Settlement of disputes by regional machinery

There is a great variety of regional organisations that are instrumental in the peaceful settlement of disputes. These range from political bodies such as the Organisation of American States and the Organisation of African Unity (see, e.g., its role in the Congo/Uganda dispute), to economic forums such as the Caribbean Community and Common Market (Carricom) and the World Trade Organisation (formerly GATT), to more judicial bodies such as the European Court of Human Rights, the Central American Court of Justice and Inter-American Court of Human Rights. In this context, note must also be taken of the political-legal Dispute Settlement Mechanism of the Organisa­tion for Security and Co-operation in Europe (formerly the CSCE). This Organisation, which has now been restructured, has increased in importance following the massive political changes in Eastern Europe in the late twentieth century. Obviously, these forums are eminently suitable for the resolution of local disputes, and their precise terms of reference will vary accordingly.

The International Law Commission has denned arbitration as 'a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted'. It is the most commonly used 'judicial' means for the settlement of disputes. Arbitration awards have contributed significantly to the development of many areas of international law, and this has not diminished even now that we have the International Court of Justice. The decisions of the US Mexican Claims Commission 1926, for example, did much to clarify the law of state respon­sibility.

Like all methods of pacific settlement in international law, arbitration is voluntary. States must consent beforehand to the exercise of jurisdiction by the arbitrators. This may be done on an ad hoc basis, as with the Guinea/ Guinea-Bissau Maritime Delimitation Case 77 ILR 636 and the Canada/France Maritime Delimitation (1992) 31 ILM 1145, or consent may be given in advance to a specific procedure, as with the Permanent Court of Arbitration, although the submission of actual disputes may depend on further consent. This last body, established by the 1899 and 1907 Hague Conventions on Pacific Settlement, provides an institutionalised procedure for the settlement of disputes by arbitration and although states have made little use of it for many years, recent moves have been made to revive its role in dispute settlement. It must also be remembered that arbitration proceedings are not limited to the determination of disputes between states. An important function of arbitration, and one which the ICJ cannot undertake, is to settle disputes between states and other bodies having international personality. Typically, such arbitrations involve states and multinational corporations, although exceptionally individuals may be given the right to claim directly against a state. One of the most important examples of such an arbitration procedure is the International Centre for the Settlement of Investment Disputes, established by International Convention in 1964, which provides a forum for the settlement of disputes between states and corporations arising out of capital investment in the former's territory.

TEST V