The Peaceful Settlement of Disputes

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The Peaceful Settlement of Disputes

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1. The Peaceful Settlement of Disputes

2. Images of Justice – Turkey 1959

3. Images of Justice – Liberia

4. Images of Justice – Giotto, Italy, 1305

5. The Peaceful Settlement of Disputes The meaning of ‘dispute’ The principle of peaceful settlement of disputes Diplomatic methods of dispute settlement negotiation good offices mediation inquiry Conciliation Settlement by the United Nations Settlement by regional organisations Arbitration Judicial settlement The International Court of Justice The Tribunal of the Law of the Sea other courts and tribunals

6. The meaning of ‘dispute’ The Permanent Court of International Justice described a dispute as “a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons” (Mavromatis Palestine Concessions Case, 1924). A distinction is sometimes made between legal and political disputes, or justiciable and non-justiciable disputes.

7. The principle of peaceful settlement of disputes Article 2(4) of the Charter of the United Nations provides that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”

8. The principle of peaceful settlement of disputes The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States provides that: “States shall 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”

9. Diplomatic methods of dispute settlement - negotiation The simplest and the most utilised method to resolve differences is negotiation; Negotiation means discussions between interested parties with a view of reconciling divergent positions; The parties are directly engaged; Successful negotiation requires a certain degree of mutual goodwill, flexibility and sensitivity.

10. Diplomatic methods of dispute settlement – good offices and mediation Good offices and mediation involve the use of a third party- a state, a group of states, an international organisation or an eminent individual – to encourage the disputing parties to come to a settlement. The use of third party to settle disputes between states can be traced back to ancient Greeks. Similar means were also employed in ancient China and in Arabia. Good offices: good offices are involved when a third party attempts to persuade the disputing parties to enter into negotiations and resolve their dispute; good offices end when negotiations start; good officer does not participate in negotiations; the use of good offices is not obligatory and the offer of good offices is not binding for the disputing parties;

11. Diplomatic methods of dispute settlement – good offices and mediation Examples: good offices of the US President in 1906 to end the Russian-Japanese war; good offices of the USSR in the India-Pakistan dispute over Kashmir in 1965; good offices of France encouraging negotiations to end the Vietnam war in the early 1970s; good offices of the UN Secretary General relating to Afghanistan in 1988 or to settle the Cyprus problem.

12. Diplomatic methods of dispute settlement – good offices and mediation Mediation: in comparison with good offices, a mediator is more active and actually takes part in negotiations suggesting terms of settlement to the disputing parties; a mediator has to enjoy the confidence of the disputing parties and must be impartial/neutral; no effective mediation can be provided without the consent from the disputing parties; the use of mediation is not obligatory and the suggestions made by mediators are not binding for the disputing parties; examples: mediation of the Pope in the Argentina – Chili territorial dispute over the Beagle Channel; mediation by the USSR between India and Pakistan in 1966; mediation of Algeria to end the hostages crisis between the USA and Iran; US mediation between Israel and Egypt in 1979 in Camp David; mediation of the UN Secretary General in Cyprus.

13. Diplomatic methods of dispute settlement – good offices and mediation The success of third party involvement in the settlement of international disputes depends on the influence and persuasive power of the third party. Good offices and mediation are not always easy to distinguish in practice.

14. Diplomatic methods of dispute settlement - inquiry Many international disputes involve questions of fact. Disputing parties may agree to appoint an impartial ad hoc body to produce a finding of disputed facts and to prepare the way for a negotiated settlement. The parties are not obliged to use inquiry or to accept the findings of the inquiry, byt almost always do accept them. Example: Dogger Bank incident between Russia and Britain in 1904.

15. Diplomatic methods of dispute settlement - conciliation Conciliation involves elements of mediation and inquiry. A third party (a commission set up by the parties) investigates the facts of a dispute and submits a report containing a suggested terms of a settlement. Conciliation is more formal and less flexible than mediation. Most conciliations were performed by commissions composed of several members but occasionally states may prefer a single conciliator. The use of conciliation, the report and recommendations made are not binding for the disputing parties. However, in practice, there some treaties providing for obligatory use of conciliation.

16. Settlement by the United Nations Under the Charter of the United Nations states are obliged to settle thei international disputed by peaceful means. Article 33 sets out the various methods states may pursue to settle their disputes. It requires the disputing parties to “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice”.

17. Settlement by the United Nations The Security Council, which has primary responsibility for the maintenance of international peace and security has the right to determine if a dispute or situation is likely to endanger international peace and security (Art. 34). In that case, the Security Council can call upon the disputing parties to settle their dispute. The Security Council may also recommend the terms of settlement if the disputing parties so request (Art. 38). The Security Council has employed a variety of diplomatic techniques to resolve international disputes. It has frequently called upon the parties of a dispute to negotiate, it has provided good offices, and has mediated in many international disputes.

18. Settlement by the United Nations The UN Secretary General may also play a role in resolving disputes between states. The UN Secretary General may alert the Security Council to situations which, in his judgment, are likely to threaten international peace and security. The Secretary General has provided good offices and mediation in many international disputes. The UN General Assembly may recommend measures to avert a situation which is likely “ to impair the general welfare or friendly relations among nations” The General Assembly may not take action if the Security Council is already seized with the matter.

19. Arbitration Arbitration has been used for a long time by states as a method of international dispute settlement. Arbitration is carried our by an arbitral tribunal set up ad hoc to resolve a specific dispute. In arbitration, the disputing parties choose the arbitrators, the location and procedure of the tribunal, and determine applicable law. This is done by a special agreement called “compromis”. Arbitral awards are binding for the disputing parties. The Permanent Court of Arbitration has been set up by the 1899 Hague Convention for the Pacific Settlement of International Disputes. Recent practice of the Permanent Court of Arbitration has been limited. There were only 43 arbitrations between 1945 and 1990.

20. Judicial Settlement: The International Court of Justice

21. The International Court of Justice The International Court of Justice is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). It began work in 1946, when it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922. It operates under a Statute largely similar to that of its predecessor, which is an integral part of the Charter of the United Nations.

22. The International Court of Justice Functions of the Court. The Court has a dual role: to settle in accordance with international law the legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

23. The International Court of Justice Composition The Court is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and Security Council sitting independently of each other. It may not include more than one judge of any nationality. Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. The Members of the Court do not represent their governments but are independent magistrates. The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law. The composition of the Court has also to reflect the main forms of civilization and the principal legal systems of the world.

24. The International Court of Justice The present composition of the Court is as follows: President Hisashi Owada (Japan) Vice-President Peter Tomka (Slovakia) Judges: Shi Jiuyong (China), Abdul G. Koroma (Sierra Leone), Awn Shawkat Al-Khasawneh (Jordan), Thomas Buergenthal (United States of America), Bruno Simma (Germany), Ronny Abraham (France), Kenneth Keith (New Zealand), Bernardo Sepúlveda Amor (Mexico), Mohamed Bennouna (Morocco), Leonid Skotnikov (Russian Federation), Antonio A. Cançado Trindade (Brazil), Abdulqawi A. Yusuf (Somalia), Christopher Greenwood (United Kindom).

25. The International Court of Justice Contentious cases between States Only States may apply to and appear before the Court. The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways: (1) by the conclusion between them of a special agreement to submit the dispute to the Court; (2) by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby. Over three hundred treaties or conventions contain a clause to such effect; (3) through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. The declarations of 67 States are at present in force, a number of them having been made subject to the exclusion of certain categories of dispute. In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which decides.

26. The International Court of Justice Pending cases Fourteen cases are currently pending: 1. Gabèíkovo-Nagymaros Project (Hungary/Slovakia); 2. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo); 3. Armed activities on the territory of the Congo (Democratic Republic of Congo v. Uganda); 4. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia and Montenegro); 5. Territorial and Maritime Dispute (Nicaragua v. Colombia); 6. Certain Criminal Proceedings in France (Republic of the Congo v. France); 7. Pulp Mills on the River Uruguay (Argentina v. Uruguay); 8. Maritime Dispute (Peru v. Chile); 9. Aerial Herbicide Spraying (Ecuador v. Colombia);

27. The International Court of Justice 10. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); 11. Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (request for Advisory Opinion); 12. Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v. Greece); 13. Jurisdictional Immunities of the State (Germany v. Italy); 14. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).

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