Lecture 9 – Settlement of disputes
What is a dispute? Here inter-state. Legal context. A famous definition: a disagreement
over a point of law or fact, a conflict of legal views of interests between two persons
(Mavromatis case, PCIJ). Broad definition, often referred to. For our purposes, persons
are two subjects of IL. It is relevant for compulsory procedures. Broad definition so not
too early decided that there is no dispute.
Is there an obligation to settle a dispute?
There is no specific obligation, unless it causes a threat to international security. Art.
2(3) Charter UN. But settlement must be by peaceful means (this obligation also in state
practice). Most disputes are in area of territory. An example is Antarctica or Eems-
Dollart region. From the latter a treaty that NL and Germany do not agree about
boundary but agreed on how to handle with this region until there is agreement about
boundary.
Article 33 Charter: methods. Two categories: Diplomatic/political methods and binding
or legal methods.
Diplomatic methods:
Negotiations (by far most important method). This method is directly between the
parties. Best to try to reach solution together. Sometimes it is not possible to talk
together. Than a third party entries. This third party can be another state (government),
this would be normal and traditional. Can be an IO or an organ of an IO. Among catholic
countries sometimes the pope acts as third party. But could also be purely individuals,
f.e. former presidents of USA (Bill Clinton, Carter).
Good offices: usually states or IO can provide this method. Provide facilities. Provide
attractive environment to talk. Third party is there, and helps but doesn’t have a big
task. Limited role. But this role can become more, later or immediately. Namely
mediation: third party than leads negotiation. Inquiry: committee of experts to look at
facts. Conciliation: parties provide information to conciliation commission. This
commission comes up with a proposal. It is non-binding. It is a recommendation of the
commission. So result can be rejected, unless the parties in advance have said they will
accept the recommendation. Conciliation not often used, why? Sort of giving away so if a
state thinks he has a good legal decision he will not conciliate.
Binding methods:
Arbitration: usually in PIL 5 arbitrators. Each party chooses 2 arbitrators (1 national, 1
not) and the 5th person is chosen by the four arbitrators.
ICJ is the only general international court we have in the world. One specialised
permanent court: International tribunal for the law of the sea. (Is actually a court).
Always consent required. In international relations not one general court which is
always competent, always based on consent.
After a dispute has arisen: special agreement (term for agreement to submit a dispute to
court) or by conduct (Forum prorogatum. Implied consent. When a state has been
brought before court and does not object to this, but goes with it and participates in
proceedings than consent can be implied. But is exceptional).
In advance of an eventual dispute: Compromissory clause in a treaty (states conclude
agreement and in the final clauses, and sometimes in annex, there are clauses about
court. Consent given in treaty. But only valid for disputes within the scope of the treaty).
Special treaty on dispute settlement (specifically concluded for dispute settlement.
What is a dispute? Here inter-state. Legal context. A famous definition: a disagreement
over a point of law or fact, a conflict of legal views of interests between two persons
(Mavromatis case, PCIJ). Broad definition, often referred to. For our purposes, persons
are two subjects of IL. It is relevant for compulsory procedures. Broad definition so not
too early decided that there is no dispute.
Is there an obligation to settle a dispute?
There is no specific obligation, unless it causes a threat to international security. Art.
2(3) Charter UN. But settlement must be by peaceful means (this obligation also in state
practice). Most disputes are in area of territory. An example is Antarctica or Eems-
Dollart region. From the latter a treaty that NL and Germany do not agree about
boundary but agreed on how to handle with this region until there is agreement about
boundary.
Article 33 Charter: methods. Two categories: Diplomatic/political methods and binding
or legal methods.
Diplomatic methods:
Negotiations (by far most important method). This method is directly between the
parties. Best to try to reach solution together. Sometimes it is not possible to talk
together. Than a third party entries. This third party can be another state (government),
this would be normal and traditional. Can be an IO or an organ of an IO. Among catholic
countries sometimes the pope acts as third party. But could also be purely individuals,
f.e. former presidents of USA (Bill Clinton, Carter).
Good offices: usually states or IO can provide this method. Provide facilities. Provide
attractive environment to talk. Third party is there, and helps but doesn’t have a big
task. Limited role. But this role can become more, later or immediately. Namely
mediation: third party than leads negotiation. Inquiry: committee of experts to look at
facts. Conciliation: parties provide information to conciliation commission. This
commission comes up with a proposal. It is non-binding. It is a recommendation of the
commission. So result can be rejected, unless the parties in advance have said they will
accept the recommendation. Conciliation not often used, why? Sort of giving away so if a
state thinks he has a good legal decision he will not conciliate.
Binding methods:
Arbitration: usually in PIL 5 arbitrators. Each party chooses 2 arbitrators (1 national, 1
not) and the 5th person is chosen by the four arbitrators.
ICJ is the only general international court we have in the world. One specialised
permanent court: International tribunal for the law of the sea. (Is actually a court).
Always consent required. In international relations not one general court which is
always competent, always based on consent.
After a dispute has arisen: special agreement (term for agreement to submit a dispute to
court) or by conduct (Forum prorogatum. Implied consent. When a state has been
brought before court and does not object to this, but goes with it and participates in
proceedings than consent can be implied. But is exceptional).
In advance of an eventual dispute: Compromissory clause in a treaty (states conclude
agreement and in the final clauses, and sometimes in annex, there are clauses about
court. Consent given in treaty. But only valid for disputes within the scope of the treaty).
Special treaty on dispute settlement (specifically concluded for dispute settlement.
