Transcript Peaceful settlement of disputes Chapter 10

Peaceful settlement of disputes
Chapter 10
Lecture 15 & 16
Introduction
• Art. 2(3) of the U.N. Charter states “all
members shall settle their international
disputes by peaceful means in such a manner
that international peace and security, and
justice, are not endangered.”
• However, this only means states should settle
disputes peacefully, not that they have to
settle disputes.
Introduction
• Also, states only must settle international
disputes peacefully, not domestic disputes.
• So states under international law are allowed
to use force in relations to his own citizens
subject to human rights law, or to the
directions of the Security Council.
• Consider Tiananmen square and Central High
School in AR. The national government has
sovereignty!
Could or should another
government intervene?
Could or should another
government intervene?
My friend Yan Xiong
Chinese dissident
International Court of Justice
• ICJ has limited jurisdiction but commands
great respect
• The Court has 15 judges who are selected by
the General Assembly and Security Council
• Only states may be parties to the Court but
not so for advisory opinions
ICJ jurisdiction
• Ad Hoc jurisdiction means the states agree by
treaty to go to Court.
• Ante Hoc jurisdiction means that a prior treaty
has an agreement saying that future disputes
would be solved by the jurisdiction of the
Court.
• You can skip p. 305-315
Contentious cases of the ICJ
• They do not resolve political arguments. There
must be a clear legal dispute for the Court to
have jurisdiction.
• The legal dispute must be a real one, not a
hypothetical one.
• And the Court could reject jurisdiction if the
states did not exhaust local remedies, if it’s too
political in nature, if there’s no legal question, or
if the parties are delaying the proceedings of the
case.
Advisory Opinions
• Here, there doesn’t need to be an actual legal
dispute.
• Court can advise on any legal question, not
between states but by the General Assembly,
Security Council, and other international
organizations.
• They are not binding in law.
Settlement by U.N.
• U.N. resolution is not legally binding nor fact
finding but can be the start to future
negotiations.
• Security Council can act on its own, or by
suggestion, and make a recommendation for
settlement or compromise. However, it is
usually concerned with political matters, not
legal.
Regional Organizations
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•
•
•
•
European Court of Human Rights
Central American Court of Justice
ASEAN commissions and negotiations
World Trade Organization (formally GATT)
APEC (Asia-Pacific Economic Corporation)
APEC meeting
APEC meeting
APEC meeting
Negotiation
• Most common form of settlement. Possibly good
faith is required, under IL, during negotiations.
• It’s only legally binding at the wish of the parties;
it could be turned into a treaty.
• Here, political, economic, and social
considerations are probably more important than
what the law says.
• Consider the release of Kenneth Bae. What was the
reason for his release?
http://www.nbcnews.com/news/us-news/north-koreacaptives-kenneth-bae-matthew-todd-miller-land-u-n244211
Arbitration
• Arbitration is a settlement of dispute by states
with a legally binding award based on the basis of
law. It is of voluntary jurisdiction.
• Instead of judges making the decision, the
settlement can be made by any third party.
• However, arbitration still only involves legal
disputes, so lawyers would most likely be
involved.
• It is more serious than mediation and weaker
than the courts but is a legally binding way of
quickly settling disputes.
Mediation and good offices
• Good offices are a preliminary to direct
negotiations. Sometimes, UN Secretary-General
acts as a good office. A good office must be
trusted by both sides as a neutral party.
• Mediator may be the person who sets up the
good office but is just someone who tries to
settle the dispute and bring about compromise.
*Think about Bill Clinton and Jimmy Carter and
their relations with North Korea.
Inquiry
• Commissions are often set up to establish the
factual basis for a settlement between states.
• Findings are not legally binding but are rarely
ignored since they play an important role in
setting up a neutral basis of facts.
• In 2013, UN Human Rights Council set up a
commission on the human rights violation of
North Korea
http://www.ohchr.org/en/hrbodies/hrc/coidprk/pa
ges/commissioninquiryonhrindprk.aspx
Conciliation
• Conciliation is similar to commissions of
inquiry because they are set up to find out the
facts.
• However, they are similar to arbitration
because they not only establish the facts but
setout a concrete plan of settlement.
• But they are different from arbitration
because they are not legally binding.
Table for
peaceful settlement of disputes
Type
Negotiation
ICJ
Arbitration
Conciliation
Mediation
Legally Binding
No but good Yes and almost Yes but in rare No but they offer
faith may be always the Court cases they are a clear proposal to
required
is respected
ignored
resolve
the
dispute
No but may be a
first good step
towards
negotiation
Jurisdiction
Voluntary
Voluntary
Voluntary
Voluntary
Voluntary
Usage
High
Very low
High
Moderate
Moderate
Traits
Political and Only
decides
economic
cases where the
factors play a law is unclear
large role
Faster than the
Courts as well as
the chance to
choose
own
judge
Fact
finding
commissions who
also propose a
clear plan for
settlement
Meditator
is
usually someone
who is neutral
that tries to
being both sides
to an agreement