The settlement of disputes by peaceful means

1. The settlement of disputesbypeacefulmeans

2. Point of departure • International conflicts are inevitable in international relations due to economic, political or security reasons etc. • Use of force in international relations is prohibited (UN Charter Art. 2(4). • 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.

3. States usually prefer diplomatic solutions to judicial settlement • Maintain control over decision-making • Can take into account extra-legal, complex factors (e.g. economic situation, international relations etc.)

4. Methods of dispute settlement • UN Charter Art. 33. • 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 own choice. • The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

5. UN GA Resolution 2625 (1970) • States shall… seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute. • The parties to a dispute have the duty, in the event of failure to reach a solution by any one of the above peaceful means, to continue to seek a settlement of the dispute by other peaceful means agreed upon by them.

6. Concept of (legal) dispute • 1924. PCIJ. Mavrommatis case: • ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or ofinterests between two persons.’ • 1950. ICJ. Interpretation of Peace Treaties Adv. Op. • ‘a situation in which the two sides held clearly opposite views concerning the questionof the performance or non-performance of certain treaty obligations.’

7. 1. Directnegotiationbetweenpartiestothedispute • Most natural method of dispute settlement, unregulated by international law. • GA Res. 53/101. (1998): Principles and guidelines for international negotiations • Usually through diplomatic channels, special envoys or international diplomatic conferences. • Venue could be symbolic, e.g. the US never agreed to negotiating with the Soviets on the territory of Baltic states

8. There is no general duty to enter into negotiations, it obviously depends on a certain degree of goodwill, flexibility and sensitivity • 2011. ICJ. Georgia vs Russia case: negotiations require ’a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party with a view to resolving the dispute’ • BUT: Treaties (or judicial decisions) might establish a duty to enter into negotiations • Art. 283(1) UNCLOS

9. No obligation of conduct, to achieve a precise result but good faith efforts • 1958. German External Debts Award: an agreement to negotiate does not imply an obligation to reach an agreement but ’it does imply that serious efforts towards that end will be made’

10. 2. Good offices • Third party (state or respected institution/person) attempts to influence the opposing sides to enter into negotiations • Does not take active part in the negotiations but provides the logistical background, serves as a channel. • Any party can offer its services but it has to be accepted by all the parties to the dispute.

11. Mediation • Goes beyond good offices, takes active part in the negotiation • Seeks to direct the negotiations, cajole the disputing parties into accepting the proposals • Offers his own proposals

12. E.g. USA in Camp David (Israel-Egyipt peace agreement) • Sometimes respected individuals (The pope in Argentine -Chile: Beagle Channel case), British Queen in Commonwealth disputes.

13. 3. Commissions of inquiry • Underlying problem is difference of opinion on factual matters – reputable observers can ascertain precisely the facts in contention. • Originally only ad hoc commissions established by the parties, nowadays increased use by UN and its specialised agencies • Conclusions are not binding on the parties.

14. E.g. 1904. Dogger Bank incident: Russian naval ships fired on British fishing boats (mistook them for Japanese torpedo craft), Russia paid a compensation of £65,000. • 1961. Red Crusader inquiry: Denmark and UK (firing on British trawler by Danish vessel when it attempted to escape arrest for alleged illegal fishing) • 2008. EU: Georgia-Russia conflict

15. 4. Conciliation • Third party investigation, commission submits a report embodying suggestions for a settlement • Members are experts in the subject matter of the dispute • Very flexible, clarify facts, proposals may stimulate negotiations • BUT: proposals are not binding! • UN GA Res. 50/50. (1995) • Number of multilateral agreements provide for conciliation • E.g. 1957. European Convention for the Peaceful Settlement of Disputes • 1982. UNCLOS

16. 5. International organisations • UN Charter Art. 52 (1) • Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

17. Supremacy of the Security Council • Art. 24(1) • In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. • Art. 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.

18. General Assembly, Secretary-General (Rainbow Warrior) • Regional organisations: e.g. Council of Europe, African Union, Organization of American States, Arab League etc.

19. 6. Arbitration • Binding method of dispute settlement • Goes back to the Ancient times (e.g. Greek polises). • Parties maintain control over the judicial proceedings • Appoint arbitrators • Determine applicable law, procedures • Arbitral award is binding (unless parties agree otherwise)

20. History • 1794. Jay Treaty: US and Great Britain, mixed commissions • 1872. Alabama Claims: Confederate warships built in the UK, violated the law of neutrality • $15.500.000 compensation

21. Permanent Court of Arbitration • 1899. HagueConvention I. • Institutionalisedarbitration, permanentregistry (International Bureau), PermanentAdministrativeCouncil, panel of persons • 1900-1932: 20 casesthenbecomesmoribund, active again sincethe 1990s • Peace Palace • Importance: infrastructuralbackgroundforarbitration, judges of the International Court of Justiceareelectedfromitslist. (Everystatenominates 4 personsfor 6 years.) • 2009. Abyeiarbitration