1. Chapter 2 ; Peaceful Settlement of Dispute
1.0 The principle of peaceful settlement
• Peaceful settlement of dispute is a cardinal principle of UN
• Purpose of UN among others ; a) to bring about,, by peaceful means, in
conformity with the principle of justice and international law, b)
adjustment or settlement of international dispute which may lead to breach
of international peace
• Article 2 (3) of UN Charter – All members of the UN are obliged to
settle their international disputes by peaceful means in a manner where
international peace, security and justice will not be endangered
• Article 2 (4) of UN Charter – the obligation of member states to refrain
from threat or use of force
• Article 33 of UN Charter – the parties to any international dispute shall
seek a solution by way of negotiation, enquiry, mediation, conciliation,
arbitration, judicial decision, resort to regional agencies or arrangements
or other peaceful mean by their on choice
• Hence Article 2 (3), (4) read together with Article 33 – requires disputing
parties to resort to mechanism provided under the charter and refrain from
threat and use of force
• Means of peaceful settlement of dispute can be divided into
Diplomatic means – retain control over the proposed mean and entitled to
reject or accept the proposed settlement
Legal means – results in binding decision for the parties (arbitration and
judicial settlement)
2.0 Means of peaceful settlement of dispute (Diplomatic Means)
2.1 Negotiation
• Modus operandi ; simplest and easiest from of peaceful settlement
• One of the form of negotiations include consultation ; aims to
prevent harm from happening (when the government anticipate
that a decision or course of action may harm another state,

2. discussion with the affected party can provide a way of preventing
dispute)
• Eg ; Dispute Settlement Understanding (DSU) of the World Trade
Organization which contains in Article 4 (3) an obligation to enter
into consultation in good faith on request
• Effect ; one of the parties acknowledges the claim of the other
party, on occasion, negotiating parties may not acknowledge its
opponent alleged rights but waives its own right for the sake of
friendly relations.
2.2 Mediation
 Negotiation fails – intervention of a third party is a possible means
(suggesting solution, international organization’s role, must enjoy
confidence of both sides)
 Intervention can take two different forms ; good offices and
mediation
 Good offices ; 3rd
party persuades the disputing state to enter into
negotiations, passes messages back and forth and once negotiation
starts – its function ends – this is said that he is contributing ‘good
offices’
 Mediator ; plays a more active role and even involve during the
negotiation period, suggest terms of settlement etc
 Eg of good office ; one contributed by President Roosevelt 1905 to
1906 to end the Russo-Japanese War, UK used its good office to
effect a ceasefire in 1965 in the Rann of Kutch dispute between
India and Pakistan
2.3 Inquiry
• Facts-finding and inquiry – interchangeable methods for
establishing facts of international dispute
• Modus operandi ; takes place after negotiation, disputing parties
will usually appoint an impartial body to conduct an inquiry and
establishing the question of fact

3. • Effect – reducing the tension in the area of disagreement, preparing
means of dispute settlement by identifying the cause (parties not
obliged to accept the finding)
• Eg ; Dogger Bank incident – In 1904, the Russian Baltic fleet, on
its way to the Pacific to engage in the war with Japan, attacked
British fishing vessels operating around the Dogger Bank, in the
mistaken belief that they were Japanese vessels. Parties appointed
a commission of inquiry composed of senior naval officers from
Great Britain, Russia, US, France, Austria for the primary purpose
of finding what actually happened. On the basis of the report,
Russia agreed to pay 65,000euro in compensation
• Recent treaty instruments give power to fact finding commission,
powers to evaluate the facts and to make recommendations (eg ;
1977 Additional Protocol I to the 1949 Geneva Red Cross
Conventions)
• Special agencies may as well, conduct an inquiry (eg ; in
September 1983, the ICAO instructed its Secretary General to
investigate the Korean Air Line Flight KE 007 incident)
2.4 Conciliation
• A process of settling dispute by referring it to a commission of
persons whose task is to establish the facts and to make a report
containing proposals for settlement (does not have a binding
character)
• Differs from facts finding/inquiry ; fact finding/inquiry in finding
the facts and once the facts are established, parties will settle the
dispute on their own, main object on conciliation is – obtaining the
active service of a commission of persons in bringing the parties to
an agreement
• Differs from arbitration/judicial settlement ; no binding obligation
2.5 Arbitration
• The Hague Conventions of 1899 and 1907 established Permanent
Court of Arbitration – neither permanent nor court, consisting
panel of arbitrators (parties to the Hague Conventions can appoint
four individual competent in IL)

4. • General Assembly adopted the ‘Model Rules on Arbitral
Procedures’, prepared by ILC and defined arbitration as – a
procedure for settlement of disputes between states by binding
award on the basis of law and as a result of an undertaking
voluntarily accepted
• Modus operandi
i. Consent – a pre-requisite ; arbitration depends upon the
willingness of the parties to submit the dispute to
adjudication. Can be on ad hoc basis (eg ; St Piere and
Miquelon arbitration (Canada v France) )
ii. Identity of arbitrators, the formulation of questions to be
submitted, the rules of law to be applied, the time limit
within which binding award must be made – must be
mutually agreed, expressed in a special agreement known
as ‘compromis’
iii. Treaty of arbitration – a) a treaty of arbitration may be
concluded or the purpose of settling a particular dispute, b)
a different treaty such as treaty for commercial matters,
provides a clause stating that any difference shall be
determined by arbitration c) two or more states can
conclude a so called general treaty of arbitration stipulating
that all kind of differences shall be settled by this method.
iv. Arbitrator – stated in the special agreement (may agree on
single who may be the head of a third state), mix-
commission
v. Rainbow Warrior case, the UN Secretary General was
called upon to arbitrate for the first time
vi. The law applied by arbitrator ; treaty of arbitration will
specify the principles (usually the general rule of
international law, but may also include principle of equity
or other related rules)
vii. Binding force or arbitral award ; arbitral award is final
unless contrary was provided in the treaty, state may not
execute the award against the state who refused to submit
viii. Arbitration versus court ; main difference – the existence of
party autonomy, a device for leaving the peaceful

5. settlement as much in the hands of the parties (function of
the special agreement)
3.0 Judicial Means (International Court of Justice)
3.1 Composition and Functions
• Principal judicial organ of UN
• Composed of 15 judges elected to nine year terms of office by the
UN General Assembly and Security Council sitting independently
of each other, may not include more than one judge of any
nationality
• Elections are held every three years for one third of the seats,
retiring judges may be re elected, members of the court does not
represent their government but are independent magistrate
• Operates under a statute largely similar to UNC (all member state
are parties to the statute of ICJ)
• Functions ; a) to settle legal dispute in accordance with the
international law (contentious jurisdiction) and b) to give advisory
opinion on legal questions referred to by international agencies and
organs
3.2 Jurisdiction of the court in contentious cases
• Article 34 (1) – only state may be parties in cases before the court
• Article 36 (1) – ‘all cases which the parties refer to it ; both
disputing parties
3.2.1 Consent is the basis of the court’s jurisdiction
• Can be inferred from the conduct of the parties ; Corfu
Channel case, the court inferred consent from the unilateral
application of the applicant state (UK) coupled with
subsequent letters from the other party (Albania) indicating
acceptance of the court’s jurisdiction

6. • No jurisdiction of the legal interest of third states from the
very subject matter of the decision – court will only have
jurisdiction over parties who consent and thus, cannot
decide upon legal interest of third party
Monetory Gold case ; CH – it did not have jurisdiction
because Albania, whose legal interest would form the very
subject matter of the decision, did not consent to the
jurisdiction
3.2.2 Ways of expressing consent
1. Consent given by special agreement (compromise)
Agreement where two or more states agree to refer cases to the
court (eg ; Special Agreement Between Malaysia and Indonesia
Relating to the Case Concerning Sovereignty over Pulau
Ligitan and Sipadan
2. Forum Proragatum
Sort of implied consent given by the respondent state ; when
the state defends the case on the merits without challenging the
jurisdiction of the court
Corfu Channel case
UK brought a claim against Albania before the court by
unilateral application in accordance with Article 40 (1) of the
Statute. It argued that the court had jurisdiction under Article
36 (1) as being a matter which was specifically provided in the
UN Charter on the ground that the Security Council decided to
recommend both UK and Albania to refer the dispute to the
ICJ. CH – although UK sent a unilateral application, the letter
sent by the Albanian government the court’s registrar could be
considered as consent given on the part of Albania
3. Consent given by a compromissory clause in a treaty
Article 36 (1) – matters specially provided for in treaties
State is said to give consent by providing a jurisdictional clause
in any treaty, to refer the dispute be it a general treaty of
peaceful settlement of dispute or other topics before the court.

7. Tehran Hostage case – the court accepted jurisdiction on the
basis of the bilateral Treaty of Amity, Economic Relations and
consular rights between the two parties and the Protocol to the
multilateral Vienna Convention on Diplomatic Relations 1961
4. Accepting compulsory jurisdiction under Article 36 (2)
of the statute
Article 36 (2) – provides for compulsory jurisdiction of the
ICJ, provided that it is voluntary accepted, not obligatory
• The principle of reciprocity
State accepts the jurisdiction of the court under the optional
clause of Article 36 (2) do son only when other state accepts
the same obligation – known as principle of reciprocity
2 aspects ; a) parties to the dispute must have made
declarations under Article 36 (2) for the court to exercise
jurisdiction and b) the court exercises jurisdiction only to the
extent to which the declarations of the parties coincide (court
has jurisdiction over the subject matters common to both
state’s declaration)
• Reservation in accepting compulsory jurisdiction
Article 36 (3) of the Statute – declarations accepting the
compulsory jurisdiction of the court is subjected to reservation
made by states to limit the extent to which the court may
exercise jurisdiction (eg ; Philippines makes a reservation of
dispute concerning its continental shelf (ratione materiae),
some are made ration temporis regarding time limit) – usually
make reservation on domestic matters
• Automatic/ self judging reservations
Some reservation go beyond that – the state itself will
determine whether a matter is a domestic matter or not
Eg ; the Connally reservation of the US to its declaration to
accept compulsory jurisdiction of the ICJ which exclude from
the jurisdiction of the court ‘dispute with regard to matters
which are essentially within the domestic jurisdiction of the US
as determined by the US

8. 3.2.3 Preliminary objection decision on jurisdiction and
admissibility
Court shall have power to decide whether or not it has jurisdiction
over the said dispute
Article 36 (6) – in the event of a dispute as to whether the court has
jurisdiction, the matter shall be settled by the decision of the court
– known as principle of competence de la competence (jurisdiction
to decide jurisdiction)
Usual procedure – file a preliminary objection in response to the
memorial presented by the applicant
Objections to jurisdiction
Denials that the respondent state ever gave its consent to a
particular dispute to be heard by the court / falls under matters
where the jurisdiction of the court is excluded
Objection to admissibility
Contention that the applicant lacks locus standi, local remedies are
not exhausted etc.
Effect of PO – the proceedings on the merit of the case are
suspended and can never be resumed if objection is upheld
3.2.4 Other Incidental Proceeding
Court may initiate other incidental proceeding such as to indicate
provisional measure (interim measures of protection), to allow
intervention an to interpret or revise a judgment
Interim measures of protection (provisional measures)
Article 41 – the power of the court to indicate, if it considers that
circumstance so require, any provisional measures which ought to
be taken to preserve respective rights of either party
Indicated before any question of jurisdiction is decided
La Grand case – the court decided that provisional measures
addressed to the US which had not been complied with, created a
legal obligation, the breach of which give rise to a duty of
reparation

9. Intervention by third states
Article 62 – authorizes a state to intervene if it considers that it has
an interest of a legal nature which may be affected by the decision
in the case
Eg – the court gave Nicaragua permission to intervene in the Land
and maritime Frontier Dispute case – state must prove that it has
right to intervene
Article 63 – entitles a state to intervene as of right when a case
involves the interpretation of a treaty to which it is a party (the
Wimbledon case, Haya de la Torrer case
3.2.5 Procedure
3.2.6 Enforcement of judgment
Judgment of court is final and without appeal
The means of enforcement ; a)self help, b) cooperation of third
state, c) recourse to national courts, d)enforcement through
international organization
Article 94 of UN Charter
1) each member of the UN undertakes to comply with
the decision of ICJ in any case which it is a party
2) if any party fails to comply the obligation, the other
party may have recourse to the SC which may, if it
deem necessary, make recommendations/ decide
upon measure to be taken to give effect to the
judgment
3.3 Advisory Jurisdiction
The court has power to give advisory opinion
Article 96 of UNC
1) GA/SC may request the ICJ to give an advisory opinion on any legal question
2) Other organs of the UN and specialized agencies, if authorize by the GA, may
also request for advisory opinion
Not for states but international organization ; GA/SC

10. No binding force