Bernas Public International Law – PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES Part 1

CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL
DISPUTES Part 1

What is international dispute?

-A disagreement on a point of law of fact, a conflict of legal views or interests between 2 persons

-Must have practical effect on the relationship between the parties

Peaceful methods of settling disputes:

• Art. 2, par. 3 of UN Charter: All members shall settle their international disputes by peaceful means in such manner that international peace and security, and justice are not endangered.

-There is no obligation to settle disputes except in cases that might endanger peace and security.

-But if a decision is made to settle disputes, the obligation is to settle them peacefully.

Key provisions in UN Charter:

• Art. 33: (disputes likely to endanger international peace and security)

-Parties to any dispute 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.

-When it deems necessary, the SC shall call upon the parties to settle their disputes by such means.

• Art. 36:

-SC may, at any stage recommend appropriate procedures or methods of adjustment.

-SC should take into consideration what has already been adopted by the parties.

-SC should consider that legal disputes should generally be referred by the parties to the ICJ.

• Art. 37:

-If parties fail to settle disputes via Art. 33, they shall refer it to the SC.

-If SC deems the dispute to likely endanger international peace and security, it shall: (a) take action under Art. 36; or (b) recommend appropriate terms of settlement.

• Art. 38:

-If all parties request, SC may make recommendations for pacific settlement.

Classifications of peaceful means of settlement:

A. Non-judicial

1. Negotiation:

• Preferred since States are hesitant to submit disputes to adjudicatory bodies.
• No set rules:
• An agreement to negotiate may be formalized via treaty or exchange of notes.
• May be arm’s length or face to face.
• To be binding, parties MUST agree to it.
• Preliminary step is “good offices” when a neutral 3rd party tries to bring 2 disputants together, after which disputants look for a win-win solution via a give-and-take process.

2. Mediation:

• Involves assistance of 3rd parties (approved by bother parties) who either act as bridge between parties who don¡¦t meet OR may sit with the disputants to chair meetings, suggest solutions, etc.

3. Inquiry:

• Fact-finding done by a designated group of individuals or institutions.
• Resolves disputes based on questions of fact.

4. Conciliation:

• A more formal technique whereby parties agree to refer controversies to a 3rd party to make findings of fact and recommendations.
• Generally, parties are not bound by the recommendations. Merely clears the air.

B. Quasi-judicial

1. Arbitration

• Binding settlement of a dispute on the basis of law by a non-permanent body designated by the parties.
• The compromise d’arbitrage is agreed upon by the parties and sets out: (a) composition; (b) jurisdiction; (c) rules of procedure to be applied.
• States cannot be required to submit to arbitration UNLESS there is a previous agreement.
• Different from judicial settlement since parties have a greater say in deciding the law applied, composition of tribunal, process, etc.

2. 3 types of arbitral agreement:

a. Arbitration clause incorporated in a treaty

b. Treaties solely to establish methods of arbitration (i.e. Hague Convention for Pacific Settlement of Disputes)

c. Ad-hoc arbitral agreements (i.e. US-Iran claims)

3. Arbitral decisions

• Applies international law UNLESS parties specify that some other law applies.
• Arbitral decisions may be challenged if:

a. the arbitral body exceeds its powers

b. there was corruption on the part of a member of the body

c. failure to state reasons for the awards OR a serious departure from fundamental rule of procedure

d. the undertaking to arbitrate OR the compromis is a nullity

• Domestic courts may refuse to give recognition to arbitral awards under Convention on the Recognition and Enforcement of Foreign Arbitral Awards:

a. agreement to arbitrate was not valid under applicable law

b. adverse party did not receive proper notice OR was not afforded opportunity to present its case

c. award is outside the terms of agreement to arbitrate

d. the constitution of the tribunal OR the arbitral procedure was contrary to the agreement or the law of the state where arbitration took place

e. award has not yet become binding, has been set aside or suspended by a competent court where it was made

f. under the law of the adverse party, the subject matter is not capable of settlement by arbitration

g. under the law of the adverse party, recognition or enforcement would be contrary to public policy