LL.M:› THE LAW AND POLICY OF INTERNATIONAL
COURTS AND TRIBUNALS
Professor C. Chinkin (LSE)
Professor P. Sands
The object of this course is to examine responses to international disputes including the law, policies and practices of adjudicatory and non-adjudicatory institutions and processes.
The course will examine the various processes for the management and attempted peaceful resolution of disputes that are currently available to states and other participants in the international arena.› It will consider the legal and policy issues that influence choices as to different approaches to disputes (for example negotiatory or adjudicative) and the choice of a particular forum (or for a).› The course will give specific attention to the creation, processes and functioning of international courts, tribunals and other relevant international bodies, such as the human rights treaty bodies and inspection panels of the international financial institutions.› Throughout the course reference will be made to the interests and strategies of participants in particular disputes.
At the end of the course students should have an understanding of:
Ö the requirements of the general obligation under international law to settle disputes peacefully;
Ö the historical evolution and contemporary understandings of the mechanisms available for dispute resolution enumerated in United Nations Charter Article 33:› negotiation, inquiry;› mediation;› conciliation;› arbitration;› judicial settlement.
Ö legal and policy issues associated with the composition, functioning and powers of the permanent and ad hoc international courts and tribunals
Ö the respective advantages and disadvantages of these various mechanisms, the interplay between them, and the factors that influence their effectiveness;
Ö the role and interests of the various disputants and interested third parties in proceedings before these mechanisms;› and
Ö the place which these mechanisms have in the international legal order, and their relationship to national bodies.
The course will be divided into two main parts:
Part I will briefly address introductory and historical material, including the emergence of the obligation for the peaceful settlement of international disputes; the concept of international dispute;› the processes enumerated in UN Charter, article 33 (negotiation, inquiry, mediation, conciliation, arbitration and adjudication;› the evolution of non-adjudicatory processes in new contexts such as human rights fact-finding and conciliation mechanisms, inspection panels and institutional forms of consultation and negotiation.› This part will also consider the question of participants in international disputes and the extent to which their interests can be accommodated by recourse to the various processes.
Part 2 will first consider the role and functioning of international courts and tribunals.› It will first address various institutional aspects: the appointment and role of adjudicators; the role of the registry or secretarial; participants (and non-participants) in proceedings and their representation; applicable law;› issues of access, including jurisdiction (contentious and advisory), standing and admissibility;› financing of international courts and tribunals and of proceedings before them.
It will then address procedural aspects: third party participation, including intervention;› preparation and filing of written pleadings and the role of oral argument;› provisional measures;› evidentiary rules and principles;› the powers of the various courts and tribunals;› remedies;› appeal and review.
Throughout both Parts 1 and 2 attention will be given to broader constitutional questions: the function of private and public dispute resolution processes in the international legal order; ›party autonomy and community interests;› the relationship between ad hoc and permanent courts and tribunals;› the relationship between adjudicatory and non-adjudicary bodies (including the political institutions of the United Nations).› The course will conclude by considering whether adjudication has become a systematic part of the international legal order, and the impact this may have upon that order.
There are three basic books now available that are recommended:
Ö J. Merrills, International Dispute Settlement (Cambridge UP, 3rd ed. 1998)
Ö P. Sands, R. Mackenzie & Y. Shany (Butterworths 1999) Manual of International Courts and Tribunals
Ö J. Collier & V. Lowe, The Settlement of Disputes in International Law (Oxford UP, 1999)
There are some useful chapters in:
M. Evans ed, Remedies in International Law.› The Institutional Dilemma (Hart Publishing 1998)
Reference will be made to other treatises and law review articles in appropriate places
There is wide range of materials easily available to all students on the Web.› These include decisions of international courts and tribunals as well as instruments relating to their practice (Statutes, Rules of Procedure etc.)
Each of the principal international courts and tribunals now has its own web site.› In addition, the Project on International Courts and Tribunals (PICT) maintains a web site linking all the principal sites (see www.pict-pcti.org). This site also directly accesses many of the required instruments and readings on the list.
Part 1 Non-Adjudicatory Dispute Resolution Processes (Term One)
Part 1 of the course will focus upon the role of the non-adjudicatory processes in the settlement of disputes. It will also introduce the broader constitutional questions such as the role and functions of courts and tribunals and the relationship between courts, tribunals and other institutions and processes for the settlement of disputes, including the relationship between international courts and tribunals and national courts.
General Act for the Pacific Settlement of Disputes, 1928
Symposium:› The Hague Peace Conferences, 94 American Journal of International Law (2000) 1, especially Introduction (page1) and 'A Century of Achievement and Unfinished Work' (page 90)
D. Caron, 'War and International Adjudication:› Reflections on the 1899 Peace Conference' 94 American Journal of International Law (2000)
Questions to consider
What is an international dispute?› What is the distinction between dispute, difference and conflict?› Why does the distinction matter? Do states have recourse to international courts and tribunals to resolve disputes or for other reasons? What is the difference between a Žpresenting issueŪ and the underlying dispute? Who were the participants in these disputes?› Can you distinguish between disputants and other interested parties?› Does the distinction matter?› What is the relevance of the status of international disputants?› Who represents international disputants? How does the nature of the dispute influence choice of process and forum?
J. Collier & V. Lowe, The Settlement of Disputes in International Law (Oxford UP, 1999) 1-4, 10-18
Sir R. Jennings, 'Reflections on the Term "Dispute"', in R. St. John MacDonald, Essays in Honour of Wang Tieya, 401
Case Concerning East Timor (Portugal v. Australia) 1995 ICJ Rep. 13
US Diplomatic and Consular Staff in Tehran (United States v. Iran) 1980 ICJ Rep. paras. 93 and 94
Nuclear Tests Case (Australia v. France; New Zealand v. France) 1974 ICJ Rep. paras.56-7
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (1970-1971) 1970 ICJ Rep. paras.19-41; see also Dissenting opinion Judge Dillard
Legality of the Use of Force (Yugoslavia v. Belgium) 1999 ICJ Rep.; see also dissenting opinion Vice President Weeramantry, 'Meaning of Dispute'.
R. Falk, 'The Iran Hostage Crisis: Easy Answers and Hard Questions', 74 American Journal of Inrernational Law 411 (1980)
ICJ Cases are available on www.icj-cij.org and http://www.pict-pcti.org/activities/activities.html.
There are many more international (and regional) courts and tribunals than has previously been the case. This class looks at the range of such courts and tribunals and the reasons and mode of their establishment.
Questions to consider
Does the proliferation of international courts and tribunals create a sophisticated international legal system? Or does the proliferation of international courts and tribunals cause fragmentation and destroy any coherence? What are the consequences of having a range of available arenas?
Synoptic Chart at http://www.pict-pcti.org/publications/synoptic.html.
See the articles in (1999) 31 New York University Journal of International Law and Politics, especially those by› Kingsbury,› Charney, Dupuy, Romano and Abi-Saab.
Oxman, ŽComplementary Agreements and Compulsory JurisdictionŪ (2001) 95 American Journal of international Law 277.
The obligation to settle disputes peacefully
Overview of the processes for the peaceful settlement of disputes; negotiation; fact-finding;› mediation; conciliation;› arbitration and adjudication.›
Questions to consider:
What are the points of similarity and distinction between the various processes? What factors might encourage a disputant to have recourse to negotiatory processes rather than adjudicatory processes? What are the advantages of negotiatory processes?››
General Assembly Declaration on the Principles of Friendly Relations, 1970
J. Collier & V. Lowe, The Settlement of Disputes in International Law (Oxford UP, 1999) 5-10; chapter 2
Week Five: Negotiation and consultation
The negotiation process; different approaches to negotiation, especially problem-solving negotiation; ongoing consultative procedures in treaties; the relationship between adjudication and negotiation.
J. Merrills, International Dispute Settlement (Cambridge UP, 34d ed., 1998).› Chapter One.
D. Anderson, 'Negotiation and Dispute Settlement', in M. Evans ed., Remedies in International Law.› The Institutional Dilemma (1998) 71
M. Weller, 'The Rambouilllet Conference on Kosovo', 1999 International Affairs
US Diplomatic and Consular Staff in Tehran (United States v. Iran) 1980 ICJ Rep. 3 at paras.1-32
Case concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 ICP Rep. para.125ff
Case Concerning Land and Maritime Boundary between Cameroon and Nigeria 1988 ICJ Rep. para.56
Roger Fisher and William Ury, Getting to Yes (2nd rev. ed. 1992) ch.1
A. Lall, Multilateral Negotiation and Mediation (1985)
B. F. Ikle, How Nations Negotiate (1981)
Fact finding as a dispute resolution process; fact finding by governmental and non-governmental actors; World Bank and Regional Development Bank Inspection Panels; the role of fact-finding in disputes concerning violations of human rights
J. Merrills, International Dispute Settlement (Cambridge UP, 3rd ed.,1998), chapter 3
An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General pursuant to the Statement adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc. UN Doc. UN Doc.A/47/277 (1992) para.25
Commission on Human Rights, Resolution 1999/S-4/1, Situation of human rights in East Timor
Report of the Commission of Inquiry, 31 January 2000 (East Timor)
Ibrahim Shihata, The World Bank Inspection Panel, 2nd ed 1999, Oxford University Press
J. Merrills, International Dispute Settlement (Cambridge UP, 3rd ed.,1998), chapters 2 and 4
US Diplomatic and Consular Staff in Tehran (United States v. Iran) 1980 ICJ Rep. 3 at paras.39-45
T. Franck, Fairness in International Law and Institutions, ch.6
Ratner, Does International Law Matter in preventing Ethnic Conflict? (2000) 32 NYU Journal of International Law and Politics 591, 623.
For descriptions of particular international mediations see:
J. Greenberg, 'Algerian Intervention in the Iranian Hostage Crisis', 20 Stanford Journal of International Law (1983) 259
L. Silber and A. Little, The Death of Yugoslavia, especially ch.14;›
R Holbrooke, To End A War (1999) 232-287
How does conciliation differ from mediation? From arbitration? What are the functions of conciliation within the context of the law of the sea? How do compliance procedures operate? To what extent might such procedures be seen as part of international courts and tribunals? To what extent might such procedures be seen as dispute containment mechanisms? To what extent might such procedures be seen as dispute resolution processes?
J. Merrills, International Dispute Settlement (Cambridge UP, 3rd ed.,1998), chapters 2 and 4
Hague Convention for the Pacific Settlement of Disputes, 1899, Title II, articles II-VIII
Report of the Rainbow Warrior Affair, 74 International Law Reports 241 (1986)
OSCE Convention on Conciliation and Arbitration
Amicable or friendly settlement to enhance treaty compliance:
Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, rep. 26 ILM 1529 (1987); The Montreal Protocol on Substances that Deplete the Ozone Layer, with Annex A, 19 September 1987, rep. 26 ILM 1550 (1987)
Robin R. Churchill & Geir Ulfstein, ŽAutonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law (2000) 94 American Journal Of International LawŪ 623.
C.› Chinkin, 'Alternative Dispute Resolution under International Law', in M. Evans ed., Remedies in International Law.› The Institutional Dilemma (Hart Publishing 1998)
How does arbitration differ from adjudication? What factors might influence the choice of arbitration? What are the advantages of Model Rules for Arbitration? What should be included within Model Rules?
Hague Convention for the Pacific Settlement of Disputes, 1899 Title IV
UNCITRAL Model Law on Commercial Arbitration
J. Merrills, International Dispute Settlement (Cambridge UP, 3rd ed.,1998), chapters 5, 6 and 7
The Eritrea - Yemen Arbitration at› http://www.pict-pcti.org/news/archvie.html.
In the matter of an Arbitration under chapter 11 of NAFTA and under the UNCITRAL Arbitration Rules between Methanex Corporation and the USA, Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae, available at http://www.pict-pcti.org/news/archvie.html.
Gray and Kingsbury, ŽDevelopments in Dispute settlement: Inter-State Arbitration since 1945Ū, (1992) 63 BYBIL 97.
Why do states and other disputants comply with international law and in particular the decisions of international courts and tribunals?
Statute of the International Court of Justice article 59.
European Convention for the Protection of Human Rights and Fundamental Freedoms article 46
American Convention on Human Rights article 68.
From the newsroom of the BBC World Service, 18 October 1999: Asia-Pacific Malaysian Court rejects UN ruling
A Malaysian court has ruled that a special United Nations rapporteur, Param Cumaraswamy, does not have immunity from prosecution for libel. The court rejected a judgement by the International Court of Justice in the Hague that Mr Cumaraswamy is immune from prosecution over comments he made in 1995 criticising the Malaysian judicial system. Mr Cumaraswamy now faces lawsuits totalling millions of dollars.
The UN argued that he should be immune from prosecution because his comments were related to his work, but in today's ruling, the court in Kuala Lumpur said it was not bound by the International Court's judgement.
Benedict Kingsbury, ŽThe Concept of Compliance as a Function of Competing Conceptions of International Law, (1998) 19 Michigan Journal of International Law 345.
Harold Koh, Why Do Nations Obey International Law?Ū 106 Yale LJ 2599.›