Peaceful Settlement of Peaceful Settlement of International DisputesInternational Disputes

Sherryl MelgarLawrence VillamarLLB 2-2

DisputeDisputeA disagreement on a point of law

or fact, a conflict of legal views or interest between the parties (Coquia and Santiago, 2005)

International DisputeInternational Dispute• Actual disagreement between States

regarding the conduct taken by one of them for protection or vindication of the interests of the other (Nachura, 2009)

• A disagreement on a point of law or fact, a conflict of legal views or of interests between two States. Disputes relate to an alleged breach of one or more legal duties. They may also relate to a question of attribution of title to territory, to maritime zones, to movables or to parts of the cultural heritage of a State (Brownlie, 2009)

Kinds of DisputesKinds of DisputesPolitical disputes

◦Non-justiciable, political or non-legal issues

Legal disputes◦Involves not only questions of law

but also the law itself

Pacific Settlement of Pacific Settlement of DisputesDisputes• Art. 33 of the UN Charter provides

for the means of settling disputes: 1.Negotiation2.Enquiry3.Mediation4.Conciliation5.Arbitration6.Judicial settlement7.Resort to regional agencies or

arrangements8.Other peaceful means of their own

choice

NegotiationNegotiationSettlement of disputes by direct

discussions or exchange of views through diplomatic representatives

EnquiryEnquiryAscertainment of pertinent facts

and issues in a disputeUse of effective fact- finding

bodies in accordance of Art. 33 of the Charter

MediationMediationSettlement of dispute undertaken

by a third State, group of States, an individual, an agency or an international organization

Offers concrete proposals for settlement of substantive questions

Tender of Good OfficeTender of Good OfficeOffer of a third party to settle

international disputeFacilitate efforts towards

settlement of dispute and act as a channel of communication for parties]

Normally seeks to encourage the parties to resume negotiation

Mediation vs Tender of Good Mediation vs Tender of Good OfficeOfficeIn mediation, third party offers a

solution and makes proposals; good office merely brings the parties together

ConciliationConciliationA combination of mediation and

inquiry (Handbook on the Peaceful Settlement of Disputes between State, 1992)

ArbitrationArbitrationResolution of differences

between States through a legal decision of one or more umpires or of a tribunal chosen by the parties

Resort to Regional Resort to Regional Arrangements and other Arrangements and other AgenciesAgencies• Regional arrangements– agreements (regional multilateral treaties)

under which States of a region undertake to regulate their relations with respect to the question of the settlement of disputes, without creating thereunder a permanent institution or a regional international organization with international legal personality

• Regional agencies– regional international organizations created

by regional multilateral treaties under a permanent institution with international legal personality to perform broader functions in the field of the maintenance of peace and security, including the settlement of disputes.

Judicial SettlementJudicial SettlementSubmitting a dispute to a pre-

constituted international court or tribunal composed of independent judges whose tasks are settle claims on the basis of international law and render decisions which are binding upon the parties

International Court of International Court of JusticeJusticeEstablished in 1946 as a principal

organ of the United NationsIts seat is at the Peace Palace in

The Hague (Netherlands)it replaced the Permanent Court

of International Justice which had functioned in the Peace Palace since 1922

International Court of International Court of JusticeJustice• Composition:– 15 judges elected to nine-year terms of office by

the United Nations General Assembly and Security Council sitting independently of each other.

– It may not include more than one judge of any nationality.

– Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. The Members of the Court do not represent their governments but are independent magistrates.

– The judges must possess the qualifications required in their respective countries for appointment to the highest judicialoffices, or be jurists of recognized competence in international law.

– The composition of the Court has also to reflect the main forms of civilization and the principal legal systems of the world.

International Court of International Court of JusticeJustice• Functions:1.to settle in accordance with

international law the legal disputes submitted to it by States, and

2.to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

International Court of International Court of JusticeJusticeParties to a case:

◦Only States may be parties to cases brought before the Court

International Court of International Court of JusticeJustice• Jurisdiction and competence of the

court:– jurisdiction of the Court depends upon

consent, the recognition of the States of the jurisdiction of the Court over a dispute. Recognition may be expressed by

1.Special agreement2.Compromissory clause in treaties3.Other means (declaration of States that

they accept in advance the jurisdiction of the court in certain cases; Optional Clause)

Reservation to Acceptance of Reservation to Acceptance of JurisdictionJurisdiction• Types:1.Rationae temporis– temporal jurisdiction refers to the

jurisdiction usually of a court of law over a proposed action in relation to the passage of time

2.Matters within the domestic jurisdiction of the declarant