PIL - Peaceful settlement of disputes

Dispute:

"A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons." A dispute is a legal disagreement or conflict of interests between states. (The Mavromatis Palestine Concessions, Greece v. Britain PCIJ 1924)

Relationship between rights of the states, obligations, responsibility, and arising disputes:

• When states have disputes, they are expected to resolve them peacefully rather than resorting to war or other hostile actions. This principle is fundamental in international law and is deeply rooted in the United Nations Charter. The idea is that conflicts should not escalate into violence because that could threaten international peace and security. "Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered.”

• -  Countries have multiple ways to resolve their disagreements, including negotiations, mediation, arbitration, and adjudication. These mechanisms help in finding mutually acceptable solutions: “States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute."

  (Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, 1970)

Causes of disputes:

Omission: A state fails to do something it was supposed to do (e.g., not paying

compensation for damages).
o Intentional breach: A state deliberately violates an agreement.
o Di>erent approaches
o Di>erent interpretations: States disagree on how to understand a treaty or a law. o Change of circumstances: A treaty or agreement might become outdated due to

new political or economic realities. o Etc.

Methods of Settlement, legal mechanisms available to resolve conflicts:

Convention for the Pacific Settlement of International Disputes (29 July 1899) UN Declaration (1970)

Negotiation, Good O\ices, Mediation, Inquiry, Conciliation
Arbitration

Negotiations

The best and the most common vehicle for peaceful dispute settlement. Instead of going to court, countries talk directly to each other to find a solution.

Types of negotiations:

Bilateral

o Multilateral
o Commission Ad hoc: Special committees created for a specific dispute.
o Third party involvement (partial mediation)
o Third track diplomacy: Involves uno\icial or non-governmental discussions that

complement formal negotiations. o Etc.

Theoretical, operational, and case practice

Some international treaties might have a clause obliging the parties to enter into

negotiations before any other means of dispute settlement is used. Some treaties

require mandatory negotiation before legal actions (e.g., ICJ cases).
ICJ: Legality of the Threat or Use of Nuclear Weapons (1996) – Not a mere

obligation of conduct, but an obligation to achieve a precise result.

Mediation & Good Ofices

Fine division between the two mechanisms: "Mediation and good o\ices are diplomatic methods of dispute settlement involving third parties. The third party can be a single state or a group of states, an individual, an organ of a universal or regional international organization, or a joint body."

Good offices

where the third party officers ‘good o>ices’ to the conflicting states to facilitate dialogue and assist states towards peaceful settlement of the dispute. The third party o\ering good o\ices must be acceptable to all the parties. Once the negotiations have started, the functions of good o\ices are usually considered to be completed.

The third party facilitates dialogue but does not propose solutions: more passive approach to impulse negotiations between two parties.

Mediation

The third party actively participates in negotiations and suggests solutions. The mediator conducts the negotiations between contending parties on the basis of proposals made by the mediator aimed at a mutually acceptable compromise solution. Mediation may be set in motion either upon the initiative of a third party whose o\er to mediate is accepted by the parties to the dispute or initiated by the parties to the dispute themselves agreeing to mediation. The mediator’s role can involve communication, clarification of issues, drafting of proposals, identifying areas of agreement between parties, and elaboration of provisional arrangements to minimize contentious and propose alternate solutions.

Role of the UN Secretary-General and his representatives

Report on “The UN and Conflict Prevention: Collective Recommitment” (S/2015/730)

- The UN plays an important role in mediation e>orts worldwide. For example, the UN Secretary-General often plays the role of a mediator in international disputes.

Conciliation

A third-party investigates the dispute and proposes solutions, which are non-binding. Conciliation combines elements of mediation and inquiry to find facts and suggest solutions. An impartial third party can be a sole conciliator but normally involves a formal, institutionalized and impartial commission which investigates the dispute and proposes ways to resolve it by combining elements of inquiry and mediation. The conciliator or commission seeks to objectively establish the facts and applicable law but may also investigate the problem broadly. It may also submit proposals for resolving the dispute which the parties can choose whether or not to accept. Parties respond to the conciliation commission’s proposals within a prescribed time limit. If they agree to the proposals, the commission drafts a procès-verbal, which sets forth the terms of the agreement which are non-binding. Widely envisaged in international practice.

Inquiry

A third-party investigates factual issues but does not o>er solutions. Inquiry only investigates facts and is not legally binding. Inquiry and fact-finding are procedures specifically designed to produce an impartial finding of disputed facts by engaging a third-party. The terms ‘inquiry’ and ‘fact finding’ have often been used (sometimes interchangeably) for this type of procedure under which states refer questions to a panel of experts (commission of inquiry or a fact-finding commission) for investigation of factual or technical matters after diplomatic negotiations.

Arbitration

Binding method for dispute settlement. Common vehicle to reach agreement, envisaged in most bilateral and various multilateral treaties. Arbitration is legally binding, unlike conciliation or mediation. Arbitration results in a final decision that both parties must follow

Arbitration is flexible and accommodating di\erent interests: Parties agree on the procedure, judges, and applicable law.

Provisional(Adhoc)Arbitration

• oparticipationofspecificinstitutionalstructures

  is required. A temporary tribunal created for a specific case. ILC Model Rules on

  Arbitral Procedure (1958).

PermanentArbitrationInstitution

Example: PermanentCourtofArbitration,the

oldest institution for international dispute resolutions. It was established in 1899 by the Hague Convention for the Pacific Settlement of International Dispute. The Permanent court of arbitration is an intergovernmental Organization, allowing UN Observer (NB not part of the UN), with 122 member states (Kosovo and Palestine included).

Africa

• African Union (AU) Peace and Security Council (2002).

• -  Former Organization of the African Unity, 1963

• -  Article XIX of the Charter – Peaceful settlement of Disputes

• -  Commission of Mediation, Conciliation and Arbitration, Additional Protocol 21 July 1964

• -  Preference for Ad-hoc Commissions in Africa...

• -  Cairo Declaration 1993, a Mechanism for Conflict Prevention, Management and Resolution

• -  Peace and Security Council of the African Union, 9 July 2002

• -  Various stabilizing mechanisms: Commission, Panel of Wise, Continental Early Warning

  System, African Standby Force and a Special Fund, Committee of Experts and Military

  Sta>s Committee

• -  Sub-regional organizations in Africa:
  a) Economic Community of West African States (ECOWAS): important role in Liberian civil war 1990, Sierra Leone and Guinea-Bissau. Regional Mechanism for Conflict Prevention
  b) Southern African Development Community (SADC) – 1992 1996 – Organ on Politics, Defense and Security Cooperation

• -  Arab League , established in 1945. 1961 – Inter-Arab Force , Arab Security, Force in 1976 etc.

America

• Organization of American States (OAS, 1948): The OAS established in 1948 Bogota, Colombia : Charter of the OAS, which entered into force in December 1951. It was amended by the Protocols of Buenos Aires, 1967, Cartagena de Indias, 1985, Managua 1993 and Washington 1992

• -  Permanent Council: Secretariat for Multidimensional Security (SMS) Peace Missions :

  o PeaceMissiontoColombia
  o BorderdisputeCostaRicaandNicaragua,1985 o MissionBelizeandGuatemalaProcess,2000

• -  Peace Fund

• -  Confidence Building Measures

• -  Border Dispute: Costa Rica and Nicaragua (1985).

Europe:

• Organization for Security and Cooperation in Europe (OSCE).

• -  The OSCE is a forum for political dialogue on a wide range of security issues and a

  platform for joint action to improve the lives of individuals and communities. ”

• -  “The OSCE addresses issues that have an impact on our common security, including arms

  control, terrorism, good governance, energy security, human tra>icking, democratization, media freedom and national minorities.”

European Conflict prevention institutions

ConflictPreventionCenter,1990(MediationthroughMediatorsorChairpersons–in

Office)
o ConventiononConciliationandArbitrationwithintheOSCE,adoptedin1992in

Stockholm
o CourtofConciliationandArbitration,Geneva“TheCourtwasestablishedbythe

Convention on Conciliation and Arbitration within the OSCE. This mechanism can be activated unilaterally by any State party to the Convention for a dispute between it and one or more other States parties. At the conclusion of the proceedings, the conciliation commission presents a report and recommendations to the Parties. The Parties then have thirty days to decide whether they accept those or not. If there is no agreement within that period, and if the parties have agreed to submit to arbitration, an ad hoc arbitral tribunal may be set up whose ruling will be legally binding on the Parties. Arbitral proceedings may also be initiated by agreement between States parties concerned.”

Involved in Former Yugoslavia, Moldova, Georgia, Estonia, Ukraine etc.

- Investment Dispute Settlement Bodies

UNCITRAL(United Nations Commission on International Trade Law)
o ICSID(International Centre for Settlement of Investment Disputes part of the World Bank)

Trade Dispute Settlement Bodies:

WTO(World Trade Organization)
o NAFTA(Now USMCA–United States-Mexico-Canada Agreement)