Chapter 3: Dispute Settlement in International Law

Introduction

In light of fundamental principles of international law, the international community has developed political and territorial limits to States, immunities from the jurisdiction of States, international responsibility for breaches of international law and the principles and methods governing the peaceful settlement of disputes between States over the years. Today, dispute settlement mechanism in international law is one of the substantial tools for the protection and maintenance of international peace and security. For this reason, it has developed and institutionalized by international legal instruments, international and regional organizations.

As a result of this development, there are two groups of mechanisms for the settlement of disputes at the international level: Those established by public international law and those by private international law. From a legal and practical perspective, the two are different in terms of their scope and functions. Disputes arising from sovereign activities of States are subject to public international law. However, the disputes arising from the activities that States act as private persons are subject to private international law. In this chapter, disputes settlement mechanisms for the disputes concerning public international law are addressed.

The Concepts of Dispute and Dispute Settlement

According to the Covenant of League of Nations, there were three elements of international disputes: a) the interpretation of a treaty, b) any question of international law, c) a breach of any international obligation (Article 13/2).

Later the Statute of the International Court of Justice (ICJ) has reflected previous approaches to international dispute. In Article 36/2 of the Statute the elements of the international dispute are defined as: “All legal disputes concerning: a) the interpretation of a treaty, b) any questions of international law, c) a breach of an international obligation, d) the nature or extent of the reparation to be made for the breach of an international obligation.”

Dispute settlement mechanism had two characteristics such as non-peaceful and peaceful. Till the beginning of 20th century, resort to war was a natural right of States for settlement of their disputes. Peaceful settlement of disputes was an option for States as an alternative to war. During this period, States engaged in resolving their disputes through bilateral or ad hoc mechanisms. For instance, diplomatic negotiations were one of them. Peaceful settlement of disputes is not an optional choice of States anymore, it has become a general international rule in international law. Today, States have an international obligation to seek a resolution to their dispute which has the potential to endanger international peace and security. However, they should settle their disputes peacefully and cooperate in dispute settlement.

States are free to choose which dispute settlement method they want to use to resolve their disputes. Therefore, States can resolve their dispute by any means they agreed on as long as the method is peaceful. The methods of dispute settlement mechanism in international law includes judicial mechanisms (courts, tribunals, arbitral panels), and other quasi-judicial, legal or extra-legal mechanisms (committees, inspection panels, ombudsmen, etc.). There is no hierarchy between any methods of dispute settlement as well as between tribunals or courts. This is why, there is no appealing system in international law.

International Legal Instruments Regarding Dispute Settlement

States have concluded several multilateral instruments regarding dispute settlement in international law since the end of the 19th century. The 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes are the initial instruments for dispute resolution. According to these two foundational Conventions, States agree, a) to obviate to recourse to use of force in their relations as much as possible, and b) to make their best efforts to ensure the pacific settlement for their disputes.

The UN Charter encourages States to settle their disputes through peaceful methods. As for peaceful settlement of disputes, Chapter VI of the UN provides a guide to States regarding the methods to be used. In addition to the Chapter VI of the UN Charter, UN General Assembly endorsed the peaceful settlement of disputes in the 1975 Declaration on Principles of International Law Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations and in the 1982 Manila Declaration on the Peaceful Settlement of International Disputes.

The instruments underline the importance of protection of international peace and security based on freedom, equality, justice and respect for human rights and peaceful co-existence. Both instruments highlight the following similar principles regarding dispute settlement: a) Principle of non-use of force in international relations; b) Principle of non-intervention in the international or external affair of states; c) Principle of equal rights and self-determination of peoples; d) Principle of sovereign equality of states; e) Principle to act in accordance with international law regarding the sovereignty of states, independence and territorial integrity of states; f) Good faith in international relations; g) Principles of justice and International Law.

The United Nations Charter and Dispute Settlement

Dispute settlement in international law is divided into three categories: Institutional, diplomatic, and adjudicative. Institutional method involves an international organization that has instruments for dispute settlement. According to this classification, the UN maybe considered as an institutional dispute settlement body. In the UN system, the Security Council, the General Assembly, and the Secretariat have an active role for peaceful dispute settlement. As an institutional dispute settlement body, one of the main purposes of the UN is to maintain peace and security. For this purpose, the settlement of disputes between States by peaceful means has become one of the founding principles of the UN (Article 2/3). In the light of the principle, Chapter VI of the Charter is devoted to the provisions on peaceful settlement of disputes.

The Chapter entitled “Pacific Settlement of Disputes” obliges the parties of the dispute to seek a solution because the Chapter aims to avoid the continuance of the dispute (Art. 33/1). According to Article 33/2, the Security Council shall also invite parties to settle their disputes by any means.

The Council may take the initiative to investigate any situation which might turn into a dispute in order to avoid endangering the maintenance of international peace and security. The Security Council may send a fact-finding mission to the relevant State/States. Furthermore, it is provided that not only the UN Security Council but also any member of the UN may bring any dispute before the Security Council or the General Assembly (Article 34). Not only the Security Council but also any State which is not a member of the UN may draw the attention of the Security Council or General Assembly to any dispute referred to in Article 34 (Article 35). In addition to Article 35 of the UN Charter, Article 99 regarding the Secretariat should also be considered. In general, the Secretary- General is assigned to bring any matter to the attention of the Security Council, if s/he thinks that the situation might threaten the maintenance of international peace and security.

Due to Article 36, the Security Council may recommend appropriate procedures or methods and should consider any settlement procedure which has been already adopted by the parties. The Security Council should also consider recommending the submission of the dispute to the ICJ as a dispute settlement procedure. In the case of failure of the settlement of the dispute, parties shall inform the Security Council, and the Council evaluates the situation. If the dispute is likely to endanger international peace and security, the Council should make a recommendation to settle the dispute. It should recommend a method which it considers as appropriate (Article 37). Furthermore, if parties of the dispute request so, the Security Council may make recommendations with a view to a pacific settlement of the dispute (Article 38).

Methods of Dispute Settlement in International Law

In Chapter VI Article 33/1, some methods for the resolution of disputes are addressed such as Negotiation, Inquiry, Mediation, Conciliation, Arbitration, Judicial Settlement or any other peaceful means that parties agreed on. However, dispute settlement methods are not limited to the methods mentioned in this Article 33/1. These methods are the most common methods used for the settlement of disputes. Among these settlement methods, negotiation, inquiry, mediation, conciliation are diplomatic dispute settlement methods, whereas arbitration and judicial settlement are adjudicative methods.

Negotiation

Negotiation is the direct and friendly settlement of disputes between the parties. Some of the international texts uses the term diplomacy or diplomatic channels instead of negotiation. Besides, consultations and exchange of views are the different forms of negotiations. Negotiation is one of the favorable dispute settlement mechanism as it gives flexibility to the parties to solve the dispute according to legal or/and political criteria. It involves direct communication and bilateral process between the parties that seek reaching a mutually accepted resolution without any time limit. It is defined as an effective method by the Manila Declaration because it often succeeds to resolve the dispute. Even though negotiation fails, it clarifies the dispute between the parties and positions of both parties.

Good Offices and Mediation

Negotiations may not help to resolve the issues between States. In that case a third party may offer its good offices to prevent increasing tension between States regarding the dispute. This does not mean that parties should negotiate their disputes before good offices. The third party which offer good office may be a State, Group of States, an international or regional organization and so on. The method aims to provide communication between parties and facilitate the efforts of dispute settlement (Handbook, 33: 1992). Mediation refers to direct negations in front of a neutral mediator. The functions of the mediator are to invite parties to negotiate the dispute and to assist parties to a settlement. Mediator has an active role among the dispute parties; s/he may propose a solution that is mutually acceptable by the parties and forward the proposals of each party to the other. However, s/he does not have a legal power to force the parties to reach an agreement. It is up to the dispute parties to resolve the issue at the end of the mediation period.

Inquiry/Fact-Finding

Disputing parties may agree to investigate the issue which they have different point of views, or any other aspect of the dispute in order to reach an appropriate resolution. This process is called inquiry or fact-finding. Inquiry may be used an independent dispute settlement mechanism, but it also can contribute to other means of dispute resolution. Inquiry, may not only facilitate the settlement of a dispute, but also contribute to reduce tension or prevent of an international dispute in the future.

Conciliation

Conciliation is another third-party settlement consisting of inquiry and meditation. It is more formal than the mediation. Besides the process is stricter as well. In the process, the dispute is referred to an established organ, and the conciliator is appointed by the parties. Usually it is composed of three or five conciliators, and one of them is chosen by both parties. In order to perform conciliation, conciliators shall form a commission. The commission adopts its own procedure. Conciliation helps disputing parties to understand each other’s case through investigation and evaluation all of aspects of the dispute. The duty of the conciliators is to define the facts and recommend the solution to settle the dispute. Conciliators prepare a report including the recommendation for the solution. In principle, the conciliation report is not binding. However, parties of the dispute may agree the otherwise, or a treaty in force between the parties may create a compulsory and binding conciliation method.

Resort to Regional Agencies or Arrangements

In Article 33 of the UN Charter, regional arrangements and agents have been shown as one of the dispute settlement methods. Further, Articles 52-54 of the UN Charter contains some provisions on regional arrangements. Article 52 of the Charter proposes that the members of the UN can involve in the activities of regional arrangements or agencies for the maintenance of international peace and security. The member States which enter to such arrangement or agencies shall make all necessary efforts to settle the local issue throughout procedures of the regional arrangement or agency in the first place. Then, the Security Council can be referred to if the settlement of the local dispute fails. At the regional level, there are several regional organizations which have enacted their treaties regarding dispute settlement and established their mechanisms. For instance, the Council of Europe has European Court of Human Rights, the European Union has the Court of Justice of the European Union, NATO offers fact-finding, inquiry, mediation, conciliation or arbitration, Organization of American States has InterAmerican Court of Human Rights, and the African Union has established the Court of Justice.

Arbitration

Arbitration is a third-party settlement procedure. As defined by Article 15 of the 1899 Hague Convention, arbitration is “the settlement of differences between states by judges of their own choice, and on the basis of respect for the law.” Generally territorial and boundary disputes, disputes concerning interpretation of bilateral or multilateral treaties, disputes relating to violation of international law are subject to arbitration. In order to apply arbitration as a dispute settlement procedure, the parties should agree on such a method. Consent to arbitration may be given before or after the occurrence of the dispute. Besides, it should also be provisioned by a treaty as a settlement mechanism for disputes arising from the interpretation or implementation of the relevant treaty. Arbitral organ is established on ad hoc basis by disputing parties. Generally, it consists of three arbitrators, two of which are appointed by each party, whereas the third one is appointed mutually. The decision of the arbitration organ may be adopted by a majority of vote. Some arbitration tribunals give right to file a dissenting opinion as well. The decision of the arbitration process is called award. Award of arbitration is binding, final, and cannot be appealed. Some arbitration awards may be subject to correction, revision, or interpretation.

Judicial Settlement

Judicial settlement is a third-party dispute settlement mechanism like arbitration. Arbitration has ad doc nature, composed of selected arbitrators on the basis of a concrete dispute whereas judicial settlement is performed by a pre- constituted institution. The Court is located in a certain place, judges are appointed and the rules of the judicial procedure is fixed. As for all of dispute settlement mechanisms, States shall consent to submit their dispute to a judicial body. Like arbitration award, decision of judicial bodies is binding, final and cannot be appealed. At the international level, Permanent Court of International Justice (PCIJ), International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS), International Criminal Court (ICC), ad hoc Criminal Tribunals are some of the examples of the judicial settlement organs. The ICJ has jurisdiction on any legal issue as long as it is international. However, the other Courts mentioned are specialized Courts on specific subjects.

The International Court of Justice as a Dispute Settlement Mechanism

The ICJ is the most experienced court among the other courts mentioned above. It is one of the principal organs of the UN. The ICJ is composed of 15 judges, and they are appointed for nine years. None of them may be from the same State. The judges are selected by the UN General Assembly and the UN Security Council together. Judges should carry the qualifications, but also the representation of the main forms of civilization and of the principal legal systems of the world should be assured by the electors. The ICJ has two main functions. On the one hand, it is a body to resolve legal disputes between States, on the other hand it may also give advisory opinions on the legal questions requested by the UN organs and specialized agencies.

Contentious Cases

The function of the ICJ is to resolve international disputes between States. To make it clear, the disputes should be international as stated in article 36/2 of the Statute of the ICJ. According to 36/2, the Court has the jurisdiction in all legal disputes concerning:

• the interpretation of a treaty;
• any question of international law;
• breach of an international obligation;
• the reparation for the breach of an international obligation.

Only States are allowed to submit their disputes for this function of the Court. Another point here is that the State should be a party of the Statue of the ICJ. States Parties of the UN Charter automatically become the State Party of the Statue. States which are not a party to the UN Charter may also ratify the Statue separately in order to submit a case before the Court. There is no limitation on the number of parties of a case before the ICJ. Therefore, dispute parties can be more than two States.

Advisory Opinion

The court may give an advisory opinion on any legal question which is requested by the UN organs and specialized agencies of the UN. The advisory opinion cannot be requested by States or any other international subjects. According to Article 96/1 of the UN Charter, the General Assembly and the Security Council may request an advisory opinion on any legal question. However, the request for an advisory opinion is limited for specialized agencies. They can only request advisory opinions on a legal question regarding their activities. The question should be abstract, and not address a specific dispute. Requests must also relate to an abstract legal question and not a particular dispute. Within the request of the question, States and organizations are invited to present their written or oral statements. The advisory opinion of the Court is not binding.