Academic journal article
By Keith, Ken
New Zealand International Review , Vol. 36, No. 1
The role of courts in resolving international disputes is now well established. But this has not always been the case. Established in 1945, the International Court of Justice reflected the intention of the United Nations' founders that the judicial process would have a central place in the settlement of international disputes by peaceful means. After a promising start, the court became increasingly inactive, and by 1970 its docket was completely empty. Forty years later the international judicial landscape is transformed. International courts and tribunals abound, including criminal tribunals established by a variety of means. States are increasingly willing to enter international litigation.
By looking back in a very selective way at the experience of courts in resolving international disputes over the last 100 years, I will try to suggest what that experience may mean for their role in the future. The early 1900s mark the beginning of organised international arbitral and judicial process. That development occurred at the time of extensive globalisation as seen in foreign trade, foreign investment, foreign travel and migration and huge changes in science, technology, communications, art and sport--as well as many assassinations and other acts of terrorism. The turn of that century was also a time of major peace movements, one inter-governmental manifestation of which was the Hague Peace Conference of 1899, followed by that of 1907, called on the initiative of Czar Nicholas, who was greatly alarmed at the rate at which European countries were arming. The particular results of those conferences on which I focus are the establishment of the Permanent Court of Arbitration (PCA) and the building of the Peace Palace, greatly facilitated by the munificence of Andrew Carnegie. That building housed the library, the courtroom, the judges and registry first for the Permanent Court of International Justice from 1922 and from 1946 the International Court of Justice (ICJ). The judges and their support staff are now in a new wing to the 1913 building.
The 1899 and 1907 conventions, which were the subject of Professor J.W. Salmond's inaugural lecture at Victoria University College, contain high sounding rhetoric. The high contracting parties expressed their resolve to promote the friendly settlement of international disputes, their desire to extend what they refer to as the empire of law and to strengthen the appreciation of international justice. The parties undertook to use their best efforts to ensure the peaceful settlement of disputes with a view to avoiding as far as possible recourse to force in the relations between states. To that end, the conventions provide for the peaceful settlement of disputes by good offices, mediation, inquiry and arbitration. That linking of the obligation to pursue peaceful methods of settlement and the avoidance of, and later the prohibition on, the resort to armed force is also to be seen in the Covenant of the League of Nations in 1919, the Kellogg Briand Pact in 1928 and, in 1945, in the Charter of the United Nations, Article 2(3) of which requires all states to settle their international disputes by all means in such a manner that international peace and security and justice are not endangered. Article 33 provides a longer list of means than did the 1899 and 1907 conventions--negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or other means of their own choice.
That final phrase--of their own choice--underlines a major limit on the availability and use of dispute settlement processes, particularly arbitration and adjudication. States are not required to engage in those processes unless they have consented--as, of course, they have, in many cases and increasingly, to take just three examples by becoming members of the United Nations or of the World Trade Organisation or a party to the UN Convention on the Law of the Sea (UNCLOS). …