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					The Peaceful Settlement of
        Disputes
Images of Justice – Turkey 1959
Images of Justice – Liberia
Images of Justice – Giotto, Italy,
1305
        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
     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.
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”
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”
   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.
     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;
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.
        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.
   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.
   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.
    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.
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”.
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.
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.
                    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.
  Judicial Settlement: The
International Court of Justice
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.
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.
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.
The International Court of Justice
The present composition of the Court is as follows:
President Rosalyn Higgins (United Kingdom); Vice-
President Awn Shawkat Al-Khasawneh (Jordan); Judges
Raymond Ranjeva (Madagascar); Shi Jiuyong (China);
Abdul G. Koroma (Sierra Leone); Gonzalo Parra-
Aranguren (Venezuela); Thomas Buergenthal (United
States of America); Hisashi Owada (Japan); Bruno
Simma (Germany); Peter Tomka (Slovakia); Ronny
Abraham (France); Kenneth Keith (New Zealand);
Bernardo Sepúlveda Amor (Mexico); Mohamed Bennouna
(Morocco); Leonid Skotnikov (Russian Federation).
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.
The International Court of Justice
Pending cases
Twelve cases, all contentious, 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. Maritime Delimitation between Nicaragua and Honduras in
the Caribbean Sea (Nicaragua v.Honduras)
6. Territorial and Maritime Dispute (Nicaragua v. Colombia)
The International Court of Justice
7. Certain Criminal Proceedings in France (Republic of the
    Congo v. France)
8. Sovereignty over Pedra Branca/Pulau Batu Puteh,
    Middle Rocks and South
Ledge(Malaysia/Singapore)
9. Maritime Delimitation in the Black Sea (Romania v.
    Ukraine)
10. Dispute regarding Navigational and Related Rights
    (Costa Rica v. Nicaragua)
11. Pulp Mills on the River Uruguay (Argentina v.
    Uruguay)
12. Certain Questions of Mutual Assistance in Criminal
    Matters (Djibouti v. France)

				
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