Transcript 20 Peaceful settlement of disputes

20 Peaceful settlement of
disputes
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Disputes among states arise as a result of:
A. claims
B. counter claims
Of matter of fact, law and policy
Settlement of disputes is of importance as it
is the linchpin to operation of other
principles
20.1
• This has been come central with the establishment
of the UN. UN charter Article 2 (4) and requires
sates to settle their disputes in peaceful manner
and means.
• Methods of peaceful resolution of conflicts.
Article 33 (1) of the UN Charter- negotiation,
enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies
arrangement, other peaceful means of their choice
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• Thus methods to be chosen may be, diplomatic,
legal and dispute settlement.
• Multilateral agreements exist to ensure the
peaceful settlement of conflicts.
• 1899 Hague Convention for the Pacific settlement
of international disputes, 1964 Protocol of the
Commission of Mediation and Arbitration of OAU
and 1993 OAU Mechanism for Conflict
Prevention, Management and Resolution.
20.3
There exists a trend in which most of the agreements
including regional ones has been not ratified by
some states especially if they provide for
compulsory binding adjudication of legal disputes
hence have remained weak.
Even if states agree to be part to agreements this
does not mean they will actually use it in a given
case or abide by the decision since there is lack of
enforcement mechanism of international court and
tribunal.
20.4
Diplomatic Methods
a) Negotiation
It is the duty of the state to enter into negotiation.
According to Article 2 (3) UN Charter and from
duty listed in the Friendly Relations Declaration
of 1970 to select such means as may be
appropriate to the circumstances and the nature
of the dispute.
20.5
Negotiation has its shortfalls since there is no
neutral party for impartiality’s sake.
Normally it’s the first process in solving a
conflict. In the North Sea Continental shelf
case, parties to a dispute maybe even under
obligation “to conduct themselves that the
negotiations are meaningful”.
20.6
Article 283 of the 1982 Lao of the Sea Convention
aims at keeping the disputing parties in contact
and requires them to exchange views at any stage
of the dispute and eventually to implement the
final solution.
It is not a good way of settling international disputesthere is no impartial machinery for resolving
disputed questions of fact.
20.7
Normally, it’s the first step in the resolution of
a conflict
b) Good offices and Mediation
1. Use of third states, international
organisations or eminent individual.
20.8
2. Switzerland with its permanent neutrality has
often acted as a protecting power in times of war
or peace such as representing the United States in
Cuba.
3. Mediator is more active and takes part in
negotiation and may even suggest terms of
settlement to disputing states.
4. In BEAGLE CHANNEL ARBITRATION, ILM
17, 1978- both sides accepted Cardinal Antonio
Samore as a mediator upon proposal by the Pope.
20.9
5. In the dispute between Iran and US in which they
were not speaking to one another, Algeria played a
critical role leading to the re-establishment of
Iran-US claims Tribunal in the Hague.
6. Examples of successful mediation by states
usually are by great powers; German at Berlin
Congress; the USSR in 1966 in conflict between
India and Pakistan; the US in the Arab Israeli
conflict in the 1978 Camp David peace
negotiations between between Israel and the PLO.
20.10
7. Mediation has its drawback- ‘the go
between wears out a thousand sandals.’
8. Great powers have more chances of
success due to their resources and weight
but at times follow their own interest.
20.11
c) Fact-finding and enquiry
1. Establishing the facts of law
2. The 1907 Hague Convention describes the task
of a commissioner of enquiry as to ‘facilitate a
solution by means of an impartial and
contentious investigation’
3. Partsch concludes: the theory that genuine
inquiries (restricted to fact-finding) do not meet
with the reluctance of states to allow
interference with their sovereignty to the same
extent as enquiries combined with elements of
conciliation has not been confined by
20.12
d) Conciliation
1. Institut de droit international in 1961 defined it as
“a method for the settlement of international
disputes of any nature according to which a
commission set up by parties, either on a
permanent basis or an ad hoc basis to deal with a
dispute, proceeds to the impartial examination of
disputes and attempts to define the terms of a
settlement susceptible of being accepted by them
or of affording the parties with a view to its
settlement such aid as they may have requested.”
20.13
2. Can be traced back to the Bryan Treaties
1913/14- these treaties avoided the honour
and vital interests clauses of earlier
arbitration treaties and made allowance for
the sensitivity of states by giving the
permanent commissions to be established
only the power to make them binding
decisions.
20.14
3. Conciliations between states, third parties cannot
take initiative on their own and are appointed on
the agreement of concerned parties.
4. Conciliators can be appointed on the basis of their
function e.g heads of states or Secretary General
of the UN.
5. Most conciliators were performed with
commissions composed of several members but
single conciliators exist e.g in the distribution of
assets of former East African Community in 1977.
6. Mostly used when the dispute is a minor one. In
70 years of modern history of conciliation, less
20.15
7. Value is still attached to it as evidenced by
the 1990 UN Draft Rules on Conciliation of
Disputes between states and the 1992 CSCE
Convention on Conciliation and Arbitration.
20.16
Legal Methods
a) Adjudication (ICJ) [dealt separately]
b) Arbitration
1. Concerned with the arbitration involving states
under International law and disregards the area
of international commercial arbitration between
private parties
2. It is more flexible than adjudication
a) Gives the parties more choices regarding seat of
tribunal
b) The appointment and selection of arbitrators and
20.17
4. The Permanent Court of Arbitration (PCA)
which was set up by the Hague for the
Pacific Settlement of International Disputes
in 1899, sponsored only 20 arbitrations
between 1900-1932 since then it has been
overshadowed by the Permanent Court of
International Justice (PCIJ) and the ICJ and
has heard few cases.
20.18
5. The name ‘court’ is misleading as the party
may nominate 4 persons to serve on panel.
6. The matter becomes complicated if the
arbitration involves a state and foreign
individual or company- often termed
arbitration.
20.19
7. The International Centre for Settlement of
Investment Disputes (ICSIID) in
Washington under the auspices of World
Bank handles such issues
8. This has provided solution to developing
countries as they host a great deal of private
investors.
2020
c) Settlements of Disputes under Law of The Sea
Convention
1. Came into force in 1999
2. Flexible- part XV states retain their basic
freedom to select the method of a given case.
3. Can choose other mechanisms
4. The courts and tribunals are competent with the
regard to all law of the sea matters submitted
under the convention
5. Decisions are binding as between the parties and
at their request they can be based on equity
20.21
6. No provision exist for enforcement.
c) The acceptance of international adjudication by
the sates cannot exactly be described as
enthusiastic.
1. States may be reluctant to go to the ICJ because
they prefer other tribunals that are smaller
(cheaper and more expedient) or specialised and
offer more chance of control to outcome.
20.22
3. Mostly states are cynical to appear before
the ICJ- because of distrust which state feel.
4. They believe that judicial decisions are
often unpredictable- because of dissenting
opinion.
5. Courts are feared to be too conservative
especially relating to customary rule.
20.23
tates view that bringing judicial
roceedings against another state is
ometimes regarded as an unfriendly act.
itigation is very expensive and time
onsuming
20.24
z. What should be done
1. States must define categories of cases they
don’t want the court’s jurisdiction.
2. Care should be taken when selecting
judges.