International Law and Dispute Settlement

INTERNATIONAL LAW AND

DISPUTE SETTLEMENT

International dispute settlement plays a fundamental role in maintaining

the fabric of the international legal order, reflecting the desire of States,

and increasingly non-State actors, to resolve their differences through

international dispute procedures and other legal mechanisms. This edited

collection focuses upon the growth and complexity of such legal methods,

which includes judicial settlement (courts and tribunals), arbitration and

other legal (or what might be termed ‘extra-legal’) means (international

organisations, committees, inspection panels, and ombudsmen).

In this important collection, such mechanisms are compared and evalu￾ated side-by-side to provide, in one volume, a detailed and analytical

account of the current framework. Ranging from key conceptual issues of

proliferation of legal mechanisms and the associated risks of fragmenta￾tion through to innovations in dispute settlement mechanisms in many

topical areas of international law, including international trade law, col￾lective security law and regional law, this collection, written by leading

international lawyers, provides a major study in the ongoing trends and

emerging problems in this crucial area of international law.

This edited collection is published to mark the retirement of Professor

John Merrills, Emeritus Professor of International Law, University of

Sheffield, who has written widely on international law and human rights

law, but is probably best known for his work on the settlement of inter￾national disputes, evidenced by the enduring appeal of his leading text

International Dispute Settlement, now in its fourth edition.

Volume 28 in the series Studies in International Law

Studies in International Law

Volume 1: Between Light and Shadow: The World Bank, the

International Monetary Fund and International Human Rights Law

Mac Darrow

Volume 2: Toxics and Transnational Law: International and European

Regulation of Toxic Substances as Legal Symbolism

Marc Pallemaerts

Volume 3: The Chapter VII Powers of the United Nations

Security Council

Erika de Wet

Volume 4: Enforcing International Law Norms Against Terrorism

Edited by Andrea Bianchi

Volume 5: The Permanent International Criminal Court

Edited by Dominic McGoldrick, Peter Rowe and Eric Donnelly

Volume 6: Regional Organisations and the Development of

Collective Security

Ademola Abass

Volume 7: Islamic State Practices, International Law and the Threat

from Terrorism: A Critique of the ‘Clash of Civilizations’ in the

New World Order

Javaid Rehman

Volume 8: Predictability and Flexibility in the Law of Maritime

Delimitation

Yoshifumi Tanaka

Volume 9: Biotechnology and International Law

Edited by Francesco Francioni and Tullio Scovazzi

Volume 10: The Development of Human Rights Law by the Judges

of the International Court of Justice

Shiv Bedi

Volume 11: The Environmental Accountability of the World Bank to

Third Party Non-State Actors

Alix Gowlland-Gualtieri

Volume 12: Transnational Corporations and Human Rights

Edited by Olivier De Schutter

Volume 13: Biotechnologies and International Human Rights

Edited by Francesco Francioni

Volume 14: Human Security and International Law: Prospects

and Problems

Barbara Von Tigerstrom

Volume 15: The Arms Trade and International Law

Zeray Yihdego

Volume 16: Africa: Mapping New Boundaries in International Law

Edited by Jeremy Levitt

Volume 17: Forced Migration, Human Rights and Security

Edited by Jane McAdam

Volume 18: The Use of Nuclear Weapons and the Protection of the

Environment during International Armed Conflict

Erik Koppe

Volume 19: The Shifting Allocation of Authority in International

Law: Considering Sovereignty, Supremacy and Subsidiarity

Edited by Tomer Broude and Yuval Shany

Volume 20: Counterterrorism: Democracy’s Challenge

Edited by Andrea Bianchi and Alexis Keller

Volume 21: Amnesty, Human Rights and Political Transitions

Louise Mallinder

Volume 22: Property Rights and Natural Resources

Richard Barnes

Volume 23: Human Dignity and the Foundations of International Law

Patrick Capps

Volume 24: Sovereignty and the Stateless Nation: Gibraltar in the

Modern Legal Context

Keith Azopardi

Volume 25: The International Court of Justice and Self-Defence

in International Law

James A Green

Volume 26: State Liability in Investment Treaty Arbitration: Global

Constitutional and Administrative Law in the BIT Generation

Santiago Montt

Volume 27: Reappraising the Resort to Force: International Law,

Jus ad Bellum and the War on Terror

Lindsay Moir

Volume 28: International Law and Dispute Settlement: New Problems

and Techniques

Edited by Duncan French, Matthew Saul and Nigel D White

International Law and

Dispute Settlement

New Problems and Techniques

Edited by

Duncan French

Matthew Saul

and

Nigel D White

OXFORD AND PORTLAND, OREGON

2010

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Foreword

Settling disputes lies at the heart of the legal enterprise. Law seeks to

structure, order and facilitate the interactions between those subject to

its reach. Providing means and mechanisms for resolving the inevitable

conflicts and difficulties which such regulation generates is an essential

attribute of an effective legal system. Yet all too often the question of what

comprises an effective system of dispute resolution in the international

arena becomes focussed on the presence—or on the absence—of courts;

on the scope—or on the restrictions on the scope—of their jurisdiction;

and on the capacity to enforce—or, more usually, the lack of capacity to

enforce—their decisions or judgments. All of the above, and more besides,

are of course vitally important questions which contribute to a critique of

international dispute settlement. However, there is very much more to be

considered and the work of Professor Merrills has played a seminal role

in broadening our understanding of the processes of dispute settlement.

These Essays honour that work by further illustration and illumination of

the complexities involved.

At one level, that complexity is reflected in the forms of dispute settlement

available—the political, the non-judicial, the quasi-judicial and the judicial

itself. In this the international legal system follows domestic systems, all

of which have variants of such approaches nuanced to reflect the nature of

the disputes in question and the subjects which they serve. However, the

consensual and dispersed nature of the sources of international legal obli￾gation pose an additional challenge which is not faced in so stark a fashion

by municipal systems. States have proven adept at constructing bespoke

systems of dispute resolution concerning particular forms of subject matter

or which are operable within particular treaty regimes, or within particular

regional contexts or within international organisations. Overlaying all of

this are the more general principles of State responsibility and means of

accountability, both through international claims and, ultimately, the threat

or use of a coercive or forceable response.

Those unfamiliar with international law sometimes point to the dearth

of judicial fora having a general and compulsory jurisdictional reach as

evidence of its poverty as a system of legal control. An alternative view is

that the nature of the international legal enterprise is such that issues of

‘dispute resolution’ pervade all of its aspects and are already embedded

in its systems of norm generation, of patterns of obligation and responsi￾bility, of its interface with domestic legal systems, both public and private,

and of course with political agencies, national and international.

A further complexity arises from a changing understanding of what

might be called the purpose of international law. From being generally

understood as a fairly static system which primarily spoke to the interac￾tions between States and operated to fill what would otherwise be the

vacuums between, it has become a venue for the generation of forms of

international public policy which reach back into the States themselves.

Just as the public policy of States exists to inform the regulation of the

private, so does international law increasingly concern itself with mat￾ters previously thought well beyond its practical reach. As international

legal discourse increasingly becomes a venue for policy debate and social

control, the need becomes all the greater for appropriately nuanced and

suitably affective means of addressing the disputes which are the product

of the constraints which are generated.

Settling disputes is not just about ‘settling disputes’. It is also about

how issues are addressed, regulated and engaged with. It is about how

law is generated, about what law is generated and about the manner in

which it is engaged with and responded to. It is also about the means and

mechanisms for solving problems and adjudicating outcomes, of securing

remedies and securing the interests of those who it is there to serve. All of

these themes, and more besides, permeate the work of Professor Merrills

and are properly and appropriately reflected in the contributions to this

collection in his honour, which it is an honour to introduce.

Malcolm D Evans

Professor of Public International Law

at the University of Bristol

July 2009

viii Foreword

Preface

Professor John Merrills has a worldwide reputation as a scholar of

international law. His impressive writing and work in international law

is itemised towards the end of this book. His reputation was built from

Sheffield University, where he started as an Assistant Lecturer in 1964,

becoming Professor of Public International Law in 1985 until his retire￾ment in 2007. John Merrills remains active within the Law School as an

Emeritus Professor. It is fitting that a collection of essays in his honour

should combine contributions from international lawyers both from

Sheffield and elsewhere. Sheffield’s reputation as a centre for interna￾tional legal research owes a great deal to John Merrills.

Professor John Merrills has written widely on International Law and

Human Rights Law, but is probably best known for his work on the

settlement of international disputes, evidenced by the enduring appeal of

his leading text International Dispute Settlement published by Cambridge

University Press and now in its fourth edition. In this book Professor

Merrills divided dispute settlement up into diplomatic and non-judicial

methods (negotiation, mediation, inquiry, conciliation), and legal or

judicial methods such as (arbitration and international tribunals). Later

chapters examined the delicate relationship between legal and diplomatic

methods in the law of the sea and in international trade. The book finishes

with a review of political institutions (the UN and regional organisations)

and their roles in dispute settlement.

The idea behind this collection of essays is not to reproduce Professor

Merrills’ seminal text on dispute settlement—that would not be possible—

but in a way to try to complement it by further exploring by means of a

number of different perspectives the area of legal and judicial means and

methods of settling disputes, specifically new problems and new tech￾niques in these areas. It re-considers the role of international courts and

tribunals, but also looks at other quasi-judicial methods (trade disputes

under the WTO, the human rights committees, even the Security Council)

as well as alternative processes of dispute resolution involving third par￾ties such as ombudsmen and inspection panels. In so doing it inevitably

raises wider issues of responsibility, accountability and access to justice,

all themes that Professor Merrills has contributed significantly to during

his academic career.

Thanks go to Ali Bohm who acted as editorial assistant on this book

and to the School of Law, University of Sheffield, for its financial help in

this regard.

Duncan French, Matthew Saul and Nigel D White

School of Law, University of Sheffield

June 2009

x Preface

Contents

Foreword .............................................................................................................vii

Preface ..................................................................................................................ix

List of Contributors ...........................................................................................xiii

List of Abbreviations ...........................................................................................xv

Introduction .......................................................................................................xix

Part 1 The Changing Face of International Adjudication...................... 1

1. Private Disputes and the Public Interest in

International Law .......................................................................................... 3

Vaughan Lowe

2. The International Court of Justice and

Environmental Disputes ............................................................................ 17

Malgosia Fitzmaurice

3. Complaint and Grievance Mechanisms in International

Dispute Settlement ...................................................................................... 57

Duncan French and Richard Kirkham

4. Stuck in the Middle With You?: Alternative Approaches

to Realising Accountability for Human Rights

Violations by Business ................................................................................ 87

Sorcha MacLeod

Part 2 Problems and Techniques in Substantive Areas

of International Law ..................................................................................... 109

5. Practice and Procedure of Dispute Settlement in Individual

Communication Cases within the Human Rights Committee

and the Committee on the Elimination of Discrimination

against Women: Congruence or Conflict? ..............................................111

Sandy Ghandhi

6. Trends in Dispute Settlement in the Law of the Sea: Towards

the Increasing Availability of Compulsory Means .............................. 143

Robin Churchill

7. The WTO Dispute Settlement Mechanism as a New

Technique for Settling Disputes in International Law ........................ 173

Surya P Subedi

8. Legal Means of Dispute Settlement in the Field

of Collective Security: The Quasi-Judicial Powers

of the Security Council ........................................................................... 191

Nigel D White and Matthew Saul

9. Non-compliance Procedures and Dispute Resolution

Mechanisms under International Environmental

Agreements .............................................................................................. 225

Karen N Scott

10. The Antarctic Treaty after 50 Years ....................................................... 271

James Crawford

11. Cross-border Family Mediation ............................................................ 297

Kisch Beevers

Part 3 The Regional Dimension .............................................................. 319

12. Aspects of the African Court of Justice

and Human Rights .................................................................................. 321

Gino J Naldi

13. The EU, the ECHR and the Effective Protection

of Human Rights for Individuals ......................................................... 345

Tawhida Ahmed

14. The European Court of Justice as a Constitutional Court:

Implications for the EU and International Legal Orders .................. 367

Paul James Cardwell

Bibliography of JG Merrills’ work .................................................................... 389

Index ................................................................................................................. 395

xii Contents

List of Contributors

Tawhida Ahmed

Lecturer in Law, University of Sheffield

Kisch Beevers

Honorary Senior Lecturer in Law, University of Sheffield

Paul James Cardwell

Lecturer in Law, University of Sheffield

Robin Churchill

Professor of International Law, University of Dundee

James Crawford

Whewell Professor of International Law; Director, Lauterpacht Centre for

International Law, University of Cambridge

Malgosia Fitzmaurice

Professor of Public International Law, Queen Mary, University of

London

Duncan French

Professor of International Law, University of Sheffield

Sandy Ghandhi

Professor, School of Law, University of Reading

Richard Kirkham

Lecturer in Law, University of Sheffield

Vaughan Lowe

QC, Chichele Professor of Public International Law and Fellow of All

Souls College, Oxford University

Sorcha MacLeod

Lecturer in Law, University of Sheffield

Gino J Naldi

Senior Lecturer, Norwich Law School, University of East Anglia

Matthew Saul

Lecturer in Law, Durham University, formerly PhD student at the

University of Sheffield

Karen N Scott

Senior Lecturer, School of Law, University of Canterbury, New Zealand

Surya P Subedi

OBE, Barrister (Middle Temple), Professor of International Law, University

of Leeds

Nigel D White

Professor of Public International Law, University of Nottingham, formerly

Professor of International Law at the University of Sheffield

xiv List of Contributors