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Complete Summary International Dispute Settlement
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International Dispute Settlement - SummaryLecture 1 - Monday 31 October 2022
- Art. 2 UN Charter 1945
- Chapter VI UN Charter 1945
- ICJ Statute
On the Functions of International Courts: An Appraisal In The Light of Their Burgeoning Public
Authority (von Bodandy & Venzke)
The view of the functions of international courts needs to be reformulated in times of global
governance and considering the remarkable trajectory of international adjudication over the past two
decades.
- In order to appreciate international adjudications’ many contributions to social interaction, we
identify three more functions beyond dispute settlement. International courts stabilize
normative expectations, which include the reassertion of international law’s validity and its
enforcement; they develop normative expectations and thus make law; and they control and
legitimate the authority exercised by others.
- A multi-dimensional view of international adjudication shows that international courts have
overall become institutions that exercise public authority and demand modus of justification
that lives up to the basic premises of democratic legitimacy.
- Three main objectives: (1) analytical, aims at a better grasp of reality, and specifically aspires
to better understand nuances and differences between judicial interpretations and institutional
practices. (2) it wants to sharpen normative questions and, (3) it wishes to contribute to a
more solid basis for interpretative choices.
One could say on an abstract and vague level that the international courts’ function is adjudication.
But that it immediately leads to spelling out further dimensions of such a function. Functions need not
and should not be confined to what institutions are legally mandated to do. Functions can also stand in
tension to one another and are usually weighed differently by different institutions, and balances may
shift over time.
● A first main function is the settling of disputes in individual cases.
● A second main function of international courts is stabilizing normative expectations.
○ ICJ Nicaragua supported law’s normativity and stabilized normative expectations
when it came to the use of force. The decision discouraged the opposite cognitive
modus according to which, ‘the strong do what they can and the weak suffer what
they must’.
● The development of normative expectations. This can be best understood as generating new
legal normativity or simply as law-making.
○ Judicial precedents redistribute argumentative burdens in legal discourse and generate
legal normativity. Overlooking or even negating this law-making function means
missing out on an important aspect of the dynamics of the international legal order.
● In a vertical dimension, international courts control domestic authority against yardsticks of
international law.
○ In order to refine, but also to deepen, their control function, many international courts
have shaped doctrines such as proportionality analysis, which stems precisely from
administrative and constitutional justice. With such doctrines, international courts can
closely control domestic regulatory activity.
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, ○ The horizontal control and legitimation of authority exercised at the international
level are weaker. International courts hardly have a role within the institutional order
of international law in terms of a system of checks and balances.
The traditional emphasis on the dispute settlement focus has gone hand in hand with a basic
understanding of international courts that picture them as instruments in the hands of the parties in a
state-centered world.
- Courts decide disputes in the name of the states that created them, and courts’ proper role is to
stick to this function.
- PCIJ Lotus: only allowed a rather weak institution without compulsory jurisdiction and no
real role beyond the settlement of a dispute.
- The main responsibility for ensuring international peace rests with the Security Council.
- As typical cases of dispute settlement in concrete cases, arbitral and claims tribunals already
indicate how the one-dimensional view eclipses part of the social consequences of
international adjudication.
A second basic understanding sees international courts as organs of a value-based international
community.
- Judicial institutions in the field of international criminal law are also supposed to safeguard
the fundamental values of the international community and little would be understood from
the traditional one-dimensional point of view.
- For many commentators, the ICC is the epitome of a new era in international law in which the
international community’s fundamental values are now better protected. The Court’s
preamble references the ‘conscience of humanity’, addresses jurisdiction over ‘most serious
crimes of concern to the international community as a whole’ and expresses the determination
to ‘guarantee lasting respect for and the enforcement of international justice’.
A third understanding has grown in the wake of globalization and views international courts as
institutions of specific legal regimes.
- Many international courts reach further than the coordination between states or the protection
of fundamental values of the international community. They form part of legal regimes that
have grown with increasing interdependence and processes of globalization.
Negotiation (Hakapaa)
Negotiations = discussions at different levels of authority with a view to achieving a common
understanding or agreement.
a. Negotiations to discuss issues of mutual interest.
- States may discuss relevant aspects of their relations whether of a bilateral, regional,
or global nature.
b. Negotiation as a means for the codification and progressive development of international law.
- Negotiation may result in the conclusion of a new treaty or convention between the
parties involved.
c. Negotiation as a means for the settlement of disputes.
- Negotiation may provide a solution to a dispute, or it may appear as a precondition
for the judicial settlement of international disputes.
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,UN GA Resolution 53/101 → ‘negotiations should be conducted in good faith’; ‘States should
endeavor to maintain a constructive atmosphere during negotiations and to refrain from any conduct
which might undermine the negotiations and their progress’.
Negotiations for the development of international law usually have a multilateral nature. While
bilateral negotiation is aimed at a bilateral relationship, it may also provide building material for the
later formation of customary international law.
- Multilateral negotiation takes place in various forms. Negotiations for the development of
international law may involve different phases of preparation and decision-making. They may
aim at the provision of specific treaty regimes or the development and implementation of
trade regulations and practices or the presentation of high-level proposals to stabilize and
reform world economies.
Negotiations are often conducted in formal as well as informal meetings.
Negotiation is one of the means of pacific settlement of disputes mentioned in art. 33 UN Charter.
- According to the Manila Declaration: ‘States should, without prejudice to the right of free
choice of means, bear in mind that direct negotiations are a flexible and effective means of
peaceful settlement of their disputes. When they choose to resort to direct negotiations, States
should negotiate meaningfully, in order to arrive at an early settlement acceptable to the
parties.
Exchange of views = where a procedure for the settlement of a dispute is terminated without a
settlement or where ‘consultation’ is needed for the implementation of the settlement.
Negotiation shows qualities of an ideal means of dispute settlement. In essence, what it signifies is
communicative contact between the parties to explain and discuss their positions with a view to
ensuring a common understanding. It does not require complex procedures or costly settlement
mechanisms but simply time and space for the parties to meet or otherwise discuss the pending issues.
While an international agreement may provide for negotiation as a precondition for adjudication, it
does not prevent negotiations from being continued or resumed during judicial proceedings.
Negotiations should be available to the parties throughout the process of adjudication, and even
thereafter if the parties agree.
Litigation versus Dispute Resolution through Political Processes (Scott)
Two competing world views within which to consider the issue of litigation versus political
resolution:
1. The international law framework
- Within this framework, the starting point is the array of dispute resolution options
listed in art. 33 UN Charter and the range of international courts and tribunals that
states now have at their disposal.
- The objective of using lawful methods to bring about the peaceful resolution of a
dispute is a given and the main subjects of interest are the methods or institutions of
dispute resolution.
2. The political framework
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, The ICJ is often treated as the classic international court, but one of the most striking developments in
the international legal system since the end of the cold war has been the proliferation of international
courts and tribunals.
Four types of international courts and tribunals:
1. Classic international courts, or state-only courts, whose primary function is the resolution of
inter-state disputes. → ITLOS and WTO
2. Human rights courts → ECtHR, Inter-American Court, ACtHPR
- Their purpose is to provide legal remedies to individuals whose human rights have
been violated.
3. Courts of regional economic and/or political integration.
- These courts have many roles, including deciding disputes between organs of the
community and member states, between individuals or corporations and community
organs or member states, on the content and implementation of community law.
4. International criminal courts
- Do not really resolve disputes between states but function to rule on international
crimes, and to mete out criminal punishment.
States rarely turn to litigation as the first step in an emerging political drama. ICJ cases involving
boundary disputes have usually followed a resort to a military conflict that has either resulted in
stalemate or led the states involved to determine that further conflict would be too costly.
Judgment is required to assess the legal strength of a government’s position, and government lawyers
play an important role in this determination.
If the potential respondent state has not accepted the jurisdiction of the ICJ and is unlikely to do so if
invited, it may not be possible to bring a case before the ICJ, whether one wants to or not and whether
one is in a strong position in relation to the merits.
From a legal perspective, the Court has operated on the principle that if the question referred to the
Court is such that it cannot be resolved by applying legal criteria, then, unless its competence has been
extended by the parties, it must decline to adjudicate.
From a political perspective, international litigation may be more capable of resolving some matters
than others.
The Function of Litigation in International Society (Lowe)
Lauterpacht’s vision rested upon two main propositions:
1. That there is no international dispute that is non-justiciable - no dispute that is so political that
it cannot properly be referred to a judicial tribunal for decision.
2. That the submission of international disputes to adjudication should be encouraged.
The function of law is to simplify and in simplifying it lays bare the basic principles, the ribs of the
social architecture that the courts uphold.
The function of litigation is different. Indeed, a key point about litigation is that it has two functions
coexisting in an uneasy balance. On the one hand, the function is the settlement of a particular dispute
between the parties. On the other hand, it not only looks backwards, to see who was right and who
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