Weblecture 5

Weblecture 5 – Introduction to International and European Union Law

 Dispute settlement in international law:
 Setting the scene:
 What is a dispute?
 A definition: a specific disagreement about issues of fact and/or law and/or policy with
consequences on an international plane.
 What are the obligations of States in this field?
 Art. 2(3) 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.
 Art. 2(4) UN Charter: all Members shall refrain in their international relations from the threat
or use of force against or in any other manner inconsistent with the purposes of the UN.
 See also: 1982 Manilla Declaration on the Peaceful Settlement of international disputes parr
2,5 and 7.
 There is no obligation in international law that states have to settle their disputes -> all forms of
DS based on States’ consent: but the UN Charter imposes an obligation for its member states to
settle their disputes peacefully -> guiding principle.
 What are the different methods of dispute settlement under international law?
 Article 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 own choice”.
 Diplomatic means (pay attention to the role of the third party!).
 Legal means (based on consent! Either Ad hoc or permanent).
 Note: treaties often stipulate how disputes (e.g., related to treaty application) shall be resolved.
 Also note: some reservations to treaties might be about dispute settlement -> art. IX Genocide
Convention.
 Diplomatic means: negotiation (inter partes):
 Majority of disputes solved by negotiations -> on the basis of law alone?
 Often a precursor to decide on different methods of settlement (even duty to negotiate if indicated in
a treaty).
 Advantages?
 Parties retain control over every phase of the process (no third party per se). In fact, used more
often in practice than the other methods.
 Disputes can be solved by negotiation during litigation (e.g. Ecuador-Columbia Aerial Herbicide
Spraying case, ICJ).
 Disadvantages?
 Relies on good will, flexibility – States might refuse to speak to each other/positions too far apart -
> thus, does not always yield results.
 When there is significant power imbalance among the parties.
 Diplomatic means: negotiation (cont.):
 North Sea Continental Shelf case ICJ (para. 85):
 “Parties are under an obligation to enter into negotiations with a view to arriving at an
agreement, and not merely to go through a formal process of negotiation of a sort of prior
condition for the automatic application of a certain method of delimitation in the absence of
agreement; they are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position without
contemplating any modification of it”.
 What State obligations with regard to negotiations can we derive from these excerpts?
1. Enter negotiations in good faith.
2. Obligation to meaningfully engage – not just going through the motions: a genuine attempt.
3. Obligation not to jeopardize the process.
 Other diplomatic means require involvement of a third party, (to varying degrees):
 What happens if negotiations do not work?
 Good offices: facilitation.
 Mediation: facilitation + offer solutions.
 Enquiry: fact-finding.