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The International Court as Constitutional Court and the Blurring of the Arbitral/Judicial Processes

Published online by Cambridge University Press:  21 July 2009

Edward McWhinney
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Extract

The institutionalization of international conflict-resolution on a third-party basis, with the creation of a Permanent Court of Arbitration, was one of the high hopes of the political leaders at the First Hague Peace Conference in 1899. In the early phase, from creation of the Court in 1902 until the outbreak of World War I in 1914, 17 cases were initiated before the Court. There was a quite understandable gap, through the War years, until 1921; and then, in the decade until 1931,7 further cases were brought before the Court. This was followed by another awkward hiatus as to cases throughout the 1930s, apparently because of the renewed international tensions in Europe that culminated in World War II. There were no cases before the Court during the War years, the seat of the Court being under belligerent occupation for most of that time. The fact remains, however, that since World War II and, indeed, since 1931, there have been only two cases (both minor ones) brought before the Court, (or three, if we accept the Court Registry's retroactive classification, in its 1990 Annual Report, of the continuing Iran-US Claims Tribunal, which had begun its work in 1981, as one of its own cases).

Type
Articles
Information
Leiden Journal of International Law , Volume 6 , Issue 2: Special Issue 1993: THE FLAME REKINDLED: New Hopes for International Arbitration , August 1993 , pp. 279 - 287
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1993

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References

1. The preceding statistics are detailed in the Permanent Court of Arbitration's own yearbook: Cour Permanente d'Arbitrage, 90ème Rapport Annuel 42–49 (1990).

2. Customs Régime between Germany and Austria, 1931 P.C.I.J. Rep., Ser. A/B, No. 41, at 42.

3. For more detailed analysis of the Canadian National Group's practice, see Lee and McWhinney, The 1987 Elections to the International Court of Justice, 25 Can. Y.B.I.L. 379 (1987); McWhinney and April, The 1990 Triennial Elections to the International Court of Justice and the 1989 Casual Election, 28 Can. Y.B.I.L. 403 (1990).

4. See, in this regard, McWhinney and April, op. cit., at 403–5.

5. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. Rep. 16.

6. South West Africa, Second Phase, Judgment, 1966 I.C.J. Rep. 6.

7. Developed more fully, in E. McWhinney, Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial law-making on the Contemporary International Court 16 et seq. (1991).

8. Beagle Channel Arbitration (Argentina v. Chile), Arbitration Award, (April 18, 1977), 17 I.L.M. 634 (1978).

9. McWhinney, Judicial Settlement of International Disputes 58–9, 62–72 (1991).

10. Delimitation of the Maritime Boundary in the Gulf of Maine Area, (Canada v. U.S.A.), Constitution of Chamber, Order of January 20, 1982, 1982 I.C.J. Rep. 3; Judgment 1984 I.C.J. Rep. 246.

11. 1982 I.C.J. Rep. 3; id., 10 (Oda J., Declaration); id., 12 (Morozov J., Dissenting Opinion); id., 13 (El-Khani J., Dissenting Opinion).

12. McWhinney, Judicial Settlement of International Disputes 79–80 (1991).

13. Continental Shelf (Libyan Arab Jamahiriya v. Malta), 1985 I.C.J. Rep. 13, 165–9 (Oda J., Dissenting Opinion).

14. Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening), 1992 I.C.J. Rep., (Oda J., Dissenting Opinion).

15. S. Rosenne, Equity, in Bloed & van Dijk (eds.). Forty Years International Court of Justice 88 (1988); E. McWhinney, Judicial Settlement of International Disputes 80 (1991).

16. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of April 14, 1992, 1992 I.C.J. Rep. 3; id., (Libya v. U.S.A.), 1992 I.C.J. Rep. 114.

17. See, especially, Judge Lachs' comment: “There is an old Roman law principle that if you resort to one method you cannot resort to other methods. Well, we have abandoned this -I was very active in abandoning it- and if there is a dispute, now you have to seek all methods, perhaps simultaneously, in order to solve it”. Cited in Sturgess and Chubb, Judging the World 463 (1988). See also E. McWhinney, Judicial Settlement of International Disputes 142–147 (1991).

18. 1992 I.C.J. Rep. 3, at 17 (Oda J., Declaration); 20 (Ni J., Declaration); 24 (Evensen, Tarassov, Guillaume and AguilarMawdsley, JJ., Joint Declaration); 26 (Lachs J., Separate Opinion); 28 (Shahabuddeen J., Separate Opinion); 33 (Bedjaoui J., Dissenting Opinion); 50 (Weeramantry J., Dissenting Opinion); 72 (Ranjeva J., Dissenting Opinion); 78 (Ajibola J., Dissenting Opinion); 94 (El Kosheri J. ad hoc. Dissenting Opinion).

19. See the prophetic analysis advanced by Wilhelm Wengler, in 1991, as to the case for judicial review of the Security Council when it acts in a judicial or quasi-judicial capacity in making determinations under Chapter VII of the Charter. Wengler, International Law and the Concept of a New World Order, in McWhinney, Zaslove, Wolf (eds.), Federalism-in-the-Making: Contemporary Canadian and German Constitutionalism, National and Trans-national (1992).