Peace Settlement of Disputes

Question 1

UN Charter, Art. 33

Answer 1

The parties involved into a dispute, the continuance of which is likely to endanger the maintenance of international security, shall seek a solution by:
- negotiation
- enquiry
- mediation
- conciliation
- arbitration
- judicial settlement
- regional agencies or arrangements
- any other peaceful means of their choice

Question 2

Possible settlement methods

Answer 2

Two big families of settlement methods:

1. Agreement= diplomacy:
	a. with the sole participation of the parties:
		§ negotiation 
	b. with the intervenetion of third parties:
		§ good offices
		§ conciliation 
		§ mediation
		§ inquiry 

2. Judgement= arbitral/ judicial; produce a judgement (=award); must be based on State consent

Question 3

UN Charter, Art. 34, 35, 36, 37

Answer 3

The SC may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

Art. 35
1. Any Member of the UN might bring any dispute or any situation to attention of the SC or of the GA
2. Any State which is not a Member of the UN might submit and bring to attention of the SC or of the GA any dispute in which the party is involved ONLY IF, for the purposes of the dispute, it accepts in advance to be bound by the obligations of pacific settlement in the Charter

Art. 36
The SC may at any stage of a dispute recommend appropriate procedures or methods of adjustment

Art. 37
If the SC deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Art. 36 or to recommend such terms of settlement as it may consider appropriate

Question 4

UN Charter, Art. 11, 12

Answer 4

The GA may discuss any question relating to the maintenance of international peace and security that is brought before it by any Member of the UN or any State not Member of the UN in accordane with Article 35,…, the GA may make recommendations with regard to any such questions to the State or States concerned or to the SC or both.

Art. 12
While the SC is exercising in respect of any dispute or situation the functions assigned to it by the Charter, the GA shall not make any recommendation with regard to that dispute or situation unless requested by the SC

Question 5

UN Charter, Art. 92, 94

Answer 5

The international Court of Justice shall be the principal judicial organ of the UN. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

Art. 94
1. Each Member of the UN undertakes to comply with the decision of the International Court of Justice in any case to which it is a party
2. If any party to a case fails to perform the obligations incumbent upon it under a judgement rendered by the Court, the other party may have recourse to the SC, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgement

Question 6

ICJ’s Statute, Art. 3, 4, 13 (+ competences)

Answer 6

The Court shall consist of fifteen members, no two of whom may be nationals of the same State

Art. 4
The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration

Art. 13
The members of the Court shall be elected for nine years and may be re-elected

Competences:
- can hear legal disputes
issue advisory opinions

Question 7

ICJ’s Statute, Art. 36, 38

Answer 7

The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the UN for in treaties and conventions in force
Optional Clause of the same Art.
The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
- the interpretation of a treay
- any question of international law
- the existence of any fact which, if established, would constitute a breach of an international obligation
- the nature or extent of the reparation to be made or the breach of an international obligation

Art. 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recgnized by the contesting States
b. international custom, as evidence of a general practice accepted as law
c. the general principles of law recognized by civilized nations
d. subject to the provisions of Article 59, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
This provision shall not prejudice the power of the Court to decide a case ex aequa et bono, if the parties agree thereto

Question 8

ICJ’s Statute, Art. 34, 41, 59

Answer 8

Only States may be parties in cases before the Court

Art. 41
The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party

Art. 59
The decision of the Court has no binding force except between the parties and in respect that particular case

Question 9

ICJ’s Statute, Art. 34, 41, 59

Answer 9

Only States may be parties in cases before the Court

Art. 41
The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party

Art. 59
The decision of the Court has no binding force except between the parties and in respect that particular case

Question 10

UN Charter, Art. 96

Answer 10

1. The GA or the SC may request the Interantional Court of Justice to give an advisory opinion on any legal question
   
   2. Other organs of the UN and specialized agencies, whcih may at any time be so authorized by the GA, may also request advisory opinions of the Court on legal questions arising within the scope of their activities

Question 11

UN Charter, Art. 96

Answer 11

1. The GA or the SC may request the Interantional Court of Justice to give an advisory opinion on any legal question
   
   2. Other organs of the UN and specialized agencies, whcih may at any time be so authorized by the GA, may also request advisory opinions of the Court on legal questions arising within the scope of their activities

Question 12

Negotiations

Answer 12

= common agreement or understanding among the parties.
Advantages deriving from the abscence of third parties:
○ no obligation: judgements or awards from third parties may be unwanted and unsatisfactory for both parties
○ flexibility: there’s no obligation concerning the prodecures, the time and space according to which the dispute must be solved. Parties may meet in both formal and informal ways, whenever they want and without the necessity of in-person meetings (correspondence)
○ confidentiality: there’s no public trial that might put pressure on one or both parties
○ low cost: no third party shall be paid and costs are even lower if negotiations are carried by lower-level officials
States involved in negotiations might reach an agreement whose outcome is not legally binding; it may be the case that States decide to ratify a treaty nonetheless.
However convenient, negotiations might not be the appropriate form of resolution:
○ States involved might be of unsolvable hostility
○ the weaker party may be subject to the power of the other
○ deadlock
States submitting a case to a court may at any time conclude an agreement through negotiation by withdrawing the case.

Question 13

Inquiry

Answer 13

= fact-finding missions
Inquiries are typically commissions that investigate on the happening of events upon which States disagree. It is to say that States cannot engage in negotiations if they do not agree in the first place on what has happened. Inquiry commissions produce final reports that are not legally binding but shall be used as a basis for negotiations.
Inquiries are born with the purpose of facilitating the negotiations among States, but with time have come to also give legal judgements concerning huamanitarian matters and violations of human rights.

Question 14

Mediation

Answer 14

= common agreement or understanding through a mediator
Advantages are the same as for negotiations.
○ flexibility: again there’s no fixed procedure, space or time for the solving of the dispute
○ confidentiality: while it is known that the third party is being invoked by the States and shall preside the meetings among the two, the matters are not public
○ no obligation: again the parties have control over the procedure and the outcome
○ mediator: enhanced communication, finding of compromises, fact-finding missions; the mediator shall be trustworth, independent, impartial and possess expertise.
Difference with good offices: good offices only bring the parties together through mediation but do not seat along the parties in the negotiations.

Question 15

Conciliation

Answer 15

= judicial/arbitral-like process
Parties will appeal to a third party that investigates the matters of the dispute in their entirity and will make recommendations of non binding character but can form the basis for negotiations.
○ less flexibility than negotiation and mediation: formal meeting most resambling proceedings are needed
○ difference with proceedings: not only the non binding character; the third party is likely to take non-legal factors into consideration (fairness, equity)
It has been rarely used

Question 16

Arbitration

Answer 16

= election of arbitrators to produce a binding award
Features:
○ not strictly political, not strictly legal: tribunals of arbitrators normally apply legal norms to the cases submitted, but there’s the possibility for the States to direct the tribunal towards non-legal considerations (political ones)
○ degree of freedom: States may specify the procedures that the arbitrators shall apply
○ election: typically there are 5 arbitrators, two of which are elected by the two States; the others are elected through agreement of the two arbitrators– the decision is referred to a third party if there’s disagreement
○ confidentiality: the parties still have the power to decide whether to keep the matter secret or public
○ award: is legally binding and cannot be appealed before a court
○ tribunals of arbitrators are ad hoc and temporary
Arbitrations can be used in a “mixed” way to adjudicate disputes between States and privates; “commercial arbitration” is nistead for disputes among privates.

Question 17

Judicial settlement

Answer 17

= court’s judgement
A judicial settlement provides for a minimal control of the States over:
○ degree of transparecy
○ flexibiltiy: the court as institution shall apply specific procedures
○ control: no political influence shall be applied in court proceedings, only the rule of law. States may only elect only one judge of their nationality in a case
○ obligations: the court judgement is binding in its nature

Question 18

Consent on recognition of a court

Answer 18

Consent is always necessary for recognition of international courts or arbitral tribunals.
Four ways in which consent can be given to these:

1. Special agreement or compromis:
	whenever a dispute arises the States involved might be willing to submit the case to a court for deliberation by giving their consent. 
	This form is retrospective of backward looking as it gives consent only when a dispute has already arisen.
	
2. compromissory clause:
	entailed in treaties; States Parties to a treaty might sign such clause in order to give consent to be judged by a court over matters that concern the implementation or interpretation of the treaty's provisions.
	This form of forward looking or prospective as it is about possible future disputes.
	Most of the time the respondent State will debate over the fact if the matter referred to by the applicant State has to do with the given treaty at all

Question 19

Consent to the ICJ

Answer 19

in Art. 36 of its Statute it provides for both of the above possibilities:
- “all cases that States refer to it”= special agreement/ compromis
- “matters specifically provided for in treaties and conventions in force”= compromissory clause

Apart from those the ICJ offers two other possibilities:

1. optional clause declaration:
	in addition to Art. 36 there's the possibility for States to ratify an optional clause that gives the ICJ jurisdiction over all international matters either universally or over certain groups of disputes= this should be the primary source of jurisdiction of the ICJ.
	In pratice only 73 countries have made such declaration. 
	PROBLEMS:
		- Art. 36 infers that States "may at any time recognize as compulsory the jurisdiction of the Court, in relation to any other State accepting the SAME OBLIGATION,..."
		- RESERVATIONS: they were made possible with respect to the declaration. This means that most of those 73 States have recognized only partial jurisdiction (over groups of disputes) rather than universal.
	COMBINED ACTION:
	if there are reservations specific for each country and the Court has compulsory jurisdiction over matters that both Parties agree to the power of the Court becomes very limited.
		If a country recognizes the Court's jurisdiction over a certain matter because of its declaration, but the other State to the dispute has made a reservation over the matter but still ratified the declaration, the Court will have no jurisdiction ("States accepting the SAME OBLIGATION...")
		
2. forum prorogatum:
	an applicant State submits a case to the Court against the another State B that has not recognized the Court so far. The application is sent to State B in the hope that it will recognize the jurisdiction of the Court.

Question 20

Monetary Gold Principle

Answer 20

the ICJ may not adjudicate cases that require the Court to rule on the rights and obligations of third parties involved in the dispute but that are unwilling to be involved.
If State A and B are in a dispute submitted to the Court, the latter cannot issue judgements that would affect the interests of State C, that typically are the very subject matter of the dispute.