Peaceful Settlement of Disputes in International Law

The General Framework for Peaceful Settlement of Disputes

• Conceptual Overview: The primary goal of peaceful dispute settlement in international law is to manage conflicts between states before they escalate into the use of force or full-scale warfare. It focuses on resolving disagreements regarding the meaning of legal terms or facts relating to a dispute.

• Succession of Topics: While this lecture focuses on peaceful means, subsequent topics often address the "use of force," which occurs when these peaceful methods fail.

• Interconnectivity of Modes: Although presented as distinct categories, different modes of dispute settlement are frequently combined. For example, a mediation process might include a fact-finding mission.

• The Principle of Consent: Everything a state does in international law, including the choice of dispute resolution, is based on state consent. No state can be forced into a specific settlement method without its agreement.

The Whiskey War: A Case Study in Peaceful Resolution

• Parties Involved: Canada and Denmark (representing Greenland).

• The Subject of Dispute: Hans Island, a $1.3\,\text{km}^2$ rock that is barren, icy, and located in the waters between Canada and Greenland.

• The Conflict (1973–2022): Known as the "Whiskey War," this was a nearly $50$-year territorial dispute. Despite the disagreement, the relationship remained amicable and was considered an "insignificant Arctic sovereignty dispute" among NATO allies.

• The Ritual: Representative military or government forces would visit the island, plant their national flag, and leave a bottle of alcohol. The Canadians left Canadian whiskey; the Danes replaced it with schnapps.

• The Resolution: The dispute ended in $2022$ with a formal agreement to share the island. The new land border follows a natural rift in the rock. This resolution was intended to send a message that boundaries should not be redrawn "through the barrel of a gun," particularly in the context of modern conflicts involving Russia and President Putin.

Defining a "Dispute" in International Law

• The Jurisdictional Requirement: Establishing that a "dispute" exists is often a prerequisite for international courts (like the ICJ) to have jurisdiction. Consequently, respondents often argue that no dispute exists to avoid a case being heard.

• Mavrommatis Palestine Concessions Case ($1924$): Defined a legal dispute as "a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons (states)."

• Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania ($1950$): Established that the determination of whether a dispute exists is an "objective determination" and cannot be dismissed simply because one party denies its existence.

• Southwest Africa Case/Marshall Islands Case ($2016$): Established that for a dispute to exist:     * Two sides must hold "clearly opposite views" regarding the issue.     * The claim of one party must be "positively opposed" by the other.     * The respondent must be aware (or could not have been unaware) that their views were opposed.

• The Threshold of Evidence: The threshold for proving a dispute is very low. Evidence can include:     * Rebuttal of a claim by the respondent (e.g., $1996$ Genocide Convention case).     * Exchange of diplomatic notes.     * Public statements by diplomats or state officials.     * The general conduct of the parties towards one another.

The Obligation to Settle Disputes Peacefully

• UN Charter $\text{Article 2, paragraph 3}$: Obliges all member states to settle international disputes by peaceful means in such a manner that international peace, security, and justice are not endangered.

• Obligation of Conduct vs. Result: This is an obligation of conduct, not result. States are required to try to resolve disputes peacefully, but they are not legally penalized simply because a resolution is not reached (some disputes remain "frozen" for decades).

• Relationship with $\text{Article 2, paragraph 4}$: The obligation to settle peacefully is the precursor to the prohibition of the use of force against the territorial integrity or political independence of any state.

• Customary International Law Status: In the $1986$ Nicaragua case, the ICJ concluded that the obligation to settle disputes peacefully is a rule of customary international law, meaning it binds all states regardless of treaty membership.

• Additional Frameworks: This obligation is reiterated in:     * The Charter of the Organization of American States (OAS).     * The Constitutive Act of the African Union (AU).     * The Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States ($1970$).

Non-Adjudicatory (Diplomatic) Modes of Settlement

• General Characteristics: These are non-binding methods where the parties generally retain control over the outcome.

• Negotiation:     * The most common and effective mode.     * Allows states to control the duration, publicity, and confidentiality of the process.     * Must be conducted in "good faith" per General Assembly Resolution $53/101$ ($1998$). This requires genuine attempt and due consideration of the other party's views (as noted in the $1969$ North Sea Continental Shelf cases).

• Good Offices:     * A neutral third party (state, individual, or group) facilitates communication between disputing parties.     * The UN Secretary-General has a specific role here under $\text{Articles 98}$ and $99$ of the UN Charter.     * Current Example: Pakistan acting as a facilitator between the United States and Iran.

• Mediation:     * The third party is more proactive and involved than in good offices, suggesting frameworks for settlement.     * Example: Richard Holbrooke's role in the $1990\text{s}$ Bosnian War, leading to the Dayton Agreements.

• Inquiry / Fact-Finding:     * Focuses on establishing factual evidence of events. The outcome is usually a non-binding report.     * Example: The investigation into human rights violations in Syria ($2011$).     * Example: The Joint Investigation Team (JIT) involving Australia, The Netherlands, Malaysia, and Ukraine regarding the downing of flight MH17 in $2014$. This resulted in the prosecution of four individuals.

• Conciliation:     * Combines elements of mediation and fact-finding. A commission assesses the dispute and provides non-binding recommendations.     * Example: The Timor-Leste and Australia maritime boundary dispute under the UN Convention on the Law of the Sea (UNCLOS).

Adjudicatory (Binding) Modes of Settlement

• General Characteristics: These result in legally binding decisions that the parties must follow.

• International Arbitration:     * Parties set up their own ad hoc tribunal and choose the arbitrators (typically three: one chosen by each party and a third agreed upon by both).     * Greater flexibility in choosing applicable laws and procedural rules.     * The "Arbitral Award" is final and binding.     * Methods of Consent: A "promissory clause" in a treaty (agreeing to future arbitration) or a "compromis" (agreeing to arbitration after a dispute arises).     * Example: The $2014$ South China Sea arbitration brought by The Philippines against China.

• International Court of Justice (ICJ):     * The principal judicial organ of the United Nations, replacing the Permanent Court of International Justice ($1922$).     * Composition: $15$ judges elected by the Security Council and General Assembly for $9$-year terms.     * Australian Judge: Hilary Charlesworth (elected in $2019$).

ICJ Jurisdiction and Functions

• Contentious Cases:     * Only states can be parties; the ICJ does not handle individual criminal responsibility.     * Based on $\text{Article 36}$ of the Statute of the Court.     * Sources of Law: $\text{Article 38, paragraph 1}$ (Treaties, Custom, General Principles).     * Decisions are binding only between the parties (e.g., a ruling between Australia and New Zealand does not bind Indonesia).

• Advisory Opinions:     * Legal questions referred by authorized UN bodies ($\text{Article 96}$).     * The General Assembly and Security Council have automatic authority; other organs/agencies need GA authorization and must stay within their specific mandate.     * Opinions are non-binding but carry significant legal and political weight.

Case Study: Chagos Archipelago Advisory Opinion

• Context: Mauritius was a UK colony. In the $1960\text{s}$, the UK separated the Chagos Archipelago from Mauritius before granting Mauritius independence in $1968$.

• The Questions: The General Assembly asked $(1)$ if the decolonization of Mauritius was lawfully completed and $(2)$ what the consequences are of the UK's continued administration.

• ICJ Ruling: The court concluded decolonization was NOT lawfully completed. It ruled the UK must return the islands to Mauritius and provide a right of return for the Chagosian people.

• Diego Garcia Base: A major US/UK military base is located on the archipelago. In recent negotiations, the UK agreed to return the islands while maintaining a lease/access to the Diego Garcia base for $99$ years. This base was recently used for defensive actions in conflicts involving Iran.

Questions & Discussion

• Question: Do you know if we have an Australian judge on the [ICJ] court?

• Response: Yes, we have Hilary Charlesworth. She is an Australian academic and has been a judge at the International Court of Justice since $2019$.

• Question: [Unclear student comment regarding Diego Garcia].

• Response: Yes, exactly, the Diego Garcia base. It is very important for the US, and recent news shows the UK gave access to the base for defensive actions. The treaty involves a $99$-year lease-like arrangement.