Enforcement in case of dispute

This is the branch of international law that governs the settlement of disputes. The settlement
of disputes in international law rarely goes before a judge or an arbitrator. It is only rarely
within the framework of a jurisdictional realization of the law. Recourse to a judge or an
arbitrator is already an admission of failure, judicial recourse is never compulsory, and the
judge is never competent ex officio.
The constituent elements of international litigation will be found at the stage of international
proceedings through the study of competence and admissibility before an international body.

§1 The notion of international litigation

If we look at the techniques of international litigation, we realize that they are extremely
varied. All of them do not necessarily have the same purpose or, at least, they do not have
the same function. The purpose of dispute settlement is to resolve the dispute, the argument,
that arises between two states. This is not the same as saying that it is a matter of re-
establishing international legality between these two States. The objective of these litigation
techniques is to re-establish the social peace that is jeopardized by the dispute. This
objective can be achieved by deploying solutions that do not necessarily conform to the law
in all respects but that will dissolve the opposition between the two parties. This is the major
difference between the jurisdictional and diplomatic modes.the diplomatic solution to a
dispute is the one that will agree to the parties: one and the other will agree on the solution, it
is often done by a transaction. It is not a question of the two States involved re-establishing
strict respect for the law. On the other hand, the jurisdictional modes will have as an
objective to treat the dispute by a strict application of the law. This is where there is
jurisdictional realization of the law.

A) International litigation
1) The dispute

International litigation can be analyzed as a legal category that includes all the different
nationals. The Permanent Court of International Justice gave a definition in the Mavrommatis
decision of August 20, 1924: it saw it as a disagreement on a point of law or fact, a
contradiction, an opposition of legal theses or interests between two persons. The ICC and
the ICJ, notably in a judgment of 10 February 2005 in the case concerning certain property
between Germany and Liechtenstein, state that a dispute results from the combination of two
elements: a claim on the part of one of the parties and its contestation by the other. The legal
disagreement can only constitute a dispute if it gives rise to an international settlement. The
ICJ says that it must be shown that the claim of one party is clearly opposed by the other
(South-West Africa case, 21 December 1962). The Court says that a dispute in the sense of
the Convention is part of an inter-subjective, inter-State relationship. It is not international
litigation if the dispute between States is abstract, virtual or potential. Moreover, the
disagreement must be The disagreement that arises must be caused by a concrete situation.
It is not a question of disagreeing on the conduct that should be adopted in such and such a
circumstance. Only then can it be said that the dispute is ascertainable by a third party. It is
not enough that there is a dispute according to one of the parties. It is necessary that the
clash of two opposing claims on the part of the States be objectively ascertainable. This
means that if a dispute is brought before a court, it will not take the existence of the dispute
for granted by relying on the appreciation of these same parties. It is up to the court itself to
establish the objectivity of the dispute. This means that a preliminary dispute may arise
between the parties as to the existence of a dispute that will concern the merits. Determining
the existence of a dispute on the merits will be the subject of an examination of the
preliminary issues of jurisdiction and admissibility.
A dispute may involve a question of fact or law. The only distinction that makes sense among
all the different ones that can be identified is the opposition between justiciable and non-
justiciable disputes. This opposition will condition the admissibility of legal action. A dispute is
justiciable if it can be decided on the basis of law. By contrast, it is not justiciable when its
settlement requires recourse to considerations of a transactional nature.

2) The international character of the dispute

One can speak of a dispute that is materially international, i.e., that has a foreign element
that may be based on a spatial, territorial, or personal criterion. It is not because it is
international that the dispute will fall under the PIL. On the contrary, most of the time,
disputes fall under the PIL. The dispute is national if it will be decided by the State in whose
territory it arose by application of the territorial criterion, or on the high seas it will be decided
by the State of nationality of the vessel or the State whose residents are involved. The PIL
will designate the State which is competent to decide the dispute and will say within which
legal order the dispute should be decided. Conversely, a dispute that has no foreign element
by application of a spatial criterion can be qualified as a dispute within the meaning of the
PIL. This is typically the case with human rights disputes, which will give rise to a dispute
between the State and its own nationals, often on its own territory.
The dispute will be international by its object. This means that the dispute is an oppo- sition
between two allegations of what is the state of the ID. The dispute will be international if what
is granted is deemed to be granted on the basis of the CED. Both States claim to justify their
claims on the basis of the PIL. This is the only criterion of internationality in PIL. As soon as it
appears, it has its own status.

B) The status of international litigation

When States are faced with a dispute, they have a great deal of freedom. Their only
obligation is to settle the dispute peacefully, regardless of the method used. The corollary of
this obligation to settle peacefully is the freedom to choose the means.

The obligation to settle peacefully :

The obligation relates to the peaceful nature of the settlement and not to the settlement itself.
The ID does not require States to actually settle their disputes. A dispute can go on
indefinitely. There is an obligation to use peaceful means and by definition to exclude force
as a means of dispute settlement. Article 2§4 of the Charter sets out the general principle of
the prohibition of the use of force in international relations in the event of a dispute between
States. Article 2§3 sets out an obligation of peaceful settlement. The Charter states that
members of the UN shall settle their differences by peaceful means in such a manner that
peace, security and justice are not endangered. In the Nicaragua case, the Court recalls the
obligation of peaceful settlement. There is a prohibition on settling a dispute by force, and no
obligation to settle a dispute. The obligation to settle disputes peacefully is an obligation to
negotiate on the subject matter of the dispute. Two States whose claims clash will have an
obligation to negotiate to determine the subject matter of their dispute. Ideally, they should
negotiate with a view to reaching agreement and they should conduct themselves in such a
way that the negotiation is meaningful, i.e. in good faith, but this obligation to negotiate is
extremely narrow in scope. It is not intended to force states to find a solution, it is a simple
obligation of means. States must behave in a way that makes an agreement possible. They
are not obliged to accept a rule that they would consider iniquitous and, therefore, the only
behaviour expected of them is that they present themselves to each other and discuss their
claim. This is the result of the arbitration award of 9 December 1978 in the case of the
interpretation of the air agreement of 17 March 1946. This will make it possible to specify the
question put to the court: the more defined and circumscribed the subject matter of the
dispute, the easier it is for a court to answer the legal question put to it. This is a necessary
preliminary. The parties may resort to one of the methods of settlement referred to in Article
33 of the UN Charter. States are under no obligation to use these techniques and,
furthermore, unless they have committed themselves in advance, they are not obliged to
choose one of these methods of settlement. It is this principle of free choice of means of
settlement that is characteristic of public international litigation. Article 33 of the Charter
offers the parties to a dispute the possibility of settling their dispute through negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement, recourse to regional bodies or
agreements and other peaceful means of their choice. Good offices are also included in this
list.
→ CPJ Opinion. 1923, East Karelia: No state can be obliged to submit its disputes either to
arbitration or to any process of peaceful solution without its consent. On the other hand, if the
State has consented in advance to a method of settlement, it is bound to its consent.

C) Methods of settling international disputes

In the vast majority of cases, international disputes are settled by diplomatic means. These
are the diplomatic modes of dispute settlement, which are all a variation of negotiation. The
diplomatic mode is the common law mode of settlement. It is only when negotiation fails that
the parties have recourse to the jurisdictional mode, which is essentially viewed with
suspicion because they do not have control over the process and the fate of the dispute.

1) The diplomatic mode

A satisfactory solution is sought for both parties. The diplomatic mode will be opposed to the
jurisdictional mode since it is not subject to any legal requirement as to the choice of the
basis for the settlement and as to the fate of the recommended settlement.
Two States that have decided to submit their dispute to a diplomatic mode are free to
determine the basis for settlement. They may choose to involve a third party in this process,
give that third party more or less freedom, choose not to settle their dispute on the
There is no limit to the extent to which this can be done. There are no limits: the two states
are then completely free to decide what to do with the proposal that results from this appeal.
At the end of the process, a solution emerges: it is trans-active and has no legal value in
itself. It will only become binding if it is agreed by both parties and is the subject of an
international agreement.
There is a great variety of diplomatic methods of settling disputes. They can be classified
according to the degree of formalization of the procedure they involve. Traditionally, there are
informal and formal diplomatic modes. Among the informal diplomatic modes, we find
negotiation and assisted negotiation. The most informal of these modes is negotiation: it
brings the two parties face to face and they will have complete control over the entire dispute
settlement process in a bilateral tête-à-tête. This is the most common technique. The solution
may not be totally in accordance with their respective rights and may include transactional
elements. The solution will only be binding on the parties if it is formalized in an agreement
and both agree to it on the same terms. Sometimes, negotiation alone is difficult or even
impossible and States have recourse to assistance which may be limited to good offices.
Good offices refer to situations in which there is the interposition of a third party, whoever it
may be, who will serve as an intermediary between parties who do not mutually recognize
each other. It is also when relations are so tense that negotiation alone and involving only the
parties becomes fruitless. The good offices will facilitate communication between the parties
who wish to do so and will avoid a rupture of diplomatic relations. The third party who
intervenes does not in principle have any power of proposal, he will not make any
suggestions as to the solution of the dispute but simply facilitate the exchanges.
Sometimes the third party whose presence is requested is given the power to make
proposals by the parties: this is mediation. The mediator chosen by the parties to the dispute
may, for example, be the UN Secretary General. In mediation, the third party will only make
proposals and suggest to the parties a tran- sactional solution to the substance, so that
mediation appears to be a more elaborate form of negotiation. These proposals made by the
third party obviously have no legal force in themselves. It will be up to the parties to decide
what they wish to do with them. The solution reached by the parties will only become binding
if it is the subject of an agreement between them.
In addition to these informal diplomatic methods of dispute resolution, there is a formal
method: conciliation. Conciliation is a rather heterogeneous category, but it is identifiable
because of the procedure it imposes. The parties to the dispute will present their claims
before a third party conciliator who will propose an appropriate solution which is in reality
only a diplomatic advice, a recommendation, which is often presented in the form of an
agreement and which can be accepted by the parties or rejected by them. In conciliation,
despite this formal procedure which implements the adversarial principle, the solution
reached is not necessarily based on law. It may be based on equity or on expediency. As
such, it does not have the authority of res judicata. One remains in the diplomatic and not the
legal register. Admittedly, there are certain elements that come close to the jurisdictional
settlement: the high level of procedural organization. The parties are represented by an
agent, exchange written briefs, and present pleadings in accordance with the adversarial
principle. The conciliation body is characterized by a certain exteriority with respect to the
parties. The conciliator will be composed of an odd number of members. Each party will
nominate one of them who can eventually nominate a third. In spite of this, we remain in a
diplomatic way insofar as the solution reached is not imposed on them.