Transcript The Settlement of Disputes by Peaceful Means

The Settlement of Disputes by Peaceful Means
• Diplomatic methods of dispute settlement
• International institutions and dispute settlement
• Binding methods of disputes settlement
• The Convention on the Law of the Sea and the Settlement of Disputes
• Part XV of the United Nations Convention on the Law of the Sea requires that States
Parties to the Convention settle any dispute between them concerning the
interpretation or application of the Convention by peaceful means in accordance
with article 2, para. 3, of the Charter of the United Nations and shall seek a solution
by the means indicated in article 33, para. 1, of the Charter. Where, however, no
settlement has been reached, article 286 of the Convention stipulates that the
dispute be submitted at the request of any party to the dispute to a court or
tribunal having jurisdiction in this regard. Article 287 of the Convention defines
those courts or tribunals as:
• (a) The International Tribunal for the Law of the Sea (established in accordance
with Annex VI of the Convention) including the Seabed Disputes Chamber;
• (b) The International Court of Justice;
• (c) An arbitral tribunal constituted in accordance with Annex VII of the Convention;
• (d) A special arbitral tribunal constituted in accordance with Annex VIII for one or
more of the categories of disputes specified therein.
• Legal framework within the United Nations Convention on the Law of the Sea:
• Procedures for settling seabed-related disputes (see Part XI, section 5, articles 186191, and Part XV) ; Non-binding procedures (see Arts.279-285 and Annex V);
Compulsory procedures entailing binding decisions (see Art. 287, Annexes VI, VII
and VIII)
Diplomatic methods of dispute settlement
•
•
•
•
Negotiation
Good offices and mediation
Inquiry
Conciliation
• Negotiation
• Negotiation is a dialogue between two or more people or parties, intended to
reach an understanding, resolve point of difference, or gain advantage in outcome
of dialogue, to produce an agreement upon courses of action, to bargain for
individual or collective advantage, to craft outcomes to satisfy various interests of
two people/parties involved in negotiation process. Negotiation is a process where
each party involved in negotiating tries to gain an advantage for themselves by the
end of the process. Negotiation is intended to aim at compromise.
• Negotiation occurs in business, non-profit organizations, government branches,
legal proceedings, among nations and in personal situations such as marriage,
divorce, parenting, and everyday life. The study of the subject is called negotiation
theory. Professional negotiators are often specialized, such as union negotiators,
leverage buyout negotiators, peace negotiators, hostage negotiators, or may work
under other titles, such as diplomats, legislators or brokers.
• It consists basically of discussions between the interested parties with a view to
reconciling divergent opinions, or at least understanding the different positions
maintained. It does not involve any third party, at least at that stage, and so differs
from the other forms of dispute management. In addition to being an extremely
active method of settlement itself, negotiation is normally the precursor to other
settlement procedures as the parties decide amongst themselves how best to
resolve their differences.
• Negotiations are the most satisfactory means to resolve disputes since the parties
are so directly engaged.
• In certain circumstances there may exist a duty to enter into negotiations arising
out of particular bilateral or multilateral agreements.
• United Nations Convention on the Law of the Sea (1982)
• Article 283 Obligation to exchange views
• 1. When a dispute arises between States Parties concerning the interpretation or
application of this Convention, the parties to the dispute shall proceed
expeditiously to an exchange of views regarding its settlement by negotiation or
other peaceful means.
• Where there is an obligation to negotiate, this would imply also an obligation to
pursue such negotiations as far as possible with a view to concluding agreements.
•
•
•
•
•
•
•
The Court held in the North Sea Continental Shelf cases that:
the parties are under an obligation to enter into negotiations with a view to arriving at an
agreement, and not merely to go through a formal process of negotiation as a sort of prior
condition . . . they are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position
without contemplating any modification of it.
Summary of the Judgment:
The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and Denmark
on the one hand, and between the Federal Republic of Germany and the Netherlands on the
other. The Parties asked the Court to state the principles and rules of international law
applicable, and undertook thereafter to carry out the delimitations on that basis.
The Court rejected the contention of Denmark and the Netherlands to the effect that the
delimitations in question had to be carried out in accordance with the principle of
equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf,
holding that the equidistance principle was not a necessary consequence of the general
concept of continental shelf rights, and was not a rule of customary international law.
The Court held that each Party had an original right to those areas of the continental shelf
which constituted the natural prolongation of its land territory into and under the sea. It was
not a question of apportioning or sharing out those areas, but of delimiting them.
The Court found that the boundary lines in question were to be drawn by agreement
between the Parties and in accordance with equitable principles, and it indicated certain
factors to be taken into consideration for that purpose. It was now for the Parties to
• The Court in the German External Debts case emphasised that although an
agreement to negotiate did not necessarily imply an obligation to reach an
agreement, ‘it does imply that serious efforts towards that end will be made’.
• Arbitral Tribunal for the Agreement on German External Debt
• In Switzerland v Federal Republic of Germany, the Arbitral Tribunal for the
Agreement on German External Debt clarified the scope of debts falling under the
London Debt Agreement (LDA).
• London Agreement on German External Debts, also known as the London Debt
Agreement, was a debt relief treaty between the Federal Republic of Germany on
one part and on Belgium, Canada, Ceylon, Denmark, the French Republic, Greece,
Iran, Ireland, Italy, Liechtenstein, Luxembourg, Norway, Pakistan, Spain, Sweden,
Switzerland, the Union of South Africa, the United Kingdom of Great Britain and
Northern Ireland, the United States of America, and Yugoslavia and others. The
negotiations lasted from February 27 - August 8, 1953.
• The London Debt Agreement covers a number of different types of debt from
before and after the second World War. Some of them arose directly out of the
efforts to finance the reparations system, while others reflect extensive lending,
mostly by U.S. investors, to German firms and governments. In the London
Agreement, the German government under Chancellor Konrad Adenauer
undertook to repay the external debts incurred by German government between
1919-1945.[
• In the Lac Lanoux arbitration, it was stated that ‘consultations and negotiations
between the two states must be genuine, must comply with the rules of good faith
and must not be mere formalities’
• Lac Lanoux Case
• The Lac Lanoux arbitration case involving France and Spain shows how the process
of prior consultation and negotiation has been interpreted by an international
arbitral tribunal, not only as a treaty stipulation, but more generally as a principle
of customary law.
• The Lac Lanoux negotiations began in 1917. The case was put to arbitration in 1956.
• Lake Lanoux is located on the French side of the Pyrenees mountain chain. It is fed
by many streams rising in France and running only in the French territory. However,
its waters also run into the headwaters of the river Carol which, some 25
kilometres from the lake, do cross the Spanish frontier at Puigcerda, having
previously fed the Canal of Puigcerda, which is the private property of that town.
After some 6 kilometres in Spanish territory, the Carol joins the Segre, which
ultimately flows into the Ebro. The frontier between France and Spain was fixed by
the Treaty of Bayonne, 1866 and an additional Act thereto, whereby regulations
were made for the joint use of the water resources.
• Spain alleged that certain plans proposed by France would adversely affect Spanish
rights and interests contrary to the Treaty, and could only be undertaken with prior
consent of both Parties.
• In the light of the agreement between the two countries (treaty of Bayonne, 1866,
and Additional Act), the tribunal found that the conflicting interests aroused by the
industrial use of international rivers must be reconciled by mutual concessions
embodied in the agreements which needed to be interpreted. In the present case,
the Tribunal was of the opinion that “the French scheme complied with the
obligations of Article 11....In carrying out without prior agreement between the
two Governments, works for the utilization of the waters of Lake Lanoux...and
brought to the notice of the representatives of Spain...., the French Government
was not committing a breach of the provisions of the Treaty of Bayonne...or of the
Additional Act”.
• The Tribunal said that, because the question before it related uniquely to a treaty
of 1866, the tribunal would apply the treaty if it was clear. But if interpretation was
necessary, the tribunal would turn to international law, allowing it in this case to
take account of the “spirit” of the Pyrennées treaties and “des règles du droit
international commun”, and also consider certain rules of customary international
law in order to proceed to the interpretation of the Treaty and the Act.
• Commentary The tribunal discussed the applicable law because the Parties
(France and Spain) disagreed on this issue of international rights and obligations of
States sharing common natural resources such as water. Consultations and
negotiation in good faith are necessary not only as a mere formality, but as an
attempt to conclude an agreement for the prevention of conflicts.
• Good offices and mediation
• Unlike the techniques of arbitration and adjudication, the process aims at
persuading the parties to a dispute to reach satisfactory terms for its termination
by themselves. Provisions for settling the dispute are not prescribed.
• Technically, good offices are involved where a third party attempts to influence the
opposing sides to enter into negotiations, whereas mediation implies the active
participation in the negotiating process of the third party itself. In fact, the dividing
line between the two approaches is often difficult to maintain as they tend to
merge into one another, depending upon the circumstances.
• Examples:
• US President (1906): in concluding the Russian–Japanese War
• the USSR (1965): the peaceful settlement of the India–Pakistan dispute
• France (early 1970s): encouraging US–North Vietnamese negotiations to begin in
Paris
• Mediator
• US Secretary of State in the Middle East in 1973–4, has an active and vital function
to perform in seeking to cajole the disputing parties into accepting what are often
his own proposals.
• UN Good Offices
• The UN Secretary General uses what is termed his "good offices" (generally
meaning his prestige and the weight of the world community he represents) when
he meets with world leaders, either publicly or privately, in an effort to prevent
international disputes from developing, escalating, or spreading.
• For example, in 1998 Kofi Annan negotiated a settlement of the dispute between
Iraq and the U.S. over arms inspections in Iraq. He used the prestige of his office
and the threat of UN Security Council action if no agreement was reached to force
Saddam Hussein to allow continuation of UN inspections. Earlier examples include
U Thant's assistance during the Cuban Missile Crisis, and Javier Perez de Cuellar's
mediation of the Soviet withdrawal from Afghanistan.
• The Secretary-General may also assign senior staff members to act as his special
representative, performing the same functions. For example, Brian Urquhart
represented the Secretary General's office for many years, proving "good offices" in
the Congo, the Middle East, Cyprus, and Namibia.
• Inquiry
• Conciliation
• Conciliation is an alternative dispute resolution (ADR) process whereby the parties
to a dispute (including future interest disputes) agree to utilize the services of a
conciliator, who then meets with the parties separately in an attempt to resolve
their differences. They do this by lowering tensions, improving communications,
interpreting issues, providing technical assistance, exploring potential solutions and
bringing about a negotiated settlement.
• The process of conciliation involves a third-party investigation of the basis of the
dispute and the submission of a report embodying suggestions for a settlement. As
such it involves elements of both inquiry and mediation, and in fact the process of
conciliation emerged from treaties providing for permanent inquiry commissions.
Conciliation reports are only proposals and as such do not constitute binding
decisions.65 They are thus different from arbitration awards.
• International institutions and dispute settlement
• Regional Organisations
• Chapter VIII of the United Nations Charter deals with regional arrangements. It
authorizes regional organizations (such as NATO) and even requires attempts to
resolve disputes through such agencies (if available) prior to intervention by the UN
Security Council. However, Article 53 provides that "no enforcement action shall be
taken under regional arrangements or by regional agencies without the
authorization of the Security Council."
• Chapter VIII makes reference to enemy states, which were powers such as Japan
and Germany that remained enemies of the UN signatories at the time of the
promulgation of the UN Charter (in the closing months of World War II in mid1945). There have been proposals to remove these references, but none have come
to fruition. Chapter VIII is analogous to Article 21 of the Covenant of the League of
the Nations, which provides, "Nothing in this Covenant shall be deemed to affect
the validity of international engagements, such as treaties of arbitration or regional
understandings like the Monroe Doctrine, for securing the maintenance of peace."
• Article 52
• 1. Nothing in the present Charter precludes the existence of regional arrangements
or agencies for dealing with such matters relating to the maintenance of
international peace and security as are appropriate for regional action provided
that such arrangements or agencies and their activities are consistent with the
Purposes and Principles of the United Nations.
• 2. The Members of the United Nations entering into such arrangements or
constituting such agencies shall make every effort to achieve pacific settlement of
local disputes through such regional arrangements or by such regional agencies
before referring them to the Security Council.
• 3. The Security Council shall encourage the development of pacific settlement of
local disputes through such regional arrangements or by such regional agencies
either on the initiative of the states concerned or by reference from the Security
Council.
• 4. This Article in no way impairs the application of Articles 34 and 35.
• Article 53
• 1. The Security Council shall, where appropriate, utilize such regional arrangements
or agencies for enforcement action under its authority. But no enforcement action
shall be taken under regional arrangements or by regional agencies without the
authorization of the Security Council, with the exception of measures against any
enemy state, as defined in paragraph 2 of this Article, provided for pursuant to
Article 107 or in regional arrangements directed against renewal of aggressive
policy on the part of any such state, until such time as the Organization may, on
request of the Governments concerned, be charged with the responsibility for
preventing further aggression by such a state.
• 2. The term enemy state as used in paragraph 1 of this Article applies to any state
which during the Second World War has been an enemy of any signatory of the
present Charter.
• Article 54
• The Security Council shall at all times be kept fully informed of activities
undertaken or in contemplation under regional arrangements or by regional
agencies for the maintenance of international peace and security.
•
•
•
•
•
The African Union (Organisation of African Unity)
The Organisation of American States
The Arab League
Europe
International organisations and facilities of limited competence
Binding methods of dispute settlement
• Arbitration
• Promoting peaceful settlement of disputes remains one of the most important and
most difficult objectives of the international legal order. Though it is complex in
nature, Article 33 of the Charter of the United Nations lists arbitration among the
methods of peaceful settlement. A number of interpretations of this method in
literature is discernible since some decades. Arbitration is seen as an “equitable
means of settlement of legal disputes by the application of legal rules, principles
and techniques”.
• Arbitration as a means of settlement of disputes offers considerable flexibility as to
the legal status of the Parties and the legal techniques used.
• The development of the inter-State arbitration is often taken as one gauge of the
efficacy of the rule of law in the international legal system. Where notification
confirms the existence of a conflict of interests, or where affected states request it,
consultation and negotiation are required.
• International arbitration was held to be the most effective and equitable manner of
dispute settlement, where diplomacy had failed.
• Permanent Court of Arbitration was established. It is not really a court since it is
not composed of a fixed body of judges. It consists of a panel of persons,
nominated by the contracting states (each one nominating a maximum of four),
comprising individuals ‘of known competency in questions of international law, of
the highest moral reputation and disposed to accept the duties of an arbitrator’.
Where contracting states wish to go to arbitration, they are entitled to choose the
members of the tribunal from the panel. Thus, it is in essence machinery facilitating
the establishment of arbitral tribunals.
• Between 1900 and 1932 some twenty disputes went through the PCA procedure,
but from that point the numbers began to fall drastically. However, more recently
the PCA has started to play an increasingly important role, so much so that an
element of ‘institutionalisation’ of arbitration has been detected by some writers.
• Arbitration tribunals may be composed in different ways. There may be a single
arbitrator or a collegiate body. In the latter case, each party will appoint an equal
number of arbitrators with the chairman or umpire being appointed by either the
parties or the arbitrators already nominated.
• In many cases, a head of state will be suggested as a single arbitrator and he will
then nominate an expert or experts in the field of international law or other
relevant disciplines to act for him.
• States are not obliged to submit a dispute to the procedure of arbitration, in the
absence of their consent. This consent may be expressed in arbitration treaties, in
which the contracting states agree to submit certain kinds of disputes that may
arise between them to arbitration, or in specific provisions of general treaties,
which provide for disputes with regard to the treaty itself to be submitted to
arbitration, although the number of treaties dealing primarily with the peaceful
settlement of disputes has declined since 1945.
• Consent to the reference of a dispute to arbitration with regard to matters that
have already arisen is usually expressed by means of a compromis, or special
agreement, and the terms in which it is couched are of extreme importance. This is
because the jurisdiction of the tribunal is defined in relation to the provisions of
the treaty or compromis, whichever happens to be the relevant document in the
particular case. However, in general, the tribunal may determine its competence in
interpreting the compromis and other documents concerned in the case.
• The law to be applied in arbitration proceedings is international law, but the parties
may agree upon certain principles to be taken into account by the tribunal and
specify this in the compromis. In this case, the tribunal must apply the rules
specified.
• Agreements sometimes specify that the decisions should be reached in accordance
with ‘law and equity’ and this means that the general principles of justice common
to legal systems should be taken into account as well as the provisions of
international law. Such general principles may also be considered where there are
no specific rules covering the situation under discussion.
• Once an arbitral award has been made, it is final and binding upon the parties, but
in certain circumstances the award itself may be regarded as a nullity.
• It is sometimes argued that invalidity of the compromis is a ground of nullity, while
the corruption of a member of the tribunal or a serious departure from a
fundamental rule of procedure are further possibilities as grounds of nullity.
• Arbitration may be the appropriate mechanism to utilise as between states and
international institutions, since only states may appear before the ICJ in
contentious proceedings. The establishment of arbitral tribunals has often been
undertaken in order to deal relatively quietly and cheaply with a series of problems
within certain categories.
• Like arbitration, judicial settlement is a binding method of dispute settlement, but
by means of an established and permanent body. There are a number of
international and regional courts deciding disputes between subjects of
international law, in accordance with the rules and principles of international law.
However, by far the most important, both by prestige and jurisdiction, is the
International Court of Justice.
• Sudan‘s border dispute over Abyei (Jul 30th 2009 )
• Do they agree? Yes, no, and sort of
• A ruling from The Hague pleases the north and vexes the south
•
OFFICIALS in Sudan’s government in Khartoum could hardly believe their luck
when, on July 22nd, the Permanent Court of Arbitration in The Hague ruled on the
fate of the disputed Abyei state, which sits astride the oil-soaked border between
Arab northern Sudan and the ethnically African (and largely Christian) south Sudan.
Surprisingly, the court reversed an earlier commission’s ruling and redrew Abyei’s
borders, snipping out the lucrative Heglig and Bamboo oilfields (see map) and
giving them to the north.
•
•
•
•
The ownership of these oilfields has soured relations between the north and south
Sudanese ever since a peace accord was signed between them in 2005, ending a civil war
that had raged on and off for nearly half a century at a cost of some 2m lives. So tense
had the situation in Abyei become that last year much of its capital was burned to the
ground in fighting between militias from the two sides. Now, however, the north seems
to have got what it wanted by law rather than by force.
The head of President Omar al-Bashir’s National Congress Party delegation in The
Hague, Dirdeiry Muhammad Ahmed, said it was a “great achievement” that ownership
of the oil had been settled “without conflict”. However, perhaps intoxicated by victory,
he then stirred a bit of animosity by suggesting that the government in Khartoum would
stop paying half of the oil revenue from Heglig and Bamboo to the south, as it must do
under the 2005 peace deal. As South Sudan’s government relies on oil for almost all of
its revenue, these comments were bound to provoke. Other northerners were more
conciliatory. In any case, the north’s true position will become clearer after a technical
committee of north and south begins work on the border’s final demarcation.
At least the court ruling pleased the Ngok-Dinka people. When the south votes in the
2011 referendum, Abyei state will exercise a special dispensation (which is nothing to do
with the ruling at The Hague) letting it choose whether to stay in a federal Sudan or to
secede with the south. As the state is now smaller within its new boundary, the NgokDinka is the dominant tribe in it—so their vote will probably ensure that Abyei goes to
the south.