Brownlie - The Peaceful Settlement of International Disputes

The Wang Tieya Lecture inPublic International Law

The Peaceful Settlement ofInternational Disputes

Ian Brownlie, QC*

Abstract

The purpose is to provide a general survey of the practice among States of thepeaceful settlement of international disputes. The survey reflects the variety ofinstruments for peaceful settlement, including negotiation, conciliation andcommissions of inquiry. Care is taken to indicate the quantitative significanceof the inter-State arbitration in relation to the use of standing international tri-

bunals, such as the International Court of Justice. The analytical commentaryincludes discussion of the typology of disputes and the comparative merits ofarbitration and the process of adjudication in the International Court.

1. It is logical to begin by asking what purposes international law serves. In a general

way, international law provides the practical rounding out of the principles of peaceful

co-existence. International law provides the criteria for the identification of States and

organizations of States, and of the nationality of individuals and legal entities. Inter-

national law provides the definition of the political and territorial limits and the jurisdic-

tion of States, and also their immunities from jurisdiction. International law also

provides the basis of the civil responsibility of States for breaches of international law,

together with the appropriate remedies. And lastly international law provides the prin-

ciples and modalities governing the peaceful settlement of disputes between States.

Blackstone Chambers, Temple, London (email: [email protected]). This is the textof the first Wang Tieya Lecture delivered on 31 March 2009 at the National Key Research Center,Wuhan University Institute of International Law, China, on the occasion of the first Wang TieyaAward sponsored by the Center and the Chinese Journal of International Law.

# The Author 2009. Published by Oxford University Press. All rights reserved.Advance Access publication 3 July 2009.......................................................................................................................................

...................................................................................................................................................................Chinese Journal of International Law (2009), Vol. 8, No. 2, 267283 doi:10.1093/chinesejil/jmp015

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2. And before I move into my subject, I would point out the anomaly to be found in a

number of academic handbooks, that is to say, the absence of an adequate treatment of

the subject of peaceful settlement. This is a pity because, although international law is a

relatively weak system and it is often difficult to obtain a peaceful resolution of a dispute,

there is in fact a regular pattern of peaceful settlement which is inadequately reported,

probably because of the absence of any drama, an absence of casualties.

3. My subject matter is the settlement of disputes. A dispute can be defined as a dis-

agreement on a point of law or fact, a conflict of legal views or of interests between two

States. Disputes relate to an alleged breach of one or more legal duties. They may also

relate to a question of attribution of title to territory, to maritime zones, to movables orto parts of the cultural heritage of a State.

4. Peaceful settlement is a phrase which covers a considerable variety of processes and

outcomes. The following cases are merely examples:

(a) settlement according to law resulting from judicial decision or arbitration;

(b) settlement involving negotiations between States and political compromise;

(c) pre-ordained settlements, such as the reversion of Hong Kong to China, in

accordance with the Joint Declaration on the Question of Hong Kong agreed

in 1984;1

(d) multilateral settlements implemented with the lawful authority of the inter-

national community, including the Peace Treaties with Italy2 and Japan3 after

World War Two.

5. The standard type of dispute settlement is based upon the genuine consent of the

parties to the dispute and involves the application of law, and in the case of purelyfactual issues, the application of judicial standards of the assessment of evidence.

6. There are certain limitations placed upon the justiciability of disputes which are

dictated by rule of law considerations. In the first place, there is the distinction

between legal and political disputes. The essential point is not the existence of a political

element; disputes will always have such an element. The requirement is the existence of a

legal dispute which can be segregated from the political elements. There are also more

technical bases for non-justiciability, and especially the element of mootness. Thus, in

the Northern Cameroons Case, 4 the International Court found that the legal status of the

territory in question had already been determined by the General Assembly.

7. In the well-known Nuclear Tests Cases5 in 1974, the International Court held that

the issue raised by Australia and New Zealand was moot as a consequence of French

undertakings not to continue the nuclear tests. In the words of the Court:

1 23 ILM, 1366.

2 49 UNTS, 3 (signed 10 February 1947).

3 136 UNTS, 45 (signed 8 September 1951).

4 ICJ Reports, 1963, 15.

5 Australia v. France, ICJ Reports, 1974, 270271, para 55.

268 Chinese JIL (2009)


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The Court, as a court of law, is called upon to resolve existing disputes between

States. Thus the existence of a dispute is the primary condition for the Court to

exercise its judicial function; it is not sufficient for one party to assert that there is

a dispute, since whether there exists an international dispute is a matter for objec-

tive determination by the Court (Interpretation of Peace Treaties with Bulgaria,Hungary and Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950,p. 74). The dispute brought before it must therefore continue to exist at the

time when the Court makes its decision. It must not fail to take cognizance of

a situation in which the dispute has disappeared because the object of the

claim has been achieved by other means. If the declarations of France concerning

the effective cessation of the nuclear tests have the significance described by 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 bilateral dispute. This was the case in theWestern Sahara case,6 on which the International Court gave an Advisory Opinion in1975.

I. The typology of disputes

9. Territorial and boundary disputes concern both substantial material interests but alsosensitive questions of social geography and traditional regional connections. It is tempt-

ing 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 Rannof Kutch arbitration,7 the EritreaEthiopia Boundary Commission Case8 and the Camer-oon v. Nigeria case9 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 mod-

alities of withdrawal and transfer of authority in the Bakassi Peninsula prepared by a

CameroonNigeria Mixed Commission. The International Court decided the case on

10October 2002. The Agreement on implementation was concluded on 12 June 2006.10


7 50 ILR, 2.

8 130 ILR, 1.


10 Private source.

Brownlie, The Peaceful Settlement of International Disputes 269


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II. Methods of settlement

11. I can now move on to the different methods of peaceful settlement. There is a variety

of instruments apart from judicial settlement and the literature of international law

perhaps gives too much emphasis to adjudication.

12. The first and classical mode of settlement is negotiation. This involves a direct

and bilateral process. Negotiation can produce a settlement in accordance with legal cri-

teria or in accordance with both legal and political criteria. In any case, negotiation is

politically more flexible than adjudication.

13. A recent example of a negotiated settlement related to the NATO bombing

campaign against Yugoslavia in 1999. On 7 May 1999, NATO aircraft bombed the

Chinese Embassy in Belgrade, killing three Chinese nationals and wounding approxi-

mately 20 others. American officials described the episode as a tragic mistake.

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 Chinese Government, upon receipt of the amount mentioned above, will dis-

tribute, as soon as possible, all the funds among the bereaved families and those

suffering injuries or losses, and provide the U.S. Government with relevant infor-

mation and receipts confirming the distribution.

3. The agreed amount, when fully paid as agreed, will constitute a full and final

settlement of any and all claims for deaths, injuries or losses suffered by the per-

sonnel of the Chinese side caused by the U.S. bombing of the Chinese Embassy in

the Federal Republic of Yugoslavia.

4. The banking modalities are contained in the attached Annex.

5. The U.S. side has indicated that it will continue the negotiations with the Chinese

side on the settlement of the property loss and damage of the Chinese side on an

expedited basis.

US Department of State Legal Adviser David R. Andrews asserted that the payment

will be entirely voluntary and does not acknowledge any legal liability. This payment

will not create any precedent.12

11 Murphy (ed.), United States Practice in International Law, 19992001 (2002), 101.

12 Ibid., 102.



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15. After five rounds of talks, the United States and China, on 16 December 1999,

also signed two agreements concerning compensation for damage to the diplomatic

properties of both States. In the first agreement, the United States stated its intent to

seek US$ 28 million in funding from Congress for damage to the Chinese Embassy

in Belgrade. In the second agreement, China agreed to pay US$ 2.87 million for

damage to US diplomatic and consular properties in China caused by the Chinese

demonstrations.13

16. Negotiation has a role in the less dramatic context of maritime delimitation. I

refer here to the Agreement between the PRC and the Socialist Republic of Vietnam

signed on 25 December 2000 on delimitation in the Beibu Gulf.14 The first paragraph

of the Agreement provides as follows:

1. The Parties have determined the demarcation line for the territorial seas, exclu-

sive economic zones and continental shelves of the two countries in the Beibu

Gulf in accordance with the 1982 United Nations Convention on the Law of

the Sea, generally accepted principles of international law and international

practice, based on the full consideration of all relevant circumstances of the

Beibu Gulf and on the equitable principle, and through friendly consultation.

III. Mediation

17. The next type of procedure is mediation, which is the first of a series of modes of

third-party settlement. Good offices is a similar mechanism. There is no standard defi-

nition of mediation but it is nonetheless normally distinguished from conciliation. In

principle, mediation involves the direct conduct of negotiations on the basis of propo-

sals made by the mediator. Modern practice contains an important example of an effec-

tive mediation. This was the Papal Mediation in the years 1978 to 1984 between Chile

and Argentina.15 The two States formally accepted the mediation of the Holy See in the

Agreement signed on 8 January 1978. The mediation lasted five years and resulted in a

definitive Treaty of Peace and Friendship signed on 29 November 1984.16 Other

modern examples of mediation exist. They include the mediation of the Soviet

Union between India and Pakistan over the Rann of Kutch in 196617 and the mediation

of Algeria between Iran and the United States concerning the Hostage Crisis in

19801981.18

13 Ibid., 99102.

14 Colson and Smith (eds), International Maritime Boundaries (Vol. V, 2005), 3745.

15 82 ILR, 671.

16 24 ILM, 11.

17 Schweisow, in: Luard (ed.), The International Regulation of Frontier Disputes (London, 1970),160162.

18 IranU.S. Claims Tribunal Reports, Vol. 1, 198182 (Cambridge, 1983), 336.



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18. Mediation is commonly provided for in various multilateral treaties for the peace-

ful settlement of disputes. The United Nations and, in particular, the Secretary-

General, have often either recommended or performed mediation or good offices, for

example in Cyprus from 1984 onwards.19

IV. Conciliation

19. The next type of third-party settlement is conciliation which is similar in purpose to

mediation. The emphasis is usually on fact-finding, and conciliation is believed to be

more structured than mediation.

20. The institution has been defined as:20

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 endeavour-

ing 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

22. 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.

23. 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 examplesof Commissions of Inquiry concerned the Red Crusader incident between Denmark

and the United Kingdom (1962),21 and the Letelier and Moffitt case between Chileand 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.

19 Handbook on the Peaceful Settlement of Disputes between States, United Nations (1992), 37.

20 Hersch Lauterpacht, Oppenheims International Law (Vol. II, 7th edn, 1952), 12.

21 35 ILR, 485.

22 88 ILR, 727.



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VI. Arbitration

24. I shall now move to the substantial topic of arbitration.

25. The general concept of arbitration is ancient, but in modern practice it appears in

the Jay Treaty of 1794, between the United States and Britain. The institution gained a

political profile in Anglo-American practice of the late nineteenth century. The specta-

cular case was the Alabama Claims Award of 1872,23 by which the United Kingdom was

ordered to pay compensation to theUnited States of 1512 million dollars for her acts of inter-

vention on the side of the Confederate forces in the CivilWar. The Tribunal consisted of an

uneven number of members with the power to decide by majority vote. The Tribunal

adopted a judicial procedure and produced a reasoned Award. Other nineteenth-century

arbitrations included the Behring Sea arbitration (1893),24 the British Guiana arbitra-tion (1897)25 and the North Atlantic Coast Fisheries arbitration (1910).26

VII. The Permanent Court of Arbitration

26. 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

27. 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 modal-

ities 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.

IX. Enforcement of awards

28. Arbitral Awards are binding, and provision for appeal is relatively rare. However,

proceedings for annulment are possible, for example, in case of an excess of jurisdiction.

23 Moore, Arbitrations, I, 653.

24 Ibid., 755.

25 92 British and Foreign State Papers, 970.

26 R.I.A.A., xi., 173.



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Some arbitration agreements permit further proceedings in the event of a dispute con-

cerning the implementation and interpretation of an Award.

X. Arbitrations since 1945

29. 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.

30. Arbitrations fall into two categories, those under clauses in standing treaties and

those under ad hoc agreements to arbitrate.31. The following arbitrations occurred under standing treaty clauses:

(1) Air Transport Services Agreement Arbitration (United States v. France), Award1963 and Interpretative Decision 1964.27

(2) ItalyUnited States Air Transport Arbitration, Award (Advisory Opinion),1965.28

(3) ArgentinaChile Frontier (Palena) Case, 1966.29

(4) Beagle Channel Arbitration, Award and Decision, 18 February 1977 (Chile and

Argentina).30

32. The Beagle Channel Arbitration represents an interesting example of compulsory

jurisdiction based upon a trilateral compromiso. The background is explained in theDeclaration by the British Government dated 18 April 1977, which reads in part:

WHEREAS the Argentine Republic and the Republic of Chile hereinafter

referred to as the Parties became parties to a General Treaty of Arbitration

signed at Santiago on 28th May 1902(2) hereinafter referred to as the Treaty;

ANDWHEREAS His Britannic Majestys Government duly accepted the duty

of Arbitrator conferred upon them by the Treaty;

AND WHEREAS a controversy has arisen between the Parties concerning the

region of the Beagle Channel;

AND WHEREAS, on this occasion, the Parties concurred with regard to the

applicability of the Treaty to this controversy and requested the intervention of

Our Government in the United Kingdom of Great Britain and Northern

Ireland as Arbitrator;

AND WHEREAS Our Government in the United Kingdom after hearing the

Parties were satisfied that it would be appropriate for them to act as Arbitrator in

the controversy;

27 38 ILR, 182.

28 45 ILR, 393.

29 38 ILR, 10.

30 52 ILR, 93.



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AND WHEREAS OUR Government in the United Kingdom in accordance

with the Treaty and after consulting the Parties separately determined the Agree-

ment for Arbitration (Compromiso) which was signed on behalf of Our Said

Government and the Parties at London on 22nd July 1971(3);

AND WHEREAS for the purpose of fulfilling their duties as Arbitrator Our

Government in the United Kingdom appointed a Court of Arbitration composed

of the following members:

Mr. Hardy C. Dillard (United States of America)

Sir Gerald Fitzmaurice (United Kingdom)

Mr. Andre Gros (France)

Mr. Charles D. Onyeama (Nigeria) and

Mr. Sture Petren (Sweden)

AND WHEREAS, the Government of the Argentine Republic having on 11th

March 1972 denounced the Treaty with effect from 22nd September 1972, both

Parties stated their understanding, which was shared by Our Government in the

United Kingdom, that this would in no way affect the arbitration proceedings in

the present case and that the Treaty and the Agreement for Arbitration (Compro-

miso) would continue in force with respect to those proceedings until their final

conclusion.

33. The subject-matter of this arbitration was extremely sensitive and it is to

be noted that the composition of the Tribunal did not include arbitrators from the

region.

34. In the event, the islands in question were awarded to Chile and the military gov-

ernment in Argentina purported to annul the Award. In spite of this unhappy outcome,

the subject-matter of the dispute was subjected to the mediation of His Holiness the

Pope and the resulting Treaty of Peace did not disturb the allocation of the islands in

the original Award.

35. Several maritime delimitation cases have been dealt with in accordance with

Annex VII of the United Nations Convention on the Law of the Sea, namely:

The Southern Blue Fin Tuna case (Australia and NZ v. Japan), Award dated 4August 2000;31

The case of Barbados and the Republic of Trinidad and Tobago, Award dated 11April 2006;32 and

The case of Guyana and Suriname, Award dated 17 September 2007.33

31 119 ILR, 508.

32 See Permanent Court of Arbitration, www.pca-cpa.org/showpage.asp?pag_id=1029), Past Cases(Partial List).

33 47 ILM, 164.



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36. The second category of arbitration cases consists of those heard on the basis of

ad hoc special agreements or compromis. In the period since 1945, cases of this type

were as follows:

(1) Rann of Kutch Case (India and Pakistan), Award dated 19 February 1968.34

(2) Anglo-French Continental Shelf Case, Award dated 30 June 1977.35

(3) Case concerning the Air Services Agreement of 27 March 1946 (United States

v. France), Award dated 9 December 1978.36

(4) Guinea-Guinea (Bissau) Maritime Delimitation Case, Award dated 14 February

1985.37

(5) Dispute concerning Filleting within the Gulf of St Lawrence (Canada/France),

Award dated 17 July 1986.38

(6) Taba Case (Boundary Pillars between Egypt and Israel), Award dated 29

September 1988.39

(7) Rainbow Warrior Case (New Zealand v. France), Award dated 30 April 199040

(issues of State responsibility in re ruling of Secretary-General).

(8) St Pierre et Miquelon (Maritime Delimitation between Canada and France),

Award dated 10 June 1992.41

(9) Determination of Maritime Boundary (Guinea-Bissau v. Senegal), Award dated

31 July 1989.42 The aftermath of this Award involved the resort to the Inter-

national Court on the part of Guinea-Bissau in an unsuccessful attempt to

obtain a declaration of nullity: see Case concerning the Arbitral Award of 31

July 1989.43

(10) Heathrow Airport User Charges (United StatesUnited Kingdom), Award dated

30 November 1992; Suppl. Decision, 1 November 1993,44 and, finally,

(11) Red Sea Islands Case (Eritrea and Yemen), Phase One, Award dated 9 October

199845; Phase Two, Award dated 17 December 1999.46

34 50 ILR, 2.

35 54 ILR, 5.

36 54 ILR, 303.

37 77 ILR, 635.

38 82 ILR, 591.

39 80 ILR, 224.

40 82 ILR, 499.

41 95 ILR, 645.

42 83 ILR, 1.


44 102 ILR, 215.

45 114 ILR, 1.

46 119 ILR, 417.



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37. Looking back at the accumulation of arbitration cases, it is clear that inter-State arbi-

tration provides a major element in the pattern of methods of peaceful settlement. Con-

sequently, arbitration clearly constitutes a major competitor to both the International

Court and the Law of the Sea Tribunal.

XI. Arbitration and adjudication can now be compared

38. The following observations may be made:

(a) The control over procedure exercised by the parties is much greater in the case of

arbitration. While the flexibility of arbitration has some attraction, control by the

parties can lead to substantial delay.

(b) Arbitration is litigation in conditions of privacy: no third-party intervention is

possible. This absence of the possibility of intervention gives arbitration an

advantage over the International Court, in which third-party intervention is

allowed under certain conditions.

(c) The International Court has the advantage that the Court and Registry are avail-

able without cost.

(d) Arbitration usually produces no jurisdictional problems.

(e) Enforcement problems tend to be less acute in the case of the International

Courtbut both systems have enforcement problems.

(f ) Arbitration is relatively expeditious, but a number of arbitrations concerned with

territorial disputes and maritime delimitation have taken as long as proceedings

in the International Court.

XII. The standing Court known as the International Court ofJustice

39. The International Court of Justice is the principal judicial organ of the United

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.

41. 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:



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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;

c. the existence of any fact which, if established, would constitute a breach of

an international obligation;

d. the nature or extent of the reparation to be made for the breach of an inter-

national obligation.

3. The declarations referred to above may be made unconditionally or on con-

dition of reciprocity on the part of several or certain States, or for a certain time.

4. Such declarations shall be deposited with the Secretary-General of the United

Nations, who shall transmit copies thereof to the parties to the Statute and to the

Registrar of the Court.

42. The incidence of acceptances of jurisdiction in advance under Article 36(2) has

varied over the years. At present, out of 193 member States of the United Nations,

66 States have accepted the jurisdiction based upon Article 36(2). The number of accep-

tances as a proportion of parties to the Statute has steadily decreased but in recent yearshas been stable. In any event, a good number of States take cases in front of the Court on

the basis of special agreements in preference to going to arbitration. Since 1984, the

Court has been reasonably busy, usually with some 12 cases on the docket. At

present, 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.

43. What then are the principal purposes of the Court?

First, to settle disputes effectively; Second, to remove issues of public order, such as uncertain boundary lines, and

thus to reduce the risk of conflict.

Third, to develop the rules of the law; Fourth, to provide an exemplar for the management of cases by other tribunals.

44. The Court is a collegiate body and it maintains a high standard of independence and

professionalism. With rare exceptions, the Court avoids the making of compromise sol-

utions sometimes to be seen in the work of courts of arbitration. There remain a number

of problems which are probably inherent in the political context in which the Court

exists. Some Governments consider that the Court should deal with cases more expedi-

tiously, while others are put in fear by what can be seen to be too much haste, especially

in relation to matters of fact.



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45. In general, the prognosis for the Court is good. The flow of cases is broad-based

and not confined to one type of jurisdiction or to States of a particular region.

46. Certain cases, such as the Nuclear Tests Cases47 or the Nicaragua Case,48 have

attracted forecasts of doom for the Court. But there is no evidence that such decisions

had deterrent effects and the business of the Court actually increased in the wake of the

Nicaragua case.

47. In any event, the jurisdiction of the Court depends upon consent, and it is always

consent which lies behind the main sources of jurisdiction; that is:

compulsory jurisdiction by virtue of declarations made under Article 36(2) of theStatute;

ad hoc consent for particular cases derived from negotiated special agreements; dispute settlement clauses in pre-existing treaties, as in the ELSI case between the

United States and Italy.49 This case was based upon the Treaty of Friendship,

Commerce and Navigation of 1948.

48. I shall now look more closely at the System of Compulsory Jurisdiction. In the

context of international relations both in 1920 and in 1945, the conception of compul-

sory jurisdiction in a standing court of international justice was very radical indeed and

remains so. It is conventional to assess the role of the Court almost exclusively in terms

of the progress and rate of development of the system of compulsory jurisdiction.

Initially at least that will be my angle of approach.

49. 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 accep-

tance 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.

50. Leaving these matters aside, it was supposed that the statistics of the decisions

revealed that the performance of the Court was modest:

47 Australia v. France, ICJ Reports, 1974, 253.





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PCIJ 30 Contentious cases leading to judgment

I.C.J. 112 Contentious cases

24 Advisory opinions

51. That is, so to speak, the pessimistic view of the Court.

52. 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 recipro-

city. The significance of the automatic reservation has been less than expected:

(1) After it backfired against France in the Norwegian Loans Case,50 it

looked less useful.

(2) Originally the U.S. example was followed by five States. Of States pre-

sently 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.

(c) The third source of alleged dilapidation relates to the question of procedural

reforms.

In the 1978 Rules of Court, various criticisms were taken into account. And in

any case, it may be doubted whether internal procedural reform is a major issue.

(d) The fourth alleged problem is the supposedly disappointing amount of business

the Court gets.

50 ICJ Reports, 1957, 9, at 24.



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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 iswith public law and the key question is often status and not compensation. Ahigh 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 pre-

sented 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 pol-

itical 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:57

The 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

51 ICJ Reports, 1951, 116.


53 ICJ Reports, 1984, 246.



56 ICJ Reports, 2002, 303.

57 Institut de Droit International, Livre du Centenaire 18731973 (1973), 279.



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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 consider-

ations with which they do not find themselves at home. They much prefer a pol-

itical 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 pre-

vailing 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 . . . .58

57. In cases such as this, the Court is, in effect, transferring the burden of decision-

making back to the parties. While the intention is to be constructive, the result is contra-

dictory 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:

First, the system of peaceful settlement of inter-State disputes is a significant partof the universe of international relations.

Second, the modalities are very varied and adjudication is simply one instrumentforming part of an entire orchestra of modes of peaceful settlement.

Third, in relation to settlement on the basis of law, the practice of arbitration is assignificant as the work of standing tribunals, such as the International Court.

Fourth, the system we have is not attuned to the settlement of purely politicaldisputes.

Fifth, the International Court has a successful record of the settlement of disputesconcerning territory and delimitation, including maritime delimitation.

58 ICJ Reports, 1997, 7, at 83.



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And lastly, resort to both the International Court and to ad hoc arbitration consti-tutes the general practice of all regions.

59. The general outcome is ironical, to say the least. In the era of decolonization, in the

1960s, western pundits expressed portentous concerns about the aptitude of the new

States to participate in what was seen as a western system of international law and

dispute settlement. These concerns were both condescending and unfounded.

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.



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