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Module 13

The document discusses various methods for peacefully settling international disputes between states. It outlines negotiation, inquiry, good offices, mediation, conciliation, arbitration, and judicial settlement as common approaches. It also discusses how regional and international organizations like the UN and ICJ can help resolve disputes.

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daryll
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16 views

Module 13

The document discusses various methods for peacefully settling international disputes between states. It outlines negotiation, inquiry, good offices, mediation, conciliation, arbitration, and judicial settlement as common approaches. It also discusses how regional and international organizations like the UN and ICJ can help resolve disputes.

Uploaded by

daryll
Copyright
© © All Rights Reserved
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Module 13: Pacific Settlement of International Where the talks prosper and agreement is reached, it

Disputes is usually formalized in a treaty. More directly, it may


be effected through the rectification of the rights of
International Dispute
the injure d state, as by payment of damages.
- exists when one state claims that another state
Q: What happens if the negotiations fail or collapse?
should behave in a certain manner and that claim is
rejected by the latter. A: The intervention of third parties may be offered or
requested. Such assistance may come from a state or
*In other words, an international dispute is an
several of them, from an international organization, or
ACTUAL DISAGREEMENT BETWEEN STATES regarding
from a prestigious statesman pf international stature
the conduct to be taken by one of them for the
like a head of state.
protection or vindication of the interest of the other.
ii. INQUIRY
HOW TO CLASSIFY DISPUTES:
- It is an investigation of the points in question, on the
1. LEGAL Dispute - if it involves justiciable rights based
theory that their elucidation will contribute to the
on laws or fact.
solution of the problem.
ie. a conflict on the interpretation of a treaty or on the
-As most disputers are caused by a misunderstanding
ascertainment of the boundary lines of adjacent
of certain factual situations, their clarification by an
states.
impartial and conscientious body can limit if not
2. POLITICAL Dispute- it it cannot be decided by an entirely remove the areas of disagreement.
international arbitral or judicial tribunal under the
-The findings of the party making the inquiry are not
rules of international law (else violation of sovereign
conclusive upon the disputing states but they
rights of a state). Such would be the case if one state,
nevertheless do exert a strong moral influence in the
in the exercise of its sovereign rights, enacts
solution of the conflict.
immigration laws discriminating against the nationals
of another state, over the latter's protest. iii. GOOD OFFICES
ie. on who is the rightful leader of a state, rights that - a method by which a third party attempts to bring
may be given to citizens the disputing states together in order that they may
be able to discuss the issues in contention. This is
SITUATION (an initial stage of a dispute)
usually employed when the protagonists are no
- when the disagreement has not yet ripened into an longer "on speaking terms" that is, when they have
actual conflict or where the issues have not yet been severed diplomatic relations or have actually
sufficiently formulated and defined commenced hostilities (Arts 2&3, UN Charter)
Q: How are disputes supposed to be settled? iv. MEDIATION
A: Disputes are supposed to be settled, conformably - the good office also actively participates in the
to one of the basic principles of the UN, "by peaceful discussions in order to reconcile their conflicting
means in such manner that international peace and claims and appease their feelings of resentment. The
security are not endangered" (Art. 2(3), UN Charter) suggestions of the mediator are merely persuasive
PACIFIC/ AMICABLE METHODS OF SETTLING and may be rejected without offense by the parties to
DISPUTES: (Art. 33, UN Charter) the dispute (Arts 4&6, Id.)

i. NEGOTIATION (informal in nature and coursed *v. Good Office - mediator merely provides the
through diplomatic channels ) opportunity for the states to negotiate. The mediator
is only a bridge, but there is no active participation.
- Generally the first step taken in the settlement of
international disputes. it is nothing more than the v. CONCILIATION
discussion by the parties themselves of their - also involves the active participation of a third party
respective claims and counterclaims with a view to in the attempt of the disputants to settle their
their just and orderly adjustments.
conflict, and the recommendations offered by it are (ie. PH v. China - decided by the Permanent Arbitration
likewise not binding. Court, without China's consent to participate, should
it be bound by the award? - China ratified the Unclos
-Unlike in mediation, the services of the conciliator are
as well as its annexes. Annex 7 mandates parties to
not volunteered by the third party but solicited by the
submit any issues pertaining to the UNCLOS ti be
parties in dispute.
resolved by peaceful means, including arbitration. =
*v. Mediation- services of the third party mediator is PACTA SUNT SERVANDA = China must comply with
not sought by the parties but is volunteered by the the UNCLOS in good faith, including arbitration)
mediator
(3) JT- law applied by the tribunal is independent of
vi. ARBITRATION (formal process) the will of the parties
- A process by which the solution of a dispute is A Proceeding - law applied by the tribunal may be
entrusted to an IMPARTIAL TRIBUNAL to hear the limited by the parties
facts evidence, law and position of the parties, usually
viii. RESORT TO REGIONAL AND INTERNATIONAL
created by the parties themselves under a charter
ORGANIZATION
known as the COMPROMIS, which also provided for
the composition of the body and its rules of *ICJ may resolve issues which are: (1) Contentious; or
proceedings, delineates the issues to be decided, and (2) Advisory in nature
sometimes specifies beforehand the law to be applied
Advisory Jurisdiction- advisories limited to the UN as
in the decision.
well as its principal organs and agencies
*v. Good offices, mediation and conciliation - the third
Contentious Issues that may be Resolved by the ICJ:
party is primarily a state not an impartial tribunal
(Art. 36, ICJ Statute)
-Unlike in conciliation, the proceedings are essentially
-The state parties to the present statute may at any
judicial and the award is, by previous agreement
time declare that they recognize as compulsory ipso
binding on the parties (Arts 37, 45, 52, Id.)
facto and without special agreement, in relation to
*v. Conciliation- recommendations only; hence, only any other state accepting the same obligation, the
suggestive jurisdiction of the court in all legal disputes
concerning:
CASE: PH v. China
(a) the interpretation of a treaty;
- arbitration proceeding against China. Basis: Art. 7,
UNCLOS - preferred mode of settling dispute is (b) any question of international law;
arbitration
(c) the existence of any fact which, if established,
vii. JUDICIAL SETTLEMENT (v. Arbitration) would constitute a breach of an international
obligation;
Similarities: the methods applied are judicial in nature
and the decisions rendered are binding on the parties (d) the nature or extent of the reparation to be made
to the dispute. Moreover, the disputes submitted are for the breach of an international obligation.
legal and not political
*NB: "Consent to be sued is not equivalent to consent
Differences: to liability" because execution of the judgement will
require a separate consent (rule in the Ph, same rule
(1) JT- generally a pre-existing and permanent body
under PIL)
(ie. ICJ)
Q: How can the decision of the ICJ be enforced?
AT- is an ad hoc body created and filled by the parties
themselves (temporary body) A: If any party to a case fails to perform the obligation
incumbent upon it under a judgement rendered by
(2) JT- jurisdiction is compulsory
the court, the other party may have recourse to the
AT- jurisdiction is voluntary Security Council, which may, if it deems necessary,
make recommendations or decide upon measures to
be taken to give effect to the judgement (Art. 94, UN
Charter)
*These methods may be availed of independently of
the UN, or upon its recommendation or direction, or
with its active participation.

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