Problem 4
Learning subjects
- Diplomatic dispute settlement
- The International Court of Justice
- When does a state have the right to use force
- When is the use of force considered to be contentious
L1: Diplomatic dispute settlement
Introduction
- The purpose of international law is to provide the answers required to
separate the powers of sovereign states and, to that end, help to avoid undue
friction between states.
- International law does not actually oblige states to settle their disputes and it is
a well know fact that disagreements between states may linger and simmer for
years.
- What international law does require is that states find peaceful solutions to the
disputes they are trying to resolve. Art. 2 (3) of the UN charter.
Non-adjudicatory (niet-bindende) means of settling international disputes
- Negotiation: The most common means to resolving a dispute is for the parties
to directly negotiate a suitable solution.
- In some areas, states commit themselves legally to initiate negotiations if s
dispute arises (EXAMPLE: members of the UN).
- Good offices: The term ‘good officers’ is used when a third party, usually an
entity that is deemed neutral and trustworthy by the parties, offers to facilitate
and support potential efforts to enter into direct negotiations.
- Mediation: ‘Good officers evolve into mediation when the third party assumes
a more direct role in the negotiations and begins to suggest terms for potential
settlement or offers solutions for compromise, in practice, the line separating
the two functions is a thin one
- Mediation is not governed by any specific rules or principles and the mediator
is generally free to approach the negotiations as he or she prefers, but
successful mediation usually requires the mediator to play an active role and
seek to identify the underlying interests of the parties to the dispute, in many
cases it requires both common and separate (often confidential) meetings with
the parties.The solutions offered by a mediator are not binding.
- Commission of inquiry: When parties are in disagreement about the factual
circumstances surrounding a dispute, they may appoint an impartial
commission of inquiry (onderzoek) tasked with ascertaining (vaststellen) the
relevant facts.
1
, - A commission of inquiry may also be established by an international
organization or a supervisory organ in order to determine if a state has
breached a relevant treaty obligation and additional steps may be warranted
- Conciliation: refers to the production of a report with non-legally binding
recommendations by a third party trusted by the parties on the proper
settlement of a dispute.
- The purpose is not to determine who is wrong and who is right, but merely to
offer a solution to the dispute.
The most important dispute mechanisms of the UN involves
- The Security Council: primary responsibilities for the maintenance of
international peace and security and, to that end possesses wide-ranging
powers
Chapter 4 (IV): deals with the power of the security council in relation to
the pacific Art. 33, 34, 36, 37 and 38 UN charter
Chapter 5: If the security council determines that an ongoing dispute
constitutes a threat to the peace, it may adopt additional measures that
are provided in this chapter → unlike the recommendations under
chapter 4, decisions adopted under chapter 5 may be binding on the
parties.
- The UN General Assembly: also fulfills an important role in finding a peaceful
solution to disputes. Since all members of the UN are represented in the
assembly, it offers a crucial institutional setting for all sort of debates,
negotiations and interstate dialogue.
Art. 14 UN Charter: The Assembly may discuss and make
recommendations on any issue within the scope (strekking) of the UN
Charter
Two things must be noted in regard to the powers of the general
assembly
1. The Assembly is subordinate to the Security Council, in the
sense that it may not make any recommendation with regard to a
‘dispute or situation’
WHY CANT THEY MAKE ANY RECOMMENDATIONS WHILE ITS WHAT THEY
DO?
2. Unlike the Security Council, the Assembly does not have the
authority to issue binding decisions or resolutions and states are
therefore under no legal obligation to comply with its decisions or
recommendations
- The Secretary-General of the UN: Plays an increasing role in the peaceful
settlement of disputes, often offers his ‘good offices’ – Art. 99 UN Charter
2
Learning subjects
- Diplomatic dispute settlement
- The International Court of Justice
- When does a state have the right to use force
- When is the use of force considered to be contentious
L1: Diplomatic dispute settlement
Introduction
- The purpose of international law is to provide the answers required to
separate the powers of sovereign states and, to that end, help to avoid undue
friction between states.
- International law does not actually oblige states to settle their disputes and it is
a well know fact that disagreements between states may linger and simmer for
years.
- What international law does require is that states find peaceful solutions to the
disputes they are trying to resolve. Art. 2 (3) of the UN charter.
Non-adjudicatory (niet-bindende) means of settling international disputes
- Negotiation: The most common means to resolving a dispute is for the parties
to directly negotiate a suitable solution.
- In some areas, states commit themselves legally to initiate negotiations if s
dispute arises (EXAMPLE: members of the UN).
- Good offices: The term ‘good officers’ is used when a third party, usually an
entity that is deemed neutral and trustworthy by the parties, offers to facilitate
and support potential efforts to enter into direct negotiations.
- Mediation: ‘Good officers evolve into mediation when the third party assumes
a more direct role in the negotiations and begins to suggest terms for potential
settlement or offers solutions for compromise, in practice, the line separating
the two functions is a thin one
- Mediation is not governed by any specific rules or principles and the mediator
is generally free to approach the negotiations as he or she prefers, but
successful mediation usually requires the mediator to play an active role and
seek to identify the underlying interests of the parties to the dispute, in many
cases it requires both common and separate (often confidential) meetings with
the parties.The solutions offered by a mediator are not binding.
- Commission of inquiry: When parties are in disagreement about the factual
circumstances surrounding a dispute, they may appoint an impartial
commission of inquiry (onderzoek) tasked with ascertaining (vaststellen) the
relevant facts.
1
, - A commission of inquiry may also be established by an international
organization or a supervisory organ in order to determine if a state has
breached a relevant treaty obligation and additional steps may be warranted
- Conciliation: refers to the production of a report with non-legally binding
recommendations by a third party trusted by the parties on the proper
settlement of a dispute.
- The purpose is not to determine who is wrong and who is right, but merely to
offer a solution to the dispute.
The most important dispute mechanisms of the UN involves
- The Security Council: primary responsibilities for the maintenance of
international peace and security and, to that end possesses wide-ranging
powers
Chapter 4 (IV): deals with the power of the security council in relation to
the pacific Art. 33, 34, 36, 37 and 38 UN charter
Chapter 5: If the security council determines that an ongoing dispute
constitutes a threat to the peace, it may adopt additional measures that
are provided in this chapter → unlike the recommendations under
chapter 4, decisions adopted under chapter 5 may be binding on the
parties.
- The UN General Assembly: also fulfills an important role in finding a peaceful
solution to disputes. Since all members of the UN are represented in the
assembly, it offers a crucial institutional setting for all sort of debates,
negotiations and interstate dialogue.
Art. 14 UN Charter: The Assembly may discuss and make
recommendations on any issue within the scope (strekking) of the UN
Charter
Two things must be noted in regard to the powers of the general
assembly
1. The Assembly is subordinate to the Security Council, in the
sense that it may not make any recommendation with regard to a
‘dispute or situation’
WHY CANT THEY MAKE ANY RECOMMENDATIONS WHILE ITS WHAT THEY
DO?
2. Unlike the Security Council, the Assembly does not have the
authority to issue binding decisions or resolutions and states are
therefore under no legal obligation to comply with its decisions or
recommendations
- The Secretary-General of the UN: Plays an increasing role in the peaceful
settlement of disputes, often offers his ‘good offices’ – Art. 99 UN Charter
2
