11L - Peaceful Settlement of Disputes

General observations

Peaceful means

• 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.

• 2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the

Purposes of the United Nations.

• article 33 Charter: 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 arrangements, or other peaceful means of their own choice.

An obligation to settle disputes?

• no, many States have disputes with one another that have existed for many years, decades or even centuries

• Obligation to seek but not to find

• (e.g., Falklands / Malvinas dispute, since 1830s)

Consent

Dispute settlement between States depends on consent:

• without agreement to have recourse to a certain method, attempts at dispute settlement may just be met with silence or denial

No compulsory system - requires consent

Methods of dispute settlement

Diplomatic methods of dispute settlement

• Negotiation

• Fact-finding / inquiry

• Good offices

• Mediation

• Conciliation

• > not binding, depends on the state if they accept it - soft method

Legal means of dispute settlement

• Arbitration

• Judicial settlement

• > binding forms

Disputes

Conflicts / situations / disagreements / disputes

“A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” (PCIJ, Mavrommatis Palestine Concessions case, 1924)

Nuclear Disarmament cases, 2016 → being aware of the existence of a dispute, the UK was not aware of the dispute

• up until you submit the dispute to the ICJ

Diplomatic methods of dispute settlement

Negotiations

• Fact-finding / enquiry: commission established

• The Red Crusader incident: UK troller allegedly fishing at the Faro Islands, warning shut which hit the ship (Denmark v. UK)

  • No evidence of unverified fishing

Good offices

• Mediation (Beagle Channel dispute)

  • Chile and Argentina - agreed to go to arbitration, did not follow it, mediation of the Pope

Conciliation

• select an odd number of people, propose solutions

• East Timor vs. Australia: exploration of natural resources, jointly develop this area (did not follow UNCLOS here)

Legal methods of dispute settlement

Arbitration

• Parties to dispute determine (certain) matters

  • Court setting up

  • Advantages: impartiality, more hand in the case

  • Disadvantages: very expensive

• Award

The International Court of Justice

Composition

• No judge present of your nationality > appoint an ad-hoc judge

• But independence and impartiality

Competence

• Contentious jurisdiction:

  • settlement of disputes between States → binding decisions

• Advisory jurisdiction:

  • legal advice to General Assembly and Security Council, and to other organs of the United Nations and to the specialized agencies when authorized by the General Assembly → non-binding

Access to Court

• States: article 34 Statute ICJ

• States parties: article 35(1) Statute ICJ

• other States: article 35(2) Statute ICJ

“The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.”

• Relocation of the United States Embassy to Jerusalem (Palestine v. USA)

• Palestine: not UN member, not party Statute ICJ

• accession VCDR and Optional Protocol: 2014

• application Palestine: 28 September 2018

• withdrawal US Optional Protocol: 12 October 2018 - does not have withdrawal causes (can the US do this?)

• US position: US is not in a treaty relationship with Palestine, because Palestine is not a State

Jurisdiction (article 36 Statute): based on consent

• compromis / special agreement

  • article 36(1) Statute ICJ “cases which the parties refer to it” (see also article 40)

  • this they agree/disagree, what they are asking from the court, special agreement specifically created

• compromissory clause (jurisdictional clause) in treaty

  • article 36(1) Statute ICJ “matters specially provided ... in treaties and conventions in force”

  • treaty already exists

• declarations optional clause

  • article 36(2) Statute ICJ “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes [...]”

  • reservations: reciprocity: “state accepting the same obligation”

  • unilateral declarations

  • Inequality of arms

    • One state has more reservations, therefore they work based on reciprocity

    • Can use the other State’s reservations, therefore there is equal footing

Jurisdiction (article 36 Statute): based on consent

• forum prorogatum

  • a State starts a case against another, but the responding State has not consented to the jurisdiction of the Court; nevertheless, the respondent State appears before the Court and argues the merits / substance of the dispute(s) without objecting to the jurisdiction of the Court

• One state submits and the other state can give consent

• Preliminary objections

  • Submit a case, the respondent can raise objections

  • Raise at the preliminary level, have to address before the merits

• Provisional measures, intervention

  • Human rights, genocide claims, might be a reason that a right is at such serious stake, certain measures have to be taken, freeze the situation to protect the interest there

• case - France v. ???

Certain Norwegian Loans Case (France v. Norway)

French Declaration:

“France recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity . the jurisdiction of the ICJ, in conformity with Article 36(2) of the Statute of the said Court, for all disputes …. This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic…”

Norwegian Declaration:

“Norway recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is to Say, on condition of reciprocity, the jurisdiction of the ICJ in conformity with Article 36(2) of the Statute of the Court, for a period of ten years as from 3rd October 1946.“

> Reciprocity, I can invoke France’s reservation

> Separate opinion of the judge: whether this reservation is permitted or not, stripping the court from the competence - this is in conflict, no you cannot do this reservation

> Important, that it affects the jurisdiction - we do not have jurisdiciton

Advisory Opinion

Art. 96 UN Charter

Article 96

• a. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

• b. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

‘within the scope of their activities’ → WHO AO Request, paras. 10-19

What about SC & GA? → Wall AO, paras. 15-16 & 24 ff

• Can basically ask anything due to the general nature

Can the UNSG request an AO?

• Could be an abuse, too much power to one person - left out

‘What type of question needs to be asked?

• Article 65 ICJ Statute

  • 1. The Court may give an advisory opinion on any legal (!) question …

  • It is not a problem that it is also political

• Article 102 Rules of Court

• 3. When an advisory opinion is requested upon a legal question ….

  • Is lack of consent by States material?

    • No, due to that it is non-binding

  • Does the ICJ have discretion to refuse an AO?

    • Unclear, there seem to be a possibility, but ICJ is reluctant to use it

Are AOs binding?

• Article 59 ICJ Statute: The decision of the Court has no binding force except between the parties and in respect of that particular case.

• “a distinction should thus be drawn between the advisory nature of the Court's task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court, which, “as such, … has no binding force" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, ICJ Reports 1950, p. 71).

Intervention

Art. 62 ICJ Statute

• 1. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.

• 2. It shall be for the Court to decide upon this request.

Art. 63 ICJ Statute

• 1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.

• 2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

> Genocide Convention, loads of states have intervened

• Under art. 63 - you will be bound by the construction of the court

• Under art. 62 - no such effect

Interest vs. Right

• Have to demonstrate that you have an interest, but not too strongly because then you will have a right

• Land, Island & Maritime Frontier Dispute (El Salvador/Honoduras), paras. 61 & 76

  • Nicaragua could intervene regarding waters in the Gulf of Fonseca (concrete legal interest) but not for broader maritime areas where no specific legal interest was shown.

• Tunisia/Libya, para. 13

• Libya/Malta, Diss. Op of Judge Oda, para. 22

• Catch-22 of Art. 62 IC Statute

Purpose of Intervention

• not vague →Tunisia/Libya, para. 13

• not new dispute → Libya/Malta

Jurisdictional Link

• Art. 62 ICJ Statute?

• Relevant case-law

  • Libya/Malta → see Sep. & Diss. Op. of judges

  • Land, Island & Maritime Frontier Dispute(1990), paras. 97-100

    • The Court analyzed whether Nicaragua’s legal interest in Gulf of Fonseca waters gave it a jurisdictional link to the El Salvador/Honduras dispute.

  • Land and Maritime Boundary case (1999),para. 15