Methods of Resolution
Disputes between States are not usually settled by judicial means. Diplomacy is a process of negotiation or mediation between States. It is commonly used to informally resolve disputes. It may also be used in disputes between States and international institutions.
Negotiation involves settlement by discussion and compromise. Negotiation may take place through diplomatic means or through particular authorities or bodies.
Mediation involves a third party who liaises and transmits proposals between the parties. The mediator may also make his own proposals. The mediator uses his good offices with a view to facilitating an agreed solution. Mediation may take place only with the consent of the parties. The mediator must be an acceptable third party.
A mediator may make a formal investigation of a proposal and take a more proactive approach. This process is referred to as conciliation.
Commissions of Inquiry
Inquiries may be used to resolve disputes between states where they arise in relation to matters of fact. The Hague Convention on the Pacific Settlement of International Disputes promoted the use of Commissions of Inquiry to determine facts between the States.
The Second Hague Convention 1907 on the Pacific Settlement of International Disputes provided more extensive and less restrictive rules for Commissions of Inquiry. States could agree in advance to be bound by the result of the inquiry.
Commissions of Inquiry are sometimes established by treaties between States. Commissions of Inquiry are less common in modern times than was formerly the case.
Disputes between states or intergovernmental organisations which cannot be resolved by negotiation, diplomacy, or mediation may be referred to a tribunal for dispute resolution. Examples are the International Court of Justice and the dispute resolution panel of the World Trade Organisation. They may be referred to ad hoc arbitration entities.
Disputes between private persons and States or organisations are usually heard in domestic courts or by an arbitration body, such as the International Centre for the Settlement of Investment Disputes.
The International Court of Justice is the judicial branch of the United Nations. It sits in The Hague. The Court settles disputes submitted by states in accordance with international law. It also gives opinions on the questions referred to it by certain organs and agencies.
The International Court of Justice comprises 15 judges elected for nine-year terms. They are elected by the United Nations, General Assembly and Security Council. They do not represent the government which nominates them and are wholly independent of them.
The United Nations Charter confirms that all members of the United Nations are automatically party to the Statute of the International Court of Justice. Others may adhere to it without being members, but they must abide by the Court’s decisions if they do so.
The International Court of Justice may hear a contentious case. The States must recognise its jurisdiction. This is usually done on a case-by-case basis under a special agreement to let the Court decide the case. Sometimes disputes resolution forums are made permanent in bilateral or multilateral treaties.
Limits to Binding
Most States have placed conditions and restrictions on the extent to which they are bound by the decision of the Court other than in cases to which they specifically submit to jurisdiction. Generally, states are obliged to respond to a suit brought against it only if the State bringing the suit has also accepted the jurisdiction of the Court. Where both States have limited jurisdiction, the ICJ may hear a case only to the extent that both States have agreed to the same matters.
Under the principle of self-judging reservation, states may avoid the court’s jurisdiction previously accepted if they decide not to respond to a particular suit. It is commonly exercised when a state determines that a particular dispute is of domestic rather than international character, and thus domestic jurisdiction applies.
If a state invokes the self-judging reservation, another state may also invoke this reservation against that state, and thus a suit against the second state would be dismissed. This is called the rule of reciprocity and stands for the principle that a state has to respond to a suit brought against it before the ICJ only if the state bringing the suit has also accepted the court’s jurisdiction.
Types of Adjudication
The type of disputes heard by the ICJ includes such matters as disputes over fishing and border disputes. Commercial disputes are not commonly heard.
Advisory jurisdiction allows courts to give opinions on the issues of international law at the request of the United Nations or some of its agencies. This may not be done to make a State party to a dispute without its consent.
A decision of the ICJ has binding force only in respect of the parties to the case. They have limited precedent value. The Court is not bound by its earlier decision. However, as regards the parties to the dispute, the judgment is final and not subject to appeal.
States generally comply with the judgments of the Court voluntarily. There is no method to compel enforcement of a judgment. Under the United Nations Charter, the party in whose favour the judgment is made may have recourse to the Security Council which may make recommendations for measures to give effect to the judgment. This has not been done in practice.
International Criminal Court
The International Criminal Court is a permanent court dealing with serious criminal offences affecting the international community generally. It is governed by its own statute. More than half of the states in the world have acceded to the instrument which establishes the court.
The Court may hear cases against individuals in relation to genocide, war crimes, and wars against humanity and assist in any such matters. This includes military commanders and other superior officers as defined.
The accused must be a national of a State which is a party to the Statute. The crime must take place in the territory of the state party. The jurisdiction applies to matters occurring since 1st July 2002.
The case may not be heard if it may be heard by a State within its jurisdiction. If, however, the State concerned is not willing to investigate or prosecute, the Court may take jurisdiction.
The World Trade Organisation implements rules of international trade between the States. The rules may be in WTO agreements, including the General Agreement on Trade and Tariff, General Agreement on Trade and Services and Agreement on Trade-Related Aspects of Industrial Property Rights.
The WTO dispute resolution process is governed by the understanding on the rules and procedures covering the settlement of disputes. See separately in relation to the World Trade Organisation and its dispute settlement procedures.
States are encouraged to resolve disputes by conciliation. Under the WTO agreement, States are obliged to partake in conciliation. A dispute may be referred as below if a member fails to respond to a request for conciliation or fails to engage within a certain period.
A WTO dispute settlement body is established. The dispute settlement bodies may be the Dispute Settlement Body, the Dispute Settlement Panel, or the Appellate Panel.
The International Centre for the Settlement of Investment Disputes was created in 1965. It is sponsored by the International Bank for Reconstruction and Development, known as the World Bank. The Bank’s purpose is to encourage investment in less developed countries. It provides a mechanism for resolving disputes between investors and countries of investment, including in particular relating to forced appropriation.
The body has an Administrative Council, Secretaries and two Panels of Experts. It is made up of representations of the State parties and is chaired by the President of the World Bank. It adopts its own rules regarding conciliation and arbitration. The Council chooses Panels of Arbitrators and Conciliators from nominees presented by the Member States.
The private investors and the State party may agree on the rules governing the arbitration. The third-party States, including the private party, may not intervene.
ICSID Arbitration Tribunals may only decide matters arising out of an investment. The jurisdiction of the Centre extends to disputes arising out of an investment. There is no definition of investment. It has a common meaning and is broadly defined.
Agreement to an ICSID arbitration excludes other remedies. The case cannot be tried in any domestic or international court thereafter as far as it would have jurisdiction.
There is a range of choices in the selection of arbitrators. The parties may agree on any number, but it must be an odd number. They may be persons agreed upon by the parties.
Civil courts of states sometimes determine international disputes. They may include civil wrongs and crimes where the wrongful act did not occur in the State hearing the case.