has to be enough support
o many recent ICJ AOs have related to ongoing disputes between states
• eg Chagos Archipielago AO; Israel Wall; Kosovo Independence
INTER-STATE ARBITRATION
in the 1800s Arbitration became a popular way to solve disputes
LECTURE 1
what is international dispute settlement?
wide range of disputes:
- bilateral (two states) or multilateral (more parties) disputes
o bilateral disputes on maritime boundaries
o but also multilateral South China Sea case
- factual/legal disputes
o factual: just about what happened (series of events/one particular event)
o legal: what the law is/whether it exists at all
- wide range of subjects as well
- no rule in IL that disputes must be settled
o total free to let disputes exist
o but if they do decide to settle, obliged by PIL to do so peacefully
o art. 2(3) & (4) 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
o instead, the use of art. 33 UN Charter
- art. 33 UN Charter
o The parties to any dispute, 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
o The Security Council shall, when it deems necessary, call upon the parties to
settle their dispute by such means.
- non legal methods: resolution is not reached on the basis of the law (solution more on
the basis of politics, finances)
- legal methods: based on the law (arbitration/judicial settlement)
spectrum ranges from no third parties at all (negotiations) to high third party
involvement (judicial settlement)
no hierarchy between these methods and can be used simultaneously
it does not contain entirely ‘like’ things, different methods of settlement and then
mentions the resort to regional agencies or arrangements, so different institutions
,range of methods listed (non-legal and legal)
non legal:
- enquiry: process by which disputed facts are clarified by ad-hoc commission
o value lies in establishing an impartial record of the facts, which helps establish
fault and causation, and how to calculate loss and injury
- conciliation: further formalized the role of the third party, which may investigate a
dispute and propose a solution, usually thought the submission of a non-binding final
report to be considered by the parties
o third party values the facts and law (more holistic approach)
o sounds more like arbitration/adjudication
enquiry and conciliation produce non-binding outcomes
legal methods:
- arbitration is a procedure for the binding settlement of a dispute through the
application of legal rules by decision-makers who are selected by and with the
participation of the disputing parties
o high degree of control over who hose decision makers are
o ad hoc/temporary, as decision makers are only involved in that particular case
- adjudication also involves a procedure for the binding settlement of a dispute
through the application of legal rules, but decision-makers are members of a
permanent institution
litigation does not mean that dispute is settled
- eg North Sea Continental Shelf (just wanted the court to tell them how to draw the
line, not what the line was)
- sometimes we don’t always seek compliance
- in rare cases it could cause of the problem going forward
why use a binding method?
- one of the parties really think that they have a strong legal case
- small state can use this to rebalance the power rebalancing difficult in negotiations
- bringing case helps to force the other party back to the negotiating table
- given course of action could help provide political cover at the domestic level
Shirley Scott article
international Court of Justice
- established in 1945 at the same time with the UN
, o principle judicial order
o ICJ Statute is annexed to the UN Charter
o one of main organs of the UN (next to SC/GA)
o The Hague (instead of New York): predecessor was PCIJ (1922, but in
association with the League of Nations), also located here
- ICJ unique:
o oldest standing international court
o subject matter jurisdiction of the whole field of PIL (general jurisdiction)
o important role in the field of the development of PIL
composition of the bench
- arts. 2,3,9 ICJ Statute
o high moral character
o qualification of their country for highest court or jury councils
o representative body should represent different legal regions the world
- practical composition
o 3 seats for African judges
o 2 Latin America/Caribbean
o 3 from Asia
o 5 Western Europe
o 2 Eastern Europe
European emphasis?
o always 5 nationals of P5, but practice broke down in 2018
- election of judges (arts 8 & 10 ICJ Statute)
o for 9 years
o elections every 3 years (preventing for judicial memory)
o PCA National Groups (art. 6): looks at possible candidates and proposes
• election is simultaneous voting (GA and SC, absolute majority)
o when not member of PCA, also allowed to set up own National Group
o unusual for them to have judicial background
- judges are not representatives of their home state
- judges ad hoc
o when state does not have one of its nationals on the bench, then it can
choose one
o does not have to have to have the nationality of the requesting state
o role has faced criticism
, • judgements tend to align with the arguments of the appointed states
• where there are two judges ad hoc (both parties): they. tend to cancel
each other out
• Cecily: still valuable confidence that states have in the process
(that judges ad hoc will take arguments seriously)
- Chambers (art. 26)
o 5 members
o to move more efficiently with the number of cases, but parties have to request
these Chamber
o but parties tend to value having all 15 members more than only 5 (possibility
to choose their own judges) tended to look more like arbitration tribunal
o so discontinued in 2016
contentious jurisdiction
- more weight
- jurisdiction to decide legal disputes submitted to the Court by States
- limited to states alone (art. 34 ICJ Statute)
o individuals, NGO’s, state-like entities, IO’s are left out
- judgements are binding
non-contentious jurisdiction: Advisory Opinions
- court limited to giving advisory opinions on legal questions, and have to be brought
by a very limited number of agencies
o UNGA (mostly); UNSC; Specialized agencies authorized by GA
o art 96 UN Charter
- AO’s are not binding
- in practice however:
o states could be involved in the AO request, because they are party to GA, but
there has to be enough support
o many recent ICJ AOs have related to ongoing disputes between states
• eg Chagos Archipielago AO; Israel Wall; Kosovo Independence
INTER-STATE ARBITRATION
in the 1800s Arbitration became a popular way to solve disputes
