T5 Enforcement of IL Flashcards
What are the three ways of dealing with international disputes?
- Peaceful settlement of disputes
- Direct action through UNSC (force)
- Judicial methods.
What are the ways of peacefully settling disputes?
- Negotiation
- Mediation
- Conciliation
- Inquiry
What is international peace and security?
A condition where nations coexist without resorting to conflict, violence or war.
How is international peace and security ensured?
- Conflict prevention
- Conflict resolution
- Post-conflict peacebuilding
Which provision regulates the peaceful settlement of disputes?
Article 33 of the UN Charter
What is the 1982 Declaration on Peaceful Settlement of Disputes?
Declaration that recognises the need to exert utmost efforts in order to settle any conflict and dispute between states exclusively by peaceful means.
What is the role of the mediator ito article 3 of the Convention for the Pacific Settlement of Disputes?
That of reconciling the opposing claims.
What does Article 1 of the Regulations on Procedure of International Conciliation hold?
Conciliation is a process by which an impartial 3rd party assists the parties in dispute to reach a mutually acceptable agreement with the conciliator’s role being that of facilitating negotiations and proposing solutions without binding the parties to a particular outcome.
What is negotiation?
A direct dialogue between the parties involved in a dispute which allows them to discuss their differences and seek a mutually acceptable solution. Informal.
What are the characteristics of negotiation?
- Voluntary process
- Flexibility
- Confidentiality
- Objective is to reach agreement
What is mediation?
Involves a neutral third party who facilitates discussions between the disputing parties to help them reach a resolution. Mediator does not impose a solution but guides the process.
What are the characteristics of mediation?
- Neutral third party
- Non-binding
- Structured process
What is conciliation?
Requires consent by the parties to refer the dispute to a group of individuals or an institution who will investigate source of dispute. It is formalised mediation.
What are the characteristics of conciliation?
- Neutral third party
- Non-binding recommendations
- Formal process
- Focus on relationship
- Use of reports
What is an inquiry?
An investigative process where a 3rd party examines the facts of the dispute and issues a report. Used when the parties seek a clear understanding of the situation rather than a binding resolution. Impartial fact-finding mechanism that may be in the form of a Commission of Inquiry.
What are the characteristics of inquiry?
- Fact-finding
- Recommendations
- Transparency.
What is arbitation?
A quasi-legal method of resolving disputes where disputes are submitted to one or more arbitrators who make a binding decision.
What are the characteristics of arbitration?
- Binding decision
- Established rules
- Expertise
- Not subject to appeal
What are the three types of international arbitration agreements?
- Arbitral clause contained in a treaty
- Arbitral agreements for future disputes
- Arbitral agreements that are concluded after a dispute arises and which the parties are not able to solve through other means
What is the ICJ?
The principal judicial organ of the UN which is mandated to resolve disputes arising between states on the basis of IL.
What are the characteristics of the ICJ?
- Only permanent international court with general jurisdiction
- Only state that are parties to the statute can appear before the court
- Jurisdiction is based on the consent of the states involved
- 15 judges
- Both contentious and advisory jurisdiction
What are the 3 ways of expressing consent to ICJ’s jurisdiction?
- Special agreement
- Treaty provisions
- Optional clause.
What is special agreement?
Where states enter into a specific agreement to submit a particular dispute to the court, outlining the issues to be adjudicated.
What is treaty provisions?
Where States ratify international treaties that include clauses that allow for disputes arising from the interpretation or the application of the treaty to be submitted to the ICJ, they consent to the court’s jurisdiction for issues related to those treaties.
What is the optional clause?
Under Article 36(2) of the ICJ statute, States may declare that they recognise the Court’s jurisdiction as compulsory in all legal disputes concerning specific categories of issues, provide that other states make similar declarations.
Which provision deals with the 3 ways of consenting to ICJ’s jurisdiction?
Article 36 of ICJ statute.
What is the role of the UNSC?
- Can recommend procedures or methods for peaceful dispute settlement
- Can take measures to maintain or restore international peace and security if peaceful methods fail
What is the UN General Assembly?
- Can make recommendations on any question relating to international peace and security
- Can refer disputes to the ICJ for advisory opinions
What is the UN Secretary-General?
- Offers mediation
- Plays a diplomatic role in conflict resolution
What are the challenges and considerations in the grand scheme of things in terms of international peace and security?
- Sovereignty and non-intervention
- Compliance and enforcement
- Political will and power dynamics
- Resource and capacity constraints
Which provisions prohibits the use of force?
Article 2(4) of the UN Charter
What does Article 2(4) of the UN Charter do?
It prohibits use of force and centralises control over the use of force in the UNSC
What are the exceptions to the prohibition on the use of force?
- Self-defence
- Approval from UNSC
What is the scope of self-defence?
Both anticipatory self-defence and intervention to protect nationals
What are the conditions for lawful self-defence?
- Armed attack
- Necessity
- Proportionality
What is the element of armed attack?
It must be of a significant scale and effect, consisting of substantial acts of force.
What is the element of necessity?
Response must be necessary and no reasonable alternative.
What is the element of proportionality?
- Should not exceed what is necessary to repel attack and restore security
- Objective of response should be limited to repelling the attack and preventing further harm
- Scale and intensity should correspond to the scale and intensity of the attack
- Self-defence should be limited to the period in which the threat exists.
Which provision deals with self-defence?
Article 51 of the UN Charter
What is the UNSC authorisation exception to the prohibition on the use of force?
- UNSC determines the existence of any threat to the peace, breach of peace or an act of aggression (Article 39)
- Authorises the use of force to maintain or restore international peace and security if non-forceful measures are inadequate. (Article 42)
What is the foundation of the UNSC’s authority?
Chapter 7 of the UN Charter .
What is the procedure for UNSC authorisation to use force?
- Identification of a threat
- Explore non-military options first
- Authorisation of force under Article 42 of UNC, resolution passed by SC authorising use of force (must receive 9/15 votes in support)
- Authorisation specifies scope and specific mandates
- Implementation and oversight
What are the limitations and challenges to the UNSC authorisation on the use of force?
- Veto power
- Interpretation
- Compliance
When is the use of force for the protection of nationals justified?
- When there is an imminent danger of injury to nationals
- When the host nation has failed to provide protection to foreign nationals
- When the measures taken are only for the purpose of protecting nationals
What is the difference between pre-emptive and preventative self-defence?
- Pre-emptive: action taken in anticipation of an imminent armed attack
- Preventative: action taken against potential threats that are not imminent
What is the difference between individual self-defence and collective self-defence?
- Individual self-defence is when a state defends itself against an armed attack
- Collective self-defence is when states assist another state under attack and requires a request for assistance from the state under attack.
