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International Dispute Settlement lectures
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Notes from all 7 lectures of the course international dispute settlement
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Lectures - International Dispute SettlementLecture 1 - Monday 31 October 2022
General principles of international dispute settlement
- Principle of peaceful settlement of disputes - disputes must be settled
- ‘by peaceful means in such a manner that international peace and security, and
justice, are not endangered’ (art. 2(3) UN Charter)
- in the absence of the threat or use of force (art. 2(4) UN Charter)
- customary status (ICJ Nicaragua)
- no positive obligation to resolve all disputes
- but a general, customary law-based duty to cooperate in dispute settlement? (inherent
in the obligation to settle disputes peacefully, because the resolution of a dispute is
otherwise impossible)
- Free choice of means; art. 33 (1) UN Charter
- Diplomatic/political means (negotiations, fact-finding, mediation, good offices,
conciliation)
- Legal/binding procedures (arbitration, adjudication by courts)
- States are left with a wide margin of discretion, but the duty to negotiate is an
intrinsic element of the principle of peaceful dispute settlement.
- No binding, third-party adjudication without consent.
Rise of adjudication
- The practice of arbitration among the Greek City states and communities within the Roman
Empire, also in the Middle Ages among sovereigns
- Grotius (1625), and later de Vattel (1758) see arbitration as an alternative to war.
- Jay Treaty (1794) - arbitration between the US and the UK used to settle disputes remaining
from the war of independence.
Negotiations as a dispute settlement mechanism
- Primary means in practice
- Mechanism of law-creation and dispute settlement
- No general duty to negotiate: Bolivia v. Chile: ‘States are free to resort to negotiations or put
an end to them’.
- But States may agree to be bound by an obligation to negotiation
- States are then required to enter into negotiations and pursue them in good faith
- Negotiations must be meaningful: ‘one party cannot then insist on its own position
without contemplating any modification’ (North Sea Continental Shelf)
- The obligation to negotiate does not imply an obligation to reach an agreement.
→ Northern Cameroon case, separate opinion: Negotiation is not ‘a couple of States arguing with
each other across the floor of an international assembly… That is disputation’.
Negotiation vs. Adjudication
- Negotiation cannot lead to binding outcomes, States want to have control over the situation
and the outcome.
- There is no hierarchy between the two. States are free to choose between the instruments.
- Adjudication does not operate in isolation but interacts with political institutions and
processes.
1
, - In practice, negotiations are often necessary to reach an agreement on the appropriate
mechanism, or to implement the outcome.
- Screening or concretizing function of negotiation: helping focus disagreement to the point
where it can be treated as an international dispute.
→ Aegean Sea Continental Shelf: ‘the fact that negotiations are actively pursued during the present
proceedings is not, legally, an obstacle to the exercise by the Court of its judicial function’.
The adjudication procedure can be a catalyst for further negotiations (puts parties under pressure)
ICTs can actively foster negotiated solutions.
Adjudication is a stepping stone to further negotiations. → ICJ North Sea Continental Shelf
- Resort to litigation is used to clarify the law.
- The added value of judgments where a party does not obtain relief requested (Bolivia v.
Chile)
Lecture 2 - Monday 7 November 2022
→ Jurisdiction of International Courts and Tribunals - the ICJ
Forms of dispute settlement:
1. Arbitration
2. Conciliation
3. Mediation
4. Negotiation
The parties to the dispute decide which form of dispute settlement to choose. No hierarchy in art. 33
UN Charter. → agreement/consent from the parties is needed.
- Without consent, there is no jurisdiction. = key requirement
- Sub-elements:
- Ratione materiae (subject-matter jurisdiction)
- Ratione personae (personal jurisdiction)
- Ratione temporis (temporal jurisdiction)
- Ratione loci (territorial jurisdiction)
Jurisdictional foundations
- Jurisdiction = power of a court or tribunal to adjudicate on a claim.
- It is different from admissibility & from the merits of the case.
- the merits of the dispute → how do we resolve the dispute? = decision in
substance.
ICJ → only court with general jurisdiction + universal jurisdiction
- Has a very specific role within the UN system:
- Institutional role: the ICJ is an institution that has its objective to settle disputes
peacefully.
- It is an organ of the UN → principal judicial organ.
- The Security Council can settle disputes as well → maintain peace &
security. (art. 24 UN Charter)
- Compliance with judgments/role of the SC (art. 94 UN Charter)
- World Court, for long the only international court; still the only international court
with universal and general jurisdiction (art. 95 UN Charter)
2
, - Who pays? part of the UN budget (contrast with arbitration)
- Standing / who can in principle go to the court?
- Exclusively states (art. 34 UN Charter)
- States Parties to the Statute (and some others) (art. 35 UN Charter) → see art.
93 UN Charter
● 15 judges → elected by UN GA and SC for 9 years (5 every 3 years); re-election is
possible
● independence and impartiality (art. 2, 17 and 24)
The making of judgments
- By majority (casting vote of President) → art. 55
- There is no court that has the rule to look for the unanimity of its members. All of
them will have different opinions.
- ‘shall state the reasons’ → art. 56: explain why he/she has a different opinion.
- votes are publicized, with names (since 1978)
- separate, dissenting votes are allowed and used frequently; also declarations
- Unlike the European Court of Justice or WTO
- Advantages? (+) legal clarity, furthers legal development, appeases disfavored party?
← → (-) diminishes authority?
- On the inside?
- Deliberations are secret → art. 55
- General deliberations; drafting committee.
ICJ: Jurisdiction
- What kind of cases can parties submit to the ICJ?
- Is there a legal rule/provision that mentions what kind of cases ICJ has jurisdiction
over?
- Art. 36 ICJ Statute:
- Compromis → ad hoc agreements to refer case
- Mutual agreement/ex-post
- Art. 36 (2) → optional clause: a unilateral declaration that the State consents
to the jurisdiction of the ICJ, without special agreement, in relation to any
other State accepting the same obligation, the jurisdiction of the Court.
- On the condition of reciprocity.
- Unilateral/ex-ante
- Art. 36 (1): compromissory clause → ICJ Nicaragua v. US / ICJ Georgia
v. Russia
- The jurisdiction of the Court comprises all cases which the parties
refer to it and all matters specially provided for in the UN Charter or
in treaties and conventions in force.
- Two means of submitting a case to the Court:
1. For matters defined by that clause;
2. Usually matters within the scope of the treaty
- Mutual agreement/ex-ante
- Forum prorogatum → agreement in response to the application; clearer in
art. 38 (5) Rules of the Court; e.g. Corfu Channel (UK v. Albania) [not
UNSC Res] ; Certain Qs of Mutual Assistance in Crim. Matters (Djibouti
v. France)
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