The peaceful settlements of disputes

1. The peaceful settlements of disputes 2nd December

2. The peaceful settlements of disputes • Definitions • Non-judicial methods • Judicial methods

3. The peaceful settlements of disputes • Dispute = discordance of 2 parties in a legal or factual point of view, a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons (PCIJ – Mavromatis case, 1923) • Legal dispute – when the merit (the value) of dispute of antinomic claims can be put in legal framework of existing rules • Existence (customary law) • Application in relation between parties (validity of contractual obligations) • Interpretation of the rule • Qualification, subsumption

4. The peaceful settlements of disputes • Principle of international law = states shall seek early and just settlement of their international dispute by peaceful means of their choice (1970 Declaration of principle of IL) • Art. 2 par.3 UN Charter: “all members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered” • Customary rules – the prohibition to use force

5. The peaceful settlements of disputes • Methods have been laid down already in 1899 and 1907 Hague Convention for the Pacific Settlement of International Disputes • Art. 33 UN Charter • The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

6. The peaceful settlements of disputes • Methods of settlements • Diplomatic methods (with or without a third participation) • Negotiations • Good offices • Inquiry commissions • Mediation • Conciliation • Legally binding methods • Arbitration • Judicial settlements

7. Diplomatic methods • Without a third participation • Diplomatic negotiations • With a third participation • Good offices • Inquiry commissions (differences of opinion in factual matters) • Mediation • Conciliation (conciliation report to suggest a settlement)

8. Legally binding methods - Arbitration • Successfully used in history (Alabama case 1872, UK v. USA) • „A procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted“ ILC definition • Different composition of arbitration tribunal (single arbiter or collective body - umpire) • Arbitration tribunal (compromise or compromissory clause – clause compromissoire) • Award – a binding decision • Hague Convention for the Pacific Settlement of Disputes 1899, 1907 • Permanent Court of Arbitration

9. Legally binding methods – Judicial Settlement • Distinction to arbitration ?? • Permanency • Institutionalization • Specialization (not case of ICJ – universality/ only for States) • International tribunal for Law of Sea • International criminal tribunals (ICTY, ICTR, ICC) • Regional tribunals for human rights (ECHR, IACHR) • ICSID • ICJ

10. International Court of Justice • UN Charter, Statute of ICJ • Predecessor PCIJ (League of Nations-Versailles Treaty Peace) • The Hague (Peace Palace) • Composition – 15 judges, ad hoc judges

11. ICJ Proceedings • Contentious cases • Only states • Advisory opinions • Official languages (French & English)

12. Jurisdiction of ICJ • Art. 36 ICJ Statute • 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. Universal jurisdiction ratione materiae The jurisdiction is facultative BUT • 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 concerning: • a. the interpretation of a treaty; • b. any question of international law; • c. the existence of any fact which, if established, would constitute a breach of an international obligation; • d. the nature or extent of the reparation to be made for the breach of an international obligation

13. Jurisdiction of ICJ/ Bringing of the case • Clause compromissoire • Compromise (case brought by special agreement) • Unilateral declaration recognizing the compulsory jurisdiction • Application followed by a consent of the 2nd party to the proceeding • Cases are brought • By the notification of the special agreement • By the written application addressed to the Registrar

14. Procedures • Written and oral phases • Hearings are public • Possibility to create an inquiry commission/body

15. Deliberation and decision 1. • The deliberations of the Court are in private and remain secret • Decision by a majority of judges present • Judgment states the reasons and names of judges who have taken part in the decision • Any judge is entitled to deliver a separate opinion • Declaration • Separate opinion • Dissenting opinion

16. Deliberation and decision 2. • The decision of the Court has no binding force except between the parties and in respect of that particular case • The judgment is final and without appeal • Request to interpretation in case of dispute on the scope or meaning • An application for revision (iudicium rescindens / rescissorium) • the discovery of some fact of such a nature as to be a decisive factor • unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence • 6 months subjective term/ 10 years objective term

17. Advisory opinions procedure • AO on any legal question at the request of the body authorized by UN Charter (art. 96 UN) – GA, SC, + other UN organs and specialized agencies authorized by GA • This question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law… • lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently been given by the Court. Therefore, the Court will, as it has done often in the past, “identify the existing principles and rules, interpret them and apply them . . ., thus offering a reply to the question posed based on law” • (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004) • (Legality of the Threat or Use of Nuclear Weapons, 1996)

18. Advisory opinions questions • “What are the legal consequences arising from the construction of the wallbeing built by Israel, the occupying Power, in the Occupied Palestinian Territory,including in and around East Jerusalem, as described in the report of theSecretary-General, considering the rules and principles of international law, includingthe Fourth Geneva Convention of 1949, and relevant Security Council and GeneralAssembly resolutions?” • “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

19. Advisory opinion • advisory opinions are delivered in open court • Are they binding ???