peaceful settlement of international disputes (part ii)
DESCRIPTION
Peaceful Settlement of International Disputes Source: Coquia-Santiago, Public International Law.TRANSCRIPT
Doctrine of “Forum Prorogatum”
Consent to submit to the international court’s jurisdiction is given even after proceedings as in an implied way.
Philippine Reservation
Compulsory jurisdiction of the ICJ ipso facto except:
Parties agree to recourse to other method of peaceful settlement;
Domestic jurisdiction;Other party: ICJ jurisdiction is
limited or does not satisfy a “time element” of ratification
Philippine ReservationMultilateral treaty:
(1) Parties to the treaty are all parties to the case;
(2) PHL specially agrees to jurisdiction.
Jurisdiction or rights claimed or exercised by the PHL: (a) natural resources; (b) territory
ICJ Jurisdiction in Virtue of State’s adherence to the Statute (Five Cases)
Provisional measuresPower to construe its judgmentDispute over its jurisdictionPower to allow a State to
intervenePower to file a unilateral
application
Justiciable Cases
Legal disputes concerning: Interpretation of a treatyAny question of international lawThe existence of factReparation
CONCEPT
Ex Aequo et bono
“From equity and conscience”Article 38(2) of the Statute of
the International Court of Justice (ICJ) provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto.
Procedure in CourtConsist of two parts: (1) oral and
(2) written.Application of the state, through
a memorial and a counter-memorial by the respondent.◦MEMORIAL: Sets out the case and
the submissions. ◦COUNTER-MEMORIALS: Admits or
denies the statement of facts and law in memorials.
Points of Information
Technical procedural points not given much importance by the Court, unlike in municipal courts.
Procedures in CoutsBefore trial on the merits, a
preliminary hearing is conducted By the president of the courtTo simplify:
◦Procedural matters◦Process proofs◦Produce stipulation of facts
Procedures in CourtsPreliminary objects are
entertained:◦Jurisdiction of the Court◦Condition precedent◦Interpretation of treaties◦Local remedies exhausted
Interim MeasuresThe Court may order any
provisional measure such as:◦Mandatory or Prohibitory injunction
Procedures in CourtOral proceedings: Court hears
witnesses, experts, agents, counsels and advocates.
Hearing is PUBLIC, unless the Court deems otherwise or parties demand public not to be admitted
Questions decided by majority of judges present. In case of a tie, the President or his alternate will break it.
Procedures in CourtThe judgment in final, but the
Court may interpret it. Revision not entertained, unless
based:◦Discovery of some facts that are
decisive factors◦Unknown to the Court and to the
party claiming revision◦Ignorance not due to negligence
Procedures in CourtJudgment binding only to the
parties
Principle of res judicata applies◦"The Court, whose function is to
decide in accordance with international law such disputes as are submitted to it, shall apply: ... c. the general principles of law recognized by civilized nations".
Enforcement of JudgementsLack of centralized force presents
difficulty in enforcement of decisionsExample: Corfu Channel case
Compliance relies on good faith. Recourse of the winning party:◦Self-help◦Cooperation with third state◦Municipal courts◦International institutions
SELF-HELPUse of force is prohibited (Art. 2
of the UN Charter)“Coercive sanctions” traditionally
sanctioned as “self-help” by the winning party.
Diplomatic/Economic measures may also be availed
Actions of International InstitutionsArt 94 (2) of the United Nations
Charter◦Collective action to secure
enforcement of judgmentComplaint for non compliance
may be filed with the GENERAL ASSEMBLY◦Ground: It affects the maintenance
of international peace◦Security Council decision obligatory to the judgment debtor
Advisory OpinionAdvisory opinion at the request
of the General Assembly, etc. State may avail of advisory
opinion to redress grievances against a UN organ/specialized agencies
No binding character, only advisory
Res judicata does not applyPolitical ramifications
Role in the International Community
Originally envisioned as a true international court for settling legal disputes among States.
Amendment to StatuteCoquia-Santiago recommends
removal or ammendment of optional and reservation clauses.
Regional Agencies or ArrangementsAMERICA
◦Treaty to Avoid or Prevent Conflicts between American States
◦General Treaty of Inter-American Arbitration
EUROPE:◦Treaty of Economic, Social, and Cultural
Collaboration and Collective Self-Defense◦European Convention for Peaceful
Settlement of Disputes (Council of Europe)
Regional Agencies or ArrangementsASIA
◦Association of South East Asian Nations (ASEAN)
International Tribunal of the Law of the SeaRATIONALE:
◦Special competence is needed◦Administrative, rather than strictly legal
approachA permanent tribunal able to function
more expeditiously where time element is of the essence (Third UN conference on the Law of the Sea)
More accessible to states, corporate entities and individuals
International Tribunal of the Law of the SeaCOMPOSITION:
◦21 independent members◦Elected◦Highest reputation of integrity and
fairness◦Recognized Competence◦No two national at the same state◦Equitable geographical
representation◦Principal legal systems
International Tribunal of the Law of the SeaJURISDICTION:
◦All disputes and applications in accordance with the Convention or any other agreement conferring jurisdiction to the Tribunal.
Compulsory Jurisdiction