- Introduction
- The Roman Roots of Adjudication
- The Ambiguous Meaning of Adjudication in International Law
- Diplomatic Means of Dispute Resolution. Consultation. Notification. Procedural and Substantive Obligation. Prior Consent. Exchange of Views. Obligation to negotiate.
- Adjudicatory and Non-Adjudicatory Dispute Resolution Methods
- Consent under the Special Condition of Admissibility
- Conclusion
Posts relacionados: Jurisdição Internacional: Princípio da Dúvida e Consentimento JIPDC Summary. Procedural Rules in International Law: Understanding Jurisdiction, Competence, and Admissibility PRILUJCA Summary. Casos e sua Relevância na Justiça Internacional.
Related Cases: Pulp Mills on the River Uruguay case, Argentina v. Uruguay, judged on 20/4/2010, by ICJ || Lake Lanoux case, France v. Spain, judged on 16/11/1957, by Vienna ad hoc Arbitral Tribunal
Sumário
Introduction
Special clauses (in treaties) are incidental clauses providing with non-substantive, procedural or accessory aspects of the purposes or ends of the convention, be it bilateral or multilateral, regional or global. There are a variety of special clauses; but this post, the special clauses addressed are those most common and which, once agreed upon by the signatory States, may impact the eventual referral of a dispute to a Court or Tribunal due to the need to interpret or apply their effects. Such effects differ according to the nature of the special clause. Obligation to negotiate or to exchange views and previous consent, for instance, are specific clauses that underpin preliminary objections, through which defendant States aim to prevent the Court from examining the merits of the dispute. In other words, in dispute resolution, they act as conditionals or prerequisites that must be met before pursuing adjudication.
Notification and consultation are special clauses that do not function as “conditionals.” Their effects include reducing a State’s autonomy in decision-making and may be categorised as procedural obligations. Similar to prior consent, notification and consultation affect a State’s capacity to exercise its sovereignty. However, being an exceptional clause, prior consent interferes heavily with the State´s autonomy to make sovereign decisions.
At times, a special clause in a treaty may impose a specific conduct on the State, which must be carried out before initiating adjudication proceedings. For instance, the clause of exhausting domestic remedies before resorting to an international dispute resolution mechanism.
Special clauses consistent with the obligation to negotiate or exchange views, exhausting domestic remedies and previous consent play a significant role in the realm of preliminary objections within international litigation. However, it is crucial to understand that not all preliminary objections derive from special clauses stipulated by treaties; preliminary objections have a gamut of grounds, so they can also be based on principles of general law, independently of any treaty, for example, justiciability issue, the inexistence of dispute, hypothetical nature or mootness of the dispute, disputes with issues of an exclusively political or non-legal type, dispute with issues in abstracto, and the indispensable third party. All these issues are tackled via preliminary objections, yet they do not constitute special clauses within treaties.
It is crucial not to ignore that special clauses such as the obligation to negotiate or exchange views, exhausting domestic remedies and previous consent may only justify preliminary objections regarding admissibility, never jurisdiction, for a clear reason: Treaties containing those special clauses also establish a Court’s jurisdiction to interpret or apply the treaty. Therefore (logically), an objection to the lack of jurisdiction cannot be raised from a treaty that serves as a compromise or a special agreement for selecting a Court or Tribunal. The difference between objections to admissibility and jurisdiction is relevant to outright comprehending the functioning of the various special clauses.
Special conditions are frequently not described clearly, at times becoming ambiguous and necessitating a careful reading of the clause in its specific terms to comprehend its actual impact on the parties involved. For instance, article 4 of the WTO-DSU, although the word “consultation”, that disposition really provides for an obligation to negotiate.
Paying due regard to the pivotal role that such clauses (obligation to negotiate or to exchange views) can play in transitioning from diplomatic settlement methods to mandatory dispute resolution via arbitration or judicial means makes adjudication a concept that warrants attention.
This post is a sketch discussion over the most common special clauses, not all, and not with the intention of providing an in-depth review of the subject, nor establishing the superior doctrine. Its a mere contour of the matter, hardly bounding it, whose purpose is to assist in studying, or spark interest in International Justice among Brazilian law students, lawyers, and other legal practitioners, highlighting its significance for the country’s diplomatic relations.
The Roman Roots of Adjudication
In Roman Law, adjudication (ad judicatio) had a very specific juridical meaning; it referred to a legal action (lawsuit) where the claimant sought a magistrate’s warrant to gain full possession (physical power) of something that, despite being of the claimant´s undeniable property, was controlled by the defendant. Title of property was protected by Roman Law by a specific proceeding named rei vindicatio1, which was sued by the owner that has lost possession and wished to recover that possession underpinned by the right of being the property´s owner (jus possidendi). However, if someone wished to have possession of something under a possession right (jus possessionis) the correct roman proceeding was by means of actio possessionis, not rei vindicatio. The actio ad judicatio wa slightly different from rei vindicatio and actio possessionis as it was taken by the claimant who had the property but never had the possession. In the Roman Law view, never having the possession of something was different from having had possession of something but having lost it.
Probably, from French, the word ajudication came into Common Law with the sense of “grant or award as a judge”. Subsequently, it may have evolved in International Law to signify “the act of the judge” or “judicial judgment,” no longer confined to the original connotation of a “very specific judgment by a judge.”
The Ambiguous Meaning of Adjudication in International Law
In Public Procedural International Law, adjudication is, thus, relatively distinct from its Roman legal origins. The most vulgar and general idea over the definition of adjudication in International Justice associates adjudication with the judicial ruling or settling of a dispute, differentiating it from other means of dispute resolution, for instance, by arbitration or througn diplomatic channels.
In International Justice, the peaceful means of dispute settlement are generally categorized under the criterion of the disputing parties´ control (or not) over the outcome of the dispute. Alongside arbitration, adjudication falls within the group of dispute resolution methods whose outcomes the States do not have domination. In contrast, the diplomatic (or amicable) genre constitutes, on the other pole, the group of dispute settlement ways whose outcomes do not escape from the States´ hands.
Nevertheless, from time to time, adjudication is also used to designate the arbitral resolution of disputes. In the course of Law and Policy of International Courts and Tribunals, University of London, Section B approaches adjudication as specifically meaning the judicial means of dispute resolution, such that it addresses non-adjudicatory dispute resolutions referring to arbitration, diplomatic means of dispute settlement, compliance mechanisms in multilateral environmental agreements, and inspection mechanisms in international development banks. However, adjudication is characterized as a genre that encompasses both arbitral and judicial means of dispute resolution. (p. 29):
“The means enumerated in Article 33 are generally characterised as diplomatic (or non-adjudicatory) and legal (or adjudicatory) means: Diplomatic means include negotiation, consultation, mediation, conciliation and inquiry. Under these means, the parties to the dispute retain control of the outcome in that they remain free to accept or reject any proposal for resolution. In contrast to these mechanisms, legal (or adjudicatory) means of dispute settlement (arbitration and judicial settlement) is in third party decisions that are binding upon the parties to the dispute.”
It is important to note that consultation is not specifically mentioned in Article 33 (1) of the United Nations Charter, and it cannot be considered a method for amicable dispute resolution, but rather a means to avoid disputes.
In summary, in this discussion, adjudication is addressed in the lato sensu meaning, or in other words, corresponding to both arbitral and judicial means of dispute settlement because the relevant point is the difference between the methods of solving a dispute on which the parties to it have or not control over the outcomes.
Adjudicatory and Non-Adjudicatory Dispute Resolution Methods
Section B of the Law and Policy of International Courts and Tribunals Course of the University of London (UOF) is named Non-Adjudicatory Dispute Resolution Processes. In that textbook, the UOL´s syllabus outlines arbitration, diplomatic means, compliance mechanisms in multilateral environmental agreements and inspection mechanisms in international development banks. So, arbitration is considered a legal means of dispute resolution, whose award escapes from the States´ control, but it is not, technically, unless, in the UOL´s view, an adjudicatory way of dispute settlement.
Notwithstanding the UOL’s dealing with adjudicatory settlement separately from the non-adjudicatory dispute resolution processes, regarding the former only as the judicial resolution of disputes, that standpoint is not authoritative. A number of scholars consider arbitration as a form of adjudication as well.
Thus, we are adopting in this post a lato sensu idea of adjudication in International Law in which both judicial and arbitral methods of fixing a conflict between States fit well. It is in such a sense that Merrills refers to adjudication in this passage:
Although negotiation is usually involved at some stage in every international dispute and in that sense is related to all of the other methods of settling disputes we shall be considering, its relation to one of them, adjudication, is particularly significant. Negotiation is a process which allows the parties to retain the maximum amount of control over their dispute; adjudication, in contrast, takes the dispute entirely out of their hands, at least as regards the court´s decision. It is therefore not surprising that defining the point of transition from one to the other, and establishing the relation between them, when a court first becomes involved, then while it is functioning, have been matters to which states and international courts alike have had to give a good deal of attention.2
J. G. Merrills
Reading Merrills´ words, it is evident that arbitration is much more similar to judicial dispute resolution than those already cited diplomatic means of dispute resolution; both judicial and arbitral dispute resolution methods entertain quite relevant common characteristics, as the outcome of the dispute resolution is out of the parties´ hands. That is the precise point of relevant distinction: When the solution of a dispute shifts from disputants to a third party (the adjudicator), which implies a binding decision interfering in the sovereign power of the State that is, subject to international law, obliged to accept and undertake its terms.
Diplomatic Means of Dispute Resolution. Consultation. Notification3. Procedural and Substantive Obligation. Burden of Proof. Differences. Clause of Consent
Negotiation, mediation, inquiry, conciliation, and good offices are diplomatic means of dispute settlement in accordance with Article 33 (1) of the UN Charter.
Notification, similar to consultation, is not included in Article 33 (1) of the Charter of San Francisco for the same reason; it is not a method of disputes resolution but rather for avoiding them. These mechanisms do not prevent a State (required to notify or consult) from making sovereign decisions; however, they serve as temporary binding measures. By agreeing to notify or consult as stipulated in a treaty, a State becomes liable for breach if that State proceeds with its decision-making process without prior notification or consultation. Being tools in a context os cooperation policy, notification and consultion presuppose a diplomatic relationship so as they serve that policy propose efficiently. The treaty is expected to define the proceedings for cooperation through notification or consultation between the concerned States, ensuring that these processes are tailored to meet the specific needs and circumstances they agreed upon.
It is relevant to consider that notificaton and consultation are procedural obligations, not substantive ones. According to the findings of the International Court of Justice (ICJ), in the Pulp Mills on the River Uruguay case, Argentina v. Uruguay, judged on 20/4/2010, the breach of (the obligation of) notification (Article 7) does not amount to a violation of substantive obligation. Indeed, when the Court interpreted the Statute of the River Uruguay, signed at Salto, on 26 February 19754, it held that there are procedural and substantive obligations. It can be inferred that substantive obligations constitute the object and purpose of an agreement, which form the rights and obligations arising from the commitments the States have undertaken in such treaty; on the other hand, notification (as provided for in Article 7) is a type of ancillary or instrumental obligation designed to meet the ends and purposes of the treaty in place. In the case concerning the Statute of the River Uruguay, among others, the “obligation to prevent pollution and preserve the aquatic environment” is a substantive obligation whose occurrence cannot be assumed to have happened only because the party (in this case, Uruguay) violated the procedural obligation consistent in notifying CARU. The harm or risk of harm resulting from that act not being notified has to be evidenced, and the burden is born by who alleges it (in Argentina’s case).
So, summarizing, notification and consultation are procedural obligations instituted in treaties that affect the decision-making process of States accepting them. Then, they cannot be confused with other special clauses in treaties such as the conditional clause for adjudication or special clauses of admissibility in dispute resolution by adjudication, namely, negotiation and exchange of views. Furthermore, they are de merits allegations, not preliminary objections.
In state practice, notification has emerged as an institution akin to consultation, both functioning similarly and yielding identical effects on the parties as mechanisms that limit the state’s decision-making process, thereby serving as legal devices that can prevent disputes, for instance, the notification envisaged in Article 7, of the aforementioned Statute of the River Uruguay and also the consultation enshrined in Article IX (1) of the 1959 Antarctic Treaty5.
An interesting essay on that matter can be easily found on the Internet: Michigan Law Review, vol. 82, Issue 4: Prior Consultation in International Law: A Study of State Practice.
It is worth noting the uncommon clause of consent, which represents the highest condition to which a State can agree in a treaty. Through this clause, a State may practically renounce its sovereignty in certain respects to support the objective or purpose of the treaty. The existence of such a clause, which cannot be confused with notification, was subject to interpretation by the Viena Arbitral Tribunal of 1957 in the Lake Lanoux case (Article11 of the Additional Act of the Treaty of Bayonne).
Is there difference between consultation and notification? Professor Kirgis answers by saying that (p.11):
“consultation” is “something” more than “notification”, but less than consent
Frederic L. Kirgis
Therefore, whether the clause is consultation, notification or consent, only by the wording of the provision is possible to concretele determine. It should be noted that consent is here considered as a clause in a treaty, the acceptance of which becomes mandatory for a state to secure agreement from another to proceed with certain actions, such as constructing a plant or a mill within its own territory. Thus, it should not be confused with the principle of consent.
At last but not at least, special clauses of consultation and notification have no effect on admissibility; that is to say, those clauses do not underpin a contention consisting of preliminary objection intended to prevent the Court from examining the merits of the application. So, they are not relevant from the perspective of shifting a dispute from diplomatic means to adjudication.
Obligation to Negotiate. Exchange of views. Clause of Consent
They are not procedural obligations, and they do not subsume under the category of substantive obligation, but rather they can be classified as special clauses that establish prior conditions before instituting adjudicatory proceedings to settle a dispute around a treaty. Contrary to notification and consultation, obligation to negotiate (exchange of views) and the clause of consent, when incorporated into treaties, they do not restrict the decision-making process of the State they affect; rather, they influence the immediate recourse to third-party binding dispute resolution methods (judicial or arbitral), before seeking diplomatic means of dispute resolution (obligation to negotiate). For instance, the negotiation required in Article 59 of the 1975 Statute of the River Uruguay and the exchange of views of Article 283 of the UNCLOS.
Notification and consultation are not directly related to diplomacy or the avoidance of disputes, although their inclusion in a treaty presupposes the existence of good diplomatic relations and may prevent conflict, not an imminent one, but rather a potential one. Negotiation and consultation, on the other hand, are used in situations where a dispute is more likely to occur.
A clear example of that difference (between notification and consultation, on one side, and the negotiation and exchange of views, on the other side) in terms of the dispute can be read in the 1975 Statute of the River Uruguay. Notice that the notification, in Article 7, is a device that drives Uruguay and Argentina to issues over technical aspects within the Commission, whilst the negotiation in Article 59, contrarily, assumes that a dispute is more likely to occur.
It is crucial to note that notification and consultation do not impinge on a State’s sovereignty; accepting limitations on its unilateral decision-making process over its territorial issues, for instance, does not equate to granting a veto right over its capacity to make its own decisions and carry them out fully; furthermore, when a State breaches a commitment of notification or consultation stipulated as a contractual precondition before implementing its decision, that State incurs in a procedural-treaty obligation (not a substantive obligation), and eventual damages therefrom is a burden upon the concerned State. Those aspects of notification and consultation were clearly held in the Pulp Mills on the River Uruguay case between Argentina and Uruguay, held by the ICJ. Indeed, Argentina claimed that Uruguay, by not fulfilling its obligation of
MERRILLS explains notification and consultation as a policy of cooperation developed through understandings, which are, thus, incorporated in agreements providing for coordination regarding a specific matter disposed of in those agreements. Afterwards, the professor gives the difference between consultation, on one side, and notification and prior consent as well, as it follows literally:
Finally, the obligation to negotiate is a condition to be performed before resorting to adjudication; thus, it does not entail the obligation of reachig an agreement, but acting in good faith during the process of previous negotiation, as deduced by the Arbitral Viena Court of 1957 (Lake Lanoux case).
Consent under the Special Condition of Admissibility
States are obliged by the 1945 San Francisco Charter to settle their dispute by peaceful means, according to the emerging command of Article 33 (1), which prescribes:
“The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
UN Chart
However, States are not obliged to settle their disputes by any means, provided they do not pursue that “solution” through violence, war, or other aggression.
The inflexion point where, in view of a given dispute, States may turn from diplomatic means (negotiation, inquiry, mediation and conciliation) of dispute resolution (where they hold control of the results) or remain without a solution to a compulsory dispute settlement by adjudication (where the result of the dispute is taken over by the third party, the adjudicator) is relevant due to the consent principle. Enshrined as a general principle of International Law, the consent makes certain that the States´ free will is respected when it comes to submitting a dispute to a compulsory decision by an international adjudication. However, that is not so simple as it seems like States may, in specific clauses inserted in the treaty, guarantee that a given dispute, regularly arising out of the object of that treaty terms, will be referred to adjudication, providing that, or ONLY IF, the negotiation was unsuccessful in resolving the problem.
A treaty clause of this nature does not make negotiation a mandatory method for resolving disputes; rather, it creates a procedural obligation. This means that the dispute cannot be brought before an arbitral or judicial body until an attempt at negotiation has been made. Surfacing the international tribunal’s caselaw for years, numerous questions regarding the interpretation of those treaty clauses laying negotiation as a condition to adjudication have been asked: How should that negotiation be sought? Directly through diplomatic channels or indirectly on the floor of international organisations? At what point should a negotiation be deemed failed?
Typically inaccurately written, those clauses have given room to misunderstandings, ultimately leading to adjudicatory proceedings that are not regarded legitimate by the defendant State, which feels that either negotiation was not attempted or unduly terminated; so, when proceedings are instituted, they do not appear.
A recent example of that can be drawn from the South China Sea Arbitration, instituted by the Philippines in accordance with Annex VII of the United Nations Convention on the Law of the Sea, before which the People´s Republic of China did not appear, refusing to take part in the proceedings and whose ensuing award the latter also did not feel obliged to respect, due to China´s interpretation of the Declaration on the Conduct of Parties in the South China Sea.6
So, when States assume under the particular rule of International Law, that is, through their own and specific consent consubstantiated in a bilateral or multilateral treaty, that they will accept to submit their disputes to adjudication only when surfacing a dispute, they fail to solve it by negotiations, the dispute encompassed by such a treaty cannot be referred to settlement through adjudication before negotiation, and if it is, the application is to be regarded inadmissible, declining the Court to entertain it, even though the body is competent to that end because the commitment must be honoured. This is a straightforward result of the sanctity of treaties in International Law.
One case in which the lack of prior attempt to solve a dispute through negotiation was a precondition for adjudication, the inobservance of which caused the application to be dismissed by the International Court of Justice, can be seen in the Border and Transborder Actions Case between Nicaragua v. Honduras) –
Jurisdiction and Admissibility, Judgment, Z.C.J. Reports 1988, p. 69.
Conclusion
The existence of multilateral or bilateral treaties governing the regional or global variety of interests between States regularly embody clauses that affect their freedom, or full sovereignty, on their decision-making processes or establish a precondition to seeking a judicial remedy to disputes arising in those relations. The former constitutes the clauses related to dispute avoidance, such as the consultation, notification, prior consultation (or other similar treaty terms), whereas the latter represents restrictions upon the consent of the States for being sued by the other, as long as that consent is granted on the condition of having eventual dispute solved by negotiation attempted in the first place.
It is crucial to the correct analysis of the treaty terms to define the correct legal effect on the States because the dispute avoidance mechanism, if overlooked, triggers a failure in accomplishing a substantive obligation, resulting in no procedural issues or not preventing the Court from seizing the case, whereas the nonobservance of a restriction to consent to be sued might meet prevention of the court´s competence due to the inadmissibility of the premature application (special condition for consent).
If a treaty’s special condition of admissibility of “prior negotiation” (or similar) before instituting proceedings for adjudicatory dispute resolution is written in general terms, it will not be efficient in establishing a prerequisite for judicial or arbitral proceedings to be commenced. A clear clause should specify what is supposed to be accomplished before referring the problem to the court, as such a clause is tantamount to a compromise. For instance, article 4 in the 1967 Protocol relating to the Status of Refugees (which removes the geographical and time limits instituted in the 1951 Convention to which it is attached) is a general clause and, thus, cannot be deemed a special admissibility condition7.
A correctly written clause stipulating a special condition of admissibility of “prior negotiation” is found in the 2002 Declaration on the Conduct of Parties in the South China Sea, adopted in Phnom Penh, Cambodia, on 4 November 2002, whose article 4 specifies expressly:
“The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea”.
- 1. Brandsma F. Actions in Roman and civil law for the protection of immovables. In: Martin Santisteban S, Sparkes P, eds. Protection of Immovables in European Legal Systems. The Common Core of European Private Law. Cambridge University Press; 2015:9-30. ↩︎
- J.G. Merrills, International Dispute Settlement, 5th ed., University of Cambridge, Cambridge, 2011, p. 16. ↩︎
- The Practice of States drafting their contracts in Internationa Law brings about a variety of different” terms that might have, though, the same legal meaning. For instance, in the Additional Act to the Treaty of Bayonne, in its Article 11, France and Spain employed “prior notice”, which was construed by the Geneva Arbitral Award of 16 November 1957 as having the same meaning as “consultation.” ↩︎
- Statute of the River Uruguay. Signed at Salto on 26 February 1975, archive below (PDF). ↩︎
- 1959 Antarctic Treaty, archive below (PDF). ↩︎
- The Document can be read below. ↩︎
- Please, find the Convention and its Protocol below. ↩︎
