Settlement OF Disputes and ICJ PDF

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Justice NotesSETTLEMENT OF DISPUTES Dispute defined by the Permanent Court of International Justice in Mavrommatis Palestine Concessions (1924): “a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons”  Disputes must be settled in a peaceful way a...

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Settlement of Disputes & the International Court of Justice Notes SETTLEMENT OF DISPUTES  

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Dispute defined by the Permanent Court of International Justice in Mavrommatis Palestine Concessions (1924): “a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons” Disputes must be settled in a peaceful way as this is a basic principle of international law and this is provided in: o Article 2(3) UN: “All Members shall settle their international disputes by peaceful means and in such a manner that international peace and security, and justice are not endangered.” o Article 33(1) of the UN Charter (dispute mechanisms): “negotiations, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement, or other peaceful means of their own choice” o Declaration on Friendly Relations, GA Res. 2625 (1970): “States shall… seek early a 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 own choice.”

Political/Diplomatic Methods o

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Negotiation: most common and often the first dispute mechanism; involves discussions between the interest parties with a view of reconciling divergent opinions or understanding the different positions  Georgia v. Russia (2011) – the ICJ declared what constitutes negotiations: “a genuine attempt by one of the disputing parties to engage in discussion with the other disputing party with a view to resolving the dispute”  There is no general obligation on states to negotiate but some treaties may contain a duty to negotiate  Article 238(1) Law of the Sea Convention (UNCLOS) (1982): “When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”  Some treaties reject proceeding to other forms of dispute settlement before the negotiation option has been exhausted  Article 22 of the International Convention on Elimination of Racial Discrimination 1965: “Any dispute between two or more States Parties… which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.  Negotiations must be conducted in good faith (with the intention to reach a good agreement). An infringement of the rule of good faith can include unjustified breaking off conversations; unusual delays and systematic refusal to give consideration to proposals or adverse interests  ICJ in North Sea Continental Shelf 1960: “the parties are under an obligation to enter negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiations as a sot of prior condition…” Mediation – the use of a third party to encourage the disputing parties to come to a settlement.  A mediator can be a trusted individual with diplomatic skills; an influential state; the UN Secretary General can play an important role by the exercise of his “good offices” function  The Hague Convention has laid down the rules governing mediation and declared parties of a serious dispute or conduct have a duty to resort to mediation or good offices as far as the circumstances allow before having recourse to arms

Settlement of Disputes & the International Court of Justice Notes o

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Conciliation – involves a third party conducting an independent investigation into a dispute and then submitting report on proposals for a settlement  The proposals are non-binding and may be followed by a negotiated settlement  There is no general obligation to initiate conciliation, but some treaties provide for compulsory conciliation e.g. Article 66(b) & Annex, Vienna Convention Law of Treaties 1969  Usually conducted by a commission of 3 or 5 members e.g. the Jan Mayen Island (1981) consisted of 1 Norwegian, 1 Icelander and 1 chair  These are formal proceedings where parties are presented by agents, there may be written and oral pleadings and hearing for witnesses Inquiry – relates to disputes where certain facts are in dispute as a result of states have conflicting accounts of a certain event. It can be set up on an ad hoc basis  A neutral third party is brought in to investigate and bring its own understanding of the facts.  Most successfully used in the Dogger Bank Inquiry 1904-1905: Russian warship mistook British fishing ships for Japanese torpedo boat during the Russo-Japanese war. This looked like Russia attacked Britain. Under the provisions of the Hague convention 1899, the inquiry held that Russian admiral had made a mistake but otherwise acted properly

Adjudicative Methods o

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Arbitration – involves independent tribunals making a settlement binding on parties based on law. Their decisions are called ‘award’ & they are created on an ad hoc basis – their composition, scope & procedure are determined in the arbitration agreement crated by the parties  Arbitration decisions are final but Article 35 ILC Model Rules On Arbitral Procure (1958) provides instances where the decision may be challenged and potentially nullified:  (a) That the tribunal has exceeded its powers  (b) That there was corruption on the part of a member of the tribunal  (c) That there has been a failure to state the reasons for the award or a serious departure from a fundamental rule of procedure  (d) That the undertaking to arbitrate or the compromis is a nullity Judicial bodies – decisions by judicial bodies are binding based on law; they are permanent bodies with set rules of procedure; the process is lengthy, but this enables it to deliver a final binding decision  Inter-state disputes can take place in the ICJ; International Tribunal for the Law of the Sea; WTO Appellate Body

Settlement of Disputes & the International Court of Justice Notes INTERNATIONAL COURT OF JUSTICE 

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Advisory opinions – article 65 of the statute: “the court may give an advisory opinion on any legal question” requested by the UN general Assembly, Security Council and other specialised agencies which fall within the scope their activities (article 96) o The court’s role is not to settle disputes but rather offer legal advice to the UN organs on how to exercise their function & these decisions are non-binding o Examples:  Legality of the use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion (1996) – the WHO requested an advisory opinion from the ICJ about whether the use of nuclear weapons by a State in war/armed conflict would be a breach of its obligations under international law including the WHO Constitution. The ICJ rejected WHO’s request and declared that there were 3 conditions required in order for jurisdiction for the court to be found: the specialised agency in question must be authorised by the GA to request opinions; the opinion requested must be a legal question and the question must be one arising within the scope of activities of the requesting agency. It was concluded that the legality of the use of nuclear weapons in the view of the health and environmental effect was not within the scope of activities of WHO  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996)the GA asked whether the threat or use of nuclear weapons in any circumstance was permitted under international law. The ICJ accepted the GA’s request as their work is not limited to specific areas therefore the legality of nuclear weapons in this instance was within the scope of the GA o The ICJ may decline an advisory opinion for “compelling reasons” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) (1950)) o The ICJ will often address the existence of a legal question and not the political motives behind it (Admissions (Advisory Opinion) (1948)) Contentious case – ICJ makes decision in order to settle disputes between parties (states) & the judgment is binding o Jurisdiction – article 36(1) ICJ: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”  Article 36(2) ICJ: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes” o Heads of jurisdiction:  SPECIAL AGREEMENT/COMPROMIS: where states have agreed in advance to go to court - this gives the court jurisdiction  COMPROMISSORY CLAUSE: states may have already agreed in a treaty that dispute about a clause should be dealt with by the ICJ. However, this settlement through negotiations first  Georgia v Russia 2011: the ICJ held that Georgia did not exhaust CERD Procedures to settle the dispute with Russia through negotiations before seeking legal actions and therefore the court did not have jurisdiction  COMPULSORY JURISDICTION – where states make declarations to accept the ICJ having jurisdiction if another state has a dispute with them (article 36(2): ‘Optional Clause’)  DISPUTE SETTLEMENT TREATIES – any dispute is sent to the ICJ giving them jurisdiction; differs from compromissory clause  FORUM PROROGATUM – where an applicant brings proceedings to encourage another state to give consent. If consent is gained from the other state, the ICJ has jurisdiction and if not, they won’t  Reciprocity – the court will only have jurisdiction under article 36(2) to the extent that both declarations of the two parties in dispute cover the same issue/issues.

Settlement of Disputes & the International Court of Justice Notes When the two states have made declarations one party can rely upon the other's reservation. If they show that the other state has not accepted jurisdiction in the case at hand then the declaration was not reciprocal and the court has no compulsory jurisdiction - Norwegian Loans (France v Norway) (1975) – Norway was entitled to invoke the French reservation to defeat the jurisdiction of the court o There are limits to consent found in the Monetary Gold rule - the court will decline jurisdiction if the dispute centres on another state and the subject matter of the dispute involves a third-party state which is not subject to the proceedings  East Timor (Portugal v. Australia) 1995: the court held that it could not rule on the lawfulness of the conduct of Australia, who was not a party to the case regardless of the nature of the obligations in question (i.e. erga omnes obligations with regard to self-determination) Evidence – the ICJ is flexible in regard to the introduction of evidence; usually the state themselves provide the necessary evidence to support their claims; the court cannot compel evidence or subpoena witnesses & there is no equivalent to contempt of court o Article 49 of ICJ: “The Court may, even before the hearing begins, call upon agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.” o Article 44 allows the court to serve notice for witness (with state’s agreement) & the court can make on-visits (with state’s agreement) o Article 50 permits the court to call on experts for opinions or individuals to undertake enquires o The court can draw from media reports  Nicaragua Case 1986 provided that the court can use media reports provided that caution is shown and more than one media source should be used o Standard of proof – the court’s standard of proof is not fixed and so it will vary with the nature of the particular issue of fact  Genocide Convention (Bosnia v Serbia) 2007 - the court ruled that it would need to be fully convinced that allegations of crimes of genocide or other enumerated acts have been committed and have been clearly established. They required “a high level of certainty appropriate to the seriousness of the allegation” rather than the normal standard of proof for crimes (i.e. beyond all reasonable doubt) 

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