INTRODUCTION
It is fitting to include a chapter on arbitration and adjudication in a handbook on conflict resolution, as Article 33 paragraph 1 of the Charter of the United Nations (Simma, 2002) lists explicitly arbitration (Touval and Zartman, 1985) and judicial settlement (Merrills, 2005) among the peaceful means of settling international disputes.
Both schemes are techniques for resolving disputes by referring them to a neutral judicial body for a binding legal decision. Compared to the other modes of peaceful dispute settlement mentioned by Article 33 paragraph 1 of the UN Charter, for instance, negotiation, enquiry, mediation, conciliation, or resort to regional agencies or arrangements, the referral of a dispute to a court entails stringent conditions for the parties to a dispute. Whereas the aforementioned diplomatic means (Berridge, 2005 and Satow, 1917) allow for a large degree of flexibility and liberty to tackle the contentious issue, without too many formal constraints of law and court procedures, the submission of a case to a tribunal often puts a straitjacket on the parties which they will accept for compelling reasons only. Once a case is pending before a court, the parties to the dispute in question are no longer the sole masters of the game. Even though arbitration leaves more ambit for the parties to influence the proceedings than a case submitted to an independent court, quite obviously the involvement of a third party, be it an arbitration tribunal or a fully fledged court, will always remove the decisive control of the situation from the parties. It will automatically subject the solution to the strict rules of international law as applied and interpreted, not by either party but by an independent body.In the history of international relations (Wendt, 1999), both arbitration and judicial settlement are relatively recent phenomena, appearing only at an advanced stage of development and integration of the international community of states.
This state of affairs is not surprising given the fact that until the beginning of the twentieth century, the concept of the sovereign State dominated the international system. The very idea of a State ceding the authority for settling a legal dispute to a third party institution was alien to the concept of absolute State sovereignty. In principle, within the domestic context, courts and tribunals took their authority from the State and generally exercised their jurisdiction over physical persons. It required a momentous paradigm shift to gradually introduce the scheme of adjudication to the international sphere. The growing integration of the international community and the progressive development of international law gained momentum in the course of the twentieth century and furthered the concept of peaceful conflict resolution by legal means. In a system of absolute State sovereignty, the handing over of a legal case to an international court would have been quite unthinkable. Gradually, however, states accepted the concept of international jurisdiction by independent courts and further accepted the idea that they too could be taken to court and put on trial.Before attempting to define the similar but different concepts of arbitration and judicial settlement, it seems appropriate to draw attention to yet another aspect of conflict resolution by international courts.
As indicated above, originally the judicial settlement of conflicts concerned states only. They were considered the primary subjects of international law which, under certain conditions, could choose to submit a case to international adjudication. In addition to the competence of international courts to pass judgements in legal disputes between states, a new kind of international court and jurisdiction emerged.
Following the two world wars of the twentieth century, a new concept of international criminal courts made its appearance and developed successfully. It was the indictment and judgement of war criminals as exemplified by the Tokyo1 and Nuremberg2 tribunals that served as a model for the elaboration of a whole body of international criminal law which culminated in the adoption of the Statute of the International Criminal Court (ICC) (Zimmermann, Tomuschat and Oellers-Frahm, 2006) in 1999.
The advancement of international criminal jurisdiction marks a further step in the development of peaceful settlement of disputes by legal means.In contrast to the traditional scheme of adjudication involving states or other subjects of international law, the very concept of international criminal jurisdiction addresses itself primarily to physical persons. The main argument in favour of including international criminal jurisdiction into the modes of peaceful settlement of disputes stresses the peacemaking role of international penal courts which, by trying persons guilty of international crimes, render justice which in turn is a prerequisite for rebuilding a shattered society.
Reconciliation in regions that were torn by wars or fratricidal ethnic conflicts (e.g. the Balkans, Rwanda) can only proceed successfully if the perpetrators of the most serious crimes related to these conflicts are brought to justice. The re-establishment of peace and stability in a crisis region therefore requires an effective system of criminal justice.
In this regard, the exceptional case of Iraq is worth mentioning. After the downfall of Saddam Hussein, the question of bringing to justice the key figures of his criminal regime had to be resolved. For the particular reasons prevailing in the aftermath of the Iraqi regime, the decision was taken to bring these criminals before a national Iraqi court rather than resorting to an international criminal tribunal.
The innovative element of the concept of international criminal justice or of human rights courts is the fact that the conventional scheme of adjudication and judicial settlement of legal conflicts between states (horizontal jurisdiction) is now complemented by judicial institutions, rules, and procedures that involve individuals (vertical jurisdiction). Both systems thus play a crucial role in contributing to ‘peace through justice'. It is for this reason that vertical jurisdictions (criminal courts, human rights courts) are given appropriate consideration in this chapter.
It may be questioned whether international human rights courts also belong within the ambit of arbitration and judicial settlement of disputes. However, if one takes a broader view embracing the conviction that “peace begins at home”, it makes sense to briefly deal with the international human rights courts which so far have remained a regional phenomenon.Both court judgements and arbitration awards are rendered on the basis of consent by the parties accepting the jurisdiction of the judicial institution. Such consent can be expressed with regard to a specific case or generally with regard to certain future cases. Often a treaty contains a clause providing for the establishment of a body entrusted with the judicial settlement of all legal disputes arising from the implementation or interpretation of that very treaty. It follows from such an arrangement that the scope of judicial competence of the legal body established is limited to the treaty, or if so agreed, to certain elements of it. Arbitration clauses can be found both in bilateral and multilateral treaties. Whereas in the bilateral context, the two parties to the arbitration proceedings are identified from the outset, this is not necessarily the case in a multilateral context. Multilateral agreements generally provide for dispute settlement clauses concerning the interpretation or application of their provisions. One cannot foresee in advance which party of the multilateral agreement might possibly be involved in a legal dispute over the obligations stemming from the treaty.
Of paramount importance in any decision by the parties to resort to either judicial settlement or arbitration is the preparedness to accept and to implement the ruling of the independent body whose judgement is based on international law. This implies the definition of the dispute in terms of law which is not always easy, as the parties to a dispute usually take different, if not opposing, views on the legal issues at stake.
In summing up, one can retain the following salient features with regard to arbitration and adjudication as means of peaceful dispute settlement:
• Both methods require the consent of the parties to accept the judgement of an independent judicial institution on the dispute which divides them.
• The acceptance of a court's jurisdiction can be expressed by the parties either ad hoc with regard to a specific dispute, or in general and in advance with regard to certain kinds of disputes (e.g. arbitration clauses in treaties, Statute of ICJ Article 36).
• Whereas arbitration leaves more room for influence by the parties on the composition of the tribunal chosen and on the precise scope of its jurisdiction, an institutionalized court, such as the ICJ, imposes stricter conditions on the parties.
• Judicial settlement by an independent international tribunal means accepting the norms of international law as the basis of the judgement. In referring a case to a court, the parties admit that the dispute concerned will be judged as ‘a legal dispute'.
• Vertical jurisdictions (e.g. ICC, human rights courts) dealing with individuals represent new forms of dispute settlement methods by legal means. Although they concern primarily individuals, the acceptance of such vertical jurisdiction is also expressed by states on the basis of international agreements. The function of International Criminal or Human Rights courts contributes to the establishment of peaceful international relations and stable domestic conditions, insofar as they ensure respect for human rights and criminal justice. These vertical jurisdictions can be seen as agents of an emerging international public order. In a broader perspective, they can also be considered as legal instruments of the resolution of international disputes.