This Article is written by Kajal Kumari, a Fifth-Year Law Student of Sardar Patel Subharti Institute of Law

DISPUTE RESOLUTION SYSTEM AT INTERNATIONAL LEVEL

International courts (ICs) and tribunals are important players in international law, both for their primary dispute-resolution function and for their role in the development of international law in general. Their increasing number and complexity make them more important.

However, since the early 1990s, the number of international judicial bodies has multiplied, the scope of their jurisdiction has expanded, and the number of cases handled and judgments rendered has increased from a few per year to a steady stream that frequently has a significant impact on international relations and the lives of individuals around the world.

An international court is an international organization, or a body of an international organization, that hears cases in which one party may be a state or international organization (or body thereof), and which is composed of independent judges who follow predetermined rules of procedure to issue binding decisions on the basis of international law.

International courts are established by treaties between nations or by an international organization such as the United Nations.

International courts are an example of the state delegation to ensure compliance with obligatory and increasingly precise rules, a phenomenon that could be dubbed as “judicialization of world politics."

The proliferation of international courts is one of the most notable posts–Cold War changes in international law and relations. International courts, however, are not a new phenomenon.

The first international courts were established in the early twentieth century.

The quantity and quality of international court practice has changed. Nowadays, it extends into fields that were once thought to be solely of domestic concern, and the once feeble jurisdiction of courts has grown remarkably.

SIGNIFICANCE

· International courts are part of institutional designs aimed at assisting in the resolution of some of the world's most pressing issues.

· They are part of strategies that seek to achieve common goals, overcome barriers to cooperation, and repair collective action failures.

· They, like few other institutions, serve the promise of international law to contribute to global justice.

· Collective submission to the authority of international institutions under the rule of law alleviates concerns that powerful actors will unfairly wield law and power.

· Accepting international oversight strengthens commitments, and states can use delegation to fill gaps in contracts and coordinate the application of international rules across jurisdictions.

· International courts now have a broader range of judicial responsibilities, including assessing state compliance with international rules and treaties.

· International courts serve primarily as enforcers of international law and as adjudicators on the legality of acts of international organizations and their decision-making organs.

· International courts nowadays frequently enjoy mandatory jurisdiction once a state becomes a party to the statute of the given court or a member of the organisation of which the court is an organ.

· Since World War II, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for the Former Yugoslavia (ICTR) have been the first international tribunals to hold high-profile leaders accountable for crimes against humanity.

· International tribunals have also helped to strengthen the rule of law in a global context.

· The ICTY, for example, encouraged authorities in the newly established states of the former Yugoslavia to reform their judicial systems.

List Of Some International Courts

o International court of justice

o International criminal court

o International labour organization administrative tribunal

o International tribunal for the law of the sea

o Permanent court of arbitration

o World Trade Organization Dispute Settlement Body and Appellate Body

International Court of Justice (ICJ)

The ICJ is one of the six principal organs of the United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). Notably, it is the only UN principal organ not situated in New York.

• The chief judicial organ of the UN, it is also sometimes known as the World Court.

• Established by the UN Charter in 1945, it began work in 1946 when it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922.

• All the 193 member states of the UN are automatically parties to the Court. Those nations that are not members of the UN may become parties to the Court’s statute with the help of the Article 93 procedure.

• The chief function of the ICJ is to settle disputes submitted by parties according to international law.

• The Court also gives advisory opinions on legal matters submitted by any of the UN bodies or specialised agencies.

• The United Nations Security Council (UNSC) can enforce ICJ judgments as per the UN Charter. However, the permanent members of the UNSC can veto any such ruling.

• The official languages of the ICJ are English and French. [[1]]

ICJ Composition

• The ICJ is composed of 15 judges.

• The judges have a tenure of nine years each.

• They are elected independently by the UNGA and the UNSC. The candidate should get an absolute majority in both the UNGA and the UNSC to be elected.

• No two judges can have the same nationality in the ICJ.

• Elections are held every three years for one-third of the seats, and retiring judges may be re-elected.

• The members of the ICJ do not represent their governments but are independent magistrates.

• The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law.

• The judges are distributed as per the regions:

• 3 from Africa

• 2 from Latin America and the Caribbean

• 3 from Asia

• 5 from Western Europe and other states

• 2 from Eastern Europe

• Among the 15 judges, there is a President, a Vice President and a Registrar.

• Every State government party to the Charter designates a group that proposes candidates for the office of ICJ judges.

ICJ Jurisdiction

The ICJ has two types of jurisdictions:

1. Contentious cases

o ICJ, by international law, settles disputes of a legal nature that are submitted to it by states.

o Countries should apply and only then appear before the ICJ. International organizations, other authorities, and private individuals are not entitled to institute proceedings before the ICJ.

o The Court can only deal with a dispute when the States concerned have recognized its jurisdiction.

o The judgment is final, binding on the parties to the case and without an appeal.

2. Advisory opinions

o The advisory procedure is available to five UN Organs, fifteen Specialized Agencies, and one Related Organisation.

o Despite having no binding force, the Court’s advisory opinions nevertheless, carry great legal weight and moral authority and thus help in the development and clarification of international laws. [[2]]

The International Criminal Court (ICC)

The International Criminal Court (ICC) is a permanent international court formed to investigate, prosecute and start trials against individuals that are accused of committing the most serious crimes which is of concern to the international community as a whole, the crimes against which ICC acts are majorly-

o crime of genocide,

o crimes against humanity,

o war crimes and

o the crime of aggression.

International Criminal Court was formed in the year 2002 by the Rome statute.

International Criminal Court is situated in Hague, Netherlands.

The ICC's official seat is in The Hague, Netherlands, but its proceedings can take place anywhere.

It has two working languages namely English and French. There are 6 official languages namely, English, French, Arabic, Chinese, Spanish, and Russian.

Ø Structure of the ICC

The ICC is composed of four organs. Each of these organs has a specific role and mandate.

1. The Presidency

o Head of the court.

o Conducts external relations with states, coordinates judicial matters such as assigning judges, situation, and cases to divisions, and oversees the registry’s administrative work.

2. The Chambers

o Ensuring fair trial

o There are 18 judges in ICC, elected by the assembly of the state’s Parties and serve a 9-year term which is not, renewable. The International Criminal Court (ICC) president and two vice presidents are elected from themselves and head the court.

3. The Office of The Prosecutor

o Conducting investigation and prosecution

o This is an independent organ of the court. It is in charge of looking into cases under the court’s jurisdiction where genocide, crimes against humanity, war crimes, and aggression appear to have been perpetrated, as well as conducting inquiries into and bringing charges against those believed to be most guilty.

4. The Registry

o The registry is a neutral organ of the court that offers support to the other organs so that the International Criminal Court (ICC) can operate and hold fair public hearings.

Ø The Functions of the ICC

o The International Criminal Court (ICC) investigates and where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.

o It acts as a court of last resort and it seeks to complement, however, not replace, the national courts.

Ø India and ICC

India did not sign the Rome Statute, and thus, is not a member of ICC because of the following reasons:

· State sovereignty

· National interests

· Difficulty in the collection of evidence

· Problem of finding impartial prosecutors

· Crime definition

Administrative Tribunal of the International Labour Organization

The Administrative Tribunal of the International Labour Organization, shortened ILO Administrative Tribunal or ILOAT, is a tribunal for conflicts between employees and their employers in intergovernmental organizations. The tribunal was established as the "Administrative Tribunal of the League of Nations" in 1927 by the League of Nations and transferred (and renamed) to the International Labour Organization in 1946. Labour-related decisions of 60 international organizations can be appealed to at ILOAT.

The League of Nations, created in 1920 and wound up in 1946, left a legacy that had functioned with some efficiency throughout the League's existence, namely its Administrative Tribunal. In addition to serving the League itself, the Tribunal also served the International Labour Organization, which had been in existence since 1919.

One positive part of the legacy of the League was to preserve the Tribunal and transfer it, in 1946, to the ILO which became a specialized agency of the newly-created United Nations Organization.

The International Labour Organization (ILO) promotes rights at work and promulgates international labour standards as a specialized agency of the UN. The organization operates through a distinct collaborative model that engages governments, workers, and employers in the development of international labour policy. The International Labour Office, the ILO’s main operating center, employs approximately 2,700 employees (called “officials”) worldwide.

Workplace disputes can be resolved informally by using the organization’s Ethics Officer or Mediator, or formally, by recourse to the ILO Administrative Tribunal. [[3]]

Composition

The Tribunal is composed of seven judges who must be of different nationalities, as was the case for the Administrative Tribunal of the League of Nations.

They are appointed by the International Labour Conference on a recommendation of the Governing Body of the International Labour Office for 5 years, renewable once.

The Tribunal meets normally twice a year, in spring and autumn, for a period of 3 to 4 weeks, at the headquarters of the ILO in Geneva. At each session, it delivers approximately 60 judgments on cases which are generally examined in accordance with the procedure set out in Articles 6, 8, and 9 of its Rules or in accordance with the summary procedure provided for in Article 7 of the Rules.

International Tribunal for the Law of the Sea

Life itself arose from the oceans. The ocean is vast and covers 140 million square miles, which is about 72 percent of the earth’s surface. It has a key role in maintaining the balance of life on Earth. It is home to many resources like diamonds, silver, gold, metal ores like manganese nodules, oil, and many more. It also gives a huge platform to the coastal countries to earn profits through shipping goods and fishing, which play a huge role in boosting the economies of several countries. [[4]]

The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea. It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on 10 December 1982. The Convention entered into force on 16 November 1994 and established an international framework for law over all ocean space, its uses, and resources.

The ITLOS is one of four dispute resolution mechanisms listed in Article 287 of the UNCLOS. The Tribunal is based in Hamburg, Germany. The Convention also established the International Seabed Authority, with responsibility for the regulation of seabed mining beyond the limits of national jurisdiction, that is beyond the limits of the territorial sea, the contiguous zone, and the continental shelf.

There are currently 168 signatories, 167 states plus the European Union. As of 2021, holdouts included the United States and the Islamic Republic of Iran. It has authority over any issue involving the interpretation or application of the convention, as well as those subjects expressly provided for in any other agreement conferring jurisdiction on the tribunal. Disputes arising under the convention may concern the delimitation of maritime zones, navigation, conservation and management of sea life, protection and preservation of the marine environment, and marine scientific research.

Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is an international organization based in the Peace Palace, The Hague, the Netherlands. The PCA is a permanent bureaucracy that assists temporary tribunals in resolving disputes among states (and similar entities), intergovernmental organizations, or even private parties arising out of international agreements. The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade. The objective is “to facilitate the arbitration of international disputes”.

Ø Structure of PCA

1. It consists of an Administrative Council and an International Bureau.

2. The Court is not ‘permanent’ in nature; rather it is a Court selected from among a permanent panel of arbitrators.

3. Each member is eligible to nominate four persons who have competency in international law who are of the highest moral reputation and who can accept the duties of an arbitrator.

4. There are 225 arbitrators, appointed for a six-year term.

5. The Administrative Council is composed of diplomatic representatives of the contracting parties accredited to The Hague.

6. The President of the Council is the foreign minister of the Netherlands.

7. The administrative organ of the Court is the International Bureau which channels communication regarding meetings of the Court.

8. It serves as a registry and maintains archives.

Ø Jurisdiction

The Permanent Court of Arbitration PCA has jurisdiction over various disputes. Its jurisdiction is based on founding documents like the Conventions on Pacific Settlement of International Disputes and bilateral/multilateral treaties.

• The PCA's Secretary-General serves as an appointing authority for arbitration in certain cases.

• For UNCITRAL arbitration rules, the Secretary-General can be requested to appoint arbitrators.

• In interstate arbitration based on the Hague Convention, the PCA Tribunal comprises five arbitrators chosen by the parties involved.

• For disputes under UNCLOS, member states can choose between different dispute resolution mechanisms, and the PCA may be involved in administering these cases.

• In investor-state investment disputes, the PCA may act as an appointing authority for arbitrators or provide support using its rules. [[5]]

World trade organization dispute settlement and appellate body

The Dispute Settlement Body (DSB) of the World Trade Organization (WTO) makes decisions on trade disputes between governments that are adjudicated by the Organization. Its decisions generally match those of the Dispute Panel.

The General Council convenes as the Dispute Settlement Body (DSB) to deal with disputes between WTO members.

It decides the outcome of a trade dispute on the recommendation of a Dispute Panel and (possibly) on a report from the Appellate Body of the WTO. Only the DSB can make these decisions: Panels and the Appellate Body are limited to making recommendations.

Such disputes may arise concerning any agreement contained in the Final Act of the Uruguay Round.

The DSB has the authority to: Establish dispute settlement panels, refer matters to arbitration, adopt panels, Appellate Body, and arbitration reports, maintain surveillance over the implementation of recommendations, and Authorize suspension of concessions in the event of non-compliance.

Ø Appellate Body of the WTO’s Dispute Settlement Body (DSB):

· The Appellate Body was established in 1995 to govern the Settlement of Disputes.

· It is a standing body of seven persons that hears appeals from reports issued by panels in disputes brought by WTO Members.

· These members are appointed by the DSB to serve for four-year terms.

· The members can be reappointed once.

· A panel for appeals comprises three from the seven-member AB.

· The Appellate Body members shall be persons of recognized authority with demonstrated expertise in law, international trade, and the subject matter of the WTO agreements.

· The Appellate Body membership shall be broadly representative of membership in the WTO.

· The Appellate Body can uphold, modify, or reverse the legal findings and conclusions of a panel.

· Appellate Body Reports, once adopted by the Dispute Settlement Body, must be accepted by the parties to the dispute.

· The Appellate Body has its seat in Geneva, Switzerland.

Conclusion

The conclusion shows that the international court has contributed to the interpretation of remedies. Several aspects of the remedies available before the court have been clarified through its practice and, consequently, states now have more reasonable expectations when they submit a dispute before the court. The consistency that the court has demonstrated in its interpretation of the remedies available before it has enhanced predictability in the manner in which the court applies and clarifies the remedies that are requested by the parties appearing before it. How the remedies of international law are interpreted and applied is however, strictly connected with the function of the court, i.e., that of being the principal judicial organ of the United Nations. Therefore, the fact that the court observes how its judgments contribute to the maintenance of international peace influences the application of remedies concerning the disputes submitted before it.

References

· Shiwani Singh, International Tribunal for the Law of the Sea (ITLOS), (2022) International Tribunal for the Law of the Sea (ITLOS) - iPleaders( accessed on 14 September 2024)

· Permanent Court of Arbitration UPSC Notes: History, Structure, & Members (testbook.com) (accessed on 15 September 2024)

· International Court of Justice (ICJ) - Principal Organ of the UN. UPSC IR Notes. (byjus.com) (accessed on 13 September 2024)

· Dr. Nandkishor K. Ramteke, Alternative Dispute Resolution (ADR) Under International and National Context - An Overview (2020) IJRAR2001979.pdf (accessed on 13 September 2024)

· Anam Khan and Subhajit Samanta, Settlement of disputes in International Law (2020) Settlement of disputes in International Law - iPleaders (accessed on 14 September 2024)

· Legal Lands LLP, Alternative Dispute Resolution In The International Framework (2023)https://www.mondaq.com/india/arbitration--dispute-resolution/1365956/alternative-dispute-resolution-in-the-international-framework-cooperative-solutions-beyond-courtroom-that-are-bridging-borders--harmonizin (accessed on 15 September 2024)

· Joshua Javits, Internal Dispute Resolution at International Organizations (2013) Internal Dispute Resolution at International Organizations - Mediate.com (accessed on 16 September 2024)

[1] International Court of Justice (ICJ) - Principal Organ <https://byjus.com/free-ias-prep/the-international-court-of-justice/>

[2] International Court of Justice (ICJ) - Principal Organ of the UN. UPSC IR Notes. (byjus.com)

[3] Joshua Javits, Internal Dispute Resolution at International Organizations (2013) <https://mediate.com/internal-dispute-resolution-at-international-organizations/#:~:text=This%20article%20will%20briefly%20discuss%20the%20legal%20framework,Organization%20%28ILO%29%3B%20United%20Nations%20%28UN%29%3B%20and%20World%20Bank> (accessed on 16 September 2024)

[4] Shiwani Singh, International Tribunal for the Law of the Sea (ITLOS), (2022) <https://blog.ipleaders.in/international-tribunal-for-the-law-of-the-sea-itlos/ >

[5] ‘Permanent Court of Arbitration: History, Structure, & Members’https://testbook.com/ias-preparation/permanent-court-of-arbitration-pca