47 In an article entitled `The Franco-Italian Conciliation Commission`, Bos emphasised the judicial nature of those bodies, which are empowered to take binding decisions against the parties (22 Acta Scandinavica Juris Gentium, 1952) 135). For any experienced practitioner of international dispute settlement, the distinction between arbitration and judicial settlement in international law may seem obvious. On closer inspection, however, courts and commentators have proposed different interpretations of what this distinction represents and implies. This paper suggests that the key to understanding this distinction, which is important for the accurate assessment of proposals for reforming dispute settlement mechanisms, is to examine how arbitration and judicial settlement fit into a fluid spectrum rather than strict categories. Based on this spectrum, the paper offers a new perspective on the three characteristics that distinguish arbitration from judicial settlement, namely: consent to jurisdiction, selection of decision-makers, and sustainability criterion. Because these characteristics are interconnected, they all address in one way or another the “public and private” divide traditionally associated with the peaceful settlement of international disputes. Thus, the manner in which each dispute settlement mechanism has these characteristics ultimately influences whether that mechanism establishes justice for the parties to the dispute or for the common good. When pursuing investor-state dispute settlement reforms, policymakers should therefore consider “who exactly should benefit from the current mechanism” and accordingly determine the degree of “judicialization” required by this mechanism. These considerations would undoubtedly reinforce the reforms currently under consideration, such as the European Union`s efforts to modernise the World Trade Organisation, the work of the United Nations International Trade Law Commission to reform investment arbitration and the reassessment of treaties by the United States, which confers jurisdiction on the International Court of Justice. 32 The report of Sub-Committee IV/2/A on the legal status of the United Nations states: `With regard to the question of international legal personality, the sub-committee considered that it was superfluous to make it the subject of a text.
In fact, it will be implicitly determined by the provisions of the Charter as a whole. (13 U.N.C.I.O. 817.) This passage was inserted as such in the final report of the Committee IV/2 (ibid., p. 710). This innocuous statement is somewhat clarified by the report of the chairman of the Us delegation to the President of the United States on the outcome of the San Francisco Conference: “[Article 105] does not deal with the so-called `international personality` of the organization. The commission discussing this issue was anxious to avoid any suggestion that the United Nations would be a “superstate” in any way. (Ministry of Foreign Affairs Publication 349, Lecture Series 71). 44 See, for example. B technical assistance agreements concluded between several international organisations belonging to the Technical Assistance Council and to States, such as the basic agreement between the Secretary-General of the United Nations, on behalf of the international organisations members of the Technical Assistance Council, and the Indonesian Government on the provision of technical assistance under the enlarged programme, Signed at Jakarta on 2 November 1950, Art. VI (c), 81 U.N.T.S.
172. See also the Statutes of the International Bank for Reconstruction and Development with many States, art. IX (c). 30 See Kaeckenbeeck, “La Charte dans ses rapports aveo le droit international”, in Haag Academy of International Law, Recueil des Cours, vol. 70 (1947, I), p. 133Google Scholar et seq., passim, z.B., p. 133, 135., Among several articles in this journal, we can mention von Eagleton, “International Law and the Charter of the United Nations”, vol. 39 (1945), p. 751. Delbez, “The Evolution of Ideas in the Peaceful Settlement of Conflicts,” gives a good summary of the position, in Revue générale de droit international public, vol.
55 (1951), p. 5Google Scholar ff., and explains: “The authors of the Charter were instinctively suspicious of the law and thought, as it seems, that security is above justice and that the establishment of order must precede the rule of law.” (p. 8.) 89 Such as.B. in the case of certain tasks entrusted to the League of Nations, the succession of which was not provided for either by the Charter or by any other act. An interesting example of this complex issue occurred in the case of South-West Africa, where the Government of South Africa asserted that all mandates had expired with the dissolution of the League of Nations and that the Government of the Union had not agreed to place any part of the territory of South West Africa under trusteeship in accordance with the Charter (Article 77), that it was no longer bound by an international agreement relating to that territory. In its Opinion of 11 July 1950, the Court rejected this assertion and accepted the argument that the United Nations was the successor of the League of Nations for this purpose. This has been done by interpreting a complex web of treaty provisions. With regard to the succession of the International to the Permanent Court of Justice, the task was much simpler, and the Court encountered no problem in this context thanks to Article 37 of the Statute (see I.C.J. Reports, 1950, p.
128 et seq. p. 138). Previously, the Secretary-General had been requested to submit the list of persons designated by Member States for inclusion in the conciliation group. However, States have not shown any encouraging or positive developments. At present, therefore, the conciliation process is mainly used by States. In 1952, the Belgian-Danish Commission and the Greek-Italian Conciliation Commission of 1956 were the main examples of the appointment of a Conciliation Commission to settle disputes in international law. Peaceful means of dispute settlement are one of the principles of the United Nations under Article 2(3) of the Charter. The General Assembly and the Security Council are the two organs of the United Nations empowered to exercise functions in this regard. 57 This criticism is rarely expressed in writing, but it is often expressed by international jurists. This is the very sensitive issue of the composition of the Court of Justice, which is rightly of concern to many people at the moment. Thus, at its last meeting in Siena in 1952, the Institute placed the issue on its agenda and, on the proposal of a commission chaired by Judge Guerrero, Vice-President of the Court, the Institute adopted a “wish” on the procedure for election to the Court.
See 44 Yearbook of the Institute of International Law, Siena Session, 1952, vol. II, pp. 451-452. See also Kuhn, “The Siena Conference of the Institute of International Law,” this Journal, vol. 46 (1952), pp. 718-719Google Scholar. However, the more general question of the composition of the Court of Justice is still under consideration. A commission of the Institute, composed of highly respected jurists, recently participated in the preparation of a report prepared by Judge Huber, former President of the Permanent Court of Justice, on amendments to the Statute of the International Court of Justice. This report was discussed at the Institute`s meeting in Aix-en-Provence in April 1954.
Again, with the assistance of the special Committee`s recommendations to the Secretary-General, to prepare a manual for the peaceful settlement of disputes and to confer special powers, functions and duties on the Assembly, the Council and the Secretary. An elaborate draft of the manual was reportedly drafted in 1992. 51 Article 87 of the Treaty with Italy, 49 U.N.T.P. 169; Article 36 of the Treaty with Bulgaria, 41 ibid. 84; Article 40 of the Treaty with Hungary, ibid. 210; Article 38 of the Treaty with Romania, 42 ibid.72; Art. 35 of the Treaty with Finland, 48 ibid. 254. The system is similar to the following: if a dispute over the interpretation or performance of the treaty is not settled through direct diplomatic negotiations, it must be referred to the heads of mission of the major Powers or to some of them in the capital concerned. If they do not settle the dispute within two months and the parties do not agree on any other method of settlement, it shall be referred to a committee of three members at the request of one of the parties: one representative of each party and a third member chosen by mutual agreement between the two parties from among the nationals of a third country. .