peaceful settlement of disputes

intro and hisotical bakground

• the peaceful settlement of international disputes developed to prevent states from resorting to force when conflict arises

• key hisotrical milestones:

  • 1899 peace conference

  • 1907 hague convention

• these instruments marked the first formal commitment by states to resolve disputes through peaceful organised methods rather than war laying the foundations of modern international dispute settlement system

functions of IL in dispute settlement

• pacification= encourages peaceful co existence and promotes negotiation/dialogue/non violent solutions

• framework building= estbalishes:

  • techniques for dispute settlement

  • procedures (arbitriation, courts negotiation)

  • rules and standards governing dispute management

  • sanctions and consequences for breaches

un charter framework article 33

• obliges state to settle disputes peacefully

• provides a non exhaustive and flexible list of techniques including:

  • negotiation

  • mediation

  • concilliation

  • arbitration

  • judicial settlement

  • regional arrangements

• states remain free to choose the method most appropriate to the dispute

evolution and adapatability of DS

• co existence of diplomatic and judicial methods= both remain essential

  • diplomatic methods are flexible consensual and poltically sensentive

    • negotiation,mediation conciliation

  • judicial methods are binding structured and law based

    • icj, arbitration, wto panels

• the chosen method directly affects the spped of resolution, polticial costs, legal clarity and enfrceability

• procedures must evolve with global realities= under the wto dispute settlement evolved into a quasi judicial ssytem with binding decisions and appellete review; whereas under gatt its predecessor disputes where mainly resolved through diplomatic concilliation

  • this balancing diplomatic flexibility with judicia certainty is vital for an effective system

what is preventative settlement

• preventative settlement refers to mechanism aimed at preventing disputes from arising or escalating especially in matters concern int peace and security

  • periodic reporting ie human rights treaties

  • enviornmental compliance systems

• designed to detect problems early and promote compliants

• effective where there is

  • strong state coperation

  • effective oversight and monitoring

who is involved in preventative settlement

• international oversight bodies

  • contirbute to stability by

    • monitoring complaince

    • idneitfying risks early

    • allowing early intervention

    • holding states accountable

  • activities include fact finding missions and inquiries into violations/emergeing risks

  • carried out by:

    • un bodies like human rights council or security council mechanism

    • regional organisations like council of eu and african union

    • specialised agencies like WHO, ILO

• ngos strengthen PS by:

  • reporting violations

  • highlighting early non complaince

  • pressuring states to comply

  • increasing trasnparency

diplomatic settlement

• conists of non binding methods based on consent and good faith of states

• achieves mutually acceptable solutions avoiding imposing legal obligations

• flexible, cooperative and state controlled

forms of diplomatic settlement

• negotiation (most common)= used both preventativly and reactively in areas like trade, natural resources and maritime boundry disputes

  • effectiveness depends on good faith transparency and poltical will

• good offices= third party (another state, respected indiv or IO) encourages dialogue but with no active participation

  • outcomes are non binding

• mediation= third party with active involvement guides negotiations and proposes solutions

  • outcomes are non binding

• concilliation= more strucutured than mediation conducted by a concilliation commission examinng the dispute and proposing a solutions

  • although outcomes non binding but some treaties make it compulsory before abirtration of judicial settlment

    • timor-leste v austrlia= compulosru conciliation under unclos led to agreement on maritime boudnaries

jurisitctional settlement

• involves binding decisions issued by independant third parties

  • arbitration

  • judicial settlement

• provides legal certainty and finality

formsof juristctional settlement: arbitration methods

• arbitration offer sginficant party autonomy making it binding but flexible and suitible for tehnical/specialsied disputes

  • states may choose arbitrtors,set epocedural rules and define the scope of issues

• interstate arbitration is a bindng process where states submit disputes to a tribunal they help create with core principles of mutual concent and application of international law

  • tribunal composition cjosen by parties, procedural rules may follow UNCITRAL or PCA frameworks and issues are narrowly definied

  • competence competence principle= tribunal decides its own juristction

• abitral awards are binding, final (no appeal) and limited review ony if provided by agreement combing certainty with flexibility

forms: judicial settlement

• judical settlement is dispute resolution before standing international courts like the icj, itlos and regional courts (echtr, cjeu)

  • lack of party autnomy= with fixed judges, established procedures limited party control and auhtoritive interpretations of IL

• the icj=principle judicial organ of the un

  • contentious cases= binding judgements between states and findings on responsibility/remedies

  • advisory opinions= non binding legal advice influential in shaping il eg decolonisation and self determination

  • 15 judges elected by both the UNGA and SC reflecting georgrpahical and legal diversity acting in their indual capacity (not state)

  • juristiction requires state consent; without consent the court cannot act

    • achieved thorugh compromissory clauses in treaties, optional clause declarations article 36 2, special agreements

    • enforcement challenges= no direct enforcement mech so compliance depends on poltiical will and international pressure

      • article 94 2 allows sc involvement but effectiveness may be limited

fragmentation of IL

growth of specialised tribunals such as itlos wto apellete body raises concerns about

• inconsitwnt interpretations

• fragmentation of legal regimes

the icj remains the central geralist court within a complex judicial landscape

dispute settlement within IOS

• artcle 2(3) UN charter= states must settle disputes peacefully

• security council is primarily responsible for peace and security:

  • investigates disputes, recommends settlement methods, may act under chapter VII in serious cases

• GA is a forum for debate

  • issues non bidning recommendatoons and exerts poltical pressure

• un charter encourages use of regional organisations/arrangmenents= article 33 recongises regional DS mechanisms

  • oas (mediation and poltical dialogue), african union (early warning and mediation) and eu (advanced jucidial and poltical systems eg ecthr cjeu)

• regional mechanisms reduce the burden on the un providing quicker+ culturally and geogrpahically approriate sollutions

  • all regional actions must remain consisten with UN principles with the SC retinng ultimate authority over international peace and security

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