Lecture 10 - International Dispute Settlement Flashcards
A “dispute” is a “disagreement on a point of law or fact, a conflict of legal views or interests between two persons” - Mavrommatis.
An “International dispute” is:
- Actual disagreement between _____ regarding the conduct taken by one of them for protection or vindication of the interests of the other.
- A disagreement on a point of law or fact, a conflict of legal views or of interests between two States.
- Disputes relating to an alleged breach of one or more legal duties. They may also relate to a question of attribution of title to territory, to maritime zones, to movables or to parts of the cultural heritage of a State.
A “dispute” is a “disagreement on a point of law or fact, a conflict of legal views or interests between two persons” - Mavrommatis.
An “International dispute” is:
- Actual disagreement between States regarding the conduct taken by one of them for protection or vindication of the interests of the other.
- A disagreement on a point of law or fact, a conflict of legal views or of interests between two States.
- Disputes relating to an alleged breach of one or more legal duties. They may also relate to a question of attribution of title to territory, to maritime zones, to movables or to parts of the cultural heritage of a State.
Internal Peaceful Dispute Settlement:
States must only settle international disputes _______, not domestic disputes.
So states under international law are allowed to use force in relations to their own citizens subject to human rights law, or to the directions of the Security Council.
This is a fundamental aspect of State Sovereignty.
Internal Peaceful Dispute Settlement:
States must only settle international disputes peacefully, not domestic disputes.
So states under international law are allowed to use force in relations to their own citizens subject to human rights law, or to the directions of the Security Council.
This is a fundamental aspect of State Sovereignty.
International Dispute Settlement:
Art. 2(3) of the U.N. _____states:
“all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”
However, this only means states should settle disputes peacefully, not that they have to settle disputes or the specific means by which they do so.
“It is well-established in international law that no State can, without its consent, be compelled to submit its disputes with other States to mediation or to arbitration or to any other kind of pacific settlement.” – Status of Eastern Carelia Case, PCIJ (1923)
International Dispute Settlement:
Art. 2(3) of the U.N. Charter states:
“all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”
However, this only means states should settle disputes peacefully, not that they have to settle disputes or the specific means by which they do so.
“It is well-established in international law that no State can, without its consent, be compelled to submit its disputes with other States to mediation or to arbitration or to any other kind of pacific settlement.” – Status of Eastern Carelia Case, PCIJ (1923)
Main Reasons for Disputes:
- _______ claim: The war between States may be started from territorial claim such as territorial boundary claim, seas, rivers; channels etc.
- Feeling of extreme nationalism: Felling of nationalism may arise conflict between states.
- Misunderstanding due to arm race: Arms race between neighbouring states creates tension and increases the likelihood of disputes between the neighbouring states.
- Supremacy through _________control: International trade is the source of the richness of a nation. Domination over the world made some countries rich and the competition between these nations created world wars
Main Reasons for Disputes:
- Territorial claim: The war between States may be started from territorial claim such as territorial boundary claim, seas, rivers; channels etc.
- Feeling of extreme nationalism: Felling of nationalism may arise conflict between states.
- Misunderstanding due to arm race: Arms race between neighbouring states creates tension and increases the likelihood of disputes between the neighbouring states.
- Supremacy through economic control: International trade is the source of the richness of a nation. Domination over the world made some countries rich and the competition between these nations created world wars
Peaceful Settlement:
The main purpose and objective of the __ is to maintain international peace and security & develop friendly relation among nations based on the principle of equal right and self determination of people. It is an objective of the UN to settle disputes between States by peaceful methods.
To this end Article.33(1) of the UN Charter provides the following means:
* _______
* ____and good offices
* Inquiry
* Settlement by the United Nations
* Conciliation
* __________
* Settlement by regional machinery
Article 33(2) states that the Security Council may call upon parties to settled their dispute by such means.
In doing so, however, the Security Council recognises that legal disputes should as a general rule be referred to the ICJ: Article 36(3).
A distinction should be drawn between diplomatic procedures and adjudications/judicial settlements.
Diplomatic Procedures: Parties agree on terms of settlement for themselves.
Adjudication/Judicial Settlements: Dispute is settled by a _____ party.
Peaceful Settlement:
The main purpose and objective of the UN is to maintain international peace and security & develop friendly relation among nations based on the principle of equal right and self determination of people. It is an objective of the UN to settle disputes between States by peaceful methods.
To this end Article.33(1) of the UN Charter provides the following means:
* Negotiation
* Mediation and good offices
* Inquiry
* Settlement by the United Nations
* Conciliation
* Arbitration
* Settlement by regional machinery
Article 33(2) states that the Security Council may call upon parties to settled their dispute by such means.
In doing so, however, the Security Council recognises that legal disputes should as a general rule be referred to the ICJ: Article 36(3).
A distinction should be drawn between diplomatic procedures and adjudications/judicial settlements.
Diplomatic Procedures: Parties agree on terms of settlement for themselves.
Adjudication/Judicial Settlements: Dispute is settled by a third party.
Principle of Free Choice:
States are left with wide margin of discretion – absent a specific contractual obligation to resort to a particular means.
This principle was designed with the perspective that States are primary actors – stemming from the principle of _______.
Principle of Free Choice:
States are left with wide margin of discretion – absent a specific contractual obligation to resort to a particular means.
This principle was designed with the perspective that States are primary actors – stemming from the principle of sovereignty.
Principle of Good Faith:
- The parties must embark with sincerity on one dispute settlement procedure
- States must negotiate meaningfully, so as to reach an agreement
- One party may not prematurely _____ the chosen procedure.
- Where one procedure fails, parties must attempt another
- Complete cooperation required
- Good faith demands implementing decisions, even where they are non-binding.
Principle of Good Faith:
- The parties must embark with sincerity on one dispute settlement procedure
- States must negotiate meaningfully, so as to reach an agreement
- One party may not prematurely abandon the chosen procedure.
- Where one procedure fails, parties must attempt another
- Complete cooperation required
- Good faith demands implementing decisions, even where they are non-binding.
Principle of Cooperation:
- Duty to cooperate inherent in peaceful dispute settlement because resolutions would otherwise be ___________.
- This comprises of a duty to negotiate – though there are no international law obligations to negotiate first.
Principle of Cooperation:
- Duty to cooperate inherent in peaceful dispute settlement because resolutions would otherwise be impossible.
- This comprises of a duty to negotiate – though there are no international law obligations to negotiate first.
Negotiation:
This is the first and simplest method of peaceful settlement of disputes. It is the most common form of dispute resolution.
Usually the negotiations are carried on either by the head of the states or their appointed ______. The actual negotiations are preceded by an exchange of correspondence to clear up the point of controversy.
Negotiations are a non-binding procedure in which discussion between the parties are initiated without the intervention of any third party.
During the process parties determine what they want, their own interests as distinguished from their opponents. Each party should identity all their interest, motivation and perceptions.
Here, political, economic, and social considerations are probably more important than what the law says.
International law is but one factor to consider in negotiations.
Negotiation:
This is the first and simplest method of peaceful settlement of disputes. It is the most common form of dispute resolution.
Usually the negotiations are carried on either by the head of the states or their appointed authority. The actual negotiations are preceded by an exchange of correspondence to clear up the point of controversy.
Negotiations are a non-binding procedure in which discussion between the parties are initiated without the intervention of any third party.
During the process parties determine what they want, their own interests as distinguished from their opponents. Each party should identity all their interest, motivation and perceptions.
Here, political, economic, and social considerations are probably more important than what the law says.
International law is but one factor to consider in negotiations.
Mediation and Good Offices:
- While technically distinct from negotiations they often form part of the same process.
- Good offices are a preliminary to direct negotiations in that they attempt to persuade the parties to negotiate.
- Those offering “good offices” must be trusted by both sides as a neutral party (for example, the UN Secretary general).
- A Mediator is a neutral party chosen by the disputing parties who task is to suggest terms of ____________ and bring about a compromise.
- It may be the same person who offered their “good offices” to facilitate the negotiation in the first place.
Mediation and Good Offices:
- While technically distinct from negotiations they often form part of the same process.
- Good offices are a preliminary to direct negotiations in that they attempt to persuade the parties to negotiate.
- Those offering “good offices” must be trusted by both sides as a neutral party (for example, the UN Secretary general).
- A Mediator is a neutral party chosen by the disputing parties who task is to suggest terms of settlement and bring about a compromise.
- It may be the same person who offered their “good offices” to facilitate the negotiation in the first place.
- Mediation is a non-binding procedure in which an impartial and neutral third party, the mediator, assists the parties in reaching a mutually satisfactory settlement. However, this isn’t binding on the parties.
Inquiry:
- Commissions of Inquiry are used to establish the _______basis for a settlement between states.
- The parties will agree to refer the matter to an impartial body whose task is to produce an unbiased finding of facts.
- Thereafter, it is for the _______ to negotiation a settlement based on those facts.
- A Commission of Inquiry’s findings are not legally binding but it is rare for their conclusions to be ignored by the parties in arriving at settlement terms.
- “Invaluable in the present system of international law where no compulsory fact-finding machinery exists and where, in reality, many disputes are compounded by the simple truth that neither party is prepared to accept the other’s version of events”: Martin Dixon.
- Truth and Reconciliation Commissions fit within this framework acting as a hybrid between domestic and international regimes.
- Some international conventions such as the Watercourses Convention 1997 call for compulsory inquires in the event of a dispute.
- In 2013, ___________ Council set up a commission on the human rights violation of North Korea.
Inquiry:
- Commissions of Inquiry are used to establish the factual basis for a settlement between states.
- The parties will agree to refer the matter to an impartial body whose task is to produce an unbiased finding of facts.
- Thereafter, it is for the parties to negotiation a settlement based on those facts.
- A Commission of Inquiry’s findings are not legally binding but it is rare for their conclusions to be ignored by the parties in arriving at settlement terms.
- “Invaluable in the present system of international law where no compulsory fact-finding machinery exists and where, in reality, many disputes are compounded by the simple truth that neither party is prepared to accept the other’s version of events”: Martin Dixon.
- Truth and Reconciliation Commissions fit within this framework acting as a hybrid between domestic and international regimes.
- Some international conventions such as the Watercourses Convention 1997 call for compulsory inquires in the event of a dispute.
- In 2013, UN Human Rights Council set up a commission on the human rights violation of North Korea.
Settlement by the UN:
The General Assembly has wide-ranging authority to make recommendations for the settlement of disputes via non-legally binding resolutions.
“[The GA] may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it seems likely to impair the general welfare or friend welfare among nations”: Article 14, UN Charter.
Limited by its nature as a political body that makes decisions according to bloc allegiances rather than impartial judgment.
The Security Council may utilise its Chapter VI powers in respect of the settlement of disputes to make recommendations: Article 36, UN Charter.
The Security Council cannot imposer a settlement unless there has been a breach of ____, a threat to ____or an act of _______.
Still a fundamentally political institution, more concerned with keeping the peace than deciding on the rights or wrongs of a given situation.
Again, legal disputes should as a general rule be referred to the ___ (although the SC has no power to force States to do so).
Settlement by the UN:
The General Assembly has wide-ranging authority to make recommendations for the settlement of disputes via non-legally binding resolutions.
“[The GA] may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it seems likely to impair the general welfare or friend welfare among nations”: Article 14, UN Charter.
Limited by its nature as a political body that makes decisions according to bloc allegiances rather than impartial judgment.
The Security Council may utilise its Chapter VI powers in respect of the settlement of disputes to make recommendations: Article 36, UN Charter.
The Security Council cannot imposer a settlement unless there has been a breach of peace, a threat to peace or an act of aggression.
Still a fundamentally political institution, more concerned with keeping the peace than deciding on the rights or wrongs of a given situation.
Again, legal disputes should as a general rule be referred to the ICJ (although the SC has no power to force States to do so).
Conciliation:
- A non-judicial or semi-judicial settlement procedure by referring the dispute to a third party such as a commission or committee whose job is to produce a report recommending proposals for settlement.
- Produces concrete proposals that may form the basis for future negotiations.
- Considered a midpoint between a commission of inquiry and arbitration.
- Not legally binding but recommendations are rarely ignored.
- Jan Meyen Conciliation Commission (Iceland v. Norway) (1981) on maritime delimitation.
Conciliation is similar to commissions of ____ because they are set up to find the facts. However, they are similar to __________ because they not only establish the facts but also set out a concrete plan of settlement. But they are different to arbitration because they are not ______________.
Conciliation:
- A non-judicial or semi-judicial settlement procedure by referring the dispute to a third party such as a commission or committee whose job is to produce a report recommending proposals for settlement.
- Produces concrete proposals that may form the basis for future negotiations.
- Considered a midpoint between a commission of inquiry and arbitration.
- Not legally binding but recommendations are rarely ignored.
- Jan Meyen Conciliation Commission (Iceland v. Norway) (1981) on maritime delimitation.
Conciliation is similar to commissions of inquiry because they are set up to find the facts. However, they are similar to arbitration because they not only establish the facts but also set out a concrete plan of settlement. But they are different to arbitration because they are not legally binding.
Arbitration:
Arbitration is a settlement of dispute by states with a legally binding award based on the basis of law. It is of _______jurisdiction. Instead of ____making the decision, the settlement can be made by any ______. However, arbitration still only involves legal disputes, so lawyers would most likely be involved. It is more serious than mediation and weaker than the courts but is a legally binding way of quickly settling disputes.
Advantages of Arbitration:
- Arbitration can be conducted without _____.
- It is more appropriate to technical disputes.
- It is less _______.
- Its procedure is flexible. Enough to be combined with the fact finding processes.
Arbitration:
Arbitration is a settlement of dispute by states with a legally binding award based on the basis of law. It is of voluntary jurisdiction. Instead of judges making the decision, the settlement can be made by any third party. However, arbitration still only involves legal disputes, so lawyers would most likely be involved. It is more serious than mediation and weaker than the courts but is a legally binding way of quickly settling disputes.
Advantages of Arbitration:
- Arbitration can be conducted without publicity.
- It is more appropriate to technical disputes.
- It is less expensive.
- Its procedure is flexible. Enough to be combined with the fact finding processes.
Article __ of the Hague convention of 1899 says, “International arbitration has for its object the settlement of differences between states by judges of their own choice and on the basis of a respect for law.”
The permanent court of arbitration was established at The Hague as per the first Hague conference of 1899. It functions as an arbitrator for the willing states. It had given its decision in most of the cases and solved the problems amicably.
Article 15 of the Hague convention of 1899 says, “International arbitration has for its object the settlement of differences between states by judges of their own choice and on the basis of a respect for law.”
The permanent court of arbitration was established at The Hague as per the first Hague conference of 1899. It functions as an arbitrator for the willing states. It had given its decision in most of the cases and solved the problems amicably.
