Government 1740 International Law Summer 2007 Lecture 8: The ICJ and Peaceful Settlement of...
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Transcript of Government 1740 International Law Summer 2007 Lecture 8: The ICJ and Peaceful Settlement of...
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.