Week 5 - International law - Peaceful settlement

reasons for peaceful settlement

after WW2 there was a strong commitment to peaceful settlement of disputes and an absolute prohibition on use of force in international relations

which article outlines that settling international disputes should be done by peaceful means?

art. 2(3) UN Charter

which article states that states shall refrain from the threat of use of force?

art. 2(4) UN charter

art. 2(3) UN charter must be read together with…

art. 33 UN Charter

what are means of peaceful dispute settlement? where are they listed?

• art. 33 UN charter

• negotiation

• enquiry

• mediation

• arbitration

• judicial settlement

• regional agencies or arrangements

• other peaceful means of own choice

political means of dispute settlement

good offices

negotiation

mediaton

good offices

• means of dispute settlement that involves a neutral and trustworthy 3rd party

• used to facilitate negotiations

• can be as simple as passing notes or phone calls

• such a third party can be a state or UN security council

negotiation

• broad concept that captures various means of states working out a dispute together through direct contract

• typically no involvement of a 3rd party

• sometimes states are bound to negotiate when a dispute arises

• art. 23 CERD + art. 30 CAT

mediation

• form of a dispute settlement when a neutral 3rd party plays an active role of communicator and facilitator between parties

• unlike good office, mediator is an active figure seeking to achieve a compromise

what is the role of a neutral 3rd party (negotiation, good office, mediation)

• inquiry/fact finding

• established by states or by an international organization to impartially ascertain certain facts

• can clarify the dispute and/or be a basis for further dispute settlement

Judicial means of dispute settlement

• arbitration

• judical settlement of dispute

arbitration

• adjudicatory method of dispute settlement

• awards of an arbitral tribunal are binding and final

• unlike with courts, arbitration giver parties a lot of freedom = parties to dispute can agree on their own arbitrators, the format or even applicable law

judicial settlement of dispute

• between states involves courts as the 3rd party adjudicating on the dispute

• typically a permanent court with independently appointed judges

• States must consent to the jurisdiction of such international courts

• decisions are typically final and legally binding for parties to the dispute

International court of justice

• the principal judicial body of the UN

• consists of 15 judges (representative of the principle legal systems of the world art. 9 ICJ Statute)

is it possible to have more than 15 judges ICJ?

yes, possibility of 2 ad hoc judges

why would a state appoint an ad hoc judge?

• if State A has a permanent judge of its nationality on the Bench, but State B does not, State B has the right to choose an ad hoc judge

• If neither State A nor State B has a national on the Bench, both can appoint an ad hoc judge

which article outlines ad hoc judges?

art. 31 ICJ Statute

Which type of legal procedings can the ICJ engage?

• judgements in contentious cases

• delivering advisory opinions upon request of authorized bodies about relevant questions

contentious case

• art. 34 ICJ Statute

• case between 2 or more states

• on a legal dispute between the parties

• all parties to the case must have consented to the jurisdiction of the ICJ

what does jurisdiction of courts imply in international law

• implies that a judicial body has the authority to adjudicate on disputes with legal consequences for parties to the case

question of jurisdiction

• which conditions courts can exercise judicial functions as an international court

why do states have to consent to jurisdiction of international courts?

• since states are sovereign

• there is no higher authority above them

how can states consent to ICJ jurisdiction

1. Compromis or ad hoc agreement

2. Compromissory clause or treatment clause

3. Optional clause

4. Forum prorogatum

in which article can you find ways for states to consent to jurisdiction?

art. 36 ICJ Statute

which way to consent is not found in article 36 ICJ Statue?

Forum Prorogatum

Compromis/Ad Hoc special agreement

• art. 36(1) ICJ Statute

• the compromis is an explicit agreement between parties to a dispute through which they agree to submit particular case to the court

• happens after a dispute has already broken out

• an ad hoc agreement is typically for a specific case one time

which case is an example of a compromis/ad hoc special agreement

ICJ jurisdiction in the North Sea Continental Shelf Cases

compromisory clause

• art. 36(1) ICJ Statute

• a clause found inside a larger treaty (like a treaty on environmental protection or trade) where parties agree in advance that any future dispute regarding interpretation or application of that specific treaty will be reffered to ICJ

• agreement made before dispute

what is an example of a compromissory clause

genocide convention

Optional clause

• art. 36(2) ICJ Statute

• unilateral declaration submitted by states to the ICJ in which they accept as compulsory ipso facto jurisdiction

• declarations may contain some restrictions in time or subject matter of matter of cases

what is the optional clause declaration based on?

• reciprocity

• the lowest common denominator applies between parties

can an optional clause declaration be withdrawn?

yes at any moment

as long as it does not exclude the jurisdiction over disputes already in delibiration

forum prorogatum

• not in the ICJ statute but arose out of practice of the court over time

• consent is evident from behaviour of states

• sending letter to the court

• a state must show unequivocal indication that it wishes to accept the court’s jurisdiction in a voluntary and indisputable manner

legal effects of ICJ judgements

• judgements are final and without appeal (art. 60 ICJ statute)

• judgements are binding for the parties to the dispute but they do not create legal obligations for 3rd parties

• UN member states are legally bound to comply with the ICJ judgements (art. 94 UN Charter)

• non-compliance can be adressed by the UN security council (art. 94 UN Charter)

ICJ advisory opinions

• request for advice on questions of law initiated by bodies

which article outlines ICJ advisory opinions

art. 65 ICJ Statute jo. art. 92-96 UN Charter

art. 65 ICJ stattute = outlines what the court can do

art. 92-96 UN charter = defines who can ask for an Advisory Opinion

are advisory opinions legally binding?

no, but include important findings on the law

which case outlines the 3 conditions which must be fulfilled for specialized agencies to be able to request an advisory opinion under art. 96 UN Charter

ICJ nuclear weapons opinion (1996)

what are the 3 coditions for specialized agencies to be able to request an avisory opinion

1. The organization must be duly organized

2. The question must be a legal question

3. The question must address a matter that arises within the scope of activities of the organization

principle of specialty

• organizations are limited to ask questions about their specialty

• the powers conferred on international organizations are normally outlined in their constituent instruments

which article outlines principle of specialty

art. 96(2) UN charter