Professional Documents
Culture Documents
Disputes
Abstract
the Court, that is to say if they have caused the dispute to disappear, all the
necessary consequences must be drawn from this finding.8. Certain
situations involve complex questions of territorial title and allegiance which
cannot be resolved within the framework of a bilateraldispute. This was the
case in the Western Sahara case,6 on which the International
9. Territorial and boundary disputes concern both substantial material interests but
also sensitive questions of social geography and traditional regional connections. It is
tempting to seek to design a typology of disputes. Certainly, territorial and boundary
disputes have relatively special characteristics. In the first place, they involve
neighbouring States and therefore may generate problems of public order. Second, the
process of peaceful settlement may take place only a year or two following an armed
conflict related to the very same issues which gave rise to the armed conflict. This was
true of the Rann of Kutch arbitration,7 theEritreaEthiopia Boundary Commission
Case8 and the Cameroon v. Nigeriacase9 before the International Court of Justice.
10. Third, areas involved in a boundary dispute may include populations whose regional
and historical ties may be threatened with disturbance as a direct result of the
determination of a land boundary. In the aftermath of the Cameroon v. Nigeria case, the
problems of implementation were the subject of an Agreement concerning the
modalities of withdrawal and transfer of authority in the Bakassi Peninsula prepared by
a CameroonNigeria Mixed Commission. The International Court decided the case on 10
October 2002. The Agreement on implementation was concluded on 12 June 2006. 10
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II. Methods
of settlement
14. On 30 July 1999, the United States agreed to pay China the
sum of four and a half million dollars for the families of those
killed or injured. The Memorandum of Understanding11 provided
in part:
1. The two sides have reached a consensus on the payment
relating to deaths, injuries or losses suffered by the personnel of
the Chinese side. The U.S. Government will pay to the Chinese
Government the sum of U.S. $4,500,000 in a single payment as
promptly as possible consistent with U.S. legal requirements, for
direct distribution by the latter to the bereaved families and those
suffering injuries or losses.
2.The institution has been defined as:20the process of settling a dispute by referring it
to a commission of persons whose task it is to elucidate the facts and usually after
hearing the parties and endeavouring to bring them to an agreement to make a report
containing proposals for a settlement, which is not binding.21. There have been only a
small number of conciliation procedures in recent times, and the procedure tends to
emerge as less attractive than arbitration. In 1995, the Special Committee on the
Charter of the United Nations proposed a revised version of the Model Rules for the
Conciliation of Disputes between States, and this was approved by the Sixth Committee.
V.
Commissions of inquiry
1.. A device which has proved useful on some occasions is the Commission of Inquiry.
This institution originated in the Hague Conventions of 1899 and 1907. Its specific
purpose is to elucidate the facts behind a dispute in order to facilitate a settlement. It
does not involve the application of rules of law.
2.The purpose of the Commissions of Inquiry is provisional and political. The device is
linked to the idea that the resort to an inquiry provides a cooling off period and reduces
the risk of counter-measures or breaches of the peace. Moreover, the Report on the
facts de facto facilitates the settlement of the dispute. Recent examples of Commissions
of Inquiry concerned the Red Crusader incident between Denmark and the United
Kingdom (1962),21 and the Letelier and Moffitt case between Chile and the United
States (1992).22 By way of exception in both these cases, the role of the Commission
was not confined to findings of fact and was essentially judicial.
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VI.
Arbitration
. I must mention the establishment in 1899 of the Permanent Court of Arbitration. This is
an institution with premises and staff based in the Peace Palace in The Hague. The
institution includes a panel of arbitrators nominated by the contracting States of the
Hague Convention. In the years up to 1931, 20 cases of arbitration were heard under
the auspices of the Permanent Court. In the recent past, the apparatus of the Permanent
Court has played a useful role in providing a Registrar and accommodation for several
inter-State arbitrations.
VIII. The
applicable law
In the nineteenth century practice, the arbitration Tribunals were mandated to apply
law and equity and Awards were produced without reasons. In the twentieth century,
the modalities of arbitration were essentially the same as adjudication, and the
modalities involved the application of legal principles and the adoption of a fully
reasoned Award. The essential character of arbitration is that it is ad hoc, private and
expensive. In principle, it is free from preliminary objections, but there may be issues
relating to the scope of the dispute.
.
X. Arbitrations
since 1945
1 .Since 1945, the incidence of arbitration has been fairly high and it is important to
bear in mind that some arbitrations are as important as many of the cases before the
International Court of Justice.
2. Arbitrations fall into two categories, those under clauses in standing treaties and
those under ad hoc agreements to arbitrate.
3. The following arbitrations occurred under standing treaty clauses:
A
a.Air
Argentina).30
f.
Nations. As such, the Court performs two roles. In the first place, it is
available to States generally for the purpose of dispute settlement. Thus
even States not bound by the system of compulsory jurisdiction may agree
to resort to the Court on the basis of a special agreement. In this way, the
Court is in competition with the practice of ad hoc arbitration.
40. In the second place, the Court has a jurisdiction of an advisory character,
which involves a duty to give advice to the political organs of the United
Nations at their request on any legal question. Article 96(1) of the Charter
allows other organs of the United Nations and specialized agencies to
request an opinion, if they are authorized by the General Assembly to do so.
Article 36, paragraph 2, of the Statute of the Court creates the basis of the
system of compulsory jurisdiction. This provides in material part as follows:2.
The States parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other State accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
at least 16 cases are on the docket. From 1946 until the present, the Court
has dealt with 110 contentious cases and 24 requests for advisory opinions.
What then are the principal purposes of the Court?
In the United Kingdom and elsewhere, the conventional view has been that
there is a qualitative deterioration in the system of compulsory jurisdiction:
a. There is the practice of making reservations. It was in fact
recognized from the very outset that States accepting the
compulsory jurisdiction had a certain power to define the classes of
legal disputes with respect to which the declaration of acceptance
was to apply, and to impose conditions ratione personae. But the
variety and nature of the reservations was perhaps not fully
appreciated.
b. There is the use of the automatic reservation. The U.S.
Declaration of 1946, withdrawn in 1985, included the reservation
relating to disputes essentially within the domestic jurisdiction of
the U.S. as determined by the U.S..
c. There is the reservation of the right to withdraw acceptance at will,
and at any moment, by notice to the Secretary-General of the
United Nations.
In general, this picture of dilapidation is considerably out of focus. The
different sources of the alleged dilapidation may be taken one by one:
a. First, the significance of the system of compulsory jurisdiction as
such.No doubt it has symbolic significance and this explains the
tendency to make the Optional Clause the only measure of the
performance of the Court, and to regard it as a criterion of
successful operation. But many States are prepared to use the
Court on the basis of special agreements, sometimes even when
they could have used the Optional Clause jurisdiction. Since 1945,
some major disputes have been submitted to the Court by means of
special agreements.
b. The second source of dilapidation relates to the significance of
reservations and is perhaps exaggerated. They were always part of
the scheme of things and indeed the possibility of making
reservations was seen by the League Assembly as a means of
encouraging adherence to the Optional Clause. In any case, the
Court has placed limitations on the process of exploiting the
principle of reciprocity. The significance of the automatic
reservation has been less than expected:
1. After it backfired against France in the Norwegian
LoansCase,50 it looked less useful.
2. Originally the U.S. example was followed by five States. Of
States presently Parties to the Optional Clause, very few
employ the automatic reservation.
3. It may be noted that the automatic reservation was not
invoked by the United States in the Nicaragua case.
It may be recalled that the Court had 98 contentious cases up to the end of
1999, and at that time this was regarded as a very modest production. But
this type of arithmetic is a poor index of the practical significance of the
Court. Other indices and factors should be taken into account. Since 1984,
there has been a regular flow of work. The flow of business is broad-based
and not confined to one type of jurisdiction or to States of a particular region.
This is a significant element in any assessment of the work of the Court. It is
to be emphasized that the cases before the Court have a special character.
The true analogy is with public law and the key question is often status and
not compensation. A high proportion of decisions concern the status of
territory and the allocation of important resources. Such decisions include
the following:
Anglo-Norwegian Fisheries;51
North Sea Continental Shelf Cases;52
Gulf of Maine case;53
Chad v. Libya;54
Denmark v. Norway;55
Cameroon v. Nigeria.56
53. In sum, these considerations suggest that the picture of dilapidation
normally presented is exaggerated to a substantial degree.
XIII. Concluding observations
54. In coming to my conclusion, I shall look at the more problematical
aspects of the process of adjudication, whether in the International Court or
in courts of arbitration. The special attraction of adjudication is that it is
definitive and removes a source of political antagonism and tension between
the parties. The alternative is either negotiation, which involves the
responsible officials in making compromises, or inaction.
55. At the same time, adjudication involves a loss of political control over a
situation. As Sir Gerald Fitzmaurice has observed:57The main conclusion is
that apart from the natural reluctance to litigate felt by almost everyone,
governments prefer to deal with disputes by political means rather than by
submission to adjudication, and fight shy of the commitment involved by
going to law: they dislike the loss of control that is entailed over the future of
the case, the outcome of which they can no longer influence politically once
it is before a court of law, since this will then depend upon legal
considerations with which they do not find themselves at home. They much
prefer a political forum such as the United Nations in which leverage can be
exercised through the influence of majorities. In general, the proliferation of
international organisations has proved a disservice to the cause of
international adjudication.Fitzmaurice was the British Foreign Office Legal
Adviser for many years, and expressed this view in 1973 after his retirement.
56. In any event, adjudication has certain inherent limitations. In the first
place, the International Court is to a great extent dependent upon the parties
when it comes to matters of fact and the Court is reluctant to ask questions
of the parties. And there is no appeal. Second, the International Court
sometimes operates in legal fields on the margins of normal areas of
justiciable issues. The Gabcikovo case between Slovakia and Hungary is a
good example of this experience. With a degree of confidence in the survival
of the contractual framework (the 1977 Treaty), the Court held by 13 votes to
2:that Hungary and Slovakia must negotiate in good faith in the light of the
prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the Treaty of 16 September 1977, in
accordance with such modalities as they may agree upon .5857. In cases
such as this, the Court is, in effect, transferring the burden of decisionmaking back to the parties. While the intention is to be constructive, the
result is contradictory because the parties in the Special Agreement of 1993
had expected the Court to answer the questions formulated in Article 2.
58. By way of conclusion, it is convenient to present a series of propositions:
60. And, before I close, I wish to thank the University and the Awards
Committee for their decision to elect me as the first recipient of the Wang
Tieya Award.