Week 7

Peaceful Settlement of Disputes

• A dispute is a disagreement over a point of law or fact, a conflict of legal views, or differing interests between parties, as seen in the Mavrommatis Palestine Concessions Case (1924 PCIJ).
• Disputes can be settled through diplomatic procedures or adjudication.

Diplomatic Procedures

• These methods are non-binding and include:
  • Negotiation: The most common method, involving direct discussions between parties without third-party intervention.
  • Mediation: A third party assists the disputing parties to reach an agreement and encourages peaceful settlement.
  • Inquiry: A commission of reputable observers investigates the facts of the dispute.
  • Conciliation: A third party prepares a report with suggestions for a solution. This can be preventative.

Binding Methods

• Arbitration: A non-permanent process based on the consent of both parties. Parties can influence the composition of the panel and the applicable law.
• Judicial settlement: A permanent process like the ICJ requiring both parties' consent, and is often established prior to disputes.

International Court of Justice (ICJ)

• The ICJ replaced the PCIJ in 1946.
• It's one of the six organs of the UN.
• The ICJ Statute is part of the UN Charter.
• It handles disputes exclusively between states.
• Parties must consent to the ICJ's jurisdiction.
• Jurisdiction can be established via a "special agreement" or "compromis", a jurisdictional clause in an existing treaty, or by accepting the Optional Clause under Article 36(2) of the ICJ Statute.

ICJ Jurisdiction

• Article 36 of the ICJ Statute outlines the Court's jurisdiction, encompassing cases referred to it and matters specifically addressed in the UN Charter or treaties.
• Two types of jurisdiction:
  • Advisory Jurisdiction: Providing advisory opinions to international organizations.
  • Contentious Jurisdiction: Settling legal disputes between states.

Stages of Contentious Cases

• Dispute: The initial stage.
• Preliminary Proceedings: Establishing jurisdiction and admissibility.
• Interim measures are used to preserve rights of the parties while awaiting rulings in the main case, and are used for provisional measures.
• Merits: Examining the substance of the case arguments, evidence, and witnesses.
• Judgment: Final decision, binding on the parties.

Preliminary Proceedings: Jurisdiction and Admissibility

• Only states can bring actions before the ICJ (Jurisdiction ratione personae).
• Both parties must consent (Jurisdiction ratione materiae).
• Preliminary objections can be used to challenge jurisdiction or admissibility; these suspend proceedings on the merits.
• The ICJ can reject, uphold, or postpone its decision on preliminary objections.
• Various methods to establish jurisdiction include special agreements (compromiss), clauses in treaties, or the optional clause.

Optional Clause (Article 36(2))

• States can accept the ICJ's jurisdiction for a fixed period or permanently.
• Acceptance is reciprocal, meaning a state can only be bound by another state's acceptance.
• The clause can be terminated or modified.
• States may place reservations on their acceptance.

Admissibility

• The ICJ's Statute contains limited information on admissibility, but factors include: exhaustion of local remedies, nationality of complaints, and time factors.

Interim Measures

• Aim to preserve rights of the parties pending the merits of the case.
• Conditions include a prima facie jurisdiction over the merits, a logical link between the measures requested and rights protected, rights with plausible character, risk of irreparable prejudice exists, and a condition of urgency must be concretely met.

Third-Party Intervention

• States can intervene in existing cases if a legal interest is affected by the case's decision, including cases related to treaty interpretation.

Merits

• Parties present arguments regarding the interpretation of facts and law.
• They present evidence and witnesses.

Judgment

• The ICJ's judgments are binding and final, with no higher appeal.
• States must comply with rulings or face possible repercussions.
• Non-compliance can be addressed via the UN Charter's Article 94.
• Failure to appear in court can be addressed via Article 53 of the ICJ Statute.
• Compensation may be claimed if needed.
• Claims can be withdrawn.

Advisory Opinions

• The ICJ can provide advisory opinions to international organizations.
• Specific bodies like Security Council, General Assembly and other organizations authorized by the Assembly can request such opinions.