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INTERNATIONAL REVIEW

International Organizations Law Review 5 (2008) 7–22 www.brill.nl/iolr

The International of : ?

K.J. Keith* of the International Court of Justice; formerly judge of the New Zealand Supreme Court and Court of Appeal (1996-2006)

The title to the Seminar that formed the basis of this Article – The Cente- nary of the 1907 Hague Convention and 100 Years of International Dispute Settlement – reminds us of several things. One is that the Convention, adopted just over 100 years ago, is concerned with a wide range of means for the settling of international disputes. It is not limited to binding third party settlement by arbitration or . The Convention regulates good offices, and commissions of inquiry, as well as setting up the Permanent Court of Arbitration and its procedures. The Convention also recognised the harsh reality that “recourse to force,” “an appeal to arms,” was seen, too often still is seen, as a means of settling international disputes. A second feature of the Convention is its response to that reality. In its preamble, the parties emphasise their sincere wish to work for the mainte- nance of general . They recognise the solidarity uniting the members of the society of nations, of which 22 countries from beyond Europe were represented at the 1907 Conference, compared with only six in 1899, and they express their desire to extend the empire of law (we would now, I think,

* The contents of this article originally were given as part of the Seminar on the Centenary of the 1907 Hague Convention, which was sponsored by the Ministry of Foreign Affairs and was held on 18 October 2007.

© Koninklijke Brill NV, Leiden, 2008 DOI: 10.1163/157237408X326147 8 Keith / International Organizations Law Review 5 (2008) 7–22 say “the ”) and to strengthen the appreciation of international justice. Building on those paragraphs, the Parties in the first article of the Con- vention may be seen as anticipating, if in a limited form, paragraphs (3) and (4) of article 2 of the of the United Nations. Under a heading of the maintenance of general peace, they state the following:

With a view to obviating, as far as possible, recourse to force in the relations between States, the Contracting Powers agree to use their best efforts to ensure the pacific set- tlement of international differences.

That linkage between peaceful methods of settlement and avoiding an appeal to arms appears again in the articles about good offices and mediation. Third, the Convention emphasises the principles of and on which, the preamble tells us, are based the security of States and the welfare of peoples. Similarly, international arbitration has for its object “the settlement of disputes between States … on the basis of respect for law” in Article 37. That emphasis on respect for law, rights and equity may also be seen as anticipating paragraph (1) of article 1 of the UN Charter. The first purpose of the UN stated in that article is maintaining international peace and security. One means of achieving that end is to bring about, by peaceful means, and in conformity with the principles of justice and , adjustment or settlement of international disputes or situations which might lead to a breach of the peace. That provision and the question asked in the title to this Article help make a fourth point: the International Court of Justice is not alone. The question I am asked to address is whether the Court is first among equals. The Charter similarly recognises variety and choice: UN Members are free to entrust the solution of their differences to other .1 The of the Permanent Court of International Justice (PCIJ) had provided that the new Court was in addition to the Court of Arbitration organised by the 1899 and 1907 Conventions; the Statute also provided that the duties of the Court’s Registrar were not to be considered incompatible with those of the Secretary-General of the PCA, a provision not carried forward in

1) UN Charter art. 95.