Judicial and Arbitral Settlement in Public International Law

Introduction Judicial and arbitral settlement are formal methods for resolving disputes between states under Public International Law. These methods provide impartial, legal means for peaceful dispute resolution, rather than resorting to force or coercion. This section will cover the principles, legal framework, key institutions, and procedures surrounding judicial and arbitral settlement in Public International Law.

1. Judicial Settlement

Judicial settlement refers to the resolution of disputes between states through the adjudication by an international court or tribunal. The most prominent institution for judicial settlement in Public International Law is the International Court of Justice (ICJ).

A. International Court of Justice (ICJ)

The ICJ, established by the United Nations Charter in 1945, serves as the principal judicial organ of the UN. It settles legal disputes submitted to it by states and gives advisory opinions on legal questions referred to it by authorized international organs and agencies.

i. Jurisdiction of the ICJ

The ICJ has two types of jurisdiction:

Contentious Jurisdiction: The ICJ can only hear disputes between states that have consented to its jurisdiction. Consent may be given in the following ways:
- Through special agreement (compromis) where both parties agree to submit the dispute to the ICJ.
- Via compromissory clauses in treaties that provide for the ICJ to have jurisdiction over disputes related to that treaty.
- Through optional clause declarations under Article 36(2) of the ICJ Statute, where states may declare they recognize the ICJ’s jurisdiction as compulsory in legal disputes with other states that have made the same declaration.
- Forum prorogatum, where a state consents to the ICJ’s jurisdiction after proceedings have been initiated by another state.
Advisory Jurisdiction: The ICJ provides advisory opinions on legal questions when requested by the UN General Assembly, the UN Security Council, or other UN bodies and specialized agencies. Advisory opinions are non-binding but carry significant legal and moral authority.

ii. Procedure Before the ICJ

The ICJ's procedure is governed by its Statute and Rules of Procedure:

Written Phase: States submit memorials (written pleadings), detailing their legal arguments and evidence.
Oral Phase: States present oral arguments before the court, which may include legal representatives, experts, and witnesses.
Judgment: The ICJ’s decision is binding only on the parties to the dispute and is final, without appeal. States may request interpretation or revision of the judgment in certain circumstances.

iii. Enforcement of ICJ Judgments

ICJ judgments are binding, but enforcement is primarily political, relying on state compliance. The UN Security Council may intervene under Article 94 of the UN Charter to enforce an ICJ judgment if requested by one of the parties, but this requires the Council’s discretionary action and is subject to veto by its permanent members.

B. Other Judicial Tribunals

In addition to the ICJ, other judicial bodies contribute to the settlement of international disputes, such as:

International Tribunal for the Law of the Sea (ITLOS): Established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to adjudicate disputes related to maritime law.
World Trade Organization (WTO) Dispute Settlement Body: Handles disputes between WTO members regarding trade agreements.
Regional Courts: Regional organizations like the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights, and the African Court on Human and Peoples' Rights resolve human rights disputes in their respective regions.
International Criminal Court (ICC): Although primarily focused on criminal accountability, the ICC deals with state parties in cases involving international crimes (genocide, war crimes, crimes against humanity, and aggression).

2. Arbitral Settlement

Arbitration in Public International Law is a process where disputing parties agree to submit their dispute to a panel of arbitrators whose decision is binding. Arbitration allows for greater flexibility and control over the selection of arbitrators and procedural rules compared to judicial settlement.

A. Key Characteristics of Arbitration

Voluntary Nature: States must agree to arbitration through a compromis or an agreement to arbitrate, which may be found in treaties or ad hoc arrangements.
Binding Decision: The arbitral tribunal’s decision is binding on the parties.
Selection of Arbitrators: Parties generally have the freedom to appoint arbitrators, often experts in the field of dispute.
Flexibility in Procedure: Arbitration allows parties to define procedural rules, unlike courts where the procedure is set by statute or international conventions.

B. Major Arbitration Bodies

Several key institutions provide arbitral services in international law:

Permanent Court of Arbitration (PCA): Established by the Hague Convention of 1899, the PCA provides services for the arbitration of disputes between states, state entities, intergovernmental organizations, and private parties. The PCA is not a court in the traditional sense but facilitates the establishment of ad hoc arbitral tribunals.
International Centre for Settlement of Investment Disputes (ICSID): An institution of the World Bank Group, ICSID is designed to resolve disputes between investors and states. It operates under the ICSID Convention, which allows for arbitration of disputes arising from international investment agreements.

C. Arbitral Procedure

Compromis (Agreement to Arbitrate): Arbitration begins when states agree to submit their dispute to arbitration, detailing the scope of the dispute, the tribunal's jurisdiction, and the applicable law.
Appointment of Arbitrators: The parties usually appoint arbitrators of their choice, who must be impartial and independent. Tribunals typically consist of an odd number of arbitrators to avoid deadlocks.
Proceedings: The arbitral process includes written submissions, oral hearings, and, in some cases, the presentation of evidence and witnesses. The process is less formal and rigid compared to court proceedings.
Award: The arbitral tribunal issues an award that is binding on the parties. The award can address issues of compensation, restitution, or cessation of wrongful acts.

D. Enforcement of Arbitral Awards

Enforcement of arbitral awards in international law can be challenging due to the absence of a centralized enforcement mechanism. States are expected to comply voluntarily. However, if the award relates to a treaty-based dispute or an investment dispute under ICSID, specific enforcement mechanisms may apply. In the case of the PCA, enforcement may also rely on diplomatic pressure or recourse to the UN Security Council.

3. Principles and Considerations

Judicial and arbitral settlement in international law operate under several fundamental principles:

Consent of the Parties: Whether through judicial or arbitral settlement, the fundamental principle is that of state consent. No state can be compelled to submit to dispute resolution without its consent, unless it has previously agreed to compulsory jurisdiction through treaties.
Sovereign Equality of States: States are considered equal under international law, and the procedures are designed to ensure that no state has undue advantage over another.
Peaceful Settlement of Disputes: Article 2(3) of the UN Charter mandates the peaceful settlement of disputes to avoid endangering international peace and security.
Pacta Sunt Servanda: This principle means that agreements must be kept. It underpins the enforceability of arbitral awards and judicial decisions between states.

Conclusion

Judicial and arbitral settlement are vital tools in Public International Law for maintaining international peace and order. They provide legal means for resolving disputes, ensuring that states act in accordance with international law. While the ICJ is the leading institution for judicial settlement, arbitration offers states greater flexibility and control in resolving disputes. Both methods rely on state consent, and enforcement of decisions often depends on the cooperation of states and international mechanisms like the UN Security Council.