Traditional mechanisms for settling disputes by a binding decision

Arbitration

· Qualitative leap from other mechanisms

· Dispute no longer settled for purpose of safeguarding peaceful relations and accommodating interests of conflict parties

· Additional goal – patching up differences on basis of international legal standards

· Court makes thorough examination of facts and the law governing them

· Court’s finding is legally binding on both parties

· Numerous treaty rules provide for resort to arbitral courts – since late 19th century

· Process began in 1899 with First Hague Convention on Peaceful Settlement on Int’l Disputes, set up the Permanent Court of Arbitration

Permanent Court of Arbitration

· PCA (still exists today) consists of standing panel of arbitrators, states could pick which ones they wanted for settling a specific dispute, also had administrative infrastructure

· PCA came and went as states required it to settle disputes

· Since 1900, PCA has only heard 23 cases, 20 of which were between 1900 and 1932.

· Methods of conferring jurisdiction

o Agreement to submit a certain dispute to the Court (compromis)

o Making of a treaty containing a clause whereby each contracting party could submit to the court any dispute relating to another contracting party (arbitral clause)

· Heyday of arbitration – two World Wars – when Western states were still relatively homogeneous. Arbitration was a useful way of relaxing dangerous tensions among relatively similar conflicting parties.

Permanent Court of International Justice (PCIJ) – set up in 1921

Replaced by International Court of Justice (ICJ) – 1946

Why ICJ is better than PCA

· It consists of a group of sitting judges – parties no longer had choice of which judges

· As it was made up of judges permanently associated with court, ICJ could develop a continuous tradition and assure logical development of int’l law.

· Law became more authoritative rather than politically motivated (because judges were sitting).

· Court comprised of judges, not politicians and arbitrators.

Arbitration – rests on consent of states – set up by treaties and jurisdiction accepted through contractual obligations.

10.4 The new law: an overview

Law since WWII and UN Charter has a few important features:

· A general obligation to settle legal or political disputes peacefully (with general ban on use of force).

o As a result, states have increasingly resorted to and sometimes strengthened traditional dispute settlement mechanisms.

o Principal bodies of UN (SC and GA) have handled disputes likely to jeopardize peace.

· In some areas (particularly int’l trade), states have crafted compulsory mechanisms, similar to adjudication.

· States have realized that in many areas dispute settlement should be replaced by mechanisms designed to monitor compliance with int’l legal standards, thus preventing or deterring deviation from those standards.

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