Cbo9780511997341 014

13
The peaceful settlement of

international disputes
13.1 Obligation to settle disputes peacefully
The peaceful settlement of international disputes is a fundamental principle of inter-

national law, and a direct corollary of the prohibition on the threat or use of force. Both
principles feature prominently in the 1945 Charter of the United Nations (UN Charter).1
They have been repeated on many occasions, including the UN General Assembly’s
1971 Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the United Nations2 and
the 1982 Manila Declaration on the Peaceful Settlement of Disputes between States.3
Prior to the 20th century it was quite legitimate for States to use armed force to
settle their international disputes. Conquest was an accepted means by which States
could acquire territory. Gradually, however, as the power and efficiency of weaponry
increased, public opinion began to shift and formal attempts began to limit the legiti-
macy of warfare as a tool for dispute resolution. Even prior to World War I, in 1899 and
1907, conventions were concluded at The Hague restricting the right to wage war and
seeking to establish peaceful dispute resolution mechanisms. The Permanent Court
of Arbitration4 was established through these treaties, providing a neutral forum in
which States could settle their differences.
The need for peaceful dispute resolution mechanisms was even more apparent
after World War I. The creation of the League of Nations as a forum for international
discussion and cooperation, and the Permanent Court of International Justice (PCIJ)
as the first permanent judicial body designed to hear disputes between States, laid the
foundation for the international community accepting the significance of measures
1 [1945] ATS 1, arts 2(3) and 2(4), extracted below.

2 UN General Assembly Resolution 2625(XXV) (1970).
3 UN General Assembly Resolution A/Res/37/10 (1982).
4 Discussed later at 13.2.4.
659
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660 INTERNATIONAL LAW
designed to ensure peaceful settlement of international disputes. However, the League

of Nations was unable to prevent World War II, and following the war, the victorious
States set about redesigning the system to overcome its major weaknesses. With the
preservation of world peace as its foundation, the United Nations (UN) was formed.
Although UN member States are obliged to settle their disputes peacefully (UN
Charter, art 2(3)), there is no specific requirement as to how a particular dispute
must be settled. The UN Charter refers to a variety of mechanisms (art 33, below) and
establishes the International Court of Justice (ICJ) as a forum for judicial settlement
of international disputes. However, no particular method is mandated, and all depend
upon the consent of the parties. In practice, a range of dispute resolution mechanisms
are employed, from informal negotiations or diplomacy to formal judicial proceedings.
1945 Charter of the United Nations [1945] ATS 1

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall
act in accordance with the following Principles . . .
3. All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations . . .
Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the main-
tenance of international peace and security, shall, first of all, seek a solution by negoti-
ation, 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.
D. W. Bowett, ‘Contemporary Developments in Legal Techniques

in the Settlement of Disputes’ (1983) 180 Recueil des Cours 169
(footnotes omitted)
[177] The principle of settlement of disputes by peaceful means is, of course, one of
the principles basic to the whole structure of international society. Its juxtaposition in
Article 2(3) of the United Nations Charter with Article 2(4) is no accident of drafting:
for it is the corollary of the prohibition of the use or threat of force as a means of
resolving international disputes. This emerges clearly from the Manila Declaration on
the Peaceful Settlement of Disputes adopted by the General Assembly in 1982 at its
thirty-seventh session: for there the constant reiteration of the obligation not to use
force for the settlement of disputes emphasizes the fundamental link between these
two Charter provisions.
SETTLEMENT OF INTERNATIONAL DISPUTES 661
Yet settlement of disputes by peaceful means is not the same as settlement by legal
means. Realistically, we have to accept that the vast majority of disputes will be settled
by political rather than by legal means. Settlement is normally achieved by negotiation,
with or without the assistance of some third party. The third party may be a State or
an organ of some organization such as the Security Council, or the Council of Ministers
of the Organization for African Unity, or the Council of the Arab League. And the third
party involvement may be formalized good offices, or mediation, or conciliation; or it
may be quite informal, and undertaken as a more or less routine part of the functioning
of the many international organizations, or even the diplomatic function.
Yet, whatever its form, these techniques of settlement are rarely indifferent to the
legal rights of the parties.
Obviously, the relevance of the law will depend on how far the parties invoke legal
arguments. In general, however, they will do so and the settlement process has to take
account of them. The eventual settlement would, however, be normally expected to
embody elements of a compromise: and, indeed, willingness to compromise is deemed
something of a virtue.
Clearly, however, there are occasions when the parties prefer settlement by legal
means, and by that I mean resort to either [178] arbitration or judicial settlement. It is
the characteristic of these techniques that they involve the application of law – to the
exclusion of political discretion or, indeed, any other ‘non-legal’ factors – and result in
a binding award or judgment. At least, that is the theory.
Notes
1. The UN Charter provisions are derived from the 1899 and 1907 ‘Hague Conventions’,5 and
the 1919 Covenant of the League of Nations.6 The UN Charter goes substantially beyond
the earlier agreements in terms of outlawing war as a means of dispute settlement, and
imposing a clear obligation to settle disputes peacefully.
2. States cannot be compelled to settle their international disputes. As a consequence of the
principle of State sovereignty, States are only bound by dispute settlement procedures to
which they consent. This principle is illustrated by the 1923 request from the Council of
the League of Nations to the PCIJ for an advisory opinion concerning the Status of Eastern
Carelia.7 A dispute had arisen between Finland and Russia concerning the interpretation
of a 1920 peace treaty between the two nations which, inter alia, provided for ‘autonomy’
for Eastern Carelia. Finland sought to have the League of Nations directly intervene in
the dispute. As Russia was not a member of the League, however, it was required to
specifically consent to the use of the League of Nations dispute resolution mechanisms.
Russia refused to do so, prompting the Council to ask the PCIJ for an advisory opinion on
the effect of the peace treaty. The PCIJ noted:
It follows from the above that the opinion which the Court has been requested to give
bears on an actual dispute between Finland and Russia. As Russia is not a Member of
5 1899 Convention for the Pacific Settlement of International Disputes (Hague I) [1901] ATS 130 and 1907 Convention
for the Pacific Settlement of International Disputes (Hague I) [1997] ATS 6.
6 [1920] ATS 1.
7 Status of Eastern Carelia (Advisory Opinion) (1923) PCIJ Reports, Series B, no. 5.
the League of Nations, the case is one under Article 17 of the Covenant. According to
this article, in the event of a dispute between a Member of the League and a State which
is not a Member of the League, the State not a Member of the League shall be invited to
accept the obligations of membership in the League for the purposes of such dispute,
and, if this invitation is accepted, the provisions of Articles 12 to 16 inclusive shall be
applied with such modifications as may be deemed necessary by the Council. This
rule, moreover, only accepts and applies a principle which is a fundamental principle
of international law, namely, the principle of the independence of States. It is well
established in international law that no State can, without its consent, be compelled
to submit its disputes with other States either to mediation or to arbitration, or to any
other kind of pacific settlement. Such consent can be given once and for all in the form
of an obligation freely undertaken, but it can, on the contrary, also be given in a special
case apart from any existing obligation. The first alternative applies to the Members of
the League who, having accepted the Covenant, are under the obligation resulting from
the provisions of this pact dealing with the pacific settlement of international disputes.
As concerns States not members of the League, the situation is quite different; they
are not bound by the Covenant. The submission, therefore, of a dispute between them
and a Member of the League for solution according to the methods provided for in the
Covenant, could take place only by virtue of their consent. Such consent, however, has
never been given by Russia. On the contrary, Russia has, on several occasions, clearly
declared that it accepts no intervention by the League of Nations in the dispute with
Finland. The refusals which Russia had already opposed to the steps suggested by the
Council have been renewed upon the receipt by it of the notification of the request
for an advisory opinion. The Court therefore finds it impossible to give its opinion on a
dispute of this kind.8
3. The application of a dispute resolution procedure or the jurisdiction of a tribunal may first
depend upon the parties demonstrating the existence of an international dispute. The ICJ
commented on this important procedural aspect in the Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania (Advisory Opinion):9
Whether there exists an international dispute is a matter for objective determination.

The mere denial of the existence of a dispute does not prove its non-existence. In
the diplomatic correspondence submitted to the Court, the United Kingdom, acting in
association with Australia, Canada and New Zealand, and the United States of America
charged Bulgaria, Hungary and Romania with having violated, in various ways, the
provisions of the articles dealing with human rights and fundamental freedoms in the
Peace Treaties and called upon the three Governments to take remedial measures
to carry out their obligations under the Treaties. The three Governments, on the other
hand, denied the charges. There has thus arisen a situation in which the two sides hold
clearly opposite views concerning the question of the performance or non-performance
of certain treaty obligations. Confronted with such a situation, the Court must conclude
that international disputes have arisen.10
4. A variation on this argument featured in the Case Concerning East Timor,11 in which
Australia argued that it was not a party to the relevant international dispute. The case
8 At [27–28].
9 [1950] ICJ Reports 65.
10 At [74].
11 Case Concerning East Timor (Portugal v Australia) [1995] ICJ Reports 90.
concerned objections by Portugal to Australia’s negotiation and conclusion of the 1989

Timor Gap Treaty12 with Indonesia. Since 1978, Australia had recognised Indonesia as
the de facto controlling power in East Timor, Indonesia having occupied the previously
Portuguese-administered territory since late 1975. Portugal claimed that Australia’s deal-
ings with Indonesia contravened its rights as administering power in East Timor, and also
the rights of the East Timorese people to self-determination. In return, Australia argued
(inter alia) that Portugal’s real dispute was with Indonesia, not Australia, and therefore
the ICJ lacked jurisdiction to hear the case. In the Case Concerning East Timor, the ICJ
observed:
According to one of the objections put forward by Australia, there exists in reality no
dispute between itself and Portugal . . . Australia contends that the case as presented by
Portugal is artificially limited to the question of the lawfulness of Australia’s conduct,
and that the true respondent is Indonesia, not Australia. Australia maintains that it
is being sued in place of Indonesia. In this connection, it points out that Portugal
and Australia have accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of its Statute, but that Indonesia has not . . . The Court recalls that, in
the sense accepted in its jurisprudence and that of its predecessor, a dispute is a
disagreement on a point of law or fact, a conflict of legal views or interests between
parties (see Mavrommatis Palestine Concessions, Judgment no. 2, 1924, PCIJ, Series A,
no. 2, p 11; Northern Cameroons, Judgment, ICJ Reports 1963, p 27; and Applicability
of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947, Advisory [100] Opinion ICJ Reports 1988, p 27, para 35).
In order to establish the existence of a dispute, ‘It must be shown that the claim of one
party is positively opposed by the other’ (South West Africa, Preliminary Objections,
Judgment, ICJ Reports 1962, p 328); and further, ‘whether there exists an international
dispute is a matter for objective determination’ (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950,
p 74). For the purpose of verifying the existence of a legal dispute in the present case,
it is not relevant whether the ‘real dispute’ is between Portugal and Indonesia rather
than Portugal and Australia. Portugal has, rightly or wrongly, formulated complaints
of fact and law against Australia which the latter has denied. By virtue of this denial,
there is a legal dispute. On the record before the Court, it is clear that the Parties
are in disagreement, both on the law and on the facts, on the question whether the
conduct of Australia in negotiating, concluding and initiating performance of the 1989
Treaty was in breach of an obligation due by Australia to Portugal under international
law. Indeed, Portugal’s Application limits the proceedings to these questions. There
nonetheless exists a legal dispute between Portugal and Australia. This objection of
Australia must therefore be dismissed.13
5. A dispute must continue to exist at the time it comes for resolution. Lack of a continuing
dispute was the basis for the ICJ’s refusal to adjudicate in the 1973–74 Nuclear Tests
Cases14 instituted by New Zealand and Australia against France.
12 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian
Province of East Timor and Northern Australia [1991] ATS 9.
13 At [20–22].
14 Nuclear Tests Cases (Australia v France) (Merits) [1974] ICJ Rep 253; Nuclear Tests Cases (New Zealand v France)
(Merits) [1974] ICJ Rep 457.
13.2 Methods of dispute settlement
13.2.1 Negotiation
Negotiation is the most common method of international dispute resolution and is
present to some extent in the resolution of most, if not all, international disputes.
Negotiation may provide a complete solution to some disputes; in others it may be
confined to producing an agreement to submit the dispute to formal resolution pro-
cedures. Negotiation in its most simple form refers to direct discussions between
representatives of the two disputing parties. It can be contrasted with other forms of
dispute settlement that require the involvement of third parties, either as facilitators
of a settlement, or (in the case of arbitration and judicial proceedings) as the body
determining the dispute. However, the line separating negotiation from more formal
dispute resolution procedures, in particular mediation, can become quite blurred.
For example, a neutral third party may become involved in negotiations through the
provision of ‘good offices’. This involves the third party intervening in the dispute
by providing the means or the encouragement for the disputing parties to negotiate
directly with one another.
Negotiation is also useful as a means of avoiding the creation of disputes in the
first place. By engaging in consultation with potentially affected parties, a State may
prevent a dispute from arising by allowing the modification of its proposed activities
before any harm is done and before each side’s positions have become entrenched.
Consultation is often ad hoc and informal, but it can also be incorporated within a
broader framework of decision-making and dispute management. The 1959 Antarctic
Treaty15 provides an example of this latter form of consultation. Under the Antarctic
Treaty, parties meet regularly to discuss issues relevant to management of the region.
Despite the lack of agreement over sovereignty in Antarctica, these Antarctic Treaty
Consultative Meetings (ATCMs) have proven relatively successful as a means for con-
trolling Antarctic activities and addressing, in particular, environmental concerns in
the region.
1959 Antarctic Treaty [1961] ATS 12

Article IX
1. Representatives of the Contracting Parties named in the preamble to the present

Treaty shall meet in the city of Canberra within two months after the date of entry into
force of the Treaty, and thereafter at suitable intervals and places, for the purpose of
exchanging information, consulting together on matters of common interest pertaining
to Antarctica, and formulating and considering, and recommending to their Govern-
ments, measures in furtherance of the principles and objectives of the Treaty, including
measures regarding:
(a) use of Antarctica for peaceful purposes only;
(b) facilitation of scientific research in Antarctica;
15 [1961] ATS 12.
(c) facilitation of international scientific cooperation in Antarctica;
(d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty;
(e) questions relating to the exercise of jurisdiction in Antarctica;
(f) preservation and conservation of living resources in Antarctica.
Occasionally it has been necessary for the ICJ to determine if particular discussions
amounted to a negotiation. For example, if an existing dispute is discussed in an
international forum such as the UN, and the parties to the dispute are among the
participants to the discussion, does that discussion amount to a negotiation? The ques-
tion will be relevant where a formal dispute resolution mechanism is invoked that
depends upon the parties having exhausted negotiation as a means of resolving the
dispute.
South West Africa Cases (Ethiopia v South Africa; Liberia v South

Africa) (Preliminary Objections) [1962] ICJ Reports 329
[Following World War I, South West Africa, formerly under German rule, became a
League of Nations Mandate Territory under the control of South Africa. Following World
War II, South Africa resisted attempts to have the region become a UN Trust Territory,
which would have paved the way for the territory to become independent. Ethiopia
and Liberia commenced action in the ICJ against South Africa, alleging that it had failed
to carry out its duties under the Mandate. South Africa raised preliminary objections
concerning the jurisdiction of the Court to hear the cases, including an argument that a
requirement to negotiate had not been satisfied. Article 7(2) of the Mandate for South
West Africa stated that ‘The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another Member of the League of Nations relating
to the interpretation or the application of the provisions of the Mandate, such dispute,
if it cannot be settled by negotiation, shall be submitted to the Permanent Court of
International Justice’.]
[344] The Court will now consider the Fourth and last Preliminary Objection raised by
the Respondent. In essence, it consists of the proposition that if it is a dispute within
the meaning of Article 7, it is not one which cannot be settled by negotiation with the
applicants and that there have been no such negotiations with a view to its settlement.
The Applicants’ reply is to the effect that repeated negotiations have taken place over
a period of more than ten years between them and other Members of the United
Nations holding the same views as they, on the one hand, and the Respondent, on
the other, in the Assembly and various organs of the United Nations, and that each
time the negotiations reached a deadlock, due to the conditions and restrictions the
Respondent placed upon them. The question to consider, therefore, is: What are the
chances of success of further negotiations between the Parties in the present cases for
reaching a settlement? . . .
[346] Now in the present cases, it is evident that a deadlock on the issues of the dispute
was reached and has remained since, and that no modification of the respective con-
tentions has taken place since the discussions and negotiations in the United Nations.
It is equally evident that ‘there can be no doubt’, in the words of the Permanent Court,
‘that the dispute cannot be settled by diplomatic negotiation’, and that it would be
‘superfluous’ to undertake renewed discussions.
It is, however, further contended by the Respondent that the collective negotiations
in the United Nations are one thing and direct negotiations between it and the appli-
cants are another, and that no such direct negotiations have ever been undertaken by
them. But in this respect it is not so much the form of the negotiation that matters as
the attitude and views of the parties on the substantive issues of the question involved.
So long as both sides remain adamant, and this is obvious even from their oral presen-
tations before the Court, there is no reason to think that the dispute can be settled by
further negotiations between the Parties.
Moreover, diplomacy by conference or parliamentary diplomacy has come to be rec-

ognized in the past four or five decades as one of the established modes of international
negotiation. In cases where the disputed questions are of common interest to a group
of States on one side or the other in an organized body, parliamentary or conference
diplomacy has often been found to be the most practical form of negotiation. The
number of parties to one side or the other of a dispute is of no importance; it depends
upon the nature of the question at issue. If it is one of mutual interest to many States,
whether in an organized body or not, there is no reason why each of them should go
through the formality and pretence of direct negotiation with the common adversary
State after they have already fully participated in the collective negotiations with the
same State in opposition.
[On this basis, the Court dismissed the Respondent’s objection.]
Notes
1. Judges Spender and Fitzmaurice wrote a joint dissenting opinion, disagreeing with the
Court’s finding that discussions in an international forum could take the place of direct
negotiations between the parties.16 Judge Fitzmaurice reaffirmed this view in the Northern
Cameroons Case,17 although a majority of the Court in that case found it unnecessary to
consider the issue:
Was there any attempt at settlement by ‘negotiation’, and what does negotiation mean?
It does not, in my opinion, mean a couple of States arguing with each other across
the floor of an international assembly, or circulating statements of their complaints or
contentions to its member States. This is disputation, not negotiation.18
2. If it is clear that one party to a dispute is unwilling to negotiate, the ICJ will not use
absence of negotiations as a reason for refusal of jurisdiction: United States Diplomatic
and Consular Staff in Tehran Case.19 That case related to the armed attack on the United
States Embassy in Tehran in November 1979 and the detention of the occupants of
the Embassy as hostages. The United States commenced proceedings in the ICJ based,
16 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ
Reports 329, 561.
17 Northern Cameroons Case [1963] ICJ Reports 15.
18 At 123 per Fitzmaurice J.
19 United States Diplomatic and Consular Staff in Tehran Case (United States v Iran) [1980] ICJ Reports 3.
inter alia, upon the 1955 Treaty of Amity, Economic Relations and Consular Rights20
between the two nations. Under art XXI of the 1955 Treaty, the ICJ was conferred with
jurisdiction over any dispute between the two parties that was ‘not satisfactorily adjusted
by diplomacy’. In its judgment, the Court noted:
[the United States’ ] attempts to negotiate with Iran in regard to the overrunning of its
Embassy and detention of its nationals as hostages had reached a deadlock, owing to
the refusal of the Iranian Government to enter into any discussion of the matter. In
consequence, there existed at that date not only a dispute but, beyond any doubt, a
‘dispute . . . not satisfactorily adjusted by diplomacy’ within the meaning . . . of the 1955
Treaty.21
13.2.2 Enquiry
Enquiry as a method of international dispute resolution involves the use of an impar-
tial third party to investigate and report on issues of fact which are the subject of
disagreement between the parties. International Commissions of Inquiry were intro-
duced by the 1899 Hague Convention.22 The 1907 Hague Convention23 improved on
the earlier agreement by providing more detailed rules for the formation and oper-
ation of International Commissions of Inquiry. The value of an objective finding of
facts in reducing tension and resolving disputes had been demonstrated on numerous
occasions.
1907 Convention for the Pacific Settlement of International Disputes

(Hague I) [1997] ATS 6
Part III: International Commissions of Inquiry
Article 9
In disputes of an international nature involving neither honour nor vital interests, and
arising from a difference of opinion on points of facts, the Contracting Powers deem
it expedient and desirable that the parties who have not been able to come to an
agreement by means of diplomacy, should, as far as circumstances allow, institute
an International Commission of Inquiry, to facilitate a solution of these disputes by
elucidating the facts by means of an impartial and conscientious investigation.
Notes
1. UN General Assembly Resolution 2329 (XXII) (1967) reaffirms ‘the importance of interna-
tional fact finding, in appropriate cases, for the settlement and the prevention of disputes’,
and urges ‘Member States to make more effective use of the existing methods of fact
finding’.
20 Treaty of Amity, Economic Relations and Diplomatic Relations 284 UNTS 93 (signed in Tehran on 1 August 1955
and entered into force on 16 June 1957).
21 At 27.
22 1899 Convention for the Pacific Settlement of International Disputes (Hague I) [1901] ATS 130.
23 1907 Convention for the Pacific Settlement of International Disputes [1997] ATS 6.
2. The use of fact-finding by the UN and its agencies has increased. Note the Declaration on
Fact-finding by the United Nations in the Field of the Maintenance of International Peace
and Security,24 in which the UN General Assembly stated:
the full use and further improvement of the means for fact-finding of the United
Nations could contribute to the strengthening of the role of the United Nations in the
maintenance of international peace and security and promote the peaceful settlement
of disputes, as well as the prevention and removal of threats to peace.
3. The UN Security Council regularly establishes fact-finding missions in relation to situations

for which it has taken responsibility. See, for example, the terms of reference for the
Security Council’s November 2008 mission to Afghanistan:
1. To reaffirm the Security Council’s continued support for the Government and people
of Afghanistan as they rebuild their country, strengthen the foundations of sustainable
peace and constitutional democracy and assume their rightful place in the community
of nations;
2. To review the progress made by the Afghan Government, with the assistance of
the international community and in accordance with the Afghanistan Compact, in
addressing the interconnected challenges in the areas of security, governance, rule of
law and human rights, economic and social development, as well as on the crosscutting
issue of counter-narcotics;
3. To assess the status of implementation of relevant Security Council resolutions, in

particular resolutions 1806 (2008) and 1833 (2008), as well as of mutual pledges and
commitments made by the participants to the International Conference in Support of
Afghanistan, held in Paris on 12 June 2008 . . . 25
Finding of the International Commission of Inquiry Organized under

Article 9 of the Convention for the Pacific Settlement of International
Disputes, of July 29, 189926 (February 26th, 1905) (1908) 2 American
Journal of International Law 931
[In October 1904, en route to the Russo–Japanese War, a squadron of Russian warships
mistook a fleet of British fishing vessels for Japanese torpedo boats. The Russian admi-
ral, believing the squadron to be under attack, opened fire. One fishing trawler was
sunk, another five damaged, two people were killed and another six injured. France
persuaded the two States to establish a commission of inquiry under the Hague Con-
vention. The five-member commission delivered its report in February 1905. It found
that there had been no torpedo boats in the vicinity and therefore there was no justifi-
cation for the Russian admiral opening fire. The Commissioners found as follows.]
[936] . . . that Admiral Rojdestvensky personally did everything he could, from begin-
ning to end of the incident, to prevent trawlers, recognized as such, from being fired
upon by the squadron . . . [and] that their findings . . . [are not] of a nature to cast any
24 UN General Assembly Resolution 46/59 (1991).

25 S/2008/708 (letter dated 14 November 2008 from the President of the Security Council to the Secretary-General).
26 Known as the Dogger Bank Inquiry.
discredit upon the military qualities or the humanity of Admiral Rojdestvensky, or of the
personnel of his squadron.
Notes
1. The original conception of the International Commission of Inquiry was as a process that
could only be used in relation to disputes that did not involve ‘honour or vital interests’,
could only consider factual matters, and could only report on the Commission’s findings of
fact. Gradually the process evolved so that it could be used for any type of dispute, could
consider matters of law as well as fact, and could make recommendations or findings of
fault.27
2. There are numerous treaties in addition to the Hague Conventions that establish enquiry
procedures. See, for example, art 26 of the 1919 Constitution of the International Labour
Organization28 and art 90 of the Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts.29
13.2.3 Mediation and conciliation

Mediation refers to the participation of a neutral third party in negotiations. The
mediator’s role is to suggest ways in which the parties might compromise and reach a
settlement in the dispute.

Part II: Good Offices and Mediation
Article 2
In case of serious disagreement or dispute, before an appeal to arms, the Contracting

Powers agree to have recourse, as far as circumstances allow, to the good offices or
mediation of one or more friendly Powers.
Article 3
Independently of this recourse, the Contracting Powers deem it expedient and desirable
that one or more Powers, strangers to the dispute, should, on their own initiative and
as far as circumstances may allow, offer their good offices or mediation to the States at
variance.
Powers strangers to the dispute have the right to offer good offices or mediation even
during the course of hostilities.
The exercise of this right can never be regarded by either of the parties in dispute as an
unfriendly act.
27 See J. G. Merrills, International Dispute Settlement, 3rd edn, Cambridge University Press, New York, 1998,
pp 44–61.
28 [1920] ATS 1.
29 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) [1991] ATS 29.
Article 4
The part of the mediator consists in reconciling the opposing claims and appeasing the
feelings of resentment which may have arisen between the States at variance.
Article 5
The functions of the mediator are at an end when once it is declared, either by one of
the parties to the dispute or by the mediator himself, that the means of reconciliation
proposed by him are not accepted.
Article 6
Good offices and mediation undertaken either at the request of the parties in dispute
or on the initiative of Powers strangers to the dispute have exclusively the character of
advice, and never have binding force.
‘Secretary-General of the United Nations, Ruling Pertaining to the

Differences between France and New Zealand Arising from the
Rainbow Warrior Affair, 6 July 1986’ (1987) 81 American Journal of
International Law 325
[In 1985 a dispute arose between New Zealand and France over the bombing, by
French Secret Service Agents, of the Greenpeace vessel Rainbow Warrior in Auckland
Harbour. Judicial settlement was unavailable as France did not accept the compulsory
jurisdiction of the ICJ. Nor was it appropriate, as the dispute soon encompassed political
and trade issues as well as the central legal claim. After direct negotiations had come
to a stalemate, the two countries sought the assistance of the UN Secretary-General to
resolve the dispute.]
Introduction
On 10 July 1985 a civilian vessel, the ‘Rainbow Warrior’, not flying the New Zealand flag,
was sunk at its moorings in Auckland Harbour, New Zealand, as a result of extensive
damage caused by two high explosive devices. One person, a Netherlands citizen, Mr
Fernando Pereira, was killed as a result of this action; he drowned when the ship
sank.
On 12 July, two agents of the French Directorate General of External Security (DGSE)
were interviewed by the New Zealand Police and subsequently arrested and prosecuted.
On 4 November they pleaded guilty in the District Court in Auckland, New Zealand,
to charges of manslaughter and willful damage to a ship by means of an explosive.
They were sentenced to ten years imprisonment each; they are presently serving their
sentences in New Zealand prisons.
A communiqué issued on 22 September 1985 by the Prime Minister of France con-

firmed that the ‘Rainbow Warrior’ had been sunk by agents of the DGSE upon instruc-
tions. On the same day, the Minister of External Affairs of France pointed out to the
Prime Minister of New Zealand that France was ready to undertake reparations for the
consequences of that action. He also declared he was ready, as the Prime Minister
of New Zealand had already suggested, to meet with the Deputy Prime Minister of
New Zealand on 23 and 25 September in New York. Such a meeting did take place for
the purpose of discussing the possible ways to find a solution to the problems arising
from the Rainbow Warrior affair.
A number of subsequent meetings took place between officials of the two countries
in the months that followed, but it did not prove possible to reach a settlement.
In June 1986 I was formally approached by the Governments of France and New
Zealand, who referred to me all the problems between them arising from the Rainbow
Warrior affair for a ruling which both sides agreed to abide by. I then informed both
Governments that I was prepared to undertake such a task. On 19 June, in Paris
and in Wellington, both Governments made public announcements to that effect, and
in New York on the same day I publicly confirmed that I was willing to undertake
that task and to make my ruling available to the two Governments in the very near
future.
Ruling
The issues that I need to consider are limited in number. I set out below my ruling on
them which takes account of all the information available to me. My ruling is as follows:
(1) Apology
New Zealand seeks an apology. France is prepared to give one. My ruling is that the
Prime Minister of France should convey to the Prime Minister of New Zealand a formal
and unqualified apology for the attack, contrary to international law, on the ‘Rainbow
Warrior’ by French service agents which took place on 10 July 1985.
(2) Compensation
New Zealand seeks compensation for the wrong done to it and France is ready to pay
some compensation. The two sides, however, are some distance apart on quantum.
New Zealand has said that the figure should be not less than US Dollars 9 million,
France that it should not be more than US Dollars 4 million. My ruling is that the French
Government should pay the sum of US Dollars 7 million to the Government of New
Zealand as compensation for all the damage it has suffered.
(3) The Two French Service Agents
It is on this issue that the two Governments plainly had the greatest difficulty in their
attempt to negotiate a solution to the whole issue on a bilateral basis before they took
the decision to refer the matter to me.
The French Government seeks the immediate return of the two officers. It underlines
that their imprisonment in New Zealand is not justified, taking into account in particular
the fact that they acted under military orders and that France is ready to give an apology
and to pay compensation to New Zealand for the damage suffered.
The New Zealand position is that the sinking of the ‘Rainbow Warrior’ involved not
only a breach of international law, but also the commission of a serious crime in New
Zealand for which the two officers received a lengthy sentence from a New Zealand
court. The New Zealand side states that their release to freedom would undermine the
integrity of the New Zealand judicial system. In the course of bilateral negotiations with
France, New Zealand was ready to explore possibilities of the prisoners serving their
sentences outside New Zealand.
But it has been, and remains, essential to the New Zealand position that there should
be no release to freedom, that any transfer should be to custody, and that there should
be a means of verifying that.
The French response is that there is no basis either in international law or in French
law on which the two could serve out any portion of their New Zealand sentence
in France, and that they could not be subjected to new criminal proceedings after a
transfer into French hands.
On this point, if I am to fulfil my mandate adequately, I must find a solution in respect

of the two officers which both respects and reconciles these conflicting positions.
My ruling is as follows:
(a) The Government of New Zealand should transfer Major Alain Mafart and Captain Dominique
Prieur to the French military authorities. Immediately thereafter, Major Mafart and Captain Prieur
should be transferred [327] to a French military facility on an isolated island outside of Europe
for a period of three years.
(b) They should be prohibited from leaving the island for any reason, except with the mutual
consent of the two Governments. They should be isolated during their assignment on the island
from persons other than military or associated personnel and immediate family and friends.
They should be prohibited from any contact with the press or other media whether in person
or in writing or in any other manner. These conditions should be strictly complied with and
appropriate action should be taken under the rules governing military discipline to enforce
them . . .
(4) Trade Issues
The New Zealand Government has taken the position that trade issues have been
imported into the affair as a result of French action, either taken or in prospect. The
French Government has denied that, but it has indicated that it is willing to give some
undertakings relating to trade, as sought by the New Zealand Government. I therefore
rule that France should:
(a) Not oppose continuing imports of New Zealand butter into the United Kingdom in 1987
and 1988 at levels proposed by the Commission of the European Communities . . .
(b) Not take measures that might impair the implementation of the agreement between New
Zealand and the European Economic Community on Trade in Mutton, Lamb and Goatmeat . . .
(5) Arbitration
The New Zealand Government has argued that a mechanism should exist to ensure that
any differences that may arise about the implementation of the agreements concluded
as a result of my ruling can be referred for binding decision to an arbitral tribunal. The
Government of France is not averse to that. My ruling is that an agreement to that effect
should be concluded and provide that any dispute concerning the interpretation or
application of the other agreements, which it has not been possible to resolve through
the diplomatic channels, shall, at the request of either of the two Governments, be
submitted to an arbitral tribunal under the following conditions . . .
Notes
1. The classification of dispute resolution methods is not always clear. Geoffrey Palmer,
former Prime Minister of New Zealand, noted that the role undertaken by the Secretary-
General in this case was unique.
As was apparent from the announcement of 19 June and confirmed in the Secretary-
General’s ruling, which he delivered on 6 July, he was not asked to determine the
(partially non-existent) law on any of the problems referred to him. Instead, he was
asked to produce a determination on every aspect of the affair that was both equitable
and principled. To the extent that Perez de Cueller was given a mandate by the parties
to make proposals to them to resolve their dispute, he was being asked to undertake
a role, familiar to both national and international practice and to the United Nations,
of a mediator. To the extent that parties to the dispute agreed, as they did, to abide
by and implement his proposals they were asking the Secretary-General to play a role,
unprecedented for him, something halfway between that of a mediator and that of a
court deciding a case ex aequo et bono.30
2. Part of the Secretary-General’s ruling was a recommendation that any future disputes
arising out of these circumstances be submitted to arbitration. This mechanism was utilised
by New Zealand after the French agents were returned to France before their stipulated
three years of isolation had passed.31
3. Conciliation formalises the dispute resolution process one step further than mediation
by utilising an institution – a conciliation commission – to examine the dispute. The
conciliation commission may be set up on either a permanent or an ad hoc basis. Unlike
arbitration, a conciliation commission is not empowered to make a binding determination
in resolution of the dispute. Instead, the commission’s role is to examine the dispute and
suggest terms of settlement that are acceptable to both parties.
13.2.4 Arbitration
Arbitration is a relatively formal method of dispute settlement and has much in com-
mon with judicial procedures. Like judicial settlement, arbitration involves the binding
determination of a dispute by a third party according to legal principles. Unlike judicial
settlement, however, arbitration provides more flexibility to the parties, particularly
because they can choose the arbitrators. As with other non-judicial forms of interna-
tional dispute settlement, arbitral tribunals can be set up on an ad hoc or a permanent
basis.
The Permanent Court of Arbitration was established under the 1899 and 1907
Hague Conventions and provides an institutionalised structure for the settlement of
international disputes through arbitration. Despite the name, it is not a ‘permanent’
court. Parties to the Conventions appoint up to four persons at a time to serve as
members of the Court. Should a dispute arise, the disputants may then appoint a
tribunal from members of the Court, according to their own agreement or in accordance
with the Court’s standard procedures.
30 Geoffrey Palmer, ‘Settlement of International Disputes: The “Rainbow Warrior” Affair’ (1989) 15 Commonwealth
Law Bulletin 585, 596.
31 ‘Rainbow Warrior (New Zealand v France) France–New Zealand Arbitration Tribunal (30 April 1990)’ (1990) 82
International Law Reports 499.

Part IV: International Arbitration
Chapter I: The System of Arbitration
Article 37
International arbitration has for its object the settlement of disputes between States by
Judges of their own choice and on the basis of respect for law.
Recourse to arbitration implies an engagement to submit in good faith to the Award.
Article 38
In questions of a legal nature, and especially in the interpretation or application of

International Conventions, arbitration is recognized by the Contracting Powers as the
most effective, and, at the same time, the most equitable means of settling disputes
which diplomacy has failed to settle.
Consequently, it would be desirable that, in disputes about the above-mentioned ques-

tions, the Contracting Powers should, if the case arose, have recourse to arbitration, in
so far as circumstances permit . . .
Chapter II: The Permanent Court of Arbitration
Article 41
With the object of facilitating an immediate recourse to arbitration for international

differences, which it has not been possible to settle by diplomacy, the Contracting
Powers undertake to maintain the Permanent Court of Arbitration, as established by
the First Peace Conference, accessible at all times, and operating, unless otherwise
stipulated by the parties, in accordance with the rules of procedure inserted in the
present Convention.
Article 42
The Permanent Court is competent for all arbitration cases, unless the parties agree to
institute a special Tribunal.
Article 43
The Permanent Court sits at The Hague . . .
Article 44
Each Contracting Power selects four persons at the most, of known competency in
questions of international law, of the highest moral reputation, and disposed to accept
the duties of Arbitrator.
The persons thus elected are inscribed, as Members of the Court, in a list which shall
be notified to all the Contracting Powers by the Bureau.
Any alteration in the list of Arbitrators is brought by the Bureau to the knowledge of
the Contracting Powers.
Two or more Powers may agree on the selection in common of one or more Members.
The same person can be selected by different Powers. The Members of the Court are
appointed for a term of six years. These appointments are renewable.
Should a Member of the Court die or resign, the same procedure is followed for filling
the vacancy as was followed for appointing him. In this case the appointment is made
for a fresh period of six years.
Article 45
When the Contracting Powers wish to have recourse to the Permanent Court for the
settlement of a difference which has arisen between them, the Arbitrators called upon
to form the Tribunal with jurisdiction to decide this difference must be chosen from the
general list of Members of the Court.
Failing the direct agreement of the parties on the composition of the Arbitration Tribunal,
the following course shall be pursued:
Each party appoints two Arbitrators, of whom one only can be its national or chosen
from among the persons selected by it as Members of the Permanent Court. These
Arbitrators together choose an Umpire . . .
Chapter III. Arbitration Procedure
Article 51
With a view to encouraging the development of arbitration, the Contracting Powers

have agreed on the following rules, which are applicable to arbitration procedure,
unless other rules have been agreed on by the parties.
Article 52
The Powers which have recourse to arbitration sign a ‘Compromis’, in which the subject
of the dispute is clearly defined, the time allowed for appointing Arbitrators, the form,
order, and time in which the communication referred to in Article 63 must be made,
and the amount of the sum which each party must deposit in advance to defray the
expenses.
The ‘Compromis’ likewise defines, if there is occasion, the manner of appointing Arbi-
trators, any special powers which may eventually belong to the Tribunal, where it shall
meet, the language it shall use, and the languages the employment of which shall be
authorized before it, and, generally speaking, all the conditions on which the parties
are agreed . . .
Article 63
As a general rule, arbitration procedure comprises two distinct phases: pleadings and
oral discussions.
The pleadings consist in the communication by the respective agents to the mem-
bers of the Tribunal and the opposite party of cases, counter-cases, and, if neces-
sary, of replies; the parties annex thereto all papers and documents called for in the
case . . .
The discussions consist in the oral development before the Tribunal of the arguments
of the parties . . .
Article 81
The Award, duly pronounced and notified to the agents of the parties, settles the dispute
definitively and without appeal.
Notes
1. Because of its flexibility, arbitration has been a popular choice for the resolution of inter-
national disputes. Dispute settlement under multilateral agreements in key areas such as
international trade and the law of the sea are based around arbitration. See, for exam-
ple, Part XV (‘Settlement of Disputes’) and Annex VII (‘Arbitration’) of the United Nations
Convention on the Law of the Sea (LOSC),32 and Annex 2 (‘Understanding on Rules and
Procedures Governing the Settlement of Disputes’) of the Agreement Establishing the
World Trade Organization.33
2. Arbitral tribunals and commissions have made substantial contributions to the develop-
ment of international law in many areas. See, for example, the Trail Smelter arbitration34
(law of State responsibility); Island of Palmas Case35 (acquisition of territory); and deci-
sions of the US-Iran Claims Tribunal (expropriation of foreign property).
3. Arbitration is a central feature of the compulsory dispute resolution system under the
LOSC (under Part XV and Annex VII). In his separate ITLOS opinion in Southern Bluefin
Tuna,36 Judge ad hoc Shearer stated:
The effect of article 287, paragraphs 3 and 5, of the United Nations Convention on
the Law of the Sea is to make arbitration under Annex VII the ‘default’ procedure; that
is, if the parties have not made any declaration at all under article 287, paragraph 1,
choosing one or more of the four means for the settlement of disputes set out in that
paragraph, or if the parties have made choices but not one that is co-incidental, then
the parties are obliged to resort to an arbitral tribunal constituted in accordance with
Annex VII.
However, the Southern Bluefin Tuna decision itself demonstrated the uncertainty created
by the overlap of multiple dispute resolution agreements. In that case, the arbitral tribunal
established under the LOSC rejected Japan’s argument that the dispute (over the total
allowable catch limits for Southern Bluefin Tuna) was governed solely by the 1993 Con-
vention for the Conservation of Southern Bluefin Tuna37 (CCSBT). However, it determined
that it was without jurisdiction to hear the dispute because the (somewhat circular) dis-
pute resolution provisions of the CCSBT constituted an agreement by the parties to settle
the dispute ‘by a peaceful means of their own choice’38 and demonstrated an intention
32 1982 United Nations Convention on the Law of the Sea [1994] ATS 31; see further Chapter 10 at 10.12.
33 1994 Agreement Establishing the World Trade Organization [1995] ATS 8; see further Chapter 12 at 12.4.
34 Trail Smelter Case (United States v Canada) (1949) 3 RIAA 1905.
35 Island of Palmas Case (Netherlands v United States) (1928) 2 RIAA 829.
36 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) (1999) 38 ILM
1624 (ITLOS).
37 [1994] ATS 16.
38 As per art 281(1) of the LOSC.
to ‘exclude any further procedure’.39 The tribunal continued: ‘It thus appears to the Tri-
bunal that UNCLOS falls significantly short of establishing a truly comprehensive regime
of compulsory jurisdiction entailing binding decisions.’40
4. Arbitration can be used to settle disputes between States and non-State actors. For exam-
ple, the International Centre for the Settlement of Investment Disputes (ICSID) was estab-
lished under the 1965 Convention on the Settlement of Investment Disputes between
States and Nationals of Other States.41 With over 140 members, ICSID encourages inter-
national investment and reduces sovereign risk by providing standard conciliation and
arbitration procedures for the resolution of disputes between States and investors.
13.3 Judicial settlement of disputes
13.3.1 Introduction
The ICJ is an official organ of the UN, residing alongside the Permanent Court of
Arbitration in the Peace Palace at The Hague. Its predecessor, the PCIJ, was established
by the Council of the League of Nations and commenced operating in 1922. The PCIJ
had heard 29 contentious cases and given an advisory opinion in another 27 matters
by the time war brought its activities to a halt. Following World War II it was thought
appropriate to break the links with the League of Nations and to establish a new court,
albeit with rules modelled closely on the statute of the PCIJ. The ICJ held its first public
sitting in April 1946, and heard its first case – the Corfu Channel Case between Albania
and the United Kingdom42 – in May 1947.

Article 92
The International Court of Justice shall be the principal judicial organ of the United
Nations. It shall function in accordance with the annexed Statute, which is based upon
the Statute of the Permanent Court of International Justice and forms an integral part
of the present Charter.
13.3.2 Operation and membership of the ICJ

The rules governing the operation of the ICJ are found in Chapter XIV of the UN Charter
and in the Statute of the International Court of Justice (ICJ Statute).43 The ICJ Statute
is annexed to the UN Charter and forms an integral part of it. The ICJ Statute permits
UN members to have recourse to the ICJ, and also makes provision for non-members
to appear as parties before the Court.44
39 Southern Bluefin Tuna Case (Australia and New Zealand v Japan (Award on Jurisdiction and Admissibility) (2000)
39 ILM 1359 (LOSC Arbitration Tribunal), at 1389–90.
40 At 1391.
41 [1991] ATS 23.
42 Corfu Channel Case (Merits) (United Kingdom v Albania) [1949] ICJ Rep 4.
43 [1945] ATS 1.
44 For example, Nauru in the case of Certain Phosphate Lands in Nauru (Nauru v Australia) (Jurisdiction) [1992] ICJ
Rep 240; further discussed at 13.3.7.

Article 93
1. All Members of the United Nations are ipso facto parties to the Statute of the
International Court of Justice.
2. A state which is not of the United Nations may become a party to the Statute of
the International Court of Justice on conditions to be determined in each case by the
General Assembly upon the recommendation of the Security Council.
Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give to the judgment.
1945 Statute of the International Court of Justice [1945] ATS 1

Article 2
The Court shall be composed of a body of independent judges, elected regardless

of their nationality from among persons of high moral character, who possess the
qualifications required in their respective countries for appointment to the highest
judicial offices, or are juris-consults of recognized competence in international law.
Article 3
1. The Court shall consist of fifteen members, no two of whom may be nationals of
the same state.
2. A person who for the purposes of membership in the Court could be regarded as a
national of more than one state shall be deemed to be a national of the one in which
he ordinarily exercises civil and political rights.
Article 4
1. The members of the Court shall be elected by the General Assembly and by the Secu-
rity Council from a list of persons nominated by the national groups in the Permanent
Court of Arbitration, in accordance with the following provisions.
2. In the case of Members of the United Nations not represented in the Permanent
Court of Arbitration, candidates shall be nominated by national groups appointed for
this purpose by their governments under the same conditions as those prescribed for
members of the Permanent Court of Arbitration by Article 44 of the Convention of The
Hague of 1907 for the pacific settlement of international disputes.
3. The conditions under which a state which is a party to the present Statute but is not
a Member of the United Nations may participate in electing the members of the Court
shall, in the absence of a special agreement, be laid down by the General Assembly
upon recommendation of the Security Council . . .
Article 13
1. The members of the Court shall be elected for nine years and may be reselected . . .
Article 26
1. The Court may from time to time form one or more chambers, composed of three
or more judges as the Court may determine, for dealing with particular categories of
cases; for example, labor cases and cases relating to transit and communications.
2. The Court may at any time form a chamber for dealing with a particular case. The
number of judges to constitute such a chamber shall be determined by the Court with
the approval of the parties.
3. Cases shall be heard and determined by the chambers provided for in this Article if
the parties so request . . .
Article 31
1. Judges of the nationality of each of the parties shall retain their right to sit in the
case before the Court.
2. If the Court includes upon the Bench a judge of the nationality of one of the parties,
any other party may choose a person to sit as judge. Such person shall be chosen
preferably from among those persons who have been nominated as candidates as
provided in Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the nationality of the parties, each
of these parties may proceed to choose a judge as provided in paragraph 2 of this
Article.
Notes
1. The ICJ is comprised of 15 judges, each appointed for a term of nine years. Judges are
elected by an absolute majority in both the UN General Assembly and the UN Security
Council. Elections are held on a rotating basis, with a third of the positions up for election
every three years. Judges may serve more than one term. After each new group of judges
takes office, the Court elects a President and Vice-President to hold office for three years.
2. The Court’s international character is emphasised by the election process: ‘At every elec-
tion, the electors shall bear in mind not only that the persons to be elected should
individually possess the qualifications required, but also that in the body as a whole the
representation of the main forms of civilization and of the principal legal systems of the
world should be assured.’45 In practice this is achieved by maintaining the same geograph-
ical distribution as for membership of the UN Security Council: 3 members from Africa, 2
from Latin America and the Caribbean, 3 from Asia, 5 from Western Europe and ‘other’
States, and 2 from Eastern Europe. Australian judge Sir Percy Spender was appointed
to the Court from 1958 to 1967, including the period from 1964 to 1967 as President.
45 ICJ Statute, art 9.
Other Australians to serve on the Court are Sir Garfield Barwick and Sir Ninian Stephen,
who appeared as judges ad hoc in the Nuclear Tests Cases46 and East Timor Case47
respectively.
3. Once appointed to the Court, individual judges are not representatives of their nominating
government. Nevertheless, art 31 of the ICJ Statute allows a party to choose a person to
sit as an ad hoc judge in contentious cases where that party does not have a judge of its
nationality already sitting on the bench. The ad hoc judge need not have the same national-
ity as the State party, and will take part in the case on an equal footing with the other judges.
4. Although the Court normally sits as a full bench, it has the ability to discharge some
of its duties through the formation of a smaller bench or ‘chamber’. It is required to
maintain a Chamber of Summary Procedure under art 29 of the Statute. It can also form
a chamber under art 26(1) of the Statute, with a minimum of three judges, to deal with
particular categories of cases. During 1993–2006, the Court maintained a Chamber for
Environmental Matters, but as no cases were brought before the Chamber it was allowed
to lapse. Finally, chambers can be formed on an ad hoc basis through the consent of the
parties: art 26(2). This procedure has been used in a handful of cases, most recently in
2002 in relation to the Application for Revision of the Judgment of 11 September 1992
in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v
Honduras; Nicaragua Intervening)48 and the Frontier Dispute (Benin v Niger).49
5. The ICJ Statute makes provision for non-members of the UN to nevertheless be members
of the Statute, and for non-parties to the Statute to have access to the Court. Currently there
are no States that fall into either category as all 192 States are members of the UN and auto-
matically parties to the Statute. However, in 1992 Nauru, before it became a UN member
State, took advantage of these mechanisms to commence proceedings against Australia.50
13.3.3 Jurisdiction
Chapter II of the ICJ Statute deals with ‘the Competence of the Court’. There are two
types of cases that the Court can entertain: contentious cases, involving a legal dispute
between two or more parties, and advisory proceedings. The latter result from the
ICJ’s power under art 96 of the UN Charter to provide an advisory opinion on ‘any legal
question’ to the General Assembly, Security Council or other authorised UN organ or
agency. As at the end of 2009 there have been 144 cases entered on the Court’s General
List, of which 25 have been advisory proceedings.

Article 34
1. Only states may be parties in cases before the Court . . .
Article 35
1. The Court shall be open to the states parties to the present Statute.
46 Nuclear Tests Cases (Australia v France) (Merits) [1974] ICJ Reports 253; Nuclear Tests Cases (New Zealand v
France) (Merits) [1974] ICJ Reports 457.
47 Case Concerning East Timor (Portugal v Australia) (Merits) [1995] ICJ Reports 90.
48 Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime
Frontier Dispute (El Salvador v Honduras; Nicaragua Intervening) (Judgment) [2003] ICJ Reports 392.
49 Frontier Dispute (Benin v Niger) (Judgment) [2005] ICJ Reports 90.
50 Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Reports 240.
2. The conditions under which the Court shall be open to other states shall, subject
to the special provisions contained in treaties in force, be laid down by the Security
Council, but in no case shall such conditions place the parties in a position of inequality
before the Court . . .
Article 36
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
2. The states parties to the present Statute may at any time declare that they recog-
nize as compulsory ipso facto and without special agreement, in relation to any other
state accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international
obligation;
(d) the nature or extent of the reparation to be made for the breach of an international
obligation.
3. The declarations referred to above may be made unconditionally or on condition of

reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United

Nations, who shall transmit copies thereof to the parties to the Statute and to the
Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of Interna-
tional Justice and which are still in force shall be deemed, as between the parties to the
present Statute, to be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and in accordance with their
terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall
be settled by the decision of the Court.
Notes
1. The jurisdiction of the ICJ in contentious cases is based upon the consent of the State
parties to the dispute. That consent can be expressed in various ways: by entering into
a special agreement to submit a particular dispute to the Court; through the operation
of a jurisdictional clause in an agreement to which the States are parties; and through
the operation of reciprocal declarations made by each State accepting the compulsory
jurisdiction of the Court.
2. The Court’s jurisdiction is in relation to legal disputes: as a precondition to the Court’s
jurisdiction, there must be an existing dispute. Lack of a continuing dispute was the
basis for the ICJ’s refusal to adjudicate in the 1973–74 Nuclear Tests Cases instituted by
New Zealand and Australia against France. France had been conducting atmospheric tests
of nuclear weapons at Mururoa Atoll in the Pacific Ocean. Australia and New Zealand
commenced proceedings in the ICJ to halt the testing.
Nuclear Tests Case (Australia v France) (Merits) [1974] ICJ Reports 253
[23] [T]he Court possesses an inherent jurisdiction enabling it to take such action as
may be required, on the one hand to ensure that the exercise of its jurisdiction over the
merits, if and when established, shall not be frustrated, and on the other, to provide for
the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent
limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its
judicial character’ (Northern Camaroons, Judgment, ICJ Reports 1963, at p 29) . . .
[24] With these considerations in mind, the Court has first to examine a question which
it finds to be essentially preliminary, namely the existence of a dispute, for, whether or
not the Court has jurisdiction in the present case, the resolution of that question could
exert a decisive influence on the continuation of the proceedings . . .
[55] The Court, as a court of law, is called upon to resolve existing disputes between
States. Thus the existence of a dispute is the primary condition for the Court to exercise
its judicial function; it is not sufficient for one party to assert that there is a dispute, since
‘whether there exists an international dispute is a matter for objective determination’
by the Court (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania
(First Phase), Advisory Opinion, ICJ Reports 1950, p 74). The dispute brought before
it must therefore continue to exist at the time when the Court makes its decision. It
must not fail to take cognizance of a situation in which the dispute has disappeared
because the object of the claim has been achieved by other means. If the declarations
of France concerning the effective cessation of the nuclear tests have the significance
described by the Court, that is to say if they have caused the dispute to disappear, all
the necessary consequences must be drawn from this finding.
Notes
1. The Court considered the nature of the Australian claim and determined that Australia’s
central objective was the cessation by France of atmospheric nuclear testing in the South
Pacific. The Court further considered unilateral statements by the French Government
to the effect that it would no longer undertake such tests. The Court concluded that
‘The object of the claim having clearly disappeared, there is nothing on which to give
judgment.’51 The New Zealand claim, filed separately, came to a similar conclusion.
2. In an unusual move, reflecting the basis of the decisions, the Court in each case gave
the applicants a ‘safety net’ by noting that ‘if the basis of this Judgment [ie the French
undertakings] were to be affected, the Applicant could request an examination of the
situation in accordance with the provisions of the Statute [of the ICJ]’.52 That provision,
however, was of little assistance in 1995 when New Zealand sought to reopen the litigation
to deal with French underground nuclear testing in the South Pacific. The ICJ held that
51 Nuclear Tests Case (Australia v France) (Merits) [1974] ICJ Reports 253 [59].
52 Nuclear Tests (Australia v France) (Merits) [1974] ICJ Reports 253 [60]; Nuclear Tests (New Zealand v France)
(Merits) [1974] ICJ Reports 457 [63].
the earlier decision related only to atmospheric testing, and as France had not consented
to the jurisdiction of the Court in the current case, the ICJ found that it was without
jurisdiction.53
13.3.4 Special agreement

The first category of cases in which the ICJ has jurisdiction involve a bilateral agreement
to submit a particular dispute to the Court, as contemplated by art 36(1) of the ICJ
Statute. This ‘special agreement’ will indicate the subject matter of the dispute and the
parties to the dispute. It also gives the parties an opportunity to define the scope of the
questions that they wish the Court to adjudicate upon. The Statute relevantly provides
with respect to special agreements in art 40:
Article 40
1. Cases are brought before the Court, as the case may be, either by the notification of the
special agreement or by a written application addressed to the Registrar. In either case the
subject of the dispute and the parties shall be indicated.
2. The Registrar shall forthwith communicate the application to all concerned.
3. He shall also notify the Members of the United Nations through the Secretary-General, and
also any other states entitled to appear before the Court.
Below are some examples of special agreements which States have entered into to
facilitate submission of their dispute for determination by the ICJ. These agreements
often take the form of bilateral treaties between the States.
Special Agreement for the Submission to the International Court of

Justice of a Difference between the Kingdom of Denmark and the
Federal Republic of Germany Concerning the Delimitation, as between
the Kingdom of Denmark and the Federal Republic of Germany, of the
Continental Shelf in the North Sea54
By virtue of the fact that the Kingdom of Denmark is a party to the Statute of the
International Court of Justice, and of the Declaration of acceptance of the jurisdiction
of the International Court of Justice made by the Federal Republic of Germany on
29 April 1961 in conformity with Article 3 of the Convention of 29 April 1957 and with
the Resolution adopted by the Security Council of the United Nations on 15 October
1946 concerning the ‘Condition under which the International Court of Justice shall be
open to States not Parties to the Statute of the International Court of Justice’,
Have agreed as follows:
Article I
(1) The International Court of Justice is requested to decide the following question:
53 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December
1974 in the Nuclear Tests (New Zealand v France) Case [1995] ICJ Rep 288.
54 As relied upon to institute proceedings in the North Sea Continental Shelf Cases (Federal Republic of Germany v
Denmark and the Netherlands) (Judgment) [1969] ICJ Reports 3.
What principles and rules of international law are applicable to the delimitation as between
the Parties of the areas of the continental shelf in the North Sea which appertain to each
of them beyond the partial boundary determined by the above-mentioned Convention of 9
June 1965?
(1) The Governments of the Kingdom of Denmark and of the Federal Republic of
Germany shall delimit the continental shelf in the North Sea as between their countries
by agreement in pursuance of the decision requested from the International Court of
Justice . . .
Case Concerning Sovereignty over Pedra Branca/Pulau Batu

Puteh, Middle Rocks and South Ledge (Malaysia v Singapore)
[2008] ICJ Reports
1. SPECIAL AGREEMENT
The Government of Malaysia and the Government of the Republic of Singapore (here-
inafter referred to as ‘the Parties’);
Considering that a dispute has arisen between them regarding sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge;
Desiring that this dispute should be settled by the International Court of Justice (here-
inafter referred to as ‘the Court’);
Have agreed as follows:
Article 1
Submission of Dispute
The Parties agree to submit the dispute to the Court under the terms of Article 36(1)
of its Statute.
Article 2
Subject of the Litigation
The Court is requested to determine whether sovereignty over:
(a) Pedra Branca/Pulau Batu Puteh;
(b) Middle Rocks;
(c) South Ledge,
belongs to Malaysia or the Republic of Singapore.
Note
1. The advantage of submitting the dispute via special agreement is that the parties can
formulate precisely the question they wish the Court to answer. For example, do the
parties wish the Court to finally determine a disputed boundary, or do they instead require
the Court to authoritatively state the relevant principles of international law that govern
the delimitation, leaving final resolution of the actual boundary to the parties themselves?
Contrast the questions in the two examples of special agreements above (‘What principles
and rules of international law are applicable to the delimitation . . . ?’ and ‘Determine
whether sovereignty . . . belongs to [X] or [Y]’). Why might the parties prefer to phrase the
question one way rather than the other?
13.3.5 Provisions in treaties and conventions

Article 36(1) of the ICJ Statute also confers jurisdiction on the Court in ‘all matters
specially provided for in . . . treaties and conventions in force.’ The usual method in
this case is for one party to submit a written application to the Registrar (see art 40,
above), seeking to institute proceedings against another.
1992 United Nations Framework Convention on Climate Change

[1994] ATS 2
Article 14: Settlement of Disputes
1. In the event of a dispute between any two or more Parties concerning the interpre-
tation or application of the Convention, the Parties concerned shall seek a settlement
of the dispute through negotiation or any other peaceful means of their own choice.
2. When ratifying, accepting, approving or acceding to the Convention, or at any time

thereafter, a Party . . . may declare in a written instrument submitted to the Deposi-
tary that, in respect of any dispute concerning the interpretation or application of the
Convention, it recognizes as compulsory ipso facto and without special agreement, in
relation to any Party accepting the same obligation:
(a) Submission of the dispute to the International Court of Justice, and/or
(b) Arbitration in accordance with procedures to be adopted by the Conference of the Parties
as soon as practicable, in an annex on arbitration . . .
1992 United Nations Convention on the Law of the Sea [1994] ATS 31
Article 287: Choice of procedure
1. When signing, ratifying or acceding to this Convention or at any time thereafter,

a State shall be free to choose, by means of a written declaration, one or more of
the following means for the settlement of disputes concerning the interpretation or
application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the
categories of disputes specified therein.
2. A declaration made under paragraph 1 shall not affect or be affected by the obligation
of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea to the extent and in the manner provided
for in Part XI, section 5.
3. A State Party, which is a party to a dispute not covered by a declaration in force,

shall be deemed to have accepted arbitration in accordance with Annex VII.
4. If the parties to a dispute have accepted the same procedure for the settlement of
the dispute, it may be submitted only to that procedure, unless the parties otherwise
agree.
5. If the parties to a dispute have not accepted the same procedure for the settlement
of the dispute, it may be submitted only to arbitration in accordance with Annex VII,
unless the parties otherwise agree.
Notes
1. Neither of these Conventions provide that submission of a dispute to the ICJ is the only
method of dispute resolution; in each case, judicial settlement is included as part of a
‘suite’ of available dispute resolution mechanisms.
2. The ICJ’s Rules of Court55 require that an applicant indicate the basis of the Court’s
jurisdiction in relation to the dispute:
Article 38
1. When proceedings before the Court are instituted by means of an application

addressed as specified in Article 40, paragraph 1, of the Statute, the application shall
indicate the party making it, the State against which the claim is brought, and the
subject of the dispute.
2. The application shall specify as far as possible the legal grounds upon which the
jurisdiction of the Court is said to be based; it shall also specify the precise nature of
the claim, together with a succinct statement of the facts and grounds on which the
claim is based.
13.3.6 Compulsory jurisdiction: The ‘optional clause’

The ICJ Statute allows States to make a general declaration accepting the compulsory
jurisdiction of the Court in disputes where the other State party accepts the same
obligation. This precludes the need for a special agreement and where applicable,
allows a State to unilaterally file an application for the Court to resolve a particular
dispute.
As at the end of 2008, 66 States had deposited declarations pursuant to art 36(2) of
the ICJ Statute. Around a quarter of these are unconditional (not including limitations
as to the commencement date or duration of the declaration), but the majority of
declarations are limited in some way by reference to the types of disputes or the
identity of the opposing party.
55 International Court of Justice, Rules of Court 1978 (as amended on 5 December 2000).
One relatively common exception is the ‘domestic jurisdiction exception’, discussed

in more detail below. Another common exception is for disputes where the parties
have already agreed to some other form of peaceful dispute settlement procedure.
In practice this exception can be quite significant, as international agreements in
important international law fields, such as international trade and law of the sea, have
established their own dispute resolution machinery.
A third type of exception which is sometimes encountered could be thought of
as a ‘good faith’ exception. In this case, the declaring State does not accept the ICJ’s
jurisdiction in cases where the opposing party has only accepted the Court’s compulsory
jurisdiction for the limited purpose of resolving the current dispute, or the other party
has only very recently come to accept the Court’s compulsory jurisdiction. This type
of exception is illustrated by the most recent declaration made by Australia, extracted
below.
2002 Declaration under the Statute of the International Court of

Justice Concerning Australia’s Acceptance of the Jurisdiction of the
International Court of Justice [2002] ATS 5
WHEREAS on the first day of November one thousand nine hundred and forty-five
Australia ratified the Charter of the United Nations, of which the Statute of the Interna-
tional Court of Justice is an integral part; and
WHEREAS the Government of Australia deposited for and on behalf of Australia on

the first day of November one thousand nine hundred and forty-five its instrument of
ratification to the Statute of the International Court of Justice done at San Francisco on
the twenty-sixth day of June, one thousand nine hundred and forty-five; and
WHEREAS Australia made a declaration under paragraph 2 of Article 36 of the said

Statute on the thirteenth day of March one thousand nine hundred and seventy-five
effective until such time as notice may be given to withdraw that declaration;
THE GOVERNMENT OF AUSTRALIA, having considered the said declaration, hereby gives
notice effective immediately of the WITHDRAWAL of that declaration and REPLACES the
same with the following declaration:
The Government of Australia declares that it recognises as compulsory ipso facto and
without special agreement, in relation to any other State accepting the same obligation,
the jurisdiction of the International Court of Justice in conformity with paragraph 2 of
Article 36 of the Statute of the Court, until such time as notice may be given to the
Secretary-General of the United Nations withdrawing this declaration. This declaration
is effective immediately.
This declaration does not apply to:
(a) any dispute in regard to which the parties thereto have agreed or shall agree to have
recourse to some other method of peaceful settlement;
(b) any dispute concerning or relating to the delimitation of maritime zones, including the ter-
ritorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning,
or relating to the exploitation of any disputed area of or adjacent to any such maritime zone
pending its delimitation;
(c) any dispute in respect of which any other party to the dispute has accepted the compulsory
jurisdiction of the Court only in relation to or for the purpose of the dispute; or where the
acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute
was deposited less than 12 months prior to the filing of the application bringing the dispute
before the Court.
Notes
1. This is the latest in a series of declarations made by Australia and recognising the jurisdic-
tion of the ICJ and, before that, the PCIJ. The previous declaration56 accepted the Court’s
jurisdiction in very broad terms, excluding only those disputes where parties had agreed
to another form of dispute resolution. However, previous declarations had, at various
times, excluded disputes relating to the continental shelf of Australia and its territories,
disputes arising during periods of hostilities, and disputes concerning ‘questions which by
international law fall exclusively within the jurisdiction of Australia’.
2. Where two parties have made declarations under the optional clause and those decla-
rations are limited, each party can take advantage of the limitations imposed under the
other party’s declaration. Under this principle of reciprocity, the jurisdiction of the Court
is, effectively, the lowest common denominator of the two declarations. This conclusion
is demonstrated by the Norwegian Loans Case.57 France commenced an action in the ICJ
concerning the rights of French holders of Norwegian bonds. Both countries had made
declarations under art 36(2) accepting the compulsory jurisdiction of the Court. France’s
Declaration had a reservation concerning ‘matters which are essentially within the national
jurisdiction as understood by the Government of the French Republic’; Norway’s Decla-
ration did not have such a reservation. Norway argued that it could rely on the fact that
France had a ‘domestic jurisdiction’ reservation to preclude the ICJ from examining a
matter which it contended was within Norway’s domestic jurisdiction. The ICJ agreed:
In considering this ground of the Objection the Court notes . . . that in the present case
the jurisdiction of the Court depends upon the Declarations made by the parties in
accordance with Article 36, paragraph 2, of the Statute on condition of reciprocity;
and that, since two unilateral declarations are involved, such jurisdiction is conferred
upon the Court only to the extent to which the Declarations coincide in conferring it. A
comparison between the two declarations shows that the French Declaration accepts
the Court’s jurisdiction within narrower limits than the Norwegian Declaration; conse-
quently the common will of the parties, which is the basis of the Court’s jurisdiction,
exists within these narrower limits indicated by the French reservation . . . In accordance
with the condition of reciprocity . . . Norway, equally with France, is entitled to except
from the compulsory jurisdiction of the Court disputes understood by Norway to be
essentially within its national jurisdiction . . . 58
3. There are concerns raised by the particular form of the French reservation. By making
jurisdiction dependent upon France’s opinion that a matter is, or is not, ‘domestic’ in
nature, France is effectively allowed to decide whether or not the ICJ has jurisdiction in
any dispute. This could hardly be called a ‘compulsory’ acceptance of jurisdiction. The
majority of the Court in the Norwegian Loans Case found it unnecessary to decide on the
56 [1975] ATS 50 (deposited on 17 March 1975).

57 Norwegian Loans Case (France v Norway) [1957] ICJ Reports 9.
58 Norwegian Loans Case (France v Norway) [1957] ICJ Reports 9 [23–24].
legitimacy of the French reservation;59 however, in his separate opinion, Judge Lauterpacht
made clear his view that the reservation was invalid:
This is so for the double reason that: (a) it is contrary to the Statute of the Court; (b) the
existence of the obligation being dependent upon the determination by the govern-
ment accepting the Optional Clause, the Acceptance does not constitute a legal obliga-
tion . . . In the reservation in question the Government of France says in effect . . . [that]
the Court has no power to decide upon that particular allegation [that the Court has no
jurisdiction]; it must accept as binding the French understanding of the legal position
on the subject. If that type of reservation is valid, then the Court is not in the position
to exercise the power conferred upon it – in fact, the duty imposed upon it – under
paragraph 6 of Article 36 of its Statute. That paragraph provides that ‘in the event of
a dispute as to whether the Court has jurisdiction, the matter shall be settled by a
decision of the Court.’ . . . The French reservation is thus not only contrary to one of the
most fundamental principles of international – and national – jurisprudence according
to which it is within the inherent power of a tribunal to interpret the text establishing its
jurisdiction. It is also contrary to a clear specific provision of the Statute of the Court as
well as to the general Articles 1 and 92 of the Statute and of the Charter, respectively,
which require the Court to function in accordance with its Statute.60
4. An alternative wording, which retains the domestic jurisdiction exception but leaves it to
the Court (or to ‘international law’) to determine if the exception applies, does not raise
the same issues as the French reservation above. Why is that the case? By way of example,
see the Canadian Declaration extracted below.61
CANADA
10 May 1994
On behalf of the Government of Canada . . .
I declare that the Government of Canada accepts as compulsory ipso facto and without
special convention, on condition of reciprocity, the jurisdiction of the International Court
of Justice, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until
such time as notice may be given to terminate the acceptance, over all disputes arising
after the present declaration with regard to situations or facts subsequent to this
declaration, other than: . . .
c. disputes with regard to questions which by international law fall exclusively within
the jurisdiction of Canada . . .
5. In the Nicaragua Case, the ICJ stated that declarations under art 36(2), although unilateral,
take effect as a series of bilateral agreements with other countries:
Declarations of acceptance of the compulsory jurisdiction of the Court are facultative,

unilateral engagements that States are absolutely free to make or not to make. In
making the declaration a State is equally free either to do so unconditionally and
without limit of time for its duration, or to qualify it with conditions or reservations. In
particular, it may limit its effect to disputes arising after a certain date; or it may specify
59 Norwegian Loans Case (France v Norway) [1957] ICJ Reports 9 [26–27].

60 Norwegian Loans Case (France v Norway) [1957] ICJ Reports 9 [44].
61 See ‘Declarations Recognising the Jurisdiction of the Court as Compulsory’, available at <www.icj-cij.org/
jurisdiction/index.php?p1=5&p2=1&p3=3>.
how long the declaration itself shall remain in force, or what notice (if any) will be
required to terminate it. However, the unilateral nature of declarations does not signify
that the State making the declaration is free to amend the scope and the contents of
its solemn commitments as it pleases . . . In fact, the declarations, even though they are
unilateral acts, establish a series of bilateral engagements with other States accepting
the same obligation of compulsory jurisdiction, in which the conditions, reservations
and time-limit clauses are taken into consideration. In the establishment of this network
of engagements, which constitutes the Optional Clause system, the principle of good
faith plays an important role . . . 62
In the Nicaragua Case, the Court drew a distinction between ‘the scope and substance of
commitments entered into, including reservations’ to a State’s acceptance of the Court’s
compulsory jurisdiction, and ‘the formal conditions of their creation, duration or extinction.’
The United States argued that Nicaragua’s Declaration, being of undefined duration, was
able to be terminated without notice. This was not ‘the same obligation’ as that of the
United States, whose Declaration stated that it was terminable upon six months’ notice.
Therefore, the United States argued that Nicaragua could not rely on the United States’
notice provision. The Court rejected this argument, stating that ‘reciprocity cannot be
invoked in order to excuse departure from the terms of a State’s own declaration, whatever
its scope, limitations or conditions.’63
6. The PCIJ had a similar procedure allowing States to declare their acceptance of the Court’s
compulsory jurisdiction. Declarations made with respect to the PCIJ remain current for the
ICJ pursuant to arts 36(5) and 37 of the ICJ Statute.
7. The question of whether or not the Court has jurisdiction may be dealt with as a preliminary
matter or, if the issue of jurisdiction is inextricably linked with the merits, the two may be
decided together. The Nicaragua Case (above) is an example of the former approach. The
East Timor Case (below) is an example of the latter.
13.3.7 Third parties

In some cases, litigation before the ICJ has been defended on the basis that the dispute
cannot properly be dealt with in the absence of another State. This issue arises because
of the manner in which the ICJ obtains jurisdiction over a dispute – through the
consent of the parties. If the State that is most closely connected with a dispute has
not consented to the Court’s jurisdiction, then litigation may be commenced against
another State with a less direct connection in an effort to have the dispute brought
before an international tribunal.
The cases demonstrate that the ICJ’s approach to such cases will depend upon how
closely the litigation is tied to the legal rights and obligations of the absent third party.
In the Case Concerning East Timor, one of the grounds on which Australia contested
the case was that it would require the ICJ to rule on the rights and obligations of a third
party, in this instance Indonesia. The majority of the Court agreed with this objection
and decided that it lacked jurisdiction to deal with the dispute.
62 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction and Admis-
sibility) [1984] ICJ Reports 392 [59–60].
63 At [419].
Case Concerning East Timor (Portugal v Australia) (Merits)

[1995] ICJ Reports 90
[28] The Court has carefully considered the argument advanced by Portugal which seeks
to separate Australia’s behaviour from that of Indonesia. However, in the view of the
Court, Australia’s behaviour cannot be assessed without first entering into the question
why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so; the very subject matter of the Court’s decision
would necessarily be a determination whether, having regard to the circumstances
in which Indonesia entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor relating to the resources
of its continental shelf. The Court could not make such a determination in the absence
of the consent of Indonesia . . .
[34] The Court emphasises that it is not necessarily prevented from adjudicating when
the judgment it is asked to give might affect the legal interests of a State which is not
a party to the case. [The Court then referred to the case of Certain Phosphate Lands
in Nauru (Nauru v Australia).] . . . However, in this case, the effects of the judgment
requested by Portugal would amount to a determination that Indonesia’s entry into
and continued presence in East Timor are unlawful and that, as a consequence, it does
not have the treaty-making power in matters relating to the continental shelf resources
of East Timor. Indonesia’s rights and obligations would thus constitute the very subject
matter of such a judgment made in the absence of that State’s consent. Such a judg-
ment would run directly counter to the ‘well-established principle of international law
embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction
over a State with its consent’ (Monetary Gold Removed from Rome in 1943, ICJ Reports
1954, p 32).
[The Court therefore concluded that it was unable to exercise jurisdiction because it
could not determine any of Portugal’s claims without first ruling upon the legality of
Indonesia’s entry into, and continued presence in, East Timor. The Court could not
make such a ruling without Indonesia’s consent.]
Notes
1. This decision is an illustration of the ‘indispensible third party’ rule that was laid down
in the Case of the Monetary Gold Removed from Rome in 1943.64 That case concerned
a dispute over which country was entitled to a certain quantity of gold that had been
removed from Rome during World War II. An arbitrator had determined that in 1943 the
gold belonged to Albania; Italy contended that the gold subsequently accrued to itself
as redress for an internationally wrongful act committed by Albania; while the United
Kingdom sought to have the gold delivered to itself in partial satisfaction of the judgment
in the Corfu Channel Case. Italy and the United Kingdom were both before the Court,
however Albania was not. The Court stated:
In the present case, Albania’s legal interests would not only be affected by a decision,
but would form the very subject matter of the decision . . . Where, as in the present
64 Case of Monetary Gold Removed from Rome in 1943 (Preliminary Question) [1954] ICJ Reports 19.
case, the vital issue to be settled concerns the international responsibility of a third
State, the Court cannot, without the consent of that third State, give a decision on that
issue binding upon any State, either the third State, or any of the parties before it.65
2. The Monetary Gold Case leaves open the possibility of the ICJ accepting jurisdiction where
the legal interests of a third State are nevertheless ‘affected by’ litigation to which it is not
a party. An example of this is found in the case of Certain Phosphate Lands in Nauru.66
Australia, New Zealand and the United Kingdom had been joint administering authorities
of the former Trust Territory of Nauru. Nauru sought compensation from Australia for
environmental damage caused by phosphate mining during the period of administration.
New Zealand and the United Kingdom could not be made parties to the litigation because
of reservations in their acceptance of the Court’s compulsory jurisdiction. One of the
grounds upon which Australia objected to the ICJ’s jurisdiction was that the other two
administering parties were not before the Court. The ICJ observed:
In the present case, the interests of New Zealand and the United Kingdom do not
constitute the very subject matter of the judgment to be rendered on the merits
of Nauru’s Application . . . In the present case, a finding by the Court regarding the
existence or the content of the responsibility attributed to Australia by Nauru might
well have implications for the legal situation of the two other States concerned, but
no finding in respect of that legal situation will be needed as a basis for the Court’s
decision on Nauru’s claims against Australia. Accordingly, the Court cannot decline to
exercise its jurisdiction.67
13.3.8 Provisional measures

Article 41
1. The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the respective
rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given
to the parties and to the Security Council.
The power to indicate provisional measures is an important and useful tool that allows
the ICJ to act relatively quickly to prevent further harm to a State while Court proceed-
ings are underway. In determining if circumstances do require an order for provisional
measures, the Court will consider the urgency of the situation, and whether or not
there is a risk of ‘irreparable prejudice’ to the applicant State. This occurred in the Case
Concerning Certain Criminal Proceedings in France:68
[22] Whereas the power of the Court to indicate provisional measures under Article 41 of the
Statute of the Court has as its object to preserve the respective rights of the parties pending
65 Case of Monetary Gold Removed from Rome in 1943 (Preliminary Question) [1954] ICJ Reports 19 [32–33].
66 Certain Phosphate Lands in Nauru (Nauru v Australia) (Jurisdiction) [1992] ICJ Reports 240.
67 Certain Phosphate Lands in Nauru (Nauru v Australia) (Jurisdiction) [1992] ICJ Reports 240 [55].
68 Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v France) (Provisional Measure)
[2003] ICJ Reports 102.
the decision of the Court, and presupposes that irreparable prejudice should not be caused
to rights which are the subject of dispute in judicial proceedings; whereas it follows that the
Court must concern itself with the preservation by such measures of the rights which may
subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent;
and whereas such measures are justified solely if there is urgency . . . 69
The issue of irreparable damage was considered at length by the Court in Australia’s
application for provisional measures in the Nuclear Tests Case.
Nuclear Tests Case (Australia v France) (Provisional Measures) [1973]

ICJ Reports 99
[20] Whereas the power of the Court to indicate interim measures under Article 41 of
the statute has as its object to preserve the respective rights of the Parties pending the
decision of the Court, and presupposes that irreparable prejudice should not be caused
to rights which are the subject of dispute in judicial proceedings and that the Court’s
judgment should not be anticipated by reason of any initiative regarding the matters in
issue before the Court;
[21] Whereas it follows that the Court in the present case cannot exercise its power
to indicate interim measures of protection unless the rights claimed in the Application,
prima facie, appear to fall within the purview of the Court’s jurisdiction;
[22] Whereas the claims formulated by the Government of Australia in its Application
are as follows:
(i) The right of Australia and its people, in common with other States and their peoples, to be
free from atmospheric nuclear weapon tests by any country is and will be violated;
(ii) The deposit of radio-active fall-out on the territory of Australia and its dispersion in
Australia’s airspace without Australia’s consent:
(a) violates Australian sovereignty over its territory;
(b) impairs Australia’s independent right to determine what acts shall take place within its
territory and in particular whether Australia and its people shall be exposed to radiation from
artificial sources;
(iii) the interference with ships and aircraft on the high seas and in the superjacent airspace,
and the pollution of the high seas by radioactive fall-out, constitute infringements of the freedom
of the high seas;
[23] Whereas it cannot be assumed a priori that such claims fall completely outside
the purview of the Court’s jurisdiction, or that the Government of Australia may not be
able to establish a legal interest in respect of these claims entitling the Court to admit
the Application;
[24] Whereas by the terms of Article 41 of the Statute the Court may indicate interim
measures of protection only when it considers that circumstances so require in order
to preserve the rights of either party;
69 At 107.
[25] Whereas the Government of Australia alleges, inter alia, that a series of atmospheric
nuclear tests have been carried out by the French Government in the Pacific during the
period from 1966 to 1972, including the explosion of several hydrogen bombs and a
number of devices of high and medium power; that during recent months there has
been a growing body of reports, not denied by the French Government, to the effect
that the French Government is planning to carry out a further series of atmospheric
nuclear tests in the Pacific in 1973; that this series of tests may extend to 1975 and
even beyond that date; that in diplomatic correspondence and in discussions earlier
in the present year the French Government would not agree to cease nuclear testing
in the atmosphere in the Pacific and would not supply Australia with any information
as to the dates of its proposed tests or the expected size and yield of its explosions;
and that in a statement made in the French Parliament on 2 May 1973 the French
Government indicated that, regardless of the protests made by Australia and other
countries, it did not envisage any cancellation or modification of the programme of
nuclear testing as originally planned;
[26] Whereas these allegations give substance to the Australian Government’s con-
tention that there is an immediate possibility of a further atmospheric nuclear test
being carried out by France in the Pacific;
[27] Whereas the Government of Australia also alleges that the atmospheric nuclear
explosions carried out by France in the Pacific have caused widespread radio-active
fall-out on Australian territory and elsewhere in the southern hemisphere, have given
rise to measurable concentrations of radio-nuclides in foodstuffs and in man, and
have resulted in additional radiation doses to persons living in that hemisphere and in
Australia in particular; that any radio-active material deposited on Australian territory
will be potentially dangerous to Australia and its people and any injury caused thereby
would be irreparable; that the conduct of French nuclear tests in the atmosphere creates
anxiety and concern among the Australian people; that any effects of the French nuclear
tests upon the resources of the sea or the conditions of the environment can never be
undone and would be irremediable by any payment of damages; and any infringement
by France of the rights of Australia and her people to freedom of movement over the
high seas and superjacent airspace cannot be undone . . .
[30] Whereas in the light of the foregoing considerations the Court is satisfied that it
should indicate interim measures of protection in order to preserve the right claimed
by Australia in the present litigation in respect of the deposit of radio-active fall-out on
her territory; . . .
Accordingly,
THE COURT
Indicates, by 8 votes to 6, pending its final decision in the proceedings instituted on

9 May 1973 by Australia against France, the following provisional measures:
The Governments of Australia and France should each of them ensure that no action of
any kind is taken which might aggravate or extend the dispute submitted to the Court or
prejudice the rights of the other Party in respect of the carrying out of whatever decision
the Court may render in the case; and, in particular, the French Government should
avoid nuclear tests causing the deposit of radio-active fall-out on Australian territory . . .
Notes
1. France ignored the order and continued testing. See Nuclear Tests (Australia v France)
(Merits),70 where the ICJ noted:
By letters of 19 September 1973, 29 August and 11 November 1974, the Government

of Australia informed the Court that subsequent to the Court’s Order of 22 June 1973
indicating, as interim measures under Article 41 of the Statute (inter alia), that the
French Government should avoid nuclear tests causing the deposit of radio-active
fall-out in Australian territory, two further series of atmospheric tests, in the months
of July and August 1973 and June to September 1974, had been carried out at the
Centre d’expérimentations du Pacifique. The letters also stated that fall-out had been
recorded on Australian territory which, according to the Australian Government, was
clearly attributable to these tests, [259] and that ‘in the opinion of the Government
of Australia the conduct of the French Government constitutes a clear and deliberate
breach of the Order of the Court of 22 June 1973’.
2. The Court refused a request for provisional measures in Certain Criminal Proceedings
in France (Republic of the Congo v France) (Provisional Measures),71 finding that there
would be no irreparable damage. See, on the other hand, Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v
Yugoslavia (Serbia and Montenegro)) (Provisional Measures).72
3. The ICJ has indicated that where there has been a request for provisional measures, the
issue of jurisdiction need not be settled conclusively at this early stage of proceedings.
There must, however, be at least a prima facie case for jurisdiction. This position has
been repeatedly affirmed, for example, in the Case Concerning Legality of Use of Force
(Yugoslavia v United States) (Provisional Measures),73 where the Court stated:
Whereas the Court, under its Statute, does not automatically have jurisdiction over
legal disputes between States parties to that Statute or between other States to whom
access to the Court has been granted; whereas the Court has repeatedly stated ‘that
one of the fundamental principles of its Statute is that it cannot decide a dispute
between States without the consent of those States to its jurisdiction’ (East Timor
(Portugal v Australia), Judgment, ICJ Reports 1995, p 101, para 26); and whereas the
Court can therefore exercise jurisdiction only between States parties to a dispute who
not only have access to the Court but also have accepted the jurisdiction of the Court,
either in general form or for the individual dispute concerned;
Whereas on a request for provisional measures the Court need not, before deciding
whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits
of the case, yet it ought not to indicate such measures unless the provisions invoked
by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the
Court might be established . . . 74
70 [1974] ICJ Reports 253, 258–9.

71 [2003] ICJ Reports 102.
72 [1993] ICJ Reports 3, 11–24.
73 Case Concerning Legality of Use of Force (Yugoslavia v United States) (Provisional Measures) [1999] ICJ Reports
916.
74 At [20–21].
13.3.9 Enforcement
Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give to the judgment.

Article 59
The decision of the Court has no binding force except between the parties and in
respect of that particular case.
Notes
1. Because of the consensual nature of international law, a ruling of the international court
cannot be enforced in the same manner as a ruling of a domestic court. Despite this, and
despite a number of obvious exceptions, it is the general practice of States to carry out
the orders of the ICJ.
2. The obligation to comply with orders of the ICJ extends to provisional measures, not just to
final orders: LaGrand (Germany v United States).75 This decision came too late for Walter
LaGrand, who was executed the day after the ICJ issued provisional measures ordering a
stay of execution,76 the relevant United States authorities having taken the view that such
an order was not binding.77
13.4 Advisory jurisdiction of the ICJ
13.4.1 Introduction
In addition to determining contentious cases between States, the ICJ is empowered
to give advisory opinions to the UN General Assembly, Security Council and other
authorised UN bodies and agencies. This power has been exercised on a regular basis
in relation to a wide range of questions, including questions relating to the UN’s
operations (such as whether or not the UN can obtain reparations for an injured agent),
seeking legal advice relating to particular international situations (such as advice on
the legal consequences of a country ignoring a Security Council resolution), and very
broad questions of international law (eg the legality of the use of nuclear weapons).
75 LaGrand (Germany v United States) (Judgment) [2001] ICJ Reports 466, 506.
76 LaGrand (Germany v United States) (Provisional Measures) [1999] ICJ Reports 9.
77 LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Reports 466, 479.

Article 96
1. The General Assembly or the Security Council may request the International Court
of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time
be so authorized by the General Assembly, may also request advisory opinions of the
Court on legal questions arising within the scope of their activities.

Article 65
1. The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United
Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before
the Court by means of a written request containing an exact statement of the question
upon which an opinion is required, and accompanied by all documents likely to throw
light upon the question.
Note
1. Apart from the UN organs, there are currently 16 specialised agencies and related organi-
sations that are authorised to request an advisory opinion from the Court. These include
the International Labour Organization (ILO), the Food and Agriculture Organization (FAO),
the World Health Organization (WHO), the International Bank for Reconstruction and
Development (IBRD) and the International Atomic Energy Agency (IAEA).
13.4.2 Advisory jurisdiction

The Court only has jurisdiction to give advisory opinions in relation to ‘legal questions’.
In some cases it has been alleged that the Court does not have jurisdiction because the
questions put to it are not legal in nature, but rather have some other character, for
example, factual or political. To date the Court has taken a fairly expansive view of its
advisory jurisdiction and such arguments have met with little success.
Western Sahara (Advisory Opinion) [1975] ICJ Reports 12

[In the early 1970s, when Spain began the process of decolonisation in Spanish Sahara,
the neighbouring States of Morocco and Mauritania both claimed the territory as their
own, based upon historic title predating Spanish colonisation. The UN General Assembly
requested an advisory opinion from the ICJ on the following questions: first, was the
territory terra nullius (ie belonging to no one) at the time of Spanish colonisation; and
second (assuming the first question was answered in the negative), what legal ties
existed at that time between the territory and Mauritania or Morocco?]
[15] The questions submitted by the General Assembly have been framed in terms
of law and raise problems of international law: whether a territory was terra nullius
at the time of its colonization; what legal ties there were between that territory and
the Kingdom of Morocco and the Mauritanian entity. These questions are by their very
nature susceptible of a reply based on law; indeed, they are scarcely susceptible of
a reply otherwise than on the basis of law. In principle, therefore, they appear to the
Court to be questions of a legal character . . .
[16] It has been suggested that the questions posed by the General Assembly are not
legal, but are either factual or are questions of a purely historical or academic character.
[17] It is true that, in order to reply to the questions, the Court will have to determine
certain facts, before being able to assess their legal significance. However, a mixed
question of law and fact is none the less a legal question within the meaning of Article
96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute. As the
Court observed in its Opinion concerning the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970):
In the view of the Court, the contingency that there may be factual issues underlying the
question posed does not alter its character as a ‘legal question’ as envisaged in Article 96
of the Charter. The reference in this provision to legal questions cannot be interpreted as
opposing legal to factual issues. Normally, to enable a court to pronounce on legal questions,
it must also be acquainted with, take into account and, if necessary, make findings as to the
relevant factual issues. (ICJ Reports 1971, p 27.) . . .
[19] Thus, to assert that an advisory opinion deals with a legal question within the
meaning of the Statute only when it pronounces directly upon the rights and obligations
of the States or parties concerned, or upon the conditions which, if fulfilled, would
result in the coming into existence, modification or termination of such a right or
obligation, would be to take too restrictive a view of the scope of the Court’s advisory
jurisdiction. It has undoubtedly been the usual situation for an advisory opinion of the
Court to pronounce on existing rights and obligations, or on their coming into existence,
modification or termination, or on the powers of international organs. However, the
Court may also be requested to give its opinion on questions of law which do not call
for any pronouncement of that kind, though they may have their place within a wider
problem the solution of which could involve such matters. This does not signify that
the Court is any the less competent to entertain the request if it is satisfied that the
questions are in fact legal ones, and to give an opinion once it is satisfied that there is
no compelling reason for declining to do so.
Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 136
[In 2002, Israel commenced building a ‘security wall’ in the Occupied Palestinian Ter-
ritory. The wall departs from the 1949 Armistice Line and involves ‘the confiscation
and destruction of Palestinian land and resources, the disruption of the lives of thou-
sands of protected civilians and the de facto annexation of large areas of territory’
(General Assembly Resolution ES-10/14 (2003)). A UN General Assembly resolution
condemning the construction of the wall and demanding that Israel stop was ignored.
Attempts to have the UN Security Council intervene were unsuccessful, the United States
vetoing resolutions that were critical of the wall. The General Assembly then passed res-
olution ES-10/14 seeking an advisory opinion on the following question: ‘What are the
legal consequences arising from the construction of the wall being built by Israel, the
occupying Power, in the Occupied Palestinian Territory, including in and around East
Jerusalem, as described in the report of the Secretary-General, considering the rules
and principles of international law, including the Fourth Geneva Convention of 1949,
and relevant Security Council and General Assembly resolutions?’ Numerous objections
were raised over the ICJ’s ability to hear the case, including various arguments that the
opinion requested of the ICJ was not on a legal question.]
[36] The Court now turns to a further issue related to jurisdiction in the present pro-
ceedings, namely the contention that the request for an advisory opinion by the General
Assembly is not on a ‘legal question’ within the meaning of Article 96, paragraph 1, of
the Charter and Article 65, paragraph 1, of the Statute of the Court. It has been con-
tended in this regard that, for a question to constitute a ‘legal question’ for the purposes
of these two provisions, it must be reasonably specific, since otherwise it would not be
amenable to a response by the Court. With regard to the request made in the present
advisory proceedings, it has been argued that it is not possible to determine with rea-
sonable certainty the legal meaning of the question asked of the Court for two reasons.
First, it has been argued that the question regarding the ‘legal consequences’ of the
construction of the wall only allows for two possible interpretations, each of which
would lead to a course of action that is precluded for the Court. The question asked
could first be interpreted as a request for the Court to find that the construction of the
wall is illegal, and then to give its opinion on the legal consequences of that illegality. In
this case, it has been contended, the Court should decline to respond to the question
asked for a variety of reasons, some of which pertain to jurisdiction and others rather to
the issue of propriety. As regards jurisdiction, it is said that, if the General Assembly had
wished to obtain the view of the Court on the highly complex and sensitive question of
the legality of the construction of the wall, it should have expressly sought an opinion
to that effect (cf Exchange of Greek and Turkish Populations, Advisory Opinion, 1925,
PCIJ, Series B, no. 10, p 17). A second possible interpretation of the request, it is said, is
that the Court should assume that the construction of the wall is illegal, and then give
its opinion on the legal consequences of that assumed illegality. It has been contended
that the Court should also decline to respond to the question on this hypothesis, since
the request would then be based on a questionable assumption and since, in any event,
it would be impossible to rule on the legal consequences of illegality without specifying
the nature of that illegality. Secondly, it has been contended that the question asked of
the Court is not of a ‘legal’ character because of its imprecision and abstract nature. In
particular, it has been argued in this regard that the question fails to specify whether
the Court is being asked to address legal consequences for ‘the General Assembly or
some other organ of the United Nations’, ‘Member States of the United Nations’, ‘Israel’,
‘Palestine’ or ‘some combination of the above, or some different entity’.
[37] As regards the alleged lack of clarity of the terms of the General Assembly’s request
and its effect on the ‘legal nature’ of the question referred to the Court, the Court
observes that this question is directed to the legal consequences arising from a given
factual situation considering the rules and principles of international law, including the
Geneva Convention relative to the Protection of Civilian Persons in Time of War of
12 August 1949 (hereinafter the ‘Fourth Geneva Convention’) and relevant Security
Council and General Assembly resolutions. The question submitted by the General
Assembly has thus, to use the Court’s phrase in its Advisory Opinion on Western Sahara,
‘been framed in terms of law and raise[s] problems of international law’; it is by its very
nature susceptible of a reply based on law; indeed it is scarcely susceptible of a reply
otherwise than on the basis of law. In the view of the Court, it is indeed a question of a
legal character (see Western Sahara, Advisory Opinion, ICJ Reports 1975, p 18, para 15).
[38] The Court would point out that lack of clarity in the drafting of a question does
not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in
interpretation, and such necessary clarifications of interpretation have frequently been
given by the Court . . .
[40] The Court does not consider that what is contended to be the abstract nature
of the question posed to it raises an issue of jurisdiction. Even when the matter was
raised as an issue of propriety rather than one of jurisdiction, in the case concerning
the Legality of the Threat or Use of Nuclear Weapons, the Court took the position that
to contend that it should not deal with a question couched in abstract terms is ‘a mere
affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion
on any legal question, abstract or otherwise’ (ICJ Reports 1996 (1), p 236, para 15 . . . )
In any event, the Court considers that the question posed to it in relation to the legal
consequences of the construction of the wall is not an abstract one, and moreover that
it would be for the Court to determine for whom any such consequences arise.
[41] Furthermore, the Court cannot accept the view, which has also been advanced in
the present proceedings, that it has no jurisdiction because of the ‘political’ character
of the question posed. As is clear from its long-standing jurisprudence on this point,
the Court considers that the fact that a legal question also has political aspects,
as, in the nature of things, is the case with so many questions which arise in international
life, does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the
Court of a competence expressly conferred on it by its Statute’ (Application For Review of
Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ
Reports 1973, p 172, para 14). Whatever its political aspects, the Court cannot refuse to
admit the legal character of a question which invites it to discharge an essentially judicial
task, namely, an assessment of the legality of the possible conduct of States with regard to
the obligations imposed upon them by international law . . . (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (1), p 234, para 13.)
Notes
1. The Court’s jurisdiction also depends upon the request coming from a body that is properly
authorised to do so under the UN Charter and the ICJ Statute. It was on this basis that the
ICJ determined (by 11 votes to 3) that it lacked jurisdiction to give an advisory opinion to
WHO regarding the use of nuclear weapons.78 The Court stated:
78 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Reports 66.
Consequently, three conditions must be satisfied in order to found the jurisdiction of

the Court when a request for an advisory opinion is submitted to it by a specialized
agency: the agency requesting the opinion must be duly authorized, under the Charter,
to request opinions from the Court; the opinion requested must be on a legal question;
and this question must be one arising within the scope of the activities of the requesting
agency.79
WHO sought an advisory opinion on the following question:
In view of the health and environmental effects, would the use of nuclear weapons by
a State in war or other armed conflict be a breach of its obligations under international
law including the WHO Constitution?80
After considering the relevant rules of WHO, and in particular its constitution, the ICJ
determined that the question submitted did not fall ‘within the scope of [WHO’s] activities’,
as required by art 96(2) of the UN Charter.81
2. States cannot request an advisory opinion but can participate in the process through
the making of oral or written representations to the Court. For example, a large number
of written representations were made by individual States, including Australia, in the
Palestinian Wall Advisory Opinion. Australia also made written submissions in relation to
the Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion.
3. Article 65 has been interpreted as giving the Court a discretion, rather than an obligation, to
provide an advisory opinion. As a preliminary matter, therefore, the Court should consider,
first, if it has jurisdiction to answer the question put to it, and second, assuming that
jurisdiction is found, whether there are grounds upon which it might nevertheless decline
to exercise that jurisdiction.82 Arguments that are sometimes raised in this context include:
that the dispute is political rather than legal; that the Court’s advisory jurisdiction is being
used to avoid the need for parties to consent to judicial settlement of disputes; and that
judicial proceedings would be futile or counterproductive. To date such arguments have
only been successful in one case, the Status of Eastern Carelia,83 with subsequent cases
emphasising that the Court will refuse a request for an advisory opinion only where there
are ‘compelling reasons’.84
13.4.3 Effect of an advisory opinion

In the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory
Opinion),85 the ICJ commented on the different principles governing advisory opinions
and contentious cases:
The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious
cases. The situation is different in regard to advisory proceedings even where the Request for
79 At [71].
80 At [68].
81 At [84].
82 Western Sahara (Advisory Opinion) [1975] ICJ Reports 12. See also Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania (Advisory Opinion) [1950] ICJ Reports 65; Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 136.
83 Status of Eastern Carelia (Advisory Opinion) (1923) PCIJ Reports Series B no. 5.
84 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004]
ICJ Reports 136, 156.
an Opinion relates to a legal question actually pending between States. The Court’s reply is
only of an advisory character: as such, it has no binding force. It follows that no State, whether
a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which
the United Nations considers to be desirable in order to obtain enlightenment as to the course
of action it should take. The Court’s Opinion is given not to the States, but to the organ
which is entitled to request it; the reply of the Court, itself an ‘organ of the United Nations’,
represents its participation in the activities of the Organization, and, in principle, should not
be refused.86
Nevertheless, it is clear that the ‘advice’ of the ICJ is of great weight and is unlikely to
be disregarded. In relation to the PCIJ, Goodrich wrote in 1938:
It soon became apparent that in actual practice the opinions of the Court would have a more
conclusive effect than the text of Article 14 would suggest. While it remained true that in
principle the Council and Assembly were free to disregard them and that per se they created
no legal obligations for the interested parties, it also soon became clear that the opinions of
the Court would in practice usually be accepted.87
In limited circumstances an advisory opinion may effectively be binding because of

the operation of another agreement. For example, in relation to the Opinion on the
Difference Relating to the Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights,88 s 30 of the Convention on the Privileges and Immunities
of the United Nations rendered the Court’s opinion ‘decisive’ in a dispute between
Malaysia and the UN over Malaysia’s prosecution of a UN rapporteur.
13.5 The relationship between the ICJ and the

Security Council
Unlike the High Court under the Constitution of the Commonwealth of Australia in
relation to the executive branch of government, the ICJ is not clearly mandated under
the UN Charter to review the legality of the actions of the Security Council. In fact, the
UN Charter says very little about the relationship between the two organs, beyond a
reference in art 36 to the desirability of referring legal arguments to the Court.

Article 35
1. Any Member of the United Nations may bring any dispute, or any situation of the
nature referred to in Article 34, to the attention of the Security Council or of the General
Assembly.
2. A state which is not a Member of the United Nations may bring to the attention of
the Security Council or of the General Assembly any dispute to which it is a party if it
accepts in advance, for the purposes of the dispute, the obligations of pacific settlement
provided in the present Charter.
86 At 71.
87 Leland M Goodrich, ‘The Nature of the Advisory Opinions of the Permanent Court of International Justice’ (1938)
32 American Journal of International Law 738, 739.
3. The proceedings of the General Assembly in respect of matters brought to its atten-
tion under this Article will be subject to the provisions of Articles 11 and 12.
Article 36
1. The Security Council may, at any stage of a dispute of the nature referred to in Article
33 or of a situation of like nature, recommend appropriate procedures or methods of
adjustment.
2. The Security Council should take into consideration any procedures for the settle-
ment of the dispute which have already been adopted by the parties.
3. In making recommendations under this Article the Security Council should also take
into consideration that legal disputes should as a general rule be referred by the parties
to the International Court of Justice in accordance with the provisions of the Statute of
the Court.
Article 37
1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it
by the means indicated in that Article, they shall refer it to the Security Council.
2. If the Security Council deems that the continuance of the dispute is in fact likely to
endanger the maintenance of international peace and security, it shall decide whether
to take action under Article 36 or to recommend such terms of settlement as it may
consider appropriate.
Article 38
Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if
all the parties to any dispute so request, make recommendations to the parties with a
view to a pacific settlement of the dispute.
The Court has occasionally been presented with an opportunity to comment upon the
relationship between the Security Council and the ICJ where both have been seised of
what is, essentially, the same dispute.
Case Concerning Questions of Interpretation and Application of the

Montreal Convention Arising out of the Aerial Incident at Lockerbie
(Libya v UK) (Provisional Measures) [1992] ICJ Reports 3
[On 21 December 1988 a Pan Am plane was bombed over Lockerbie, Scotland, killing
259 on board and another 11 on the ground. The United Kingdom and the United
States both instituted criminal proceedings against two Libyan nationals; however,
Libya refused the United Kingdom’s request for the two suspects to be extradited. All
relevant States were parties to the 1971 Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, which obliges States either to extradite
suspects or prosecute them. Further, if there is no extradition treaty (as was the case
here), extradition is subject to the laws of the local State, which in this case made it
unlawful to extradite a national. Therefore Libya argued that it was unable to extradite
the two Libyan suspects, and quite entitled to prosecute them under its own laws. A
difficulty arose with allegations that the two Libyan suspects were in fact intelligence
agents. The UN Security Council passed Resolution 731 on 21 January 1992 expressing
concern that investigations implicated Libyan officials, and ‘urged’ Libya to comply with
requests for the surrender of the accused. Libya refused to cooperate and so the Security
Council began discussing possible sanctions. On 31 March 1992 the Security Council
issued a second resolution, this time under Chapter VII of the UN Charter, stating that
Libya’s failure to respond to the earlier resolution represented a threat to international
peace and security and that continued failure would lead to economic sanctions. In the
meantime, Libya had instituted proceedings before the ICJ seeking a declaration that
it had complied with its obligations under the Montreal Convention, and applied for
interim measures of protection against the United States and the United Kingdom.]
The Court
[40] Whereas the Court, while thus not at this stage called upon to determine definitively
the legal effect of Security Council resolution 748 (1992), considers that, whatever the
situation previous to the adoption of that resolution, the rights claimed by Libya under
the Montreal Convention cannot now be regarded as appropriate for protection by the
indication of provisional measures;
[41] Whereas, furthermore, an indication of the measures requested by Libya would

be likely to impair the rights which appear prima facie to be enjoyed by the United
Kingdom by virtue of Security Council resolution 748 (1992) . . .
Separate Dissenting Opinion of Judge Weeramantry
[53] This case has raised as perhaps no case has done in the past, certain questions
of importance and interest concerning the respective functions of this Court and the
Security Council . . .
[55] It was contended, on the one hand, that the fact of the Security Council being
seised of the matter prevented the Court from granting the relief sought, while, on the
other hand, that resolution was impugned as neglecting certain legal considerations
which the Security Council was allegedly bound to consider. These were pre-eminently
questions of law which the Court was bound to examine as a prerequisite to considering
whether provisional measures were to be issued.
General Observations
Created by the same Charter to fulfil in common the Purposes and Principles of the
United Nations, the Security Council and the Court are complementary to each other,
each performing the special role allotted to it by their common instrument of creation.
Both owe loyalty alike to the same instrument which provides their authority and
prescribes their goals. As with the great branches of government within a domestic
jurisdiction such as the executive and the judiciary, they perform their mission for the
common benefit of the greater system of which they are a part.
In the United Nations system, the sphere of each of these bodies is laid down in
the Charter, as within a domestic jurisdiction it may be laid down in a constitution.
However, unlike in many domestic systems where the judicial arm may sit in review
over the actions of the executive arm, subjecting those acts to the test of legality under
the Constitution, in the United Nations system the International Court of Justice is not
vested with the review or appellate jurisdiction often given to the highest courts within
a domestic framework . . . At the same time, it is the principal judicial organ of the United
Nations, charged with the task, inter alia, of deciding in accordance with international
law such disputes as are submitted to it (Art 38 of the Statute of the Court).
An important difference must also be noted between the division of powers in

municipal systems and the distribution of powers between the principal organs of the
United Nations, for there is not among the United Nations organizations the same
strict principle of separation of powers one sometimes finds in municipal systems.
As this Court observed in the case concerning the Military and Paramilitary Activities
in and against Nicaragua, municipal law concepts of separation of powers ‘are not
applicable to the relations among international institutions for the settlement of dis-
putes’ (ICJ Reports 1984, p 433, para 92). Nor is there a hierarchical arrangement
of the organs of the United Nations (Rosenne, The Law and Practice of the Interna-
tional Court of Justice, 2nd rev edn, p 70), and each principal organ is par interpares
(ibid, p 71).
[56] As a judicial organ, it will be the Court’s duty from time to time to examine and
determine from a strictly legal point of view matters which may at the same time be
the subject of determination from an executive or political point of view by another
principal organ of the United Nations. The Court by virtue of its nature and constitution
applies to the matter before it the concepts, the criteria and the methodology of the
judicial process which other organs of the United Nations are naturally not obliged to
do . . .
[58] It is clear from a consideration of these requisites that the Court must at all
times preserve its independence in performing the functions which the Charter has
committed to it as the United Nations’ principal judicial organ. It is clear also that
in many an instance the performance of those independent functions will lead the
Court to a result in total consonance with the conclusions of the Security Council.
But it by no means follows from these propositions that the Court when properly
seised of a legal dispute should co-operate with the Security Council to the extent of
desisting from exercising its independent judgment on matters of law properly before
it . . .
Notes
1. Should the ICJ decline to exercise jurisdiction on the basis that the matter (or part of it)
is currently before the Security Council? Judge Weeramantry confirms that as a matter of
basic principle, the ICJ is not deprived of jurisdiction just because the Security Council
is considering a matter: see also Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzogovina v Serbia & Montenegro),89
and United States Diplomatic and Consular Staff in Tehran Case (United States v Iran).90
Would it be preferable for the ICJ to possess a ‘review or appellate jurisdiction often given
to the highest courts within a domestic framework’, as referred to by Judge Weeramantry?
89 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures)
[1993] ICJ Reports 325, Separate Opinion of Judge ad hoc Lauterpacht [439–442].
2. The UN General Assembly is prohibited, under art 12(1) of the UN Charter, from making
recommendations with respect to disputes that are currently before the UN Security Coun-
cil. There is no equivalent provision restricting the ICJ. In the United States Diplomatic and
Consular Staff in Tehran Case the Court stated:
Whereas Article 12 of the Charter expressly forbids the General Assembly to make any
recommendation with regard to a dispute or situation while the Security Council is
exercising its functions in respect of that dispute or situation, no such restriction is
placed on the functioning of the Court by any provision of either the Charter or the
Statute of the Court. The reasons are clear. It is for the Court, the principal judicial organ
of the United Nations, to resolve any legal questions that may be in issue between
parties to a dispute; and the resolution of such legal questions by the Court may be
an important, and sometimes decisive, factor in promoting the peaceful settlement of
the dispute.91
3. In the Palestinian Wall Advisory Opinion,92 the Court considered whether or not the
General Assembly’s request for an advisory opinion breached the restriction in art 12(1) of
the UN Charter. The Court pointed out that ‘A request for an advisory opinion is not in itself
a “recommendation” by the General Assembly “with regard to [a] dispute or situation”’.93
Nevertheless, it went on to consider how art 12 has in fact been applied:
As regards the practice of the United Nations, both the General Assembly and the Secu-
rity Council initially interpreted and applied Article 12 to the effect that the Assembly
could not make a recommendation on a question concerning the maintenance of
international peace and security while the matter remained on the Council’s agenda.
Thus the Assembly during its fourth session refused to recommend certain measures
on the question of Indonesia, on the ground, inter alia, that the Council remained
seised of the matter . . . As for the Council, on a number of occasions it deleted items
from its agenda in order to enable the Assembly to deliberate on them . . . However,
this interpretation of Article 12 has evolved subsequently. Thus the General Assembly
deemed itself entitled in 1961 to adopt recommendations in the matter of the Congo
(resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese
colonies (resolution 1913 (XVIII)) while those cases still appeared on the Council’s
agenda, without the Council having adopted any recent resolution concerning them. In
response to a question posed by Peru during the twenty-third session of the General
Assembly, the Legal Counsel of the United Nations confirmed that the Assembly inter-
preted the words ‘is exercising the functions’ in Article 12 of the Charter as meaning
‘is exercising the functions at this moment’ (General Assembly, Twenty-third Session,
Third Committee, 1637th meeting, AlC.3lSR. 1637, para 9). Indeed, the Court notes
that there has been an increasing tendency over time for the General Assembly and the
Security Council to deal in parallel with the same matter concerning the maintenance
of international peace and security (see, for example, the matters involving Cyprus,
South Africa, Angola, Southern Rhodesia and more recently Bosnia and Herzegovina
and Somalia). It is often the case that, while the Security Council has tended to focus
on the aspects of such matters related to international peace and security, the General
91 United States Diplomatic and Consular Staff in Tehran Case (United States v Iran) [1980] ICJ Reports 3 [22].
92 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ
Reports 136.
93 At [148].
Assembly has taken a broader view, considering also their humanitarian, social and
economic aspects.
The Court considers that the accepted practice of the General Assembly, as it has
evolved, is consistent with Article 12, paragraph 1, of the Charter. The Court is accord-
ingly of the view that the General Assembly, in adopting resolution ES-10/14, seeking
an advisory opinion from the Court, did not contravene the provisions of Article 12,
paragraph 1 of the Charter . . . 94
13.6 Trends in dispute resolution
Two particular trends are clearly discernible in relation to international dispute res-
olution. First is the expansion in the range of options available to a party wishing to
have its international dispute resolved by a formal tribunal. Second is the increased
frequency with which broad dispute resolution systems are incorporated into interna-
tional agreements.
Although the ICJ is probably still the most well-known international tribunal, it is
certainly not the only option for judicial or quasi-judicial resolution of international
disputes. There are regional bodies, such as the European Court of Justice, the Euro-
pean Court of Human Rights, the African Court of Human and People’s Rights, and the
Inter-American Court on Human Rights. There are ad hoc tribunals that have been set
up to deal with disputes arising out of a particular conflict or set of circumstances, such
as the Iran-United States Mixed Claims Tribunal, the International Criminal Tribunals
for Rwanda and the former Yugoslavia, and the Cambodian Khmer Rouge Tribunal.
There are also specialist tribunals that have been established to deal with particular
types of disputes. The International Criminal Court (ICC), the Appellate Body of the
World Trade Organization (WTO), and the International Tribunal for the Law of the
Sea (ITLOS) are examples of this latter type of body.
Gillian D. Triggs, International Law: Contemporary Principles and

Practices, LexisNexis Butterworths, Chatswood, NSW, 2006
[639] The growth in international tribunals and, particularly, the activism of their new
judges, has prompted concerns about how judges are appointed, the accountability
and legitimacy of these new bodies, and whether, in any event, a strictly legal approach
to international problem-solving can take account of wider values such as cultural
differences, environmental protection and human rights. The rule of law approach to
international disputes, which reduces the function of traditional negotiations among
government officials, has prompted complaints that there has been a ‘judicializing’ of
international relations. This is particularly noticeable within the WTO regime where
the Appellate Body is required to adopt objective scientific standards, possibly to the
detriment of community concerns. The alleged ‘democracy deficit’ that could be a con-
sequence of the ‘proliferation’ of courts is likely to present a challenge for contemporary
international law.
94 At [27–28].
There is a risk that the jurisprudence of international law will become fragmented by
differing approaches among the international and regional tribunals, thereby diluting
the authority of the ICJ and other established courts. This concern assumes, however,
that there is a hierarchy of international tribunals with the ICJ at its head, as there
would be within domestic systems of law. There is no such ranking of the courts in the
international system and diversities in jurisprudence are emerging . . .
[640] It is also likely that the new tribunals will encourage the development of an
international law that better reflects the history, culture and normative practices of
Africa, the Middle East, Asia and the Pacific . . .
With the notable exception of the success of the WTO dispute processes, states
continue to be reluctant to accept the ‘compulsory’ jurisdiction of the ICJ or to have
their disputes resolved by an unpredictable judicial process. In sharp contrast lies the
rapid growth in recourse by individual and non-state actors to the newer judicial and
quasi-judicial tribunals that have become available to them. One consequence of the
significantly increased workloads of these bodies is that new substantive laws will
evolve from the procedural capacity of non-state actors, supplementing those derived
from traditional state-to-state claims.
As states agree to numerous bilateral, regional and multilateral agreements for dis-
pute resolution, overlapping jurisdictions of different arbitral and judicial tribunals will
arise. The multiplicity of options for dispute resolution will inevitably lead to ‘forum
shopping’ for the tribunal that best meets the needs of litigants. Selection of the
most favourable tribunal will depend upon which entities have legal standing, the
earlier jurisprudence of the tribunal and its jurisdictional reach and applicable law.
The Southern Bluefin Tuna case and MOX Plant litigation provide further insight into
the complexity of international dispute resolution in the future.
For the present, the ICJ is the most widely recognised, scholarly and influen-
tial tribunal responsible for stating the principles of international law. The greater
range of procedures available and the full to overflowing dockets of many of the
new [641] tribunals indicate that states and non-state entities are increasingly will-
ing to seek resolution of their international disputes through recourse to the rule of
law . . .
Jonathan I. Charney, ‘The Impact on the International Legal System of

the Growth of International Courts and Tribunals’ (1999) 31 Journal of
International Law and Politics 697
[697] When one begins to examine the recent proliferation of international courts
and other tribunals, this development must be put into its proper historical context.
Obviously, the existence of a standing international court of general jurisdiction is a
creation of the twentieth century. Prior to the establishment of the Permanent Court
of International Justice [698] (PCIJ) after World War I, many ad hoc tribunals had
been used. Even after the PCIJ was established, a variety of international tribunals
continued to provide forums for third-party settlement of international disputes. After
the International Court of Justice (ICJ) was established at the conclusion of World War
II, ad hoc tribunals also continued to be used, albeit with less frequency. Consequently,
the International Court never has stood alone as the sole tribunal to settle disputes in
accordance with international law. It always has coexisted with other third-party dispute
settlement forums. Recent developments are changing the international environment
as a result of the establishment of more permanent tribunals and, perhaps, the use
of fewer ad hoc tribunals. In very recent years, the rate of change from ad hoc to
permanent tribunals appears to be increasing dramatically.
Thus, states involved in international disputes have a greater range of third-party

dispute settlement vehicles than heretofore. Many legitimate reasons help explain why
states and other members of the international community could prefer to have avail-
able a variety of international tribunals to resolve their disputes. They include, but are
not limited to, the desire for secrecy, control over the membership of the forum, panels
with special expertise or perceived regional sensitivities, preclusion of third state inter-
vention, and forums that can resolve disputes in which non-state entities may appear
as parties . . .
[703] . . . Despite limitations and setbacks . . . we have witnessed an overall expansion of

third-party settlement of international disputes through law-based forums. This seems
to reflect an increase in the role of international law in the settlement of international
disputes and a healthy environment for this to take place. If it were otherwise, fewer
[704] states and other entities would submit their disputes to international law forums.
This may reflect the fact that other international forums are necessary complements to
the ICJ, especially in matters that involve issues less central to core state concerns or
involve parties that are incapable of being litigants before the ICJ. The fact that only
states may be parties before the ICJ may explain the creation of other tribunals and the
fact that they attract so many cases.
The establishment and use of various third-party forums to decide questions of

international law means that more international issues are being resolved pursuant to
international law. This will add to the body of decisions based on international law that
are authoritative and can be relied upon by the international community. Unfortunately,
the ICJ is unequipped and unable to address all of these numerous and sometimes
highly specialized issues. As a whole, the other forums complement the work of the ICJ
and strengthen the system of international law, notwithstanding the risk of some loss
of uniformity.
Certainly, the primary objective of the international legal system is to help the inter-
national community avoid disputes and, once a dispute arises, to assist in its resolution.
The many available forums serve both functions. These forums usually are an integral
part of international regimes. They often have compulsory jurisdiction over disputes
that may not be within the ICJ’s mandatory jurisdiction. In those situations, states know
that if a dispute arises they could be forced to defend their actions before a tribunal.
Since states wish to avoid being brought before third-party tribunals, this strengthens
their motivation to avoid violations of their legal obligations. If they are accused of a
violation, they will try to negotiate a diplomatic settlement of the dispute. Due to the
litigation potential, a negotiated settlement is likely to be influenced by the relevant
international law. Finally, if the dispute cannot be resolved diplomatically, the tribunal’s
jurisdiction may be invoked and the dispute settled by an award or judgment based
on international law. As a consequence, the multiplicity of dispute settlement forums
increases the likelihood that disputes will be resolved in accordance with international
law, with or without litigation . . .
[705] . . . The fact is that the ICJ has a caché that makes its pronouncements on questions
of general international law particularly significant. It is certainly within the ability of
the Court to retain or even to build on this stature in order to provide the leading
authoritative statements on general international law. The international community is
predisposed to take the Court’s views on this law quite seriously, and if the Court
maintains a high level of competence and expresses its views in well-reasoned ways,
it will continue to have an influence on the course of general international law that is
well beyond its nominal jurisdiction . . .
Accordingly, it appears at present that the Court’s salience is not at substantial risk,
and it continues to play the leading role in weaving together the strands of interna-
tional law. These strands are found not only in the traditional primary sources of the
law, but also in determinations by the ICJ and other tribunals where questions of gen-
eral international law are addressed. Certainly, the ICJ is the only international court of
general jurisdiction. Thus, matters often come before it to be decided only on the basis
of general international law. All other standing tribunals are only presented with cases
arising within the context of the treaty regime within which they [706] exist. This limited
context constrains their ability to serve as the definitive forum for matters of general
international law. That role is de facto reserved to the ICJ. It can take into account
developments in international law across the entire spectrum of international relations.
As a result, the ICJ’s decisions reflect the perspective of a court unsullied by narrow
limitations that a special regime may impose on a forum. Thus, its pronouncements on
general international law necessarily are more persuasive than similar pronouncements
given by tribunals with specialized jurisdiction and narrower perspectives. This strength-
ens the leadership role that the ICJ performs in the maintenance and development of
general international law . . .
Notes
1. The International Criminal Tribunal for the former Yugoslavia and the International Criminal
Tribunal for Rwanda were established by UN Security Council Resolutions 827 (1993) and
955 (1994) respectively. In 1998, the ICC was established as a permanent criminal court
under the 1998 Rome Statute for the International Criminal Court.95 Note, however, that
the function of the ICC is to provide international criminal justice, not to resolve disputes
between States, although in its capacity for dealing with international crimes it may well
play a role in resolving such disputes.
2. At first instance, parties under the 1992 United Nations Convention on the Law of the
Sea (LOSC)96 are encouraged to settle disputes peacefully through means of their own
choosing.97 Failing this, a conciliation procedure is available. If parties remain unable
to settle their disputes, the ‘compulsory’98 dispute resolution mechanisms are triggered.
Unless both parties have agreed to another option, the dispute must be referred to an
arbitral tribunal established in accordance with Annex VII of the LOSC. Alternative fora
include the ICJ and the ITLOS, the latter being a specialist tribunal established under
95 [2002] ATS 15.

96 [1994] ATS 31.
97 See further Chapter 10 at 10.12.
98 In this regards, note the issues raised by the Southern Bluefin Tuna Cases at 13.2.4.
Annex VI of the LOSC, with members having ‘recognised competence’ in the field of the
law of the sea.
3. An integrated system operates for the resolution of trade-related disputes under the WTO’s
Dispute Settlement Understanding (DSU), part of the agreement establishing the WTO.99
If preliminary consultations between member States are fruitless, the Dispute Settlement
Body establishes a Panel to investigate, hear evidence and report back. An appeal on
issues of legal interpretation is available to the Appellate Body. Once the Panel report,
and any subsequent Appellate Body report, is adopted, WTO member States are obliged
to ensure that their actions are in compliance with that report.100
4. Charney in particular addresses the possibility of creating a ‘hierarchy’ of international
courts and tribunals, as exist in the domestic legal system, with the ICJ at the apex pro-
moting stability and uniformity in international law. He concludes that it would not be
possible to create a hierarchy of international tribunals; not only would it be difficult to
secure the agreement of all States, but the benefits (or perceived benefits) of having a
diversity of available forums would be lost. Do you agree?
5. Charney also investigates whether or not the proliferation of international tribunals in fact
threatens the coherence of international law as a whole. Based upon a ‘predominantly
comparative law analysis of several major doctrines of public international law as treated
by several international tribunals . . . [including the] ICJ, the European Court of Justice, the
European Court of Human Rights, the Inter-American Court of Human Rights, the dispute
settlement forums of the World Trade Organization (WTO) and General Agreement on
Tariffs and Trade (GATT), [and] the Iran-United States Claims Tribunal’, Charney concluded
that ‘Although differences exist, these tribunals are clearly engaged in the same dialectic.
The fundamentals of this general international law remain the same regardless of which
tribunal decides the case’.101 Both Charney and Triggs consider that some diversity in
jurisprudence across tribunals will in fact strengthen international law as a whole.
6. Bowett102 emphasises that the peaceful settlement of disputes does not always require
the use of formal legal mechanisms. However, Charney observes that, increasingly,
parties to an international dispute are seeking resolution based upon the application of
international law. What factors would tend to encourage parties to seek a legal settlement
to their dispute?
Further reading
Andrew Coleman, ‘The International Court of Justice and Highly Political Matters’ (2003) 4
Melbourne Journal of International Law 29
John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and
Procedures, Oxford University Press, Oxford, 1999
Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge University
Press, Cambridge, 2005
J. G. Merrills, International Dispute Settlement, 4th edn, Cambridge University Press, New York,
2005
Nii Lante Wallace-Bruce, The Settlement of International Disputes: The Contribution of Australia
and New Zealand, Martinus Nijhoff, The Hague, 1998
99 1994 Agreement Establishing the World Trade Organization [1995] ATS 8.

100 See further Chapter 12 at 12.4.
101 Jonathan I. Charney, ‘The Impact on the International Legal System of the Growth of International Courts and
Tribunals’ (1999) 31 International Law and Politics 697, 699.
102 Considered above at 13.1.

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13

The peaceful settlement of

13.1 Obligation to settle disputes peacefully

The peaceful settlement of international disputes is a fundamental principle of inter-

1 [1945] ATS 1, arts 2(3) and 2(4), extracted below.

designed to ensure peaceful settlement of international disputes. However, the League

1945 Charter of the United Nations [1945] ATS 1

D. W. Bowett, ‘Contemporary Developments in Legal Techniques

Whether there exists an international dispute is a matter for objective determination.

concerned objections by Portugal to Australia’s negotiation and conclusion of the 1989

13.2 Methods of dispute settlement

1959 Antarctic Treaty [1961] ATS 12

1. Representatives of the Contracting Parties named in the preamble to the present

(a) use of Antarctica for peaceful purposes only;

(b) facilitation of scientific research in Antarctica;

15 [1961] ATS 12.

(c) facilitation of international scientific cooperation in Antarctica;

(e) questions relating to the exercise of jurisdiction in Antarctica;

(f) preservation and conservation of living resources in Antarctica.

South West Africa Cases (Ethiopia v South Africa; Liberia v South

Moreover, diplomacy by conference or parliamentary diplomacy has come to be rec-

[On this basis, the Court dismissed the Respondent’s objection.]

1907 Convention for the Pacific Settlement of International Disputes

3. The UN Security Council regularly establishes fact-finding missions in relation to situations

3. To assess the status of implementation of relevant Security Council resolutions, in

Finding of the International Commission of Inquiry Organized under

24 UN General Assembly Resolution 46/59 (1991).

13.2.3 Mediation and conciliation

1907 Convention for the Pacific Settlement of International Disputes

In case of serious disagreement or dispute, before an appeal to arms, the Contracting

‘Secretary-General of the United Nations, Ruling Pertaining to the

A communiqué issued on 22 September 1985 by the Prime Minister of France con-

(3) The Two French Service Agents

On this point, if I am to fulfil my mandate adequately, I must find a solution in respect

(4) Trade Issues

1907 Convention for the Pacific Settlement of International Disputes

Chapter I: The System of Arbitration

Recourse to arbitration implies an engagement to submit in good faith to the Award.

In questions of a legal nature, and especially in the interpretation or application of

Consequently, it would be desirable that, in disputes about the above-mentioned ques-

Chapter II: The Permanent Court of Arbitration

With the object of facilitating an immediate recourse to arbitration for international

The Permanent Court sits at The Hague . . .

Chapter III. Arbitration Procedure

With a view to encouraging the development of arbitration, the Contracting Powers

13.3 Judicial settlement of disputes

1945 Charter of the United Nations [1945] ATS 1

13.3.2 Operation and membership of the ICJ

1945 Charter of the United Nations [1945] ATS 1

1945 Statute of the International Court of Justice [1945] ATS 1

The Court shall be composed of a body of independent judges, elected regardless

45 ICJ Statute, art 9.

1945 Statute of the International Court of Justice [1945] ATS 1

1. Only states may be parties in cases before the Court . . .

(a) the interpretation of a treaty;

(b) any question of international law;

3. The declarations referred to above may be made unconditionally or on condition of