Government Government 17401740

International International LawLaw

Summer 2007Summer 2007

Lecture 8:Lecture 8:The ICJ and The ICJ and

Peaceful Peaceful Settlement of Settlement of

DisputesDisputes

OutlineI. Overview: Interstate Disputes & Their SettlementII. Non-judicial Dispute Settlement

A. Diplomatic NegotiationB. Good OfficesC. MediationD. Commission of Inquiry

III. Arbitration (Compared to Adjudication)IV. The ICJ

A. BackgroundB. JurisdictionC. Types of DecisionsD. Legal recourse in a political context

I. Overview: I. Overview: Disputes and Disputes and

Their SettlementTheir Settlement

Legal and Political Disputes

Types of Dispute Settlement

Interstate Transnational

Legal(Justiciable)

Political(Non-

justiciable)

Multiple Choice:

When a dispute arises between two states with the potential for violent conflict between them, the states have a responsibility to:– A. Turn to the Secretary General of the UN

to mediate the conflict– B. Submit their case to the ICJ– C. Settle the dispute peacefully– D. Defend their national interests by all

possible means

II. Non-judicial II. Non-judicial Means of Means of Interstate Interstate Dispute Dispute

SettlementSettlement

Obligation to Settle Peacefully

UN Charter, Article 33:

“The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

Non-judicial Dispute Resolution

Negotiation

Good Offices

Mediation

Commission of Inquiry

Teddy Roosevelt, Russo-Japanese War, 1904-05

Kofi Annan offered “good offices” in the Israeli-Hezbollah conflict

Qana, Lebanon Haifa, Israel

Storming of San Juan Hill, Spanish-American War, 1899

US refused European and Papal mediation in Spanish American War

Dayton Peace Accords (1995)

“Contact Group:” U.S., U.K., France, Germany, Russia, EU Special Negotiator in former Yugoslavia

The Lytton Commission

Darfur, 2004 Security Council resolution

1564 to investigate violations of international humanitarian and human rights law

III. ArbitrationIII. Arbitration

Arbitration vs. Adjudication

With arbitration…– States have more control– Participants choose arbitrators– Participants agree on power/jurisdiction

of arbitrators– Participants define the subject matter to

be ruled on

Permanent Court of Arbitration

Created the Hague Conference (1898) Function: pool of arbitrators to be available

to serve on a tribunal

Not!Not!

How Arbitration Works

Two sides agree on tribunal Compromis: agreement signed by both

sides outlining dispute clearly– Law or equity?– Jurisdiction

Both sides agree to accept arbitration as binding

Alabama Claims Case (1872)

Beagle Channel Case: Chile v. Argentina

(1970s)

CHILE

ARGENTINA

THE BEAGLECHANNEL

Eritrea v. Yemen (1996-99)

Area of Dispute

Eritrea Yemen

IV. The IV. The International International

Court of JusticeCourt of Justice

The only general organ of judicial settlement in the international system

Relatively new and rarely, but increasingly, employed.

Uses existing structures; permanent courts.

Voluntary process rendering a binding decision

Adjudication

ICJ Origins UN Charter Art 92

Succeeded the PCIJ

First sat in 1946

Characteristics Permanently constituted tribunal

Governed by its own statutes

Own set of procedures

ICJ decisions binding on parties who agreed to submit

Proceedings are public

Membership

15 judges

Nominations made by national groups of the PCIA

Represent the “main forms of civilization” and “principles of legal systems of the world”

Enduring western bias?

Inevitable ideational bias?

What Law is the ICJ to Apply?

Article 38: Sources of international law

Equity or fairness

Issues on which the ICJ Rules:

Territorial disputes Fisheries/Law of the Seas Diplomatic and Consular Law Use of force Nuclear Tests Non-intervention (Nicaragua v.

U.S.) Decolonization State responsibility Status of foreign investments

ICJ JurisdictionICJ Jurisdiction

Who Can Use the Court?

States– Parties to U.N. statutes– Other states on conditions laid down by U.N.

Security Council

International organizations may seek advisory opinions

Number of ICJ Decisions

0

5

10

15

20

25

Years

decisions

ICJ Cases

Complainant

Defendant

United

Stat

esYug

oslav

ia

Franc

eUK

Congo

Belgiu

mLib

yaN

icar

agua

USSR

Colom

bia

Indi

aSp

ain

Ger

man

yIr

anN

ethe

rland

sN

orw

ayPe

ruC

anad

aA

ustra

liaIta

lyPo

rtuga

lPa

kist

anC

amer

oon

Icel

and

Leb

anon

Gre

ece

Democracies at the World Court

-4

-2

0

2

4

6

8

10

1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000

Year

average polity score

complainant defendant world

Compulsory Jurisdiction

Specified in advance by particular treaties

Optional Clause:

“Parties to the statute may at any time declare that they recognize as compulsory the Court’s jurisdiction without special agreement” (Article 36, ¶ 2)

Reservations and exclusions

US Policy with Respect to the Optional Clause

Self-judging reservation

Central American restriction

Withdrawal from Optional Clause

Types of Types of DecisionsDecisions

Contentious and otherwise

Contentious Cases

Must have both parties’ consent

Proceedings

Decisions are by majority vote and are legally binding

Other Kinds of Decisions

Applicable Principles of International Law (North Sea Continental Shelf case)

Advisory Opinions

Other Procedural Issues

Quorum

Chambers

Gulf of Maine

V. Legal Recourse in a V. Legal Recourse in a Political ContextPolitical Context

The ICJ and international politics

Can international adjudication be

“effective”?Posner and Yoo article:

In many cases parties want to solve a problem Do not have the capacity to settle politically

– Can’t force an agreement at reasonable cost– Can’t get domestic political agreement– Lack good information (regarding facts or law)

They use tribunals to address their interest in resolution They will not submit to a tribunal that they do not believe will address

their interests. Tribunals that states control are usually more effective in addressing

interests than “independent” tribunals.

Struggles over Forum

?Peace Palace

Security Council

Summary:Summary:States have an obligation to settle disputes peacefullyMany possible means to do so: negotiation, good offices, mediation, arbitration and adjudicationThe ICJ is the only organ of general judicial settlement in the int’l systemPermanent institution with its own statutes (integral part of the Charter)It is an institution for state disputesUse of the Court is voluntary.“Defendants” usually fight the Court’s jurisdiction and often seek alternative forums for settlement.Decisions in contentious cases are binding (though difficult to enforce).The Court is in growing use for important cases.