ICJ OVER INTER-STATE ARBITRATION
[Vol 4/ Issue 1/ November 2018] [ISSN 2394-9295]
Ms. Divya Ann Samuel
Student, LL.M-International Law, University of Glasgow (U.K)
Email ID: firstname.lastname@example.org
There has been a major shift in the inter-state dispute resolution mechanism. Many cases have been referred to the ICJ by States. This is opposed to the earlier practice of referring cases for arbitration. The paper deals with the reasons for such a move. Although nothing can concretely be said to be the exact reasons, this paper tries to light plausible reasons (though not exhaustive) for such a move.
Keywords:– Arbitration, ICJ, Registry, Inter-State
In a globalized world, no matter how much a State tries, it cannot existin isolation. The growing dependence on each other for various resources and in many other economic ways makes it more implausible. Axiomatically,interactions are imbued with disputes. Much reliance has been placed on arbitration for resolution ofdifferent types of disputes, such as investor-State disputes and inter-State disputes. However, with the establishment of the ICJ (earlier PCIJ), the faith seems to have shifted to ‘principal judicial organ’ for inter-State disputes.[i] There may be many reasons that could be attributed to such a move and the following paragraphs discusses such reasons.
Inexperienced Registry and Expensive Set-up. In the words of Sir Robert Jennings, the arbitration agreement never talks about the appointment of Registrar or other auxiliary staff.[ii] The problem in case of inter-state arbitrations isn’t limited to this. The agreement often overlooks the cost of setting-up basic working requirements such as the fax-machines, other basic logistical support.[iii] There are more complex problems such as establishment of bank accounts and some forms of accounting set-ups for remuneration of these staffs.[iv] Often the visual aid supporting equipment must also be facilitated by the parties.[v] The required funding of which must be maintained in books. Some adroitness of the registry plays a very important role in handling these complex problems. Their organizational skill and most importantly experience comes handy, as he acts as a useful link between the Chair and the parties.[vi] The tedious work of translations and communications all rests on the Registry. Thus, the experience and cost-effectiveness surrounding the registry and the staff in case of arbitration is more than that of the well-founded system of the Registry of ICJ.
Publicity. A long practice shows that the cases before the ICJ gains maximum publicity in media reports.[vii] On the contrary, the cases before arbitral tribunals have been a private affair. States prefer to keep the proceedings under tight secrecy. This creates a problem during the implementation phase as the State against whom the judgement is given often flagrantly violates the judgement and as the procedure isn’t in public the stands remain quite unclear. For example, in the private arbitration of the Croatia/Slovenia arbitration award[viii].
Predetermined rules and law. The rules and applicable law is clear in cases before the ICJ. The biggest problem, in arbitral tribunal cases, is when the parties fail to agree on a compromis, as was the case in Beagle Channel case[ix]. In this case, Chile and Argentina both couldn’t agree on the issues to be addressed on the compromis. Consequently, two different propositions were presented before the tribunal. The tribunal passed an order but it was rejected by Argentina on grounds of nullity.
The determination would also involve the number of Judges, the selection of Judges, the applicable rules and also the applicable law in case of arbitration. The difficulty is significantly reduced when the rules of PCA acts as a facilitator or the Secretary General’s discretion is used to avoid the deadlock for selecting Judges. But the issue gets complicated when the States explicitly provide for the applicable law along with the scope of the jurisdiction in compromis and the tribunal is unable to determine the dispute based on the compromis. Similar problem related to the scope arose in the boundary demarcation between Egypt and Israel on the location of the pillars between the States.[x] The tribunal was explicitly asked to determine the location of the boundary pillar based either on Egypt’s submission or Israel’s submission. It could not determine anything beyond this or evaluate other circumstances. The compromis remained silent on the applicable law as well, but the tribunal decided to rule as per the norms of international law.[xi]
Independence and impartiality issue. Croatia/Slovenia[xii] arbitration is a classic example on this point. Historically, the world has been sympathetic towards the States that have got the judgement in their favor but have failed to implement it because of the non-compliance by the other State. This case being an exception to the extent that the world has been sympathetic towards Croatia more than towards Slovenia due to the grave breach of the basic principle of fair trial in any judicial system. The degree of breach has been so enormous that the remedial measures of the tribunal did nothing to restore the faith. The position would have been different if the tribunal was reconstituted from the beginning.
No such problem has surfaced with the proceedings before the ICJ and (keeping an optimistic view) it is not foreseeable.
Intervention by third parties. The intervention by third parties can be claimed as a right in ICJ cases but not in the cases of arbitral tribunals. For example, in case of disputes over multilateral treaty obligations, not just the disputing States but other State parties to the treaty can participate and effectively present their cases before the ICJ as matter of right under Article 63 of the Statute.
On the other hand, the parties can exclusively exclude the third parties from intervening.[xiii]
The State referral of the cases to the ICJ over the referral to arbitral tribunals seems to be reasonably grounded on the facts mentioned above. To conclude, the procedural ease in case of ICJ, the impeccable character of the ICJ judges and the fair procedure makes it the preferred judicial dispute settlement mechanism.
[i] See J.J. Van Haersolte-Van Hoff, The Revitalization of the Permanent Court of Arbitration’, (2007) NILR 400
[ii]Jennings, The Difference between Conducting a Case in the ICJ and in an ad hoc Arbitration Tribunal. An Inside View, in: Ando et al. (eds.),Liber A 2002), Liber Amicorum Judge Shigeru Oda 893-909
[iv]Supra n. ii
[v]See supra n. ii
[vi]See supra n. ii
[vii]See https://www.icj-cij.org/en/press-releases for list of press releases by the Court of all the cases
[viii]Arbitration between the Republic of Croatia and the Republic of Slovenia, Partial Award, 30 June 2016
[ix]Case concerning a dispute between Argentina and Chile concerning the Beagle Channel, Award rendered by Arbitral Tribunal on February 18, 1977
[x]Case Concerning the location of boundary markers in Taba between Egypt and Israel, 1988, 20 RIAA, 1
[xi] Y. Tanaka, The Peaceful Settlement of International Disputes (Cambridge, 2018) 118
[xii]Supra, n. viii
[xiii]Supra, n. x
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