The words you are searching are inside this book. To get more targeted content, please make full-text search by clicking here.
Discover the best professional documents and content resources in AnyFlip Document Base.
Published by Enhelion, 2019-11-24 05:21:52

Module_5 (Pubic International Law)

Module_5 (Pubic International Law)



International Law exhibits preponderance towards settling disputes through peaceful means of
resolution, which is in synchronicity with its fundamental purpose of maintaining peace.1 The
general principle is that States resort to force or collective enforcement through UN only when
they are unable to settle their disputes amicably. International Law provides various mechanisms
for resolving such disputes peacefully, and these can be seen from the readings of the UN
Charter along with various regional legal instruments. These can be broadly said to embody the
basic rules of international dispute settlement.

Although there is a distinction between the various mechanisms that may be available to a party,
it is through the utilization of several measures collectively that one may achieve the intended
result.2 However, states are not obliged to resolve their differences at all, and this applies in the
case of serious legal conflicts as well as peripheral political disagreements. All the methods
available to settle disputes are operative only upon the consent of the particular states.3


The first step in the resolution of international disputes has to be the ascertainment of the
existence of a dispute between the concerned States. Though the term ‘dispute’ is used in layman
terms to signify a range of events, its legal meaning is still somewhat more specific and need not
extend to all kinds of disagreements. Disputes between States may relate to determination of
legal rights, interest, duty, or obligations; or to interpretation of treaties; delineation of
boundaries; so on and so forth. There is authoritative indication that the term refers to ‘a
disagreement over a point of law or fat, a conflict of legal views or of interests between two

1 Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) at p. 1003; J Coller and V
Lowe, THE SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW (Cambridge University Press, 1999); K Oellers-
2 Rama Mani and Richard Ponzio, Peaceful Settlement of Disputes and Conflict Resolution <available at:>

persons’.4However, this does not presuppose that States always agree on when a ‘dispute’ arises

between them, and it is often up to international tribunals to determine whether it exists.5 There

is sufficient guidance available in this regard when it comes to the existing jurisprudence of

international law. For instance, it is understood that in order to establish whether a dispute exists,
it‘ must be shown that the claim of one party is positively opposed by the other’ in addition to
the fact that ‘whether there exists an international dispute is a matter for objective
determination’.6The term itself carries the connotations of relating to both civil and criminal

matters so far as the latter is concerned with the breaches of criminal law.7 It can also be inferred,

from the failure of a State to respond to a claim in circumstances where a response is called for.8

While the existence of a dispute and the undertaking of negotiations are distinct as a matter of

principle, the negotiations may help demonstrate the existence of the dispute and delineate its

subject matter.9

Once the definition of the term ‘dispute’ attains clarity, the next step in such a process should

ideally be the determination of when a dispute arises in international law. Within the

international law framework, disputes can be either inter-State (arising between two States of

the international legal order) or individual-State (between an individual and a State party). The

question of whether there can be said to be an existence of a dispute is largely one that is based

on fact, with International Courts often taking into consideration the entire circumstances of the

disagreement before adjudicating on whether a dispute has arisen and the relevant timeline for

the same.10 Some scholars also make pertinent points with regard to the nuanced differences that
exist between terms such as ‘conflicts’, ‘situations’, and ‘disputes’.11For instance, Evans

4 Mavrommatis v. Palestine Concessions (Jurisdiction) Case [Greece v. United Kingdom], (1924) PCIJ, Series A,
No. 2, at p. 11
5 K. Kenneth Kiplagat, Dispute Recognition and Dispute Settlement in Integration Process: The COMESA
Experience, (1995) 15 NORTHWESTERN J. OF INTL. L & BUSINESS 437<available at: =
6 Belgium v Senegal (2012) ICJ Rep 1 (Question Relating to the Obligation to Prosecute or Extradite) at ¶46
7 France v USA (1952) ICJ Rep 176 (Rights of Nationals of the United States of America in Morocco) at ¶189
8 Georgia v. Russian Federation, 2011 ICJ Rep 69 (Case Concerning Application of the International Convention on
the Elimination of all Forms of Racial Discrimination) Preliminary Objections, Judgment, 1 April 2011 <available
9 Phoebe Okawa, The International Court of Justice and the Georgia/Russia Dispute, (2011) 11 HRLR 739
<available at:>
10 Alberto Alvarez-Jimenez, Boundary Agreements in the International Court of Justice’s Case Law2000-2010,
(2012) 23 EJIL 495<available at:>
11 K K Koufa, International Conflictual Situations and Their Peaceful Adjustment (1988) 18 Thesaurus Acroasium 7

considers the terminology ‘situation’ to refer to a complex chain of events and issues that give
rise to multiple disputes interlinked through a given context.12 The differentiating criteria here
being that there isn’t a single issue that forms the main contention between the involved parties.
On the other hand, the word ‘conflict’, in so far as international law is concerned, generally
denotes a state of hostility between States and other subjects of international law – often
manifesting itself through the use of force in some instances.


It must be understood, that upon a bare perusal of the materials that may be available to an
international law practitioner or diplomat, there is no inherent hierarchy within the international
legal framework with respect to the kind of methods required in any given situation. States
usually have a free choice with respect to the kind of mechanism they prefer to use for settling
their disputes. In addition to this, the focus on peaceful settlement of international disputes is
amplified by the fact that the parties to a dispute have the duty to continue to seek a settlement
by other peaceful means agreed by them in the case that one of the approaches resorted to fails to

The various methods available to States to settle disputes peacefully and amicably can be
bifurcated into two types –first, the diplomatic methods of settlement which include negotiation,
conciliation, mediation, good offices, and inquiry; and second, judicial methods of settlement
which typically include arbitration and judicial settlement. These methods of dispute resolution
can be gleamed from the UN Charter provisions. Chapter VI of the Charter, through Article 33,
states that “(1) The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice; (2) The Security Council shall, when
it deems necessary, call upon the parties to settle their dispute by such means.” The usage of the
world shall within the first sub-clause of the Article denotes that it indeed imposes an obligation
on states to try to seek peaceful settlement of their disputes before moving on to other avenues.

12John Merrills, The Meaning of Dispute Settlement, in Malcolm Evans, INTERNATIONAL LAW (2nd edn, Oxford
Unviersity Press, 2006) at 533-534

a. Negotiation

Negotiation perhaps holds the distinction of being both the simplest and most used method of
resolving differences when it comes to the international law framework. 13Diplomatic negotiation
is as old as the international system itself tracing its history back to the birth of the first sovereign
units in China, the Indian subcontinent and the Middle East.14 The essence of the negotiation
process is that it seeks to facilitate discussions between the parties and build upon the same so
that divergent opinions may be reconciled.15Even if it fails to resolve complicated disagreements,
it can always provide clarification to both parties regarding where they stand and what options
they might have available, helping them understand their own predicament and their
counterpart’s position in a better manner. Negotiation has a lot to offer to disputing parties,
owing to how fast, direct, easy and flexible it is. There is no requirement for extensive
formalities or standard operating procedures (SOPs). It is also liberal in the sense that there are
no third parties involved in the process, with the bulk of the decision-making left to the disputing
parties themselves. The International Courts have regularly recognized the importance of
negotiation and the benefits that it has to offer. Negotiations are the most satisfactory means to
resolve disputes since the parties are so directly engaged. Of course as Shaw points out,
negotiations do not always succeed, since they do depend on a certain degree of mutual
goodwill, flexibility and sensitivity.16 Hostile public opinion in one state may prevent the
concession of certain points and mutual distrust may fatally complicate the process, while
opposing political attitudes may be such as to preclude any acceptable negotiated agreement. The
predominant focus during negotiation seems to be on the intention and content of the negotiation
rather than procedural requirements.17 A few principles should be kept in mind while conducting
negotiations, and it would be a folly to think that the mere lack of procedural requisites implies
that there is no process to negotiations. Succinctly put, a negotiation should be cognizant of:

13Paul Meerts, DIPLOMATIC NEGOTIATION: ESSENCE AND EVOLUTION (2nd edn, Clingendael Institute, 2015)
<available at:>
14 Ibid at p. 48
15Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) at p. 1014
16 Ibid
17Mavrommatis v. Palestine Concessions (Jurisdiction) Case [Greece v. United Kingdom], (1924) PCIJ, Series A,
No. 2, at p. 13.

(i) Separating interest from position (distinguishing what their people want as opposed to
what the States want as a result of the negotiations);

(ii) Applying objective criteria (States should agree on a set of objective criteria right
from the onset);

(iii) Readiness to make concessions (States should understand that sometimes making
concessions can go a long way to reaching an agreement, and the emphasis should not
be on maintaining an unreasonable or uncompromising position merely out of fear of
being seen as weak);

(iv) Identifying common grounds (Parties to a dispute can lessen the amount of issues
they mull over once they figure out their common grounds).

As mentioned in the previous paragraphs of the module, the UN Charter imposes obligations on
parties to resolve disputes peacefully; however there is no obligation as to what method of
resolution may be adopted. One must therefore ascertain whether there is an obligation to
negotiate under general international law. It has been recognized by courts that before it may
assert its jurisdiction over a specific dispute, the parties must have clearly defined the subject
matter through diplomatic negotiations.18 Some bilateral and multi-lateral treaties can be seen as
containing provisions that oblige member States to negotiate disputes, as can be seen from
Article 283(1) of the UNCLOS Treaty19, Article VIII (2) of the Antarctic Treaty, or Article 4(3)
of the 1994 WTO Agreement. It must be kept in mind that there is variation within the three
above-mentioned treaties with respect to the degree of obligation they impose for negotiation,
with WTO and Antarctic Treaties imposing more clear and rigorous forms of obligation.20

It is pertinent to understand that although there does an exist an obligation to negotiate; there is
no implication of a corresponding duty to reach an agreement post negotiation. The only
requirement imposed is for parties to negotiate ‘genuinely’ in ‘good faith’21, and this cannot be

18 Mavrommatis v. Palestine Concessions (Jurisdiction) Case [Greece v. United Kingdom], (1924) PCIJ, Series A,
No. 2, at p. 15.
19 Article 283(1) of UNCLOS III reads as follows: “When a dispute arises between State Parties concerning the
interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an
exchange of views regarding its settlement by negotiation or other peaceful means”
20James Crawford, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW (7th edn, Oxford University Press,
21 France v Spain (1957) 12 RIAA 281 (The Lake Lanoux Arbitration Case)

said to extend beyond it and encompass a duty of agreement on this point.22 This has been further
affirmed in subsequent judgments where the court has opined that having an obligation to pursue
negotiations as far as possible with a view to concluding agreements cannot be extended to being
an obligation to reach an agreement.23 This ‘good faith’ requirement, which exists whenever
there is existence of an obligation to negotiate24, may be understood as meaning that parties
aren’t supposed to conduct negotiations only because it is a formal requirement, and must
conduct themselves in a manner so that the negotiations can be meaningful.25 The States thus,
should conduct themselves equitably and fairly. The obligation therefore, is to conduct
negotiation with the intention of possibly reaching an agreement by making serious efforts
towards it, not reaching it mandatorily.26

Negotiation can also exist simultaneously with other forms of international dispute settlement, as
can be deciphered from reading Article 33 of the UN Charter. Hence, it is possible to pursue
negotiations and recourse to judicial settlements pari passu.27 The existence of an agreement to
negotiate does not preclude jurisdiction of the Court28, with the judicial process being terminated
only upon the success of negotiation.29 In the event that there are situations where it is
impractical to insist on negotiation even if an obligation exists, Courts may allow pursuing
litigation as an alternative.

Where the nature of a dispute is extremely complex—with not only single, but also several,
causes, spanning many generations—it may also be pragmatically impossible to deal with such a
dispute by negotiation. An example is the Israel–Palestine conflict, the cause of which goes back
over several decades. The interests at stake, the legal issues in question, and the areas of

22Cameroon v Nigeria (2002) ICJ Rep 303 (Land and Maritime Boundary between Cameroon and Nigeria Case) at
p. 423-424
23Railway Traffic between Poland and Lithuania Advisory Opinion (1931) PCIJ Series A/B, No. 42
24C M Chinkin, The Challenge of Soft Law: Development and Change in International Law (1989) 38(4) ICLQ 850
25 Federal Republic of Germany v Denmark, Federal Republic of Germany v. The Netherlands (1969) ICJ Rep 3
(The North Sea Continental Shelf Case) at p. 47
26Swiss Confederation v. Federal Republic of Germany (The German External Debts Case), (1958) 25 ILR 33
27 Greece v Turkey (1978) ICJ Rep 3 (The Aegean Sea Continental Shelf Case)
28 Former Yugoslavia Republic of Macedonia v. Greece (2011) ICJ Rep 644
29 Pakistan v India (1973) ICJ Rep 347 (The Trial of Pakistani Prisoners of War Case)

divergences in this dispute are such that they cannot be dealt with by negotiation. Negotiation
thrives where there is relative clarity as to what is to be negotiated.30

b. Mediation and Good Offices

Often, there are instances where parties to a dispute are not very keen to deal with one another or
have a mutual discussion. In such cases, the employment of the procedures of good offices and
mediation involving the use of a third party, whether individual or individuals, a state or group of
States or an international/supranational organization, may encourage the disputing parties to
reach a settlement peacefully. Causes of disputes between States are often very sensitive,
because they may border on issues of territory, sovereignty, and so on. In those circumstances,
negotiation is practically impossible.

Technically, good offices are involved where a third party attempts to influence the opposing
sides to enter into negotiations, whereas mediation implies the active participation in the
negotiating process of the third party itself. In fact, the dividing line between the two approaches
is often difficult to maintain as they tend to merge into one another, depending upon the
circumstances.31‘Mediation’ and ‘good offices’ are both mentioned in the 1899 and 1907 Hague
Conventions, although ‘good offices’ is not in the UN Charter. However, the Hague Conventions
do not distinguish between the two; rather, the terms are used interchangeably. A mediator is an
active participant, authorized, and indeed expected, to advance fresh ideas and to interpret, as
well as to transmit, each party’s proposals to the other.32‘Good offices’, on the other hand, is to
‘encourage the protagonists to resume negotiations, or simply acts as a channel of
communication’.33The two modes can be differentiated on the basis of a duality of factors,

30Brendon Carlill, Impossible Peace? A Re-examination of the Israeli-Palestinian Dispute (2018) University of
Melborne School of Historical and Philosophical Studies Doctorate Paper<available at: https://minerva-
31 Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) at p. 1018; Wagner Luiz
Menezes Lino, TRIBUNAIS INTERNACIONAIS (Editora Sairava Publishing, 2017)
32John Merrills, The Meaning of Dispute Settlement, in Malcolm Evans, INTERNATIONAL LAW (2nd edn, Oxford
Unviersity Press, 2006) at 537

1. States often undertakes mediation, but good offices are mostly discharged byindividual
persons, although States are not precluded from so acting.

2. While mediating States are often friendly with both sides to the dispute, good
officeholders are appointed on the basis of their moral standing or international status.
Hence, the Pope, or the UN Secretary-General, and eminent political figures such as
Nelson Mandela, have all acted as good office holders in disputes amongst States.

There are two differing views with regards to when mediation should take place. The first view
is that mediation should start before disputing States resort to armed conflict.34 The other view
states that mediation is best employed after a dispute has gone through many phases and parties
show a willingness to talk.35It is difficult to lay down general rules about when or not to mediate.
When mediation should take place depends on the circumstances of individual cases. However,
in practice, mediation tends to occur when: (a) parties do not wish to communicate with each
other directly; (b) disputes have been protracted; (c) individual efforts have reached stalemate
and there seems no way out; and/or (d) parties refuse to shift ground on their positions.36

There are a few core principles of mediation that must be adhered to, forming the foundation of
the process. First, there needs to be confidence of all sides to the dispute. Where a mediator is
appointed jointly by parties to a dispute, there is usually a higher probability that the mediator is
fair. After all, a mediator is usually a State that is friendly to both parties to the dispute.
However, where mediation takes place on the mediator’s initiative, as clearly permitted by a few
international treaties (such as the Hague Convention), there is a risk that a mediator may not
inspire the confidence of one or both parties to the dispute. In this situation, the outcome of
mediation may be unacceptable to one or both parties, and it is possible that the mediator will not
enjoy the cooperation of one or both parties. Second, the impartiality of the mediator is
indispensable to the process. Impartiality is the key to the success of mediation, and many
mediation efforts have been ruined because of the perception that mediators were biased against
certain parties. Thirdly, mediation must be a completely voluntary process. It is important that
parties are made to understand that they are under no obligation to mediate their dispute. This

35 F S Northedge and M Donelan, INTERNATIONAL DISPUTES: POLITICAL ASPECTS (Europa Publishing, 1971)
36Marieke Kleiboer, Understanding Success and Failure of International Mediation, (1996) 40(2) J. OF CONFLICT

helps to make them more favorably disposed to a settlement. Imposition of mediation can be
counterproductive. It is important to bear in mind that neither mediator role nor mediator
performance can be stipulated in advance.37

c. Inquiry

Inquiry is another important method of settling international disputes among States and it is
different from negotiation in several ways. Inquiry is used, first and foremost, in trying to get to
the bottom of the facts of a dispute. It aims at obtaining facts and figures about a dispute. Thus
inquiry is more of a process to set the dispute settlement process rolling rather than one that is
itself used to settle disputes.38

Inquiry is mainly concerned with seeking facts, not the application of the law or legal processes.
However, it is possible that inquiry settles the dispute between parties, if the outcome of the
investigation is acceptable to all sides.39 The UN General Assembly had described inquiry once
as “Any activity designed to obtain detailed knowledge of the relevant facts of any dispute or
situation which the competent United Nations organs need in order to exercise effectively their
functions in relation to the maintenance of international peace and security”.40

General State practice shows that inquiry can be authorized at any point in a dispute.41 The first
few instances of an inquiry were the Maine Affair, the case of a US ship being blown up by

Rienner, 1996) at p. 4
38Gheorghe Pinteala, Peaceful Settlement of International Disputes, QUAESTUS MULTIDISCIPLINARY RESEARCH
JOURNALat p. 98<available at:
DIPLOMACY: THE EMERGING GLOBAL WATCH (Brill Publishing, 1991) at p. 10
40UN General Assembly, Declaration on Fact-finding by the United Nations in the Field of the Maintenance of
International Peace and Security, UN Doc. A/RES/46/59 [67th plenary meeting] (9 December 1991) <available at:>; Also See: Axel Berg, The 1991 Declaration on Fact-finding
by the United Nations, (1993) 4 EJIL 107-114; M. Christiane Bourloyannis, Fact-finding by the Secretary General
of the United Nations, (1991) 22 NY J OF INTL LAW AND POL. 641-669
41 Yoshifumi Tanaka, THE PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES (Cambridge University Press,
2018) p. 56

Spanish torpedoes42, which was investigated by an inquiry commission.43Prior to the Maine
Affair, there had been no international system regulating how inquiry was to be conducted.44The

Maine Affair inspired the first Peace Conference held at The Hague in 1899. The Conference

adopted The Hague I Convention, which made crucial provisions for the use of inquiry as a
dispute settlement method.45

Inquiry has become more popular since 1907 and is today widely used by States and

international organizations. Bilateral and multilateral treaties now regularly make provisions

similar to those of the two Hague Conventions on inquiry. International organizations also make
regular use of inquiry in dispute settlements.46 There are many ways in which international

organizations can use inquiry. First, international organizations can use inquiry to settle disputes

between their member States; Secondly, international organizations can use inquiry in respect of

disputes occurring within a member State, such as between the government and rebel groups.

Thirdly, international organizations can use inquiry to investigate matters concerning another
international organization, although this is not common.47

d. Conciliation

Conciliation is a process, which involves third-party investigation of the basis of the dispute and

the submission of a report embodying suggestions for a proposed settlement. Conciliation reports
are merely proposals, having no binding effect on the parties to the dispute.48 As defined in
Article 1 of the 1961 Regulations on the Procedure of International Conciliation, it is “method of

settlement of international disputes of any nature according to which a Commission set up by the

Parties, either on a permanent or ad hoc basis to deal with a dispute proceeds to the impartial

examination of the dispute and attempts to define the terms of a settlement susceptible of being

42 Trumbull White, Our War With Spain for Cuba’s Freedom<available at: http://www.public->
43George W Melville, The Destruction of the Battleship “Maine”: Prefatory Note, (1911) 193 THE N. AM. REV.
44Christian Henderson (ed.), COMMISSIONS OF INQUIRY: PROBLEMS AND PROSPECTS (Hart Publishing, 2017)
45David D Caron, War and International Adjudication: Reflections on the 1899 Peace Conference, (2000) 94 AM. J.
INTL. L. 4<available at:>
46Jan Martin Lemnitzer, International Commissions of Inquiry and the North Sea Incident: A Model for a MH17
Tribunal? (2016) 27 EJIL 923-944
47Turki Al Saud, A Comparison between the Dispute Settlement Procedures in the International Court of Justice and
the World Trade Organization, (2009) Brunel University M.Phil. Thesis<available at:>
48Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) at p. 1015

accepted by them, or affording the Parties with a view to its settlement, such aid as they may
have requested.” Generally, the intervening party has no political authority of its own yet enjoys
the confidence of both the parties to the dispute, and undertakes an investigation into every
aspect of the dispute.49The role of conciliation commissions is usually stated in the treaty
establishing them.

Conciliation is similar to both inquiry and mediation in some respects, and it would not be
incorrect to consider it an amalgamation of the two methods. Like inquiry, conciliation is usually
undertaken by commissions set up for that purpose, and involves investigating causes of disputes
and other associated facts. Like mediation, conciliation always involves intervention by external
parties.50Another feature that conciliation shares with mediation is that it often arises when
parties to a dispute refuse direct communication with each other.51A Conciliation Commission
does not have to apply the rules of law, though there is nothing that prevents it from recognizing
such rules.52 It does not act as a court of law and it’s function is to make recommendations to the
two parties which in the unanimous opinion of the Commission will lead to acceptable and
equitable solution of the problems involved.53

Several modern treaties can be seen to incorporate conciliation provisions within their
framework. For instance, UNCLOS’ Article 284(1) refers to a State party’s ability to ask for
conciliatory assistance through an application. In addition, Article 1 of the 1962 Protocol
Instituting a Conciliation and Good Offices Commission to be Responsible for Seeking the
Settlement of any Disputes which may Arise between States Parties to the Convention against
Discrimination in Education54 (which establishes a conciliation commission), the 1948 Pact of
Bogota, the 1957 European Convention for Peaceful Settlement of Disputes, and the 1969
Vienna Convention on the Law of Treaties all include such provisions.


49 J P Cot, INTERNATIONAL CONCILIATION (Europa Publishing, 1972) at p. 9
50L H Woolsey, The Chaco Dispute (1932) 26(4) AJIL 796
52Malcolm D Evans, INTERNATIONAL LAW (Oxford University Press, 2014)
53 Conciliation Commission on the Continental Shelf between Iceland and Norway in the Area between Greenland
and Jan Mayen (1981) 27 RIAA 1 at p. 23
54 651 UNTS 632

Arbitration is a method for settling disputes under which disputing parties submit their cases to
an independent arbitrator agreed by them and whose decision they undertake to
accept.55Arbitration is regarded as the oldest method for settling disputes among States. The
earliest known treaty of arbitration was the 1794 Treaty of Amity, Commerce and Navigation
(known as the ‘Jay Treaty’) between the USA and Great Britain.56

There are certain features that arbitration evidences:

(i) Arbitration is a quasi-judicial process and uses several legal phrases as well as
principles in order to come to a decision;

(ii) It involves participation of the disputing parties – Unlike the other dispute settlement
methods discussed earlier, parties to arbitrations nominate arbitrators. The entitlement
to nominate arbitrators gives disputing parties some level of control over their own
affairs. Normally, each party to a dispute will nominate one arbitrator and the two
will then nominate the chair of arbitration. The position of the chair of an arbitration
panel or commission is crucial, especially if the votes of the two arbitrators do not

(iii) Binding Element of Arbitration – Once arbitration is constituted, parties are expected
to cooperate with the commissioners. Also, only in cases of procedural irregularities
or vitiating conditions (see later) will disputing parties not comply with the decision
of an arbitrator.

(iv) Arbitration usually occurs once diplomacy and negotiations have failed to come to a
solution for the dispute.

5.3.1. Types of Arbitration

Under international law, arbitration is mostly used to settle disputes between States. However,
arbitration is sometimes used to settle disputes between States and non-State entities, such as
multinational corporations (MNCs). This is called a ‘mixed arbitration’ and has become more
frequently used in modern times.57

55 Boleslaw Adam Boczak, INTERNATIONAL LAW: A DICTIONARY (Bloomsbury, 2005)
ORGAN OF THE UNITED NATIONS(Martinus Nijhoff, 2003) at p. 8
57Anders Henriksen, INTERNATIONAL LAW (Oxford University Press, 2017)

However, the term ‘mixed arbitration’ can also be used to refer to an arbitration commission that
consists of different nationalities and may be formed either through bilateral or multilateral
instruments.58 An example of a mixed arbitration is the US–Iran Claims Tribunal, set up to
resolve issues arising from the hostage crisis between those two countries. This arbitration
consists of members from Italy, Belgium, the USA, and Iran. This was also a temporary
arbitration, the panel of which would cease to exist once the specific objective for which it was
established was realized. Arbitration panels could also exist on a permanent basis and continue to
exist as long as the treaty remains in force.59 The most prominent example of this category is the
Permanent Court of Arbitration (PCA).

5.3.2. The Permanent Court of Arbitration (PCA)

Established by treaty at the First Hague Peace Conference in 1899, the Permanent Court of
Arbitration is the oldest global institution for the settlement of international disputes. , It was a
fundamental step in establishing an international regime for arbitration of disputes. The Court
offers a wide range of services for the resolution of international disputes, which the parties
concerned have expressly agreed to submit for resolution under its auspices. The Court also
provides arbitration in disputes between international organizations and between states and
international organizations.

The Court has an International Bureau (referred to as the “IB”), which serves as its registry. The
IB facilitates communication between State parties to the PCA, and deals with matters such as
meetings and the recordkeeping of the PCA. State parties provide the IB with details such as
their laws, regulations, and documents relating to how they implement decisions of the PCA.60

Each party to the PCA nominates four members to be kept on the PCA’s list to serve as
arbitrators. They are regarded as members of the PCA and are usually persons of high moral
calibre. They are elected for six years, renewable, and the same person may be nominated by
more than one country.61

58Donald K. Anton, Penelope Mathew, and Wayne Morgan, INTERNATIONAL LAW: CASES AND MATERIALS (Oxford
University Press, 2005)
59Antonio Cassese, INTERNATIONAL LAW (2nd edn, Oxford University Press, 2005)
60Article 43, The 1907 Hague Convention
61Article 44, The 1907 Hague Convention

To try a dispute, the IB identifies certain arbitrators from the list to serve on the case. However,
if parties fail to agree on whom to select, then they themselves will nominate two arbitrators
each, who will then nominate the fifth arbitrator to serve as the umpire.62 The IB then

communicates the compromis to the parties. The compromis is a document in which the subject
of the dispute in question, and the time, order, and form of arbitration are defined.63

Articles 51–85 of the 1907 Hague Convention deals with the procedural framework of the PCA.
Articles 52–54 deal with the compromis in general, while more substantive issues such as the
rules governing the arbitration, the language to be used, communications of pleadings, counsel to
parties, the taking of evidence, and the serving of notices are all contained in Articles 55–
78.Article 79 of the 1907 Convention provides that “the award must give reason on which it is

based. It contains the names of the Arbitrators; it is signed by the President and Registrar or by
the Secretary acting as Registrar.”64

An award made either by ordinary or sovereign arbitrators is binding on parties to the dispute,
but not anyone else.65 The award, which must be read in public66, is final and not
appealable.67However, if disputes arise in relation to the award, such must be submitted only to
the tribunal that decided it.68 Parties are entitled to reserve in the compromis the right to demand
that an award be revised.69

The PCA enjoyed great success for a while and tried many cases, which include: Venezuelan
Preferential Claims (1904) 9 RIAA 103; Japanese House Tax (1905) ICGJ 407, PCA; Italy v.
Peru (1912) 11 RIAA 405 (the Canevaro Case); and Russia v. Turkey (1912) 11 RIAA 421 (the

Russian Indemnity Case). However, the creation of the PCIJ in 1923 affected the prospects of the
PCA70. States preferred recourse to the PCIJ for many reasons, including the following:71

62Article 45, The 1907 Hague Convention
63Article 52, The 1907 Hague Convention
64Article 79, The 1907 Hague Convention
65 Article 84, The 1907 Hague Convention
66 Article 80, The 1907 Hague Convention
67 Article 81, The 1907 Hague Convention
68 Article 82, The 1907 Hague Convention
69Article 83, The 1907 Hague Convention
70 Laurence Boisson de Chazourness, Plurality in the Fabric of the International Courts and Tribunals: The Threads
of a Managerial Approach, (2017) 28(1) EJIL 13-72<available at:>
71Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) at p. 1031

(i) There is no right of appeal in relation to PCA awards, and the fact that only the
arbitral tribunal that decides may review such a case is very limiting. This does not
bode well for an institution that was intended to act as a court of some sort.

(ii) The use of sovereign arbitrators is also somewhat uninspiring. State parties to a
dispute clearly prefer to have the opportunity of having representatives on an arbitral
tribunal. Thus they may accept sovereign arbitrators for diplomatic reasons or as a
result of pressure, whereas in reality they might prefer a fully composed arbitral

It must be noted, however, that the PCA still functioned to some extent shortly after the PCIJ
emerged. For example, it was used by the UK to decide the Chevreau Case72, but has not been
invoked since 1932, although it remains in existence.73 Efforts to reinvigorate the PCA include
the introduction, in 1962, of a mixed-arbitration model to its activities, so that non-State entities
may benefit from its services. There is no doubt that the PCA is not in great demand today—but
the fact that, in 1990, it was still engaged in devising means of modernizing the institution shows
that it is too early to declare that the PCA is dead.74

72 (1931) 2 UNRIAA 1113
73Zacchaeus Adangor, Future of International Arbitration: What Changes Are on the Horizon?<available at:
74 Ibid

Click to View FlipBook Version