Peaceful settlement of disputes

The CAHDI's consideration of questions concerning the peaceful settlement of disputes covers many areas.  The central element is studying and following the jurisdiction of the International Court of Justice.  The CAHDI has also considered more specific issues such as overlapping jurisdiction of international tribunals and the nomination of international arbitrators and conciliators.

Jurisdiction of the International Court of Justice

The CAHDI has discussed the jurisdiction of the International Court of Justice (ICJ) under the agenda item on "Peaceful settlement of disputes" since its 30th meeting (Strasbourg, 19-20 September 2005).

CAHDI activity

At the CAHDI meetings, delegations pass on any relevant information.  This may concern declarations by their states recognising as compulsory the jurisdiction of the ICJ, the acceptance of peaceful settlement of disputes clauses in other international agreements or cases involving them brought before the ICJ.

The CAHDI also worked on a draft recommendation of the Committee of Ministers to member states on the acceptance of the jurisdiction of the International Court of Justice at its 33rd, 34th and 35th meetings (22-23 March 2007, 10-11 September 2007 and 6-7 March 2008 respectively).  The purpose of the recommendation, which was adopted on 2 July 2008 at the 1031st meeting of the Ministers' Deputies, is to assist states wishing to accept the compulsory jurisdiction of the ICJ or amend their declarations of acceptance of the optional clause, as well as to promote the peaceful settlement of disputes, while underlining the importance of a mechanism of this kind to the international community.

Basis of the ICJ's jurisdiction

The jurisdiction of the Court is governed by the principle of state consent.  The CAHDI looks at it from two angles:

  • the compulsory jurisdiction of the Court in pursuance of the declarations made by states under Article 36, paragraph 2, of the Statute of the Court;
  • the jurisdiction of the Court under other agreements including disputes settlement clauses.

Declaration recognizing the jurisdiction of the Court as compulsory

Article 36, paragraph 2, of the Statute of the Court provides that:

"The states parties to the present Statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute a breach of an international obligation;

d. the nature or extent of the reparation to be made for the breach of an international obligation."

Article 36, paragraph 3, provides that such declarations "may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time."

These declarations constitute the direct expression of states' consent and are valid for the future.  They are the most effective means of extending the jurisdiction of the Court.

As of October 2012, 68 states had accepted the compulsory jurisdiction of the International Court of Justice through such declarations.

Jurisdiction of the ICJ provided for in treaties and conventions in force

Under Article 36, paragraph 1, of the Statute of the Court, the jurisdiction of the ICJ may also stem from other multilateral and bilateral agreements which include clauses on the peaceful settlement of disputes.

In this connection, the Council of Europe adopted the European Convention for the Peaceful Settlement of Disputes (CETS No. 023), which entered into force on 30 April 1958. (Link to Convention)

Article 1 of the Convention provides that:

"The High Contracting Parties shall submit to the judgment of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:

a.   the interpretation of a treaty;

b.   any question of international law;

c.   the existence of any fact which, if established, would constitute a breach of an international obligation;

d.   the nature or extent of the reparation to be made for the breach of an international obligation."

As of October 2012, the convention had been ratified by 14 countries and signed by six.

Overlapping jurisdiction of international tribunals

The CAHDI began studying the issue of the proliferation of international tribunals and the resulting risks of conflicting jurisdiction at its 31st meeting (Strasbourg, 23-24 March 2006).  The issue was subsequently considered together with the compulsory jurisdiction of the ICJ and was discussed for the last time at the 36th meeting (London, 7-8 October 2008).

At the 34th meeting (Strasbourg, 10-11 September 2007), the members of the CAHDI held an exchange of views with Professor Martti Koskenniemi, author of the International Law Commission study on Fragmentation of International Law.  The discussions highlighted the risks associated with the increasing number of international courts and tribunals, in particular in terms of divergence in the application and interpretation of international norms.

See the meeting report.

Recommendation on the nomination of international arbitrators and conciliators

The CAHDI was also involved in the drafting of Recommendation CM/Rec(2008)9 of the Committee of Ministers to member states on the nomination of international arbitrators and conciliators, which was adopted at the 1031st meeting of the Ministers' Deputies on 2 July 2008.

At the 34th meeting (Strasbourg, 10-11 September 2007), some delegations pointed out that many treaties and other instruments made provision for the keeping of lists of arbitrators or conciliators for the purpose of implementing provisions concerning the peaceful settlement of disputes.  The CAHDI therefore suggested to the Committee of Ministers that a recommendation be drawn up on the matter.

At the 35th meeting (Strasbourg, 6-7 March 2008), the delegations approved the draft recommendation for submission to the Committee of Ministers, while highlighting the importance of states using the opportunity provided to nominate suitably qualified people to lists of arbitrators.

After the recommendation had been adopted by the Committee of Ministers, the CAHDI monitored its implementation and on several occasions reiterated the importance of keeping and periodically reviewing the lists.  The monitoring showed that many Council of Europe member states had in fact nominated the arbitrators and conciliators provided for in the various international treaties and agreements.

Special guests

At the 19th meeting of the CAHDI (Berlin, 13-14 March 2000), Mr Robert Badinter, Mr Hans-Dietrich Genscher, Mr Lucius Caflisch and Mr Luigi Ferrari Bravo, respectively President, Vice-President and members of the Bureau of the International Court of Conciliation and Arbitration (ICCA) held an exchange of views with the members of the CAHDI and described the role and benefits of the Court.  Mr Badinter and Mr Bravo spoke on the subject again at the 29th meeting of the CAHDI (Strasbourg, 17-18 March 2005).

See the report of the 19th meeting and the report of the 29th meeting.

At the 21st meeting (Strasbourg, 6-7 March 2001), Mr Gilbert Guillaume, President of the International Court of Justice, addressed the issue of the increasing number of international courts and tribunals and gave details of the cases before the ICJ and the challenges facing it.

See the meeting report.

At the 33rd meeting (Strasbourg, 22-23 March 2007), Mr Tjaco van den Hout, Secretary General of the Permanent Court of Arbitration (PCA), gave a presentation on the operation and activities of the PCA and highlighted the many benefits of this kind of peaceful settlement of disputes (see Appendix VII to the meeting report).

See the meeting report.