Dispute A disagreement on a point of law or fact, a conflict of legal views or interest between the parties (Coquia and Santiago, 2005)
International Dispute• Actual disagreement between States regarding the conduct taken by one of them for protection or vindication of the interests of the other (Nachura, 2009)• A disagreement on a point of law or fact, a conﬂict of legal views or of interests between two States. Disputes relate to an alleged breach of one or more legal duties. They may also relate to a question of attribution of title to territory, to maritime zones, to movables or to parts of the cultural heritage of a State (Brownlie, 2009)
Kinds of Disputes Political disputes ◦ Non-justiciable, political or non-legal issues Legal disputes ◦ Involves not only questions of law but also the law itself
Pacific Settlement of Disputes• Art. 33 of the UN Charter provides for the means of settling disputes:2. Negotiation3. Enquiry4. Mediation5. Conciliation6. Arbitration7. Judicial settlement8. Resort to regional agencies or arrangements9. Other peaceful means of their own choice
Negotiation Settlement of disputes by direct discussions or exchange of views through diplomatic representatives
Enquiry Ascertainment of pertinent facts and issues in a dispute Use of effective fact- finding bodies in accordance of Art. 33 of the Charter
Mediation Settlement of dispute undertaken by a third State, group of States, an individual, an agency or an international organization Offers concrete proposals for settlement of substantive questions
Tender of Good Office Offer of a third party to settle international dispute Facilitate efforts towards settlement of dispute and act as a channel of communication for parties] Normally seeks to encourage the parties to resume negotiation
Mediation vs Tender of GoodOffice In mediation, third party offers a solution and makes proposals; good office merely brings the parties together
Conciliation A combination of mediation and inquiry (Handbook on the Peaceful Settlement of Disputes between State, 1992)
Arbitration Resolution of differences between States through a legal decision of one or more umpires or of a tribunal chosen by the parties
Resort to Regional Arrangementsand other Agencies• Regional arrangements – agreements (regional multilateral treaties) under which States of a region undertake to regulate their relations with respect to the question of the settlement of disputes, without creating thereunder a permanent institution or a regional international organization with international legal personality• Regional agencies – regional international organizations created by regional multilateral treaties under a permanent institution with international legal personality to perform broader functions in the field of the maintenance of peace and security, including the settlement of disputes.
Judicial Settlement Submitting a dispute to a pre-constituted international court or tribunal composed of independent judges whose tasks are settle claims on the basis of international law and render decisions which are binding upon the parties
International Court of Justice Established in 1946 as a principal organ of the United Nations Its seat is at the Peace Palace in The Hague (Netherlands) it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922
International Court of Justice• Composition: – 15 judges elected to nine-year terms of office by the United Nations General Assembly and Security Council sitting independently of each other. – It may not include more than one judge of any nationality. – Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. The Members of the Court do not represent their governments but are independent magistrates. – The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law. – The composition of the Court has also to reflect the main forms of civilization and the principal legal systems of the world.
International Court of Justice• Functions:2. to settle in accordance with international law the legal disputes submitted to it by States, and3. to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.
International Court of Justice Parties to a case: ◦ Only States may be parties to cases brought before the Court
International Court of Justice• Jurisdiction and competence of the court: – jurisdiction of the Court depends upon consent, the recognition of the States of the jurisdiction of the Court over a dispute. Recognition may be expressed by 2.Special agreement 3.Compromissory clause in treaties 4.Other means (declaration of States that they accept in advance the jurisdiction of the court in certain cases; Optional Clause)
Reservation to Acceptance ofJurisdiction• Types:2. Rationae temporis – temporal jurisdiction refers to the jurisdiction usually of a court of law over a proposed action in relation to the passage of time3. Matters within the domestic jurisdiction of the declarant