Settlement of disputes Flashcards
Duty to settle disputes peacefully
Article 2(3) of UN Charter- “all Members shall settle their international disputes by peaceful means” - this is also customary international law and binds all states in all circumstances. Article 2(3) must be read alongside Article 33 which sets out means for how to solve dispute- negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Means of settling disputes peacefully
Article 33 of UN Charter sets out means for how to solve dispute- negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Aerial Incident Case 1999 (Pakistan v India)
Aerial Incident Case 1999 (Pakistan v India)- “States are under an obligation to settle their disputes by peaceful means. The choice of those means admittedly rests with the parties under Article 33 of the UN Charter”.
North Sea Continental Shelf
ICJ in North Sea Continental Shelf says states are “under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it”
Mavrommatis case
Mavrommatis case- negotiations don’t have to be lengthy, “this discussion may have been very short” if clear wouldn’t be successful
- contrast the Grand rhetoric of “peaceful dispute settlement:” with this meagre reality.
How ICJ is established?
ICJ is established in Article 7 of the UN Charter which sets out the principal organs of the UN. All the principal organs of the UN are formally equal under the Charter. Article 92 of the Charter holds that the ICJ is the principal judicial organ of the United Nations. It is the first permanent universal court.
What type of cases does ICJ deal with?
The ICJ is a generalist court and is competent to deal with all areas of international law.
Marshall Islands Case
Marshall Islands case- group of NGOs wanted to bring case against Nuclear states claiming that upgrading/renewing nuclear arsenal breach Nuclear Non-Proliferation treaty. NGOs went to Marshall islands which had been a testing site by US. Marshall islands agreed and lodged cases against all 8 Nuclear powers. Only 3- UK, India and Pakistan had optional clauses. The UK filed a preliminary objection- on tie-breaker by President of court after tied vote by judges, jurisdiction was denied, as UK and Marshall islands hasn’t been in negotiations.
Subject matter jurisdiction of ICJ
See ICJ Article 36.
Advisory role of ICJ
Court may give advisory opinion on any legal question at request of UN bodies mentioned in Article 96 of UN Charter.
Advisory case- Chagos Islands Dispute were detached from Mauritius to form British Indian Ocean Territory before Mauritian independence. Inhabitants of islands forcibly removed and displaced to Mauritius, Seychelles and the UK and prevented from returning. UK leased Deigo-garcia to use for air base since 1966. Since 1968 Mauritius has claimed sovereignty. UK disputes claim but has declared it’ll cede to mauritius when no longer needed for defence. April 2010 UK seeks to create largest Marine Protection Area in world- Wikileaks showed British Officials arguing this best way to prevent claim for resettlement. UK lost arbitration. General Assembly asked for advisory opinion.
Chagos Islands Dispute
Chagos Islands were detached from Mauritius to form British Indian Ocean Territory before Mauritian independence. Inhabitants of islands forcibly removed and displaced to Mauritius, Seychelles and the UK and prevented from returning. UK leased Deigo-garcia to use for air base since 1966. Since 1968 Mauritius has claimed sovereignty. UK disputes claim but has declared it’ll cede to mauritius when no longer needed for defence. April 2010 UK seeks to create largest Marine Protection Area in world- Wikileaks showed British Officials arguing this best way to prevent claim for resettlement. UK lost arbitration. General Assembly asked for advisory opinion.
When are states bound by ICJ decisions?
When they consent to be bound. 3 ways of consenting.
(1) Truly consensual submissions based on compromis, an agreement they’ll be bound by court’s decision (ad hoc) or forum prorogatum (when one party goes to the court and asks to bring a case and the other party voluntarily accepts to appear).
(2) Compromissory clauses- (ie Article 9 of the Genocide convention) putting provision in a treaty that arising disputes will be taken to ICJ
(3) Optional clause declarations accepting the court’s jurisdiction in a general manner. If all states lodged optional clause declarations, the ICJ would have compulsory jurisdiction over all of international law. Even the few states that have lodged them tend to have included reservations or caveats. UK is only member of SC that has one. US withdrew it after losing Nicaragua case.
Limits on ICJ
- Its for states only (Art 34), and has thin jurisdiction and few cases. Just 165 cases since 1946. ICJ has been affected by move towards specialised courts/tribunals but it retains the primary place in the universe of international law adjudication.
- Number of judges at ICJ (15, sometimes 17 as states without a judge can add one if they’re in a case) means compromise is inevitable in majority judgements.
Areas where we don’t see judicialisation
Areas where we don’t see judicialisation are international environmental law, refugee law, global human rights (no international court for human rights), the laws of war. We rarely see cases on the use of force.
Don’t underestimate the “soft” enforcement of international law.
Compulsory jurisdiction of courts with intrusive dispute settlement
Intrusive dispute settlement depends on the consent of the parties. Article 2(3) doesn’t give a compulsory jurisdiction of courts, just a good faith negotiation. No general hierarchy on international courts, its more ad hoc and dependent on state consent.
