International Law and the Peaceful Settlement of Disputes: An Overview - Prof. Elizalde, Apuntes de Derecho Internacional Público

¡Descarga International Law and the Peaceful Settlement of Disputes: An Overview - Prof. Elizalde y más Apuntes en PDF de Derecho Internacional Público solo en Docsity! LESSON XIV. THE PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES 1. The prohibition to use the force Art. 2.4 of UN Charter - all member shall refrain in their ​international relations from the ​threat or use of force against territorial integrity or political independence of any state. Therefore, the forceful resolution of disputes, the use of force by one State to impose his will on another State, is now legally obsolete and the obligation to settle disputes by peaceful means is a consequence of it. Some years ago war was considered a legal manner to resolve international disputes. Ius ad bellum indicates when a State is entitled to use the force, internal conflicts are not included. ​The use of force entails coercion and for this provision only includes ​military force​; it does ​not include economic coercion​.​ Some other prohibitions of “use of force”. The 2625 (XXV) resolution of the GA of the UN, which is customary law, considers use of force: a. Organization of irregular forces or armed bands for incursions into the territory of another state. Ex: What happened in Nicaragua. b. Organizing, instigation or participating in civil strife or terrorism in another state. c. Acquiescing to activities directed to the commission of such acts. Art. 51 UN Charter (is an exception) provides that: Nothing in the Charter shall impair the inherent right of individual or collective ​self-defense if an armed attack occurs against a UN Member, until the SC has taken measures necessary to maintain international peace and security. Interpretation of the ICJ of “the inherent right”: ICJ said this makes reference that the principle of self- defence is a principle of customary law. Self-defence can be “Individual or collective”. However, 2 requirements have to be met: ask for help and that there has been an armed attack. Once the SC starts treating the issue, the State has to stop its action. Resolution 3314 (XXV) defines aggression. First use of armed force constitute ​prima facie evidence of an aggression. However, not always the first use of force is qualified as an aggression. For example, the anticipatory self-defence which permits States to act first when there is an imminent attack or evidence that there will be an attack; the answer must be proportionate and the use of force must be the sole option. Anticipatory self-defence​ is recognized by IL and in the definition of aggression. ● This concept is different from the policy of the US known as ​preventive self-defence​. Preventive self-defence: All potential threats to the US can be subject to a US attack. ● Conditions needed to allow use of force: ​IMMEDIACY, NECESSITY and PROPORTIONALITY. Article 2.3 of the UN Charter, all members shall ​settle their international disputes by peaceful means in such a way that international peace, security and justice are not endangered. This principle is one of the central obligations of international law, which all States must observe. - Should be meant that the scope of obligation to settle disputes peacefully does not force States to settle its grievances ​(quejas), it means that ​if a State does decide to settle, this must be done in a peaceful way​. This idea is reflected in the fact that the jurisdiction of the ICJ is not compulsory. A State cannot be compelled to submit a dispute with another State to a third party for settlement unless it has given consent, except if the dispute is likely to endanger international peace and security. - However, there is ​no explicit rule in general IL requiring a State to settle internal grievances peacefully​. A State can use the force in its territory only limited by human rights law. The prohibition of use of force regarding the settlement of International disputes, refers only to INTERNATIONAL AFFAIRS. Settlement means to resolve a dispute according to IL, usually by an impartial third party, the outcome of which is legally binding. There is no exclusive method by which any particular dispute need to be resolved and in practice they do not operate in isolation. There are 2 methods to settle disputes: ● Diplomatic ⇨ ​Negotiation, Good Offices, Meditation, Enquiry and Conciliatio​n ⇨ Decisions are not binding and special consideration is given to non-legal aspects of the dispute; diplomatic methods tend to resolve disputes without applying IL. ● Judicial​ ⇨ Arbitration and Judicial Settlement. General characteristics of the methods of settlement of disputes - oldest methods and most used - Are not binding ( if solution is reached it may be included in a treaty) - Special consideration is given to non legal aspects of the dispute - De facto inequality between states is more evident than in judicial methods *analyzed as follows starting from the most political measures: 3. Negotiation The most common method of settlement is ​direct negotiations between partie​s. There is not set procedure for negotiations and the negotiated settlement will be ​legally binding only if is the wish of the parties​, and then it may be ​encapsulated in a treaty. Otherwise, the terms of the agreement may be recorded in an exchange of notes having no legal effect. Occasionally, a state may be able to underpin its negotiations with the threat of legal proceedings. But this is not very potent because of the absence of a compulsory judicial settlement of disputes. In fact, it is often the case that neither party wishes to use judicial means. It has been suggested that once a state has ​voluntarily entered into negotiations, it is under a ​binding legal obligation to negotiate in good faith​. So states have to act honestly and reasonably and to make a genuine attempt to reach settlement. One can think that ​negotiation is customary law and when there is a conflict the parties to the conflict should automatically try to resolve it by negotiation, however, the ICJ decided that ​it was not true​. 4. Mediation and good offices Sometimes States cannot communicate with each other, so they “hire” a third state as a ​mediator​. 2 kinds: ● Good offices are ​preliminary to direct negotiations between the parties​. The person offering his good offices will attempt to persuade the parties to negotiate. When there is a dispute a ​third party can give Good offices; the third party must be ​neutral to be a channel of communication and both parties must trust the third party. ● Mediation ​is simple the continuation of this​, and often the mediator will be the person who originally brought the parties together. ○ A ​mediator is a person approved by both parties who takes part in the negotiations and whose task is to ​suggest the terms of a settlement and ​to attempt to bring about a compromise between the two opposing views​. 5. Enquiry​ (Comissió a la que faig preguntes) Commissions of enquiry intend to establish the factual basis for a settlement between states. The parties to a dispute will accept to refer the matter to an impartial body whose task is to produce an unbiased finding of facts; sometimes the problem of disputes is that there is a different interpretation of the facts. Is then up to the parties to negotiate a settlement on the basis of these facts. The commission of inquiry is important in an IL system where no compulsory fact-finding machinery exists and where many disputes are compounded by the simple truth that neither party is prepared to accept other’s version of events. The Court is ​composed of 15 judges of ​different nationalities who are ​elected by the GA and SC​. These will include 1 judge from each permanent member and the other 10 judges are elected from candidates of the Permanent Court of Arbitration. The judges must be persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices or jurisconsults of recognized competence in IL. There are 4 ways of settlement by ICJ (jurisdiction in contentious cases): ​*possible exam question a. Access to the Court - ​The ICJ is one of the principal organs of the UN and its Statute is an ​integral part of the Charter. ​All members of the UN are parties to the Statute have access to the Court. It is also possible ​that non-members of the UN may be parties to the Statute and non-parties to the Statute may have access to the Court under conditions specified by the SC. However, only States can be parties in cases before the Court. ​The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. b. Jurisdiction in contentious cases - ​Forms to consent to its jurisdiction: Unilateral declaration, special agreement, compromissory clause, and ​forum prorogatum i. Unilateral declaration ​(express consent to the Court is needed in order to ​recognizing the jurisdiction of the Court as binding with respect to any other State​).To take benefit from the treaties of other States with the Court we need a close expression of consent). ii. Special agreement ​(​Article 36 of the Statute provides that the jurisdiction of the Court comprises all cases which the parties refer to it. Such cases normally come before the Court by notification to the Registry of an agreement known as a ​special agreement​, concluded by the parties specially for this purpose​). iii. Compromissory clause ​(​over 300 treaties contain clauses (known as urisdictional clauses) by which a State party undertakes to accept the jurisdiction of the Court should a dispute arise with another State party about the interpretation or application of the treaty;​) iv. Forum prorogatum ​(consists in a ​tacit acceptance of the intervention of the ICJ to settle the dispute in that particular case, deduced from our response to the dispute. If the ICJ intervenes and we say:” you don’t have jurisdiction” then we deny it’s intervention. But if we start to refute their claimed arguments = tacit acceptance of settlement of dispute by ICJ). c. Procedure​: Written and oral d. Jurisdiction about its jurisdiction ​It is a general principle of IL that a state cannot be compelled to undertake the settlement of a dispute​. As far as ICJ is concerned, this means that ​its jurisdiction in contentious cases depends on the consent of states​. However, the Court should not decline to exercise its jurisdiction merely because the rights of a third state would have to be considered at some later stage. In such circumstances the third state is protected by the principle that an award does not bind non-parties and by its ability to intervene. Therefore, ​the Court will no decline jurisdiction because the interests of a third state may be affected unless they are so central as to make it impossible to settle the actual matter outstanding between the parties to the dispute. The ​Court has the power to determine the limits of its jurisdiction and its decision in this regard is binding​. Consequently, the raising of a ​preliminary objection to jurisdiction does not destroy a state’s consent, for it is up to the Court to determine whether the objection is valid. The Court has adopted a much more positive approach whereby the Court will seek to assert jurisdiction if at all possible and deny it only in the clearest cases. *​The Court and the Security Council The powers of the Security Council are extensive in matters concerning international peace and security it may make a determination of factual, political and legal issues that is legally binding on the parties to whom is addressed. ​This is in addition to the Council’s responsibility to consider and discuss all incidents likely to endanger international peace​. So it is possible that in some cases before the ICJ one of the parties request to the Court to decline to exercise jurisdiction over a dispute either because the Council is currently considering that manner, or because the Council has already made a determination in respect of it. As a ​general principle ​the Court can exercise its jurisdiction even though the Council is considering some aspects of the case​. It is because the ICJ is the principal judicial organ of the UN and it is not enough to deny jurisdiction that the Council is fulfilling its own functions in parallel. However, the Court is subject to some limitation. 11. Advisory opinions En la jurisprudencia de los casos contenciosos, los individuos y las organizaciones internacionales no pueden acudir ante TJ. Pero en este caso se trata de opiniones de la corte. Aquí las agencias especializadas tiene la capacidad de ir ante ICJ. The Court may give an ​Advisory opinion on any legal question at the request of anybody ​duly authorized by the United Nations. States may not request Advisory opinions, but along with IIOO they may participate in such proceedings before the Court. Advisory opinions are ​not binding in law, but in practice if they concern the rights and duties of states, generally they are acted upon. The issue of consent Advisory opinions may deal with a wide variety of issues, such as: - Membership of international organizations. - The interpretation of treaties. - The payment of financial contributions The state of territories Advisory opinions may have a significant impact on the rights and duties of States. As happen with contentious cases. If an Advisory opinion is decisive of a controversy between two states, the Court should decline to give such an opinion unless all of the states concerned have given their consent. However, in practice, the ICJ held that it was now established that Advisory opinions did not depend on the consent of interested states, even when the case concerned a legal question pending between them. Moreover, as a general rule, only compelling reasons should led to a refusal to give an Opinion and a signatory of the Statute and the Charter had agreed in advance to the exercise of advisory jurisdiction. Advisory opinions were designed to give guidance to IIOO on the exercise of their functions and were not intended to resolve any questions pending between parties. In practice it is quite different. Whatever, the non-binding status of Advisory Opinions, it is clear that if they relate to the legal responsibilities of states, they may effectively crystallize those responsibilities at the date of judgement. Advisory opinions are delivered according to IL and have the full authority of the highest judicial body known to the system. What is a legal question? The Court is empowered to give ​opinions on ​any legal question​, but like proceedings in contentious cases, this raises an issue of admissibility. One reason for dismissing the application is that the question raised factual rather than legal issues which the Court is not competent to resolve. ​However, the Court will not refuse to adjudicate on factual issues if this is necessary for a thorough examination of a legal question​. The definition of a legal question is flexible and can be resolved only on a case by case basis. It matters not that the question is framed abstractly but the ​Court will not pronounce on the moral duties of states​. On the other hand, the Court will not decline to give an Opinion because the legal issues are intertwined with political considerations or because they have political significance. The Court is not concerned with the motives for a request, even if these are political. The Court is reticent to refuse to give an Advisory Opinion because it sees them as an indispensable part of its responsibilities within the United Nations system.