SYNTHESIS of the course
LEARNING GOALS
1. Critically analyse BROAD SPECTRUM of bodies and PROCEDURES available to SECURING COMPLIANCE for
international law
- Option 1: BILETERAL actions
- Negotiations (week 1)
- > Measures of Self-Help (week 2)
- Option 2: MULTILATERAL action (week 3)
- SC > take measures under Chapter VI & VII
- Only when it threatens international PEACE & SECURITY
- GA > Ask for recommendations
- Implementation often via negotiations
- Option 3: Inquiry, good offices, mediation, conciliation (week 1)
- Sometimes helped by SG & Secretariat
- Option 4: Adjudication (week 4)
- By International Courts (ICJ, ECtHR, etc)
- Enforcement possibly via SC
- Option 5: Advisory proceedings (week 5)
- By International Courts (ICJ, ECtHR, etc)
- Oprion 6: Non-compliance procedures (week 6)
- By supervisory Committees (ex. Human Rights Committees)
- Oprion 7: Enforcement of obligations by domestic courts (week 7)
,2. Critically analyse the INTERACTION between international, regional and domestic bodies and procedures
available to securing respect for international law.
- HORIZONTAL order > so no hierachy so a lot of interaction & conflicts
- Self-help by States vs SC collective action (week 2)
- Security Council vs International Court of justice (week 3)
- Influence of advisory opinion vs icj decision (week 5)
- ICJ proceedings vs procedures before advisory bodies (week 6)
- Effect of domestic decision on international law (week 7)
- ABSENCE of CENTRAL authority
- Actors have to realize the effects of their decision on other actors
3. Situate and evaluate the practice of bodies and procedures available to securing respect for international law
within the conditions of the international legal order, the global economy, and existing geopolitical power
structures
- Horizontal structure on the basis of >
- Principle of Sovereign equality (Declaration on principles of International law 1970)
- = all states have equal RIGHTS and DUTIES and are equal members of the international
community
- State CONSENT
- Consent to be party to treaty
- Consent to jurisdiction of International Criminal Court
- Does politics trump law >
- Sometimes YES
- Veto power of SC
- Unequal representation of Western lawyers, ideas, principles, case law and legal
frameworks
- But also NO >
- International law may provides for constraints on states
- Prohibition use of force as enforcement
- International law can provide level playing field (ex. environmental proceedings by non-
powerful island states)
- Political vs Judicial PROCEDURES
, DISPUTE SETTLEMENT
Materials
Literature
- John Merrills, ‘The means of dispute settlement’ in M. Evans (ed), International Law (5th ed, 2018), Chapter
18, only pages 548-562
Cases
- Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment of 1 October 2018
(Merits), paras. 84-89; 91; 175-176
- Facts
- Bolivia brought case > wanted ICJ to OBLIGATE Chile to negotiate with Bolivia to restore
Bolivia’s access to the ocean
- Ruling
- No general obligation to negotiate > ‘States are FREE to resort to negotiations or to put an
and to them”
- BUT when you agree to negotiations > “Required to pursue negotiation in GOOD FAITH”
- Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russian Federation) (Preliminary Objections), paras. 156-162; 181-184
- Facts
- Russia invaded Georgia
- Georgia brought case on basis of violation of CERD
- Ruling
- If there is OBLIGATION TO NEGOTIATE there needs to be a “GENUINE ATTEMPT” to solve
dispute VIA NEGOTIATIONS
- No jurisdiction bc Georgia did not take “genuine attempt” to solve dispute via
negotiations > thereby not satisfying art. 22 CERD
Instruments and Other Materials
- Convention for the Pacific Settlement of International Disputes (signed 18 October 1907)
- Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, General Assembly Resolution 2625(XXV) (24
October 1970)
- Manila Declaration on the Peaceful Settlement of International Disputes, General Assembly Resolution
37/10 (15 November 1982)
- Principles and guidelines for international negotiations, General Assembly Resolution A/RES/53/101 (20
January 1999)
John Merrills, ‘The means of dispute settlement’ in M. Evans (ed), International Law (5th ed, 2018), Chapter
18, only pages 548-562
Introduction
- “DISPUTE” = disagreement about something (fairly specific)
- “INTERNATIONAL dispute” = dispute (fairly specific) typically (but not exclusively) BETWEEN
STATES with the consequences on the international plane
- But individuals can also settle disputes with their States
- Ex. HR violations, Investment arbitration
- Dispute vs situation > situations’ contains multiple diputes (ex. Arab-Israeli problem)
, - WHEN is there a dispute? (Lecture)
- “Must be shown the CLAIM OF ONE PARTY IS POSITIVELY OPPOSED BY THE OTHER.”
(South West Africa Case)
- Not enough to assert their is dispute or to deny such a dispute
- + Demonstrate that “respondent state was AWARE or COULD HAVE BEEN AWARE that its
view are “positively opposed” by the applicant (Marshall Islands)
- + Dispute must EXIST AT THE TIME THE APPLICATION is submitted to the court (Georgia
v Russia, 2011, ICJ)
- + Dispute must be International
- Subjects > Transborder States
- Substance > rivaling claims are BASED on INTERNATIONAL LAW
- Dispute about TREATY = always international law
- “Dispute SETTLEMENT” = Mechanisms and processes by which states & IO’s try to RESOLVE CONFLICTS
due to alleged violations
- Less about punishment more about peaceful solution
- General principles
- Peaceful settlement of disputes (Art. 2(3) UN Ch)
- (Customary law, Nicaragua case)
- Prohibition of threat or use of force (Art. 2(4) UN Ch)
- (Customary law, Nicaragua case)
- Free choice of means (to settle a dispute) (Art. 33 UN Ch)
- Judicial and non-judicial mechanism
- ALWAYS based on CONSENT of parties
- Art. 33 UN Ch > list of possible peaceful means available
- 1982 Manila Declaration on Peaceful Settlement of Disputes list possible means of peaceful
settlement
- “ENFORCEMENT” = Mechanism and processes by which States and international organizations ENSURE
COMPLIANCE with legal norm
- Preventive > discourage violations
- Reactive > when a breach has occurred
- Peaceful & NON peaceful means
- Peaceful > negotiations, judicial proceedings
- NON-peaceful > sanctions, trade limitations, collective military action s
Dispute Settlement Mechanism
