Competencias profesionales docentes

43 CHAPTER THREE

INTERNATIONAL DISPUTES AND RESOLUTION MECHANISMS

44 Legal writers have not given up on proffering a definition. Consequently Oduntan has defined International dispute as ―a contentious disenchantment between two or more states over points of law and/or fact the continuance of which can endanger international peace and security‖.⁵ Andre Nollkaemper, opined that what makes a dispute international depends on the substance of that dispute; a dispute is international when the rivaling claims are based on International Law.⁶ These definitions / descriptions while being apt, neglect the incidence of internal disputes within states and their impact on the international scene. For instance, at what point does a civil war or insurgency develop into an international conflict with dire consequences for the international community? This question becomes germane against the backdrop of the fact that during the cold war era, the super powers were known to have supported various factions of armed conflict within a country so as to propagate their various ideological leanings as well as showcase their military inventions. The prolongation of such scenarios could blossom into full scale war between the interested super powers.⁷

On our part, and considering the forgone, international dispute can be defined as any altercation whether founded on law or fact involving states inter se or between states and non state parties the continuance of which is likely to endanger international peace and security.

This definition apart from looking at the term international disputes within the perspectives of Article 33 of the U.N. Charter also encapsulated the grim realities of contemporary

5 G Oduntan, The Law and Practice of the International Court of Justice (1945-1996), (Enugu: Fourth Dimension Publishers, 1999) p. 11.

6 A Nollkaemper, National Courts and the International Rule of Law, (Oxford: Oxford University Press, 2011) p. 10. See also J G Merrills International Dispute Settlement (3^rd Edn. Cambridge: Cambridge University Press, 1998) p. 1; A Peters, ―International Dispute Settlement: A Network of Co-operational Duties‖ (2003) 14 EJIL 1, 3.

7 An example is the scenario created by the Cuban Crises of 1962 wherein on the invitation by the Cuban Government to strengthen its security against perceived American backed insurgents, the Soviet installed nuclear warheads that where targeted at American cities. The world held its breath while this debacle lasted. Note also NICAR V. U.S. ICJ Reports 1986, p. 30.

45 international relations wherein the activities of non state actors can also endanger world peace and security.⁸

Traditionally, international disputes have three basic elements. First, it is usually between states.⁹ This is so notwithstanding the fact that an element in the dispute consists in a wrongful act done to a national of the state but until it is taken up by the government of the state of the injured national, the dispute is hardly an international dispute.

In some instances however, it may be possible to deal in advance with a potential dispute situation before it transforms into an international dispute by dealing with it at the lower private law level. This is so given the diminution of the pristine concept of sovereign immunity in the commercial arena and the emergence of the acta jure gestionis rule.¹⁰ Consequently, when a state engages through any of its agencies in trade and economic activities, it may become possible to deal with any resulting dispute as a commercial dispute.

The general trend in the face of expanding state trading activities is to try as much as possible to avoid allowing normal trading disputes to exacerbate general political interstate relations.¹¹ Secondly, the dispute must engender some reaction by the aggrieved state. This reaction may take the form of diplomatic protest, propaganda campaign, applications to any relevant international organization or any of the whole gamut of actions up to covert or overt hostilities.

8 Notable instances of this include the Al Queda Terror Network and other terrorists organizations in the middle East whose activities most times had provided the fillip for interstate conflicts.

9 This is the conventional view and is to be balanced with the scope of activities and vibrancy of international organizations in present day international life. Especially is this so given the import of the ICJ decision in the Reparations Case.

10 For details on this rule and its effect on the concept of sovereign immunity, see Henry C Alisigwe, ―An Appraisal of the Doctrine of Sovereign Immunity under Private International Law: The Nigerian Perspective‖ (2008/2009) NJLS Vol. viii, pp 32-42.

11 H G Darwin. ―General Introduction‖ in David Davies Memorial Institute of International Studies, International Disputes: The Legal Aspect, (London: Europa Publications Ltd, 1992) p. 58.

46 A’priori, where a state does nothing whatsoever about its perceived grievances, there is no active dispute.¹²

Thirdly, the dispute must pertain to a reasonably well defined subject matter. The fact that the parties are in disagreement as to the scope of the dispute is of no moment. For instance, before a relevant international organization, a party may be seeking to extend the particular dispute to other matters against objections by the opposing side.

Thus a general political, historical or religious view manifested by a state even if these are adverse to another state does not amount to a dispute in the absence of an affirmative action underpinning such views such as claims to specific territory or specific rights. It has been opined that it is here that the distinction albeit of degree rather than kind, lies between settlement of disputes and peaceful change.¹³

The latter accommodates broad or general political and economic movements and trends whilst the former is concerned more with specific subjects in dispute between a more limited number of states.¹⁴ A frustrated desire for peaceful change may however lead to a series of specific disputes.