Dispute Settlement

Question 1

what is the default mechanism for disputes?

Answer 1

The UN - Article 2 (3) - All UN members shall settle international disputes peacefully.

• the security council can impose certain obligations onto states.
• states are the main actors, the ICJ can consider non- state individuals but must be represented by a state

Question 2

Explain the 2 ways disputes can be settled

Answer 2

Chapter 6 Article 33 - Pacific Settlement of Disputes

• Recommendations through a means of settling from informal to formal.

1. Negotiation - UNGA Summit Discussions
2. Mediation - 3rd Party Involvement (consent of all parties)
3. Inquires - Fact finding mission by third party which cannot stand by itself.
4. conciliation - commission set up to deal with disputes (rare)
5. Arbitration - Ard Hoc tribunal, a mechanism for judicial dispute in contrast to standing court. Costs and rules must be considered
6. Judicial settlement - referral of a dispute to a international tribunal

• harder methods can only be resorted to when these methods have been conducted and proven in good faith.

Chapter 7 Article 39 - UN Enforcement Powers

1. Before SC can oblige states, they must determine if there has been a breech of peace/ acts of aggression.
2. they can implement recommendations and decide on measures to restore the peace.

pactas sunt savanda

Question 3

What happens if sates don’t comply to the decision of the court?

Answer 3

Article 94 - Each member state must comply to the decision of the court and if they don’t it will be passed onto the SC.

A Judge Ard Hoc can be appointed if there is no judge to represent a state.

Question 4

What are the two forms of dispute settlement cases?

Answer 4

Contentious cases - between two aggrieved states

• Article 59 - the state must have jurisdiction.
• Admissibility - should the court exercise jurisdiction.
• seek provisional measures
• merits

Advisory cases - members seek legal advice.

Question 5

How is jurisdiction established?

- Optional clause

Answer 5

Optional clause Article 36

• Allows states to make declarations accepting the jurisdiction of the court as compulsory.
• states that sign up are entering into a binding contract.

Reciprocity - 2 declarations accepting courts jurisdiction.

Example case: Nicaragua 1984
- US said in earlier declaration that it shall not deal with disputes regarding any Latin States, and US was trying to change the optional clause.

• agreement in 1946
• Nicaragua had not been given 6 months so was breaching obligation.

Court ruled 6 months was not enough time.

Question 6

Other ways to show jurisdiction

Answer 6

Special Agreements
- States no signed up to the optional clause can show jurisdiction through special agreements

Example - Bahrain and Qatar has series of territorial disputes which were proceeded to the ICJ through signed minutes of discussion and letters.

Compromissionary Clause

• oil platforms case - Iran wanted to know how to establish jurisdiction (E.G obstruction of commerce)
• when there is a dispute over the obligations in a treaty it can be taken up by the ICJ

Forum Propogatum

• states which haven’t signed up to courts jurisdiction but actions show it has then the court will normally have jurisdiction.

Question 7

The Legal use of provisional measures

Answer 7

Article 41 - Cases before the ICJ are not quick and so the court may seek provisional measures to preserve the rights of either party.

• PM are binding and there needs to be the likelihood of some consent

1. Prima Facie - (likelihood of consent)
2. risk of irreparable harm
3. urgency

EXAMPLE
Iran Vs US 2018
- Iran filed case regarding the US breech of Treaty of Amity 1955
- Iran requested PM due to US sanctions
- US objected to the courts jurisdiction but accepted PM
- some sanctions would be in possibility of irreparable harm.

Question 8

What is the role of third states?

Answer 8

Must make sure the court’s hearing is contentious and must have consent of all states.

Example
East Timor, Australia and Portugal (Monetary Gold)
- Indonesia didn’t consent
- The court cannot consider a dispute until all states consent.
- Australia had acted in an inappropriate manner and Portugal acted in self-determination as they believed the case was so important that the court should continue.
- the court accepted this but jurisdiction obverts everything else.

Question 9

What are advisory opinions

Answer 9

Art 65 - the court may give an advisory opinion to any legal question.
- series of questions put to the court to help develop international law.

Example:
The UNGA submitted advisory opinion to court
1. court has to establish if they have jurisdiction and if the UNGA could speak rather than the SC.

• Question was over the legality of use of WMD
• nuclear weapons are contrary to int law but the court could not decide defiantly if it would be unlawful.

Example 2:

UNGA - request on the construction of the Israeli Wall

• what are the legal consequences if Israel is in breech?
• What is the role of third party’s?

UNGA has jurisdiction.

• Israel must reverse and terminate the wall
• third party’s should recognise illegal nature of the wall (maps).