Flashcards in 7 - Dispute Settlement Deck (26)
Which UN organs are responsible for the maintenance of international peace and security?
The UN organs that are responsible for the maintenance of international peace and security are the security council and the general assembly.
What is the security council?
The security council is one of the six principal organs of the UN – charged with ensuring international peace and security. It has 15 members and 5 permanent (UK, France, China, US and Russia).
What is the general assembly?
The general assembly is all 193 Member States of the Organisation which is again, one of the six principal organs of the UN.
Is the security council or the general assembly more important when dealing with dispute settlement?
The Security Council is the principal organ with primary responsibility for the maintenance of international peace (Article 24). Whilst the SC is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so request.
What is the legislation that obliges UN Member States to settle their disputes peacefully?
The UN Charter.
What are the non-binding mechanisms that UN Member States can apply to settle their disputes?
Negotiation, Inquiry, Good Offices & Mediation and conciliation.
What is 'negotiation'?
This is where “discussions between the interested parties take place with a view to reconcile divergent view”. – in certain circumstances, there might be a duty to enter into negotiations
What is 'inquiry'?
“Where difference of opinion on factual matters underlie a dispute… the logical solution is often to institute a commission of inquiry to be conducted by reputable observers to ascertain precisely the facts in contention”
What is 'good offices & mediation'?
“…involve the use of a third party, whether an individual or individuals, a state or group of states or an international organisation, to encourage the contending parties to come to a settlement. Unlike … arbitration and adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its termination by themselves”
What is the quote that shows that negotiations are to be taken seriously and they aren't just a pre-requisite to other steps available and where is the quote from?
“The legal import of that obligation goes beyond that of a mere obligation of conduct: the obligation involved here is an obligation to achieve a precise result…” – Legality of he Threat or Use of Nuclear Weapons, Advisory Opinion.
What is an example of good offices and mediation?
During the 70s France provided good offices to encourage the us and North Vietnam to enter into negotiations in Paris.
What is conciliation?
“…involves a third-party investigation of the basis of the dispute and the submission of a report embodying suggestions for a settlement…involves elements of both enquiry and mediation”
What are the Bryan treaties?
A series of treaties that aimed to settle disputes through the creation of a permanent inquiry committee.
What had all the Bryan treaties have in common?
The treaties were not all identical, but had the following key feature in common: the high contracting parties agreed (1) to refer all disputes that diplomatic methods had failed to resolve to a Permanent International Commission for investigation and report, and (2) not to begin hostilities before the report was submitted.
What are the two binding mechanisms that Member States can apply when settling disputes?
Arbitration and Judicial Adjudication.
What is arbitration?
The use of an independent person or body officially appointed to settle a dispute.
What led to the creation of arbitration?
Originated with the 1794 Jay Treaty (Alabama) when US gained independence from Great Britain. 1899 Hague Convention for the Pacific Settlement of Disputes led to the creation of the Permanent Court of Arbitration.
What is the Permanent Court of Arbitration?
Not actually a court. The international organisation facilitates arbitration and keeps a roster of arbiters agreed in advance. PCA these days more over deals with inter-state arbitration and investor state arbitration
How does the Permanent Court of Arbitration appoint its arbitrators?
Through a list pre-approved by UN Member States - it's hard for Member States to question the arbitrators impartiality when they have already agreed to it prior to the dispute.
What is the Kompetenz-Kompetenz principle?
"Who decides who decides" - The so-called "Kompetenz-Kompetenz" principle in essence provides that an arbitral tribunal decides itself whether it has jurisdiction to decide a dispute brought before it. That means that, in principle, a state court has no role to play in a decision of an arbitral tribunal on its own competence.
What is a compromis?
A compromis is a special agreement through which states (and others) agree to refer the disputer to arbitration
When can an award be nullified?
An award can be nullified on the following grounds: excess of power, corruption of a tribunal member, serious departure from the rules of procedure and essential error.
What does the Permanent Court of Arbitration deal with mostly these days?
Investment claims between companies and states.
What are the advantages of going through the PCA?
Arbitration in the PCA is generally a lot quicker and cheaper than adjudication.
What are the advantages of going through adjudication?
Adjudication goes through ICJ which has a more extensive evidence procedure so is a more reliable result.