week 5 - international dispute settelements

Question 1

overall issue + idea of international dispute settelements

Answer 1

• States have many disputes
• International law does not impose restrictions on how the disputes should be resolves
• In past → war was a legitimate mean of dispute resolution
• today = what do we do?

Question 2

Art. 12 Covenant of league of nations;

Answer 2

In cases of international disputes, members should not resort to war until a decision on how issue should be resolved is given by the council

Question 3

Art. 2(3) UN Charter

Answer 3

““All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”

=> this is a KEY UN goal

Question 4

2 types of means of dispute settlement?

Answer 4

a) Adjudication

b) non-adjudication = not legally binding

Question 5

What are the dif ways states can settle disputes?

7

Answer 5

1. Negotiations
2. Good Offices
3. Mediation
4. Inquiries + Fact finding missions
5. Dispute settelements w/ the UN
6. Arbitration
7. Judicial Settlement

Question 6

Dispute settlements

Negotiations

Answer 6

Negotiations captures dif ways through which states work through a dispute bilaterally (2 states resolve their issues)

When a dispute arises ⇒ states are bound to negotiate

(ex. Art. 30 UN Convantion Against Torture aka CAT, Art. 22 CERD [committee elimination racial discrimination])

Question 7

Dispute settlements

Good Offices

Answer 7

A way to resolve disputes through a neutral + trustworthy third party who facilitate negotiations

No active participation ⇒ this means the third party does not make suggestions for solutions - it only acts as a facilitator of communication (communicates one states idea to the other)

Examples of a third party;
A state or international organizations
UN secretary general

Question 8

Dispute settlements

Mediation

Answer 8

Third party plays an active role of a communicator + facilitator between parties

Active participation ⇒ this means that they suggests solutions to the problem + are actively involved in the conversation between the two disputing states

Question 9

Dispute settlements

Inquiries + Fact finding missions

Answer 9

Missions established by international organizations → allow them to impartially ascertain (gather) facts + info regarding certain incidents or situations

Purpose: examine circumstance, identify causes, make recommendations for actions of accountability

Uncover the truth + inform appropriate responses or actions

Examples;
- Independent international inquiry on ukraine (established by the HR council) investigated allegations of HR abuses in Ukraine (including annexation of crimea by russia)

• Joint investigation team investigated Malaysia Airlines flight MH17 which crashed on Ukraine territory

Question 10

Difference between inquiries + Fact finding missions?

Answer 10

Basically the same but fact finding missions are more focused + often abt human rights abuses → team of experts sent to location to collect evidence

Question 11

Dispute settlements

Explain Dispute settelements w/ the UN

Answer 11

Art. 34 UN Charter =
security council can investigate any dispute or situation which could lead to international friction or a dispute
Aim = maintain peace + security

Art. 37 - 38 UN Charter =
If states cant resolve a dispute themselves → they should go to the security council
UNSC can make recommendations on how to resolve the dispute

EXAMPLE;
UNSC resolution 242 (1967) adopted after a 6 day war in June 1997
Was the most significant resolution regarding israel + palestine conflict (bc it called for Israel to withdraw from the territories)

resolution called for withdrawal of armed israeli army in territories they occupied
Emphasized recognition of the rights of all states in the region to live in peace and security.
Resolution 242 as interpreted dif by israel + arab states
Israel = doesn’t have to withdraw
Arab states = israel has to withdraw

Question 12

Dispute settlements

Explain Arbitration

Answer 12

Adjudicatory method of dispute settlement (legal process of resolving disputes)
- Arbitration award = final decision made by arbitrators
- They are legally binding + final

Arbitrator =
- a neutral third party that the parties in dispute appoint - usually lawyers, retired judges, or specialized in the area of dispute
- basically acts like a judge ⇒ listens to both arguments, looks at evidence, makes final decision

Unlike permanent courts (ex. icj) =
- The disputing parties have a lot of freedom + autonomy (self-government) regarding format (procedural rules), composition (they appoint their own arbitrators), applicability of the law (can choose the governing law the arbitrators should apply)

Question 13

talk abt the ICJ

when was it established, who does it consist of, principle body of

Answer 13

• Established in 1945
• The principal judicial body of the UN
• Consists of 15 judges → who represent “the main forms of civilization and of the principal legal systems of the world” (art. 9 ICJ Statute)

Question 14

Dispute settlements

How is the ICJ used as a disputer of settelements?

Answer 14

Has power to render (provide) judgements (binding decisions) in contentious (controversial) cases + deliver advisory opinions (not binding)

Today;
Delivered 69 judgements
Delivered 26 advisory opinions
Including judgements + advisory opinions that got discontinued = 193

Question 15

Who has access to the ICJ?

Answer 15

Art. 34 ICJ statute = only states can be party to contentious cases before the ICj

Art. 35(1): “the Court shall be open to the states parties to the present Statute” (and the Statute itself is part of the UN Charter)

Art. 35(2): “the conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council” UN SC Res 9 (15 ➜ October 1946)

Question 16

Jurisdiction of ICJ - when can the ICJ exercise its jurisdiction?

Answer 16

Art. 36(1) ICJ Statute;
The court has jurisdiction over cases (it can handle cases) that are brought to it by states + can handle issues outlined in UN Charter

Jurisdiction of ICJ based on consent of parties
Parties can give consent in diff ways;

Question 17

What are the 4 ways through which states can give consent to the ICJ?

Answer 17

1. Compromis - special agreement
2. Compromissory clause or treaty
3. Optional clause
4. Forum prorogatum

Question 18

ICJ Jurisdiction

1) Compromis

Answer 18

An explicit agreement between parties
Two states having a dispute → agree to submit their dispute to the court

Example;
North Sea Continental Shelf Case
Ger v NL + Den ⇒ they all made an agreement that any disagreement would be resolved by the ICJ - thus giving ICJ jurisdiction

Question 19

ICJ Jurisdiction

2) Compromissory Clause

Answer 19

Jurisdiction of the court is written
Some treaties contain special provisions - called compromissory clauses - that grant ICJ jurisdiction over disputes regarding the treaty f

EXAMPLES;
Art. IX Genocide Convention ⇒ Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention […] shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Art. 36(2) ICJ statute ⇒ states who are party to the statute declare they accept ICJ jurisdiction without the need of an extra agreement → this applies to disputes regarding
interpreting treaties
International law questions
Establishing facts that breach international obligations
Deciding how to fix breaches of international obligations.

Question 20

ICJ Jurisdiction

3) Optional Clause Declaration

Answer 20

Countries agree to let the ICJ hear certain types of disputes involving them
=> Of 193 UN states, 74 submitted themselves to optional clause declaration

There are restrictions limiting the type of disputes the ICJ can hear - Procedural, timely, substantive, etc.

Recipocricty = when one state agrees to optional clause declaration, it expects other states to do the same

A country can cancel its declaration → BUT it doesn’t count for cases already brought before ICJ

Question 21

ICJ Jurisdiction

4) Forum Prorogatum

Answer 21

The ICJ can entertain a dispute without a countries consent if it is expected that consent will be eventually given

A state must show an unequivocal indication that it wishes to accept the court’s jurisdiction in a voluntary + indisputable matter

Question 22

What Are advisory opinons?

Answer 22

Art. 65 ICJ Statute
Have no binding force but bear significant authority
Often address politically sensitive or controversial issues
Motives (reasons) for the request of an advisory opinion are irrelevant

Question 23

Advisory opinion v court judgment (regarding contentious case)

Answer 23

Art. 65 ICJ Statute
Have no binding force but bear significant authority
Often address politically sensitive or controversial issues
Motives (reasons) for the request of an advisory opinion are irrelevant

Question 24

what does contentious mean?

Answer 24

dispute that needs to be decided on

an ongoing + controversial case

Question 25

what are the steps to answer - Does the ICJ have jurisdiction to hear and decide this dispute?

Answer 25

SO FIRST LOOK - does it regard a contentious states or is it an advisory opinion?

if it is a contentious state;
- is it between states

if yes = look at the 4 elements (compromis, …)

MUST DO IT FOR BOTH SIDES

• if one of the sides does not accept ICJ jurisdiction = icj has no jurisdiction

IF advisory opinion;
- does it involve UN? = look at un charter
- does it involve ICJ? = look at ICJ statute