Article 33 of the United Nations Charter
lists the following methods for the pacific settlement of disputes between
States: negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, and resort to regional agencies or arrangements; good offices
should also be added to this list. Among these methods, certain involve
appealing to third parties. For example, mediation places the parties to a
dispute in a position in which they can themselves resolve their dispute thanks
to the intervention of a third party. Arbitration goes further, in the sense
that the dispute is submitted to the decision or award of an impartial third
party, so that a binding settlement can be achieved. The same is true of
judicial settlement (the method applied by the International Court of Justice),
except that a court is subject to stricter rules than an arbitral tribunal,
particularly in procedural matters.
Mediation and arbitration preceded judicial
settlement in history. The former was known in ancient India and in the Islamic
world, whilst numerous examples of the latter are to be found in ancient
Greece, in China, among the Arabian tribes, in maritime customary law in
medieval Europe and in Papal practice.
The origins
The modern history of international
arbitration is, however, generally recognized as dating from the so-called Jay
Treaty of 1794 between the United States of America and Great Britain. This
Treaty of Amity, Commerce and Navigation provided for the creation of three
mixed commissions, composed of American and British nationals in equal numbers,
whose task it would be to settle a number of outstanding questions between the
two countries which it had not been possible to resolve by negotiation. Whilst
it is true that these mixed commissions were not strictly speaking organs of
third-party adjudication, they were intended to function to some extent as
tribunals. They reawakened interest in the process of arbitration. Throughout
the nineteenth century, the United States and the United Kingdom had recourse
to them, as did other States in Europe and the Americas.
The Alabama Claims arbitration in 1872
between the United Kingdom and the United States marked the start of a second,
and still more decisive, phase. Under the Treaty of Washington of 1871, the
United States and the United Kingdom agreed to submit to arbitration claims by
the former for alleged breaches of neutrality by the latter during the American
Civil War. The two countries stated certain rules governing the duties of
neutral governments that were to be applied by the tribunal, which they agreed
should consist of five members, to be appointed respectively by the Heads of
State of the United States, the United Kingdom, Brazil, Italy and Switzerland,
the last three States not being parties to the case. The arbitral tribunal’s
award ordered the United Kingdom to pay compensation and it was duly complied
with. The proceedings served as a demonstration of the effectiveness of
arbitration in the settlement of a major dispute and it led during the latter
years of the nineteenth century to developments in various directions, namely:
- sharp growth in the practice of inserting in
treaties clauses providing for recourse to arbitration in the event of a
dispute between the parties;
- the conclusion of general treaties of
arbitration for the settlement of specified classes of inter-State disputes;
- efforts to construct a general law of
arbitration, so that countries wishing to have recourse to this means of
settling disputes would not be obliged to agree each time on the procedure to
be adopted, the composition of the tribunal, the rules to be followed and the
factors to be taken into consideration in making the award;
- proposals for the creation of a permanent
international arbitral tribunal in order to obviate the need to set up a
special ad hoc tribunal to decide each arbitrable dispute.
The Hague Peace Conferences and the Permanent
Court of Arbitration (PCA)
The Hague Peace Conference of 1899, convened
at the initiative of the Russian Czar Nicholas II, marked the beginning of a
third phase in the modern history of international arbitration. The chief
object of the Conference, in which — a remarkable innovation for the time — the
smaller States of Europe, some Asian States and Mexico also participated, was
to discuss peace and disarmament. It ended by adopting a Convention on the
Pacific Settlement of International Disputes, which dealt not only with
arbitration but also with other methods of pacific settlement, such as good
offices and mediation.
With respect to arbitration, the 1899
Convention made provision for the creation of permanent machinery which would
enable arbitral tribunals to be set up as desired and would facilitate their
work. This institution, known as the Permanent Court of Arbitration, consisted
in essence of a panel of jurists designated by each country acceding to the
Convention — each such country being entitled to designate up to four — from
among whom the members of each arbitral tribunal might be chosen. The
Convention further created a permanent Bureau, located at The Hague, with
functions corresponding to those of a court registry or a secretariat, and it
laid down a set of rules of procedure to govern the conduct of arbitrations. It
will be seen that the name “Permanent Court of Arbitration” is not a wholly
accurate description of the machinery set up by the Convention, which
represented only a method or device for facilitating the creation of arbitral
tribunals as and when necessary. Nevertheless, the system so established was
permanent and the Convention as it were “institutionalized” the law and
practice of arbitration, placing it on a more definite and more generally
accepted footing. The Permanent Court of Arbitration was established in 1900
and began operating in 1902.
A few years later, in 1907, a second Hague
Peace Conference, to which the States of Central and South America were also
invited, revised the Convention and improved the rules governing arbitral
proceedings. Some participants would have preferred the Conference not to
confine itself to improving the machinery created in 1899. The United States
Secretary of State, Elihu Root, had instructed the United States delegation to
work towards the creation of a permanent tribunal composed of judges who were
judicial officers and nothing else, who had no other occupation, and who would
devote their entire time to the trial and decision of international cases by
judicial methods. “These judges”, wrote Secretary Root, “should be so selected
from the different countries that the different systems of law and procedure
and the principal languages shall be fairly represented”. The United States,
the United Kingdom and Germany submitted a joint proposal for a permanent
court, but the Conference was unable to reach agreement upon it. It became
apparent in the course of the discussions that one of the major difficulties
was that of finding an acceptable way of choosing the judges, none of the
proposals made having managed to command general support. The Conference
confined itself to recommending that States should adopt a draft convention for
the creation of a court of arbitral justice as soon as agreement was reached
“respecting the selection of the judges and the constitution of the court”.
Although this court was never in fact to see the light of day, the draft
convention that was to have given birth to it enshrined certain fundamental
ideas that some years later were to serve as a source of inspiration for the
drafting of the Statute of the Permanent Court of International Justice (PCIJ).
Notwithstanding the fate of these proposals,
the Permanent Court of Arbitration, which in 1913 took up residence in the
Peace Palace that had been built for it thanks to a gift from Andrew Carnegie,
has made a positive contribution to the development of international law. Among
the classic cases that have been decided through recourse to its machinery,
mention may be made of the Carthage and Manouba cases (1913) concerning the
seizure of vessels, and of the Timor Frontiers (1914) and Sovereignty over the
Island of Palmas (1928) cases. Whilst demonstrating that arbitral tribunals set
up by recourse to standing machinery could decide disputes between States on a
basis of law and justice and command respect for their impartiality, these
cases threw into bold relief the shortcomings of the Permanent Court of
Arbitration. Tribunals of differing composition could hardly be expected to
develop a consistent approach to international law to the same extent as a
permanently constituted tribunal. Besides, there was the entirely voluntary
character of the machinery. The fact that States were parties to the 1899 and
1907 Conventions did not oblige them to submit their disputes to arbitration
nor, even if they were minded so to do, were they duty-bound to have recourse
to the Permanent Court of Arbitration nor to follow the rules of procedure laid
down in the Conventions.
The Permanent Court of Arbitration has
recently sought to diversify the services that it can offer, alongside those
contemplated by the Conventions. The International Bureau of the Permanent
Court has inter alia acted as Registry in some important international
arbitrations, including that between Eritrea and Yemen on questions of
territorial sovereignty and maritime delimitation (1998 and 1999), that
concerning the delimitation of the boundary between Eritrea and Ethiopia
(2002), and that between Ireland and the United Kingdom under the 1992
Convention for the Protection of the Marine Environment of the North-East
Atlantic (OSPAR). Moreover, in 1993, the Permanent Court of Arbitration adopted
new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only
One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes
Relating to Natural Resources and/or the Environment”.
The work of the two Hague Peace Conferences
and the ideas they inspired in statesmen and jurists had some influence on the
creation of the Central American Court of Justice, which operated from 1908 to
1918, as well as on the various plans and proposals submitted between 1911 and
1919 both by national and international bodies and by governments for the
establishment of an international judicial tribunal, which culminated in the
creation of the PCIJ within the framework of the new international system set
up after the end of the First World War.
The Permanent Court of International Justice
(PCIJ)
Article 14 of the Covenant of the League of
Nations gave the Council of the League responsibility for formulating plans for
the establishment of a Permanent Court of International Justice (PCIJ), such a
court to be competent not only to hear and determine any dispute of an
international character submitted to it by the parties to the dispute, but also
to give an advisory opinion upon any dispute or question referred to it by the
Council or by the Assembly. It remained for the League Council to take the
necessary action to give effect to Article 14. At its second session early in
1920, the Council appointed an Advisory Committee of Jurists to submit a report
on the establishment of the PCIJ. The committee sat in The Hague, under the
chairmanship of Baron Descamps ( Belgium). In August 1920, a report containing
a draft scheme was submitted to the Council, which, after examining it and
making certain amendments, laid it before the First Assembly of the League of
Nations, which opened at Geneva in November of that year. The Assembly
instructed its Third Committee to examine the question of the Court’s
constitution. In December 1920, after an exhaustive study by a subcommittee,
the Committee submitted a revised draft to the Assembly, which unanimously
adopted it. This was the Statute of the PCIJ.
The Assembly took the view that a vote alone
would not be sufficient to establish the PCIJ and that each State represented
in the Assembly would formally have to ratify the Statute. In a resolution of
13 December 1920, it called upon the Council to submit to the Members of the
League of Nations a protocol adopting the Statute and decided that the Statute
should come into force as soon as the protocol had been ratified by a majority
of Member States. The protocol was opened for signature on 16 December. By the time
of the next meeting of the Assembly, in September 1921, a majority of the
Members of the League had signed and ratified the protocol. The Statute thus
entered into force. It was to be revised only once, in 1929, the revised
version coming into force in 1936. Among other things, the new Statute resolved
the previously insurmountable problem of the election of the members of a
permanent international tribunal by providing that the judges were to be
elected concurrently but independently by the Council and the Assembly of the
League, and that it should be borne in mind that those elected “should
represent the main forms of civilization and the principal legal systems of the
world”. Simple as this solution may now seem, in 1920 it was a considerable
achievement to have devised it. The first elections were held on 14 September
1921. Following approaches by the Netherlands Government in the spring of 1919,
it was decided that the PCIJ should have its permanent seat in the Peace Palace
in The Hague, which it would share with the Permanent Court of Arbitration. It
was accordingly in the Peace Palace that on 30 January 1922 the Court’s
preliminary session devoted to the elaboration of the Court’s Rules opened, and
it was there too that its inaugural sitting was held on 15 February 1922, with
the Dutch jurist Bernard C. J. Loder as
President.
The PCIJ was thus a working reality. The
great advance it represented in the history of international legal proceedings
can be appreciated by considering the following:
- unlike arbitral tribunals, the PCIJ was a
permanently constituted body governed by its own Statute and Rules of
Procedure, fixed beforehand and binding on parties having recourse to the
Court;
- it had a permanent Registry which, inter
alia, served as a channel of communication with governments and international
bodies;
- its proceedings were largely public and
provision was made for the publication in due course of the pleadings, of
verbatim records of the sittings and of all documentary evidence submitted to
it;
- the permanent tribunal thus established was
now able to set about gradually developing a constant practice and maintaining
a certain continuity in its decisions, thereby enabling it to make a greater
contribution to the development of international law;
- in principle the PCIJ was accessible to all
States for the judicial settlement of their international disputes and they
were able to declare beforehand that for certain classes of legal disputes they
recognized the Court’s jurisdiction as compulsory in relation to other States
accepting the same obligation. This system of optional acceptance of the
jurisdiction of the Court was the most that it was then possible to obtain;
- the PCIJ was empowered to give advisory
opinions upon any dispute or question referred to it by the League of Nations
Council or Assembly;
- the Court’s Statute specifically listed the
sources of law it was to apply in deciding contentious cases and giving
advisory opinions, without prejudice to the power of the Court to decide a case
ex aequo et bono if the parties so agreed;
- it was more representative of the
international community and of the major legal systems of the world than any
other international tribunal had ever been before it.
Although the Permanent Court of International
Justice was brought into being through, and by, the League of Nations, it was
nevertheless not a part of the League. There was a close association between
the two bodies, which found expression inter alia in the fact that the League
Council and Assembly periodically elected the Members of the Court and that
both Council and Assembly were entitled to seek advisory opinions from the
Court, but the latter never formed an integral part of the League, just as the
Statute never formed part of the Covenant. In particular, a Member State of the
League of Nations was not by this fact alone automatically a party to the
Court’s Statute.
Between 1922 and 1940 the PCIJ dealt with 29
contentious cases between States and delivered 27 advisory opinions. At the
same time several hundred treaties, conventions and declarations conferred
jurisdiction upon it over specified classes of disputes. Any doubts that might
thus have existed as to whether a permanent international judicial tribunal
could function in a practical and effective manner were thus dispelled. The
Court’s value to the international community was demonstrated in a number of
different ways, in the first place by the development of a true judicial
technique. This found expression in the Rules of Court, which the PCIJ originally
drew up in 1922 and subsequently revised on three occasions, in 1926, 1931 and
1936. There was also the PCIJ’s Resolution concerning the Judicial Practice of
the Court, adopted in 1931 and revised in 1936, which laid down the internal
procedure to be applied during the Court’s deliberations on each case. In
addition, whilst helping to resolve some serious international disputes, many
of them consequences of the First World War, the decisions of the PCIJ at the
same time often clarified previously unclear areas of international law or
contributed to its development.
The International Court of Justice (ICJ)
The outbreak of war in September 1939
inevitably had serious consequences for the PCIJ, which had already for some
years known a period of diminished activity. After its last public sitting on 4
December 1939, the Permanent Court of International Justice did not in fact
deal with any judicial business and no further elections of judges were held.
In 1940 the Court removed to Geneva, a single judge remaining at The Hague,
together with a few Registry officials of Dutch nationality. It was inevitable
that even under the stress of the war some thought should be given to the
future of the Court, as well as to the creation of a new international
political order.
In 1942 the United States Secretary of State
and the Foreign Secretary of the United Kingdom declared themselves in favour
of the establishment or re-establishment of an international court after the
war, and the Inter-American Juridical Committee recommended the extension of
the PCIJ’s jurisdiction. Early in 1943, the United Kingdom Government took the initiative
of inviting a number of experts to London to constitute an informal
Inter-Allied Committee to examine the matter. This Committee, under the
chairmanship of Sir William Malkin ( United Kingdom), held 19 meetings, which
were attended by jurists from 11 countries. In its report, which was published
on 10 February 1944, it recommended:
- that the Statute of any new international
court should be based on that of the Permanent Court of International Justice;
- that advisory jurisdiction should be retained
in the case of the new Court;
- that acceptance of the jurisdiction of the
new Court should not be compulsory;
- that the Court should have no jurisdiction to
deal with essentially political matters.
Meanwhile, on 30 October 1943, following a
conference between China, the USSR, the United Kingdom and the United States, a
joint declaration was issued recognizing the necessity “of establishing at the
earliest practicable date a general international organization, based on the
principle of the sovereign equality of all peace-loving States, and open to
membership by all such States, large and small, for the maintenance of
international peace and security”.
This declaration led to exchanges between the
Four Powers at Dumbarton Oaks, resulting in the publication on 9 October 1944
of proposals for the establishment of a general international organization, to
include an international court of justice. The next step was the convening of a
meeting in Washington, in April 1945, of a committee of jurists representing 44
States. This Committee, under the chairmanship of G. H. Hackworth ( United
States), was entrusted with the preparation of a draft Statute for the future
international court of justice, for submission to the San Francisco Conference,
which during the months of April to June 1945 was to draw up the United Nations
Charter. The draft Statute prepared by the Committee was based on the Statute
of the PCIJ and was thus not a completely fresh text. The Committee
nevertheless felt constrained to leave a number of questions open which it felt
should be decided by the Conference: should a new court be created? In what
form should the court’s mission as the principal judicial organ of the United
Nations be stated? Should the court’s jurisdiction be compulsory, and, if so, to
what extent? How should the judges be elected? The final decisions on these
points, and on the definitive form of the Statute, were taken at the San
Francisco Conference, in which 50 States participated. The Conference decided
against compulsory jurisdiction and in favour of the creation of an entirely
new court, which would be a principal organ of the United Nations, on the same
footing as the General Assembly, the Security Council, the Economic and Social
Council, the Trusteeship Council and the Secretariat, and with the Statute
annexed to and forming part of the Charter. The chief reasons that led the
Conference to decide to create a new court were the following:
- as the court was to be the principal judicial
organ of the United Nations, it was felt inappropriate for this role to be
filled by the Permanent Court of International Justice, which had up until then
been linked to the League of Nations, then on the point of dissolution;
- the creation of a new court was more
consistent with the provision in the Charter that all Member States of the
United Nations would ipso facto be parties to the court’s Statute;
several States that were parties to the
Statute of the PCIJ were not represented at the San Francisco Conference, and,
conversely, several States represented at the Conference were not parties to
the Statute;
- there was a feeling in some quarters that the
PCIJ formed part of an older order, in which European States had dominated the
political and legal affairs of the international community, and that the creation
of a new court would make it easier for States outside Europe to play a more
influential role. This has in fact happened as the membership of the United
Nations grew from 51 in 1945 to 192 in 2006.
The San Francisco Conference nevertheless
showed some concern that all continuity with the past should not be broken,
particularly as the Statute of the PCIJ had itself been drawn up on the basis
of past experience, and it was felt better not to change something that had
seemed to work well. The Charter therefore plainly stated that the Statute of
the International Court of Justice was based upon that of the PCIJ. At the same
time, the necessary steps were taken for a transfer of the jurisdiction of the
PCIJ so far as was possible to the International Court of Justice. In any
event, the decision to create a new court necessarily involved the dissolution
of its predecessor. The PCIJ met for the last time in October 1945 when it was
decided to take all appropriate measures to ensure the transfer of its archives
and effects to the new International Court of Justice, which, like its
predecessor, was to have its seat in the Peace Palace. The judges of the PCIJ
all resigned on 31 January 1946, and the election of the first Members of the
International Court of Justice took place on 6 February 1946, at the First
Session of the United Nations General Assembly and Security Council. In April
1946, the PCIJ was formally dissolved, and the International Court of Justice,
meeting for the first time, elected as its President Judge José Gustavo
Guerrero ( El Salvador), the last President of the PCIJ. The Court appointed
the members of its Registry (largely from among former officials of the PCIJ)
and held an inaugural public sitting, on the 18th of that month. The first case
was submitted in May 1947. It concerned incidents in the Corfu Channel and was
brought by the United Kingdom against Albania.
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