Cag University Faculty of Economics and Administrative Sciences, International Relations

Introduction to International Law II Peaceful Settlement of International Disputes Instructor: Ast. Prof. Sami Doğru

Peaceful Settlement of International Disputes Dispute A disagreement on a point of law or fact, a conflict of legal views or interest between the parties (Coquia and Santiago, 2005)

Peaceful Settlement of International Disputes International Dispute A disagreement on a point of law or fact, a conflict of legal views or of interests between two States. Disputes relate to an alleged breach of one or more legal duties. They may also relate to a question of attribution of title to territory, to maritime zones, to movables or to parts of the cultural heritage of a State.

Peaceful Settlement of International Disputes Kinds of Disputes 1. Political disputes: Non-justiciable, political or non-legal issues 2. Legal disputes: Involves not only questions of law but also the law itself

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. UN Charter Art. 2(4) Peaceful Settlement of International Disputes

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. UN Charter Art. 2(3) The international legal system has developed a number of ways of resolving such disputes by judicial settlement. Peaceful Settlement of International Disputes

1. The 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 own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. UN Charter Art. 33 Peaceful Settlement of International Disputes

1.Negotiation (görüşme) 2.Enquiry (soruşturma) 3.Mediation (arabuluculuk) 4. conciliation (uzlaştırma) 5.Arbitration (hakemlik) 6.judicial settlement (yargısal çözüm) 7.Resort to regional agencies or arrangements 8.Other peaceful means of their own choice Diplomatic methods Legal methods Peaceful Settlement of International Disputes

Parties to a dispute are free to choose one or a combination of these methods. The methods of dispute settlement fall into two categories: A. Diplomatic methods: Non binding decisions B. Legal methods: Binding decision 1. Arbitration 2. Judical settlement The peaceful means of dispute settlement Peaceful Settlement of International Disputes

A. Diplomatic methods: Negotiation: This involves direct contact between the parties to a dispute. Mediation and ‘Good Offices’:This involves using a neutral third party as a negotiator. Commissions of inquiry: This is where an independent body is used to establish the factual basis of a particular dispute. Its findings may provide the foundations for a negoti­ated settlement. Conciliation : Where an independent body is engaged to investigate the dispute and to provide a report containing recommendations targeted to resolving the dispute. However, such reports are not legally binding on the parties. The peaceful means of dispute settlement

A. Diplomatic methods: 1. Negotiation: 2. Mediation and ‘Good Offices’: 3. Commissions of inquiry: 4. Conciliation : The peaceful means of dispute settlement The above methods of dispute resolution do not necessarily involve international law and so you do not need to learn about them in detail.

B. Legal methods: 1. International Court of Justice: Judical settlement: 2. Arbitration The peaceful means of dispute settlement No international court is endowed with compulsory jurisdiction to resolve international legal disputes between States.

Judical settlement: ICJ The peaceful means of dispute settlement Submitting a dispute to a pre-constituted international court or tribunal composed of independent judges whose tasks are settle claims on the basis of international law and render decisions which are binding upon the parties

International Court of Justice - Established in 1946 as a principal organ of the United Nations -Its seat is at the Peace Palace in The Hague (Netherlands) - It replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922.

International Court of Justice Composition: –15 judges elected to nine-year terms of office by the UN General Assembly and SC sitting independently of each other. – It may not include more than one judge of any nationality. –Elections are held every three years for one-third (1/3) of the seats, and retiring judges may be re- elected. – The Members of the Court do not represent their governments but are independent magistrates.

International Court of Justice Composition : –The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law. –The composition of the Court has also to reflect the main forms of civilization and the principal legal systems of the world.

International Court of Justice (ICJ) - The ICJ is the current guardian of international law. - The first ‘World Court’ was the Permanent Court of International Justice (PCIJ), which was established in 1920 under the auspices of the League of Nations (1919). -Through its judgments the PCIJ was responsible for delivering some of the most important pronouncements on international law: e.g. the Lotus Case (1927) - It was superseded by the ICJ, which was created by the ICJ Statute (1945).

International Court of Justice (ICJ) Article 92, UN Charter ‘The [ICJ] shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the [PCIJ] and forms an integral part of the present Charter.’

International Court of Justice (ICJ) Access to the Court Article 35, ICJ Statute provides that only States have access to court. Under Article 93 (1), UN Charter, all member States are parties to the ICJ Statute.

International Court of Justice (ICJ) Access to the Court Before the ICJ will admit a case, it must be satisfied that: - the dispute is a legal dispute (i.e. capable of being settled by the application of principles and rules of international law); and - it has jurisdiction to decide the particular dispute in question.

International Court of Justice (ICJ) Functions of the Court 1. To settle in accordance with international law the legal disputes submitted to it by States, and 2. To give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

International Court of Justice (ICJ) Jurisdiction Article 36(1), ICJ Statute The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the [UN] Charter or in treaties and conventions in force. Article 36(1) ICJ Statute emphasises the requirement that a State has consented to the resolution of a particular legal dispute by judicial means.

International Court of Justice (ICJ) Jurisdiction of the court: Jurisdiction of the Court depends upon consent, the recognition of the States of the jurisdiction of the Court over a dispute. Recognition may be expressed by 1.Special agreement 2.Compromissory clause in treaties 3.Forum prorogatum 4.Declaration of States that they accept in advance the jurisdiction of the court in certain cases; Optional Clause

International Court of Justice (ICJ) Jurisdiction:Article 36(1), ICJ Statute

International Court of Justice (ICJ) Jurisdiction of the court: 1. Special agreement(compromis/tahkimname): States may refer a dispute to the Court by concluding a special agreement. Facts Qatar and Bahrain were in dispute about certain maritime and territorial issues. They sought to enter into an agreement so that the dispute could be referred to the ICJ. Legal principle The ICJ decided that the minutes of the December 1990 meeting constituted an international agreement which could give rise to ICJ jurisdiction.

International Court of Justice (ICJ) Jurisdiction of the court: 2. Jurisdictional clause in a treaty (andlaşmada bir hüküm) Some treaties concluded in the advance of a dispute may involve provisions of dispute settlement and recognize the jurisdiction of the ICJ. Key case Territorial Dispute (Libya v Chad) Legal principle The ICJ observed that the 1955 treaty: ‘clearly conveys the intention of the parties to reach a definitive settlement of the question of their common frontiers’

International Court of Justice (ICJ) Jurisdiction of the court: 3. Forum prorogatum (kabul yolu) Forum prorogatum arises where consent is identifiable from the conduct of a respondent State. Facts Djibouti alleged that France had failed to comply with obligations agreed in a bilateral treaty between the two States.Djibouti commenced legal proceedings before the ICJ. In a letter written to the ICJ, France agreed that the Court had jurisdiction to hear the case. Legal principle The ICJ observed that a claim of forum prorogatum can arise ‘when a respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court... ’

International Court of Justice (ICJ) Jurisdiction of the court: 4. Jurisdiction via the optional clause (tek taraflı bildiri ile) Article 36(2), ICJ Statute States also may at any time unilaterally declare that they recognize the jurisdiction of the court. Facts Portugal claimed a local CIL rule had been created that allowed it to reach three Portuguese territorial enclaves that were surrounded by territory belonging to India. Portugal deposited its declaration with the UN Secretary General.. Legal principle The ICJ decided that it was open to Portugal to initiate legal proceedings by the optional clause as soon as its declaration was deposited with the UN Secretary-General.

International Court of Justice (ICJ) Advisory Opinion (ICJ advisory jurisdiction) Articles 65-68, ICJ Statute, empower a body duly authorised by the UN to seek an Advisory Opinion from the Court Article 96 of the UN Charter 1. The General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question. 2. Other organs of the UN and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

International Court of Justice (ICJ) Advisory Opinion (ICJ advisory jurisdiction) Advisory Opinions are not legally binding. However, if an Advisory Opinion affects the rights and obligations of States they are generally acted upon A request for an Advisory Opinion must give rise to a legal question because the ICJ is only authorised to resolve legal disputes and to consider legal matters. However, often requests manifest both legal and political dimensions.

International Court of Justice (ICJ) Advisory Opinion (ICJ advisory jurisdiction) Key case The Kosovo Opinion (2010) ICJ 22/07/2010 Concerning: the validity of Kosovo’s declaration of independence as a matter of international law Legal principle The ICJ decided that the question asked ‘whether or not the applicable international law prohibited the declaration of independence’ (at Para 56). It decided that the declaration of independence did not violate international law.

Arbitration Arbitration is one of the legal means of dispute settlement and therefore, binding. Arbitrators are elected by the parties. In this respect it differs from the court mechanism. Like adjudication, the consent of all parties is required for arbitration. There could be a single arbitrator or an arbitration commision composed of a group of arbitrators.

Arbitration The parties should negotiate first and degree on the applicable law, the composition of the arbitration organ and the extent and content of the case to be arbitrated. Therefore, a special agreement or compromis is needed The law applicable in arbitration is often international law. However, parties may specify that a national law or equity my be applied.

If you have any questions, make an appointment to see me in my office. See you next week!