4. Dispute Settlement

Question 1

What does dispute settlement mean?

Answer 1

General obligation on states:
Article 2(3) UN Charter: “All members shall settle their disputes by peaceful means in such a manner that international peace, and  security, and justice are not endangered.”

Does not mean that states have to settle their disputes (states can agree to disagree).

But the disputes they do decide to settle must be resolved by peaceful means.

Question 2

What do we mean by peaceful means?

Answer 2

Article 33(1): “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, or other peaceful means of their own choice”.

Negotiation = less formal, judicial settlement = formal.

Question 3

Non-judicial settlement components?

(1) Negotiation

Answer 3

• no established procedures; least formal; most common; there are no established procedures re how negotiations should be conducted. Diplomats are important.

Question 4

Non-judicial settlement components?

(2) Mediation

Answer 4

• involvement of a 3rd party which offers suggestions on terms.
• builds on negotiation; when it has taken place but perhaps not been successful.
• eg 1995 Dayton Agreement – b/w Serbia, Bosnia, Croatia. Bosnian was = 1992-1995 following the break-up of Yugoslavia. The involvement of the US in the negotiation process; held in Ohio – US provided a location where the negotiations could take place away from all the chaos.
• more common than judicial settlement; but as involves more of a commitment, it is less common than negotiation.

Question 5

Non-judicial settlement components?

(3) Conciliation

Answer 5

• report by 3rd party on all aspects of dispute (usually takes into account all interests also) with non-binding recommendations for resolution.
• however there is a tendency for the report to be made legally binding – crosses the line slightly b/w non-judicial and judicial settlement. Step closer to the 3rd party making a decision over what is to happen.

Question 6

Arbitration (seen as judicial)

Answer 6

• Between conciliation and adjudication.
• Settled by arbitrators.
• Parameters are largely left to the parties.
• Control ranges b/w who is appointed as arbitrators; which legal questions are addressed; how formal the proceedings will be.
• Potential advantages for the states: control over questions addressed and legal sources considered; no third party interventions; possibility of confidentiality (court proceedings are public; sensitive information could be leaked); flexibility; speed (often quicker than a court procedure); lower costs than ICJ.
• The ICJ provides a formal court of arbitration.