unit 12. the peaceful settlement of disputes.pptx

8/17/2019 Unit 12. The Peaceful Settlement of Disputes.pptx

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UNIT 12: THEPEACEFUL

SETTLEMENT OFDISPUTES

Miss E. Siang’andu


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Principles of PeacefulSettlement of Disputes

between States A. Charter of the United Nations (UN)•. Purposes of UN – Article ! Para )•. To maintain international peace & security….to

take effective measures for the prevention &removal of threats to peace………to bring about

by peaceful means & in conformity with principles

of justice & international law adjustment or

settlement of international disputes.


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Art 2, Para 3 UN Charter

All members shall settle their

international disputes by peaceful

means in a manner that international

peace & security and justice, are not

endangered


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Art 33, Para 1

The parties to any dispute, the continuance of

which is likely to endanger the maintenance

of international peace & security, shall first of

all seek a solution by negotiation, inquiry,mediation, conciliation, arbitration, judicial

settlement, resort to regional agencies or

arrangements or other peaceful means of

their own choice.


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"he principle of the peaceful settle#ent

of dispute $as reaffir#ed in a nu#%er of

&eneral Asse#%l' esolution

esolution *+*, (-,)

es *,/0 (-,)

es *+*1


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Negotiation

Negotiation is the si#plest 2 #ost utilised for# of

dispute settle#ent.

Consists of discussions %et$een the interested

parties $ith a 3ie$ to settling conflicting opinions.

4t does not in3ol3e an' third part'.

Most satisfactor' #eans of dispute settle#ent as

parties are directl' in3ol3ed.

5ence parties %et$een the#sel3es decide ho$%est to resol3e their differences ( See 6udge

Ner3o! isheries !urisdiction case! 4C6 eports!

-,/! pp./!01


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Inquir

7here there are differences of opinion

on factual #atters underl'ing a dispute

%et$een parties a co##ission of in8uire

can %e conducted to deter#ine precisel'the facts in contention.

Pro3isions for such in8uiries $ere first

e9plained in the :-- 5agueConference as an alternati3e use of

ar%itration.


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!e"iation

Consist of the use of the /rd part'

Mediation in3ol3es acti3e in3ol3e#ent in

the negotiation process of the /rd part'

itself. A #ediator is a person appro3ed %' %oth

parties %oth parties to a dispute

;%


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#oo" o$ces

Preli#inar' to direct negotiation %et$een

parties

Consist of the use of the /rd part'.

&ood ;ffices in3ol3es a "hird part' $hoatte#pts to influence opposing side to enter

into negotiations.

o%


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%&amples of 'oo" o$ces

US Secretar' of State in da's preceding the

U=’s reoccupation of the >al?land 4slands

ole of UN 2 ;AU (AU) in the dispute

%et$een Congo 2 Uganda – disputeconcerned acts of aggression 2 inter3ention

---@*.

UN Sec. &eneral role in dispute %et$een

So3iet Union! Pa?istan 2 Afghanistan

concerning presence of so3iet troops in

Afghanistan.


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Conciliation

Process in3ol3es a /rd part' in3estigations of the

%asis of the dispute 2 the su%#ission of the

report consisting reco##endations for a

settle#ent.

Procedure in3ol3es co#ponents of %oth in8uir'

2 #ediation.

Conciliation reports are onl' reco##endations

and do not constitute %inding decisions thusdiffer fro# ar%itration a$ards.

Procedure is used as one of dispute settle#ent

%' -:* Con3ention on the a$ of the Sea.


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Arbitration ( I

Bistinction %et$een ar%itration 2


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Arbitration ( II

"he Per#anent Court of Ar%itration $as

esta%lished %' "he 5ague con3entions of

:-- 2 -, it continues to function til

date 4t is neither per#anent nor a court! it

consists essentiall' of a Dpanel’ of

ar%itrators

Each part' to the con3ention can appoint four

indi3iduals of recognised co#petence in

international la$.


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Arbitration )u"icial means of

"ispute settlement

Ar%itration a$ards ha3e contri%uted

significantl' to the de3elop#ent of #an'

areas of 4 i.e.

"he USMe9ican Clai#s Co##ission-*+ – state responsi%ilit'.

Ar%itral a$ard in the 4sland of Pal#as

Case (-*:) ac8uisition of territor'


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*herefore Arbitration +

4s a procedure for settle#ent of legal

disputes achie3ed %' application of

rights 2 duties under 4.

Ar%itration a$ards are legall' %inding onthe parties.

4n ar%itration proceedings parties

choose the ar%itrator or


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The International Court of u!ti"e #IC$ % I

7orld court Per#anent Court of

4nternational 6ustice (PC46) 2

international Court of 6ustice (4C6).

PC46 esta%lished in -* $as superseded %' the 4nternational

Court of 6ustice (4C6) in -0+

7or? of 4C6 is a continuation of thePC46.


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Not the pri#ar' #eans of settle#ent of

disputes %et$een states

DPrinciple


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orl" Court ( IC)

"he crt’s function is t$o foldH

. "o assist in the resolution of disputes

%et$een states

*. "o pro3ide ad3isor' opinions to

specified international organisation on

certain legal issues


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"he crt has no e9press tas? of pro3iding

for


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Composition IC)

Co#posed of fifteen #e#%ers

Elected for a period of nine 'ears and

can %e reelected (Art / Statute of 4C6.

6udges of the court are elected %' the

Asse#%l' and Council Art 0 of the

statute of the international court of


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Art -+ of the UN Charter recognises the

right of the &A or the SC 2 other

authorised %odies to see? ad3isor'

opinions fro# the 4.C.6


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Art /0 of the statute of the 4.C.6. onl'

per#its states to %e part to %e parties to

contentious proceedings %efore the

court e9cludes the possi%ilities of directparticipation of the Union other

international organisations in cases


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Composition cont-

UNS& dra$s up a list of candidates no#inated %'

national groups

>ro# the list the &A 2 SC elect


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*nd criteria – Art - of the statute the %od'

of


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"he essential ai# of the 4C6 has %een to

secure a %od' of independent


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Ad hoc


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6udges can onl' %e su%


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Art , e9cludes fro# a particular case an'


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"he atte#pt to ensure independence

#eans that


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A""e!! to the Court%Contentiou! "a!e!

Art /0 () of the statute D onl' states #a'

%e parties in cases %efore the court’

States that can appear %efore the court

include

. #e#%ers of the UN $ho under art -/()

of the charter are ipso facto parties to

the statute of the court *. non UN#e#%ers $ho desire a per#anent

association $ith the crt


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*. Art -/(*) %eco#e parties to the statute on

condition to %e deter#ined in each case %'

the &A on reco##endation of the SC as $as

the case on conditions i#posed onS$itIerland in -0, 2

iechtenstein in -1 – in3ol3ed acceptance

of the statute! of the o%ligations of UN

#e#%ers under art -0 of the charter 2 ofcontri%uting an e8uita%le a#ount to the

e9penses of the court


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/. non UN #e#%ers $ho $ish to

appear %efore the crt as parties in a

particular dispute or class of disputes

%ut $ithout %eco#ing parties to thestatute. (possi%le under art /1(*) of the

statute).

4nternational organisations ha3e nolocus standi as parties in the contentious

case %efore the court.


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A""e!! to the Court% 2&A'(i!or) uri!'i"tion

Art +1 of the statute pro3ides that the

court #a' gi3e an ad3isor' opinion on

an' legal 8uestion at the re8uest of

$hate3er %od' #a' %e authorised %' orin accordance $ith the charter of the UN

to #a?e such a re8uest


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4ndi3idual states cannot re8uest an

ad3isor' opinion! their rights are li#ited

to suppl'ing infor#ation under Art ++ of

the statute.


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A'(i!or) uri!'i"tion"ont& No international ;rganisation has locus standi

%efore the crt as a part' to a contentious case

;nl' /0() onl' creates pro3isions for states

"he ad3isor'


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"herefore it is a $ea?er state#ent of la$

than a


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4.C.6 can an ad3isor' opinion on a legal 8uestion

Crt is ne3er under a dut' to gi3e an opinion upon

re8uest

Crt has onl' once refused to gi3e an ad3isor'opinion na#el' that of $hich the 75;

Asse#%l' concerning the legalit' of the use of

nuclear $eapons

Becision confir#ed that a refusal to gi3e anopinion $ill not %e %ased on the ground that the

8uestion at issue is a Dpolitical’ one


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Bistinction %et$een legal 2 political has

#an' #eanings 2 cannot %e used as

the %asis for the


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.ases on which Crt mi'ht refuseto 'i/e an opinion+

4f opinion #ight not %e accepted %' all

the #e#%ers

if opinion could lead to se3erel'

da#aging the reputation of the crt 5o$e3er the crt’s refusal to gi3e an

opinion could also %e har#ful to its

reputation


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for instance if crt declined to gi3e an

opinion on the %asis that the nature of

the re8uest $as political.

4t could %e argued that an opinion %asedon purel' legal reasoning 2 a%stracting

fro# the political conte9t in $hich it has

%een re8uested is unli?el' to ser3e an'useful propose.


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*he A"/isor 0pinion has beenuse" for our main purposes

. As #eans of securing an authoritati3e

interpretation of the charter pro3isions

or pro3isions of a constitutional

docu#ent of specialised agenciesH

(See "he ad#issions and co#petence cases! the

4MC; case or the certain E9penses case are o%3ious

e9a#ples).


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"hese interpretations are not authoritati3e

2 not strictl' %inding

No pro3ision under treat' Charter for

settle#ent of disputes o3er interpretations Crt is not entrusted $ith an' for#al po$er

of


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11 Namibia A"/isor 0pinion

Crt had to consider the argu#ents put

for$ard %' certain MS that the &A had

e9ceeded its po$er in adopting res *01

(FF4) putting an end to South Africa’s#andate o3er South7est Africa $hich

also raised 8uestions regarding the

3alidit' of contested resolutions of the

SC.

P f " i 0 i i


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Purposes of a"/isor 0pinioncont-

4n considering $hether to gi3e 75; an A;

or not on in regards to re8uest #ade %'

75; on the legalit' of the use of nuclear

$eapons. Crt had to %e satisfied as to the co#petence

of 75; on that #atter

75; failed to gi3e effect to the principle of

Dspecialit'’ 4t accordingl' refused to ans$er the re8uest

as per decision


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*. 4t has %een used to secure guidance for

3arious organs in underta?ing their

functions the peace treaties! reser3ations!

reparations! south $est africa (3oting)! UNad#inistrati3e tri%unal! 4; ad#inistrati3e

"ri%unal (UNESC;) 2 na#i%ia.


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Purposes of a"/isor 0pinions

/. Ad3isor' function used to address a

su%stanti3e legal 8uestion –

the --+ A; gi3en to the UN &A on the legalit'

of the threat or use of nuclear $eapons after

considering the threat or use of force!

the custo#ar' 2 con3entional international la$

applica%le in situations of ar#ed conflict 2 45

concluding that the threat or use of nuclear

$eapons $ould generall' %e contrar' to the rules

of international la$ applica%le in ar#ed conflict 2

the rules if 5


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0. Ad3isor' function has in the past %een

used as #eans of introducing a for# of

recourse fro#


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%/aluation of IC)

Since -01 less cases referred to 4C6

-0+ *+ + – contentious cases

*0 ad3isor' opinions

States are reluctant to refer cases to

4C6H

4n politics the act of a state referring

another state to court is unfriendl' etter to settle in other tri%unals.


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Crt had pro%le#s of an a%sent

defendant

US Biplo#atic 2 Consular staff in

"ehran -: Nicaragua 3 USA! 4ran 2 USA

respecti3el' o%


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>ailed to appoint counsel

Under such circu#stances crt cannot

order


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Despite itsshortcomin's+ Crt has #ade 3alid contri%ution to

de3elop#ent of 4

Crt has %een criticised for its failure in

#atters of peace #a?ing ut is peace ?eeping a role of a courtJ


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unit 12. the peaceful settlement of disputes.pptx

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