International Dispute Settlement
UN Charter Article 33
1. 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 arrangement or any other peaceful means of their own choice. 2. The security council shall, when it deems necessary, call upon the parties to settle their dispute by such means.
Judges
15 judges elected by UN General Assembly and security council represent the main forms of civilization and legal systems of the world, but do not represent their home states. If a party to a case does not have a judge of its nationality on the bench, it is entitled to appoint one ad hoc for the case.
Conciliation
A method for the settlement of international dispute of any nature according to which a commission set up by the parties to have an impartial examination of the dispute and define the terms. If mediation is an extension of negotiation, this puts the third party intervention on a formal footing, similar to arbitration or an inquiry.
UN Charter Article 2(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.
Article 93 UN Charter
All members of the UN are party to the statute of the ICJ. Others can become party to the statute but none currently.
forum prorogatum
An application brought which invites the respondent state to consent to the exercise of jurisdiction by the ICJ in regards to that specific case. This means applications are generally made for political purposes, as 38(5) says that such applications are ineffective until consent is provided.
Falklands War Mediation
Argentina and the UK were obliged to accept good offices from the UN and mediation from the USA as they politically wanted to show willing and could not alienate supporters.
Materials considered by ICJ
Art 38(1) says the court will decide in accordance with international laws such disputes as are submitted to it, using international conventions, judicial decisions, the teachings of publicists etc - the core of modern international law.
Diplomatic Hostages Dispute 1980
As with the Falklands, this is an example of the mediator devising a solution that both sides can accept. Much be achieved by enabling communication such as when the US and Iran negotiation via Algeria. Mediators also remind the parties of their real objectives, as the Papal mediator did in Beagle channel dispute.
Mediation
Entails a third party who intervenes in a dispute to help the parties reach an agreement and restore harmony. 'Good offices' means the third party simply encourages interaction and acts as a channel of communication. A mediator is is an active participant, authorised and expected to advance fresh ideas and transmit each parties proposals to the other. Unlike conciliation, mediators make suggestions based on information supplied by the parties to make their suggestions, rather than researching. The lines between mediation, conciliation and mediation can be blurred.
Inquiry
In a broader sense, it refers to the process performed whenever a court tries to resolve a disputed area of fact. This plays into many forms of dispute settlement. In a narrower sense, it is a specific institutional arrangement that may be selected instead of arbitration to establish the facts. In this sense it is a particular type of institutional tribunal, a commission of inquiry.
Status of Eastern Carelia Case (1923)
It is well established in international law that no state can, without its consent, be compelled to submit its disputes with other states either to mediation or arbitration, or to any other kind of pacific settlement.
The International Courts of Justice
Judicial settlement is available through courts with general (only the ICJ) or special jurisdiction (ECJ, special tribunals etc.)
Norwegian Loans Case (automatic reservations to optional clauses)
Matters of 'domestic jurisdiction' are referred to as 'automatic reservations'. As these statements of compulsory jurisdiction are made on a basis of reciprocity, the restricted jurisdiction applies to both parties to the case. Lauterpacht found in his seperate opinion that matters 'considered by the french government' was not a valid reason to not produce legal effects, as it is contrary to the inherent power of the tribunal in establishing its power (art 36(6)) the existence of the obligation cannot be determined by the government accepting the optional clause
Art 39 ECHR
Mediation settlements sometimes need to meet certain external criteria, other than being a solution both sides can accept. This article means on of the duties of the European court is to act as a mediator whilst respecting the conventions basic values. In a human rights field this is appropriate.
Mixed Arbitrations
Need to be distinguished from inter-State disputes. They deal with the state on one side, and commercial bodies on the other. This may derive from a treaty and have serious implications. The Iran-USA claims tribunal handles both state and private claims, with serious and complex disputes being solved.
Arbitration
Oldest method of dispute settlement, being traced back to the 1794 Jay Treaty between Great Britain and the USA. The parties themselves set up a tribunal to decide a dispute and agree that the decisions will be binding. USeful when issues are legal and the need to remove an obstacle makes the idea of a binding settlement attractive -such as territorial and boundary disputes. Also as parties decide the question and can specify the basis of the decision, they exercise a degree of control over the process and can choose the arbitrators. as
1899 Hague Convention
Set up impartial fact finding commissions to establish what happens in incidents, as at Dogger Bank.
Limitations of Arbitration
States can be reluctant to make general commitments to settlements. Furthermore, another solution may be preferred to keep the solution in the hands of the parties. Enforcement can also be a problem - although binding and not often an issue, that it can be difficult to ensure responsible behaviour from the parties that are relied upon.
Why rarely used?
States less interested in settling disputes than having its own views prevail. Furthermore, parties often less interested in settling a dispute than having their own views prevail. But, Red Crusader (1962) shows it can find satisfactory results.
North Sea Continental Shelf Cases
States refusing to negotiate may not be an option, and states may be obliged to negotiate under general law. In NSCSC, International Court decided that the delimination of continental boundaries between neighbouring states must be effected by an an agreement in accordance with equitable principles. This is obligation to negotiate is not an obligation to agree, nor does it preclude recourse to other procedures - but emphasizes that both sides have rights and boudaries in question were not to be settled by unilateral determination.
Absent third parties
States submitting disputes to the ICJ that affect other states not party to the case can cause considerable difficulties for the court.
Military and Paramilitary Activities in and Against Nicaragua
The USA made a declaration after it became clear that the dispute with Nicaragua was to be placed before the court. The Court found that the limitation had no effect on the present case.
Art 36(2) Statue of the International Court of Justice (consent)
The court's authority stems from the principle of state consent, with states agreeing to take disputes to the court by concluding a treaty in appropriate terms, or making a unilateral declaration of acceptance. In questions of jurisdiction, the courts decision under Art 36(6) is final.
Aegean Sea Continental Shelf Case
The fact that negotiotiations are being pursued is no bar to the exercise of the courts powers and vice versa. Cases can be resolved by negotiation during litigation
Negotiation
The first mentioned settlement method in the Manila Declaration, and the most widely used. It retains control without involving third parties. It also helps manage, rather than just solve international disputes (i.e. modus viviendi in falklands war
Investment arbitration
The home state of an investor and the host state (where investment is located) are parties to an investment treaty containing a dispute settlement clause. Such a treaty may be bi- or multilateral, and does not require the involvement of the investor's home state.
D. Bowett 'Contemporary Developments in Legal Techniques in the Settlements of Disputes'
The juxtaposition of articles 2(3) and 2(4) in the UN charter is no mistake, rather shows that the settlement by peaceful means is the principle basis of the structure of international society. This also emerges clearly from the Manila Declaration on the Peaceful Settlement of disputes adopted by the general assembly in 1982, reiterating these articles together. But peaceful means are not the same as legal - most disputes will be solved politically, through negotiation.
Armed Activities on the Territory of the Congo
There is a fundamental difference between a state being in violation of international criminal law and the ICJ having jurisdiction, as in the Congo v Rwanda case, a jus cogens norm violation is not sufficient. Only consent will do.
Resolving negotiations with 'equity and justice'
This is an aim of the Manila Convention. However, it can be a difficult proposition in situations of very unequal political power - accordingly if negotiation is called for by the strong state, the weak is justified in turning it down
Obligations to negotiate - WTO Agreement (1994)and Law of the Sea Convention (1982)
WTO Parties are required to 'enter into consultations' over trade issues when requested by another party. LOTS parties are to 'proceed expeditiously to an exchange of views' .
Interpretation of Peace Treaties Case ICJ (1950)
Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute by a state does not prove its non-existence.
Is the International Court of Justice biased?
judges vote for their home state 90% of the time - and almost always in the case of ad hoc judges. This shows that international law cannot be removed from the political realities underlining it.
Declarations Accepting Compulsory Jurisdiction of the ICJ
these declarations declare that they recognise as compulsory ipso facto without special agreement the jurisdiction regarding a) the interpretation of a treaty; b) any question of international law c) the existence of any fact which if established would constitute the breach of an international obligation and d) the nature or extent of the reparation to be made for the breach of an international obligation. These may be made unconditionally, for a certain time, on the recipracy of another state and shoudl be submitted to the secretary general of the UN.
