INTERSTATE LITIGATION AND ARBITRATION

Question 1

The principe of peaceful settlement of disputes (introduction)

Answer 1

In the history of international law, the PSD is a recent phenomenon (WWII). -> its because of its recognition that international courts and tribunals have developed. But there are rather unknown because :

• the recourse to a court is subsidiary = it is not the primary way to settle a dispute, states will first negotiate and litigation is used as the last option.
• International law has its own logic : the settlement of disputes requires the consent of all the parties to the dispute. It is impossible to have recourse of a tribunal without the consent of the States.

Question 2

The peaceful settlement of disputes (sources)

Answer 2

For a long time, PSD was a mere option for States. But it has evolved into a general obligation :

• The Hague Convention on the pacific settlement of disputes : settle a general objective of obviating the recourse of force in interstates relations («their best efforts»).
• Art 2 §3 the UN Charter : establish a legal obligation for state to settle their disputes by peaceful means («shall») + art 33 draw up a list of those peaceful means (négociation, mediation, conciliation, arbitration, judicial settlement..).
• The UN General Assembly Resolution 2626 : codifies customary law.
• ICJ, judgement in the case obligation to negotiate access to the Pacific Ocean : freedom of choice in the means used to settle the dispute.

Question 3

The corollary of the PSD

Answer 3

The PSD is the corollary of the prohibition of the use of force. Before WWII, States couldn’t reach a universal prohibition of the use of force, so they regulated it instead :

• regulation if the humanitarian law (Creation of the Red Cross after Solférino battle).
• Briand Kellogg Pact : the first to have a legal and general obligation of prohibions the use of force.
• Article 2 §4 of The UN Charter : pillar of the prohibition of the use of force. General prohibition, but not an unconditional principle : (can be violated with the autorisation of the UN Security Council or in case of self-defense art 51)

Question 4

The goals of the PSD principle

Answer 4

It’s more about creating the conditions to avoiding the attractiveness of the use of force that achieve the end of war strictly speaking.

The PSD, either in international disputes or in individual matters, works as a tool to achieve peace amongst States and amongst people, it’s not a goal itself. BUT it’s not perfect : every disputes are not quickly solved and are still numerous, mostly concerning sovereignty about lands.

Question 5

The substantive obligations arising from the PSD principle

Answer 5

• PSD arises an obligation of conduct
• But States have freedom to choose the mechanisms to settle their disputes
• that are very diversified

Question 6

An obligation of conduct

Answer 6

Obligation of conduct means that

• ICI, Bolivia-Chile case : PSD does not require State to achieve a definitive solution to the dispute, it only requires them to do it by peaceful means and not to find a settlement
• UNLESS
  • there is a special agreement between the parties to seek a final solution).
  • in the international law of the sea field : States are under an obligation of result. article 275 of the UN Convention on the law of the sea : “States shall settle their disputes”. -> So they have to recourse to a judicial settlement if they can’t find a negotiate solution (+ Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean).
• ICJ, North Sea Continental Shelf Case : PSD principle is an obligation at the very least to negotiate in good faith. Negotations must be meaningful.

Question 7

The freedom to choose the mechanisms to settle a dispute

Answer 7

States have a complete freedom to chose the mechanisms they find adequate to settle their dispute, there is no hierarchy between the means dedicated to the PSD of article 33 of the UN charter.

• BUT that freedom to choose is subsidiary : States can always adopt a specific agreement that would bind them in the use of a specific mechanism = compromissory clause ; some specific system have their own judicial mechanisms (WTO - World Trade Organisation).

Question 8

The variety of mechanisms to settle a dispute peacefully

Answer 8

There are 2 types of mechanisms :
- diplomatic mechanisms
- judicial mechanisms

Question 9

The diplomatic mechanisms

Answer 9

The most flexible mechanisms, they do not necessarily apply the law :

• negotiation : direct exchange of views or arguments between the parties without any third party to help them.
• good offices : there is a third party, who’s role is very limited. It’s not here to offer a solution, but only for discussion. It will only help the parties to seek a settlement of the dispute.
• mediation : there is a third party that will have a more important role ; after hearing the parties, it offers a potentiel solution that is not binding them.
• conciliation : it’s much more formalised : the third party can even be the organ of an international organisation and will act in conformity with a specific procedure which will be very close to the procedure followed by a tribunal. The third party offers then a global and precise solution, and will do so in complete autonomy. The only difference with litigation and arbitration is that the solution is not binding. (≠ decision). -> so it’s a procedure quite detailed like a judgement, but it’s not a judicial decision.

Question 10

The judicial mechanisms

Answer 10

It involve litigation and arbitration. There are common features between those types of judicial mechanisms, but also some differences.

Question 11

The judicial mechanisms (common features)

Answer 11

Both litigation and arbitration settle :

• a solution only based on international law
• a binding solution : in both cases, they will offer a binding decision. In the context of arbitration, it is called an award (sentence) ; in the context of Litigation, we call it a judgment.

Question 12

The judicial mechanisms (differences)

Answer 12

• Freedom to chose the composition of the tribunal : in arbitration, states will enjoy much more freedom to do so, they choose the arbitrators ; in litigation, States will use a permanent court/tribunal whose composition is fixed in advance.
• The Procedure : in arbitration, the procedure can be established by the parties (language, testimonies..) ; in litigation, the procedure is also established in advance by the Statute of the international/court.
• The applicable law : in arbitration, the parties can choose to apply only a treaty or find a decision based on equity ; in litigation, the law applicable is fixed by the Statute (ex : art 38 Statute of the ICJ).

Question 13

Advantages and disadvantages of judicial mechanisms

Answer 13

• Absence of unity : the creation of every single tribunal depends on an autonomous decision. Thus :
  • there’s no hierarchy nor subordination between international tribunals
  • there’s no rule concerning the value of précédant case (≠ jurisdiction in national law).
  • Inconsistency of international jurisprudence : There’s no mechanism of coordination between the various juridictions, but they can take the word of other organs into consideration (= principle of mutual respect).
• Efficiency :
  • What happens if a States does no respect the decision of the juridiction ? In Arbitration, there’s only negotiations ; in litigation, the ICJ decisions have a binding effect (art 94 §1), their non-respect can lead to the referral of the UNSC (but this has never been used untill now).
  • In practice, ICJ decisions are respected because of the principle of consent.
  • The use of a diplomatic justice ? Because of some complex politically cases, ICJ can adopt decisions that are not purely based on international law (ex: Bosnia/Serbia case concerning genocide.

Question 14

The proliferation of international courts and tribunals

Answer 14

3 types of international courts and tribunals :

• the ICJ
• Other tribunals dedicated to interstate justice (or criminal justice)
• Other modes of quasi-judicial settlements of disputes

Question 15

The ICJ

Answer 15

ICJ is the most significant juridical organ in international law (instituted by the UN Charter in 1945 after the Permanent Court of international justice) to settle interstate disputes only.

-> it is the only universal court of permanent and general character : it covers disputes in all parts of the world.

-> but it is subsidiary (art 95 UN Charter) : states can create any other judicial mechanisms they want to.

Question 16

Other tribunals dedicated to intestate state or criminal justice

Answer 16

There are 6 of them :

• the permanent court of arbitration
• the international tribunal for the law of the sea
• The Court of justice of the European Union
• Regional court for human rights
• investor/states dispute mechanisms
• International criminal tribunals

Question 17

The permanent court of arbitration

Answer 17

• Created in 1899
• Provides a system of arbitration for states to solve their disputes : it provides a proceeding that is ready to be used in order to encourage the PSD, but States have a complete freedom in the organisation of the proceeding (they can use it or not).

-> attractive because of its flexibility.

Question 18

The international tribunal for the law of the sea

Answer 18

• Created by the Convention of Montego bay, 1982.
• created a specific interstate mechanism specifically designed for disputes concerning the law of the sea.

Question 19

The Court of justice of the European Union

Answer 19

It acts less as an international court for interstate disputes but more as a Supreme Court of a specific legal system.

Question 20

Regional courts for human rights

Answer 20

• They offer the possibility for individuals to claim against a State = great improvement of judicial mechanisms during the XX century, recent phenomenon, almost a revolution in the functioning of International law because traditionally, it concerns only interstate relations. -> mainly before the European Court of human rights.
• States have accepted, by treaty, the possibility, not only for their nationals but for any individual, to claim against them at the international level before a judicial mechanism. The Court can judge any violation of human right that occurs under the jurisdiction of a Member state.

Question 21

Investor/State dispute mechanisms

Answer 21

• Mechanisms dedicating to investment arbitration.
• Same logic as the human rights because they offer a private party the possibility to claim against a State.
• The most famous example : ICSID = International Center for the Settlement of Investment disputes. (CIRDI) : In this situation, the State is always the defendant which put them in a position to justify themselves/to argue when there are not respecting International law.

Question 22

International criminal tribunals

Answer 22

• International Tribunal for Yugoslavia
• Rome Statute of the ICC, 2002 : the very first permanent criminal court in the history of International law.
  • It gives the possibility to prosecute individuals for international crimes that are defined in the Statute. (First time in the International law).
  • possibility for states to make a unilateral declaration recognising jurisdiction of the Court for crimes committed on its territory.
  • States parties can refer a situation to the prosecutor and ask him to start a proceeding concerning a specific situation

Question 23

Other modes of quasi-judicial settlements of disputes

Answer 23

Refers to the UN committees created by UN conventions on human rights.

• Created by a specific treaty.
• Created in order to make sure that states parties apply the treaty in a satisfactory manner.
• Individual communications : the State recognises the power of the committee to deal with the individuals complains. The committee will review the communication coming from an individual, but only on the same conditions as the one before a traditional tribunal (= exhaustion of local remedies + admissibility).
• member are not judged but they are elected and indépendant as them.
• The committee adopts views : there are no binding (the vocabulary used is here to reassure members States that the committee is not a tribunal), BUT in substance, the decision has all the elements of a judicial decision (langage..).

Question 24

JURISDICTION AND ADMISSIBILITY BEFORE THE INTERNATIONAL COURTS AND TRIBUNALS

Answer 24

The issue of jurisdiction and admissibility are an essentiel part of international adjudication because it’s a way to give confidence in the judicial settlement of disputes. The main principle when it comes to it is the principle of jurisdiction.

Question 25

The principle of jurisdiction

Answer 25

• Article 36 §1 of the ICJ Statute : “the jurisdiction of the Court comprises all the cases which the parties refer to it and all matters….”. The jurisdiction of the ICJ, as any other international tribunal/court, is based on the principle of consent given by states to their juridiction. The Court has jurisidiction only to the extent for which both States have expressed a specific consent.
• direct consequence of state sovereignty (≠ national mechanism) : Consequence : many disputes cannot be solved by a judicial mechanism due to a lack of jurisdictional link between the parties.
• The need to establish consent of the State to the jurisdiction of the Court does not mean that the State may escape from the court at any time : once the consent is established, the Court will address the merits of the case, even though the defendant may refuses to appear before it (Australia and New Zealand V. France, Nuclear test case).

Question 26

The different ways by which the State can consent to the jurisdiction of the Court

Answer 26

2 ways of acceptance of the jurisdiction of the Court :

• direct means
• indirect means

Question 27

Direct means of acceptance of the jurisdiction of the Court

Answer 27

These means appear once a dispute has materialised (= the dispute exists and can be observed). It is the case when the interêts of both states confronting. (Ex : Mebanié case about question concerning the sovereignty over the Mbnaiè islands).

• a direct mean can be a treaty between the parties in which they give express consent to the jurisdiction of the Court in a specific agreement = DIRECT means because the dispute already existed (≠ compromissory clause). But in practice, it is rather uncommon, mostly because it supposed an agreement in a context of dispute.
• The rule of forum prorogatum : it is even more rare : situation when there is no basis for jurisdiction of the Court, a State may submit a case to the Court and the other state is free to accept the jurisdiction by any means (even informal ones) -> facilitating the consent of States to jurisdiction of the Court.-> First case where the rule was successfully invoked (certain questions of mutual assistance in criminal matters, Djibouti V. France) : the Court stated that it can make a deduction from the declaration or any conduct of that State that it has accepted jurisdiction of the Court.

This rule is used to encourage /facilitate States to settle a dispute by any judicial mechanisms.

Question 28

Indirect means of acceptance of the juridiction of the Court

Answer 28

There are means that exist before a dispute arises, a way to legally secure the possibility to submit a dispute to the Court :

• Acceptance by a compromissory clause : it is a provision in a treaty that specifies that in the case of a dispute, States parties may submit it to the Court : it is essential to check if States parties to the disputes have made reservations to the treaty (main example : art 9 of the Convention on the Prevention and Punishment of the crime of genocide).
• an optional protocol : it is a treaty attached to a main treaty by which States parties will accept jurisdiction of the Court (main example : Convention on the law of the sea). It provides a complete set of mechanisms to settle disputes.
• an unilateral declaration : art 36 §2 ICJ Statute : the Court has jurisdiction to settle disputes between the parties that have made a unilateral declaration to the jurisdiction of the Court, in case a dispute arises. States may make reservations which would substantially limit the jurisdiction of the Court.

Question 29

The possibility of a “dictatorial competence” concerning tribunals instituted by the UNSC

Answer 29

In the criminal matter, the question of the States’s consent is not raised in similar terms. Some criminal tribunals created by the UNSC (ICTY, ICTR) were based on the principle of primacy in case of concurrent jurisdictions (mostly national jurisdictions).

Their competence/power is dictatorial because they were created and imposed upon States by the UNSC. There’s no express consent of States concerning the creation of these tribunals, BUT they consent of the powers of the UNSC. Article 25 : “all States consent to the powers of the UNSC and to apply its decisions”. -> These tribunals worked with the principle of primacy BUT also complementary = they did not have the means to start all the proceedings by themselves. They have the possibility to transfer to the national jurisdiction some proceedings.

After that, States created the ICC in 1998 which works only on a principle of complementarity. Art 17 of the Rome Statute concerning issues of admissibility, the ICC will step in/work only if domestic courts failed to prosecute an individual or are unwilling to do so.

Question 30

THE AUTHORITY AND IMPLEMENTATION OF A JUDICIAL DECISION

Answer 30

There must be a distinction between implementation/enforcement and influence of a judicial decision.

Question 31

The enforcement/implementation of a judicial decision

Answer 31

The enforcement of a judicial decision depends on many factors, some more political than legal :

• the acceptability of a judicial decision matters, especially in the field of its vital interest. There is no central authority that could bear a mission to monitor the respect of States’s judicial decision. International courts and tribunal may seek the most acceptable decision possible, even if it does not satisfy the victim’s claims (ex : Uganda/RDC case).
• The variability of the openness of each State to the reception of the judicial decision in their domestic law : treaties and international law does not have a superior authority tant national law in every State, and even so, this does not apply yo judicial decision.
• Good faith has a major role : Temple de Préah Vihear : “parties to a case have an obligation to implement the judgement of the Court in good faith. It is of the essence of that obligation that it does not permit either party to impose a unilateral solution”.

Question 32

The influence of a judicial decision

Answer 32

The international judge adopt a decision concerning the past but also the future.

The decision is supposed to have effect only between the parties BUT its authority as making jurisprudence can have a major influence on issues in other disputes.

-> Example, ICJ, advisory opinion concerning the Chagos Islands case, Maurice/UK : it is an advisory opinion (non binding), but

• the Court highlighted the responsibility of UK for incomplete decolonisation
• considered that the Chagos Islands must be retroceded (given back)

-> this advisory has an important influence on many other disputes concerning islands.

Question 33

The authority of a judicial decision

Answer 33

The authority of a judicial decision refers to :

• res judicata :
• res interpretata :

Question 34

Res judicata

Answer 34

It a general principle of law :

• decisions of a court are binding to the parties and only to the parties and for the dispute concerned (autorité relative de la chose jugée).

—> principle reflected in the article 59 of the ICJ Statute : “the decision of the Court has no binding force except between the parties and in respect on that particular case”.

—> The binding effect concerns all the decisions of the Court -> it applies to decisions about the merits (au fond) but also concerning preliminary objections (exceptions préliminaires) and orders of the Court (ordonnances) concerning the procedure (public hearings, provisional measures..).

• On the contrary, advisory opinions of the court are non binding BUT they can have a major influence on the interpretation of international law and other disputes + put an enormous political and legal pressure on the State (as in the Mauritius case).

Question 35

Res interpretata

Answer 35

• There’s no rule concerning the authority of precedent in international law = principe of stare decisis.
• but the whole juirsprudence of the Court has an influence/authority on the interpretation of international law and logically on future cases. Article 38 of the ICJ Statute : The jurisprudence of the ICJ is not a source of international law strictly speaking, but it is an auxiliary means for the interpretation of international law.

Question 36

The freedom to choose the way to enforce a judicial decision

Answer 36

When it comes to implementation of a judicial decision, States have a complete freedom to choose the way to do so, as long as they enforce them in good faith.

• Before the ICJ : it is not a function of the Court to indicate the ways to enforce a decision (ICJ, Haya de la Torre case). This follows the principe of the constitutional autonomy of States = States are free under their constitutional law to decide how they will enforce the decision in their national system. The Court can only suggest a way (as in the case concerning juridictionnel immunities).
• Before the ECHR : Decisions of the ECHR are not directly enforceable (pas d’effet direct en droit interne), they are just declaratory of the responsibility of State. But contrary to ICJ, the Court will indicate the measures that could be taken by the State to deal with a systemic problem (pilot judgment) + it can indicate with much more precision individual measures on compensation to achieve the “just satisfaction”.
• Before the CJEU : the decisions of the CJEU are directly enforceable (≠ ECHR).