Law Optional (Peaceful Settlement of Disputes) by Rajnish Jindal

Model Answer

Question #1. Define and distinguish between ‘arbitration’ and ‘judicial settlement’ in the context of the rules of International Law. Also mention the relevant provisions regarding ‘forum prorogatum’.

Ans.

Article 15 of the Hague Convention of 1899 provides that “International arbitration has for its object the settlement of differences between States by Judges of their own choice on the basis of a respect for law”. This definition emphasises two elements:

1. Consent of parties to arbitration ; and
2. Settlement on the basis of respect for law.

The practice of arbitration evolved as a sophisticated procedure similar to judicial settlement. Modern arbitration began with the Jay Treaty of 1794 between United States and Great Britain, which provided for adjudication of various legal issues by mixed commissions and credited with averting war resolving some issues remaining since the Treaty of Paris, 1783, which ended the American Revolution and allowed ten or more years of mostly peaceful trade between United States and Great Britain in the midst of French Revolutionary Wars that had begun in 1793.

The popularity of arbitration increased considerably after the Alabama Claims arbitration of 1872 between the United States and Great Britain which took place in Geneva in 1871-72.A dispute between United States and United Kingdom arose because United Kingdom had permitted the Alabama and her supply ship, Georgia, to be built in a British yard and delivered to Southern States during the American Civil War. The US claimed that this was a breach of neutrality. The next important event was adoption of Hague Convention of 1899, wherein international law relating to arbitration was codified. In this early stage of experience arbitral tribunals were often invited by the parties to resort to ‘principles of justice and equity’ and to propose extra-legal compromises. However, by the end of the century, arbitration was primarily if not exclusively associated with a process of decision according to law and supported appropriate procedural standards.

International arbitration was held to be the most effective and equitable manner of dispute settlement, where diplomacy had failed. An agreement to arbitrate under Article 18 implied the legal obligation to accept the terms of the award. In addition, a Permanent Court of Arbitration was established. It is not really a court since it is not composed of a fixed body of judges. It consists of a panel of persons, nominated by the contracting states (each one nominating a maximum of four), comprising individuals ‘of known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of an arbitrator’. Where contracting states wish to go to arbitration, they are entitled to choose the members of the tribunal from the panel. Thus, it is in essence machinery facilitating the establishment of arbitral tribunals. The PCA also consists of an International Bureau, which acts as the registry of the Court and keeps its records, and a Permanent Administrative Council, exercising administrative control over the Bureau.

Judicial Settlement: In a judicial settlement, a dispute is placed before an existing independent court. The most important and comprehensive of these courts is the ICJ, the successor of the Permanent Court of International Justice, created in 1920. Established by the UN Charter (Article 92) as the UN’s principal judicial organ, the ICJ consists of 15 judges who represent the main forms of civilization and principal legal systems of the world. They are elected by the General Assembly and Security Council for nine-year terms. The ICJ, whose decisions are binding upon the parties and extremely influential generally, possesses both contentious and advisory jurisdiction. Contentious jurisdiction enables the court to hear cases between states, provided that the states concerned have given their consent. This consent may be signaled through a special agreement, or compromis (French: “compromise”); through a convention that gives the court jurisdiction over matters that include the dispute in question (e.g., the genocide convention); or through the so-called optional clause, in which a state makes a declaration in advance accepting the ICJ’s jurisdiction over matters relating to the dispute. The ICJ has issued rulings in numerous important cases, ranging from the Corfu Channel case (1949), in which Albania was ordered to pay compensation to Britain for the damage caused by Albania’s mining of the channel, to the territorial dispute between Botswana and Namibia (1999), in which the ICJ favoured Botswana’s claim over Sedudu (Kasikili) Island. The ICJ’s advisory jurisdiction enables it to give opinions on legal questions put to it by any body authorized by or acting in accordance with the UN Charter.

Forum prorogatum: The jurisdiction of the International Court of Justice is entirely based on the consent of States. However, the compulsory jurisdiction of the Court accepted by a unilateral declaration pursuant to Article 36, paragraph 2 is only one form of expression of the consent of a State to the jurisdiction of the Court. Of all the forms of consent, forum prorogatum is by far the most flexible. If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, that State has the possibility of subsequently accepting such jurisdiction to enable the Court to entertain the case: the Court thus has jurisdiction as of the date of acceptance under the forum prorogatum rule.

Question #2. Discuss the concept of Retorsion under International Law. How are Reprisals distinguishable from acts of Retorsion, which are in themselves lawful acts?

Ans. Retorsion and Reprisals are the tools of Settlement of International disputes. It comes under compulsive or coercive means of settlement. The term dispute means a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.

The expression International disputes has a wider connotation, that covers within its ambit inter-state disputes as well as disputes between states and individuals, corporate bodies and non-state entities which are also subject to international regulations. But the discussion here is confined primarily to inter-state disputes. If remain unresolved, they may threaten international peace and security. To settle these disputes, international law embodies certain rules and procedures springing partly out of customs or usages and partly out of treaties or conventions.

States resort to compulsive means of settlement when they cannot agree to or fail to settle their disputes by peaceful means. Such means involve some amount of compulsion or coercion, and if necessary, also the use of force to make the reluctant state to agree to a settlement.

When there is use of force involved, their legality is questionable under Art. 2(4), of the United Nations Charter, but due to the weaknesses of the present international law without any centralised machinery to settle international disputes, these measures continue to have their relevance in international relations. They are the forms of self-help. These measures include retorsion, reprisals, embargo, pacific blockade and intervention. These measures are short of a state of war. War is also one of the compulsive means.

Retortion means retaliation, it is relied on the principle of Tit for Tat. This act is done by a state against another in an unfriendly, discourteous or inequitable manner. Such acts performed by the states are permitted. They are legal and justified under International Law. Implementation of retorsion may seem as an inappropriate way but it is an effective tool of Settlement of International disputes.

Reprisals are retributive or punitive in nature. They are adopted by a state to seek redress from another state for its illegal or unjustified acts. The aim of reprisal is to punish the recalcitrant state, and to discontinue the unlawful or wrongful act. It is actuated by the illegal act of the delinquent state. Earlier, reprisal involved the seizing of property or persons but later it included any coercive measure adopted by a state to seek redress from the offending state. The right to resort to forcible reprisals has always remained controversial and since it generally involves use of force its legality is questionable under International Law.

Difference Between Retorsion and Reprisal