Peaceful settlement of disputesChapter 10

Lecture 15 & 16

Introduction

• Art. 2(3) of the U.N. Charter states “all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

• However, this only means states should settle disputes peacefully, not that they have to settle disputes.

Introduction

• Also, states only must settle international disputes peacefully, not domestic disputes.

• So states under international law are allowed to use force in relations to his own citizens subject to human rights law, or to the directions of the Security Council.

• Consider Tiananmen square and Central High School in AR. The national government has sovereignty!

Could or should another government intervene?

Could or should another government intervene?

My friend Yan XiongChinese dissident

International Court of Justice

• ICJ has limited jurisdiction but commands great respect

• The Court has 15 judges who are selected by the General Assembly and Security Council

• Only states may be parties to the Court but not so for advisory opinions

ICJ jurisdiction

• Ad Hoc jurisdiction means the states agree by treaty to go to Court.

• Ante Hoc jurisdiction means that a prior treaty has an agreement saying that future disputes would be solved by the jurisdiction of the Court.

• You can skip p. 305-315

Contentious cases of the ICJ

• They do not resolve political arguments. There must be a clear legal dispute for the Court to have jurisdiction.

• The legal dispute must be a real one, not a hypothetical one.

• And the Court could reject jurisdiction if the states did not exhaust local remedies, if it’s too political in nature, if there’s no legal question, or if the parties are delaying the proceedings of the case.

Advisory Opinions

• Here, there doesn’t need to be an actual legal dispute.

• Court can advise on any legal question, not between states but by the General Assembly, Security Council, and other international organizations.

• They are not binding in law.

Settlement by U.N.

• U.N. resolution is not legally binding nor fact finding but can be the start to future negotiations.

• Security Council can act on its own, or by suggestion, and make a recommendation for settlement or compromise. However, it is usually concerned with political matters, not legal.

Regional Organizations

• European Court of Human Rights • Central American Court of Justice • ASEAN commissions and negotiations • World Trade Organization (formally GATT)• APEC (Asia-Pacific Economic Corporation)

APEC meeting

APEC meeting

APEC meeting

Negotiation

• Most common form of settlement. Possibly good faith is required, under IL, during negotiations.

• It’s only legally binding at the wish of the parties; it could be turned into a treaty.

• Here, political, economic, and social considerations are probably more important than what the law says.

• Consider the release of Kenneth Bae. What was the reason for his release? http://www.nbcnews.com/news/us-news/north-korea-captives-kenneth-bae-matthew-todd-miller-land-u-n244211

Arbitration

• Arbitration is a settlement of dispute by states with a legally binding award based on the basis of law. It is of voluntary jurisdiction.

• Instead of judges making the decision, the settlement can be made by any third party.

• However, arbitration still only involves legal disputes, so lawyers would most likely be involved.

• It is more serious than mediation and weaker than the courts but is a legally binding way of quickly settling disputes.

Mediation and good offices

• Good offices are a preliminary to direct negotiations. Sometimes, UN Secretary-General acts as a good office. A good office must be trusted by both sides as a neutral party.

• Mediator may be the person who sets up the good office but is just someone who tries to settle the dispute and bring about compromise.

*Think about Bill Clinton and Jimmy Carter and their relations with North Korea.

Inquiry

• Commissions are often set up to establish the factual basis for a settlement between states.

• Findings are not legally binding but are rarely ignored since they play an important role in setting up a neutral basis of facts.

• In 2013, UN Human Rights Council set up a commission on the human rights violation of North Korea

http://www.ohchr.org/en/hrbodies/hrc/coidprk/pages/commissioninquiryonhrindprk.aspx

Conciliation

• Conciliation is similar to commissions of inquiry because they are set up to find out the facts.

• However, they are similar to arbitration because they not only establish the facts but setout a concrete plan of settlement.

• But they are different from arbitration because they are not legally binding.

Table for peaceful settlement of disputes

Type Negotiation ICJ Arbitration Conciliation Mediation

Legally Binding No but good faith may be required

Yes and almost always the Court is respected

Yes but in rare cases they are ignored

No but they offer a clear proposal to resolve the dispute

No but may be a first good step towards negotiation

Jurisdiction Voluntary Voluntary Voluntary Voluntary Voluntary

Usage High Very low High Moderate Moderate

Traits Political and economic factors play a large role

Only decides cases where the law is unclear

Faster than the Courts as well as the chance to choose own judge

Fact finding commissions who also propose a clear plan for settlement

Meditator is usually someone who is neutral that tries to being both sides to an agreement