International dispute settlement

P1: ICD/GKJ

052184083Xagg.xml CY478B-Brocket 0 521 84083 X February 25, 2005 9:2

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INTERNATIONAL DISPUTE

SETTLEMENT

A completely updated edition of a definitive survey of the peaceful set￾tlement of disputes – a key aspect of international law and international

relations. Many methods of handling such disputes have been developed,

and this book explains what the relevant techniques and institutions are,

how they work and when they are used.

Separate chapters cover the various diplomatic methods (negotiation,

mediation, inquiry and conciliation), the legal methods (arbitration and

judicial settlement), the special arrangements for disputes concerning

trade or the law of the sea, and the role of the United Nations and re￾gional organisations. The strengths and limitations of each method are

illustrated with numerous examples taken from international practice.

This new edition deals with many current developments, including

the latest UN peace-keeping operations, the work of the WTO and of the

International Tribunal for the Law of the Sea, and the latest case-law of the

International Court of Justice.

j. g. merrills is Edward Bramley Professor of Law at Sheffield

University.

INTERNATIONAL DISPUTE

SETTLEMENT

J. G. MERRILLS

University of Sheffield

FOURTH EDITION

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK

First published in print format

isbn-13 978-0-521-85250-0

isbn-13 978-0-521-61782-6

isbn-13 978-0-511-13533-0

© J. G. Merrills 2005

2005

Information on this title: www.cambridge.org/9780521852500

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place

without the written permission of Cambridge University Press.

isbn-10 0-511-13533-5

isbn-10 0-521-85250-1

isbn-10 0-521-61782-0

Cambridge University Press has no responsibility for the persistence or accuracy of urls

for external or third-party internet websites referred to in this publication, and does not

guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org

hardback

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CONTENTS

Preface page ix

Table of cases xi

Table of treaties and agreements xvii

List of abbreviations xxv

List of websites xxvii

1 Negotiation 1

Consultation 3

Forms of negotiation 8

Substantive aspects of negotiation 12

Negotiation and adjudication 18

Limitations of negotiation 23

2 Mediation 28

Mediators 29

Consent to mediation 32

Functions of mediation 36

The limits of mediation 41

3 Inquiry 45

The 1899 Hague Convention 46

The Dogger Bank inquiry 47

Inquiries under the 1907 Hague Convention 49

Treaty practice 1911–1940 52

The Red Crusader inquiry 53

The Letelier and Moffitt case 56

The value of inquiry 59

4 Conciliation 64

The emergence of conciliation 64

v

vi contents

The work of commissions of conciliation 67

The practice of conciliation 72

The place of conciliation in modern treaty law 77

Further developments 82

The significance of conciliation 87

5 Arbitration 91

Forms of arbitration 91

The selection of arbitrators 95

Terms of reference 98

Basis of the decision 104

Effect of the award 110

Private international arbitration 117

The utility of arbitration 121

6 The International Court I: Organisation

and procedure 127

Contentious jurisdiction 127

Jurisdictional disputes 130

Incidental jurisdiction 136

Advisory jurisdiction 145

Membership of the Court 147

Chambers 150

7 The International Court II: The work of the Court 156

The Court’s decision 156

Extension of the Court’s function 161

Legal and political disputes 166

The effect of judgments 171

The significance of the Court 176

8 The Law of the Sea Convention 182

The Convention and its system 182

The principle of compulsory settlement 184

Exceptions to the principle of compulsory settlement 187

Conciliation 190

Arbitration 193

Special arbitration 196

The International Tribunal for the Law of the Sea 198

The Sea-Bed Disputes Chamber 200

Inaugurating ITLOS 203

The significance of the Convention 206

contents vii

9 International trade disputes 211

From GATT (1947) to the World Trade Organization 211

The Dispute Settlement Understanding 213

Consultations 215

Good offices, conciliation and mediation 216

Panel proceedings 219

Appellate review 223

Implementation of rulings and recommendations 228

Arbitration 231

The WTO system in context 233

10 The United Nations 237

The machinery of the Organization 238

The work of the Security Council and

General Assembly 240

The role of the Secretary-General 244

The political organs and the International Court 250

Peace-keeping operations 256

Action under Chapter VII 263

Are decisions of the political organs open to

legal challenge? 268

The effectiveness of the United Nations 272

11 Regional organisations 279

The range of regional organisations 279

The role of regional organisations in disputes 287

Limitations of regional organisations 294

Regional organisations and adjudication 298

Regional organisations and the United Nations 303

12 Trends and prospects 308

Dispute settlement today 308

A political perspective 311

A legal perspective 315

Improving the capacity of political methods 321

Improving the capacity of legal methods 327

Conclusion 334

Appendices 336

A. Agreement between Argentina and the United Kingdom

establishing an Interim Reciprocal Information and

Consultation System, 1990 336

viii contents

B. Report of the Commission of Inquiry into the Red Crusader

Incident, 1962 (extract) 338

C. Conciliation Commission on the Continental Shelf Area

between Iceland and Jan Mayen, May 1981 340

D. Arbitration Agreement between the United Kingdom and

France, July 1975 342

E. Special Agreement for Submission to the International

Court of Justice of the Differences Between the Republic of

Hungary and the Slovak Republic Concerning the

Gabcikovo-Nagymaros Project (1993) 346

F. Optional Clause Declarations (Cameroon, Nigeria and

Australia) 349

G. WTO: Rules of Conduct for the Understanding on Rules and

Procedures Governing the Settlement of Disputes

(extract) 352

H. Security Council Resolution 915, establishing UNASOG,

May 1994 353

I. Terms of Reference of the Trust Fund for the International

Tribunal for the Law of the Sea (2000) 355

J. Ruling Pertaining to the Differences between France and

New Zealand Arising from the Rainbow Warrior Affair

(extract) 358

K. CIS: Concept for Prevention and Settlement of Conflicts in

the Territory of States members of the Commonwealth of

Independent States (1996) 362

Index 369

PREFACE

Since the third edition of this book was published in 1998 there have been

many developments with a direct bearing on its subject. The ending of

the Cold War and the consequent changes in Eastern Europe continue

to affect both the evolution of regional organisations in Europe and the

work of the United Nations. The World Trade Organization, a relatively

newcomer seven years ago, is now firmly established and its arrangements

for dispute settlement are widely used. The complex system set up by the

1982 Law of the Sea Convention has also started to function as cases

have been taken to the International Tribunal for the Law of the Sea or

to arbitration. The International Court of Justice is busier now than at

any time in its history, and both regional organisations and the United

Nations have shown initiative in addressing disputes at the political level.

It must, of course, also be noted that in 2003 Iraq was invaded without

Security Council authorisation, thereby demonstrating the limitations of

the Charter system of collective security and reminding us, yet again, of

the distance to be travelled, if its provisions for dealing with the most

serious disputes and situations are to be effective.

The aim of this new edition is to examine the techniques and institu￾tions available to states for the peaceful settlement of disputes, taking full

account of recent developments. Chapters 1 to 4 examine the so-called

‘diplomatic’ means of settlement: negotiation, where matters are entirely

in the hands of the parties, then mediation, inquiry and conciliation, in

each of which outside assistance is utilised. Chapters 5 to 7 deal with legal

means, namely arbitration and judicial settlement through the Interna￾tional Court, where the object is to provide a legally binding decision. To

underline the interaction of legal and diplomatic means and to show how

they are used in specific contexts, Chapter 8 reviews the arrangements

for dispute settlement in the Law of the Sea Convention and Chapter 9

considers the provisions of the World Trade Organization’s very impor￾tant Dispute Settlement Understanding. The final part considers the role

of political institutions, the United Nations (Chapter 10) and regional

ix

x preface

organisations (Chapter 11), while the final chapter reviews the current

situation and offers some thoughts for the future.

Those familiar with the previous edition will find significant new ma￾terial in every chapter, including references to recent arbitrations, to the

developing practice of the International Tribunal for the Law of the Sea,

the jurisprudence of the International Court of Justice and practice under

the WTO system, as well as new political material relating to peace-keeping

and other activities of regional organisations and the UN. In discussing

the various techniques and institutions my object has remained to explain

what they are, how they work and when they are used. As before, I have

sought to include enough references to the relevant literature to enable

the reader to follow up any points of particular interest. With a similar

objective I have retained and updated the appendices setting out extracts

from some of the documents mentioned in the text.

For permission to quote the material in the appendices I am again

grateful to the editors of the International Law Reports. My thanks are

also due to Julie Prescott at the University of Sheffield for preparing the

manuscript, to Finola O’Sullivan and Jane O’Regan at Cambridge Uni￾versity Press, and to my wife, Dariel, whose encouragement, as always,

was invaluable.

TABLE OF CASES

Aegean Sea Continental Shelf Case

Interim Protection (1976), 138, 240, 300

Judgment (1978), 17–18, 21–2, 167–8, 176, 249

Aerial Incident Case (1996), 23n36

Aerial Incident Case (2000), 132, 134

Air Transport Arbitrations (1983, 1975, 1978), 123

Alabama Claims Case (1871/2), 94, 101, 104–5

Aland Islands Inquiry (1921), 60

Ambatielos Case (1953), 171

AMINOIL Case (1982), 119, 120

ARAMCO Case (1958), 119

Arbitral Award Case (1960), 113–14, 116–17, 126, 173, 288n26, 299

Arbitral Award Case (1991), 114–15

Arrest Warrant Case (2002), 129, 160, 179n55

Article XXVIII Rights Case (1990), 231–2

Asylum Case (1950), 178

Avena Case (2004), 128n2

Beagle Channel Award (1977), 30, 33, 34, 38, 43, 93, 100–1, 104, 116,

126

Ben Bella Case (1958), 73–4, 75, 89

Bering Sea Arbitration (1893), 108

Bolivar Railway Company Claim (1903), 92

Border and Transborder Armed Actions Case (1988), 18, 77n31, 131n11,

290n33, 300, 302

BP v. Libya (1973), 105, 113, 115, 119n75

Brcko Arbitration (1999), 108, 122

Buraimi Arbitration (1955), 115

Carthage Case (1913), 49n8

Case No. A/18 (Iran–US Claims Tribunal, 1984), 103

Certain Criminal Proceedings in France Case (2002/3), 130n8

Chaco Inquiry (1929), 67–9, 72–5, 89, 289

xi

xii table of cases

Chaisiri Reefer 2 Case (2001), 206

Channel Arbitration (1977/8), 95, 102, 104, 110, 111, 113, 122, 173

Chorzów Factory Case (1927/8), 21n34, 58

Clipperton Island Case (1931), 93

Conditions of Admission of a State to Membership in the United Nations

Advisory Opinion (1948), 167n29

Construction of a Wall Advisory Opinion (2004), 146–8, 169n53, 243,

255

Copper Case (1987), 218

Corfu Channel Case

Merits (1949), 158, 240, 243

Danube Case (1997), 26, 346–9

Diplomatic Staff in Tehran Case (1980), 18–19, 20, 23, 36–7, 158–70,

175–6, 244, 252, 255, 313, 319–20

Dogger Bank Inquiry (1905), 47–50, 53, 59, 63

Dubai/Sharjah Boundary Arbitration (1981), 98n25, 99n27

East African Community Case (1981), 71–2, 73, 74, 76, 77, 89

East Timor Case (1995), 135–6

ELSI (Elettronica Sicula SpA) Case (1989), 152–4

Eritrea/Yemen Arbitration (1998/9), see Red Sea Islands Arbitration

European Communities – Bananas Case (1997), 227

European Communities – Beef Hormones Case (1998), 230

Expenses Case (1962), 270n80

Fisheries Jurisdiction Case (1998), 132

Fisheries Jurisdiction Cases (1973/4), 13, 25n39, 26, 131, 161, 164, 165,

175

Franco-Siamese Frontier Case (1947), 68–9, 72–5, 89

Franco-Swiss Internment Case (1955), 66, 69–70, 73, 76, 78, 88

Free Zones Arbitration (1933), 108, 110

Frontier Dispute Case

Judgment (1986), 152–3, 163, 165

Nomination of Experts (1987), 173

Provisional Measures (1986), 137–8

Gabcikovo-Nagymaros Case (1997), 26n43, 130, 156, 160, 174, 346–9

Gasoline Standards Case (1996), 225–6

Genocide Convention Case

Provisional Measures (1993), 149n60, 254–5, 269

Preliminary Objections (1996), 131–2, 143

Counter-Claims Order (1997), 144–5

Applications for Revision (2003), 271

table of cases xiii

Gorm and Svava Cases (1952), 69

Grimm v. Iran (1983), 103

Gulf of Maine Case

Constitution of Chamber (1982), 150–1, 199

Judgment (1984), 22, 152, 153, 154, 164, 166, 167, 173, 174

Haji-Bagherpour v. United States (1983), 103

Haya de la Torre Case (1951), 178

Heathrow Arbitration (1992/3), 95, 99, 106, 111n54, 123

Interhandel Case (1959), 88

Iran–United States Claims Tribunal, Jurisdiction Decision (1981), 95–6,

98, 103, 119–20, 126

Island of Palmas Case (1928), 93

Italian Property Tax Case (1956), 70

Jan Mayen Conciliation (1981), 72–4, 77, 88, 90, 209, 340–2

Japanese Loan Cases (1955, 1960), 74–5, 88

Kasikili/Sedudu Island Case (1999), 129, 162

KE 007 Inquiry (1983), 61, 63, 313

LaGrand Case (2001), 138n30, 160

Lake Lanoux Arbitration (1957), 4–5, 6, 8, 9, 12, 96, 122

Land and Maritime Boundary between Cameroon and Nigeria 145

Application to Intervene (1999), 141n38

Counter-Claims Order (1999)

Merits (2002), 145

Preliminary Objections (1998), 143, 302

Provisional Measures (1996), 137n26, 246n20

Request for Interpretation (1999), 143

Land Reclamation Case (2003), 205n55

Land, Island and Maritime Frontier Case

Application for Revision (2003), 143–4, 154

Application to Intervene (1990), 141–2, 320n8

Composition of Chamber (1989), 151

Merits (1992), 152, 154

Larsen v. The Hawaiian Kingdom (2001), 103n33

Legality of Use of Force Cases

Provisional Measures (1999), 137

Letelier and Moffitt Case (1992), 53n15, 56–9, 60

LIAMCO Case (1977), 119n75

Libya–Malta Continental Shelf Case

Application to Intervene (1984), 140–1

Merits (1985), 142, 154, 172, 247