peaceful settlement of disputes

Question 1

Peaceful settlement of disputes – UN

Answer 1

• Article 33(1) UN-Charter:
  “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
  arrangements, or other peaceful means of their own
  choice.”
• consensualism:
  – agreement of the parties to a dispute
  – whether the dispute should be settled
  – and how this should be achieved (by which methods)

Question 2

Negotiation

Answer 2

• strictly bilateral
• no involvement of a third party
• advantages:
  – informality
  – direct contact between the parties (“as equals”)
  – possibility of truely settling the dispute
  – in partnership
  – confidential
• disadvantages:
  – for equally powerful parties: may reach a stalemate
  – particularly wenn the stakes are high
  – for parties, when one is more powerful than the other: unilateral
  solution in favour of the more powerful party

Question 3

Good offices

Answer 3

• bilateral negotiations with third party involvement
• without influencing the content of the settlement
• good offices = offer of certain services
  – place to negotiate (“meeting on neutral ground”)
  – channels of communication (translators)
  – logistical support (infrastructure, venue, secretariat)
• purpose:
  – preservation of the parties’ willingness to negotiate
  – particularly when the parties no longer have official channels of
  communication
  – negotiations without “loss of face” for the parties
• preferred “providers”
  – neutral states
  – host states of international organizations (e.g. “nuclear deal” with Iran)

Question 4

Inquiry

Answer 4

• Third party (inquiry commission) engages more actively
• aim: clarification of facts
• formalisation:
  – selection of the members (parity)
  – inquiry procedure with adherence to certain rules
  – written report
• but:
  – inquiry commission does not draw (legal) conclusions
  – fact-finding and investigation results are not binding
  – parties may draw their own conclusions

Question 5

Mediation + Conciliation

Answer 5

• Mediation:
  – third party makes solution proposals
  – not legally binding
  – might be more acceptable coming from a neutral state
  – advantages:
• mediator may exert influence (pressure?) on the parties
• solutions, which the parties had not considered
• mediator may incentivise solution
• confidential
  – examples:
• Algeria (Iran and USA 1980/81)
• USA (Angola and Cuba/South Africa, 1988)
• Conciliation
  – combines inquiry und mediation
  – formalised and institutionalised
  – search for a non-binding compromise

Question 6

Adjudication and Arbitration

Answer 6

• Legal dispute settlement
  – Legal dispute over questions of international law
  – application of the law (procedural and substantive law)
  – decision (judgement, award) is binding
• Acceptance of jurisdiction (no obligatory jurisdiction)
  – ad hoc for disputes which have already started (compromis /
  arbitration clause)
  – for disputes resulting from a contract (compromissory clause)
  – for (all?) future disputes (optional clause)

Arbitration
* constituted for each case individually
* parties may influence
– choice of judges
– applicable law
* parties pay the cost of proceedings

Adjudication
* permanently established
* parties cannot influence
– choice of judge (partially)
– applicable law
* costs are borne by the international
community