Courts, Tribunals and Dispute Mechanisms
Introduction
"Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination."
Article 29.2 of the Constitution
Introduction to International Courts, Tribunals and the Resolution of International Disputes.
The peaceful settlement of disputes is an essential feature of any effective legal system. A commitment to the peaceful settlement of disputes expresses a willingness to solve disagreements by agreed principles and rules. In addition to judicial determination of disputes, states often resort to arbitration and conciliation. A growth in the number of international dispute settlement bodies is a current characteristic of the international legal order.
A further notable area of recent growth has been the field of international criminal justice. While tracing its origins back to the Nuremburg and Tokyo Trials following World War II, the establishment of the ad hoc criminal tribunals for the Former Yugoslavia and Rwanda in the 1990s marked the beginning of a new era in international criminal law. This movement towards ending impunity culminated in the establishment of the first permanent International Criminal Court in 2002, upon the entry into force of the Rome Statute.
In more recent years a “third generation” of hybrid courts have also been established to deal with past atrocities: Crimes Panels of the District Court of Dili, East Timor; “Regulation 64” Panels in the Courts of Kosovo; the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon.
A detailed study of this proliferation of international judicial organisations, together with useful materials and links, is available from the Project on International Courts and Tribunals.
International Court of Justice
The International Court of Justice (ICJ) in The Hague, also known as the World Court, is the principal judicial organ of the United Nations. It began work in 1946, when it replaced the Permanent Court of International Justice (PCIJ) which had functioned since 1922. It operates under a Statute annexed to the UN Charter. UN Charter and Statute of the ICJ, as published in the Irish Treaty Series.
The ICJ has a dual role: to settle in accordance with international law the legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by duly authorised international organs and agencies.
The peaceful settlement of disputes is one of the primary functions of the United Nations as is evidenced by references to such settlement in the UN Charter. All Member States of the United Nations are automatically Parties to the Statute of the ICJ, which forms an integral part of the UN Charter. In addition, States may make a declaration under article 36(2) of the ICJ Statute accepting the jurisdiction of the Court as compulsory in settling legal disputes with other States which have similarly made a declaration under article 36(2). On 15 December 2011 Ireland declared that it recognised as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes as specified in Article 36, paragraph 2, with the exception of any legal dispute with the United Kingdom of Great Britain and Northern Ireland in regard to Northern Ireland.
Although the Court's judgments are binding only on the parties to any particular case, given the calibre of Court's judges and its status as the principal judicial organ of the UN, decisions of the ICJ are themselves often cited as evidence of international law. The Court has given important decisions and opinions on such topics as the law of the sea, boundary disputes, the use of force and the legality of the threat or use of nuclear weapons. The text of the Court's decisions may be accessed from its website.
Ireland's submission to the ICJ in the Advisory Case on the Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory
Ireland's submission to the ICJ in the Advisory Case on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo.
Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the first Hague Peace Conference.
The most concrete achievement of the Conference was the establishment of the PCA, the first global mechanism for the settlement of inter-state disputes. The 1899 Convention, which provided the legal basis for the PCA, was revised at the second Hague Peace Conference in 1907. Ireland acceded to the Convention in 2002.
Despite its name, the PCA is neither permanent nor a proper Court. Rather than a permanent bench, made of judges which have not been selected by the parties, and who apply pre-determined rules of procedure, the PCA provides states with a roster of potential arbitrators to form an ad hoc arbitral tribunal. The only component of the PCA which is permanent is its secretariat, known as the International Bureau which provides the logistical support for it.
In 1937 the states parties to the 1907 Convention agreed that the International Bureau of the PCA, which acts as the Court's Registry, should offer its services to other conciliation bodies. Later, the International Bureau was given the authority to make its services available in disputes between parties, only one of which is a state, while the Secretary General of the PCA was conferred with a dispute resolution role in the appointment of an arbitrator in any arbitration proceedings conducted under the Rules on International Commercial Arbitration adopted by the UN Commission on by the International Trade Law (UNCITRAL).
As a party to the Convention, Ireland may designate up to four persons “of known competency in questions of international law”, to act as “Members of the Court”. Parties to a dispute resolution may, but are not required to select arbitrators or other adjudicators from among them. In addition to their role as arbitrators, Members of the Court, acting as “national groups” are entitled to nominate candidates for election to both the International Court of Justice and the International Criminal Court. Ireland has nominated, as members to the Permanent Court of Arbitration's Panel of Arbitrators, Mr Justice David Barniville President of the High Court, Professor Siobhán Mullally, Director of the Irish Centre for Human Rights, University of Galway, Mr Declan Smyth, Legal Adviser, Department of Foreign Affairs Ireland and Mr Justice Séamus Woulfe, judge of the Supreme Court of Ireland.
Ireland has used the PCA as a Secretariat in its arbitral disputes with the United Kingdom in relation to the operation of the Mixed Oxide (‘MOX') reprocessing plant at Sellafield under the Convention for the Protection of the Marine Environment of the North East Atlantic (‘OSPAR') and the United Nations Convention on the Law of the Sea (‘UNCLOS').
International Criminal Court
The International Criminal Court (ICC) in The Hague is a treaty-based, international criminal court established to prosecute genocide, crimes against humanity and war crimes. Although the crime of aggression is also listed, the Court’s jurisdiction in this regard is subject to a number of procedures which were agreed at the Review Conference of the Rome Statute of the International Criminal Court, convened in Kampala, Uganda from 31 May to 11 June 2010.
The Court is an independent international organisation with a special relationship with the United Nations. It is complementary to national jurisdictions in that it may only proceed with a case where a state is unable or unwilling to investigate or prosecute. The Statute of the Court, known as the Rome Statute, was adopted on 17 July 1998 and entered into force on 1 July 2002.
Because submission to the jurisdiction of the International Criminal Court entails a partial transfer to the Court of the sovereign power of the State to administer criminal justice, it was necessary to amend the Irish Constitution prior to ratification. To this end, the twenty-third amendment of the Constitution inserted Article 29.9, providing that the State may ratify the Rome Statute. Ireland has ratified the Statute and accordingly is a member of the Assembly of State Parties. In addition, an Irish lawyer, Judge Maureen Harding Clark, served as a judge of the Court in the Court's Trial Division from 2003 until 2006.
The Rome Statute
Rome Statute deals with the establishment of the Court, its jurisdiction and the general principles of criminal law to be applied. It sets out the composition of the Court and its administration, the procedures for investigation, prosecution and trial, the penalties which can be imposed on conviction, and provides for appeals.
The procedures under the Statute guarantee respect for the rights of the accused and will ensure that due process be observed. There is an obligation on the States Parties to cooperate with the Court, and provision is also made for the enforcement of the judgments of the Court and for the carrying out of sentences. The Statute, furthermore, provides for an Assembly of States Parties, as a “management oversight and legislative body”, and for the financing of the Court.
A Review Conference of the Rome Statute of the International Criminal Court was convened in Kampala, Uganda from 31 May to 11 June 2010. At that Conference it was agreed to amend the Statute in order to extend the definition of war crimes falling within the jurisdiction of the Court and in order to include provisions relating to the definition of the crime of aggression and in relation to the Court’s jurisdiction in respect of this crime.
Read the full text of the Rome Statute incorporating the amendments agreed at the Review Conference in Kampala.
The Court's Jurisdiction
Article 5 of the Rome Statute sets out that “the most serious crimes of concern to the international community” namely, the crime of genocide, crimes against humanity, war crimes and the crime of aggression are within the jurisdiction of the Court. The Court Statute provided that the Court could exercise jurisdiction over genocide, crimes against humanity and war crimes committed after the date on which the Statute enters into force.
At the time of the adoption of the Rome Statute in 1998, it was not possible to provide for the Court to exercise jurisdiction over the crime of aggression as no agreement had been reached on a provision defining the crime and setting out the conditions under which the Court could exercise jurisdiction with respect to this crime. However, the Rome Statute was amended at the Review Conference of the Rome Statute of the International Criminal Court, convened in Kampala, Uganda from 31 May to 11 June 2010 . At its 13th meeting, on 11 June 2010, the Conference adopted Resolution RC/Res.6, by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime. The amendment enters into force for those States Parties to the Rome Statute that have ratified or accepted it. Ireland ratified the Kampala amendment on the crime of aggression on 27 September 2018.
Definitions
The definitions of genocide, crimes against humanity and war crimes contained in the Statute codify existing international law.
- The definition of genocide is identical to that contained in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It involves the following acts when committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: killing or causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures to prevent births within the group or forcibly transferring children of the group to another group.
- The concept of crimes against humanity also embraces particularly serious violations of human rights - violations such as murder, extermination, slavery, forcible transfer of population, unlawful imprisonment, torture, sexual violence, persecution of a group, enforced disappearance and apartheid - when committed as part of a widespread or systematic attack directed against the civilian population. Crimes against humanity can be committed in time both of war and of peace.
- War crimes include grave breaches of the four Geneva Conventions of 1949 which provide for the care of wounded and sick members of the armed forces, the treatment of prisoners of war and the protection of civilians in time of armed conflict. Further examples of war crimes, for the purpose of the Rome Statute, include attacks during armed conflict against civilians, and against humanitarian and peacekeeping missions, attacks directed against religious, educational and cultural buildings, pillaging, rape, sexual slavery and enforced prostitution and the use of child soldiers. At the Review Conference of the Rome Statute of the International Criminal Court, convened in Kampala, Uganda from 31 May to 11 June 2010, the Conference, at is 12th meeting, on 10 June 2010, adopted resolution RC/Res.5 by which it amended the Rome Statute to bring under the jurisdiction of the Court the war crimes of employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices, and employing bullets which expand or flatten easily in the human body, when committed in armed conflicts not of an international character. These crimes already fell within the jurisdiction of the Court as serious violations of the laws and customs applicable in international armed conflict.
The definition of the crime of aggression is based on United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, and in this context includes a crime committed by a political or military leader which by its character, gravity and scale constitute a manifest violation of the Charter of the United Nations.
International Criminal Tribunal for Former Yugoslavia
The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by UN Security Council Resolution 827 (1993) as a response to serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and the threat to international peace and security which they posed.
The ICTY has authority to prosecute four categories of offences, committed on the territory of the former Yugoslavia since 1991:
- grave breaches of the 1949 Geneva Conventions,
- violations of the laws or customs of war,
- genocide and
- crimes against humanity.
An Irish lawyer, Judge Maureen Harding Clark has served as an ad litem judge on the Tribunal.
The ICTY was established to respond to the particular circumstances of the former Yugoslavia as an ad hoc measure to contribute to the restoration and maintenance of peace. As it had completed much of its work, and as the time for its closure approached, it was acknowledged that there was a need to establish an ad hoc mechanism to carry out a number of essential functions of the ICTY, which will diminish over time. Therefore, the United Nations Security Council decided, by resolution 1966 (2010) adopted on 22 December 2010, to replace the ICTY with a Residual Mechanism which took over a number of functions of ICTY as of 1 July 2013. This mechanism is called the United Nations Mechanism for International Criminal Tribunals (MICT), and it had previously taken over a number of the functions of the International Criminal Tribunal for Rwanda. MICT is responsible for any essential competences and functions of the ICTY in relation to all completed cases and any cases that may be brought before it (MICT has the power to prosecute, supervise sentences, deal with the protection of witnesses, issue and receive requests for co-operation and assistance and to manage archives).
International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security Council Resolution 955 (1994) as a response to serious violations of humanitarian law committed in Rwanda and neighbouring states, and the threat to peace and security which they posed.
The ICTR has authority to prosecute genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, committed between 1 January and 31 December 1994 by Rwandans in the territory of Rwanda and in the territory of neighbouring States, as well as non-Rwandan citizens for crimes committed in Rwanda.
The ICTR delivered the first ever decision by an international tribunal on the crime of genocide and convicted, for the first time, a former head of state for the crime of genocide. In addition, the case law of the Tribunal has particularly contributed to the treatment of sexual offences in international criminal law.
The ICTR was established to respond to the particular circumstances in Rwanda as an ad hoc measure to contribute to the restoration and maintenance of peace. As it had completed much of its work, and as the time for its closure approached, it was acknowledged that there was a need to establish an ad hoc mechanism to carry out a number of essential functions of the ICTR, which will diminish over time. Therefore, the United Nations Security Council decided, by resolution 1966 (2010) adopted on 22 December 2010, to replace ICTR with a Residual Mechanism which took over a number of functions of the ICTR with effect on 1 July 2012. This mechanism is called the United Nations Mechanism for International Criminal Tribunals (MICT), and it also took over a number of the functions of the International Criminal Tribunal for the former Yugoslavia, with effect on 1 July 2013. The purpose of MICT is to take over any essential competences and functions of the ICTR in relation to all completed cases and any cases that may be brought before it (MICT has, the power to prosecute, supervise sentences, deal with the protection of witnesses, issue and receive requests for co-operation and assistance and to manage archives).
European Court of Human Rights
The European Court of Human Rights is an international court established under the European Convention on Human Rights.
The principal function of the Court is to ensure the observance of the engagements undertaken by the parties to the Convention and its Protocols.
The Court is comprised of 46 judges, elected by the Parliamentary Assembly of the Council of Europe. The judge elected in respect of Ireland, Dr Síofra O'Leary, has served as President of the Court since 1 November 2022, and is the first woman to do so.
The Court hears applications from individuals, non-governmental organisations, or groups of individuals who claim to be the victim of a violation of the Convention or its Protocols. The Court also hears inter-state cases, in which a contracting state alleges that there has been a breach of the Convention or its Protocols by another contracting state.
The contracting states undertake to abide by the final judgments of the Court in any case to which they are parties. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments.
Ireland signed the Convention on 4 November 1950, and ratified it on 25 February 1953. The Convention entered into force with respect to the State on 3 September 1953. Ireland was amongst the first states to recognise the right of individual application, and to accept the compulsory jurisdiction of the Court.
Ireland is a party to a number of Protocols to the Convention which expand the scope of the rights and freedoms guaranteed by the Convention, and which have introduced significant reforms to the institutional machinery of the Convention system.
The Convention has been incorporated into Irish law by the European Convention on Human Rights Act 2003 (as amended).
The first ever judgment delivered by the Court, on 14 November 1960, concerned an application against Ireland (Lawless v Ireland). A number of subsequent cases concerning Ireland have had a significant impact on the interpretation and application of the Convention, including Ireland v the United Kingdom (1978), Airey v Ireland (1979), Norris v Ireland (1988), Open Door and Dublin Well Woman v Ireland (1992), Bosphorous Airways v Ireland (2005), A, B and C v Ireland (2010), and O’Keeffe v Ireland (2014).
A list of judgments and decisions delivered by the Court in cases concerning Ireland is available on the Court’s HUDOC database. Further information on referring applications to the Court is available on the Court’s website.
The Department of Foreign Affairs acts as agent for the Government in proceedings before the Court.
European Court of Justice
The Court of Justice of the European Union (the CJEU) is the highest court in the EU system.
The Court of Justice of the European Union (the CJEU) has the function of ensuring that the law is observed in the interpretation and application of the European Treaties and that the laws adopted by the European Union are enforced, understood and uniformly applied in all Member States and by the institutions of the European Union.
The CJEU is comprised of three levels:
- the Court of Justice;
- the General Court and
- specialised courts, which may be attached to the General Court to determine cases brought in specific areas.
The Chief State Solicitor is the Agent for the Government before the CJEU.
Court of Justice
The Court of Justice is composed of 27 judges (one from each Member State) and 11 Advocates General. The Court may sit as a full Court of 27 judges, as a Grand Chamber of 15 judges, or in chambers of five and three judges. The Court is headed by a President, who is elected by the judges from among their number. Advocates General assist the Court in presenting opinions on a case assigned to them which, although not binding on the Court, are often followed.
The Court of Justice is the highest court in the EU system and it has a right to hear appeals from certain decisions of the General Court. Cases handled by the Court of Justice are coded with the letter ‘C’, e.g. Case C-1/12.
Under Art. 267 TFEU national courts of the Member States may, in the context of domestic litigation, refer a legal question to the Court of Justice for example on the interpretation or clarification of an EU law, or on the validity of such a law. This procedure is called a “preliminary reference”. The Treaties provide that specific areas may be identified in relation to which the General Court may hear preliminary references from national courts, with a right of review by the Court of Justice, however no such areas have yet been identified.
General Court
The Chief State’s Solicitors Office is the Agent for the Government before the Court of Justice of the European Union General Court.
The General Court is composed of 54 judges (two from each Member State). The General Court may sit as a Grand Chamber of 15 judges, in chambers of five or three judges or, in certain cases, it may sit as a single judge. Cases handled by the General Court are coded with the letter ‘T’. e.g. Case T-1/12.
The General Court may hear, as a first instance court,
- actions for annulment of EU acts (Art. 263 TFEU);
- actions for failure to act against an EU institution (Art. 265 TFEU); and
- actions for damages against the EU (Arts. 268 and 340 TFEU).
A decision of the General Court in these type of cases may be appealed to the Court of Justice on a point of law.
The General Court also acts as an appeal court for decisions given by the specialised courts (Art. 256 TFEU). The decisions of the General Court in these types of cases may exceptionally be subject to review by the Court of Justice where there is a serious risk of the unity or consistency of EU law being affected.
Specialised Courts
Art. 257 TFEU provides that the European Parliament and the Council may establish specialised courts attached to the General Court to hear at first instance certain classes of cases in specific areas. Decisions of specialised courts may be appealed to the General Court. A specialised court, known as the Civil Service Tribunal, has been established to hear cases involving disputes within the civil service of the EU (Art. 270 TFEU). The specialised court consists of seven judges and usually sits as a panel of three judges, although it may also sit as a full panel, a panel of five judges, or as a single judge. Cases handled by the Civil Service Tribunal are coded with the letter ‘F’. e.g. Case F-1/12.
European Social Charter
Revised European Social Charter Collective Complaint Mechanism
The European Social Charter sets out a number of rights and freedoms and establishes a supervisory mechanism guaranteeing their respect by the States Parties. The original 1961 Charter was revised in 1996 and this revised European Social Charter came into force in 1999.
The Revised Charter guarantees rights relating to housing, health, education, employment, legal and social protection, movement of persons and non-discrimination. It was intended to fill a gap left by the European Convention for the Protection of Human Rights and Fundamental Freedoms, which essentially covers only civil and political rights.
The monitoring procedure is based on the submission of national reports. The European Committee of Social Rights examines these reports and determines whether or not national law and practice in the States Parties is in conformity with the Charter.
Under a protocol opened for signature in 1995, which came into force in 1998, complaints of violations of the European Social Charter may be lodged with the European Committee of Social Rights. Certain organisations such as employers’ organisations and trade unions are entitled to lodge complaints with the Committee.
Decisions on the merits in cases involving Ireland of the European Committee of Social Rights under the collective complaints mechanism
2017 - International Federation for Human Rights v Ireland
2015 - European Roma Rights Centre (ERRC) v. Ireland
2014 - Association for the Protection of all Children (APPROACH) Ltd v Ireland
2014 - Federation of Catholic Family Associations in Europe (FAFCE) v Ireland
2013 - European Confederation of Police (EuroCop) v Ireland
2007 - International Federation of Human Rights Leagues (FIDH) v Ireland
2004 - World Organisation Against Torture (OMCT) v Ireland
Our Legal Division is the Agent for the Government before the European Court of Human Rights. We do not give legal advice on lodging a collective complaint with the European Committee of Social Rights. Further information on the collective complaint procedure can be obtained from consulting the website of the European Committee of Social Rights.
United Nations Treaty monitoring bodies
Certain UN human rights treaties allow individuals to complain to treaty monitoring bodies.
Ireland is party to a number of international human rights treaties.
Some of these treaties allow individuals to make complaints to a committee of independent experts (often referred to as “treaty bodies” or treaty-based “monitoring bodies”) set up under the relevant treaty if they believe that the rights guaranteed by the treaty have been violated. Such complaints are known as “individual communications” and may be made only with regard to the conduct of states which are party to the relevant treaty and which have also accepted the jurisdiction of the committee to hear complaints about its conduct.
Ireland has accepted the jurisdiction to hear individual complaints of a number of the treaty monitoring bodies. The relevant treaties are:
- the International Covenant on Civil and Political Rights (and the second Optional Protocol to the Covenant on the abolition of the death penalty), which is monitored by the Human Rights Committee, according to the rules set out in the first Optional Protocol to the Covenant;
- the International Convention on the Elimination of All Forms of Racial Discrimination, which is monitored by the Committee on the Elimination of Racial Discrimination, according to the rules set out in Article 14 of the Convention;
- the Convention on the Elimination of All Forms of Discrimination Against Women, which is monitored by the Committee on the Elimination of Discrimination Against Women, according to the rules set out in the Optional Protocol to the Convention;
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is monitored by the Committee Against Torture, according to the rules set out in Article 22 of the Convention.
Complaints must be directed to the Office of the United Nations High Commissioner for Human Rights in Geneva. More information is available here.
Decisions of UN Treaty Mechanism Bodies in complaints involving Ireland
Individual Complaints to the United Nations Human Rights Committee:
2022 - S.F. v Ireland
2017 - Whelan v Ireland
2016 - Mellet v Ireland
2006 - O'Neill and Quinn v Ireland
2003 - Ó Colchúin v Ireland
2002 - Kavanagh v Ireland
2001 - Kavanagh v Ireland
1996 - Holland v Ireland
Individuals may also make complaints using other monitoring mechanisms set up by the United Nations These mechanisms include:
- the Commission on the Status of Women, established by the UN Economic and Social Council;
- the so-called “1503 procedure”, which allows complaints to be made to the United Nations Human Rights Council, which consists of representatives of 47 member states of the United Nations, elected by the UN General Assembly; and
- the so-called “special procedures”, which allow complaints to be made to independent experts under procedures established by the Human Rights Council.
Read more at: The Office of the High Commissioner for Human Rights