The purpose is to provide a general survey of the practice among States of the peaceful settlement of

international disputes. The survey reflects the variety of instruments for peaceful settlement, including
negotiation, conciliation and commissions of inquiry. Care is taken to indicate the quantitative
significance of the inter-State arbitration in relation to the use of standing international tribunals, such
as the International Court of Justice. The analytical commentary includes discussion of the typology of
disputes and the comparative merits of arbitration and the process of adjudication in the International
Court.

1. It is logical to begin by asking what purposes international

law serves. In a general way, international law provides the
practical rounding out of the principles of peaceful coexistence. International law provides the criteria for the
identification of States and organizations of States, and of the
nationality of individuals and legal entities. International law
provides the definition of the political and territorial limits and
the jurisdiction of States, and also their immunities from
jurisdiction. International law also provides the basis of the
civil responsibility of States for breaches of international law,
together with the appropriate remedies. And lastly
international law provides the principles and modalities
governing the peaceful settlement of disputes between
States.
2. And before I move into my subject, I would point out the
anomaly to be found in a number of academic handbooks,
that is to say, the absence of an adequate treatment of the
subject of peaceful settlement. This is a pity because,
although international law is a relatively weak system and it
is often difficult to obtain a peaceful resolution of a dispute,
there is in fact a regular pattern of peaceful settlement which
is inadequately reported, probably because of the absence of
any drama, an absence of casualties.
3. My subject matter is the settlement of disputes. A dispute
can be defined as a disagreement on a point of law or fact, a
conflict of legal views or of interests between two States.
Disputes relate to an alleged breach of one or
more legal duties. They may also relate to a question
ofattribution of title to territory, to maritime zones, to
movables or to parts of the cultural heritage of a State.

4. Peaceful settlement is a phrase which covers a

considerable variety of processes and outcomes. The
following cases are merely examples:

a.

settlement according to law resulting from judicial decision or arbitration;

b.

settlement involving negotiations between States and political compromise;

c.
d.

pre-ordained settlements, such as the reversion of Hong Kong to China, in accordance with
the Joint Declaration on the Question of Hong Kong agreed in 1984;1
multilateral settlements implemented with the lawful authority of the international
community, including the Peace Treaties with Italy2 and Japan3 after World War Two.

5. The standard type of dispute settlement is based upon the

genuine consent of the parties to the dispute and involves
the application of law, and in the case of purely factual
issues, the application of judicial standards of the assessment
of evidence.
6. There are certain limitations placed upon the justiciability
of disputes which are dictated by rule of law considerations.
In the first place, there is the distinction between legal and
political disputes. The essential point is not the existence of a
political element; disputes will always have such an element.
The requirement is the existence of a legal dispute which can
be segregated from the political elements. There are also
more technical bases for non-justiciability, and especially the
element of mootness. Thus, in the Northern Cameroons
Case, 4 the International Court found that the legal status of
the territory in question had already been determined by the
General Assembly.
7. In the well-known Nuclear Tests Cases5 in 1974, the
International Court held that the issue raised by Australia and
New Zealand was moot as a consequence of French
undertakings not to continue the nuclear tests. In the words
of the Court:The Court, as a court of law, is called upon to
resolve existing disputes between States. Thus the existence
of a dispute is the primary condition for the Court to exercise
its judicial function; it is not sufficient for one party to assert
that there is a dispute, since whether there exists an
international dispute is a matter for objective determination
by the Court (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania (First Phase), Advisory Opinion, I.C.J.

Reports 1950, p. 74). The dispute brought before it must

therefore continue to exist at the time when the Court makes
its decision. It must not fail to take cognizance of a situation
in which the dispute has disappeared because the object of
the claim has been achieved by other means. If the
declarations of France concerning the effective cessation of
the nuclear tests have the significance described by the
Court, that is to say if they have caused the dispute to
disappear, all the necessary consequences must be drawn
from this finding.8. Certain situations involve complex
questions of territorial title and allegiance which cannot be
resolved within the framework of a bilateraldispute. This was
the case in the Western Sahara case,6 on which the
International Court gave an Advisory Opinion in 1975.
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I. The typology of disputes

9. Territorial and boundary disputes concern both substantial material interests but also sensitive
questions of social geography and traditional regional connections. It is tempting to seek to design a
typology of disputes. Certainly, territorial and boundary disputes have relatively special characteristics.
In the first place, they involve neighbouring States and therefore may generate problems of public
order. Second, the process of peaceful settlement may take place only a year or two following an
armed conflict related to the very same issues which gave rise to the armed conflict. This was true of
the Rann of Kutch arbitration,7 theEritreaEthiopia Boundary Commission Case8 and the Cameroon v.
Nigeriacase9 before the International Court of Justice.
10. Third, areas involved in a boundary dispute may include populations whose regional and historical
ties may be threatened with disturbance as a direct result of the determination of a land boundary. In
the aftermath of the Cameroon v. Nigeria case, the problems of implementation were the subject of an
Agreement concerning the modalities of withdrawal and transfer of authority in the Bakassi Peninsula
prepared by a CameroonNigeria Mixed Commission. The International Court decided the case on 10
October 2002. The Agreement on implementation was concluded on 12 June 2006. 10
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II. Methods of settlement

11. I can now move on to the different methods of peaceful settlement. There is a variety of
instruments apart from judicial settlement and the literature of international law perhaps gives too
much emphasis to adjudication.
12. The first and classical mode of settlement is negotiation. This involves a direct and bilateral
process. Negotiation can produce a settlement in accordance with legal criteria or in accordance with
both legal and political criteria. In any case, negotiation is politically more flexible than adjudication.
13. A recent example of a negotiated settlement related to the NATO bombing campaign against
Yugoslavia in 1999. On 7 May 1999, NATO aircraft bombed the Chinese Embassy in Belgrade, killing
three Chinese nationals and wounding approximately 20 others. American officials described the
episode as a tragic mistake.

14. On 30 July 1999, the United States agreed to pay China the sum of four and a half million dollars
for the families of those killed or injured. The Memorandum of Understanding 11 provided in part:
1. The two sides have reached a consensus on the payment relating to deaths, injuries or
losses suffered by the personnel of the Chinese side. The U.S. Government will pay to the Chinese
Government the sum of U.S. $4,500,000 in a single payment as promptly as possible consistent with

U.S. legal requirements, for direct distribution by the latter to the bereaved families and those
suffering injuries or losses.

2. The Chinese Government, upon receipt of the amount mentioned above, will distribute, as
soon as possible, all the funds among the bereaved families and those suffering injuries or losses, and
provide the U.S. Government with relevant information and receipts confirming the distribution.

3. The agreed amount, when fully paid as agreed, will constitute a full and final settlement of
any and all claims for deaths, injuries or losses suffered by the personnel of the Chinese side caused
by the U.S. bombing of the Chinese Embassy in the Federal Republic of Yugoslavia.

4. The banking modalities are contained in the attached Annex.

5. The U.S. side has indicated that it will continue the negotiations with the Chinese side on the
settlement of the property loss and damage of the Chinese side on an expedited basis.
US Department of State Legal Adviser David R. Andrews asserted that the payment will be entirely voluntary and does not
acknowledge any legal liability. This payment will not create any precedent. 12

15. After five rounds of talks, the United States and China, on 16 December 1999, also signed two
agreements concerning compensation for damage to the diplomatic properties of both States. In the
first agreement, the United States stated its intent to seek US$ 28 million in funding from Congress for
damage to the Chinese Embassy in Belgrade. In the second agreement, China agreed to pay US$ 2.87
million for damage to US diplomatic and consular properties in China caused by the Chinese
demonstrations.13
16. Negotiation has a role in the less dramatic context of maritime delimitation. I refer here to the
Agreement between the PRC and the Socialist Republic of Vietnam signed on 25 December 2000 on
delimitation in the Beibu Gulf.14 The first paragraph of the Agreement provides as follows:1. The
Parties have determined the demarcation line for the territorial seas, exclusive economic zones and
continental shelves of the two countries in the Beibu Gulf in accordance with the 1982 United Nations
Convention on the Law of the Sea, generally accepted principles of international law and international
practice, based on the full consideration of all relevant circumstances of the Beibu Gulf and on the
equitable principle, and through friendly consultation.
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III. Mediation
17. The next type of procedure is mediation, which is the first of a series of modes of third-party
settlement. Good offices is a similar mechanism. There is no standard definition of mediation but it is
nonetheless normally distinguished from conciliation. In principle, mediation involves the direct
conduct of negotiations on the basis of proposals made by the mediator. Modern practice contains an
important example of an effective mediation. This was the Papal Mediation in the years 1978 to 1984
between Chile and Argentina.15 The two States formally accepted the mediation of the Holy See in the
Agreement signed on 8 January 1978. The mediation lasted five years and resulted in a definitive
Treaty of Peace and Friendship signed on 29 November 1984. 16 Other modern examples of mediation
exist. They include the mediation of the Soviet Union between India and Pakistan over the Rann of
Kutch in 196617 and the mediation of Algeria between Iran and the United States concerning the
Hostage Crisis in 19801981.18
18. Mediation is commonly provided for in various multilateral treaties for the peaceful settlement of
disputes. The United Nations and, in particular, the Secretary-General, have often either recommended
or performed mediation or good offices, for example in Cyprus from 1984 onwards. 19
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IV. Conciliation
19. The next type of third-party settlement is conciliation which is similar in purpose to mediation. The
emphasis is usually on fact-finding, and conciliation is believed to be more structured than mediation.
20. The institution has been defined as: 20the process of settling a dispute by referring it to a
commission of persons whose task it is to elucidate the facts and usually after hearing the parties and
endeavouring to bring them to an agreement to make a report containing proposals for a settlement,
which is not binding.21. There have been only a small number of conciliation procedures in recent
times, and the procedure tends to emerge as less attractive than arbitration. In 1995, the Special
Committee on the Charter of the United Nations proposed a revised version of the Model Rules for the
Conciliation of Disputes between States, and this was approved by the Sixth Committee.
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V. Commissions of inquiry
22. A device which has proved useful on some occasions is the Commission of Inquiry. This institution
originated in the Hague Conventions of 1899 and 1907. Its specific purpose is to elucidate the facts
behind a dispute in order to facilitate a settlement. It does not involve the application of rules of law.
23. The purpose of the Commissions of Inquiry is provisional and political. The device is linked to the
idea that the resort to an inquiry provides a cooling off period and reduces the risk of countermeasures or breaches of the peace. Moreover, the Report on the facts de facto facilitates the
settlement of the dispute. Recent examples of Commissions of Inquiry concerned the Red
Crusader incident between Denmark and the United Kingdom (1962), 21 and
the Letelier and Moffitt case between Chile and the United States (1992).22 By way of exception in
both these cases, the role of the Commission was not confined to findings of fact and was essentially
judicial.
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VI. Arbitration
24. I shall now move to the substantial topic of arbitration.
25. The general concept of arbitration is ancient, but in modern practice it appears in the Jay Treaty of
1794, between the United States and Britain. The institution gained a political profile in AngloAmerican practice of the late nineteenth century. The spectacular case was the Alabama ClaimsAward
of 1872,23 by which the United Kingdom was ordered to pay compensation to the United States of 15
million dollars for her acts of intervention on the side of the Confederate forces in the Civil War. The
Tribunal consisted of an uneven number of members with the power to decide by majority vote. The
Tribunal adopted a judicial procedure and produced a reasoned Award. Other nineteenth-century
arbitrations included the Behring Sea arbitration (1893),24 the British Guianaarbitration (1897)25 and
the North Atlantic Coast Fisheries arbitration (1910).26
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VII. The Permanent Court of Arbitration

26. I must mention the establishment in 1899 of the Permanent Court of Arbitration. This is an
institution with premises and staff based in the Peace Palace in The Hague. The institution includes a
panel of arbitrators nominated by the contracting States of the Hague Convention. In the years up to
1931, 20 cases of arbitration were heard under the auspices of the Permanent Court. In the recent
past, the apparatus of the Permanent Court has played a useful role in providing a Registrar and
accommodation for several inter-State arbitrations.
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VIII. The applicable law

27. In the nineteenth century practice, the arbitration Tribunals were mandated to apply law and
equity and Awards were produced without reasons. In the twentieth century, the modalities of
arbitration were essentially the same as adjudication, and the modalities involved the application of
legal principles and the adoption of a fully reasoned Award. The essential character of arbitration is
that it is ad hoc, private and expensive. In principle, it is free from preliminary objections, but there
may be issues relating to the scope of the dispute.
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IX. Enforcement of awards

28. Arbitral Awards are binding, and provision for appeal is relatively rare. However, proceedings for
annulment are possible, for example, in case of an excess of jurisdiction. Some arbitration agreements
permit further proceedings in the event of a dispute concerning the implementation and interpretation
of an Award.
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X. Arbitrations since 1945

29. Since 1945, the incidence of arbitration has been fairly high and it is important to bear in mind that
some arbitrations are as important as many of the cases before the International Court of Justice.

30. Arbitrations fall into two categories, those under clauses in standing treaties and those under ad
hoc agreements to arbitrate.
31. The following arbitrations occurred under standing treaty clauses:
1.

Air Transport Services Agreement Arbitration (United States v. France), Award 1963 and
Interpretative Decision 1964.27
2.
ItalyUnited States Air Transport Arbitration, Award (Advisory Opinion), 1965.28
3.
ArgentinaChile Frontier (Palena) Case, 1966.29
4.
Beagle Channel Arbitration, Award and Decision, 18 February 1977 (Chile and Argentina). 30
32. The Beagle Channel Arbitration represents an interesting example of compulsory jurisdiction based
upon a trilateral compromiso. The background is explained in the Declaration by the British
Government dated 18 April 1977, which reads in part:WHEREAS the Argentine Republic and the
Republic of Chile hereinafter referred to as the Parties became parties to a General Treaty of
Arbitration signed at Santiago on 28th May 1902(2) hereinafter referred to as the Treaty;AND
WHEREAS His Britannic Majesty's Government duly accepted the duty of Arbitrator conferred upon
them by the Treaty;AND WHEREAS a controversy has arisen between the Parties concerning the region
of the Beagle Channel;AND WHEREAS, on this occasion, the Parties concurred with regard to the
applicability of the Treaty to this controversy and requested the intervention of Our Government in the
United Kingdom of Great Britain and Northern Ireland as Arbitrator;AND WHEREAS Our Government in
the United Kingdom after hearing the Parties were satisfied that it would be appropriate for them to act
as Arbitrator in the controversy;AND WHEREAS OUR Government in the United Kingdom in accordance
with the Treaty and after consulting the Parties separately determined the Agreement for Arbitration
(Compromiso) which was signed on behalf of Our Said Government and the Parties at London on
22nd July 1971(3);AND WHEREAS for the purpose of fulfilling their duties as Arbitrator Our Government
in the United Kingdom appointed a Court of Arbitration composed of the following members:
Mr. Hardy C. Dillard (United States of America)

Sir Gerald Fitzmaurice (United Kingdom)

Mr. Andr Gros (France)

Mr. Charles D. Onyeama (Nigeria) and

Mr. Sture Petrn (Sweden)

AND WHEREAS, the Government of the Argentine Republic having on 11th March 1972 denounced the Treaty with effect from
22nd September 1972, both Parties stated their understanding, which was shared by Our Government in the United Kingdom, that
this would in no way affect the arbitration proceedings in the present case and that the Treaty and the Agreement for Arbitration
(Compromiso) would continue in force with respect to those proceedings until their final conclusion.33. The subject-matter of this
arbitration was extremely sensitive and it is to be noted that the composition of the Tribunal did not include arbitrators from the
region.

34. In the event, the islands in question were awarded to Chile and the military government in
Argentina purported to annul the Award. In spite of this unhappy outcome, the subject-matter of the
dispute was subjected to the mediation of His Holiness the Pope and the resulting Treaty of Peace did
not disturb the allocation of the islands in the original Award.
35. Several maritime delimitation cases have been dealt with in accordance with Annex VII of the
United Nations Convention on the Law of the Sea, namely:

The Southern Blue Fin Tuna case (Australia and NZ v. Japan), Award dated 4 August 2000; 31
The case of Barbados and the Republic of Trinidad and Tobago, Award dated 11 April
2006;32 and

The case of Guyana and Suriname, Award dated 17 September 2007.33

36. The second category of arbitration cases consists of those heard on the basis of ad hoc special
agreements or compromis. In the period since 1945, cases of this type were as follows:
1.
Rann of Kutch Case (India and Pakistan), Award dated 19 February 1968.34
2.
Anglo-French Continental Shelf Case, Award dated 30 June 1977.35
3.
Case concerning the Air Services Agreement of 27 March 1946(United States v. France),
Award dated 9 December 1978.36
4.
Guinea-Guinea (Bissau) Maritime Delimitation Case, Award dated 14 February 1985.37
5.
Dispute concerning Filleting within the Gulf of St Lawrence(Canada/France), Award dated
17 July 1986.38
6.
Taba Case (Boundary Pillars between Egypt and Israel), Award dated 29 September 1988. 39

7.

Rainbow Warrior Case (New Zealand v. France), Award dated 30 April 199040 (issues of
State responsibility in re ruling of Secretary-General).
8.
St Pierre et Miquelon (Maritime Delimitation between Canada and France), Award dated 10
June 1992.41
9.
Determination of Maritime Boundary (Guinea-Bissau v. Senegal), Award dated 31 July
1989.42 The aftermath of this Award involved the resort to the International Court on the part of
Guinea-Bissau in an unsuccessful attempt to obtain a declaration of nullity: see Case
concerning the Arbitral Award of 31 July 1989.43
10.
Heathrow Airport User Charges (United StatesUnited Kingdom), Award dated 30 November
1992; Suppl. Decision, 1 November 1993,44 and, finally,
11.
Red Sea Islands Case (Eritrea and Yemen), Phase One, Award dated 9 October 199845;
Phase Two, Award dated 17 December 1999.46
37. Looking back at the accumulation of arbitration cases, it is clear that inter-State arbitration
provides a major element in the pattern of methods of peaceful settlement. Consequently, arbitration
clearly constitutes a major competitor to both the International Court and the Law of the Sea Tribunal.
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XI. Arbitration and adjudication can now be compared

38. The following observations may be made:
a.

The control over procedure exercised by the parties is much greater in the case of
arbitration. While the flexibility of arbitration has some attraction, control by the parties can
lead to substantial delay.

b.

Arbitration is litigation in conditions of privacy: no third-party intervention is possible. This

absence of the possibility of intervention gives arbitration an advantage over the International
Court, in which third-party intervention is allowed under certain conditions.

c.

The International Court has the advantage that the Court and Registry are available without
cost.

d.

Arbitration usually produces no jurisdictional problems.

e.

Enforcement problems tend to be less acute in the case of the International Courtbut
both systems have enforcement problems.

f.

Arbitration is relatively expeditious, but a number of arbitrations concerned with territorial

disputes and maritime delimitation have taken as long as proceedings in the International
Court.

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XII. The standing Court known as the International Court of Justice

39. The International Court of Justice is the principal judicial organ of the United Nations. As such, the
Court performs two roles. In the first place, it is available to States generally for the purpose of dispute
settlement. Thus even States not bound by the system of compulsory jurisdiction may agree to resort
to the Court on the basis of a special agreement. In this way, the Court is in competition with the
practice of ad hoc arbitration.
40. In the second place, the Court has a jurisdiction of an advisory character, which involves a duty to
give advice to the political organs of the United Nations at their request on any legal question. Article
96(1) of the Charter allows other organs of the United Nations and specialized agencies to request an
opinion, if they are authorized by the General Assembly to do so.

41. Article 36, paragraph 2, of the Statute of the Court creates the basis of the system of compulsory
jurisdiction. This provides in material part as follows:2. The States parties to the present Statute may
at any time declare that they recognize 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.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain
States, or for a certain time.4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall
transmit copies thereof to the parties to the Statute and to the Registrar of the Court.42. The incidence of acceptances of jurisdiction
in advance under Article 36(2) has varied over the years. At present, out of 193 member States of the United Nations, 66 States
have accepted the jurisdiction based upon Article 36(2). The number of acceptances as a proportion of parties to the Statute has
steadily decreased but in recent years has been stable. In any event, a good number of States take cases in front of the Court on the
basis of special agreements in preference to going to arbitration. Since 1984, the Court has been reasonably busy, usually with
some 12 cases on the docket. At present, at least 16 cases are on the docket. From 1946 until the present, the Court has dealt with
110 contentious cases and 24 requests for advisory opinions.

43. What then are the principal purposes of the Court?

First, to settle disputes effectively;

Second, to remove issues of public order, such as uncertain boundary lines, and thus to reduce
the risk of conflict.

Third, to develop the rules of the law;

Fourth, to provide an exemplar for the management of cases by other tribunals.

44. The Court is a collegiate body and it maintains a high standard of independence and
professionalism. With rare exceptions, the Court avoids the making of compromise solutions
sometimes to be seen in the work of courts of arbitration. There remain a number of problems which
are probably inherent in the political context in which the Court exists. Some Governments consider
that the Court should deal with cases more expeditiously, while others are put in fear by what can be
seen to be too much haste, especially in relation to matters of fact.
45. In general, the prognosis for the Court is good. The flow of cases is broad-based and not confined
to one type of jurisdiction or to States of a particular region.
46. Certain cases, such as the Nuclear Tests Cases47 or the NicaraguaCase,48 have attracted forecasts
of doom for the Court. But there is no evidence that such decisions had deterrent effects and the
business of the Court actually increased in the wake of the Nicaragua case.
47. In any event, the jurisdiction of the Court depends upon consent, and it is always consent which
lies behind the main sources of jurisdiction; that is:

compulsory jurisdiction by virtue of declarations made under Article 36(2) of the Statute;

ad hoc consent for particular cases derived from negotiated special agreements;
dispute settlement clauses in pre-existing treaties, as in the ELSI case between the United
States and Italy.49 This case was based upon the Treaty of Friendship, Commerce and Navigation of
1948.
48. I shall now look more closely at the System of Compulsory Jurisdiction. In the context of
international relations both in 1920 and in 1945, the conception of compulsory jurisdiction in a
standing court of international justice was very radical indeed and remains so. It is conventional to
assess the role of the Court almost exclusively in terms of the progress and rate of development of the
system of compulsory jurisdiction. Initially at least that will be my angle of approach.
49. In the United Kingdom and elsewhere, the conventional view has been that there is a qualitative
deterioration in the system of compulsory jurisdiction:

a.

b.
c.

There is the practice of making reservations. It was in fact recognized from the very outset
that States accepting the compulsory jurisdiction had a certain power to define the classes of
legal disputes with respect to which the declaration of acceptance was to apply, and to impose
conditions ratione personae. But the variety and nature of the reservations was perhaps not
fully appreciated.
There is the use of the automatic reservation. The U.S. Declaration of 1946, withdrawn in
1985, included the reservation relating to disputes essentially within the domestic jurisdiction
of the U.S. as determined by the U.S..
There is the reservation of the right to withdraw acceptance at will, and at any moment, by
notice to the Secretary-General of the United Nations.

50. Leaving these matters aside, it was supposed that the statistics of the decisions revealed that the
performance of the Court was modest:PCIJ30 Contentious cases leading to judgmentI.C.J.112
Contentious cases24 Advisory opinions51. That is, so to speak, the pessimistic view of the Court.
52. In general, this picture of dilapidation is considerably out of focus. The different sources of the
alleged dilapidation may be taken one by one:
a.
First, the significance of the system of compulsory jurisdiction as such.No doubt it has
symbolic significance and this explains the tendency to make the Optional Clause the only
measure of the performance of the Court, and to regard it as a criterion of successful operation.
But many States are prepared to use the Court on the basis of special agreements, sometimes
even when they could have used the Optional Clause jurisdiction. Since 1945, some major
disputes have been submitted to the Court by means of special agreements.
b.

The second source of dilapidation relates to the significance of reservations and is perhaps
exaggerated. They were always part of the scheme of things and indeed the possibility of
making reservations was seen by the League Assembly as a means of encouraging adherence
to the Optional Clause. In any case, the Court has placed limitations on the process of exploiting
the principle of reciprocity. The significance of the automatic reservation has been less than
expected:
1.

After it backfired against France in the Norwegian LoansCase,50 it looked less

useful.

2.

Originally the U.S. example was followed by five States. Of States presently
Parties to the Optional Clause, very few employ the automatic reservation.

3.
c.

d.

It may be noted that the automatic reservation was not invoked by the United
States in the Nicaragua case.
The third source of alleged dilapidation relates to the question of procedural reforms.In the
1978 Rules of Court, various criticisms were taken into account. And in any case, it may be
doubted whether internal procedural reform is a major issue.
The fourth alleged problem is the supposedly disappointing amount of business the Court
gets.

It may be recalled that the Court had 98 contentious cases up to the end of 1999, and at that time this
was regarded as a very modest production. But this type of arithmetic is a poor index of the practical
significance of the Court. Other indices and factors should be taken into account. Since 1984, there has
been a regular flow of work. The flow of business is broad-based and not confined to one type of
jurisdiction or to States of a particular region. This is a significant element in any assessment of the
work of the Court. It is to be emphasized that the cases before the Court have a special character.
The true analogy is with public law and the key question is often status and not compensation. A high
proportion of decisions concern the status of territory and the allocation of important resources. Such
decisions include the following:
Anglo-Norwegian Fisheries;51
North Sea Continental Shelf Cases;52
Gulf of Maine case;53
Chad v. Libya;54
Denmark v. Norway;55
Cameroon v. Nigeria.56
53. In sum, these considerations suggest that the picture of dilapidation normally presented is
exaggerated to a substantial degree.
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XIII. Concluding observations

54. In coming to my conclusion, I shall look at the more problematical aspects of the process of
adjudication, whether in the International Court or in courts of arbitration. The special attraction of
adjudication is that it is definitive and removes a source of political antagonism and tension between
the parties. The alternative is either negotiation, which involves the responsible officials in making
compromises, or inaction.
55. At the same time, adjudication involves a loss of political control over a situation. As Sir Gerald
Fitzmaurice has observed:57The main conclusion is that apart from the natural reluctance to litigate
felt by almost everyone, governments prefer to deal with disputes by political means rather than by

submission to adjudication, and fight shy of the commitment involved by going to law: they dislike the
loss of control that is entailed over the future of the case, the outcome of which they can no longer
influence politically once it is before a court of law, since this will then depend upon legal
considerations with which they do not find themselves at home. They much prefer a political forum
such as the United Nations in which leverage can be exercised through the influence of majorities. In
general, the proliferation of international organisations has proved a disservice to the cause of
international adjudication.Fitzmaurice was the British Foreign Office Legal Adviser for many years, and
expressed this view in 1973 after his retirement.
56. In any event, adjudication has certain inherent limitations. In the first place, the International Court
is to a great extent dependent upon the parties when it comes to matters of fact and the Court is
reluctant to ask questions of the parties. And there is no appeal. Second, the International Court
sometimes operates in legal fields on the margins of normal areas of justiciable issues.
The Gabcikovo case between Slovakia and Hungary is a good example of this experience. With a
degree of confidence in the survival of the contractual framework (the 1977 Treaty), the Court held by
13 votes to 2:that Hungary and Slovakia must negotiate in good faith in the light of the prevailing
situation, and must take all necessary measures to ensure the achievement of the objectives of the
Treaty of 16 September 1977, in accordance with such modalities as they may agree upon . 5857. In
cases such as this, the Court is, in effect, transferring the burden of decision-making back to the
parties. While the intention is to be constructive, the result is contradictory because the parties in the
Special Agreement of 1993 had expected the Court to answer the questions formulated in Article 2.
58. By way of conclusion, it is convenient to present a series of propositions:

First, the system of peaceful settlement of inter-State disputes is a significant part of the
universe of international relations.

Second, the modalities are very varied and adjudication is simply oneinstrument forming part
of an entire orchestra of modes of peaceful settlement.
Third, in relation to settlement on the basis of law, the practice of arbitration is as significant
as the work of standing tribunals, such as the International Court.
Fourth, the system we have is not attuned to the settlement of purely political disputes.
Fifth, the International Court has a successful record of the settlement of disputes concerning
territory and delimitation, including maritime delimitation.

And lastly, resort to both the International Court and to ad hocarbitration constitutes the
general practice of all regions.
59. The general outcome is ironical, to say the least. In the era of decolonization, in the 1960s, western
pundits expressed portentous concerns about the aptitude of the new States to participate in what was
seen as a western system of international law and dispute settlement. These concerns were both
condescending and unfounded.
60. And, before I close, I wish to thank the University and the Awards Committee for their decision to
elect me as the first recipient of the Wang Tieya Award.