International Law


READ DISCLAIMER



Q. What are the peaceful means of settlement of international disputes? Describe the constitution, function, and jurisdiction of International Court of Justice. How does it differ from permanent court of Arbitration and Permanent court of International Justice? Evaluate the role of ICJ in establishment of World Peace. What is Advisory Jurisdiction of ICJ?.
 
The General Obligation

On 15th Nov. 1982, the General Assembly of UNO after reaffirming the need to exert utmost efforts in order to settle any conflicts and disputes between States exclusively by peaceful means and to avoid any military action and hostilities, which can only make more difficult the solution of those conflicts and disputes, approved the Manila Declaration on the Peaceful Settlement of International Disputes.

This created a general obligation on the member states to adopt ways to resolve international disputes peacefully. In particular, it obligated that States parties to a dispute shall continue to observe in their mutual relations their obligations under the fundamental principles of international law concerning the sovereignty, independence and territorial integrity of States, as well as other generally recognized principles and rules of contemporary international law.
 
It obligates the States to seek in good faith and in a spirit of co-operation  an early and equitable settlement of their international disputes by any  of the following means:  negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or agencies or other peaceful means of their own choice, including good offices.  In seeking such a settlement, the parties shall agree on such peaceful means as may be appropriate to the circumstances and the nature  of their dispute.


Thus, the following are peaceful means of settlement of international disputes.

  1. Non-Judicial Methods of Settlement
    1. Mediation: It is a non-binding procedure in which a neutral intermediary assist the parties in reaching a negotiated settlement of the dispute. In a growing number of cases parties agree to first try to settle their dispute through mediation, and to resort to arbitration only if the dispute has not been settled with a certain period of time.
      While both arbitration and mediation are usually private dispute resolution procedures based on a party agreement they differ in a number of important aspects. Arbitration is an adjudicative procedure and in this respect resembles court litigation. Once the parties have submitted a dispute to arbitration, neither party can opt out unilaterally, and any decision rendered by the arbitral tribunal will be binding on both parties.
      Mediation in contrast, is a voluntary process which depends on the continuing cooperation of both parties since either party can withdraw at any time.
      Employed over the years in diplomatic matters, recently parties have begun using mediation to resolve transnational business disputes prior to binding dispute settlement alternatives or litigation.1 This alternative is particularly popular among Asian cultures. The mediation mechanism may be generally defined as the intervention of an unbiased third party in a dispute so as to facilitate party resolution of differences on a voluntary basis. The process differs from conciliation and arbitration with respect to the involvement and powers of the third party. Notwithstanding this definition, currently no consensus exists about the specifics of transnational mediation or its procedures, thus further complicating matters when it is employed as the only contractual means of dispute settlement. More specifically, when international parties use mediation exclusively, there is no guarantee of a binding or definitive outcome at all.

      International dispute resolution organizations offer procedural rules for mediation. Since mediation has only recently come to the forefront, however, these rules remain vague in many areas. For example, the mediator's duties are not detailed specifically. The International Chamber of Commerce Rules of Optional Conciliation merely state that the mediator has discretion to conduct the proceedings as he or she sees fit. The only restriction imposed on the mediator by many of these rules is that the mediator operate under the principles of impartiality, equity and justice. Mediators are left to determine the contents of these principles.
      Given the lack of rule specificity and the discretion granted to the mediator, the success of the mediation often depends on the talents and temperament of the mediator. His or her ability to get the disputants to negotiate and work towards compromise is of utmost importance.Ultimately, if these techniques fail and the parties are not satisfied with the settlement, they can pursue other methods of dispute resolution, such as traditional litigation or arbitration.
    2. Conciliation - In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediator’s priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own best solution.

      Also the role of the attorneys is different in mediation. Attorneys are more active in mediation in generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators.

      Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case.

      Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a substantial conflict from developing. Mediation is closer to arbitration in the respect that it ”intervenes” in a substantial dispute that has already surfaced that is very difficult to resolve without "professional" assistance. The parties approach mediation as an alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including the early stages.


  2. Settlement by The International Court of Justice - The International Court of Justice was established by the Charter of the United Nations, which provides that all Member States of the United Nations are ipso facto parties to the Court's Statute. The composition and functioning of the Court are organized by this Statute, and by the Rules of the Court which are drawn up by the Court itself. The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly.

    Composition of ICJ - The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–12 of the ICJ statute. Judges serve for nine year terms and may be re-elected for up to two further terms. Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court.

    Should a judge die in office, the practice has generally been to elect a judge of the same nationality to complete the term. No two may be nationals of the same country. According to Article 9, the membership of the Court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". Essentially, this has meant common law, civil law and socialist law (now post-communist law).

    Differences with Permanent Court of International Justice - The Permanent Court of International Justice, sometimes called the World Court, was the international court of the League of Nations, established in 1923. Between 1922 and 1940 the Court dealt with 66 contentious cases between States and delivered 27 advisory opinions. It was replaced in 1946 by the International Court of Justice when the United Nations was organized.

    Differences with PCA - Unlike the ICJ, the PCA is not just open to states but also to other parties. The PCA provides services for the resolution of disputes involving various  combinations of states, state entities, intergovernmental organizations, and private parties. The PCA administers cases arising out of international treaties (including bilateral and multilateral investment treaties), and other agreements to arbitrate. The cases conducted by the PCA span a wide range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, human rights, international investment (investor-state arbitrations), and matters concerning international and regional trade.

    Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the request of the parties. Many decisions and related documents are available on the PCA website.

    Jurisdiction of ICJ
    As stated in Article 93 of the UN Charter, all 192 UN members are automatically parties to the Court's statute. Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party. And Nauru became a party in 1988. Once a state is a party to the Court's statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.

    The International Court of Justice acts as a world court. The Court has a dual jurisdiction : it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction). 
    1. Contentious Issues -  In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court's jurisdiction may be founded.

      First, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on "special agreement" or "compromise"). This method is based on explicit consent rather than true compulsory jurisdiction. It is, perhaps, the most effective basis for the Court's jurisdiction because the parties concerned have a desire for the dispute to be resolved by the Court and are thus more likely to comply with the Court's judgment.

      Second, 36(1) also gives the Court jurisdiction over "matters specifically provided for ... in treaties and conventions in force". Most modern treaties will contain a compromissory clause, providing for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations, nor did it comply with the judgment. Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration.

      Third, Article 36(2) allows states to make optional clause declarations accepting the Court's jurisdiction. The label "compulsory" which is sometimes placed on Article 36(2) jurisdiction is misleading since declarations by states are voluntary. Furthermore, many declarations contain reservations, such as exclusion from jurisdiction certain types of disputes ("ratione materia"). The principle of reciprocity may further limit jurisdiction. Of the permanent Security Council members, only the United Kingdom has a declaration. In the Court's early years, most declarations were made by industrialised countries. Since the Nicaragua Case, declarations made by developing countries have increased, reflecting a growing confidence in the Court since the 1980s. Industrialised countries however have sometimes increased exclusions or removed their declarations in recent years. Examples include the USA, as mentioned previously and Australia who modified their declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor who gained their independence two months later).

      Finally, 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice's statute. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.

      In addition, the Court may have jurisdiction on the basis of tacit consent (forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction will be established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu Channel Case (UK v Albania) (1949) in which the Court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.

      Examples of contentious cases include:
      A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law.
      A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.
    2. Advisory Jurisdiction - An advisory opinion is a function of the Court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court's help in deciding complex legal issues that might fall under their respective mandates. In principle, the Court's advisory opinions are only consultative in character, though they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

      Advisory Opinions have often been controversial, either because the questions asked are controversial, or because the case was pursued as an indirect "backdoor" way of bringing what is really a contentious case before the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case.
  3. International Arbitration: The Hague Peace System -International arbitration is the process of resolving disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding.
    Arbitration is today most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions (International Commercial Arbitration). It is also used in some countries to resolve other types of disputes, such as labour disputes, consumer disputes, and for the resolution of certain disputes between states and between investors and states.
    As the number of international disputes mushrooms, so too does the use of arbitration to resolve them. There are essentially two kinds of arbitration, ad hoc and institutional. An
    institutional arbitration is one that is entrusted to one of the major arbitration institutions to handle, while an ad hoc one is conducted independently without such an organization and according to the rules specified by the parties and their attorneys. The following are various avenues for International Arbitration.
    1. Permanent Court of Arbitration (PCA) - The Permanent Court of Arbitration (PCA), is an international organization based in The Hague in the Netherlands. It was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution.
      The creation of the PCA is set out under Articles 20 to 29 of the 1899 Hague Convention for the specific settlement of international disputes which was a result of the first Hague Peace Conference. At the second Hague Peace Conference in 1907, the earlier Convention was revised and improved by the 1907 Convention for the Pacific Settlement of International Disputes. 
    2. International Commercial Arbitration (ICA)
    3. International Centre of Settlement of Investment Disputes (ICSID)
    4. WIPO Arbitration and Mediation Center (World Intellectual Property Organization)
    5. WTO Dispute Settlement System
    6. Court of Arbitration for Sport (CAC)
    7. Society of Maritime Arbitrators (SMA)
  4. Ad Hoc Inter-State Arbitration
  5. The Iran-US Claims Tribunal
  6. The International Centre for Settlement of Investment Disputes
  7. Settling Disputes about Human Rights
  8. Dispute Settlement in the Law of the Sea
  9. Settlement of International Economic Disputes
  10. Regional Organizations and Dispute Settlement






READ DISCLAIMER



Q. Explain the relationship between International Law and Municipal Law.
 
International Law is the law which governs the Relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations.  Kelsen observes that national law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State.  International Law is concerned with the external relations of the State its foreign affairs. 

Legislature and court systems are different on the international and municipal levels. Where the municipal level uses a legislature to help enforce and test the laws, the international court system relies on a series of treaties without a legislature which, in essence, makes all countries equal.

Enforcement is a major difference between municipal and international law. The municipal courts have a law enforcement arm which helps require those it determines to follow the rules, and if they do not they are required to attend court. The international court system has no enforcement and must rely on the cooperation of other countries for enforcement.

There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law.  The former theory is called monistic and the latter dualistic. 

Monistic Theory:  Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution.It maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals.  According to this view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals.  According to it International Law and Municipal Law are two phases of one and the same thing.  The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals. 

Dualistic theory:  Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law. According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system.  In the first place they differ as regards their sources.  The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members.  In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations.  Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them.  The latter is therefore a weak law.

Besides the above two theories, Starke makes reference to two other theories namely, the Transformation Theory and Delegation Theory.

Transformation Theory:   According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements.  The transformation is not merely a formal but a substantial requirement.  International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose.

This theory is fallacious in several respects.  In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect.  In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects.  In the third place the theory regards the transformation of treaties into national law for their enforcement.  This is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries.  And this is certainly not true in the case of law making treaties.

Delegation Theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law.  There is no need of transformation of a treaty into national law but the act is merely an extension of one single act.  The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory.  It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws.

It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries.  The United States has unambiguously applied the doctrine that International Law is part of the law of the land.  All international conventions ratified by the USA and such customary International Law as has received the assent of the United States are binding upon American Courts even if they may be contrary to the statutory provisions.  There is a presumption in cases of conflict that the United States Congress did not intend to overrule International Law.

Position in India
In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.