Judicial Settlement of
Interstate Disputes
Marcelo G. KOHEN
Autumn 2010-2011
Sessions 1 and 2
Introduction
Judicial Settlement of Disputes
Peaceful settlement of international disputes
•Judicial and non-judicial settlement of
disputes
• Fundamental principle of contemporary public
international law
•Obligation of means, not of result
• Free choice of means
•Consequences for the dispute
•Categories of litigation:
• Arbitration Settlement
• Judicial Settlement
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
•Distinction with the prohibition on recourse to the
use of force
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The international dispute
The international dispute
Charter of the United Nations - Article 2
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.
Charter of the United Nations - Article 1
The Purposes of the United Nations are:
1. All Members shall settle their international
disputes by peaceful means in such a manner that
international peace and security, and justice, are not
endangered. 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.
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.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The international dispute
The international dispute
Charter of the United Nations – Article 27
Statute of the ICJ - Article 38
1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to
it, shall apply: ...
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The international dispute
The Mavrommatis Palestine Concessions, PCIJ Series A
No. 2, August 30th, 1924
A dispute is a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons.
Un différend est un désaccord sur un point de droit ou de
fait, une contradiction, une opposition de thèses juridiques
ou d’intérêts entre deux personnes.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The international dispute
Request for Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals (Mexico v.
United States), Provisional Measures, 16 July 2008
53. Whereas the French and English versions of Article 60 of the
Statute are not in total harmony; whereas the French text uses the
term “contestation” while the English text refers to a “dispute”;
whereas the term “contestation” in the French text has a wider
meaning than the term used in the English text; [...] whereas,
although in their ordinary meaning, both terms in a general sense
denote opposing views, the term “contestation” is wider in scope
than the term “différend” and does not require the same degree of
opposition; whereas, compared to the term “différend”, the concept
underlying the term “contestation” is more flexible in its application
to a particular situation; […]
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
3. Decisions of the Security Council on all
other matters shall be made by an affirmative
vote of nine members including the concurring
votes of the permanent members; provided
that, in decisions under Chapter VI, and under
paragraph 3 of Article 52, a party to a dispute
shall abstain from voting.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The international dispute
A ‘legal dispute’ in a technical and realistic sense
is accordingly, one which has been thus
processed, or reduced, into a form suitable for
decision by a court of law: i.e. a series of specific
issues for decision.
JENNINGS, Robert. « Reflections on the Term ‘Dispute’ » in MacDONALD, Ronald
(ed.). Essays in Honour of Wang Tieya. Dordrecht, Martinus Nijhoff, 1993, pp. 401-5.
Judicial Settlement of Interstate Disputes, 2009
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes,
2010-2011
The international dispute
(continued)
... whereas, in the present circumstances, a meaning
shall be given that best reconciles the French and English
texts of Article 60 of its Statute, bearing in mind its object;
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The international dispute
(continued)
55. Whereas the Court needs now to determine whether there
appears to be a dispute between the Parties within the meaning
of Article 60 of the Statute; whereas, according to the United
States, its executive branch, which is the only authority entitled to
represent the United States internationally, understands
paragraph 153 (9) of the Avena Judgment as an obligation of
result; whereas, in Mexico’s view, the fact that other federal and
state authorities have not taken any steps to prevent the
execution of Mexican nationals before they have received review
and reconsideration of their convictions and sentences reflects a
dispute over the meaning and scope of the Avena Judgment;
whereas, while it seems both Parties regard paragraph 153 (9) of
the Avena Judgment as an international obligation of result, the
Parties nonetheless apparently hold different views as to the
meaning and scope of that obligation of result, namely, whether
that understanding is shared by all United States federal and
state authorities and whether that obligation falls upon those
authorities;
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of an international dispute
•Objectivity
•Oppositional points of view
•Specific and argued claims
•Political v. legal disputes
The international dispute
Applicability of the Obligation to Arbitrate under Section 21 of
the United Nations Headquarters Agreement of 26 June 1947,
ICJ, Advisory Opinion of 26 April 1988
38. In the view of the Court, where one party to a treaty protests
against the behaviour or a decision of another party, and claims that
such behaviour or decision constitutes a breach of the treaty, the
mere fact that the party accused does not advance any argument to
justify its conduct under international law does not prevent the
opposing attitudes of the parties from giving rise to a dispute
concerning the interpretation or application of the treaty...
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Objectivity
Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, ICJ, Advisory Opinion of
March 30th, 1950, p. 74
Whether there exists and international dispute is a
matter for objective determination. The mere denial of
the existence of a dispute does not prove its nonexistence...
•Justiciable v. non-justiciable disputes
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Oppositional points of view
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Oppositional points of view
South West Africa Cases (Ethiopia v. South Africa;
Liberia v. South Africa), ICJ, Preliminary
Objections, 21 December 1962 at 328
Case Concerning the Northern Cameroons
(Cameroon v. United Kingdom), ICJ, Preliminary
Objections, 2 December 1963 at 27
... [I]t is not sufficient for one party to a contentious
case to assert that a dispute exists with the other party.
A mere assertion is not sufficient to prove the
existence of a dispute any more than a mere denial of
the existence of the dispute proves its non-existence.
Nor is it adequate to show that the interests of the two
parties to such a case are in conflict. It must be shown
that the claim of one party is positively opposed by the
other.
[I]t is sufficient to say that, having regard to the facts
already stated in this Judgment, the opposing views of
the Parties as to the interpretation and application of
relevant Articles of the Trusteeship Agreement, reveal
the existence of a dispute in the sense recognized by
the jurisprudence of the Court and of its predecessor,
between the Republic of Cameroon and the United
Kingdom at the date of the Application.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Oppositional points of view
Case Concerning Certain Property (Lichtenstein v. Germany),
ICJ, Preliminary Objections, 10 February 2005
22. ... This opposition, and the opposition of views on the question
of whether or not there has been a change of position by the
German Government with regard to Liechtenstein property, itself
clearly evidences a dispute.
23. ... For its part, Germany denies that it acknowledged the
existence of a dispute by participating in diplomatic consultations at
the request of Liechtenstein. It argues that a discussion of divergent
legal opinions should not be considered as evidence of the
existence of a dispute in the sense of the Court’s Statute “before it
reaches a certain threshold”.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Specific and argued claims
Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), ICJ, 11
September 1992, Separate Opinion of Torres
Bernardez J.
59. ... [T]herefore, the constitutive element par
excellence of an “international dispute” susceptible of
adjudication is a “conflict of legal views”; namely two
conflicting juridical positions, which must furthermore be
plainly and clearly established and manifested by the
contending States before proceedings are instituted.
(emphasis in original)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Specific and argued claims
Specific and argued claims
Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), ICJ, 11
September 1992
326. ... [T]he existence of a dispute over an island can, in
the present proceedings, be deduced from the fact of its
being the subject of specific and argued claims.
329. ... [T]he existence of a dispute does not depend on
the objective validity of the claims of the Parties to It.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Specific and argued claims
East Timor (Portugal v. Australia), ICJ, 30 June
1995
22. ... 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.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of a dispute
Case Concerning Certain Property (Lichtenstein v.
Germany), ICJ, Preliminary Objections, 10 February
2005
Territorial and Maritime Dispute (Nicaragua v.
Colombia), Preliminary Objections, ICJ, 13
December 2007
25. ... The Court thus finds that in the present
proceedings complaints of fact and law formulated by
Liechtenstein against Germany are denied by the
latter. In conformity with the well-established
jurisprudence..., the Court concludes that “[b]y virtue of
this denial, there is a legal dispute”.
“The Court first notes that Article VI of the Pact [of
Bogota] provides that the dispute settlement
procedures in the Pact ‘may not be applied to matters
already settled by arrangement between the parties, or
by arbitral award or by decision of an international
court, or which are governed by agreements or treaties
in force on the date of the conclusion of the present
Treaty’ (emphasis added).”
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of a dispute
The existence of a dispute
Territorial and Maritime Dispute (Nicaragua v.
Colombia), Preliminary Objections, ICJ, 13 December
2007
Bárcenas-Esguerra Treaty of 1928, Article 1:
"The Republic of Colombia recognizes the full and entire sovereignty
of the Republic of Nicaragua over the Mosquito Coast between the
Cape Gracias a Dios and the San Juan River, and over the Mangle
Grande and Mangle Chico islands, in the Atlantic Ocean (Great Corn
Island and Little Corn Island); and the Republic of Nicaragua
recognizes the full and entire sovereignty of the Republic of Colombia
over the islands of San Andrés, Providencia, Santa Catalina and all
the other islands, islets and cays that form part of the said
Archipelago of San Andrés.
The Roncador, Quitasueño and Serrana cays are not considered to
be included in this Treaty, sovereignty over which is in dispute
between Colombia and the United States of America.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of a dispute
Territorial and Maritime Dispute (Nicaragua v. Colombia)
90. ... In the light of the foregoing, the Court finds that it
can dispose of the issue of the three islands of the San
Andrés Archipelago [San Andrés, Providencia and
Santa Catalina) expressly named in the first paragraph
of Article I of the 1928 Treaty at the current stage of the
proceedings. That matter has been settled by the
Treaty. Consequently, Article VI of the Pact is applicable
on this point and therefore the Court does not have
jurisdiction under Article XXXI of the Pact of Bogotá
over the question of sovereignty over the three named
islands.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of a dispute
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of a dispute
Territorial and Martime Dispute (Nicaragua v. Colombia)
97. The Court considers that it is clear on the face of the
text of the first paragraph of Article I of the 1928 Treaty
that its terms do not provide the answer to the question
as to which maritime features apart from the islands of
San Andrés, Providencia and Santa Catalina form part of
the San Andrés Archipelago over which Colombia has
sovereignty. That being so, this matter has not been
settled within the meaning of Article VI of the Pact of
Bogotá and the Court has jurisdiction under Article XXXI
of the Pact of Bogotá.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The existence of a dispute
Territorial and Maritime Dispute (Nicaragua v.
Colombia):
Quitasueño, Roncador et Serrana: The Court
observes that the meaning of the second paragraph of
Article I of the 1928 Treaty is clear: this treaty does not
apply to the three maritime features in question.
Therefore, the limitations contained in Article VI of the
Pact of Bogotá do not apply to the question of
sovereignty over Roncador, Quitasueño and Serrana.
The Court thus has jurisdiction over this issue under
Article XXXI of the Pact of Bogotá... (para. 104)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Territorial and Maritime Dispute (Nicaragua v.
Colombia)
115. The Court considers that, contrary to Colombia’s
claims, the terms of the Protocol, in their plain and
ordinary meaning, cannot be interpreted as effecting a
delimitation of the maritime boundary between
Colombia and Nicaragua.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Political v. Legal Disputes
Case Concerning United States Diplomatic and
Consular Staff in Tehran (United States of
America v. Iran), ICJ, 24 May 1980
36. ... The Court, at the same time, pointed out that
no provision of the Statute or Rules contemplates
that the Court should decline to take cognizance of
one aspect of a dispute merely because that
dispute has other aspects, however important.
Justiciable and Non-justiciable Disputes
Case of the Free Zones of Upper Savoy and the District of Gex
(France v. Switzerland), Series A./B. No. 46, PCIJ, June 7th,
1932: The court determined that it could only settle customs
questions and deal with the territories referred to in the relevant
article in the Treaty of Versailles. It could not abolish the free zones
or settle matters lying outside of the framework of the regime
established by special agreement between the parties. To do so
would be “contrary to the proper function of the court, [and] could, in
any case, only be enjoyed by it if such freedom resulted from a clear
and explicit provision which is not be found in the Special
Agreement. (p. 153)
Haya de la Toree Case (Colombia v. Peru), ICJ, June 13th 1951:
[The Court] is unable to give any practical advice as to the various
courses which be followed with a view to terminating the asylum,
since, by doing so, it would depart from its judicial function. (p. 83)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011