Essay on International and Transnational Dispute Resolution Mechanisms

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International and
Transnational Dispute
Processes
1

Contents
INTRODUCTION.........................................................................................................................................3
UN GENERAL ASSEMBLY, INTERNATIONAL COURT OF JUSTICE AND INTERNATIONAL
COMMUNITY: ITS ROLE IN ENFORCING DECISION OF INTERNATIONAL COURT OF
JUSTICE........................................................................................................................................................4
MUNICIPAL COURTS: ITS JURISDICTION, JUDGMENT AND ITS ENFORCEMENT......................8
CONCLUSION............................................................................................................................................12
REFERENCES............................................................................................................................................13
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INTRODUCTION
The following essay is going to focus on the International and transnational dispute processes
where we have a situation of conflict between a state and the resolution passed by the United
Nations General Assembly. No state is authorized to carry out any such activities which are
unlawful and against the interests of the public. The essay will evaluate that as a member of
International Court of Justice and International community, if a state is acting unlawfully and
even after prior notification to desist from acting unlawfully, the state is continuing its act, in
what ways the international community can enforce the decision which was made by the
international court of justice. Furthermore, it would evaluate and analyze the decision to be made
by the municipal court in the matter of independence of a colony, where an action has been
brought against the government of the colonial state. In this scenario, it will discuss the
jurisdiction and enforcement of decisions or declarations made by the International Court of
Justice as well as of the Municipal Court of the colonial State along with appropriate reasons,
justifications, and explanations.
To discuss more on this topic, it must be noted that the establishment of United Nations is one of
the most significant and historic moments in the history of the development of certain areas of
international law including human rights law, international criminal law, and international
economic law. It generally has four main purposes : (1) to maintain peace and security within the
states as well as among the states; (2) to develop and maintain friendly relations; (3) to ensure
international co-operation and solving economic, social, financial and humanitarian problems
effectively; and (4) to be the center to maintain harmonious relations among the states to achieve
these common objectives. According to a principle called ‘responsibility to protect', the state is
under an obligation to protect human rights not only at home but also abroad. The state cannot
claim that the matter relating to human rights are internal matters and are protected by their
sovereignty.
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UN GENERAL ASSEMBLY, INTERNATIONAL COURT OF JUSTICE
AND INTERNATIONAL COMMUNITY: ITS ROLE IN ENFORCING
DECISION OF INTERNATIONAL COURT OF JUSTICE
The General Assembly of United Nations is one of the organs along with The Security Council;
Economic and Social Council; Trustee Council; UN Secretariat and the International Court of
Justice which were established by the Charter of United Nations. It consists of 193 member
states of the United Nations which meets in General assembly hall in New York and discuss
several international issues such as peace and security, international laws and treaties, etc. It has
also established a special peace-keeping operations committee1. The General Assembly generally
gathers and discusses the issues relating to and arising in achieving the purposes of the United
Nations. It also adopts the budget and also decides on the admission of the new member and
elects non-permanent members of the UN Security Council. The resolution issued by the General
Assembly requires 50% plus one vote to pass and to come into effect. They are generally
adopted in accordance with the Charter of the United Nations and the General Assembly's Rules
of Procedure.
Another principal organ of the United Nations is the International Court of Justice. It generally
serves two major purposes: settles the disputes or controversies between the states and provides
advisory opinions on legal matters to the world community. The Security Council and the
General Assembly appoints 15 judges that comprise a panel of the International Court of Justice
for the term lasting for 9 years. All 193 UN members are automatically the parties to the court
also non-members can also be parties to the court through a specified procedure. It has a huge
responsibility to clarify issues relating to international law and international relations, however,
one of the drawbacks of the establishment of International Court of Justice is that the decisions
rendered by it are not enforceable.
The concept of the International Community of States has gained significance with the
participation of the developing countries from all over the world. With the diversity and
commitment of these states, the UN member has brought necessary universality and common
purpose to the United Nations and also to the different international institutions. The term
1 General Assemble of the United Nations, Accessed at https://www.un.org/en/ga/ on 1st April, 2019.
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‘community’ does not only defines an inside aspect for which it was created, but also its outside
aspects or environment against which it defines or delineates its identity.
As provided, when the UN General Assembly issues the first resolution to seek the advisory
opinion from the International court of justice, the court provides that one of the states is acting
unlawfully. When the second resolution was passed by the General assembly to ask the state to
detain from doing unlawful acts, the International community, on denial of the second resolution,
passed by the General Assembly, can ask the State to stop its unlawful acts as it doesn't only
violate the common purpose of the states, but also it is against the human rights convention, as
unlawful acts would violate the rights of the people in that state. It must be noted that the State
has complete right to exercise its jurisdiction on its citizens within its territory, but this right is
not absolute2 and the State is bound to follow certain international rules and regulations. The
decision of the International Court of Justice can be enforced by the International Community of
the States, with the help of its other member states, in the following ways:
 Removing the State from the International Community of States or Non-
recognition of the State from the International Community: After passing of the
second resolution from the General Assembly, the state must abide by it and stop acting
unlawfully. Due to denial of the second resolution of the UN General Assembly, the
member states of the community can remove the state, through the majority, from the
International Community of States. It is a general rule that whenever a state acts
unlawfully, it is also responsible for all the acts done by its officials, de facto and de jure.
The main aim of the UN charter3 is to protect human rights from their violation and also
to maintain peace and order among the states. The other member states should resist
helping the State to act unlawfully and should deny accepting the State as the member of
the International Community. This unlawful act of the state would not only disturb the
peace among the states but will also impact the functioning of other states as well.
2 Cuniberti, Gilles, Conflict of Laws: a Comparative Approach: Text and Cases, Edward Elgar, 2017
3 Pellet, Alain, Article 38, in Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, 2012,
OUP)
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 Detention from international privileges and aids: No state is self-sufficient. Each state
is dependent on the other for the fulfillment of its needs. Some states might need oils and
minerals while others need some other sources of food, water, etc. It is to say that, every
state is interdependent on the other, thus it has some certain obligations and duties to
perform towards other states. If any unlawful conduct is done by any state it gives birth
to several legal and moral obligations which are attached to it4. This unlawful conduct of
the state might lead to its detention from other international privileges and aids which are
provided to it by other states. The International Community of States is more about the
moral obligation of the states rather than emphasizing on the national interests of the
states involved. Each and every member state of the International Community of States
is bound to follow the provisions provided under the UN Charter5. If any of the states fail
to do so, it could be removed from the community and also the state would be impeded
from international privileges and assistance by other member states. Several privileges
that the States enjoys such as, medical, military or financial assistance from other states
in the situation of a conflict or natural calamity. It must be noted that the nations or states
have some common interests among them and they cannot fulfill their domestic needs
without cooperating with each other. For example, if a state, whether it is a member of
International Community of States or not, spreads or support terrorism, such action
would be unlawful as it will create disturbance in the maintenance of the international
peace and security of that particular states as well as other states. In such a case, the
other member states can resist from providing any assistance to that state and also
prohibiting the supply of aids to that state.
 Trade and export-import restrictions: The other member states of the International
Community can also restrain from doing any trading or export-import with the State
acting unlawfully. The International Community of the States can unite and complete
isolation of the State from the community and prohibiting every trade, assistance, and aid
provided to that State. Prohibiting trade of essential minerals, oils6, cereals, metals, etc.
4 Collier, John, and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures,
Oxford University Press, 2000
5 Dowers, Neil A., The Anti-Suit Injunction and the EU: Legal Tradition and Europeanisation in International
Private Law, Cambridge Journal of International and Comparative Law, 2013, 2(4), 960-973
6 Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry (The Lucky Lady), [2013] 2 C.L.C. 461
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would not only lead to the crisis of these essential commodities in that state but also
prevent the State to act in such unlawful and illegal way in the future. It is the
responsibility of the State to respect and protect the rights of the citizens within its
territory and also peoples of other states. The State must fulfill its obligations in
maintaining international law and security and to maintain peace. After such incidents, it
is the duty of the state to cease from committing such unlawful acts and also assure that
it would not repeat such illegal or unlawful acts in future which are against the
international laws and treaties which would affect international peace and security.
These ways might result in the ceasing of the unlawful acts done by the State and
consequently, the decision of the International Court of Justice can be enforced. It
becomes the moral, legal and political obligation of the state to compensate for the injury
caused whether material or moral7.
From the exercising and considering the above-mentioned ways, the International
Community of States can enforce the decision of the International Court of Justice by
simply requesting the state to stop acting unlawfully, or by threatening the state by the
consequences of acting unlawfully. With the help of co-operation and support from other
member states, the International Community of States can achieve the objective and
purpose of international law by educating the state about its international obligations and
duties towards people of the states and peoples of other states as a whole. As we know
that the decision of the International Court of Justice is not enforceable, it must5 be also
kept in mind that the main purpose of the International Court of Justice is to function
according to the provision of the UN Charter8. Thus, the state acting unlawfully is
obliged to abide by the decision of the International Court of Justice and follow the
resolution passed by the General Assembly or else, it has to face grievous consequences
and actions by the other member states of the International Community of the States.
7 Fuller, Lon L., The Principles of Social Order: Selected Essays of Lon Fuller (Revised Edition), {edited by
Kenneth Winston}, Hart Publishing, 2001,
8 Czaplinski, W., and G. Danilenko, Conflict of Norms in International Law, (1990) 21 NYIL, 3
7

MUNICIPAL COURTS: ITS JURISDICTION, JUDGMENT AND ITS
ENFORCEMENT
During the era of the political reshaping of the world, around 30 colonies consisting of around
750 million people have gained independence since the establishment of the United Nations. A
colonial state is a state that operates over another state and establishes immediate complete
political control over it. The colonial state is responsible for subsequent maintenance, expansion,
and exploitation of the colony. The establishment of law and order in the state is dependent on
the national municipal courts of a State, which are entrusted with the exercising its powers and
discharging its functions to establish law and order in the state9. The creation of colonies and
exercising control over it is a violation of the right of independence and self-determination of the
citizens of the states. The municipal courts generally operate within their territory and exercise
their jurisdiction on the citizens within the territory. Each and every state is bound to follow the
international laws and treaties it has signed. Any breach of these laws has its legal consequences
which have an adverse effect on the functioning of the State and creates a liability and
accountability of the state for its acts.
The concept of ‘self-determination’ was evolved around 1960 to 1970 by Woodrow Wilson,
when several colonies became independent. Here in the case provided, the state failing to grant
independence and self-determination to the colony would result in the breach of the international
laws and conventions signed by the state. This right of self-determination can only be exercised
within the boundary of the State and to such extent that it does not overcome or violated the
rights of other people. The United Nations general assembly passed a resolution, also known as
the United Nations General Assembly Resolution 151410, which emphasized to provide
independence to the colonies and its people. It aims as ending colonization unconditionally, to
which, 80 countries voted in the favor, while none voted against the resolution and rest
abstained. The Vienna Convention on the law of treaties11 (adopted by the Vienna Conference on
23rd May 1993 and enforced on 27th January 1980)12 and International Humanitarian law are
some of the examples which provide for the obligations of the states. A citizen bringing a suit
9 Collier, John, and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures,
Oxford University Press, 2000
10 Briggs, Adrian, Recognition of Foreign Judgments: a Matter of Obligation, Law Quarterly Review, 2013, 129(Jan),
87-100
11 Bjorge, Eirik, The Vienna Rules on Treaty Interpretation Before Domestic Courts, Law Quarterly Review, 2015,
131(Jan), 78-107
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against the government of the State to the municipal court expresses these obligations and also
exercises his human rights which are being violated by the colonial state. However, the
International Court of Justice has given its decision that there is a breach of international
obligations by the state, the question arises that whether the International Court of Justice can
decide on the domestic issues of a state or not.
The state would be regarded to act unlawfully whenever it hinders the exercise of the right of
self-determination and other human rights of the people of the state. The International
Humanitarian Law (IHL) limits those reasons or events which may result in armed conflicts or
war and protecting human rights. Any unlawful act done by any state that leads to a violation of
human rights or international humanitarian law leads to a breach of international obligations of
the state as well. The state cannot claim its immunity from international obligations by stating
that it is a domestic matter which should be decided by its domestic courts.
One of the contentious cases regarding the breach of international obligations is LaGrand
(Germany v. the United States)13, where the International obligations to Germany were breached.
In this case, the International Court of Justice was of the view that there has been the violation of
international obligations by the United States under the Vienna Convention on Consular
Relations because it executed two German nationals without even informing them about their
consular rights. The same question arises here that whether the decision of the International
Court of Justice have effect in domestic matters or not. Generally, such cases are considered as a
matter of municipal law14.
In this case, the municipal court can exercise its jurisdiction and make its decision in favor of the
rights and interests of the citizen. It's not only about a single citizen; it is a collective right for
self-determination, which the citizens of the colony want to exercise. The Municipal Court, in
this case, shall consider the plea of the citizen and it is the duty of the court15 to uphold the
human rights of its citizens and to protect them from any force which violates them. No one shall
12 Schaus, Annemie, Article 27 (1969), in Corten, Klein (eds), The Vienna Convention on the Law of Treaties: a
Commentary (2011, OUP)
13 8 Germany v United States (judgment of 27 June 2001). Accessed at
http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm on 5 November 2005)
14 Dupuy, Pierre-Marie, Relations between the International Law of Responsibility and Responsibility in Municipal
Law, in Crawford, Pellet, Olleson (eds), The Law of International Responsibility (2010, OUP)
15 Milej, Tomasz P., Human rights Protection by International Courts: What Role for the East African Court of
Justice? African Journal of International and Comparative Law, 2018, 26(1), 108-129
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be deprived of their rights of independence or self-determination. The Municipal court shall
render its decision for the independence of the colony and it must be kept in mind that national
independence and sovereignty are the basis of the international legal system. Article 73 of the
UN Charter provides that the interests of the inhabitants of the state, who is not yet self-
governing, shall be secured and also promoted. It further provides to take such steps as to
advancement and enhancement of their political, social, economic and educational culture.
Each and every citizen of the state has the right to self-determination. It could be whether
internal or external. It determines that people of the state can determine their political status
freely and independently. The provisions of the UN Charter are against the idea of colonization
and emphasize the process of decolonization16. The internal aspect of self-determination implies
that the people of the state can choose to govern themselves without any outside interference,
while external aspects gives the idea that peoples have the authority to decide the political status
of themselves and create their own independent state, However, this right is not absolute and is
restricted where such right is exercised by violating rights of peoples of other states.
In international law, the right of self-determination was considered as the right of colonial
territories. They can choose to become independent or can choose any status they want to
choose. If a state is exercising colonial powers on another state and forcing the citizens to work
according to its wish, this s considered as an unlawful act which not only is exercising its powers
forcefully on the state but also it is hindering the development and growth of the colony in erm
of social, economic and political fields.
The LaGrand case was a significant case as it presents the importance of obligations and duties
of the States, where individual rights and interests are concerned. It is an established principle
that a state cannot plead the provisions of its own law to claim against it for an alleged breach of
the law. Although the res judicata has no effect from a decision of a municipal court or an
International court of justice because the jurisdiction of both the courts is very different, but still,
the municipal court of the state is bound to provide the decision in the favor of the rights of the
citizens to protect the breach of those rights and also it cannot deny independence on the grounds
16 Koskenniemi, Martti, Fragmentation of International Law: Difficulties Arising From the Diversification and
Expansion of International Law, UN General Assembly, Report of the ILC, 2006
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of its national or state law as they are breaching the international laws and violating international
peace and order.
The International Court of Justice acts as an arbitrator in several ways. In this case, as well, it has
provided its decision for the conflict between two states i.e. Colony state and colonial state, that
exercising colonial rule and violating the fundamental rights of the citizen's amounts to an
unlawful act. Keeping a colony is an act of humanitarian nature, where there is a severe violation
of the human rights of the citizens. The International Humanitarian Law was made for the
purpose of avoiding armed conflicts and protecting civilians and other people who are not
involved in the war. Apart from providing the decision in favor of the citizen, the decision of the
International Court of Justice can be enforced by the local state bodies or courts of that state. In
this situation, the decision of the municipal court must be in favor of removing all the problems
and challenges which restrains the effective enforcement of the international laws and treaties.
The municipal court of the State shall abide by the decision of the International Court of Justice
and implement and enforce the decision of the International Court of Justice as it is the primary
function of the International Court of Justice to function in accordance with the provisions of UN
Charter.
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CONCLUSION
To conclude, it can be said in both of the situations mentioned above; the State has the obligation
to protect the rights and provisions prescribed under international law. International peace must
be the foremost priority of all the acts done by the state; its judicial officers or other persons
acting judicially. It is not only their moral obligation to promote peace and security, but also their
legal obligation. It is the duty of all the states to strive towards the maintenance of international
peace; order and security. Acting unlawfully; denying acting lawfully, and denial of
independence are some issues for which the United Nations were established and these issues
were considered as major concerns under the UN Charter. Such acts hinder international peace
and also breach international security, which might lead to armed conflicts or even result in war.
All states are under the obligation to support and co-operate each other. Peoples of the states
have the right of self-determination, whether they want to exercise it internally or externally. The
International Court of Justice, in the case of LaGrand, proved its ability to exercise its
jurisdiction and applying international legal principles to develop and implement International
law. The validity and effectiveness of international law are highly dependent on co-operation and
support of nation states. In both situations, the International Court of Justice has tried to maintain
a balance between state laws and international laws. The enforcement of the decisions of the
International Court of Justice through national or domestic courts will ensure compliance of the
provisions of the international rule of law. Each and every person has the right to independence
and no one shall be deprived of exercising their fundamental and human rights.
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