Enforcement & Dispute Resolution Outline Cecilia M. Bailliet
Hersch Lauterpacht International Law should be functionally oriented towards both the establishment of peace between nations and the protection of fundamental human rights.
Mary Ellen O Connell Law is valued for providing an alternative to the use of force in the ordering of human affairs. In this sense, all of international law is law of peace...
Membership in UN open to «Peace- Loving States» Compliance with UN resolutions, Guarantee of innocent passage in territorial waters, Peaceful settlement of border disputes Respect principle of non-intervention Level of Democracy to a lesser extent
UN Charter Art. 2 (3) All members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. Case: Legality of the Use of Force Case (Yug. v Belgium etc.) ICJ
Pacific Settlement of Disputes UN Declaration of International Law concerning Friendly Relations and Cooperation among States Manila Declaration on the Peaceful Settlement of Disputes ICJ -Principle of Pacific Settlement of Disputes considered Customary Law, Military and Paramilitary Activities Case
UN Peacemaking Mandate UN Secretary-General- Good Offices & Mediation, Special Envoys UN Peacebuilding Commission: DDR, elections, rule of law, water, health, job creation UN Security Council, Chapter VI UN Charter (non-binding) settlement of inter-state disputes, investigation, negotiation, mediation, referral to the ICJ, resort to regional agencies. Calls on states and non-state actors to settle disputes, endorses peace agreements, or recomends settlement procedures. Modest impact, in part due to problems with vetos. UN General Assembly can make recommendations and have emergency sessions, but lacks enforcement powers Regional- Europe, OSCE, OAS, AU, OIC- Peacebuilding, Peace Fund, Peace Academy- limited staffing, funding, transparency, publicity
UN Charter Art. 33 (1) 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, arbitraton, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Article 34 The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
Article 35 1Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly. 2A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter. 3The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.
Article 36 1The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. 2The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. 3In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.
Article 37 1Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.
Article 38 Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.
UN GA Res 377 A (V) (1950) Uniting for Peace Where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall seize itself of the matter
Peaceful Coexistence Grotius, Pufendorf & Vattel- Natural Right to Peaceful Coexistence Sino-Indian Agreement of 29 April 1954 1) Mutual Respect for Territorial Integrity and Sovereignty 2) Non-Aggression 3) Non-Interference in Internal Affairs 4) Equality and Mutual Benefit 5) Peaceful Coexistence Bandung Declaration on Promotion of World Peace and Cooperation (1955) adds respect for human rights and UN Charter, settlement of disputes by peaceful means, etc. Non-Aligned Movement, China, and Soviet Union UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States 1970
Disputes Facts Law Policy
Duty to Notify & Consult Duty to notify of impending harm Duty to consult to address other state s concerns (Lake Lanoux Case, France must consult Spain on waterworks project that would alter flow of water) Precondition of consultation: UN Convention Law of the Sea Art. 283, BITs, WTO arbitration
Negotiation Direct dialogue between parties (public or private) Obligation to make genuine and reasonable efforts to reach a solution in good faith (breach include delays or breaking discussions) Need goodwill, flexibility & mutual understanding Parties retain control without 3rd party Parties may make settlement legally binding by drafting terms in a treaty Alternative: adopt non-binding terms in exchange of notes Used to manage disputes, can be used along with other dispute resolution mechanisms (court, SC, GA)
Mediation Third party helps facilitate communications between states and may make proposals. (Algeria as mediator for US & Iran in Hostage Crisis- Algiers Accords) Makes informal proposals based on information provided by parties Mediator is active participant- offers ideas and interprets party proposals
Good Offices Neutral will be sent to persuade parties to negotiateserves as channel of communication, UN Secretary General, UN General Assembly, OAS Ambassadors, AU, EU Peace Envoy representatives, actual or former gov t officials, etc. See Lockerbie incident, UN SG Kofi Annan faciliate agreement btwn Libya, UK, & US. Two Libyans accused of planning terrorist attack on Pan Am flight over Scotland prosecuted by a Scottish court applying Scottish law in the Netherlands.
UN Security Council UN Charter Art 33 (2) SC calls parties to disputes to settle disputes via means listed in 33 (1), Chapter VI, Chapter VII SC takes measures to maintain or restore peace & security, including creation of international criminal tribunals Art. 37 States required to reger disputes likely to endanger international peace & security to the Council Third states may refer matter Council may recommend manner of settlement or terms of compromise Political body, interest is keeping the peace not judging legal issues of a dispute See Eichmann case, Israel abducts him in Argentina in order to try for war crimes, SC orders reparations but not release from Israeli custody See Lockerbie Case, ICJ does not grant interim measures because SC had taken measures But See Congo v. Uganda, Bosnia & Herz. V. Serbia & Montenegro ICJ, ICJ acts even though SC and GA active
UN General Assembly UN Charter, Art. 14 General Assembly recommends measures for peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly welfare among nations. Recommendations are not legally binding GA cannot make authoritative determinations of fact and cannot impose settlement GA may prompt negotations GA is best for political disputes, because resolution is often based on political blocs rather than impartial judgment
UNCLOS Art. 287 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.
Conciliation Parties submit pleadings to conciliator Conciliatior investigates and submits a report, may issue a non-binding decision, parties choose whether or not to adopt UN Convention on Law of the Sea Art. 284 (1) UN General Assembly Model Rules for Concilation of Disputes between States Jan Mayen Case, Norway v. Iceland
Commission of Inquiry Third party investigation and fact-finding Provides Impartial report on Facts (not binding settlement) Parties then proceed to negotiate based on these facts (World Bank Inspection Panel) (Arms control treaties)
Arbitration Formal process- written compromis sets forth terms of arbitration Ad hoc arbitration Compromissory clause within contract/treaty calls for arbitration, WTO, ICSID, NAFTA, Interatnional Chamber of Commerce International Court of Arbitration in Paris, Arbitration Institute of the Stockholm Chamber of Commerce, London Court of International Arbitration, American Arbitration Association in New York, Inter- American Comerical Arbitration Commission, Chinese International Economic and Trade Arbitration Commission Iran-US Claims Tribunal, UN Compensation Commission Eritrea-Ethiopia Boundary and Claims Tribunals
Arbitration Parties can choose arbitrators (may be technical experts) and have greater control over process and issues to be decided May be used in disputes between states and MNCs Arbitral Tribunal issues binding award on the basis of international law Parties may choose whether or not award is published Rainbow Warrior Case, France v. New Zealand Enforcment- courts must recognize validity of arbitration award
Arbitration Rules UN Conference on International Trade Law (UNCITRAL) Permanent Court of Arbitration (1899 Hague Convention for the Pacific Settlement of Disputes) Notice, establishment of tribunal, number of arbitrators, challenge or replacement of arbitrators, place of arbitration, submission of pleadings, evidence, applicable law, payment of costs of arbitration, issuance of award (may or may not be public)
UN International Court of Justice Art. 36 (1) Court has jurisdiction over all matters specifically provided for in the Charter of the UN and all cases which the parties refer to it, and all matters specifically provided for in treaties or conventions in force. Jurisdiction in not compulsory Ad hoc consent, parties agree by treaty to refere the matter to the Court, or unilateral application by one state, consent by the other (can be post hoc, ante hoc, treaties contain jurisdictional clauses granting Court jurisdiction over subject matter)
UN International Court of Justice Contentious Cases between two states (not open to individual participation) Circumscribed Jurisdiction: States cannot be sued before ICJ without their consent (may be ad hoc consent, or includsion of consent in BIT or multilateral treaty) Optional Clause in ICJ Statute Art. 36 (2), Consent ante hoc, State may make unilateral declaration accepting compulsory ipso facto ICJ jurisdiction in all legal disputes (only 65 states), (Many contain reservations on specific matters, e.g. continental shelf, land or maritime boundaries, or disputes with members of common community, or ratione temporis, domestic jurisdiction) (See ICJ Nicargua Case 1984 jurisdiction) Reservations requiring specific consent: Case: Legality of the Use of Force Yugo v. US ICJ, (US reservation to Genocide Convention impeded ICJ Jurisdiction) Decisions are binding on parties
ICJ Principle of Reciprocity Parties may refer to each other s declarations, reservations ICJ Norwegian Loans Case ICJ 1957 ICJ has few cases, has experienced absent defendants (Iran and US), and non-compliance with judgments.
UN ICJ ICJ Statute Arts. 62 & 63 Third State has right to intervene if dispute concerns a treaty to which it is a party and a State may request permission to intervene if it has an interest of a legal nature (does not depend on consent of State parties to the conflict). Purpose is to inform Court of legal rights which may be prejudiced, not seek a judicial determination
UN International Court of Justice Advisory Jurisdiction Chap. IV Statute, Art. 96 UN Charter Invoked by UN Organs and Agencies (Secretary General, General Assembly, etc.) States may participate in proceedings (not contingent on consent of State) In theory, designed to give guidance to international organizations on the exercise of their functions, but in practice it actually resolves questions of legal duties of states (Namibia Case, the Wall case) ICJ says consideration of same issues by SC or GA will not deter it from deciding upon legal issues falling within the terms of the Statute and UN Charter (the Wall Case, Western Sahara Case) Decisions are non-binding (but authoritative)
Group Work Does the ICJ have the power to review legally the decisions of the UN Security Council? Read the Statute of The International Court of Justice Read ICJ Case Concerning Questions of Interpretation and Application of the Montreal Convention Arising out of the Aerial Incident at Lockerbie (Provisional Measures)
Other Courts European Court of Justice- EC treaties European Court of Human Rights Inter-American Court of Human Rights International Criminal Court International Tribunal for the Law of the Sea (LOSC Arts. 279-299) (25 cases submitted) Apelllate Body of the World Trade Organization
Compliance State has given consent by joining treaty Long term benefits as per particular issue or effective international system Obtain good reputation and legitimacy within international society Fear of counter-actions in the event of noncompliance
Compliance Pull High legitimacy of rules that are determinate, fair Soft law creation is viewed as less legitimate
Measuring Compliance Reporting Independent verification Capacity building (technical aid, training)
Attaining Compliance Diplomatic Sanctions Economic Sanctions- Multilateral or Unilateral Military Force Civil and Criminal actions