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INTRODUCTION
Peace and harmony always remain to be the motto of predominant international organizations like the United Nations (UN), who aspire to bind all nations together. However, need to keep in mind that day to day functioning of nations it’s very idealistic for one to analyze smooth execution of affairs, without facing any disturbance. When nations interact met each other on international grounds, differences become an inevitable part of interaction which eventually turns into disputes, becoming an indispensable part of international relations. The commonness of disputes gives the lead to dispute settlement systems like an International Court of Justice (ICJ).
Critical Analysis regarding functioning at the International Centre for Settlement of Investment Disputes (ICSID)
However, these provisions only exist in books of law without holding any binding force in the real world. Time and again parties have openly disregard judgments passed by honorable ICJ, without bearing any consequences for the same. Hence, adjudication deemed to be the least preferred option towards the settlement of international disputes. The paper revolves around firstly, highlighting arguments attached to considering international adjudication in the perfect medium for resolve disputes.
Secondly, the busting myth of international adjudication is comparable to domestic counterpart, and lastly, alternatives that need to be adopted for betterment in the system.
INTERNATIONAL COURTS- NOT A FRUITFUL REMEDY
Non-Compliance of judgment
Once judgment passed by ICJ, parties to dispute are expected accordance with decision taken by court in good faith, as they willingly submitted the jurisdiction of court. Good faith defined by ICJ is duty to abide by decision of court irrespective of situation it puts you in.
However, things are completely different in practice as parties if aggrieved does not shy away from refusing judgment passed by court. Defiance includes wholesome rejection of claims put forth and an over denial to accordance with judgment so passed. This can be further elucidated by case of Nicaragua v The United States of America[6] wherein USA refused to appear in merits phase and denied accordance with judgment of court.[7]
Litigation leads to resentment
One of biggest analysis of adjudication is adversarial nature. The act of up-bringing case by one state against the other is considered to be an unlawful act rather than step towards resolving dispute. It leads to termination of regarding new dispute or aggravation of already existing one. The state which loses litigation acts peacefully for winning state, further increasing in differences between two states.[14]
The very nature of litigation being adversarial makes it unreliable method to resolve disputes. The Courts/tribunals always decides in binary terms of right or wrong, which is integral part of litigation. The judges are bound to pick an side and passes the judgment accordingly. This ends up during lot of problems.confusion in international sphere at an international level that everything dependent upon friendly relationship shared by various group of nations; litigation is contrary does not seem for support of that.
INTERNATIONAL ADJUDICATION NOT ANALOGOUS TO ITS DOMESTIC COUNTERPART
Advocates of international action are wrong in considering international and domestic adjudication comparable to each other. No doubt there are similarities between two regimes, but differences overpower an similarities, making them comparable ,but As Compared to domestic courts, international courts are still developing stage and facing same problems since years. The International courts failed to overcome such basic problems like compulsory jurisdiction, inaccessibility of courts etc, which in turn lead hinders in their progress[18]. Unlike domestic courts, international courts do not have power of compulsory jurisdiction. For example, courts in India have power to take suo moto cognizance over an particular case/matter without waiting for anyone for submit its jurisdiction. Article 32 and 226 says Indian constitution allow courts to take suo moto cognizance over any matter affecting any public at large.
ALTERNATIVES TO ADJUDICATION
In contrast to action, negotiation and other likely practices helps in settling international level disputes in better possible way. It said because firstly they are not adviser in nature and provide levy to both parties for accommodate their own personal interests, while simultaneously reconciling differences with each other. Secondly, courts always focus on right or wrong while negotiators are more better equipped to come up with more flexible and novel solutions towards problem. Unlike action, practices always aim for settling dispute between parties rather than introducing law. It’s process which totally based on compromise and agreement for avoiding any sort of disagreement.
Moreover, Article 33 says ,UN Charter provides negotiating dispute between parties without any third-party involvement (like judges or arbitrators) or any external interference, which further enables parties to monitored each and every phase of dispute, while choosing most accurate process to negotiate for their better convenience.
CONCLUSION
The very idea that adjudication is best form of dispute resolution that fundamentally flawed and there are plenty of reasons to believe so. Firstly, Acton never focuses on settling any dispute but merely focuses on settling legal questions of law. Moreover, international relations were really fragile and always dealt with utmost caution and precautions. The best way to resolve international disputes is only cooperation and comprise, which is absent in any process form of dispute resolution. Thus, belief that action is universally accepted and best method for settling disputes, which is basically wrong in any totality/regard .
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