PEACEFUL SETTLEMENT OF INTERNATIONAL

DISPUTES
Peaceful methods of settling disputes:
Art. 2, par. 3 of UN Charter: All members shall settle their international disputes by peaceful means in
such manner that international peace and security, and justice are not endangered.
There is no obligation to settle disputes except in cases that might endanger peace and security.
But if a decision is made to settle disputes, the obligation is to settle them peacefully.
Classifications of peaceful means of settlement:
A. Non-judicial
Negotiation:
Preferred since States are hesitant to submit disputes to adjudicatory bodies.
No set rules:
An agreement to negotiate may be formalized via treaty or exchange of notes.
May be arms-length or face to face.
To be binding, parties MUST agree to it.
Preliminary step is good offices when a neutral 3rd party tries to bring 2 disputants together, after which
disputants look for a win-win solution via a give-and-take process.
Mediation:
Involves assistance of 3rd parties (approved by bother parties) who either act as bridge between parties who
dont meet OR may sit with the disputants to chair meetings, suggest solutions, etc.
Inquiry:
Fact-finding done by a designated group of individuals or institutions.
Resolves disputes based on questions of fact.
Conciliation:
A more formal technique whereby parties agree to refer controversies to a 3 rd party to make findings of fact
and recommendations.
Generally, parties are not bound by the recommendations. Merely clears the air.
B. Quasi-judicial
Arbitration
Binding settlement of a dispute on the basis of law by a non-permanent body designated by the parties.
The compromis darbitrage is agreed upon by the parties and sets out: (a) composition; (b) jurisdiction; (c)
rules of procedure to be applied.
States cannot be required to submit to arbitration UNLESS there is a previous agreement.
Different from judicial settlement since parties have a greater say in deciding the law applied, composition
of tribunal, process, etc.
3 types of arbitral agreement:
a. Arbitration clause incorporated in a treaty
b. Treaties solely to establish methods of arbitration (i.e. Hague Convention for Pacific Settlement of
Disputes)
c. Ad-hoc arbitral agreements (i.e. US-Iran claims)
Arbitral decisions
Applies international law UNLESS parties specify that some other law applies.
Arbitral decisions may be challenged if:
a. the arbitral body exceeds its powers
b. there was corruption on the part of a member of the body
c. failure to state reasons for the awards OR a serious departure from fundamental rule of procedure
d. the undertaking to arbitrate OR the compromis is a nullity

 Domestic courts may refuse to give recognition to arbitral awards under Convention on the Recognition and
Enforcement of Foreign Arbitral Awards:
a. agreement to arbitrate was not valid under applicable law
b. adverse party did not receive proper notice OR was not afforded opportunity to present its case
c. award is outside the terms of agreement to arbitrate
d. the constitution of the tribunal OR the arbitral procedure was contrary to the agreement or the law of the
state where arbitration took place
e. award has not yet become binding, has been set aside or suspended by a competent court where it was
made
f. under the law of the adverse party, the subject matter is not capable of settlement by arbitration
g. under the law of the adverse party, recognition or enforcement would be contrary to public policy
What is international dispute?
A disagreement on a point of law of fact, a conflict of legal views or interests between 2 persons

JUDICIAL METHOD
I.
International Court of justice (ICJ)
The United Nations principal judicial organ is the International Court of Justice. All
members of the United Nation are ipso facto parties to the Statute of the International Court
of Justice, however, it does not mean acceptance of the jurisdiction of the court. The
cardinal rule in international courts is that states cannot be compelled to submit disputes to
international adjudication unless they have consented to either before a dispute has arisen
or thereafter.
a. Compositions
The International Court of Justice is composed of 15 judges elected for a period
of nine years; no more than one national of any state may be a member of the
court. The court elects for a term of three years, the President and VicePresident of the Court. A Registry, headed by a Registrar, also assists the court.
The court may establish chambers composed of three or more judges. Such
chambers were constituted upon request of the parties for dealing with particular
categories of cases; for example, labour cases and cases relating to transit and
communications.
b. Jurisdiction
The International Court of Justice possesses two types of jurisdiction:
i.
Contentious Jurisdiction
Contentious jurisdiction involves States that submit the dispute by
consent to the Court for a binding decision.
ii.
Advisory Jurisdiction
Concerns questions referred to the Court by the general Assembly, the
Security Council or other organs and specialized agencies of the United
Nations. Those questions can only refer to legal questions arising within
the scope of their activities. Advisory opinions given by the International
Court of Justice are not binding.
Optional System / Clause
The jurisdiction of the International Court of Justice also exist by virtue of
declarations made by States, that they recognize as compulsory its jurisdiction in

relation to any other states accepting the same obligations in all legal disputes
concerning the matters specified in Article 36(2) of the ICJ Statute.
The States Parties to the present Statue may at any time
declare that they recognize as compulsory ipso facto and without special
agreement in relation to any of the statute accepting the same obligations,
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 obligations;
d. The nature or extent of the reparation to be made for the breach of an
international obligation.
Provisional Remedies
The International Court of Justice shall have the power to indicate any
provisional measures for the protection and preservation of the rights of either
party. The court indicates such measures by way of an order. Even if such order
does not have the character of a recommendation, it has a binding effect. The
court must give notice of the measures indicated to the parties concerned and to
the United Nations Security Council.
Intervention
A State, which is not a party to a dispute, can intervene in the case if it
has a legal interest, which may be affected by a decision in the case. However, it
is for the court to decide upon its request. Intervention by a third State does not
mean that, the intervening State once admitted becomes a party to the dispute.
However, with the consent of all the parties, an intervener may become a full
party to the proceedings.
Further, according to Article 63 of the ICJ Statute, a State, which is a
party to an international convention, can intervene in a case in which the
construction of the provision of the |Convention is at issue. The decision given by
the Court is equally binding on the intervening State.
Obligation to comply with decisions: Judgment, Revision and Enforcement
Judgment
The decision of the Court has no binding force except between the
parties. The judgment is final and without appeal. The Court may give a
declaratory judgment; it covers questions of jurisdiction and interpretation of
treaties.
Revision
A judgment can be revised on application made by a party if some fact, of
such nature as to be a decisive factor, was when the judgment was given,
unknown to the court and to the party clamming revision. However, the earlier
lack of knowledge of the fact on the part of the State seeking revision should not
be due to any negligence on its part. The application for revision can be made
only within six months of the discovery of the fact. However, no application for
revision may be made after the lapse of 10 years from the date of the judgment.
Enforcement of Judgment
A judgment is binding upon the parties in accordance with Article 2 and
Article 94 (1) of the United Nations Charter. In case of failure by one party to
comply with the obligations arising from the decision of the Court, the other

parties can have recourse to the Security Council for the enforcement of the
decision.
Advisory jurisdiction
United Nations Charter empowers the General Assembly and the Security
Council to make request for advisory opinion. At the same time, the General
Assembly may authorize other United Nation agencies to seek advisory Opinion.
The Registrar shall forthwith give notice of the request for an advisory opinion to
all states entitles to appear before the Court.
II.

UNITED NATIONS
The United Nations may be asked or may decide on its own authority to
take a hand in its settlement. This task is addressed principally to the Security
Council but may, when occasion requires to be taken over by the General
Assembly.
The Security Council shall have to jurisdiction to intervene in: (a) all
disputes affecting international peace and security; and (b) all disputes, which,
although coming under the domestic jurisdiction clause have been submitted to
it by the parties for settlement.
The Charter of the United Nations provides that the Security Council
shall, in the first instance, when it deems it necessary, call on the parties to settle
the dispute by any peaceful meanss in their own choice. In case they are unable
to adjust their differences by themselves through the peaceful methods
suggested, the Security Council may recommend appropriate measures or
methods of adjustment.

III.

OTHER MORE ACTIVE INTERNATIONAL COURTS

1. Court of Justice of the European Communities
2. The European Court of Human Rights
3. The Benelux Court of Justice and the Inter-American Court of Human Rights.
The International Criminal Court
CASES

IV.

B. HOSTILE METHODS (TRADITIONALLY ALLOWABLE COERCIVE MEASURES)

Where the amicable methods of settlement have failed States may resort to hostile
methods of settling disputes, which are as follows;
1. Severance of Diplomatic Relations
It is the cessation of normal diplomatic relations between two states, entailing the
recall of diplomatic representatives and the shutting of diplomatic missions.
a. Suspension of diplomatic relations involves withdrawal of diplomatic
representation but not of consular representation
2. Retorsion
It is the unfriendly but lawful, coercive acts done in retaliation for unfair treatment
and acts of discrimination of another State.

a. Forms;
i. Shutting of ports to vessels of an unfriendly state
ii. Revocation of Tariff concessions not guaranteed by treaty
iii. Display of naval forces near waters of an unfriendly State
3. Reprisal
Denotes any kind of forcible or coercive measures whereby one State seeks to
exercise a deterrent effect or obtain redress or satisfaction, directly or indirectly for the
consequences of the illegal act of another State which has refused to make amends for
such illegal acts.
a. Forms
i. Embargo the forcible detention or sequestration of the vessels and
other property of the offending State. (It maybe in the high
seas and the pacific)
ii. Boycott concerted suspension of commercial relations with the
offending State, with the particular reference to a refusal to
purchase goods.
iii. Pacific Blockade the prevention of entry to or exit from the ports of
the offending State of means of communication and
transportation for the purpose of compelling the latter to yield
to demands made by the blockading State.
iv. Non-intercourse suspension of all commercial intercourse with a
State.
v. Freezing of the assets of the nationals of the other State.
THE USE OF FORCE SHORT OF WAR
A. USE OF FORCE AND THREAT OF FORCE
1. The Use of Force
In recognizing the autonomy of individual states and their right to freedom of
coercion and to the integrity of their territory the use of force is expressly prohibited
under Art. 2 par. 4 of the Charter of the United Nation. which provides;
All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or any
other manner inconsistent with the purposes of the UN.

The prohibition is broader than the prohibition of war as it goes beyond the
protection of the territorial integrity and political independence of States as provided in
Art. 1 of the United Nations Charter as follows;
(1) To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace and
for the suppression of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace;
(2) To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples and to take other appropriate
measures to strengthen universal peace;
(3) To achieve international cooperation in solving international problems of an
economic, social, cultural or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language or religion; and
(4) To be a center for harmonizing the actions of nations in the attainment of
these common ends.
a. Cases:
i. Corfu Channel Case (1949) ICJ Rep.
The Court cannot accept UKs lines of defense and notion of selfhelp as the alleged right of intervention can only be regarded as the
manifestation of a policy of force which cannot find a place in
International Law. And that between independent States the respect for
territorial sovereignty is an essential foundation for international relations.

ii. Nicaragua v. US (1986) ICJ Rep.

The prohibition of the use of force is not just conventional but
customary international law, as incorporated in the UN Charter and
consented by the States. And to which consent serves as one of the
forms of expression of an opinio juris making it binding and imposes
obligations to all States.
2. The Threat of Force - the Charter also prohibits the threat of force.
a. Ultimatum the most typical form of threat of force, where the State to which it
is addressed is given a time-limit within which to accept the demands
made upon it and is told that if it rejects the demand, war will be declared
on it or certain coercive measures such as naval blockade, bombardment
or occupation of a given territory will be taken.

3. Exceptions: Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep.
a. Art. 2 (4) of the UN Charter (Principle of Jus Cogens)
The general prohibition on the use or threat of force is to be considered in
reference with the other relevant provisions as in Art. 51 and Art. 42 of the
Charter which does not precludes circumstances that may uphold and protect
individuals or of the state for the protection of their rights and to maintain
peace and security. This rule of prohibition also does not preclude
circumstances which may make way to humanitarian intervention.
i. Humanitarian Intervention
It is a means to prevent or stop a gross violation of human rights
in a state, where such state is either incapable or unwilling to protect its own
people, or is actively persecuting them.
Reasons for existence:
the UN Charter and the corpus of the modern international
law do not seem to specifically incorporate such a right;
State practice in the past two centuries, and especially
since 1945, at best provides only a handful of genuine
cases of humanitarian intervention
and on most
assessments none at all; and
the scope of for abusing such a right argues strongly
against its creation.
Intervention without the authorization of the Security Council
violates international law but if the Security Council determines that
massive violations of human rights occurring within a country
constitute a threat to the peace, and then calls for or authorizes an
enforcement action to put an end to these violations a humanitarian
intervention by military means is permissible. Absence of which
constitute breach of Art. 2 (4) of the UN Charter. In some instances,
certain conditions resorts to armed force are justified even absent any
authorization by the Security Council as follows;
Gross and egregious breaches of human rights amounting
to crimes against humanity;
If the crimes against humanity result from anarchy in a
sovereign state;
The Security Council is unable to take coercive action to
stop the massacres because of disagreement among the
Permanent Members or because one or more of them
exercises its veto power;
All peaceful avenues which may be explored have been
exhausted or no solution can be agreed upon by the
parties to the conflict;

 A group of states decides to try to halt the atrocities with

the support or at least the non-opposition of the majority of
member-states of the UN;
Armed forced is exclusively used for limited purposes of
stopping the atrocities and restoring respect for human
rights.
b. Art. 42 of the UN Charter
Provides for the lawful use of force, whereby the Security Council may
take military enforcement measures in conformity with Chapter VII of the
Charter.
c. Art. 51 of the UN Charter (Individual or Collective Self-Defense)
Recognizes the inherent right of individual or collective self-defense if an
armed attack occurs.
i. When can be exercise:
in response to an armed attack which observes the criteria of;
necessity; and
proportionality (proportionality principle) which must meet
the requirements of the law in armed conflict which
comprise in particular the principles and rules of
humanitarian law.
the State in question should have declared itself to have been
attacked; and
there is a request by the State which is a victim of the alleged
attack
ii. Protection of Nationals abroad can be defended as an aspect of selfdefense since population is an essential element of Statehood.
ex. raid of Entebee in Uganda and the US intrusion into
Stanleyville to rescue American students.