International dispute settlement

INTERNATIONAL DISPUTE SETTLEMENT Article 1(1)Objective of the UN Charter  One of the major objectives of the United Nations is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace Art. 2(3) of the Charter All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered Art 2(4): non use of force Art 33 UN Charter (1)The parties to any disputes, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice (2) The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Art 33 UN Charter  Does it create a legal obligation? Yes  What legal obligation?  Free choice of means  Good faith [conduct]  Sincerity as to willingness to settle  Seriousness  Meaningful negotiations  In cases of failure continue with different means  Cooperate (with court etc)  Implement decisions Good faith: Obligation of result? [Nuclear Weapons AO: yes]  Other treaties etc  1899 Hague Convention for the Pacific Settlement of Disputes [PCA]  1928 General Act for the Pacific Settlement of Disputes  1948 American Treaty on Pacific Settlement  1957 European Convention for the Peaceful Settlment of Disputes  1970 GA Resolution on Friendly Relations  1982 Manila Declaration for the Peaceful Settlment of Disputes  Article 52 UN Charter: primacy of regional organisations  What is a dispute? A disagreement over a point of law or fact, a conflict of legal views or interests between two parties [PCIJ, Mavrommatis Palestine Concessions 1924] international Nature of dispute: political/legal/factual It all depends on type of claim+prescription Threshold: opposing views crystalise [no hypothetical but action is not needed: Headquarters AO/Arrest Warrant] Settlement: solution, accommodation NEGOTIATION      Settlement of disputes by direct discussions or exchange of views through state representatives Direct Influence outcome Non-binding Settle dispute directly-lead to other dispute settlement mechanisms (ICJ, arbitration etc)-identify dispute [exchanges can identify disagreement] Good practice:  Frame problem/agenda/process/determine issues  Determine goals – prioritise  Split to different issues  Package deal Sources of power: communication and influence: having alternatives; knowing facts, culture, people; empathy; good working relations and trust; persuasion (message, structure, delivery, style); make message compatible with opponents [hard lineresentment]   Obstacles: fundamental conflict of interests -non recognition (Israel/Palestine)-is the dispute ripe?-general political situation-support over negotiators Fact Finding/ENQUIRY  Ascertain facts/law  Art 90 API: International Humanitarian Fact-Finding C/sion [investigate and establish violations of IHL]  UN organs (SC/GA/HRC)  EU: Independent Fact Finding C/sion on the Conflict in Georgia [investigate origins and causes of war and IHL, HR, IL accusations]  Ad hoc by states Fact finding  Dispute over fact preliminary to dispute settlement  Narrow scope: avoids legal questions but difficult to decouple from law. A lot depends on composition, will of parties, mandate  Non-binding  Facts are political/political clashes  Will parties accept that their version of facts may be wrong?  MEDIATION/Good offices Settlement of disputes undertaken by a third state, group of state, an individual, an agency or an international organization.  Facilitates contact-source of info-intervenes-honest broker but medition Offers concrete proposals for statement of substantive questions-Non binding  Beagle Channel, Iranian Hostages (Algeria). 1978 Camp David (US)  Mediator: listen, trust, fair, able to discern main interests, possibility to deliver Conciliation  C/sion or single person that defines terms of settlement provided they are accepted by parties  (fact finding/enquiry + mediation + arbitration)  Institutional:  OSCE Court of Conciliation and arbitration 1995 [disputes between States which may include conflicts in respect of territorial integrity, maritime delimitation, or environmental and economic issues]  Art 284 LOSC [disputes concerning the interpretation or application of the Convention] ARBITRATION Resolution of differences between states through a legal decisions of one or more umpires or of a tribunal chosen by the parties Legal but extra-judicial Principle of party autonomy: establishment/jurisdiction/procedure Procedure: confidential and adversarial Basis of decision: parties set the law equity (Rann of Kutch) Permanent Court of Arbitration End of arbitration/enforcement Parties determine end date Win win or win lose Binding No enforcement (participation/legal culture/provided in the agreement [Rainbow Warrior])  Interpretation/revision/ appeal  Challenges to validity: invalid or terminate agreement (King of Spain Award) ; excess of powers; corruption of a member of tribunal; failure to state reasons; essential error; serious departure from rules of procedure        Arbitration C/sion on Yugoslavia (Badinter C/sion): 12 opinions: dissolution, self-determination, recognition, state succession etc Croatia/Slovenia border dispute (2015 breach/2016 continue/2017 decision South China Sea arbitration (Philippines/China