International Law and Diplomacy Module 10: Peaceful Settlement of Disputes between States

Peaceful Settlement of Disputes Between States

• Nature of Disputes:

  • Disputes between states are described as an inevitable part of international relations.
  • They arise from claims and counter-claims concerning matters of fact, law, and policy.
  • Historically, these disputes have frequently led to armed conflict.

• The UN Charter Framework:

  • Article 2(4): Explicitly prohibits the use of force in international relations (subject to specific exceptions to be discussed later).
  • Article 2(3): Imposes a requirement on all member states to "settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."
  • Article 33(1): Provides a non-exhaustive list of the standard methods for the peaceful settlement of disputes:
    • Negotiation.
    • Enquiry.
    • Mediation.
    • Conciliation.
    • Arbitration.
    • Judicial settlement.
    • Resort to regional agencies or arrangements.
    • Other peaceful means of their choice.

• Challenges in Dispute Settlement:

  • Sovereignty Concerns: In the past, states have shown significant reluctance to limit their sovereignty by submitting in abstracto (in a general, non-specific sense) to binding third-party settlements.
  • Participation and Compliance: Even if states agree to a specific mechanism, they may not necessarily utilize it in a given case or abide by the resulting decision. However, once a state accepts the jurisdiction of a tribunal for a concrete case, they usually comply.
  • Enforcement Lacuna: Unlike domestic legal systems, international law lacks an effective general method to enforce the decisions of international courts and tribunals.

Diplomatic Methods of Dispute Settlement

• Negotiations:

  • General Role: The vast majority of international disputes are settled through direct diplomatic negotiations.
  • Limitations:
    • They are not always successful because they lack neutral third parties.
    • There is no impartial machinery to resolve disputed questions of fact.
    • Treaty clauses often designate negotiation merely as the first preliminary step in a multi-stage dispute settlement procedure.

• Good Offices and Mediation:

  • Tertiary Involvement: Third states, international organizations, or eminent individuals may assist.
  • Good Offices:
    • Defined as acting as a "go-between."
    • The third party tries to persuade states to enter negotiations and passes messages and suggestions back and forth.
    • The function ends once negotiations actually commence.
    • Example: Switzerland, utilizing its "permanent neutrality," frequently acts as a protecting power. Examples include representing the interests of the United States in Cuba and in Iran.
  • Mediation:
    • The mediator is more active than a provider of good offices.
    • They participate in the negotiations and may suggest specific terms of settlement (a characteristic often shared with conciliation).

• Fact-Finding and Inquiry:

  • Terminology: The terms "fact-finding" and "inquiry" are largely interchangeable in the context of international disputes.
  • Mechanism: States agree to appoint an impartial body to carry out an inquiry. This body can be ad hoc (established for a specific case) or a permanent body established in advance by agreement.
  • Objective: To produce an impartial finding of disputed facts to reduce tension and pave the way for a negotiated settlement.
  • Outcome: Parties are not legally obliged to accept the findings of the inquiry, but they almost always do in practice.

• Conciliation:

  • Verbatim Definition (Institut de Droit International, 1961): "A method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them or of affording the Parties, with a view to its settlement, such aid as they may have requested."
  • Structure: Can involve a multi-person Commission or a sole conciliator.
  • Historical Context: Since the Second World War, the role of conciliation in bilateral treaties has diminished, though it persists, particularly in the practice of Switzerland, which is a major champion of the method.

Advantages and Disadvantages of Mediation and Conciliation

• Advantages:

  • Flexibility: They are more flexible than arbitration or adjudication.
  • Autonomy: They leave more room for the wishes of the involved parties and the initiatives of the third party.
  • Package Deals: These methods facilitate complex "package deals" more easily than court rulings.
  • Face-Saving: Parties can avoid losing prestige by appearing to accept the proposal of a third party voluntarily.
  • Control: States remain in control of the ultimate outcome.
  • Precedent: No legal precedent is created for future disputes.
  • Practicality: Proceedings can be secret; the third party does not have to provide legal reasons, focusing primarily on practical issues.

• Disadvantages:

  • Consent Requirement: It is difficult to start these procedures without the goodwill and consent of the opponent.
  • Systemic Impact: They contribute much less to the development of international law compared to arbitration or adjudication, as the focus is on settlement rather than substantive law.

Legal Methods of Dispute Settlement

• Overview:

  • If non-binding methods fail, treaties may provide for arbitration or judicial settlement.
  • Both methods result in a decision that is legally binding on the parties.
  • Both require the consent of the parties involved.

• Adjudication (Judicial Settlement):

  • Performed by a standing (permanent) court.
  • Judges are pre-selected.
  • Procedures are fixed.
  • The applicable law is predetermined.

• Arbitration:

  • More flexible than adjudication.
  • Parties have choices regarding the seat of the tribunal and the appointment/selection of arbitrators (including their qualifications).
  • Parties regulate the power of the tribunal through formulating terms of reference called the compromis.
  • History: Long used by states; considered highly effective due to the massive variety and number of disputes settled.
  • Current Trend: Recent international bilateral and multilateral treaty-making tends to provide for arbitration as the primary method of dispute settlement.

The International Court of Justice (ICJ)

• Status and Location:

  • Seated at the Peace Palace in The Hague.
  • One of the six principal organs of the United Nations (UN).
  • Occupies a special position as an independent court; it is not integrated into the hierarchical structure of other UN organs.

• Functions:

  1. Contentious Jurisdiction: To settle legal disputes submitted to it by states in accordance with international law.
  2. Advisory Jurisdiction: To give advisory opinions on legal questions referred to it by authorized international organs and agencies.

• Structure and Composition:

  • Consists of $15$ judges.
  • $5$ judges are elected every $3$ years to hold office for a term of $9$ years.

• Contentious Procedure:

  • Parties: Only states may be parties in contentious proceedings.
  • Jurisdiction: Comprises cases referred by parties and matters provided for in the UN Charter or treaties/conventions in force.
  • Phases:
    1. Written Phase: Parties file and exchange pleadings.
    2. Oral Phase: Public hearings where the Court is addressed by agents and counsel.
    3. Deliberation: The Court deliberates in private.
    4. Judgment: Delivered at a public sitting. Judgments are final with no appeal.

• Enforcement and Advisory Opinions:

  • Article 94 of the UN Charter: Authorizes the Security Council to "make recommendations or decide upon measures to be taken to give effect to the judgment." Note: These powers have not yet been used to enforce a judgment.
  • Advisory Opinions: These are consultative and not binding on requesting bodies.
    • States cannot request advisory opinions; only international organizations can.
    • Currently, $6$ UN organs and $16$ specialized agencies are authorized to request them.

Dispute Settlement under the Law of the Sea Convention (UNCLOS)

• Introduction: The $1982$ Law of the Sea Convention has been in force since $16$ November $1994$.
• System: An elaborate system that usually leads to a binding third-party decision. Arbitration is the default procedure if other mechanisms fail.
• Article 287 Options: Parties have four choices for compulsory settlement procedures via written declaration:
  1. The International Tribunal for the Law of the Sea (ITLOS) in Hamburg.
  2. The International Court of Justice.
  3. An arbitral tribunal established in accordance with Annex VII to the Convention.
  4. A special arbitral tribunal for specifically categorized disputes: fisheries, protection and preservation of the marine environment, marine scientific research, or navigation and pollution by vessels.

Conclusions on State Reluctance

• General Enthusiasm: Experience indicates that the acceptance of international adjudication by states is not enthusiastic.

• Barriers to Acceptance:

  • Newly independent states may hesitate to accept unfamiliar commitments.
  • Distrust of arbitration and judicial settlement in general.
  • Defect in Law: The rule that jurisdiction depends on state consent is a defect, though not considered fatal.
  • Unpredictability: States believe judicial decisions are often unpredictable, especially when the law is uncertain.

• The Role of the Judge and Precedent:

  • When law is uncertain, states fear a judge may be influenced by political considerations, affecting impartiality.
  • Decisions act as precedents for future cases, increasing the stakes.
  • Conflicting Views: Some states distrust the ICJ because they believe it changes the law too much; others distrust international courts because they find them too conservative.

• Alternative Outcomes:

  • Disputes not referred to courts are usually settled via political means (negotiation or mediation).
  • Alternatively, disputes may result in a stalemate. States are described as "practically immortal" and can afford to wait for changes in the law or the balance of power to negotiate more favorable terms later.

Questions & Discussion

• Video: Catalonia leader asks for international mediation
  • Source: https://www.youtube.com/watch?v=opCiXvneuXw
• Video: What is the International Court of Justice? The Role and Activities of the ICJ
  • Source: https://www.youtube.com/watch?v=DME-wfbt08c
• Video: U.S. Iran Claims Tribunal
  • Source: https://www.youtube.com/watch?v=UNNhLsQT0m8
• Video: The limitations of the UNCLOS Dispute Settlement System
  • Source: https://www.youtube.com/watch?v=aLmwW06wmnw