.png){kind=icon}
For a number of years now, the small islands state of Mauritius has used a number of international legal avenues to get some sort of resolution to what it considers to be its legal dispute with the United Kingdom concerning the Chagos Archipelago. The Archipelago is a string of atolls, an Island situated far out in the ocean and around 50 years ago, the United Kingdom removed the local population in order to allow for the construction of a military base on one of the islands called Diego Casia.For years now, the United Kingdom and Mauritius has disagreed on over sovereignty of the Chagos Archipelago. In 2015,Mauritius took the United Kingdom to arbitration over its establishment of marine protected area around its Archipelago. And in 2017, Mauritius managed to make the United Nations general assembly ask the International Court of Justice to give its advisory opinion on the issue of sovereignty over the islands. In February 2019, the ICJ issued its long-awaited advisory opinion that went Mauritius way. The ICJ concluded that the process of decolonization of Mauritius was not lawfully completed when the country became independent in 1968, and that the United Kingdom must therefore end its administration of the islands. Three months later, the general assembly of the United Nations demanded that the United Kingdom withdrawal from the islands within six months.
In this episode, of the International Law Podcast, episode 12, we will examine different ways of settling international disputes,and as always,I’ll focus on three particular elements that I find are particularly noteworthy.
The first of these elements constraints a different non-adjudicatory means of settling disputes.Because, while it's only natural that lawyers tend to focus on legal adjudication, such as adjudication before courts like the International Court of Justice,they should be aware there are many other means of dealing with international disputes. And, in fact, some of these other means are often a more productive way to settle the dispute than resorting to a confrontation about who was wrong and who was right in a court of law.
In most cases, of course, what states will do when they disagree on an issue in their international relations is to simply try to find common ground on a sensible solution. The formal term for such efforts is ‘negotiations’.In practice,of course, there is absolutely no guarantee that the negotiations will be successful and that the states will come to any form of agreement. But that is the way it is. And that, of course, is also why some disputes end up before a court of law.In general, there are many unresolved issues in international relations, and as long as the dispute does not threaten international peace and security, in which case the charter of United Nations obligeand stays to try to resolve them, there is no requirement in International Law that states must try to resolve their disputes. Now, there are many ways whereby a third party can get involved in the efforts to find a peaceful resolution to a dispute. When that third party offers to facilitate a dialogue, and apart from that does not offer any view on the proper way to resolve a dispute the term used, is that of good offices. In recent years, for example, Kuwait has offered to facilitate dispute settlement in the middle east.
The term ‘mediation’ is used when a third party becomes more actively involved in the negotiations and even suggests the terms for how the dispute could be settled.In practice, of course, for a mediator to be successful, it is crucial that the disputing parties trust the mediating party. The term ‘conciliation’ is used for non legally binding recommendations that are offered by the third party that have been entrusted by the parties to give its views. And a number of international conventions these days have various provisions that explicitly list conciliation as a possible means of settling disputes that may arise under these conventions. Now, since it is the world's premier institution for interstate relations, the United Nations obviously plays a very important role when it comes to dispute settlement. And here, of course, the focus is, as always, on ensuring that potentially peace-threatening disputes do not escalate and are dealt with in an orderly fashion.
In a latter episode of the podcast, I'll return to the competencies of the United Nations Security Council, when it comes to upholding international peace and security. But also, the United Nations general assembly, where all UN members have a seat, and the Secretary General of the UN,actually play important roles when it comes to settling disputes. The Secretary General can, for example, offer his good offices as a way to try to pave the way for the negotiation of a peaceful resolution to an ongoing dispute.
The second issue I'll spend some time on in this episode is that of arbitration; that is, a form of dispute settlement that is often somewhat overlooked. To be sure,arbitration is a form of dispute settlement that is of a legal character, and in thus, falls within legal adjudication.What is particular about arbitration as a form of legal adjudication is that the parties to the dispute essentially creates their own court. And there is a very long history of arbitration in International Law.Here,one should remember that it was not until 1921 that the first permanent International Court of Justice was established.Before that, disputing parties had to create and establish their own courts if they wanted a legal solution to their international disputes.Since 1899,however, those efforts were assisted by the creation of the Permanent Court of Arbitration that was created present to the Hague convention for the pacific settlement of international disputes. The Permanent Court of Arbitration still exists today, and like the ICJ, which I'll return to in a minute or so, it is based in the Hague in the Netherlands. Judgments from international courts of arbitrations are called awards and some awards have made very important contributions to the development of international law. Among the prime examples are the Alabama claims arbitration from the 1870s, the Island of Palmas case from the 1920s, and the Trail Smelter case from the 1930s.
A reasonable award that I think could turn out to be of fairly high importance was the 2016 award in the South China sea arbitration, and an award that dealt with China's many controversial claims and practices in the South China sea.Arbitration is provided for as a possible means of settling disputes in many treaties. In fact, the South China sea arbitration was created pursuant to the United Nations convention on the law of the sea. As I've already hinted at, arbitration is a specialized means of legal adjudication because the disputing parties maintain substantial control over the arbitration process. For one thing, the parties can decide on who should be the judges at the arbitration and such judges do not actually have to have a legal background. The parties also have certain control of the rules of the tribunal. The parties can, for example, create procedure rules that are more flexible than rules traditionally used by courts. And one of the things that is often very attractive to the parties to a dispute, and something that makes an arbitration very appealing, is that it enables the parties to keep the proceedings confidential.
The third and the last issue I will mention here, concerns, of course, the competencies of the International Court of Justice. Now, the court, the ICJ is of course the only court in international law that has a general jurisdiction to deal with inter-state disputes. The statute of the court is attached to the UN charter and all members of the United Nations are automatically parties to the statute, and therefore, also the court. As I already noted, the ICJ is based in the Hague in the Netherlands.Its judges are independent, and in principle, at least,elected without consideration of their nationality.The court can deal with contentious cases where states have a concrete legal dispute they need to settle.The judgments and decisions of the ICJ are binding on the parties and not subject to appeal.Importantly, the court’s jurisdiction, and therefore also its treatment of the case, requires the consent of the parties to the dispute. Now that consent can be expressed in different ways. One thing:The consent can be explicit with regard to a particular dispute that may be brought before the court.But it can also be a more general consent. This is where state agrees to have potential legal dispute submitted to the ICJ. Such a generalized form of consent is provided for in many treaties where it is specified that potential disputes under the treaties can be submitted to the ICJ. In fact, this is how most cases make it to the court. States can also express a general consent to the jurisdiction of the court if they make a declaration under Article 36(2) of the ICJ statute.By so doing, they accept the court's jurisdiction in disputes other states that have made similar acceptances.The procedure here is referred to as the so-called ‘optional clause system’ and many states these days have made such declarations.
Now, it is quite normal in cases that appear before the ICJ that the state that has been brought there will initially argue that the court does not have jurisdiction to deal with the case at all. Therefore, in most cases, the court will need to deal with the question of jurisdiction first.One of the most important competencies of the court is that it can decide that the states to dispute must adopt certain immediate measures if the court thinks that that is required. Such measures are termed provisional measures. And the purpose of such measures is to ensure that the rights of one or two of the parties to dispute can still be preserved.
If, for example, state A brings a case before the ICJ, because it does not believe that state B is entitled to, let's say construct a bridge because it has a harmful effect on his territory, the court may decide by adopting provisional measures that the construction of the bridge must be temporarily halted until it has had the chance to decide the merits of the case. There are quite a few examples of where the court has issued such provisional measures in cases that concerned the potential infringement of individual rights. For example, it is a bit unfortunate if a state has already executed someone before the court has had the chance to examine what the death penalty was lawfully posted.Judgments by the court are final and without appeal. And the same goes for the court’s decisions on jurisdiction and provisional measures. The courts judgments are, however, only binding on the parties to dispute and not on third parties. It should be noted that all members of the UN are obliged to comply with the decisions of the court and if a party does not do so, the other party may bring the matter before the United Nations Security Council.
Now, final note, the ICJ not only deals with contentious cases. It can also issue what is called, an advisory opinion, on a legal question that is asked by a body that is authorised to ask such a question. And this, of course, is what occurred on the issue on the sovereignty of the Chagos Archipelago that I opened this episode with.Here, as I mentioned, the general assembly asked the courts to offersits views on the question, and the court found in favor of Mauritius. Now, in theory, the purpose of an advisory opinion is not to settle a particular dispute, as such, but instead to assist the organ that request the opinion in its efforts to deal with the issue.Therefore, the opinions are not binding and they do not require the consent of the state whose issues are being dealt with in the opinion.So far, the United Kingdom has refused to give up its sovereignty of the Chagos Archipelago exactly because the advisory opinion is not legally binding upon the United Kingdom. Instead, the British government has promised to cede the territory once it is no longer needed for defense purposes.In practice, though, even though advisory opinions are not, as such, legally binding, they are very important because they illustrate how the ICJ views a particular issue. Over the years, the court has issued many important advisory opinions. The court has, for example, given its views about the legality of the use of nuclear weapons and about Israel's construction of a controversial war in the occupied Palestinian Territories.