Analysis Of The Methods Of Settling Disputes Within Non-Judicial And Judicial Settlement

Introduction

In every society we are always faced with challenges and disputes are eminent in one way or another. Internationally the use of peaceful means has always been advocated when countries don’t see eye to eye. It is the very essence for the formation of the United Nations according Article1 of the United Nations Charter. This essay examines the methods of settling international disputes and its usefulness. It also categorizes the diplomatic methods used in non-judicial settlement and adjudication. International disputes was defined in the Mavrommatis Palestine Concessions (Jurisdiction) case PCIJ Ser A No 2 at 13 (1924) as a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.

Article 33(1) of the United Nations Charter provides that: “States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice”.

Negotiation

This is one of the most used methods on international plane to resolve disputes. Negotiation is the primary vehicle for attaining settlement on the international scene, peaceful coexistence and conciliation regarded rather than characterization of one state as “guilty” and the other “innocent”. In the North Sea Continental Shelf cases, the Court noted that: “the parties to a dispute may even be under an ‘obligation so to conduct themselves that the negotiations are meaningful”.

Article 283 of the 1982 Law of the Sea Convention which aims at keeping the disputing parties in contact and requires them to exchange views at any stage of the dispute and even thereafter to implement the final settlement or decision. This is an example of a treaty that obligates parties for negotiations.

It behooves the states to conduct these negotiations in good faith as was illustrated in the case of Cameroon v Nigeria. Negotiations are given first priority as a mechanism of solving disputes before other channels can be drawn. That notwithstanding, negotiations have their own pitfalls as the adage goes the world is not perfect. First negotiations are between two conflicting parties thus third parties are not included. The other problem is that a disputing party may put forward extreme claims especially if one of the parties exercises great influence over the other. A good example is the United States of America. States can also deny the existence of any disputes and are willing to negotiate once some preconditions are met. It is upon this juncture that other forms of peaceful means are considered to settle disputes that have not been resolved through negotiations.

Good offices and mediation

This involves the use of a third party which may be a state, individual or an International Organizations who try to resolve conflict between the warring parties. Good offices involve bringing the disputing states at a negotiating table and propose the general framework. Once negotiations commence the good offices will be deemed to have concluded its mandate. Switzerland was used in representing United States in Cuba in 1961. Mediation on the other hand involves a mediator who facilitates negotiations between the parties. The onus is on the mediator to resolve the dispute hence has a heavy responsibility to reconcile the parties. It is also hard to find a mediator who can be entrusted to act impartially between the disputing factions. Mediation has been utilized among states such as Chile and Argentina concerning the Beagle Channel where Cardinal Antonio Samoré was accepted as the mediator by the two States as proposed by the Pope. To bring it home after the post-election violence of 2007-2008 in Kenya, the late Kofi Annan was instrumental in resolving the hard stand taken by Kibaki and Raila. It led to the formation of a coalition government where peace and tranquility regained in the country. World Bank also provided financial support to India and Pakistan when they were in conflict over the waters of the Indus basin. United States also played a role in the Arab- Israel conflict of 1970. It is indeed significant in the vital role good offices and mediation play in the global arena not forgetting our motherland. It has its drawbacks where suggestions of the third party have no binding effect.

Conciliation

The process of conciliation involves a third-party investigation of the basis of the dispute and the submission of a report embodying suggestions for a settlement. It has been defined as: “the 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 endeavoring to bring them to an agreement to make a report containing proposals for a settlement, which is not binding”.

In conciliation the third party encourages and facilitates negotiations and may itself propose bases of a settlement. A Conciliation Commission is set up to investigate the facts of the disputes and make a report. They make recommendations which are not binding in their proposals. There are a number of treaties which provide for conciliation as a means of resolving disputes such as the 1969 Vienna Conventions on the Law of Treaties, 1982 Convention on the Law of the Sea (dispute between Iceland and Jan Meyen island over the continental shelf). The conciliation process was used. INQUIRYA commission of inquiry is established to establish the facts where parties are conflicted. 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. In the Dodger Bank case incident Russian ships mistakenly fired at British boats believing them to be Japanese. A commission of inquiry was established to establish what had transpired. This was successful as Russia agreed to compensate Britain a sum of 65000 pounds.

Judicial settlement

These are the methods of adjudication which comprise of arbitration and the International Court of Justice.

Arbitration

Arbitration has been defined as a procedure for settlement of disputes between States by a binding award on the basis of law and as a result of an undertaking voluntarily accepted. It is important to emphasize that consent is needed between States in order to accept jurisdiction of arbitrators. In the Guinea/Guinea Bissau Maritime Delimitation case and Canada/France Maritime Delimitation Case consent was on an ad hoc basis.

The procedures for arbitration were provided in 1899 Hague Convention for the Pacific Settlement of Disputes. Once States have committed to arbitration the arbitration awards is legally binding between parties as provided under Article 18 of the Hague Conventions.

In the highly contentious case of Tatu City, the matter was referred to the London Court of International Arbitration as a provision in the memo provided for arbitration mechanisms in case of wrangles between the shareholders and the foreign investors.

In Arbitration parties may choose their arbitrators or Judges in conformity with Article 15 of the Hague Conventions. The International Court of Justice can review an award where a party is aggrieved such as in the Senegal /Guinea-Bissau Arbitral Award Case where Guinea Bissau expressed reservations for arbitral award made between Senegal and herself. The Court stated that its mandate is to act as a supervisory function and not necessarily hear an appeal. The court rejected application for interim measures.

There has been new development of formation of tribunals such as procedures of UN Convention on the Law of the Sea (UNCLOS) and World Trade Organizations. It is in order to say that arbitration is favorable in foreign trade disputes and writing down of arbitrators’ decisions as Fritz Moses remarked.

International Court of Justice

The first time these words came into recognition was the case of the famous Ocampo 6 who were charged at The Hague for crimes against humanity. This is the most phenomenon judicial organ at the United Nations as provided in Article 92of the United Nations. In creation of a World Court the Permanent Court of International Justice was established in 1920. The International Court of Justice came into being after the Second World War. The function of the Court primarily is to settle disputes among states and also to render advisory opinion in cases where there are questions of the law.

Composition

The court comprises of fifteen judges, five judges are elected every three years and stay for nine years. In a case where a state has no Judge of its nationality, an ad hoc Judge may be appointed.

Jurisdiction of the Court

The Court has jurisdiction to hear contentious cases and render advisory opinions in which I shall examine it distinctively.

Contentious cases

It is imperative to note that its only states are parties to the cases before the Court. Article 93 of the UN Charter provides that all UN members are ipso facto parties to the Statute of the ICJ, and that non-members of the UN may become a party to the Statute on conditions determined by the General Assembly upon the recommendation of the Security Council.

There are various ways in which States may accept the Court’s jurisdiction. Article 36(1) of the International Court of Justice Statute encapsulates that recognition may be captured under treaties and conventions. States may resolute to special agreements, “compromis”. Further in Article 36(2) I. C. J Statute captures the optional clause in which States may make declarations in disputes such as legal interpretation of a treaty, any question of international law, existence of any fact which may constitute a breach of an international obligation and payments for the breach of international obligation. Once the States have accepted unilaterally these declarations it becomes compulsory and binding. Article 36(3) provides that declarations may be made unconditionally or on reciprocity on the part of certain states or for a certain time. In the classical case of Nicaragua, United States argued that Nicaragua had accepted compulsory jurisdiction but it was not ratified. The United States end game was to bar the jurisdiction of the Court. The Court held that Nicaragua had made a valid declaration in 1929 and consequently ratification in 1945 was in order. Subsequently in 1985, United States terminated its acceptance of Article 36(2) under the compulsory jurisdiction.

In the case of Corfu Channel United Kingdom brought forth an argument that subject to Article 36(3) of UN Charter based on recommendations from the Security Council parties could take their disputes to the court. The Court rejected this as Albania had already consented to the Court’s jurisdiction moreover the term recommendation was non-compulsory.

Intervention

Article 62 of the I. C. J Statute provides that any state which considers that it has an interest of a legal nature which may be affected by the decision in a case, may submit a request to be permitted to intervene. In the Tunisia/Libya Continental Shelf case, Malta sought to be enjoined to intervene but the Court rejected on the basis that Malta would not be affected by the decision in the case and the absence of the legal interest was noted. The Court granted intervention to Nicaragua in the case of Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) where Nicaragua had demonstrated interest of a legal nature that might be affected by a decision in an existing case already established between States preventing third parties to tack on new cases.

Effects of judgement

It is critical to look at the effectiveness of this Court. In prism with Article 59 of the ICJ Statute judicial decisions are not binding. However under Article 60 once judgment has been rendered it becomes final and without appeal. Article 94 of United Nations Charter authorizes the Security Council to make recommendations or decide upon measures to be taken to give effect to the judgment. The ICJ enforcement mechanisms have faced challenges such as reluctance to enforce judgments. This is subject to Article 94(2) of the United Nations Charter which makes a discretionary provision.

Issues of non-compliance can be noted in various situations cases in point include Albania which refused to pay compensation to United Kingdom for damages on United Kingdom warship in the Corfu Channel case. The Court is not concerned with compliance and opines that “once the Court has found that a state has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it. ” Over the years most countries have complied with the Court’s judgment.

The issue of non-appearance was highlighted in the Fisheries Jurisdiction case, where the Court will proceed with the case as long as jurisdiction is established and give judgment though the respondent may disregard it. In the famous Nicaragua case. United States absented herself from the proceedings.

Advisory opinion

In a similar fashion where the domestic courts have power to give advisory opinion for example the Supreme Court of Kenya has given various advisory opinions in matters concerning interpretation of The Constitution of Kenya. Article 65 of the I. C. J Statute provides that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Article 96(1) of the UN Charter allows for the Security Council and General assembly to seek advisory opinion on legal questions. Article 96(2) of the UN Charter provides for other Organs of the UN and specialized agencies may seek advisory opinion on legal questions arising within their scope of activities.

As illustrated in The Legality of the Threat or Use of Nuclear Weapons case, its mandate is not to necessary settle dispute but to give legal advice to the organs and institutions. Its nature as can be seen from the words is that it is not binding however advisory opinions have been instrumental in enriching the jurisprudence of International law such as Advisory Opinion on Western Sahara, on self-determination and independence from Spain, Morocco and Mauritania who had legal claims. In Reparations for Injuries 1949 ICJ 174, the Court established International legal capacity of Organizations and for that matter the United Nations.

Conclusion

This essay has examined the different methods of settling disputes which are categorized in the non-judicial settlement to the more complex judicial settlement. The simplest and most utilized are the non-judicial means which have evolved over the recent years. Judicial means such as Arbitration and the International Court of Justice are quite challenging however its binding effect is significant. It is exemplary of us to always seek peaceful interventions even where push comes to shove as the easiest alternative has always been the use of force whose predicament is well known. I fully concur with the words of Dalai Lama that peace does not mean the absence of conflicts; differences will always be there. Peace means solving these differences through peaceful means.