Week 6

Question 1

International dispute: …

Answer 1

A disagreement on a point of view or fact, a conflict of legal views or of interests between two persons. Such a dispute arises between two subjects of international law.
- Subject of law can be States, but also individuals or international organizations.

The parties to the dispute can settle the dispute through diplomatic means or judicial means. These are laid down in art. 33 (1) of the UN Charter.

Question 2

State consent is necessary when resolving conflicts between states.
- But international law stipulates that states must find peaceful solutions to their conflicts, see art. 2(3) and 2(4) UN Charter.
- The manner in which states must resolve their conflicts is determined by art. 33 UN Charter.

Question 3

There are different methods to resolve conflicts. We can divide these into diplomatic means and judicial mechanisms.

1. Dispute settlement by diplomatic means: …
2. Dispute settlement by adjudicatory means: …

Answer 3

1. This concerns dispute resolution through diplomatic channels. No judicial body is involved in this.
2. This refers to the various legal procedures that can be used to resolve a dispute.

Question 4

Diplomatic means (3)

Answer 4

Dispute resolution through diplomatic channels. No intervention by a judge.

1. Negotiations
2. Good offices
3. Mediation
4. Commission of inquiry or fact-finding mission
5. Conciliation

Question 5

Non-adjudicatory means:
1. Negotiations
2. Good offices
3. Mediation
4. Commission of inquiry or fact-finding mission
5. Conciliation

Answer 5

1. Negotiating a suitable solution.
2. Third party serves as an intermediary.
3. Third party assumes a more direct role.
4. Independent and impartial commission.
5. Third party will produce a report with non-legally binding recommendations.

Question 6

1. Negotiations

Answer 6

• Takes place between two equal parties
• Without the intervention of a third party
• ICJ: states must have made a ‘genuine attempt’ to participate in the discussion with the other party and with the aim of resolving the conflict.

Question 7

2. Good offices

Answer 7

• Not explicitly in art. 33 UN Charter, but widely used. It therefore falls under ‘other peaceful means of their own choice’.
• Can be seen as another communication channel, where a third party acts as an intermediary.

Question 8

3. Mediation

Answer 8

• Third party acts as mediator.
• The difference with good offices is that the third party has a more active role.
• Third party is therefore not only a communication channel, but actively contributes to finding a solution.

Question 9

4. Commission of inquiry or fact-finding mission

Answer 9

• If the parties disagree about the facts relating to the conflict, a committee can be appointed to conduct a fact-finding investigation.
• The committee must be independent and impartial.
• The commission may be an international organization or a supervisory body.

Question 10

5. Conciliation

Answer 10

• A third party will actively investigate the facts of the conflict and issue a non-binding opinion.
• This advice serves as a provisional solution to the conflict.
• In conciliation the third party has an even more active role than in mediation.

Question 11

Dispute settlement at the United Nations:

Various UN bodies play a role in conflict resolution.

Security council aims to protect international peace and security and has, among other things, the following powers:
- Art. 34 UN Charter: investigating conflicts that could lead to international friction or conflict.
- Art. 36 UN Charter: parties can ask the Council for advice on appropriate procedures and adjustment methods.
- Art. 37 & 38 UN Charter: the Council can provide advice on reaching a peaceful settlement.
- Art. 42 UN Charter: the Council may enforce if necessary to protect international peace and security.

General Assembly (GA):
- Art. 14 UN Charter: can provide advice on measures for the peaceful adjustment of a situation.
- Art. 99 UN Charter: may bring conflicts that threaten international peace and security to the attention of the Council.
- Please note: the GA may not interfere with the Council in the exercise of its powers. The GA is subordinate to the Council.
- GA cannot make legally binding decisions.
- It may serve as good offices.

Question 12

Judicial mechanisms:
There are several ways in which conflicts can be resolved with judicial intervention.

Answer 12

1. Arbitration
2. Permanent Court or Tribunal
3. Contentious cases
4. Advisory Opinions
5. International courts and tribunals with a specialized mandate

Question 13

1. Arbitration

Answer 13

• An arbitrator decides on the conflict.
• This decision (‘award’) is legally binding.
• Unlike a decision by the ICJ, because with arbitration the parties still retain control over the process.
• Two options: Permanent Court of Arbitration and your own arbitral tribunal (ad hoc arbitration).

Based on state consent. Different ways to do this:
- States are parties to a ‘dispute settlement treaty’, under which they are obliged to settle disputes through arbitration.
- States are parties to a specific treaty, under which they are obliged to resolve conflicts by means of to resolve arbitration.
- By reaching a compromise after the conflict has arisen (parties agree to resolve the dispute through arbitration).

Question 14

Arbitration has two options:
- Permanent Court of Arbitration: …
- Arbitral tribunal (ad hoc arbitrage): …

Answer 14

Permanent Court of Arbitration:
- This is not a court, but a permanent administration.
- Consists of judges who may be appointed by the parties to the conflict.

Arbitral tribunal:
- Resolving a conflict through arbitration, but without the intervention of an arbitration institution.
- Arises after a conflict has arisen.

Question 15

Difference between arbitration and a permanent court:

Answer 15

• Parties may determine the composition of the abitral tribunal, including the number and identity of judges.
• Parties may have the tribunal apply rules that are not necessarily binding under international law.
• Parties may apply more flexible procedural rules than, for example, the ICJ.
• Parties may decide to keep the case confidential.
• Arbitration is a faster procedure than proceedings before the Court.

Question 16

Permanent Court or Tribunal is the most important permanent court: International Court of Justice (ICJ).

Question 17

The International Court of Justice (adjudicatory means)

Answer 17

Is an organ of the UN and is the only court in international law with a general jurisdiction to deal with interstate disputes.
- 15 judges
- In disputes, states can appoint ad hoc judges if their nationality isn’t represented among permanent judges.

Question 18

1. Contentious cases
2. Advisory Opinion
3. Provisional matters: …

Answer 18

Receive and settle legal disputes from States.

Explanation of a specific legal question of an international organization.

Taking provisional measures.

Question 19

The ICJ can 1) decide on contentious cases, 2) issue advisory opinions and 3) adopt provisional measures.
- Contentious cases: …

Answer 19

Contentious cases involve international legal disputes between states, and only states can bring such cases before the ICJ (art. 34 jo. 35 of the ICJ Statute).

Access alone doesn’t grant jurisdiction; state parties must also give consent, which can be provided through various methods outlined in art. 36 of the ICJ Statute.

Question 20

Contentious cases; States must have given their consent. This can be done in various ways:

1. Compromissory clause

Answer 20

Such a clause is inserted in the treaty that formed the basis of the dispute (art. 36(1) ICJ Statute).

“… all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” (art. 36(1) ICJ Statute).

Question 21

2. Compromis

Answer 21

Consent can take the form of a special agreement, whereby parties agree to submit a particular dispute to the Court. After the dispute had arisen.

“… all cases which the parties refer to it” (art. 36(1) ICJ Statute).

Question 22

3. Optional declaration

Answer 22

In this declaration the states recognize the jurisdiction of the Court, before the dispute had arisen.

“… declare that they recognize as compulsory ipso facto and without special agreement” (art. 36(2) ICJ Statute).

Question 23

4. Forum prorogatum

Answer 23

The state has not accepted the jurisdiction of the Court in the first place, but decides to accept the jurisdiction of the Court after the case has been brought against the state before the Court.

Jurisdiction via forum prorogatum hinges on a state clearly and willingly indicating its acceptance of the Court’s jurisdiction. Mere participation in proceedings or not refusing to appear is insufficient (see art. 38(5) Rules of Court).

Question 24

Admissibility of claims: 3 requirements have to be met:

Answer 24

1. The request must have a legal basis.
2. Exhaustion of all local remedies.
3. There must be a national link: a ‘genuine’ or ‘effective’ link between the party making the request and the nationality of his/her State.

Question 25

Advisory opinions

Answer 25

Advisory opinions aim to assist requesting bodies, not resolve disputes. They aren’t binding but carry significant authority as they reflect the ICJ’s view, contributing to international law’s understanding.

Advisory opinions do not need consent of States (The Wall Advisory Opinion: een advisory opinion heeft een adviserend karakter, het is niet bindend. Het advies is daarnaast alleen gericht op het verzoekend orgaan, niet op de partijen van het conflict (par. 47).

Question 26

For the ICJ to give an advisory opinion, 3 conditions must be met (art. 65(1) ICJ Statute):
1. The request must involve a legal question.
2. The requesting body must be authorized under the UN Charter (General Assembly, Security Council, or authorized special agencies) (see art. 65 ICJ Statute and art. 96 UN Charter).
3. …

Answer 26

3.In case of specialized agency requests, the question must pertain to its activities.

See the ICJ Legality of the Use by a State of Nuclear Weapons in Armed Conflict in this regard.

Question 27

International courts and tribunals with a specialized mandate:

There are a number of specialized international courts and tribunals that have jurisdiction to settle disputes that fall within a particular area of ​​international law.

A distinction can be made between ratione materiae and ratione loci.

Question 28

Ratione materiae: …
Ratione loci: …

Answer 28

A court/tribunal is specialized in a specific area of law.
- E.g. World Trade Organizations, International Criminal Court, International Tribunal for the Law of the Sea, Investment Arbitral Tribunals.

A court/tribunal is specialized based on a certain geographical perspective.
- E.g. European Court of Human Rights, inter-American court of Human Rights, European Court of Justice.

Question 29

Provisional measures
UPR

Answer 29

The ICJ can issue provisional measures under art. 41 to prevent rights violations before making a final decision. Debate exists over whether these measures are binding or recommendations, but the Court considers them binding to maintain the effectiveness of its rulings. The Court is cautious in ordering them and does so when jurisdiction is clear.

Conditions:
a. Urgency
b. Prima facie jurisdiction
c. Relevance to the case’s merits.