Ramil P.

Ranillo Public International Law

Atty. Jose S. Samson March 6, 2013

International dispute settlement is concerned with the solutions and institutions which are used to solve international disputes between States and or international organizations peacefully. International disputes can be solved either by use of force (coercion) or by Peaceful Settlement. Solutions for peaceful settlement of international disputes are diplomatic negotiation, tender and exercise of good offices, mediation, inquiry, conciliation, arbitration, judicial settlement by ICJ, reference to regional agencies or arrangements, or other peaceful means of their own choice (Art. 33, UN Charter) Dispute in international law is a technical term which means a disagreement on a point of law or fact, a conflict of legal views and interests between two persons The resolution of a dispute must have some practical effect on the relations between the parties. Eg.In the case of Mavrommatis and Great Britain, the dispute was at first between a private person and a state. Subsequently, the Greek government took up the case. The dispute entered a new phase, the international law and became a dispute between the states. The role of UN in the settlement of international disputes is to bring about the settlement of international disputes by peaceful means and in conformity with the principles of justice and international law. Art.2(3) 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 key provisions in the UN charter are the following: CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTES Article 33 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. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Article 36 The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. Article 37 Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. Article 38 Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

Peaceful means of settling disputes: 1) Non-judicial or diplomatic methods NEGOTIATION - discussion by the parties of their respective claims and counterclaims with a view to the just and orderly adjustment. For a negotiated settlement to be legally binding, the parties must agree to it. A.

Negotiation is a preferred vehicle rather than to submit their disputes to an adjudication - No set of rules for negotiation - It may take place at arms length or face to face - Agreement to negotiate may be formalize in a treaty or in a simple exchange of notes - Discussions may be oral or written Preliminary step to negotiation might be: GOOD OFFICES (quiet diplomacy)- method by which a neutral 3rd party attempts to bring the disputing states together in order that they may be able to discuss the issues in contention. It involves entrusting the dispute to personalities with special qualification on whom both parties agree. Eg. Heads of State or the Secretary General of UN or by designated negotiators, permanent envoys. Essentially, negotiation is a give-and-take process looking for a win-win solution.

B.

MEDIATION- 3rd party actively participates in the discussion in order to reconcile the conflicting claims. Suggestions of mediator are merely persuasive. Mediator acts as bridge between the parties, who do not meet, or who may sit with the disputants to chair meetings, suggest solutions, cajole (to persuade with flattery). Mediator can advance his own proposals and to interpret as well as to transmit, each partys proposal to each other. The mediator must be approved by both parties.

Eg.In 1978 US President Jimmy Carter mediated between Egypt and Israel, and achieved the Camp David Agreement in March 1979. Under this agreement Egypt recognized diplomatically Israel and in return Israel withdrew its troops from Sinai Peninsula, occupied by Israel in the 1967 war. C. INQUIRY - It is simply an ascertainment of the pertinent facts and issues in a dispute. An investigation of the points in question with the view that this will contribute to the solution

of the problem. The fact finding may be designated to a group of individuals or institution. It frequently resolves disputes based solely on questions of fact. UN is empowered to call the parties concerned to explain their position on a dispute and may attempt to narrow their differences, reconcile their opposing views and if necessary recommend a just and fair solution. Eg.US and Chile in 1992-1993 set up an Enquiry Commission to determine the amount of damages to be paid to US by Chile for allegedly killing two persons in Washington by Chilean intelligence officers and the dispute was settled. Security Council appointed a committee to determine the exact facts connected with the Corpu Channel dispute in 1947. D. CONCILIATION- is a more formal technique whereby parties agree to refer controversies to an individual, a group of individuals or an institution to make findings of fact and recommendations. 3rd party also actively participates in order to settle the conflict. Suggestions of conciliator are also not binding. As distinguished from mediation, the services of the conciliator were solicited by the parties in dispute. As a rule, parties do not agree to be bound by recommendations. But it clears the air. It is a method that combines the characteristic of both inquiry and mediation. Mediation ordinarily carried out by one person Conciliation- is usually conducted by an organization (ASEAN, NATO) or by a group of States (Malaysia, Bangladesh and Pakistan were given the task by OIC to broker peace between Iran and Iraq war during the 80s) 2. QUASI-judicial method E. ARBITRATION- process by which the solution of a dispute is entrusted to an impartial tribunal, a non-permanent body usually designated by the parties themselves under a charter known as the compromise d arbitrage. States cannot be

required to submit to arbitration unless there is a previous agreement making arbitration compulsory. In turning to arbitration, a line is crossed between diplomatic methods of settling disputes and adjudication. The proceedings are essentially judicial and the award is, by previous agreement, binding on the parties. Arbitration allows the parties to constitute and to operate their own court. The laws to be applied and the composition of the arbitral tribunal, the process becomes more flexible. 3 Types of Arbitral Agreements: a. Arbitration clause it is incorporated as part of a treaty. This is found in commercial treaties. b. Treaties whose sole function is to establish methods for the arbitration of disputes. Eg. The Hague convention for the Pacific Settlement of Disputes c. Ad-hoc arbitral agreements Eg. Agreement for the settlement of claims between the US and Iran (1981). Advantages of arbitration 1. It is more conclusive than the other forms of non-judicial dispute settlement decisions of arbitral panels are binding upon the parties; 2. Disputing parties retain control in the arbitration process because they appoint the arbitrators; 3. Parties may designate the procedures and the laws to be applied; 4. It is less formal and less contentious (likely to cause disagreement) than adjudication; 5. Both arbitration proceedings and decisions can be kept confidential, advantage regarding sensitive matters. Disadvantages of arbitration 1. If the parties do not specify procedures, arbitration may be a very cumbersome and time-consuming process. 2. Panels do not have the authority of courts to conduct discovery or subpoena witnesses; 3. Parties themselves pay for the entire cost of the arbitration

Compromise darbitrage it is an agreement expressing the consent of the parties to the dispute to submit to arbitration and outlining the constitution of the arbitral panel. The rules of procedure, the issues to be decided and the binding nature of the arbitral decision. Valid defenses to the enforcement of an arbitral award: The New York Convention adopted in June 10, 1958. 1. parties to the agreement were, under the law applicable to them, under some incapacity; 2. agreement is not valid under the law agreed upon by parties, or failing any indication, under the law of the country where the award was made; 3. party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; 4. the award deals with a difference no9t contemplated by or not falling within the terms of the submission to arbitration, it contains decisions on matters beyond the scope of the submission to arbitration; 5. the composition of the arbitral authority or procedure was not in accordance with the agreement of parties; 6. award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which the award was made; 7. the subject matter of the difference is not capable of settlement by arbitration under the law of that country in which the award was made; 8. the enforcement of the award would be contrary to the public policy of that country. Judicial settlement of dispute INTERNATIONAL COURT OF JUSTICE The court shall compose of body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualification required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law. Judicial settlement is a decision by a Court. In the UN system, ICJ is an integral part of the UN. And the court, with the seat at The Hague (the Netherlands) decides inter- state disputes. States must agree to refer to the court for decision.

Jurisdiction- all cases which the parties refer to it and all matters specially provided for in the charter of UN or in treaties and conventions in force. Limitations of ICJ only states may be parties in contentious cases before the court - consent of the states is needed for the court to acquire jurisdiction As a rule, the ICJ can operate only on the basis of the consent of States to its jurisdiction. Such may take the form of a special agreement between States to submit an existing dispute before the Court (i.e. compromis). However, under the 'optional clause' a State may declare in advance that they recognize the jurisdiction of the Court as compulsory ipso facto and without need of special agreement, in relation to any other State accepting the same obligation, in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law c. existence of any fact which, if established, would constitute breach of international obligation; and d. Nature or extent of reparation to be made for breach of international obligation. STARE DECISIS does not apply to the ICJ. Under the statute of the Court, previous decisions have no binding force; in practice, however, the Court always takes past decisions into account. To decide a case EX AEQUO ET BONO -It is to rule in justice and fairness -equity overrides all other rules of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agreed. INTERVENTION Art. 62 - Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case; it may submit a request to the court to be permitted to intervene. Other more active international courts

Court of Justice of European Communities (ECJ) Supreme Court of European Union. It has its seat in Luxemburg. Natural person may bring action if he addresses the act of the community institution. Benelux Court of Justice established by Belgium, Netherlands and Luxemburg modeled after ECJ. Functions are promoting uniform interpretation of common legal rules Eg. Trademarks ,penalty, motor vehicle insurance, movement of persons and protection of birds. Inter-American Court of Human Rights The International Criminal Court