#3539 - International Disputes - Public International Law

International dispute

• Disagreement typically (not exclusively) b/w states w/consequences on international plane

• Distinguish: situation (Arab-Israeli problem) v Dispute (smth fairly specific)

• Timeline

• Kellogg Briand Treaty 1928

• Art 2(4) UN Charter – prohibition of use of force + Art 2(3) - obl. on states to settle disputes exclusively by peaceful means w/out endangering int. peace, security & justice

• Art 33 - obl. on states to seek in good faith & spirit of co-op early & equitable settlement of int. disputes via any of the following

• Types: diplomatic methods v adjudication:

1. Negotiation

• most widely used; normally, 1^st tried & successful

• agreement to negotiate can be controversial b/c acknowledgesparties’ standing + legitimacy of interests

• can co-exist with litigious proceedings in court

2. Mediation

• adjunct to negotiation + involves TPs

• distinguish from good offices – TP encourages to resume negotiations/acts as channel of communication

• mediator expected to advance new ideas/provide interpretation of existing ones

3. Inquiry

• process performed whenever court/other body attempts to solve a disputed issue of fact (broad) OR specific institutional arrangement selected to establish facts (narrow)

4. Conciliation

• parties set up a Commission which impartially examines of dispute + attempts to define terms of settlement suspectible to being accepted

• proposals aren’t binding no guarantee of success

5. Settlement by UN

1. GA

• wide ranging authority to make recommendations for settlement not binding

• political nature decisions acc to bloc allegiances rather than impartial judgements more suited to economic/political disputes

• critical role in matters of statehood & membership

2. SC

• Chapter VII

1. If all means have failed + danger of endangering peace, security = obl. on parties to refer dispute to SC (any other member may also do that)

• SC will recommend procedures/measures for settlement + terms of compromise but reluctant to make concrete recommendations in practice

• SC’s relationship w/ICJArt 36(3) – must bear in mind that legal disputes should as a general rule be referred to ICJ, though no power to force states’ submission to jurisdiction + can assume paramount resp. for such cases as it thinks appropriate

1. If SC takes concrete measures re dispute which falls within Art 39, ICJ will not grant interim measures

• Q’s of Interpretation of Montreal Conv. Application arising out of Lockerbie Incident – at request of UK, US & France, SC adopted Res. urging Libya to extradite 2 nat.’l for trial in Scotland for Lockerbie bombing; Libya argued it complied w/Conv. by trialling them + alleged UK, US in breach by seeking extradition + refusing to assist proceedings + asked ICJ to grant provision measures which it refused b/c of Res.

• Legal Consequences Case–SC declared South Africa didn’t fulfil its obl. under mandate for South West Africa/Namibia & terminated it. SA failed to withdraw illegal presence. Held: SC Res., even not adopted under Chapter VII, was legally binding upon MS + ICJ has no JR/appeal powers.

2. ICJ will grant interim measures where SC hadn’t reached determinative decision on rights to protection (Case Concerning Armed Activities in Congo)

3. Mere fact that UN bodies, incl. SC, are considering dispute, doesn’t bar ICJ from considering its legal aspects (Adv Op on Palestinian Wall)

6. Arbitration

• Voluntary – states consent on ad hoc basis/in advance of specific procedure as w/PCA, although submission of actual disputes may need further consent

• Useful: political/economic factors can feature but won’t affect the outcome in themselves

• Awards are generally binding (enforcement tends to be depend on good will)

• Parties have a degree of control

1. Set up the tribunal, usually on the basis of IL

2. Agree decision to be binding

3. Define the legal question

4. Specify basis for decision

5. Choose arbitrators

• Ad hoc or provided for by treaty arrangements

• Mixed arbitrations possible – state v individual/corp.; jurisdiction deriving from contract

7. ICJ

• Authority to decide cases by virtue of:

1. ICJ Statute

• Art 38(1) –function to decide in acc w/IL disputes submitted to it in acc with materials of IL (int. conv., judicial decisions etc)

• Art 38(2) – may at request of parties give judgment ex aequo et bono on the basis of law never used

2. State consent

• Binding judgment, no appeal

• Organisation see ICJ Statute

• Issues

8. Other peaceful means, incl. good offices

• In case of failure to reach early solution, obl. is to continue & consult on mutually agreed means obl. on parties to dispute & other states to refrain from any action which could aggravate the situation endangering int. peace & sec. + make settlement more difficult (= give peaceful methods a try + persevere as long as necessary + avoid aggravating action)

ICJ: Specific Issues

Access

• Art 36 ICJ St.

1. Contentious Cases–states + party to ICJ St

• Public organisations following Reparations for Injury Case, logic of excluding UN etc. isn’t self evident(SC,GA = states acting collectively!) BUT little demand + need amendment of Art 34

• Individuals if concern is influx of cases, counterproductive to open court up – other fora exist

2. Advisory Opinions – may give adv op on any legal quest. at request of whatever body authorised by/in accw/Charter to make such request

• SC, GA may request adv op on any legal question + GA may authorise other legal organs to do it but only within their competence (Art 96 UN Charter)

• Legality of Nuclear Weapons Case

• Court must satisfy itself that adv. op relates to a ‘legal question’ within the meaning of Art 65 of ICJ St. & Charter

• Political aspects/motives of the quest. won’t prevent it from adjudicating

• ICJ can, in acc with Art 65, refuse to give op. but only if compelling reasons exist

• Purpose of op – to offer advice to organs & institutions requesting opinion (not to settle disp.)

• Abstract nature of the question is irrelevant, as long as it is legal

• It’s not for court to decide whether requesting body needs the op. to discharge its function

• Request for Adv. Op. on Eastern Carelia–did F’s acts constitute interference in Russian’s internal affairs re dispute w/East Carelia.Held: consent never given by Russia (rejected so called League of Nations’ interference in dispute), so Op. couldn’t be given. Court, as member of UN, is asked to play a role in its work but Russia wasn’t member.

• Normally, does not pose problems

1. All UN members are ipso facto parties to ICJ Statute & have access to ICJ (Art 35(1))

2. Non UN members can be parties to ICJ St. (Art 35(1))

3. Non parties to ICJ St. can have access under conditions of SC (Art 35(2))(Albania in Corfu Channel Case)

4. Access can be permitted under special conditions in treaties (Art 35(2)) - independently of ICJ St. Membership or special SC conditions (Bosnia Herzegovina v Yugoslavia)

• NB: Art 35(2) controversy ICJ not consistent in specifying whether provision only applied to treaties in force at the time when ICJ St. came into force – if so, any treaty postdating it wouldn’t fall under this. 7 judges dissenting in Legality of Nuclear Weap. Case thought Art 35(2) applied to any treaty in force, regardless of when it came about confirmed in Bosnia Genocide Case (Serbia suspended from UN membership 1999-2000; i.e. couldn’t exercise rights as successor to Yugoslavia but admitted in 2000 on its own acc – argued not a party in that period to ICJ St. couldn’t be subject to jurisdiction; rejected)

Jurisdiction

• Before acting, ICJ must establish:

1. Dispute is legal

• Subject matter: can in principle be anything

• Forms substantive issue of proceedings:

1. State A seeks to bring a claim under Opt. Clause, state B insists there’s no dispute

• Definition of “dispute” (Mavromatis) – disagreement on point of law or fact, conflict of legal views/interests b/w 2 int. persons. View of the parties as to existence of dispute isn’t determinative = objective quest. for court in light of the facts

2. State B objects to assertion of competence by Crt. in contentious or adv. proceedings.

3. A particular clause makes it necessary to decide whether a dispute exists

2. It has jurisdiction to deal w/it

3. Jurisdiction isn’t fettered by any circumstance rendering the application inadmissible

• No compulsory jurisdiction

• States aren’t bound to use mechanisms/jurisdiction of any tribunal + can’t be compelled to undertake a settlement

• Whether consent has been validly given question of law to be resolved in light of facts (Monetary Gold Case) ICJ has power to determine own jurisdiction (but ‘self-judging reservations’)

• Acquisition of Jurisdiction

• 2 stages = consent + specific consent

1. Consent (Art 36(1))

1. Compromissory clause in Treaty – all matters specifically provided for in Treaty

• NB: jurisdictional clauses – can be reserved by state at signature stage, as long as

1. not explicitly prohibited

2. not contrary to purpose/object

2. Refby parties

3. Ref under UN Charter – matters specifically provided for in Charter (don’t exist!!)

2. Further manifestation of consent

1. Ad hoc

1. compromis– consent to particular case which has already arisen/its ref to ICJ done by special agreement documented in Treaty (most common!)

2. doctrine of forum prorogatum – consent to jurisdiction/case given post initiation of proceedings (one side refers to court other agrees consent deduced from the act )

• Corfu Channel Arbitration (UK v Albania) – Albconsentedby letter expressly accepting jurisdiction (later objected but held to have waived right to challenge admissibility)

• Mavromatis Palestine...