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Miss E.

Siangandu

UNIT 12: THE


PEACEFUL
SETTLEMENT OF
DISPUTES

Principles of Peaceful
Settlement of Disputes
between States
A.
.
.

Charter of the United Nations (UN)


Purposes of UN Article 1, Para 1)
To maintain international peace & security.to
take effective measures for the prevention &
removal of threats to peaceto bring about
by peaceful means & in conformity with principles
of justice & international law adjustment or
settlement of international disputes.

Art 2, Para 3 UN Charter


All members shall settle their
international disputes by peaceful
means in a manner that international
peace & security and justice, are not
endangered

Art 33, Para 1


The parties to any dispute, the continuance of
which is likely to endanger the maintenance
of international peace & security, shall first of
all seek a solution by negotiation, inquiry,
mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or
arrangements or other peaceful means of
their own choice.

The principle of the peaceful settlement


of dispute was reaffirmed in a number of
General Assembly Resolution;
Resolution 2627 (1970)
Res 2734 (1970)
Res 2625

Negotiation

Negotiation is the simplest & most utilised form of


dispute settlement.
Consists of discussions between the interested
parties with a view to settling conflicting opinions.
It does not involve any third party.
Most satisfactory means of dispute settlement as
parties are directly involved.
Hence parties between themselves decide how
best to resolve their differences ( See Judge
Nervo, Fisheries Jurisdiction case, ICJ Reports,
1973, pp.3,45;

Inquiry

Where there are differences of opinion


on factual matters underlying a dispute
between parties a commission of inquire
can be conducted to determine precisely
the facts in contention.
Provisions for such inquiries were first
explained in the 1899 Hague
Conference as an alternative use of
arbitration.

Mediation

Consist of the use of the 3rd party


Mediation involves active involvement in
the negotiation process of the 3rd party
itself.
A mediator is a person approved by both
parties both parties to a dispute
Object for mediator to persuade the parties
to the dispute to reach a satisfactory terms
of its conclusion by themselves.

Good offices

Preliminary to direct negotiation between


parties
Consist of the use of the 3rd party.
Good Offices involves a Third party who
attempts to influence opposing side to enter
into negotiations.
object of method is to persuade the
parties to the dispute to reach a satisfactory
terms of its conclusion by themselves.

Examples of good offices

US Secretary of State in days preceding the


UKs reoccupation of the Falkland Islands
Role of UN & OAU (AU) in the dispute
between Congo & Uganda dispute
concerned acts of aggression & intervention
1999/2000.
UN Sec. General role in dispute between
Soviet Union, Pakistan & Afghanistan
concerning presence of soviet troops in
Afghanistan.

Conciliation

Process involves a 3rd party investigations of the


basis of the dispute & the submission of the
report consisting recommendations for a
settlement.
Procedure involves components of both inquiry
& mediation.
Conciliation reports are only recommendations
and do not constitute binding decisions thus
differ from arbitration awards.
Procedure is used as one of dispute settlement
by 1982 Convention on the Law of the Sea.

Arbitration - I

Distinction between arbitration & judicial


settlement lies in the nature of the adjudicating
body & not the nature of the procedures
Both methods provide a settlement of disputes
the decision is binding on the parties
ILC has defined arbitration as the procedure
for the settlement of disputes between states
by a binding award on the basis of law and as
the result of an undertaking voluntarily
accepted

Arbitration - II

The Permanent Court of Arbitration was


established by The Hague conventions of
1899 & 1907 it continues to function til
date
It is neither permanent nor a court, it
consists essentially of a panel of
arbitrators
Each party to the convention can appoint four
individuals of recognised competence in
international law.

Arbitration Judicial means of


dispute settlement

Arbitration awards have contributed


significantly to the development of many
areas of IL i.e.
The US-Mexican Claims Commission
1926 state responsibility.
Arbitral award in the Island of Palmas
Case (1928)- acquisition of territory

Therefore Arbitration ;

Is a procedure for settlement of legal


disputes- achieved by application of
rights & duties under IL.
Arbitration awards are legally binding on
the parties.
In arbitration proceedings parties
choose the arbitrator or judge.

The International Court of


Justice (ICJ) - I

World court - Permanent Court of


International Justice (PCIJ) &
international Court of Justice (ICJ).
PCIJ established in 1920
was superseded by the International
Court of Justice (ICJ) in 1946
Work of ICJ is a continuation of the
PCIJ.

Not the primary means of settlement of


disputes between states
Principle judicial organ Art 92 UN
charter
ICJ is governed by the UN charter
chapters XIV, articles 92-96, Its own
statute & the rules of procedure adopted
by judges & amended from time to time

World Court - ICJ

The crts function is two fold:


1. To assist in the resolution of disputes
between states
2. To provide advisory opinions to
specified international organisation on
certain legal issues

The crt has no express task of providing


for judicial review of the acts of
international organisations through this
function is implicit in its advisory
capacity & may be utilised in its
contentious function.

Composition ICJ

Composed of fifteen members


Elected for a period of nine years and
can be re-elected (Art 13 Statute of ICJ.
Judges of the court are elected by the
Assembly and Council Art 4 of the
statute of the international court of
justice.

Art 96 of the UN Charter recognises the


right of the GA or the SC & other
authorised bodies to seek advisory
opinions from the I.C.J

Art 34 of the statute of the I.C.J. only


permits states to be part to be parties to
contentious proceedings before the
court excludes the possibilities of direct
participation of the Union other
international organisations in cases

Composition cont.

UN-SG draws up a list of candidates nominated by


national groups
From the list the GA & SC elect judges on the
basis of an absolute majority
Elections are governed by two criteria ist Art 2 of
the statute;
Judges are supposed to be persons of high moral
character, who possess the qualifications required
in their respective countries for appointment to the
highest office, or are juries consultants of
recognised competence in international law

2nd criteria Art 9 of the statute the body


of judges as a whole should represent
the main forms of civilization and the
principal legal systems of the world
In practice election of judges is based
upon a degree of equitable
geographical distribution

The essential aim of the ICJ has been to


secure a body of independent judges
thus art 2 provides for election
regardless of nationality.
Note that a judge is not debarred from
sitting on a particular contentious case
within which the state of his nationality is
a party

In fact art 31 of the statute entitles the


other party who does not have a judge of
its nationality on a court to nominate a
judge ad hoc
The political desirability of allowing the
ad hoc judge as an incentive to states to
use the court.
But it is scarcely consistent with the
notion of the crt as an independent body

Ad hoc judges appointed in many of the


crt;s contentious cases, only very rarely
has an ad hoc judge voted against his or
her own state
Independent of judges is assumed to be
strengthened by the security of tenure
They are elected for 9 years
They is no retiring age

Judges can only be subject to dismissal only by


unanimous decision of other members of the Crt (Art
18).
Judges are not allowed engage in any political or
administrative function or in any other occupation of a
professional nature (art 16)
This however has not prevented the court from
allowing judges to engage in other judicial activities
such as sitting as party appointed arbitrators in
ICSID International Centre for the Settlement of
Investment Disputes
(ICSID) & other arbitrations.

Art 17 excludes from a particular case any


judge who has acted in that case as agent or
counsel;
This rule has operated to exclude judge
Higgins from two cases: The UK case against
Libya concerning the question of Interpretation
of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie & Slovakias
application for an additional judgement in the
Gabcikovo- Nagymaros case

The attempt to ensure independence


means that judges must be adequately
paid as judges
They are paid a pensionable, tax free
salary not that ad hoc judges are paid
out of the funds of the crt & not parties

Access to the CourtContentious cases

1.

Art 34 (1) of the statute only states may


be parties in cases before the court
States that can appear before the court
include;
members of the UN who under art 93(1)
of the charter are ipso facto parties to
the statute of the court 2. non UN
members who desire a permanent
association with the crt

2. Art 93(2) become parties to the statute on


condition to be determined in each case by
the GA on recommendation of the SC as was
the case on conditions imposed on
Switzerland in 1947 &
Liechtenstein in 1950 involved acceptance
of the statute, of the obligations of UN
members under art 94 of the charter & of
contributing an equitable amount to the
expenses of the court

3. non UN members who wish to


appear before the crt as parties in a
particular dispute or class of disputes
but without becoming parties to the
statute. (possible under art 35(2) of the
statute).
International organisations have no
locus standi as parties in the contentious
case before the court.

Access to the Court- 2.


Advisory Jurisdiction

Art 65 of the statute provides that the


court may give an advisory opinion on
any legal question at the request of
whatever body may be authorised by or
in accordance with the charter of the UN
to make such a request

Individual states cannot request an


advisory opinion, their rights are limited
to supplying information under Art 66 of
the statute.

Advisory Jurisdiction
cont.

No international Organisation has locus standi


before the crt as a party to a contentious case
Only 34(1) only creates provisions for states
The advisory jurisdiction however is available
to international organisation and not states
Advisory opinion in itself has no binding force
It cannot create a res judicata & there are no
parties in the strict sense

Therefore it is a weaker statement of law


than a judgement in a formal legal terms
The right to request an advisory opinion
is an original right under art 96(1) of the
charter for the GA & SC
All organs of the UN & all specialised
agencies except Universal Postal Union
(UPU) has a right to make a request for
an advisory opinion

I.C.J can an advisory opinion on a legal question


Crt is never under a duty to give an opinion upon
request
Crt has only once refused to give an advisory
opinion namely that of which the WHO
Assembly concerning the legality of the use of
nuclear weapons
Decision confirmed that a refusal to give an
opinion will not be based on the ground that the
question at issue is a political one

Distinction between legal & political has


many meanings & cannot be used as
the basis for the jurisdiction of the crt
A more proper response for crt is that
jurisdiction to make the decision
requested has been allocated elsewhere
for example SC or GA & not reviewable
by the crt. See Bowett page 365 2001.

Bases on which Crt might refuse


to give an opinion;

If opinion might not be accepted by all


the members
if opinion could lead to severely
damaging the reputation of the crt
However the crts refusal to give an
opinion could also be harmful to its
reputation

for instance if crt declined to give an


opinion on the basis that the nature of
the request was political.
It could be argued that an opinion based
on purely legal reasoning & abstracting
from the political context in which it has
been requested is unlikely to serve any
useful propose.

The Advisory Opinion has been


used for Four main purposes
1.

As means of securing an authoritative


interpretation of the charter provisions
or provisions of a constitutional
document of specialised agencies:

(See The admissions and competence cases, the


IMCO case or the certain Expenses case are obvious
examples).

These interpretations are not authoritative


& not strictly binding
No provision under treaty Charter for
settlement of disputes over interpretations
Crt is not entrusted with any formal power
of judicial review over the legality of actions
of organs of the UN at the request of a MS.
Nevertheless this procedure amounts to a
de facto form of judicial review

1971 Namibia Advisory Opinion

Crt had to consider the arguments put


forward by certain MS that the GA had
exceeded its power in adopting res 2145
(XXI) putting an end to South Africas
mandate over South-West Africa which
also raised questions regarding the
validity of contested resolutions of the
SC.

Purposes of advisory Opinion


cont.

In considering whether to give WHO an AO


or not on in regards to request made by
WHO on the legality of the use of nuclear
weapons.
Crt had to be satisfied as to the competence
of WHO on that matter
WHO failed to give effect to the principle of
speciality
It accordingly refused to answer the request
as per decision

2. It has been used to secure guidance for


various organs in undertaking their
functions; the peace treaties, reservations,
reparations, south west africa (voting), UN
administrative tribunal, ILO administrative
Tribunal (UNESCO) & namibia.

Purposes of advisory Opinions


3. Advisory function - used to address a
substantive legal question
the 1996 AO given to the UN GA on the legality
of the threat or use of nuclear weapons after
considering the threat or use of force,
the customary & conventional international law
applicable in situations of armed conflict & IHL
concluding that the threat or use of nuclear
weapons would generally be contrary to the rules
of international law applicable in armed conflict &
the rules if HL

4. Advisory function has in the past been


used as means of introducing a form of
recourse from judgements of
administrative tribunals despite that this
type of procedure is no longer available

Evaluation of ICJ

Since 1945 less cases referred to ICJ


1946- 2006 106 contentious cases
24 advisory opinions
States are reluctant to refer cases to
ICJ:
In politics the act of a state referring
another state to court is unfriendly
Better to settle in other tribunals.

Crt had problems of an absent


defendant
US Diplomatic & Consular staff in
Tehran 1980
Nicaragua v USA, Iran & USA
respectively objected to the crts
juridiction
Failed to appear before the court

Failed to appoint counsel


Under such circumstances crt cannot
order judgement
In these cases both states that refused
to appear before crt lost & refused to
apply the Crts judgement.

Despite its
shortcomings;

Crt has made valid contribution to


development of IL
Crt has been criticised for its failure in
matters of peace making
But is peace keeping a role of a court?

Tutorial 12
1.

2.
3.
4.
5.
6.
7.
8.

In resolution of international disputes between states & International


actors what mechanisms and procedure are available as identified
under art.33 of the UN Charter? Giving an account on the meaning
of each mechanism.
What is the ICJ
What are the functions of ICJ?
To what extent do you agree with the statement the essential aim of
the ICJ has been to secure a body of independent judges?
What is the implication of Art 31 of the Statute of the ICJ on the
Court?
What parties may have locus standi as parties in the contentious
case before the ICJ?
Explain the nature of the advisory jurisdictions of the court and who
may make a request to the ICJ for an opinion?
Critically assess ICJs competence in undertaking judicial review.