Chapter 2 ; Peaceful Settlement of Dispute

1.0 The principle of peaceful settlement

Peaceful settlement of dispute is a cardinal principle of UN

Purpose of UN among others ; a) to bring about,, by peaceful means, in conformity with the principle of justice and international law, b) adjustment or settlement of international dispute which may lead to breach of international peace

Article 2 (3) of UN Charter – All members of the UN are obliged to settle their international disputes by peaceful means in a manner where international peace, security and justice will not be endangered

Article 2 (4) of UN Charter – the obligation of member states to refrain from threat or use of force

Article 33 of UN Charter – the parties to any international dispute shall seek a solution by way of negotiation, enquiry, mediation, conciliation, arbitration, judicial decision, resort to regional agencies or arrangements or other peaceful mean by their on choice

Hence Article 2 (3), (4) read together with Article 33 – requires disputing parties to resort to mechanism provided under the charter and refrain from threat and use of force

Means of peaceful settlement of dispute can be divided into

Diplomatic means – retain control over the proposed mean and entitled to reject or accept the proposed settlement

Legal means – results in binding decision for the parties (arbitration and judicial settlement)

2.0 Means of peaceful settlement of dispute (Diplomatic Means)

2.1 Negotiation

Modus operandi ; simplest and easiest from of peaceful settlement

One of the form of negotiations include consultation ; aims to prevent harm from happening (when the government anticipate that a decision or course of action may harm another state, discussion with the affected party can provide a way of preventing dispute)

Eg ; Dispute Settlement Understanding (DSU) of the World Trade Organization which contains in Article 4 (3) an obligation to enter into consultation in good faith on request

Effect ; one of the parties acknowledges the claim of the other party, on occasion, negotiating parties may not acknowledge its opponent alleged rights but waives its own right for the sake of friendly relations.

2.2 Mediation

Negotiation fails – intervention of a third party is a possible means (suggesting solution, international organization’s role, must enjoy confidence of both sides)

Intervention can take two different forms ; good offices and mediation

Good offices ; 3rd party persuades the disputing state to enter into negotiations, passes messages back and forth and once negotiation starts – its function ends – this is said that he is contributing ‘good offices’

Mediator ; plays a more active role and even involve during the negotiation period, suggest terms of settlement etc

Eg of good office ; one contributed by President Roosevelt 1905 to 1906 to end the Russo-Japanese War, UK used its good office to effect a ceasefire in 1965 in the Rann of Kutch dispute between India and Pakistan

2.3 Inquiry

Facts-finding and inquiry – interchangeable methods for establishing facts of international dispute

Modus operandi ; takes place after negotiation, disputing parties will usually appoint an impartial body to conduct an inquiry and establishing the question of fact

Effect – reducing the tension in the area of disagreement, preparing means of dispute settlement by identifying the cause (parties not obliged to accept the finding)

Eg ; Dogger Bank incident – In 1904, the Russian Baltic fleet, on its way to the Pacific to engage in the war with Japan, attacked British fishing vessels operating around the Dogger Bank, in the mistaken belief that they were Japanese vessels. Parties appointed a commission of inquiry composed of senior naval officers from Great Britain, Russia, US, France, Austria for the primary purpose of finding what actually happened. On the basis of the report, Russia agreed to pay 65,000euro in compensation

Recent treaty instruments give power to fact finding commission, powers to evaluate the facts and to make recommendations (eg ; 1977 Additional Protocol I to the 1949 Geneva Red Cross Conventions)

Special agencies may as well, conduct an inquiry (eg ; in September 1983, the ICAO instructed its Secretary General to investigate the Korean Air Line Flight KE 007 incident)

2.4 Conciliation

A process of settling dispute by referring it to a commission of persons whose task is to establish the facts and to make a report containing proposals for settlement (does not have a binding character)

Differs from facts finding/inquiry ; fact finding/inquiry in finding the facts and once the facts are established, parties will settle the dispute on their own, main object on conciliation is – obtaining the active service of a commission of persons in bringing the parties to an agreement

Differs from arbitration/judicial settlement ; no binding obligation

2.5 Arbitration

The Hague Conventions of 1899 and 1907 established Permanent Court of Arbitration – neither permanent nor court, consisting panel of arbitrators (parties to the Hague Conventions can appoint four individual competent in IL)

General Assembly adopted the ‘Model Rules on Arbitral Procedures’, prepared by ILC and defined arbitration as – a procedure for settlement of disputes between states by binding award on the basis of law and as a result of an undertaking voluntarily accepted

Modus operandi

i. Consent – a pre-requisite ; arbitration depends upon the willingness of the parties to submit the dispute to adjudication. Can be on ad hoc basis (eg ; St Piere and Miquelon arbitration (Canada v France) )

ii. Identity of arbitrators, the formulation of questions to be submitted, the rules of law to be applied, the time limit within which binding award must be made – must be mutually agreed, expressed in a special agreement known as ‘compromis’

iii. Treaty of arbitration – a) a treaty of arbitration may be concluded or the purpose of settling a particular dispute, b) a different treaty such as treaty for commercial matters, provides a clause stating that any difference shall be determined by arbitration c) two or more states can conclude a so called general treaty of arbitration stipulating that all kind of differences shall be settled by this method.

iv. Arbitrator – stated in the special agreement (may agree on single who may be the head of a third state), mix-commission

v. Rainbow Warrior case, the UN Secretary General was called upon to arbitrate for the first time

vi. The law applied by arbitrator ; treaty of arbitration will specify the principles (usually the general rule of international law, but may also include principle of equity or other related rules)

vii. Binding force or arbitral award ; arbitral award is final unless contrary was provided in the treaty, state may not execute the award against the state who refused to submit

viii. Arbitration versus court ; main difference – the existence of party autonomy, a device for leaving the peaceful settlement as much in the hands of the parties (function of the special agreement)

3.0 Judicial Means (International Court of Justice)

3.1 Composition and Functions

Principal judicial organ of UN

Composed of 15 judges elected to nine year terms of office by the UN General Assembly and Security Council sitting independently of each other, may not include more than one judge of any nationality

Elections are held every three years for one third of the seats, retiring judges may be re elected, members of the court does not represent their government but are independent magistrate

Operates under a statute largely similar to UNC (all member state are parties to the statute of ICJ)

Functions ; a) to settle legal dispute in accordance with the international law (contentious jurisdiction) and b) to give advisory opinion on legal questions referred to by international agencies and organs

3.2 Jurisdiction of the court in contentious cases

Article 34 (1) – only state may be parties in cases before the court

Article 36 (1) – ‘all cases which the parties refer to it ; both disputing parties

3.2.1 Consent is the basis of the court’s jurisdiction

Can be inferred from the conduct of the parties ; Corfu Channel case, the court inferred consent from the unilateral application of the applicant state (UK) coupled with subsequent letters from the other party (Albania) indicating acceptance of the court’s jurisdiction

No jurisdiction of the legal interest of third states from the very subject matter of the decision – court will only have jurisdiction over parties who consent and thus, cannot decide upon legal interest of third party

Monetory Gold case ; CH – it did not have jurisdiction because Albania, whose legal interest would form the very

subject matter of the decision, did not consent to the jurisdiction

3.2.2 Ways of expressing consent

1. Consent given by special agreement (compromise)

Agreement where two or more states agree to refer cases to the court (eg ; Special Agreement Between Malaysia and Indonesia Relating to the Case Concerning Sovereignty over Pulau Ligitan and Sipadan

2. Forum Proragatum

Sort of implied consent given by the respondent state ; when the state defends the case on the merits without challenging the jurisdiction of the court

Corfu Channel case

UK brought a claim against Albania before the court by unilateral application in accordance with Article 40 (1) of the Statute. It argued that the court had jurisdiction under Article 36 (1) as being a matter which was specifically provided in the UN Charter on the ground that the Security Council decided to recommend both UK and Albania to refer the dispute to the ICJ. CH – although UK sent a unilateral application, the letter sent by the Albanian government the court’s registrar could be considered as consent given on the part of Albania

3. Consent given by a compromissory clause in a treaty

Article 36 (1) – matters specially provided for in treaties

State is said to give consent by providing a jurisdictional clause in any treaty, to refer the dispute be it a general treaty of peaceful settlement of dispute or other topics before the court.

Tehran Hostage case – the court accepted jurisdiction on the basis of the bilateral Treaty of Amity, Economic Relations and consular rights between the two parties and the Protocol to the multilateral Vienna Convention on Diplomatic Relations 1961

4. Accepting compulsory jurisdiction under Article 36 (2) of the statute

Article 36 (2) – provides for compulsory jurisdiction of the ICJ, provided that it is voluntary accepted, not obligatory

The principle of reciprocity

State accepts the jurisdiction of the court under the optional clause of Article 36 (2) do son only when other state accepts the same obligation – known as principle of reciprocity

2 aspects ; a) parties to the dispute must have made declarations under Article 36 (2) for the court to exercise jurisdiction and b) the court exercises jurisdiction only to the extent to which the declarations of the parties coincide (court has jurisdiction over the subject matters common to both state’s declaration)

Reservation in accepting compulsory jurisdiction

Article 36 (3) of the Statute – declarations accepting the compulsory jurisdiction of the court is subjected to reservation made by states to limit the extent to which the court may exercise jurisdiction (eg ; Philippines makes a reservation of dispute concerning its continental shelf (ratione materiae), some are made ration temporis regarding time limit) – usually make reservation on domestic matters

Automatic/ self judging reservations

Some reservation go beyond that – the state itself will determine whether a matter is a domestic matter or not

Eg ; the Connally reservation of the US to its declaration to accept compulsory jurisdiction of the ICJ which exclude from the jurisdiction of the court ‘dispute with regard to matters which are essentially within the domestic jurisdiction of the US as determined by the US

3.2.3 Preliminary objection decision on jurisdiction and admissibility

Court shall have power to decide whether or not it has jurisdiction over the said dispute

Article 36 (6) – in the event of a dispute as to whether the court has jurisdiction, the matter shall be settled by the decision of the court

– known as principle of competence de la competence (jurisdiction to decide jurisdiction)

Usual procedure – file a preliminary objection in response to the memorial presented by the applicant

Objections to jurisdiction

Denials that the respondent state ever gave its consent to a particular dispute to be heard by the court / falls under matters where the jurisdiction of the court is excluded

Objection to admissibility

Contention that the applicant lacks locus standi, local remedies are not exhausted etc.

Effect of PO – the proceedings on the merit of the case are suspended and can never be resumed if objection is upheld

3.2.4 Other Incidental Proceeding

Court may initiate other incidental proceeding such as to indicate provisional measure (interim measures of protection), to allow intervention an to interpret or revise a judgment

Interim measures of protection (provisional measures)

Article 41 – the power of the court to indicate, if it considers that circumstance so require, any provisional measures which ought to be taken to preserve respective rights of either party

Indicated before any question of jurisdiction is decided

La Grand case – the court decided that provisional measures addressed to the US which had not been complied with, created a legal obligation, the breach of which give rise to a duty of reparation

Intervention by third states

Article 62 – authorizes a state to intervene if it considers that it has an interest of a legal nature which may be affected by the decision in the case

Eg – the court gave Nicaragua permission to intervene in the Land and maritime Frontier Dispute case – state must prove that it has right to intervene

Article 63 – entitles a state to intervene as of right when a case involves the interpretation of a treaty to which it is a party (the Wimbledon case, Haya de la Torrer case

3.2.5 Procedure

3.2.6 Enforcement of judgment

Judgment of court is final and without appeal

The means of enforcement ; a)self help, b) cooperation of third state, c) recourse to national courts, d)enforcement through international organization

Article 94 of UN Charter

1) each member of the UN undertakes to comply with the decision of ICJ in any case which it is a party

2) if any party fails to comply the obligation, the other party may have recourse to the SC which may, if it deem necessary, make recommendations/ decide upon measure to be taken to give effect to the judgment

3.3 Advisory Jurisdiction

The court has power to give advisory opinion

Article 96 of UNC

1) GA/SC may request the ICJ to give an advisory opinion on any legal question2) Other organs of the UN and specialized agencies, if authorize by the GA, may

also request for advisory opinion

Not for states but international organization ; GA/SC

No binding force