C5 PIL

• Peaceful settlement of disputes

  Disputes between states arising from claims and counter-claims concerning a matter of fact, law and policy
• Peaceful settlement of disputes is an inevitable part of international relations and frequently led to armed conflict
• Subjects of international disputes

  • Subjects of public international law
• Objects of international disputes

  • Objects of public international law
• International dispute

  Disagreements, opposing legal opinion and interest between subjects of public international law relating to international relations
• International situation

  not between subjects of PIL

  Not entail requirements and specific demands for concerned parties, but conflict of interest between them still create tension in international relations
• Diplomatic means of peaceful settlement of disputes

  • Negotiation
  • Enquiry
  • Mediation
  • Conciliation
• Negotiation

  Most used, 1st step in dispute settlement, aims to keep disputing parties in contact and requires exchange of views at any state, thereafter implement final settlement/decision
• State can deny the existence of dispute and often demand certain preconditions before entering negotiations, which makes negotiation may not always be a good method
• If negotiations fail within certain time-limit, the dispute may be submitted to other means
• Enquiry


  States may sometimes agree to appoint an impartial body to carry out an enquiry, mostly ad hoc but sometimes a permanent body established in advance by agreement for certain kinds of disputes, with the object of producing impartial finding of facts to prepare for negotiated settlement
• Parties are not obliged to accept the findings of an enquiry, but almost always accept them
• Mediation


  A 3rd state/IGO/eminent individual passes messages and suggestions to persuade negotiations, takes part in negotiations and may suggest terms of settlement, and if their proposals are not accepted, can formulate new proposals
• Conciliation


  Conciliators can be appointed on basis of their official function, or as individuals in their personal capacity, and cannot take initiative on their own. A commission is set up by the parties, with a neutral majority, to investigate the facts of the dispute and suggest terms of settlement, but the parties are not obliged to accept the terms
• Legal/Judicial means of peaceful settlement of disputes

  • Arbitration
  • Judicial settlement
• Arbitration and judicial settlement

  Result in a 3rd-party decision that is legally binding, but both require the consent of the dispute parties
• Judicial settlement

  Performed by a standing/permanent court, with judges selected and a fixed procedure, where the law is predetermined
• International Court of Justice (ICJ)

  Established in 1945, headquartered in The Hague, with a president elected by the judges for a 3-year term, and 15 judges elected by an absolute majority of votes by both the UN Security Council and General Assembly for a 9-year term, who can be re-elected
• ICJ


  • Needs consent of the dispute parties for a case to be brought to it and get settled
  • Can settle legal disputes submitted by states (contentious cases) with binding decisions
  • Can give advisory opinions on legal questions referred by international organs and agencies (advisory proceedings), which are not binding
• Accessing the ICJ's contentious case


  1. Member states of the UN and ICJ's Statute

  2. Non-member states of the UN if they meet conditions determined in each case by the UN General Assembly upon recommendation of the Security Council

  3. States not parties to the ICJ's Statute can make a declaration accepting the jurisdiction of the Court
• How states can give consent to the ICJ

  1. Special agreement

  2. Jurisdiction clause in treaties

  3. Compulsory clause (state makes a declaration recognizing the compulsory jurisdiction of the ICJ)

  4. Acceptance once a case has already been brought by a claimant state (forum protogatum)
• Procedures before the ICJ's contentious case

  1. Written phase: parties send each other requirements and copies to the ICJ

  2. Oral phase: public hearings where the court is addressed by agents and counsel of parties

  3. Court deliberates in private and delivers its judgment at a public sitting by absolute majority of judges present
• Incidental jurisdiction of the ICJ

  Independent to the main proceedings, can include hearing preliminary objections, determining applications to intervene, and ordering interim measures
• There is no limitation period within which a case must be brought to the ICJ
• ICJ judgments

  Are final, without appeal, and binding on the parties to the case

  art 60 ICJ Statute
• If a party does not follow the ICJ's judgment, the other party can bring the case to the UN Security Council

  art 94 un charter
• Advisory opinions of the ICJ

  Can be requested by the UN Security Council, UN General Assembly, and other UN organs and bodies if certain conditions are met, to provide legal advice, but are non-binding and not to settle any dispute
• Procedures for ICJ advisory opinions

  Modelled on contentious proceedings: written phase and oral phase
• In most cases, ICJ advisory opinions are accepted and acted upon by any states concerned
• Certain instruments can provide that an ICJ advisory opinion shall be binding
• Permanent Court of Arbitration (PCA)


  Established in 1899, headquartered in The Hague, with a list of arbitrators submitted by all contracting states, from which ad hoc arbitral tribunals are established when a dispute is submitted, always with an odd number of arbitrators (single, panel of three, or panel of five)
• Accessing the PCA


  1. Wider scope than just states, can include individuals and corporations

  2. Through arbitration clauses in treaties or special agreements establishing the arbitration tribunal
• PCA arbitration


  • Arbitrators selected by parties or by means agreed between parties
  • Parties choose the form of the tribunal
  • Parties choose the applicable law
  • Binding arbitral awards, with possibility of appeal on grounds of error of law or fact, irregularity in appointment of arbitrators, or essential procedural error
• PCA arbitration is much more flexible than adjudication and gives parties more choices, and can be kept confidential
• other UN organs and bodies can only submit to advisory opinion on matters related to their scope of activities and must be uthorized by UNGA
• PCA's arbitrators reneable term = 6 years
• The oral phase of ICJ requires public hearings
• Conciliation is a combination of inquiry and mediation, however, if their proposals are not accepted, their works shall end without further proposing
• During the time between the failure of negotiaion and when other measures are chosen -> the dispute is called pending dispute