Week 7 Peaceful Settlement of Disputes Lecture PDF

Public International Law Week 7 Lecture : Peaceful Settlement of Disputes Anna Schmitt Nagelbach Dispute Dispute (definition) “A disagreement over a point of law or fact, a conflict of legal views or of interests between two parties” (Mav...

Public International Law Week 7 Lecture : Peaceful Settlement of Disputes Anna Schmitt Nagelbach Dispute Dispute (definition) “A disagreement over a point of law or fact, a conflict of legal views or of interests between two parties” (Mavrommatis Palestine Concessions Case, 1924 PCIJ) HOW to settle disputes : 1. Diplomatic procedures 2. Adjudication United Dispute Nations Charter Art 2(3) UNC “All Members shall settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered.” The League of Nations (1919) Art 2(4) UNC “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” UNC Article Dispute 33 “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.” 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States “states shall accordingly seek early and just settlement of their international disputes by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice.” Diplomatic Procedures Dispute 4 methods : all non-binding 1. Negotiation (most popular; no 3rd party ; discussions) 2. Mediation (3rd party who encourages peaceful settlement of the dispute) 3. Inquiry (commission of reputable observers investigates the facts) 4. Conciliation (3rd party prepares report w/ suggestions : solution proposal) - can be preventative Diplomatic Procedures Dispute Inquiry (commission of reputable observers investigates factual matter) 2 parties : Iran, IAEA : Does (in 2011) Iran’s nuclear program have military dimensions? IAEA Iran We think so NO. diplomatic solution INQUIRIES Dispute 2 Binding methods Binding Methods Dispute - If non-binding methods fail, some treaties provide for arbitration and/or judicial means of settlement Arbitration Judicial settlement / Adjudication (courts / tribunals) - ICJ Arbitration Dispute - ad hoc - based on consent of both parties - parties may influence composition of the panel and the law applied - and may determine this after the dispute arises Adjudication Dispute : ICJ - also requires consent of both parties - often a permanent court (eg ICJ) - parties have little to no influence on pan or the law applied - the Court composition and power to act established before dispute arises International Dispute Court of Justice in The Hague - One of the 6 organs of the UN (Art 92 UNC) - Replaced the PCIJ in 1946 - ICJ Statute similar to PCIJ Statute - ICJ Statute an integral part of the United Nations Charter (UNC) - ICJ hears exclusively disputes between states (Art. 34) - when the parties have consented to the Court’s jurisdiction ICJDispute Jurisdiction Art. 36 “The Jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the UN Charter or in treaties and conventions in force.” Advisory Jurisdiction (giving advice) Contentious Jurisdiction (settling disputes) Stages Dispute (contentious) 1. Dispute (recipe) 2. Preliminary Proceedings (starters/ first course) jurisdiction ; admissibility Rationale behind preliminary stage? No automatic jurisdiction Interim measures of protection (Art 41) and 3rd state interventions 3. Merits of the case (main course) 4. Judgment of the Court / Compensation (dessert) 2. Preliminary Proceedings : Jurisdiction Dispute Access to the Court – Art. 35 ICJ Statute Only states have the right to bring action to the Court  Jurisdiction ratione personae Both states must consent to the Court’s jurisdiction  Jurisdiction ratione materiae 2.Dispute Preliminary Proceedings Art 79 Rules of the Court : Preliminary Objections A respondent state can object to the jurisdiction of the Court or to the admissibility of the application Effect : suspends proceedings on the merits The Court Can handle preliminary objections in 3 ways : 1. Reject them and proceed to the merits 2. Uphold at least one of them and end the case there 3. Postpone decision to learn more first 2.Dispute Preliminary Proceedings Jurisdiction of the Court – Art 36 ICJ Statute Compromis : special agreement to submit the dispute to the ICJ Treaties / Conventions : jurisdictional clause in existing treaty Optional Clause : declarations made under Art 36(2) ICJ Statute accepting ICJ jurisdiction as compulsory Forum Prorogatum : behavior-based 2.Dispute Optional Clause Art 36(2) - States may accept the jurisdiction of the Court for a fixed period / permanent - can be modified or terminated - reciprocity “in relation to any other state accepting the same obligation”. Equality of states - reservations : states may accept jurisdiction conditionally 2.Dispute Admissibility ICJ Statute contains little information on this  CIL Exhaustion of local remedies Nationality of complaints Time factor Interim Dispute Measures Art 41 ICJ Statute Purpose : to preserve rights of parties, pending judgment on the merits Conditions required for Court to indicate provisional measures : 1. prima facie jurisdiction over the merits 2. link between measures requested and rights protected 3. those rights must have a plausible character 4. risk of irreparable prejudice is needed 5. condition of urgency must be concretely met  rd 3 Dispute State Intervention Art 62 ICJ Statute provides that a state may request the Court to allow the state to intervene in a pending case “if it has an interest of a legal nature that may be affected by the decision in the case” Art 63 ICJ Statute : When the subject matter is the interpretation of a treaty to which the intervening state is also a party Whaling in the Antarctic case of 2013 3.Dispute Merits The content of the dispute - parties present arguments regarding interpretation of fact and law - parties present evidence, witnesses 4.Dispute Judgment Art 60 ICJ Statute : judgment is binding, no higher appeal What if states do not comply with the ICJ’s decision?  Art 94 UNC : All states must comply What if states do not appear before the ICJ to defend their case?  Art 53 ICJ Statute Compensation Claim can be withdrawn Advisory Dispute Opinions Art 65 ICJ Statute IOs may ask the ICJ for an advisory opinion Art 96 UNC : Security Council; General Assembly, and any other org authorized by the GA