Lecture 2 VMO Students
International Dispute Settlement
International dispute settlement largely focuses on resolving inter-State disputes, but in light of the
changing structure of international law, also other types of disputes are highlighted.
International disputes can also involve State and non-State actors, so we need new
mechanisms to deal with them. Because traditionally, the Courts only let States appear before
them.
Between international organization and member State of IO – disputes about payment of membership-
duties. It costs money to be an international organization.
International organization organ (EU Commission) and member States – enforcement implementation
of EU legislation.
State A and Multinational Corporation – investment-disputes.
International organization and individual – there is a difference between having a contractual
relationship or not between the two.
People who are an employee, contractual relationship, have a special court in international
law, because international organizations have immunity before domestic courts;
The relationship without a contract is increasingly being recognized within international law.
The structure is, therefore, changing.
Dispute Settlement Triad
Many international dispute resolution methods can be described in terms of a dispute resolution ‘traid’.
On the one hand, is party A, and on the other hand is Party B. And on top of this, is somebody, or an
entity who tries to solve the dispute.
There are some aspects to consider:
Establishment, appointment, independence, jurisdiction (mandate), identification of applicable
law, parties presenting their side of the argument, interpretation of applicable law,
interpretation of facts (presented by parties), ruling, decision, outcome binding or non-binding
but authoritative/influential, enforcement of outcome;
But also can somebody else intervene (as a friend of the court/ amicus curiae, typically being
a non-State actor), presenting another interest which is not presented yet by the parties like a
NGO with the World Trade Centre. They typically state a common-interest which goes beyond
the inter-State interests.
The guiding principle for international dispute settlement
There is no obligation on States to settle all their disputes. However, there are some nuances in Article
2(3) and 2(4) UN Charter.
, In other words, there is no principle in international law that States have to settle their
disputes, but the UN Charter creates an obligation for its member States to settle their
disputes peacefully.
So what are the peaceful means? We distinguish between diplomatic and non-diplomatic (legal)
dispute settlement methods
Article 33 UN Charter names the diplomatic and non-diplomatic methods:
Diplomatic: negotiations, good offices, mediation, conciliation, enquiry (fact-finding);
Non-diplomatic: arbitration, adjudication, increasingly also quasi-judicial, non-adjudicative.
Note that Treaties often stipulate how disputes (e.g. related to Treaty application) shall be resolved.
Also note that some reservations to Treaties might be about dispute settlement (Genocide case).
Diplomatic methods
Negotiations (inter partes)
There is an obligation to enter negotiations in good faith. You can not just go through the motions.
Negotiating in good faith is specified in the following cases:
The majority of disputes are solved by negotiations. If it often a precursor, starting point, to decide on
different methods of settlement. Through negotiations, facts can become more clear and parties can in
this way put their cards on the table.
The upside is the satisfactory if successful, parties retain control over every phase of
settlement;
Downsides are that it relies on good will and flexibility, which is sometimes lacking, thus do not
always yield results. And there is an issues when there exists a significant power imbalance
among the parties.
Negotiations involves only two parties. Other diplomatic methods require involvement of a third party
(but this involvement is a matter of degree).
Good offices
International Dispute Settlement
International dispute settlement largely focuses on resolving inter-State disputes, but in light of the
changing structure of international law, also other types of disputes are highlighted.
International disputes can also involve State and non-State actors, so we need new
mechanisms to deal with them. Because traditionally, the Courts only let States appear before
them.
Between international organization and member State of IO – disputes about payment of membership-
duties. It costs money to be an international organization.
International organization organ (EU Commission) and member States – enforcement implementation
of EU legislation.
State A and Multinational Corporation – investment-disputes.
International organization and individual – there is a difference between having a contractual
relationship or not between the two.
People who are an employee, contractual relationship, have a special court in international
law, because international organizations have immunity before domestic courts;
The relationship without a contract is increasingly being recognized within international law.
The structure is, therefore, changing.
Dispute Settlement Triad
Many international dispute resolution methods can be described in terms of a dispute resolution ‘traid’.
On the one hand, is party A, and on the other hand is Party B. And on top of this, is somebody, or an
entity who tries to solve the dispute.
There are some aspects to consider:
Establishment, appointment, independence, jurisdiction (mandate), identification of applicable
law, parties presenting their side of the argument, interpretation of applicable law,
interpretation of facts (presented by parties), ruling, decision, outcome binding or non-binding
but authoritative/influential, enforcement of outcome;
But also can somebody else intervene (as a friend of the court/ amicus curiae, typically being
a non-State actor), presenting another interest which is not presented yet by the parties like a
NGO with the World Trade Centre. They typically state a common-interest which goes beyond
the inter-State interests.
The guiding principle for international dispute settlement
There is no obligation on States to settle all their disputes. However, there are some nuances in Article
2(3) and 2(4) UN Charter.
, In other words, there is no principle in international law that States have to settle their
disputes, but the UN Charter creates an obligation for its member States to settle their
disputes peacefully.
So what are the peaceful means? We distinguish between diplomatic and non-diplomatic (legal)
dispute settlement methods
Article 33 UN Charter names the diplomatic and non-diplomatic methods:
Diplomatic: negotiations, good offices, mediation, conciliation, enquiry (fact-finding);
Non-diplomatic: arbitration, adjudication, increasingly also quasi-judicial, non-adjudicative.
Note that Treaties often stipulate how disputes (e.g. related to Treaty application) shall be resolved.
Also note that some reservations to Treaties might be about dispute settlement (Genocide case).
Diplomatic methods
Negotiations (inter partes)
There is an obligation to enter negotiations in good faith. You can not just go through the motions.
Negotiating in good faith is specified in the following cases:
The majority of disputes are solved by negotiations. If it often a precursor, starting point, to decide on
different methods of settlement. Through negotiations, facts can become more clear and parties can in
this way put their cards on the table.
The upside is the satisfactory if successful, parties retain control over every phase of
settlement;
Downsides are that it relies on good will and flexibility, which is sometimes lacking, thus do not
always yield results. And there is an issues when there exists a significant power imbalance
among the parties.
Negotiations involves only two parties. Other diplomatic methods require involvement of a third party
(but this involvement is a matter of degree).
Good offices
