4: Peaceful Settlement of International Disputes Flashcards
dispute resolution
peaceful settlement of disputes - general principle of IL
laid down with others in Art 2.3 of the UN Charter
inevitable to have disputes arise in any type of society
- diverse actors, different interests, diverging values/needs
- clashes/tensions are normal
- but to live peacefully, you have to learn to settle disputes peacefully
types of conflict/disputes
horizontal ones
- inter-state disputes between sovereign states
- disputes within an institutional framework like international organisations (specialised activity necessitates own dispute resolution mechanisms)
vertical ones
- states vs. other subjects like firms or individuals
process of identifying and addressing conflict
identify claims first
- arguments/demands of each party
- what is happening and what is the dispute about
identify rights/obligations of each party
- verify applicable sources of law
- identifying relevant legal sources
know the facts at hand
- mix law with facts and analysis of factual situation in light of law
2 techniques of conflict management
- diplomatic procedures: attempt to resolve the disputes by the parties themselves/with the aid of a third party
- non-binding, voluntary and only political
- diplomatic procedures include negotiation, mediation, good offices and conciliation
- peaceful modes of settlement between parties themselves or with the assistance of a third party - adjudication: binding method of dispute settlement
- legally binding so if a country accepts to solve a dispute via adjudication, you are legally submitted to this judgement/resolution and cannot escape it
- activate arbitration and international courts or international judicial procedures
diplomatic procedures
- negotiation
- discussion between parties with a view to reconciling/understanding divergent positions - mediation, good offices
- third party is involved to encourage a settlement
- difference between the 2 is that a mediator is active and actively participates by proposing solutions and suggesting alternatives whereas a facilitator in good offices influences the parties to enter negotiation and promotes/facilitates contacts between parties in a conflict but is not involves in the matter
- mediator and facilitator has to be recognised by both parties - inquiry
- usually a mission where a group of people or delegation are sent to ascertain the facts
- ascertain precisely the factual matters underlying the dispute - conciliation
- combination of mediation and inquiry
- third party who investigates the basis of the dispute, presents suggestions/proposals for a settlement (not legally binding since it is not adjudication)
adjudication
binding method of dispute settlement
- settlement of differences between states by judges of their own choice and on the basis of respect for law
- more flexible than ordinary law since it is the parties to the dispute who create a tribunal ad hoc for that particular case
- everything is in the hands of the parties
- advantage that it isn’t public since it only serves their own needs
- financial demanding - international judicial procedure
- settlement of legal differences by a permanent body of judges/professionals on the basis of IL and within the framework of fixed procedural forms
- judicial organs like ICJ, international tribunal for the law of the sea, Court of Justice of the EU, ECHR - specialised dispute settlement bodies (within an institutional or treaty framework)
- adjudication in particular financial institutions
international court of justice
one of the main organs of the UN (others include SC, general assembly, economic and social council)
judicial body
- all information in the statues of the ICJ
2 main powers/competences of the ICJ
- inter-state legal disputes
- authoritative legal competence to settle disputes or lawsuits brought by one country against another sovereign country
- issues a legally binding verdict/judgement and countries have an international legal obligation to comply with the decision - advisory opinions on legal questions requested by UN organs and specialised agencies
- important to clarify certain controversial issues in the world
- non-binding advisory proceedings
composition of the ICJ
15 independent judges elected regardless of nationality
- elected for 9 years and re-election is possible
nominated by home countries but have to be elected by the UN SC and general assembly
- whole plenary not by unanimity but by qualified majority
- still politicised
who has access to the ICJ?
ordinarily, any member of the UN
- exception that if there are states that are not members of the UN and can adhere directly to the ICJ statute, they also have access
not sufficient that they are members of the UN because IL is based on voluntarism and consensualism
- need consent/willingness of a state
- with ICJ, need to find consent of the parties being sued
4 possibilities of getting consent for the ICJ
- both parties (applicant and respondent) give an ad hoc and immediate consent
- conclude a special agreement to submit the dispute to the court
- not always the case and you cannot expect that the other party will consent to being sued - judges investigate and find consent in advance
- works via the jurisdictional clause
- special provision in treaties stipulating that in case of a dispute of a given type/disaccord, one party may refer the dispute to the court
- acceptance of jurisdiction in advance - through the reciprocal effect of the declarations
- countries may have taken unilateral acts, accepted voluntarily and unilaterally the ICJ jurisdiction in any case they might be party to
- recognition of the jurisdiction of the court as compulsory - forum prorogatum
- states can bring a lawsuit even if the other does not consent
- enables the court to ascertain the case even if the other state accepts consent later on
- state accepts the jurisdiction of the court after an application instituting proceedings is filed against it
