F.International Dispute Settlement

Transcription

1 F.International Dispute Settlement 1 Introduction to peaceful international settlement - UN member states have the obligation to settle disputes peacefully Art 2 UN Charter All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations Commentary: This is a system which prohibits use of force with very strict exceptions, so peaceful settlement has a fundamentally complementary role to the prohibition of use of force. Yet there is NO duty to settle disputes only to use peaceful means if the states want to settle the disputes!! Merrills: See also Section I, para.2 of the Manila Declaration (UNGA Res 37/ ). a International dispute - It is a disagreement with consequences on the international plane. It be can as to law or fact or policy or legal rights etc The Mavrommatis Palestine Concessions [1924] --- PCIJ Held: A disagreement on a point of law or fact, a conflict of legal views or interests between the parties Commentary: examples: On fact: how the Malaysian airlines fell etc. On law: claims on maritime boundaries; is a reservation to a HR treaty valid; what does investment mean under an investment treaty; who is responsible under the laws of attribution see USA v Iran etc. Azaria: this definition is confirmed in East Timor! b Peaceful means - There are diplomatic methods as well as legal methods. They can be used at the same time and are not mutually exclusive! Art 33 UN Charter The Parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice 2 The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

2 Commentary: There is no hierarchy of the means of dispute settlement states can choose freely. A taxonomy of the means of dispute settlement: 1 Diplomatic means: involvement of non-judicial function/political method; may involve third parties at times (e.g. reconciliation) Strengths Flexibility: aimed at finding a solution May be faster than judicial settlement, subject to the procedures and rules on expedited arbitration Strengthens the interaction between States Allows states to have control over the procedure: States are not bound and do not have to give consent to what they do not agree to (contra judicial settlements) Confidentiality may be protected Weaknesses Underscore unequal bargaining power: that is why the Philippines cleverly chose arbitration instead of negotiations with China due to its inferior bargaining power Too much control over the outcome by States (freely choose to be bound or not in general)c 2 Legal methods: employing the application of the rules of international law to settle the dispute = involvement of judicial function/legal method Aegean Sea Continental Shelf [1978] --- ICJ Held: the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function Commentary: Article 33(1) lists diplomatic and legal means of dispute settlement. These may run in parallel or can be resorted to in the alternative. Sheriff: thus, there are cases to be resolved by negotiation in the course of litigation: Iran-USA Aerial Incident case (1996) Negotiations (diplomatic method) - Negotiations is the most common method of dispute settlement. Advantages: Allows the party to retain control over a dispute without involving third parties (simultaneously, possible disadvantage) Allows interim containing of the dispute establishing a modus vivendi

3 Disadvantages: Negotiations will not be meaningful when: Either of the parties to the dispute insists upon its own position without contemplating any modification of it: North Sea Continental Shelf [1969] Or where the parties obstruct negotiations by interrupting communications or causing delays in an unjustified manner: Lake Lanoux Arbitration (1957) If the parties positions are too far apart Not always a free choice, as a State may have bound itself to negotiate in a treaty - The process is diplomatic/political and has got nothing to do with rules of international law: states just come together to discuss their disputes, although their arguments may involve arguments on international law - The outcome of negotiations may have binding effect if, say, the parties come to agree on a treaty - Negotiations have to be conducted in good faith - the parties to the dispute are obliged to conduct themselves so that the negotiations are meaningful: Railway Traffic between Lithuania and Poland, Advisory Opinion [1931] --- PCIJ Held: an obligation to negotiate requires states not only to enter into negotiations, but also to pursue them as far as possible, with a view to concluding agreements. However, it is NOT an obligation to reach an agreement. Commentary: see also Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) [2011] - Obligation to negotiate in good faith, as found in international agreements, e.g. Art. VI of the Treaty on Non-Proliferation of Nuclear Weapons, which requires negotiations in good faith expressly; Article 5(1), of the Interim Accord between FYROM and Greece: The Parties agree to continue negotiations [...] pursuant to Security Council resolution 845 (1993) with a view to reaching agreement on the difference described in that resolution and in Security Council resolution 817 (1993). [See, para. 131 of the FYROM v. Greece Judgment, where the Court interpreted this provision to require negotiations in good faith] Mediation (diplomatic method) - An adjunct of negotiation which involves a third party

4 - Neutral party employed to assist the exchange of views, but his role is ancillary. E.g. The Pope has acted as a mediator in the Beagle Conflict (papal intervention) Limitations: The parties have to consent to mediation and to the mediator Once mediation begins its prospects of success rests on the parties willingness to make concessions Parties have to be willing to accept mediation Advantages: The mediator s aim is to try to satisfy both parties to the dispute - When the parties to a dispute are unable to resolve it by negotiation, the intervention of a third party may assist in breaking the impasse by either encouraging them to continue negotiations or provide them with additional means of communication ( good offices ). The mediator may provide the parties with information and suggestions, may identify and explore their aims and may canvass a range of possible solutions. - Ad hoc or treaty basis: (Charter of the Organization of the African Union, 1963: Commission of Mediation, Conciliation and Arbitration, Article XIX: see ) - By states: (e.g. Algerian Government in Hostages in Tehran case; US in relation to the Malvinas/Falkand Islands invasion 1982 and the Dayton Peace Agreement ending the civil war in Yugoslavia) - By international organisations: (e.g. UN Secretary-General in Cyprus, and the Malvinas/Falkand Islands invasion 1982; the EC and the UN in relation to the Dayton Peace Agreement ending civil war in Yugoslavia) - By individuals: (e.g. Pope in 1985 Beagle Channel Dispute between Chile and Argentina). Inquiry (diplomatic method) - Two sense: a Broad: process of resolving a dispute of fact b Narrow: a specific institutional arrangement which may be selected instead of arbitration to establish the facts - Treaty provisions (e.g and 1907 Hague Conventions for the Pacific Settlement of Disputes, which provide for International Commissions of Inquiry; inquiry procedure under the 1982 LOSC) - Ad hoc - Role of international organisations: League of Nations (e.g. set up commissions of enquiries in relation to the 1921 dispute between Sweden and Finland concerning the

5 Aaland Islands; and for the 1925 Mosul dispute between UK and Turkey) International Civil Aviation Organization (ICAO) (e.g. KE 007 incident = shooting down of a South Korean jumbo jet over Soviet territory) UN Security Council (e.g. (1) The International Commission of Inquiry concerning Burundi established in 1995 to establish the facts relating to the assassination of the President of Burundi in 1993, the massacres and other related serious acts of violence which had followed; (2) United Nations Compensation Commission established pursuant to SC Resolutions 687(1991) and 692(1991) to administer a Fund to compensate for any direct loss, damage or injury to foreign Governments, nationals and corporations, following the Iraqi invasion and occupation of Kuwait. Claims for compensation are assessed by panels of experts and payments are made from a special fund financed from a levy on Iraqi oil sales) World Bank Inspection Panel (inquiry followed by a report, which involves fact-finding and evaluation as to whether the Bank acted consistently with its operational policies concerning environment/impact on local communities) Similar Panels in European Bank for Reconstruction and Development (EBRD) and Asian Development Bank. Conciliation (diplomatic method) - Definition: A method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute, 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 have requested (Art 1 Regulations on the Procedural of International Conciliation) - Involves a third person who is appointed by the parties. The third person provides a channel of communication and proposes solutions to help parties reach a compromise. The outcome is that the conciliators will provide recommendation/report which in itself is not binding. Yet States may accept the recommendation and make it binding itself. - The third person conciliator is NOT bound by international law the recommendations may be contra legem! The use of IL might often endanger the conciliation. - Task of investigating every aspect of the dispute and of proposing a solution which is not binding on the parties (J-P. Cot) - It calls for a package deal incorporating elements of equity, contra legem, if necessary; reference to international law may well hinder the solution of the conflict. (J-P. Cot)

6 - May be treaty based (e.g. Pact of Bogota 1948; OAU Charter 1963; 1969 VCLT; 1982 LOSC). - Energy Charter Treaty Art 7(7) special conciliation mechanism for transit disputes with binding interim measures by the conciliator for up to 12 months this is an exception based on state consent: the conciliator s decision will be BINDING (otherwise recommendatory only) Arbitration (legal method) - Parties set up a tribunal, choose their arbitrators to decide a dispute and agree to treat its decisions as binding - Permanent Court of Arbitration (1899 and 1907 Hague Conventions) = not a court! List of arbitrators and a bureau with premises, library and staff. - Ad hoc arbitration, e.g. ECT Art 27(2)-(3) providing for ad hoc arbitration of inter-state disputes, OSPAR Convention Art 32 (if the dispute cannot be settled by inquiry or conciliation within the OSPAR Commission, any CP to the dispute may submit the dispute to arbitration in accordance with the provisions set out in the Art 32). Advantages: States can control the procedure specifically for the particular dispute and can choose the members of the tribunal ( private justice ) Interim measures can be issued quickly Netherlands v Russia (Greenpeace Artic Sunrise Ship Case) --- protestors board the AS ship flying a Dutch flag. The protestors mounted on the gas installation belonging to Gazprom Russia. The vessel went into the exclusive economic zone of Russia, and was arrested by Russia on board when the law prohibits boarding of a vessel flying another state. The Netherlands went to the ITLOS and asked for provisional interim measures to be issued requiring Russia to release the vessel and the persons. After that, the Netherlands made a separate claim under arbitration for Russia s violation of international law. COM: the advantage of ITLOS is that the interim measures may be issued quickly Disadvantages: States are reluctant to make general commitments to judicial settlement It is difficult to ensure the losing party carries out the award Its effectiveness relies on responsible behaviour from states - Between States, e.g Mox Plant arbitration (OSPAR Convention, Article 9) between Ireland and the UK

7 - Between States and non-state entities, e.g Abyei Arbitration between the Government of Sudan and the Sudan People s Liberation Movement (the arbitration was conducted under the PCA Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State); or Texaco v Libya 1977 (Texaco Overseas Petroleum Company and California Asiatic Oil Company in exercising their rights under their Deeds of Concession with Libya, requested arbitration and appointed an arbitrator. Libya refused to accept arbitration. Pursuant to the arbitration provision in their Deeds of Concession, the Companies requested the President of the ICJ to appoint a sole arbitrator to hear and determine the dispute) Iran-US Claims Tribunal: one of the measures taken to resolve the crisis between Iran and the US arising out of the 1979 hostage crisis at the US Embassy in Tehran, and the subsequent freezing of Iranian assets by the US. The Government of Algeria served as mediator in the search for a mutually acceptable solution. The Tribunal has jurisdiction to decide (a) claims of US nationals against Iran and of Iranian nationals against the US, which arise out of debts, contracts, expropriations or other measures affecting property rights; (b) certain claims between the two Governments relating to the purchase and sale of goods and services; (c) disputes between the two Governments concerning the interpretation or performance of the Algiers Declarations; and (d) certain claims between US and Iranian banking institutions. - International Centre for Settlement of Investment Disputes (ICSID): established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (EIF 1966) - conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States (Art 1(2)). Seat at the World Bank. - The parties to the dispute decide to set up a tribunal to decide a dispute on the basis of international law, and agree to treat its decisions as binding. - The parties choose the arbitrators the dispute is decided by individuals that the parties to the dispute trust. Courts and tribunals (legal method) - Judicial settlement involves the reference of disputes to permanent tribunals for a legally binding solution - Courts with general jurisdiction The ICJ - Courts with specialised jurisdiction CJEU World Trade Organization Dispute Settlement Understanding Panels (3 experts selected ad hoc by the DS Body)/Appellate Body (seven members appointed for 4 years) backed by a mechanism on supervision of compliance