International Law: Dispute Resolution & Enforcing Compliance

Dispute Resolution & Enforcing Compliance: Countermeasures, Sanctions & the Use of Force

Review

• Relationship between national and international law
• Principles of state jurisdiction

Objectives

1. Identify the means of international dispute resolution
   • Diplomatic & legal
2. Detail the International Court of Justice
3. Outline the measures of enforcing compliance with international law

Dispute Settlement

• Central to IR, international law, and international peace & security
• Meant to de-escalate tensions and avoid conflict/instability
• Means of settlement:
  1. Diplomatic (negotiation, mediation, inquiry, conciliation)
  2. Legal (arbitration, judicial settlement)

International Law of Dispute Resolution

• UN Charter Article 2(3)
• 1970 Declaration on Principles of Int’l Law concerning Friendly Relations and Cooperation Among States
• 1982 Manila Declaration on the Peaceful Settlements of Int’l Disputes
• Customary law
• Require dispute settlement exclusively through peaceful means and to avoid escalation
• Does not specify how to peacefully resolve disputes

Diplomatic Means of Dispute Settlement

• Includes negotiation, mediation, inquiries and conciliation
• Negotiation: most common
  • Direct, multi- or bilateral discussions concerning the settlement of a dispute
  • Parties retain control of the process
  • Highly flexible
  • Includes formal/informal diplomacy
• Negotiations undermined by political inequalities and the interests/positions of states
• Aerial Herbicide Spraying (Ecuador v. Columbia) (2013)

Mediation

• Involve a third party
• ‘Good offices’: limited/facilitative role of the third party
  • Iceland facilitated 1986 Reykjavik Summit
• Mediation: mediator as an active participant
  • Has opportunity to impact outcomes
• Requires consent of both parties
• Iran hostage crisis (1979-81)
• US mediated the 1978 Egypt-Israel Peace Treaty (1979)

Inquiry

• Fact-finding process to resolve a dispute issue of fact
• Through a ‘commission of inquiry’ (aka fact-finding mission)
• Independent and impartial
• UNHCRC’s Gladstone Report (2009)
• UNHRC’s fact finding mission in Myanmar (2019)

Conciliation

• Setting up non-binding commissions
  • Formalizes third party intervention
• Often produce reports with non-legally binding recommendations by a third party
  • Conciliator has no authority to make decisions/orders
• 1948 UN Conciliation Commission for Palestine
• 1981 Jan Mayen Conciliation Commission (Iceland v. Norway)

Legal Methods (Litigation)

• Includes arbitration and judicial settlement by a permanent court
• Arbitration: parties establish a tribunal to settle a dispute
  • Decisions of adjudication are binding
  • Parties exercise a considerable degree of control
• 1794 Jay Treaty; Abyei case (2009)

Judicial Settlement

• Involves reference of disputes to permanent tribunals for legally binding decisions
• Tribunals include ICJ, ICC, ITLOS, WTO, ICSID, etc.
• Except for the ICJ, all tribunals/courts have specialized jurisdiction

The International Court of Justice (ICJ)

• A standing tribunal
• Deals with disputes between states and offers advisory opinions to the UN
• Decisions are binding and final without appeal
• Requires state consent

The Unfolding of the ICJ

• 1899 Permanent Court of Arbitration
• 1921 Permanent Court of Int’l Justice (PCIJ)
• 1946 ICJ established
  • Integrated PCIJ treaties
• 1966 South-West Africa cases (Ethiopia v. South Africa, Liberia v. South Africa)

Institutional Structure of the ICJ

• 15 judges; 9 year terms
  • P-5 traditionally represented
  • Parties can appoint an ad hoc judge
• Cases are heard by the full Court or a chamber of the Court
  • 1984 Delimitation of the Maritime Boundary in the Gulf of Maine Area

Procedure of the ICJ

• Regulated by the Statute
  • Cases brought to the Court through special agreement or unilateral application
  • Parties exchange written pleadings
  • Decisions adopted by majority vote
  • A revision of judgement may be made only in the instance of a ‘new fact’
    • Temple of Preah Vihear (Cambodia v. Thailand) (2011)

Jurisdiction of the ICJ

• Based on state consent
• UN Charter defines the scope of jurisdiction
• Jurisdiction also established through treaty specification and special agreement
• The ‘optional clause’: a declaration recognized the compulsory jurisdiction of the Court
• ICJ has a duty to exercise jurisdiction when it is established
• Case of the Monterey Cold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States)
• 2004 Legality on the Use of Force (Serbia and Montenegro v. Belgium)

Provisional Measures

• Power to order provisional measures to be taken to preserve the rights of either party during proceedings
• 1999 Lagrand case (Germany v. United States)

Effect of the Court’s Decisions

• Judgement of the Court is binding under the UN Charter
• Party may have recourse to compel compliance with the UNSC
  • Rarely practiced
• Parties may also agree to depart from a Court decision

ICJ Advisory Opinions

• UNGA, UNSC and other UN entities are entitled to advisory opinions on legal questions
• Advisories are not determinative
• State consent is not required
• Legality on the Use of Nuclear Weapons (1996)
• Legal Consequences on the Construction of a Wall in Occupied Palestinian Territory

Enforcement & International Law

• 18th & 19th centuries: period of self-help
  • Forcible measures were legal
• League of Nations/UN: created following failure of this system = Move toward public int’l law
• Int’l enforcement is two-pronged: centralized UN system coexists with a self-help system of non-forcible measures

Non-Forcible Measures of Enforcement

1. Countermeasures
2. Sanctions

Countermeasures

• A non-forcible unilateral measure to remedy a breach of an int’l obligation that is otherwise unlawful
• Injured states have a legal entitlement
  • Justified as response to violation of int’l law
• A form of ‘private justice’

Countermeasures

• ILC’s Draft Articles on State Responsibility (2002)
  • ”[…] to secure the end of the breach and, if necessary, reparation”
  • A measure of compliance, not punishment
• 4 limitations: directed, request to discontinue, proportionality, compliance
• Gulf States embargo against Qatar (2017)

Limitations on Countermeasures

• Cannot be anticipatory
• Cannot be directed toward third-party states
• Shall be temporary & reversible
• Cannot induce irreparable damage
• Must be proportionate
• Must not violate basic int’l law obligations
• Injured state must notify responsible state of countermeasure intentions
• Countermeasures must be suspended when wrongful act has ceased

Countermeasures by Third States

• May be invoked by states acting in the collective interests = ‘Collective countermeasures’
• Growing practice
• EU and US measures against Iraq (1991)
• EU and Arab League measures against Syria (2011)
• Western states’ measures against Russia (2014, 2022)

Retorsion & Reprisals

• Retorsion: do not involve the suspension of int’l obligations
  • ‘An unfriendly but lawful act’
• Reprisals: punish responsible states
  • Often include the use of force

Unilateral Sanctions

• Economic sanctions: commercial/financial penalties or coercive measures targeted towards states, groups and/or individuals
• Unilateral sanctions often imposed by powerful states toward political motivations
• Breach the principle of non-intervention
• Legally, states must first seek authority from an IGO

Multilateral Sanctions

• To be clearly lawful, sanctions must be employed by an IGO
• UNSC: central sanctioning org
  • Can legally obligate UN member toward sanctions
• UN Charter Article 41: sanctions can include full/partial trade, financial, commercial and arms embargoes, travel bans, etc.
• Purposes: restore int’l peace/security, support peaceful power transitions, deter non-constitutional changes, constrain terrorism, protect human rights and promote non-proliferation

Limitations on Sanctions

• Bossuyt Report (2000): i) valid reason, ii) specific targeting, iii) exclude targeting humanitarian goods, and iv) limited
• In practice, two limitations exist: human rights norms & the principle of proportionality

Comprehensive vs. Targeted Sanctions

• Comprehensive sanctions: near total financial/trade embargoes
  • Extremely harmful to entire populations
  • Example: Iraq (1990-2003)
• Targeted sanctions: target those actors, goods and processes specifically responsible or directed towards a breach
  • Now UNSC practice
  • Example: Iran (2006)

The Use of Force in International Law

• Jus ad bellum (vs. jus in bello)
• The use (and threat) of force is illegal under int’l law
  • Controversy over what defines ‘force’ and the conditions that may override the rule
• Principle emanates from the UN Charter (Article 2(4)) and customary law
• 1928 General Treaty for Renunciation of War as an Instrument for National Policy (Kellogg-Briand Pact)
• Right to self-defense (Article 51)

Defining ‘Threat or Use of Force’

• ‘Force’: generally limited to armed measures
  • 1970 Declaration on Friendly Relations and Cooperation Among States
  • 1987 Declaration on the Non-Use of Force
  • 2017 Talinn Manual 2.0 on the Int’l Law Application to Cyber Operations
• ICJ: Threatening unlawful force is unlawful

Self-Defense

• UN Charter Article 51: states have the right to self-defense in the event of an ‘armed attack’
• States required to report their use of self-defense to UNSC
• Agreement that it must be necessary and proportionate
  • Disagreements beyond this consensus

Defining ‘Armed Attack’

• ICJ: requires a degree of state involvement in the attack
  • 9/11 challenged this notion
• The practice of protecting nationals abroad
  • Example: US in Grenada (1983)
  • Example: Israel in Uganda (1976)

Anticipatory or Pre-emptive Self-Defense

• ‘Preventative’ self-defense: when attack is foreseeable or highly likely
  • Example: Israel’s (1981) airstrikes against Iraqi nuclear reactors
• ‘Anticipatory’ self-defense: when attack is imminent
  • General principles: must be instant, overwhelming and last option

The Legality of Intervening in Internal Conflicts

• 1970 UNGA Friendly Relations Declaration
• Nicaragua case
• Assistance to the gov’t of a state is lawful