International Dispute Settlement - Assignment Example

The International Dispute Settlement Introduction Disputes are part of everyday life in any given context; therefore much importance has always been on the available ways to resolve the disputes rather than concentrating on the disputes. According to Merrill’s; “a dispute may be defined as specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another.”International disputes arise when the involved parties in disputes are countries. The most interesting fact is that international disputes are inevitable phenomena. When there exists good relations between the countries, solving of issues becomes an easy undertaking because in this case both states will be willing to consult with each other. Dialogue being the most effective tool therefore takes effect. For instance when a country realizes that the actions of another nation might infringe o violate its own rights, it may begin the resolution process by consulting with the other country. Prior consultation provides the nation being accused with ample time to consider the case being presented to it before preparing and submitting an appropriate response. Question 1 Third party intervention or involvement was not a common or welcome feature in international disputes, at least not until recently. The intervention of third parties was not always used because there were still limited resources both academically and comparatively against which the proceedings and the ruling could be authenticated as applicable and efficient. As a result it was not an area where there was profound understanding and it existed only in writing for instance in the International court of justice statutes it was provided for in article 62 and 63. As a result third party intervention was still approached with caution because there were scant reference rulings that could add some confidence when the requirement of a third party arose. For instance during the proceedings in the International Court of Justice in the case between Libyan Arab and Malta, Italy requested to intervene. It was in the best interest of the case that the third country be involved; therefore the International Court resolved that during any dispute proceedings between two states, a third state may apply to be involved in the case if it feels that its legal interest may be interfered with. Such a decision is purely a matter of choice therefore the third state may, or may not intervene. The most important thing in this kind of litigation is that it requires the involved states. This means that a given state has to get consent from the other state before the need to go before an international court arises. This fact is applicable to all international proceedings. Research as to the exact implications of third party intervention has taken place for a long time since the concept became necessary as an important part of international dispute proceedings. It was however apparent that no state could be coerced to intervene as a third party and it was therefore necessary that third party intervention be approached in the aspect of litigation where intervention was purely out of choice. Intervention is provided for in article 62 of the International Court of Justice, and any state could apply under this provision. If not so a state whose legal interests were affected would depend on article 59. Article 59 had limitations as to how the ruling of the case would be, putting into consideration the third state. However effects to the states not directly in dispute would still be in existence. It is apparent that the limitations exhibited by article 59 prompted the creation of article 62. These limitations particularly became clear during the proceedings of the case involving phosphate lands in Nauru. The role played by Australia in this case and the extent of its involvement prompted the court to resolve that article 59 did not have the necessary legal machinery to ensure that a third party state was accordingly involved for the interest of the case. Intervention gave the third party state to protect its interests as well as ensure that the final ruling did not negatively affect any interested parties. The third party state was able to submit its claims for consideration during the ruling. The aspect of intervention is however not without limitations because the provisions of article 62 and 63 dictate that intervention can only take place in specific circumstances. Therefore the degree to which the interests of the third party state may be protected or even considered are limited within these provisions. The presentations of third party states are not confined to a particular scenario but are numerous and diverse. In such a case the intervention of third party states may not be effectively and efficiently addressed by just the provisions of two articles. Article 63 mainly targets the directions which a particular ruling might take and the subsequent legal implications. The interests of the intervening state may not be directly in question. The intervention stems from the concerns of the third party state on the directions of the ruling. This particularly takes place in a situation where a particular ruling may affect the future proceedings of the court. Article 63 therefore allows any nation to submit any information that the court may rely upon in making its judgements. On the other had article 62 assured of a more direct approach where the intervening state got involved because its legal interests were affected. The increase in the number of curt cases necessitating the intervention of a third party state has shed more light into the area and even led to improvements in the aspect of the actual nature of the intervention. This considers the actual legal organization of this kind of intervention and the objectives and legal implications. The importance of objective during interventions was introduced after the importance became apparent during the proceedings of the case involving Land, Island and Maritime frontier dispute between El Salvador and Honduras where Nicaragua requested to intervene. Nicaragua stated clearly that its objective in the intervention was to protect its legal rights and make the right known to the court. Since then it has been a pre-requisite in any intervention that the intervening party state the objective of the intervention. Article 62 therefore requires that a state whose interests are directly affected by a particular case should define the nature of the interest. The nature of the interest should not have any form of ambiguity but should be very clear with the objectives stated accordingly. In recent times the objectives have been stated with reference to a particular claim where the rights or title of a particular state was violated or compromised. There is now a provision that allows states to intervene without any legal jurisdiction or without being accorded the state of a party in the proceedings. The state may only intervene by merely informing the court of its own interests that may be affected by a particular ruling by the court. However there is still the question as to how the issue of interest can be defined to prevent abuse of the provision. For instance the extent of interest affected that should prompt and necessitate an intervention. However the question has always been whether the intervention should only be limited to amicus curiae or should it extend to include other related factors ad perspectives. It is apparent that the provisions of intervention of third party states in article 62 and 63 are different, it is therefore important to look at some of the reasons that lead to the need for the involvement of a third party state. A state may intervene to put across some of its rights. It is important that the court identifies the specific nature of intervention. The difference existing between the possible instances of intervention is that in the absence of jurisdictional link a state can only intervene when the rulings of a case may implicate the rights of the intervening state negatively. The distinction is however not always straight forward and have often led to the annulment of a particular application. Such instance was observed in 1984 when Italy attempted to intervene in a case by stating that the objective of the intervention was only to protect its rights and not to request for their recognition. The application was subsequently denied because the court could not establish the exact difference between the two. From the Italy case it is important that intervention in any sense is welcomed by the court, and the court is always ready to establish the authenticity of the application. However, the court requires that the intervening state to specify the contents and objectives of its intervention in order to assist the court in decision making. The court will therefore analyze the intervention and determine whether there is enough legal ground to consider the jurisdiction of the intervening state whether in part or in full. Related cases that have been tackled by the court so far indicate the challenge faced when attempting to determine the degree of jurisdiction that should be accorded. The ruling concerning a case involving Land and Maritime boundary dispute between Cameroon and Nigeria, where Nigeria raised the question that the case involved the rights and interest of a third party. It was particularly difficult for the court to determine the extent to which the claims of the third parties would be addressed and how the ultimate ruling would affect the rights and interests of the third parties. There have been concerns however as to whether the rights referred to in article 62 are equivalent to actual legal rights. Third party intervention is allowed in this case when the legal interest of the third party is directly affected by the proceedings of the court. In the case where the rights of the third state are in question the court will invoke its principal of consensual jurisdiction to protect the legal jurisdiction of that state. This kind of consideration was particularly outlined when Nicaragua applied for intervention in the application by Nicaragua case; Nicaragua claimed that its legal interest in the delimitation of maritime interest in the Gulf of Fonseca was in question. Nicaragua’s application was rejected in the context that during application it did not state that it might be having any legal interest in the Gulf of Fonseca. This was the case between Honduras and El Savador. The most important aspect of the third party intervention is that the rights claim by the third party state does not constitute the characteristics of the dispute, but are just concerns put across by the concerned state which may or may not influence the directions of the proceedings depending on the weight of the issues at hand. The involvement of third parties in this context provides solutions to a number of problems. However this kind of legal set up also brings up new challenges which must be eliminated to ensure that the proceedings run smoothly. For instance should be the consideration of the rights of the third party state deter the court from making a ruling it would be unfair for the disputing states who have already consented to the hearing. In this perspective, the third state is therefore mandated to ask the court to reduce its jurisdiction concerning the case in order to accommodate the claims about rights that have been raised. The article 20 of Institute of International Law states that: “If the rights or obligations of the parties involved in the proceedings can be separated from those of the third party state, the court or the tribunal may decide on that part of the dispute relating to these rights and obligations.” Intervention in disputes has been identified as a solution to the kinds of cases where the interests of a third party state are in question, one confusing fact however is the exact nature of the solution provided. For instance in the Nicaragua application case the court ruled with the declaration that the goal of intervention is to protect the legal interests of the third party state. This kind of protection constituted only of the act of informing the court of the rights of the third party state and did not lead to any additional legal proceedings. Therefore the third party state would only limit the extent of the ruling of the court within the borders that would ensure that these rights would in no way violated or ignored in the proceedings and the terminal ruling. This brings another point in question because it presents a big challenge to the court when differentiating and outlining an instance where a state only wants protection of its rights and when a state is merely informing the court of the existence of these rights. Such challenge was encountered during the proceedings of the case between Libya and Malta over the continental shelf. During the case Judge Mosler outlined that it would not be legally right to decide on the case differently just because Italy had applied for intervention. The court however still holds that it would not also be legally acceptable for a third party state whose interests may be affected to be completely ignored in a dispute involving two other states. The legal authenticity of a particular claim is also nullified when the court is given the mandate to decide whether a claim is just for recognition of rights or does it actually involve the protection of rights. The assumption that intervention only served to notify the court about the existence of an additional aspect was adopted by Judge Ago. The Judge considered Italy’s claim to be authentic since it only sought to shed more light on the issues at hand concerning the dispute. There is therefore proof that in a given dispute of which a third state has applied for intervention can take any direction. For instance in the case of Italy the court did not give any conclusive reasons for its rejection of Italy’s application, there is however a clear indication that the basis of the denial was the lack of a jurisdictional connection between Italy’s claim and the contents of the case. Italy in the application did not specify whether it was intending to protect its rights or was just informing the court of the existence of these rights. The resulting ambiguity prompted the court to rule that Italy did not have substantial basis for the claim to qualify for considerations in the proceedings or the ultimate ruling. The problem here was of the court to identify the authenticity of a particular claim by a third party; this is one of the most contentious issues in such cases. This problem even put into question the third party involvement because if the court could not conclusively determine if an intervention was relevant to the dispute or not the there was no point of involving the third state in the first place. It was like an experiment without any control against which the results would be compared and conclusions made. The idea presented creates various concerns because in some instances the claims resented by a third party state may not be included in the dispute. This consideration requires that before the court considers any particular claim it conducts an analysis. In some instances it can be observed that the sole reason for intervention is just the recognition of rights, therefore the court can only approach the case either with the intervening state a party or a non party of the case. In this sense the types of intervention that might be encountered are many since it has been clearly outlined by article 62 that there is a provision that allows a third party state to apply for intervention when it feel that its interests can be affected by the proceedings and the rulings of the case. In such a case the intervention would be almost similar and would prompt for the same legal directives provided for in article 63. The intervening state must therefore provide for the legal backing for its claim which will serve as proof to the court that its interests will be adversely affected by the resolution of the dispute. The aspect of providing a legal backing for a particular claim is always hard. Authentification of a particular claim is only a process that a state should go through before its application for intervention are approved, after the step the particular basis for intervention will not be given much consideration. Question 2 Generally honour is a word clearly stressed upon most importantly in the religious books that form the source of morals and guidance for mankind. Many verses in the Quran speak about honour and dignity for all the children of Adam without any distinctions on the basis of race, color and social status. The aspect of honour in the commissions of inquiry follows the same guidelines. Honour in the aspect of commissions of inquiry refers to the ability of the commissions to protect and uphold dignity for all mankind by ensuring that it uses all the tools and institutions within its reach to establish the truth in situations where human rights has been violated. This includes making use of information provided by third party states in international disputes. Essential interests on the other hand refer to the ability of the commission to consider the important interests of different parties that may be affected during the proceedings or the final ruling in a particular dispute; these issues will be expounded including the role of third party states. The international commissions of inquiry are always established with the aim of digging into the truth surrounding various atrocities against human rights. In the past it was unthinkable for a commission of inquiry to seek truth that may incriminate or contradict the findings of a sovereign state. However commissions of inquiry have advanced to a level that not even a sovereign state can manipulate their operations. This can be demonstrated by the developments that the Hague Convention set up in 1907 have gone through. During the establishment of the convention, operations of the commissions of inquiry were limited to cover only disputes that had nothing to do with honor or essential interests. However today commissions of inquiry can engage in fact finding activities involving honor or essential interests and this mandate has been extended even to non- governmental organizations. Fact-finding by any organization for that matter is governed by its ability to provide credible information, using methodologies that are thorough and perceived as being politically and procedurally fair to the concerned parties. There was therefore a need to come up with guidelines that would govern the procedures that would be followed by any commission of inquiry to promote professionalism and uniformity in operations. The guidelines were subsequently established by the United Nations. As outlined by Nicholas Valticos: “Fact- finding is no longer is no longer a matter of ascertaining the facts in cases involving the interest of two states..... Issues of major importance to both the international community and the states concerned are often at stake. What type of action can be taken in such cases to meet the requirements of the international community while taking account of the susceptibility of the states involved.” Fact finding is an important aspect in the protection human rights, however the challenges associated with fact-finding missions because of the importance of the processes it is involved with and because it is always under the scrutiny of public opinion which the public uses as a way of establishing the authenticity of the various international organizations. The more difficult part is where frequent concerns are raised regarding the actions and essential interests, not forgetting the political and judicial structure of the states in question because these countries are sometimes reluctant to allow the intervention of international communities. Fact-finding is an area marred by challenges because the commissions involved always have to work against so much force which include lack of information, misinformation and manipulation whether the inquires are conducted by international organizations or NGOs. The zeal to establish the truth by international organizations has led to the involvement of third party in the process so that all situations are analysed before any rulings can be made. The most important factor of consideration when deciding if the relevance of a particular application of intervention is whether the claims to rights presented by the third party state have any legal backings. It is therefore upon the court to ensure that materials concerning the proceedings of the dispute should not be accessible to the intervening state until the intervention is approved. This is provided for in article 85 of the rules of court which prevents any third party in a particular case from accessing all the documents pertaining to the case. For instance in a case involving the Philippines, the court denied the Philippines access to important materials of the case in accordance with article 85. The Philippines greatly disagreed with this moved complaining that not allowing any state seeking intervention the access to such documents was similar to denying that state justice. As a result there have been calls for reforms especially in this aspect where lobby groups and countries are arguing that the materials should be made accessible so that the intervening state can establish legal grounds with which to authenticate its claims. One such example came from the British Institute of International and Comparative Law; this organization presented its findings to the international court, requiring it to amend this particular clause. This particular area has severely presented limitations to the proceedings of the court because until the issues of accessed to materials is resolved it is obvious that states will be reluctant to present their disputes to the international court of justice. Before digging deeply in this direction it is important to analyze the implications of involving of third party states in a dispute. The courts position on such matters takes a two sided approach. On one side the court allows for the application of intervention on the grounds that the rights of the applying nation may be greatly affected by the final decision of the court. This can be on the aspect of protection of rights that might be otherwise violated or take the form of a state that is concerned that the rulings and proceedings accorded to this particular case might affect its future relations with the one or both of the states, mostly legal. The other side of consideration is that the intervention may provide the court with additional information with which it can use to arrive at a more efficient ruling. The real challenge is when the court has to decide whether the intervening state has interest in the actual legal proceedings of the dispute or the results of the dispute are the ones that might affect the interest of the state. In the instance that the third state is affected by the direction and he contents of the proceedings, the fact that the rights and obligations presented by the proceedings involve the third party just as it involves the disputing parties. The third party might even go to the extent of seeking separate disputes if it feels that intervention would not sufficiently address the issues it has brought forward. However it should not be ignored that with the presence of a third party, the court will be forced to alter its rulings concerning the dispute once the basis for the dispute has been authenticated and the intervention subsequently authorized. In this perspective the ruling of the court will depend on whether the intervening state has actual interest on the proceedings or if it is just seeking acknowledgement of rights. This prompts the court to either consider the interests presented throughout the proceedings of the case or just in particular processes. There has been a current trend in international courts and tribunals which has seen the increase of the number of cases. This increase has also brought with it new issues which these have to resolve some of which are totally peculiar. The issue at hand is however the fact that if the international courts and tribunals have braced themselves with the necessary procedural requirements to provide remedies for the disputes presented. The increasing commonality in the approach of the cases involved has reduced the capacity of the international courts to tackle new issues in the events that they present themselves. The commonality has presented a situation similar to inbreeding where international courts are more concerned with the common cases presented themselves not considering the fact that with the increasing number of cases resolved there might arise new circumstances. Recently the increase in the number of cases involving disputes for instance the cases reported in the International Investment Agreements filed under the International Center for Investments disputes showed a comparatively downward trend. The slow number might evoke a relief from interested party’s especially international courts. However the fact that there are other avenues that could be followed sends cold chills down the spine of these institutions because it could be that the cases are referred to these avenues. The lack of a proper way to register the cases by these other avenues also creates flaws in the statistics presented. There are several factors that might be considered as the cause of this kind of trend. The role played by international courts have always come under question as to whether they merely involve diplomatic negotiations or if at all they are involved in proceedings that might actually lead to a guilty party being informed of the fact that it is guilty. Certain countries have provided objections for certain cases on the basis of the mandate of the international courts. A country may claim that the international court does not have the sufficient jurisdiction to provide rulings or even conduct the proceedings of a particular case because the provisions in the articles do not address the particulars of a given case. Some nations have even argued that the deliberations of the international courts are attempting to replace the more traditional way of solving cases through diplomacy and mutual agreements. However the basis of the arguments is not substantial since there needs to be some form of statues governing the directions of diplomatic negotiations lest some parties take advantage. Negotiations are an important part of any dispute between countries. Negotiations prevent the nations from taking any offensive actions against each other at least after it has completely proved inapplicable in a given case. The other aspect in international dispute is adjudication. It involves the aspect of refrain from the disputing countries and transfers it to the international court. The question is what situation or condition should provide the need for the transition from one methodology to another. The transition has always been a contentious issue to both the disputing countries and the international courts. Conclusion The third party participation in many disputes has been received by mixed sentiments from various interested parties. The adoption of the third party clause has so far been adopted by other international courts other than the International Court of Justice. The ICSD adopted the third party clause in 2006 in its arbitration rules. These were included when the amendments to Rule 37 were made and procedures that would be followed in case this kind of situation presented itself were provided for. Just like the provisions in the article 62 in the International Court of Justice, the court still retained the mandate to either reject or accept the application for intervention by a third party state. The same procedures are used in the process of determining whether the claims by the third party are authentic or not References Merrils, G. International Dispute Settlement, Cambridge University press, 1998. Walter, S. Initiative for the Asian pacific Deliberations, Oxford University press, 2002. Jeong, H. Peace and Conflict Studies: An Introduction, Oxford University press, 2000. Steiner, J. Goodman, R. International Human Rights in Context: Law, Politics, Morals, 3rd Edition, Oxford University Press, 2008 Read More