In-depth lecture notes of a 5-week course, each considering a different procedural aspect of international dispute settlement. Specific consideration of the WTO, ICSID, PCA, ICJ and LoS.
International Dispute Settlement - Comprehensive Colloquia Answers and Case Summaries
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Universiteit Leiden (UL)
Public International Law
International Dispute Settlement
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Lecture 1 – IDS Introduction
IDS cases more frequent
e.g. Ukraine brought claim against Russia over annexation of Crimea
e.g. arbitration on South China Sea
Relocation of the US Embassy to Jerusalem (Palestine v US) @ ICJ relocation from Tel Aviv
to Jerusalem, arguing that moving violates VCLT
IS Palestine able to bring this case before the ICJ? Is it a state? Does it matter?
1. prelim
2. IDS
3. ICJ
4. PCA
5. DS and LoS
Structure
- Week 1 – Intro to International courts and tribunals
- Week 2 –
o Jurisdiction – power, scope of power to adjudicate
o Admissibility – set of circumstances on which courts/tribunals might decline
to exercise jurisdiction on account of grounds of admissibility
o Colloquium - Marshall Islands and case on investor/state based on fraudulent
info
- Week 3 – Evidence and fact-finding
o Burden of proof, standard of proof, experts appointed by parties/courts
o Fraudulent evidence
o Site visits
o Colloquium - Circumstantial evidence and adverse inferences – Corfu Channel
Case and Uzbekistan case on technology
- Week 4 – Incidental and post-adjudicatory proceedings
o Incidental – as proceedings are ongoing
o Post – requests for interpretation e.g.
o Colloquium – preliminary measures in ongoing case Ukraine v Russia, and
Netherlands v Russia (Arctic Sunrise)
- Week 5 – Compliance
o Massimo Lando – ICJ – guest lecture
o Colloquium – Avena v Mexico, Germany v Italy
o Wed – 14th November – Samuel de Bruin
What we are leaving out?
- Non-legal, diplomatic disputes, negotiation, conciliation, mediation, and inquiry
- Applicable law, who represents parties, issue of third parties
- Advisory Opinions – sometimes related do DS
,- Interaction btw various courts and tribunals
- Iran-US Claims tribunals
- Regional courts – eg. ECtHR
Oxford handbook on international adjudication – look at research questions
What is international Dispute Settlement?
Wide range of disputes, some political, some have major global significance. Some are
bilateral (e.g. border dispute) some multilateral (e.g. South China Sea)
Some are factual in nature – parties can’t agree on what happened and some are legal
disputes – can’t agree on what law is, how it should be interpreted or applied (e.g. Germany
Italy case on State Immunity)
- State immunity
- Diplomatic immunity
- LoS
- Boundary disputes, etc.
Don’t have to settle disputes – are allowed to let disputes continue. Might even be
advantageous not to settle them (e.g. if law is uncertain and litigant is unsure how the law
will have consequences)
If they do have settlement must be peaceful (Art. 2(4) of UN Charter prohibiting use of
force). Charter provides further guidance
- In Art. 33 – Pacific Settlement of Disputes – lists diplomatic (political) and legal forms of
DS
o Negotiation, inquiry, mediation, conciliation = diplomatic parties and
potential third party don’t have to take law into consideration e.g. based on
politics or fairness
o Arbitration and judicial settlement = legal decision taken on basis of IL
- Methods fall on a spectrum – spectrum on level of third party involvement
o E.g. negotiation has no involvement of 3rd parties
o Judicial settlement – other side of spectrum, parties have minimal level of
control, maximum 3rd party involvement
- No hierarchy between these forms of DS, can pursue multiple forms of DS
- Note that regional courts etc. are fora, but not method of DS
- If she had time she’d also cover
o Inquiry – looks like adjudication, disputed facts are clarified through impartial
investigation by ad hoc commission appointment specifically for this case,
take many forms, e.g. through commissions, panels, fact-finding bodies
o Conciliation – similar, involves examination by commission of facts, but
conciliation commissions go further by looking at the law, look at lot like
arbitration tribunals, exam factual and legal, make non-binding
recommendations.
- Arbitration and adjudication make binding decisions!
o East Timor and Australia – oil and gas exploration in Timor Sea
,Distinction between Arbitration and Adjudication
- Arbitration – binding procedure of settlement, legal rules applied, selected by and with
the participation of parties, similar to adjudication, may be prescribed in a treaty;
dispute is resolved by an impartial adjudicator whose decision the parties to
the dispute have agreed, or legislation has decreed, will be final and binding
- Adjudication – decision makers are members of a permanent institution, procedure for
the binding settlement of disputes through the application of legal rules by adjudicators
who are members of permanent judicial institution
o Distinction here is permanence of institution
Parties typically opt for binding decisions
- Often applicant feels it has the stronger legal case
- Smaller development states may prefer recourse to binding processes – equal ground
- Create precedent, settle dispute once and for all
- Litigation can catalyse settlement
- Binding judgement/award issued by third party can avoid states having political
backlash more acceptable for states and gives them political cover in domestic
politics than if they actually entered into negotiation agreements with disputing party
o Article by Shirley Scott
- Not always satisfactory resolution e.g. negotiation/mediation may come after award or
judgement (North Sea Continental Shelf case)
- Litigation doesn’t neccesarily mean DS – most of the time states comply but not always
(Havana case; Germany Italy case)
- Often judgement/award ends up bringing about further disagreements (South Sudan v
Sudan)
ICJ
- Established 1945
- Principal judicial organ of UN
- All other organs in New York – this one in The Hague – historical reasons PCIJ
- PCIJ – statute is similar to ICJ statute now, was basis for it
- Oldest standing international court
- Largest breadth of jurisprudence – long-line of cases covering a wide range of subjects,
covers entire field of PIL, unlike some other standing courts e.g. LoS Tribunal
Composition of Bench
- Changed in Feb following elections
- 15 judges, according to practice distributed geographically (3 from Africa, 2 from LaAM +
Carribean, 2 from Asia, 3 Western group, 2 from Eastern Europe)
- 5 perm members each have 1 – but in recent rounds of elections UK lost its seat and
judge from India has place – shake up
- Supposed to be ‘high moral character’ and are appointed to ‘highest judicial offices’ in
their own countries
- Art. 9 of ICJ statute – court represents main forms of civilization and principle legal
system of the world
- Art. 3 – cant include more than 1 national of same state
, In practice
- Judges tend to be from similar backgrounds
- Career diplomats, academics in PIL, practitioners, etc.
- Actually, more unusual for them to have prior judicial experience
- Often from ILC – international law commission
- Election process
o 9 year terms
o can serve multiple ones
o elections held every 3 years
o PCA National Groups – nominate candidates, not nominated by home govs.
Nat. groups – each member state of PCA selects four individuals who
form national group who may potentially serve as arbitrators, they
make a list of potential candidates for ICJ, in practice not a lot of
transparency compared other international courts
States not in PCA can also make national groups
o Once nominated by nat. groups – elected by both UNGA and UNSC, separate
but simultaneous votes
- Judges serving in their individual capacity, not as representatives of home governments,
although geographically representative
Judge ad-hoc - doesn’t need to represent their nationality, open to criticism – voting
patterns of ICJ, ad hoc judges vote in line with arguments that have been made by the states
that have nominated them. If 2 ad hoc judges vote in line with their home state then they
can nullify each other’s vote basically.
- Concept is to increase confidence in ICJ system
- Will help to make sure the views of his or her state are properly explained to all the
other judges
Chambers of the court
- Can sit in chambers of 3 or more judges in theory
- But in practice rarely happens – maybe 6 times in practice e.g. (Gulf of Main case, US v
Canada) if it ever sits in chambers, usually does it in chamber of 5 judges
- Est. environmental disputes chamber in 1993 – with hope to pursue environmental
disputes through this – disc. in 2006 due to lack of use
- Not all that important in court
ICJ Proceedings
Contentious jurisdiction – focus of course, jurisdiction to decide legal disputes and
between states. Art. 34 ICJ statute - only States have access to courts’ contentious
jurisdiction (no IOs, rebel groups, TNCs, individuals). Judgements are binding.
Advisory jurisdiction - opinions are not binding, UNGA, UNSC and specialized agencies can
ask for opinion – Art.96 UN Charter. Legal questions, but not disputes. Not for states to
request AO. Don’t fit into course. In practice though AOs that court receives do relate to
larger international disputes e.g. ongoing proceedings in Chagos Archipelago, Kosovo
declaration for independence, Israel’s Security Wall
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