International Adjudication of Disputes- A viable method or merely an illusion to settle disputes?

The Author, Udita Dalal, is a final year student of LL.B. at O.P. Jindal Global University, NCR.

INTRODUCTION

Peace and harmony have always been the moto of predominant international organisations like the United Nations (UN), who aspire to bind all the nations together. However, keeping in mind the day to day functioning of the nations it is very idealistic for one to assume the smooth execution of affairs, without facing any roadblock. When nations interact with each other on international grounds, differences become an inevitable part of the interaction which eventually turns into disputes, becoming an indispensable part of international relations. The prevalence of disputes gives rise to dispute settlement systems like the International Court of Justice (ICJ).

Most of the scholars are of the view that international courts and arbitrations are the most promising platforms to resolve disputes, like the position held by courts in a domestic legal setup.^[1] However, Article 33 of the UN Charter lays down different ways of settling disputes which are mediation, negotiation, arbitration, and ICJ.^[2]

These methods are further divided into two broad categories i.e. compulsory/legal methods and non-compulsory/conciliatory methods^[3]. Legal methods include Arbitration and ICJ, whereas the conciliatory methods include Negotiation and Mediation. The only difference between the two methods being that the former has a binding force while the latter only has a persuasive value attached to it. Article 94(1) of the UN Charter imposes an obligation on the parties to the dispute to comply with the decision of the International Court in every case they have agreed to be a part of.^[4] The above-mentioned article also provides for a safeguard provision. Article 94(2) gives power to the judgment creditor to approach the Security Council and ask them to take necessary actions against the judgment debtor for the non-compliance of the judgment.

However, these provisions only exist in the books of law without holding any binding force in the real world. Time and again parties have flouted judgments passed by the ICJ, without bearing any consequences for the same. Hence, adjudication is deemed to be the least preferred option to settle international disputes. This paper thus revolves around firstly, highlighting the fallacies attached with considering international adjudication as the perfect medium to resolve disputes. Secondly, busting the myth that international adjudication is analogous to its domestic counterpart and lastly, the alternatives that can be adopted to better the system.

INTERNATIONAL COURTS- NOT A FRUITFUL REMEDY

1. Non-Compliance of the judgment

Once a judgment is passed by ICJ the parties to the dispute are expected to comply with the decision taken by the court in good faith, as they have willingly submitted to the jurisdiction of the court. Good faith as defined by ICJ is a duty to abide by the decision of the court irrespective of the situation it puts you in.^[5] However, things are completely different in practice as the parties if aggrieved does not shy away from defying the judgment passed by the court. Defiance includes wholesome rejection of the claims put forth and an over denial to comply with the judgment so passed. This can be further elucidated by the case of Nicaragua v The United States of America^[6] wherein the USA refused to appear at the merits phase and denied to comply with the judgment of the court.^[7]

Moreover, it would not be incorrect to say that the interpretation of the judgment for the judgment creditor would be different from the one held by the judgment debtor/non-complier. Sometimes the judgments passed by the court are so ambiguous in nature that it gives rise to multiple interpretations, thus compromising objectivity except in few cases which show deliberate disregard to the judgment. In others, even if the party tries to respect the judgment it is subject to, it cannot because of unavoidable external factors.

Many times, states are bound by the principle of state necessity or state responsibility, which are sacrosanct and cannot be breached. Such principles in turn outweigh the judgment and prevail in substance.^[8] Therefore, it is not the judgment debtor who is to be blamed all the time for the non-compliance; the court also plays a significant role in determining the outcome of its judgment.

2. Non-settlement of disputes

The primary purpose of an adjudicatory body is to settle the disputes. However, the international adjudicatory body differs a bit in its opinion. The international body rather than focusing on settling the disputes between the parties and helping them hold a friendly relationship focuses on settling the legal question of law. Expounding the law and reiterating the already laid down legal procedure does not always help in settling the disputes between the parties involved.^[9] The biggest issue with the adversarial form of justice is that it settles legal questions but fails to solve the underlying legal dispute. This can be better understood with the help of Beagle Channel case^[10] which arose between Argentina and Chile and was referred to Arbitration. The award when given by the tribunal, handed all the disputed land, islands to Chile. Aggrieved by the decision Argentina retaliated furiously by invading the Beagle islands and Chile. The fight between the two nations continued for almost 9 years starting from 1971 till 1979. The dispute was put to rest after both the countries agreed to go for mediation and eventually signed the treaty of peace and friendship in 1979.^[11] Notably, the Tribunal in this case demarcated the same boundaries as done by the treaty but it failed to address the Argentinian concerns.

The Tribunal though succeeded in answering the legal question of law with perfection but failed to settle the dispute in hand. The Beagle channel case is a one-off instance, which happens rarely, still it is not incorrect to deduce that the international adjudication system is not well equipped to settle the dispute^[12]. Deviating from its primary goal and devoting its maximum time on the development of law, defeats the entire purpose of its existence. In addition to this, many scholars have argued that the better way to adjudicate international disputes is to be more receptive towards including the policy arguments made by the litigants rather than vehemently emphasising on answering the legal questions of law.^[13] In other words, the courts are required to take a softer, more diplomatic stance, so that it can accommodate the needs of both the parties. However, the problem that still persists is that even if the court adopts a more lenient path to adjudicate the case, which is highly unlikely, still it cannot change the basic nature of litigation which is adversarial in conduct.

3. Litigation leads to resentment

One of the biggest critiques of adjudication is its adversarial nature. The act of bringing a case by one state against the other is considered to be an unfriendly act rather than a step towards resolving the dispute. It leads to germination of a new dispute or aggravation of the already existing one. The state which loses the litigation acts resentfully towards the winning state, further escalating the differences between the two states.^[14]

The very nature of litigation being adversarial makes it an unreliable method to resolve disputes. Courts/tribunals always decide in binary terms of right or wrong, which is an integral part of litigation. The judges are bound to pick a side and pass a judgment accordingly. This ends up creating a lot of problems in the international sphere as at an international level everything depends upon the friendly relationship shared by the nations; litigation on the contrary does not seem to be in support of that. However, in common parlance litigation is considered to be an amicable act for reconciling the differences.

Further, The Manila Declaration on the Peaceful Settlement of International Disputes clearly says “Recourse to judicial settlement of legal disputes, particularly referral to the International Court of Justice, should not be considered an unfriendly act between States”.^[15] However, in practicality such an act is considered to be a condemnable one.

4. Bias may affect the neutrality of Adjudication

The assumption attached to the entire process of adjudication is that the judges or the arbitrators will be impartial in their conduct. However, this is the not the case all the time, the appointment of the judges or the arbitrators may be influenced by numerous political factors. Moreover, the judges/arbitrators of the international courts/tribunals belong to a particular nationality and it would not be wrong to assume that the judges/arbitrators might have preconceived notions for or against the states who are party to the dispute.^[16] This ultimately affects the outcome of the dispute and snatches away the neutrality linked with the process of adjudication. Scholars of international law have even commented that the international courts are getting more “western oriented”^[17].

This is the biggest reason why courts are being asked to take up matters which apply broader and well-defined principles of law and where the court does not have to put in its own mind such as matters like the Hostage crisis wherein the courts do not have to give its own interpretation while applying the law as the laws governing the situation are quite clear and unequivocal and don’t need any further elucidation. However, the situation is completely different in matters which involve public policy, equity etc. wherein the law is not that closely knit and allows for multiple interpretations, letting the judge pick a side. Thus, it is virtually impossible to keep politics and international adjudication independent of each other. This is what makes international adjudication less effective and unanalogous to its domestic counterpart.

The next part of the paper will be dealing with the operational differences set out in both the regimes and how adjudication is so conducive in a domestic setup while being not so conducive in the international setup.

INTERNATIONAL ADJUDICATION NOT ANALOGOUS TO ITS DOMESTIC COUNTERPART

Advocates of international adjudication are wrong in considering international and domestic adjudication analogous to each other. No doubt there are similarities between the two regimes, but the differences overpower the similarities, making them unanalogous. Compared to domestic courts, international courts are still at a developing stage and are facing the same problems since decades. The International courts have failed to overcome the basic problems like compulsory jurisdiction, inaccessibility to courts etc, which in turn hinders their progress^[18]. Unlike domestic courts, international courts do not have the power of compulsory jurisdiction. For example, courts in India have the power to take suo moto cognizance over a particular matter without waiting for anyone to submit to its jurisdiction. Article 32 and 226 of the Indian constitution allow the courts to take suo moto cognizance over any matter affecting the public at large.

On the contrary Article 36 of Statute of the ICJ provides for compulsory jurisdiction only with the consent of the parties to the dispute. The ICJ does not have any authority to take up the dispute between the states if they refuse to submit to the jurisdiction of the Court.^[19] In addition, international law is really ambiguous as it does not have well defined legal principles as in domestic laws, which makes the litigation cumbersome. This is the reason why states show reluctance in approaching the international court/tribunal.^[20] Another major problem inherent to the process of international adjudication is that they never focus on giving desired remedies, which should be the end goal, especially for any international adjudicatory body which deals with high stake matters, governing relationship between two sovereign states^[21].

The endeavour should always be to help both the states, i.e. parties to the dispute, maintain a healthy, congenial relationship. For international courts, restitution should be the primary recourse but they rarely resort to it. On the contrary, they believe that the judgment passed by them is good enough to dictate the relationship between the two parties, which is fundamentally flawed and leads to undesired outcomes.^[22] International courts can neither give permanent injunctions nor correct an inconsistent law, forcing them to rely on already laid down laws and judicial decisions, thus making it difficult to cope with the changes in the society.^[23]

Another major issue with international adjudication is the non-enforcement of judgments, as discussed previously. The idea that the judgments of the international courts will end the dispute between the parties, just like in the domestic setup, is a misnomer. There is very little or no enforcement of ICJ decisions in practice. The UN charter tries to give finality to the decisions of ICJ, by making requisite laws for it but in practice it’s a mere illusion.^[24] Voluntary compliance is the norm in international affairs; states abide by the judgment only if they feel it is beneficial for them and will improve their standing in the international fraternity.^[25] Self-governance was and will always remain the cornerstone of international practice.

ALTERNATIVES TO ADJUDICATION

In contrast to adjudication, negotiation and other conciliatory practices help in settling the international disputes in a better possible way. It is said so because firstly they are not adversarial in nature and provide levy to both the parties to accommodate their own personal interests, while simultaneously reconciling the differences with each other. Secondly, courts always focus on right or wrong while the negotiators are better equipped to come up with more flexible and novel solutions to a problem. Unlike adjudication, conciliatory practices always aim at settling the dispute between the parties rather than explaining the law. It is a process which is completely based on compromise and agreement while avoiding any sort of disagreement. Moreover, Article 33 of the UN Charter provides for negotiating the dispute between the parties without any third-party involvement (like judges or arbitrators) or any external interference, which further enables the parties to monitor each and every phase of the dispute, while choosing the most appropriate process to negotiate as per their convenience.^[26]

Another advantage attributed to negotiation in Manila Declaration is ‘Effectiveness’^[27]. Though negotiations are never binding in nature, they always end up solving the disputes between the parties. The biggest reason why negotiations are not binding in nature is that binding force puts an obligation on either of the party to compulsorily comply with the directions given in the judgment, which further leads to discord between the parties and defeats the entire purpose of coming together and solving the dispute. The driving force behind all negotiations is cooperation and if there is no cooperation amongst the parties, negotiation fails. Further, conciliatory methods are less resource intensive as there is no requirement of lawyers, judges or arbitrators to settle the dispute, presence of both the parties will be enough to solve the problem. This in turn increases its accessibility for states and also provides for privacy.

Moreover, the ease to settle disputes provided by these methods, while safeguarding the privacy of both the parties, encourages the states to bring their personal issues to the table, which they hesitate to submit to any international adjudicatory body, because of the attention it draws. It is true to say that reliance on conciliatory methods will deter the development of international law but that is not a good enough reason for not resorting to conciliatory practices when it has other added advantages. The main purpose of international dispute settlement mechanism is solving the underlying dispute and not development of international law. Thus, propagating that the states should resolve their disputes through adjudication and in a more legalised way, just because it helps in development of international law is like exonerating a murderer by accepting his defence of anger. Doing this is similar to setting a wrong precedence and going against the very idea of providing justice.^[28]

CONCLUSION

The very idea that adjudication is the best form of dispute resolution is fundamentally flawed and there are plenty of reasons to believe so. Firstly, Adjudication never focuses on settling the dispute but merely focuses on settling the legal questions of law. Moreover, international relations are really fragile and shall always be dealt with utmost caution and precaution. The best way to solve international disputes is with cooperation and comprise, which is absent in the adjudicatory form of dispute resolution. Thus, the belief that adjudication is the universally accepted best method to settle disputes, is wrong in totality.

Secondly, in practice, adjudication is considered to be the last resort to settle disputes, once everything else fails. It is so because filing a suit against a state is considered to be an unfriendly act by the entire community. Further, adjudication leads to resentment for one party as the courts/tribunals always think in binary terms of right and wrong and that process antagonises one of the parties.

Thirdly, the belief that the idea of ‘right over might’^[29] can only be achieved through adjudication as it keeps power politics out of the picture is flawed altogether. Scholars believe that courts while passing the judgments only focus on the law while keeping their political dispositions aside, is also flawed.^[30] Power politics is an inevitable and an integral part of international affairs, which cannot be rooted out by a particular type of dispute resolution method. However, what can be done is adopting a method which overarches this deep-rooted problem and works towards settling the dispute amicably.

Lastly, drawing an analogy with the working of the domestic courts is also a flawed idea. Domestic courts have finality in their decision which becomes binding on the party to the disputes; which is not a feature that can be attributed to international courts. Though, there are laws which demand the compliance of the parties to the dispute but it is contingent on the position of the states in the international sphere, their responsibility towards their own people, the advantages/disadvantages attached to it and various other factors. Further, international courts lack compulsory jurisdiction which becomes utterly important in certain cases, in order to uphold the principles of justice. Therefore, instead of devoting so much time on highlighting the flawed importance of adjudication in international affairs, scholars should rather devote some time devising a better and more effective method in consonance with the conciliatory practices.

References:

^[1]ADJUDICATION FALLACIES: THE ROLE OF INTERNATIONAL COURTS IN INTERSTATE DISPUTE SETTLEMENT, VITALIUS TUMONIS

^[2]UN CHARTER, art. 33.

^[3]JOHN G. MERILLS, INTERNATIONAL DISPUTE SETTLEMENT 177 (2005), ADJUDICATION FALLACIES: THE ROLE OF INTERNATIONAL COURTS IN INTERSTATE DISPUTE SETTLEMENT, VITALIUS TUMONIS

^[4]UN CHARTER, art. 94, Chapter XIV

^[5]Gabcíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 1, paras 141–147.

^[6]Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), Provisional Measures [1984] ICJ Rep 169; Jurisdiction and Admissibility [1984] ICJ Rep 392; Merits [1986] ICJ Rep14.

^[7]Jurisdiction and Compliance in Recent Decisions of the International Court of Justice

Aloysius P. Llamzon, European Journal of International Law, Volume 18, Issue 5, November 2007, Pages 815–852, 01 November 2007.

^[8]Ibid.

^[9]ADJUDICATION FALLACIES: THE ROLE OF INTERNATIONAL COURTS IN INTERSTATE DISPUTE SETTLEMENT, VITALIUS TUMONIS [ADJUDICATION]

^[10]Dispute between Argentina and Chile concerning the Beagle Channel, 18 February 1977, VOLUME XXI pp.53-264.

^[11]ADJUDICATION, supra, note 9

^[12]Richard A. Falk, Realistic Horizons for International Adjudication, 11 VA. J. INT’L L.314, 321 (1970–71) (judicial settlement can resolve only “pure disputes” which do not reflect underlying tension).

^[13]Elihu Lauterpacht, The International Lawyer as a Judge, in THE INTERNATIONAL LAWYER AS PRACTITIONER135 (2000), at 133-34

^[14]ADJUDICATION, supra, note 9,

^[15]Manila Declaration on the Peaceful Settlement of International Disputes, U.N. G.A. Res. 37/10, (68th plenary meeting), 51 U.N. GAOR Supp. 261, U.N. Doc. A/37/51 (Nov. 15, 1982)

^[16]International Dispute Settlement and the Role of International Adjudication, Richard B. Bilder [Richard]

^[17]Ibid.

^[18]ADJUDICATION, supra, note 9.

^[19]Statute of International Court of Justice, art. 36

^[20]JOHN G. MERILLS, INTERNATIONAL DISPUTE SETTLEMENT 177 (2005), See also ADJUDICATION, supra, note 9

^[21]ADJUDICATION, supra, note 9

^[22]Christian Tomuschat, Reparation in Cases of Genocide, 5 J. INT’L CRIMINAL JUST. 905 (2007); Andrea Gattini, Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment, 18 EUR. J. INT’L L. 706, 707 (2007).

^[23]Robert Keohane, Andrew Moravcsik, & Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 INT. ORG. 457 (2000), at 458

^[24]U.N. Charter, art. 94

^[25]CONSTANZE SCHULTE, COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE (2005); Aloysius P. Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of Justice, 18 EUR. J. INT’L L.815 (2007); Attila Tanzi, Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations, 6 EUR. J. INT’L L. 539 (1995).

^[26]PEACEFUL SETTLEMENT OF DISPUTES, Abdualla Mohamed Hamza, Miomir Todorovic, Union Nikola Tesla University, Department for Postgraduate Studies, Ph.D Candidate, Libya. Knez Mihaljeva Street, Belgrade, Serbia

^[27]Manila Declaration on the Peaceful Settlement of International Disputes, U.N. G.A. Res. 37/10, (68th plenary meeting), 51 U.N. GAOR Supp. 261, U.N. Doc. A/37/51 (Nov. 15, 1982) (Part II(5)). Part I(1) also states that States “shall live together in peace with one another as good neighbours.”

^[28]ADJUDICATION, supra, note 9, at page 62.

^[29]ADJUDICATION, supra, note 9

^[30]Ibid.

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