CO SCI 136 Lecture Notes - Lecture 17: United Nations General Assembly, International Humanitarian Law, Statute Of The International Court Of Justice
The peaceful settlment of disputes
The role of int law is to probide answers required to separate the powers of sovereign states
and to that end help to avoid under fiction between states
Int law does not oblige states to settle their disputes and it is a well-known fact that
disagreement between states may linger and simmer for years
- Art 2(3) UN charter => members must resolve their disputes by peaceful means so
that int peace and security are not endangered
- Art 2(4) UN charter
Non-adjudicatory means of settling international disputes
- The most common means for resolving disputes is for the parties to directly
<negotiate> a suitable solution (used by the members of the UN)
- Good offices => when a third party is used to settle the debate
* they evolve trough <mediation>
- <commission of inquiry> => when parties disagree on the circumstances surrounding
the dispute they engage one. A commission may be established by an international
organization or a supervisory organ in order to determine whether a state has breached
a relevant treaty obligation and additional steps may be warranted
- Conciliation => 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. ( it will
represent all the relevant aspects of the dispute ) ( purpose to offer a tentative solution
to the dispute)
The different means of a dispute settlement are particularly well-developped within the UN
• Security council has primary responsabillity for the maintenance of int peace and
security
• Art 37,38 UN charter
• UN general assembly = all members of state are represented in the assembly
• UN secretary general = offers his good offices as a method of trying to pave the way
for the negotiation of peaceful solutions to on going disputes Art OO
Arbitration
An adjucatory method for resolving a dispute that has a long history in int law
- Alabama arbitration
Always based on the consent of the disputing parties and int arbitration is no exception
UN law of the sea ( LOSC), those disputes end up before arbitration
More flexible and speedy than the normal procedure in front of the ICJ
The parties have substantial influence over the judicial process, including the
composition of the tribunal and the number and identity of the arbitrators
This procedure is very expensive for both parties
They may decide on the applicable legal sources and procedural rules and if they so
request they may determine that the proceeding should be conducted confidentialy
The final decision taken by the court will be binding on both parties
The international court of justice
Established in 1945 as a principle organ of the UN
It replaced de league of nations
Based in <the Hague> and composed of 15 judges elected by the security council and
the general assembly for nine years. The judges elect its president and vice-president
who sits for three year terms
The judges need to be persons of high moral character who posses the qualification
required in their respective countries for appointment to the highest judicial offices as
well as being as representatives of the main form of civilization and of the principal
legal system in the world.
Judges are elected without consideration from where they come
However, if one of the parties during the dispute does not have a judge of its
nationality on the courts then It may appoint an ad hoc judge who will sit on the bench
in the case in question
Art 26 Statute : no need to have all the 15 judges every time
Currently there are no ad hoc chambers
The purpose of the ICJ is to decide in accordance with int law such disputes as are submitted
to it and it is competent to deal with both contentious cases ans issue advisory opinions on
request by organs of the UN
- Majority voting
Access to the court in contentious cases
Art 34 ICJ statute = only states can be parties to contentious case before the court
Art 35 = access to the court
A non party state may gain access to the court on the basis of special provisions
contained in treaties in force
Legality of use case =the court decides that the republic of Yugoslavia could not
bring a case against a number of NATO states for their use of force against
Yugoslavian in the cours of the 1999 humanitarian invervention because it did not
have access to the court when it filed the application in 1999
Genocide case = court found that the genocide convention could serve as the basis for
jurisdiction in a case brought by bosnia ang Herzegonia against FRY in relation to
among other things the 1995 srebrenica massacres
As It is not authorized ot bring a state in front of the court, it is however possible to
bring the FRY before court.
Consent to jurisdiction in contentious cases
It can only be dealt with a dispute if the parties have consented to the jurisdiction of the court
in the specific case or in a category of disputes of which the existing case is part
Third states
- Monetary gold removed from rome in 1943 case : the court concluded that it could
not decide a dispute between Italy and the UK in the absence of consent from Albania
because the court would have to determine if Albania had committed an international
wrong against Italy and then pay compensation.
- East timor case : court also refused to exercise its jurisdiction
- Art 62 : a state with a legal interest in a case to which it is not a party may request
permission to intervene
The expression of consent
- Art 36 : consent to the court’s jurisdiction may be expressed in a number of ways
* explicit agreement on jurisdciton
* a treaty ( when states are party to a treaty that contains a special provisions
stipulating that all future disputes in relation to the application or interpretation of the
treaty can be brought before the court by either of the parties
* a declaration under an optional case
- The first option is also referred as < compromis> and relates to those instances where
the parties to a dispute make an express agreement to submit it to the court
- Consent is always given in advance of the dispute
- For a state that is not part of the ICJ a special provision can therefore serve as both
basis for access to the court and as a basis for jurisdiction
- Advance consent may also be found in a treaty that serves to refer disputes to the court
* Great belt case : Finland initiated proceedings against Denmark partly on the basis
od Danish acceptance of a 1958 optional protocol of signature concerning the
compulsory settlement of disputes adopted in the field of law of ses
- The doctrine of < forum prorogatum> rare cases where a state that has not consented
to the jurisdiction of the court at the time an application is filed against it but
subsequently accepts the court’s jurisdiction. the state must show an unequivocal
indication of a wish to accept the court’s jurisdiction in a voluntary and indisputable
manner.
- Art 36(6) : the court has the final say in the event of a dispute about its jurisdiction
* known as = competence de la competence or kompetenz-kompetenz ( decisions by
the court are binding on the parties)
The power of the ICJ to indicate provisional measures
- Art 41 ICJ : the court has the power to indicate if it considers that circumstances so
require any provisional measures which ought to be taken to preserve the respective
rights of either parties
- Purpose is to call a temperory halt to conduct that would make the final outcome of
the case futile
- This illustrates that the court’s power it to issue such measures is subject to a number
of conditions
- Fisheries jurisdiction case : court stated that it should not act under art 41 if the
absence of jurisdiction on the merites is manifest
- The right asserted by the requesting are at least plausible
there must be a link between the rights which form the substance if the merits of the
case and the provisional measures sought
- Urgent need for action there must be an urgent risk that irreparable prejudice will be
caused to the rights in the dispute before the court gives its final decision
- The court has upheld the binding effect of its provisional measures in subsequent
cases.
The effect of the court’s decisions
- Art 60 ICJ statute : expresses the fundamental rule that a judgement by the court is
final and without appeal.
- The courts judgement are only binding on the parties to the dispute and cannot oblige
a third party
* avena case : clarify the extent of the application for such a revision is basd on the
discovery of some facts of such a nature as to be a decisive factor that was previously
unknown to the court
- Art 94 UN charter : members of the UN are obliged to comply witht the decisions of
the court and if a party does not comply, the other party may bring the matter before
Document Summary
The role of int law is to probide answers required to separate the powers of sovereign states and to that end help to avoid under fiction between states. Int law does not oblige states to settle their disputes and it is a well-known fact that disagreement between states may linger and simmer for years. Art 2(3) un charter => members must resolve their disputes by peaceful means so that int peace and security are not endangered. The most common means for resolving disputes is for the parties to directly. a suitable solution (used by the members of the un) They may decide on the applicable legal sources and procedural rules and if they so request they may determine that the proceeding should be conducted confidentialy. Established in 1945 as a principle organ of the un. Based in and composed of 15 judges elected by the security council and the general assembly for nine years.
