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PIL Week 7 - Dispute Settlement, UN CHARTER - Arts. 2, 33, 39, 42, 43.1,…

- - - - D. Use of Force
        
        D1. Prohibition (UN 2) -
        
        All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
        
        All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
        
        D2. Exceptions
        
        Self Defense (UN 51) - Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
        
        Art. 51 on self-defense - Considered as pre-existing customary law in Nicaragua.
        
        Chapter VII on collective enforcement measures;
        
        Art. 53 on enforcement action by regional agencies; and
        
        Arts. 106-07 on former enemy states
        
        Limits of Self Defense (UN 2 par. 4) - All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
        
        CASSESE:
        
        victim of aggression must use amount of force strictly necessary to repel the
        attack on it, and proportional force used by aggressor;
        
        may only attack legitimate military targets ( Oil Platforms );
        
        target of armed attacks must not occupy aggressor state’s territory unless strictly required by need to hold aggressor state in check and prevent it from continuing aggression by other means;
        
        self-defense must be terminated as soon as UN SC steps in
        and takes over task of ending aggression;
        
        if SC fails to take action, self-defense must cease as soon as its purpose (repelling armed attack on victim state) is achieved);
        
        prohibited acts that don’t count as self defense anymore:
        6a. prolonged military occupation;
        6b. annexing aggressor state’s territory
        
        Requisites for Exercise of Collective Self Defense (Nicaragua) -
        
        EXISTENCE - of an armed attack
        
        DECLARATION - Victim state must form and declare that it has been so attacked
        
        REQUEST - There must be a request by victim state to third State who exercises collective self defense.
        
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        Guidelines for Exercise Self Defense (Nicaragua) -
        
        EXISTENCE - of an armed attack
        
        NECESSARY - defending state must have no other option in the circumstances than to act in forceful self-defence
        
        PROPORTIONAL - requires size, duration, and target of the response correspond to the attack in question. Thus, no relatiatory or punitive actions.
        
        IMMEDIATE -
        
        Individual or Collective Self-Defense - Popular view is that this is customary right of self defense. But, question of the extent of the customary norm. Popular view, self defense is in case where an armed attack occurs under Art. 51. Other states say inherent right is independent of Art. 51.
        
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        Necessity and Proportionality (Crawford 749) -
        
        Necessity - no other option in the circumstances than to act in forceful self-defense.
        
        Proportionality - Must take into account the size, duration and target of the attack. Cassesse says limit itself to rejecting the armed attack. Non-punitive and non-retaliatory.
        
        Scope of Prohibition (UN 2)- Applies only to armed forces. Does not apply to political or economic coercion. Similarly, use of force in interstate relations, not domestic.
        
        Use of Force by UN (UN 39) - The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
        
        Non-Use (Art. 41) - This is the first recourse. Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
        
        Use of Force (UN 42) - measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
        
        Definition - Armed/Military force. Whether directly or indirectly. This concept is larger than the concept of war.
        
        Principle of Non-Intervention (Nicaragua) - All states must be forbidden from intervening directly or indirectly in internal or external affairs of other States. Question of expansion in light of new developments of state relations such as cyber-warfare.
        
        Elements of Armed Attack (Oil Channels) - Must be intentional.
      - Obligation to Settle (UNCLOS 279-280) - States shall settle any dispute between them concerning application/interpretation of the UNCLOS by peaceful means. They have the option to settle by any peaceful means of their own choice.
        
        Obligations under general, regional or bilateral agreements (282) - If state parties agree via a general, regional or bilateral agreement that the UNCLOS dispute be submitted to a procedure that entails a binding decision at the request of any party to the dispute, that procedure shall apply in lieu of the other procedures provided in the UNCLOS, unless the parties agree otherwise..
        
        Obligation to Exchange Views (283) -
        
        If there is a dispute, parties shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.
        
        If there is a procedure for settlement of disptue and it has been terminated without a settlement, or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement, there is obligation to proceed to exchange views.
        
        Conciliation (284) - A State party in a dispute may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure.
        
        Procedure for Conciliation -
        
        Accepted Invitation - if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure.
        
        No Acceptance - or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated.
        
        Termination of Conciliation -
        
        GR - when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure
        
        XCPN - Unless the parties otherwise agree
        
        Mode of Settlement of Disputes (286-287) - Any dispute concerning interpretation/application of UNCLOS in case no settlement has been reached by general provisions (282 onwards) shall be submitted at the request of any party tot he dispute to the court or tribunal having jurisdiction.
        
        Choice of Procedure (287) - A State upon signing or after, is free to choose by means of a written declaration one or more means for the settlement of disputes.
        
        International Tribunal for the Law of the Sea
        
        International Court of Justice
        
        Arbitral Tribunal
        
        Special Arbitral Tribunal
        
        Effect on Disputes Chamber - Declaration of choice of procedure shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5
        
        Non-Covered State Party - a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII
        
        Effect of Choice of Procedure - If parties to disptue have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree
        
        No Choice of Procedure - Dispute may may be submitted only to arbitration inaccordance with Annex VII, unless the parties otherwise agree.
        
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        Continuity of Declaration - declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the Secretary-General of the United Nations.
        
        New Declaration - a notice of revocation or the expiry of a declaration
        
        GR - does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this article.
        
        XCPN - unless the parties otherwise
        agree.
        
        Jurisdiction - Court or tribunal chosen under 287 has jurisdiction over:
        
        any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
        
        any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.
        
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    - - Coverage (UN 93) - All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. Non-member states may become a party based on conditions determined by the UN general assembly and upon recommendation of the security council.
        
        Duty of UN Members (UN 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, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
        
        The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.
      - Jurisdiction of ICJ (ICJ 34) - Only states may be parties in cases before the ICJ. Open to all parties to the ICJ, non-parties may be subject to special provisions laid down by UN Security council in treaties.
        
        Voluntary Jurisdiction (ICJ 36.1) - All cases referred to it by the parties and all matters specifically provided by UN charter or in treaties in convention or in force. Generally, any question of international law. Here, treaty itself defines the jurisdiction. (By agreement)
        
        Compulsory Jurisdiction/Optional Clause (ICJ 36 2) - (By Declaration) State parties may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
        
        the interpretation of a treaty;
        
        any question of international law;
        
        the existence of any fact which, if established, would constitute a breach of an international obligation;
        
        the nature or extent of the reparation to be made for the breach of an international obligation.
        
        Form of Declaration - may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
        
        Where Made - Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
        
        Time of Declaration - May be expressed for a term of years. Absent express provision, reasonable notice of termination of a declaration may be given.
        
        Transferred Jurisdiction - Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
        
        Settlement of Issue of Jurisdiction - In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
        
        Forum Prorogatum - This refers to consent post hoc. whenever, after the initiation of proceedings by joint or unilateral application, jurisdiction is exercised with regard either to the entire dispute or to some aspects of its as the result of an agreement, express or implied.
        
        Recognition of Jurisdiction (ICJ 36) - State parties may, at any time declare that they recognize as compulsory the jurisdiction of the ICJ in legal disputes concerning the following:
        
        TREATY - Interpretation of a Treaty
        
        QUESTION - Any question of international law
        
        FACT; BREACH' the existence of any fact which, if established, would constitute a breach of an international obligation;
        
        REPARATION - the nature or extent of the reparation to be made for the breach of an international obligation.
        
        Enforcement (UN 94) - If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
        
        Physical Enforcement (UN 42) - If enforcements under UN 41 inadequate as determined by the Security Council, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
        
        How Enforced (43.1) - All UN members undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
        
        Use by Security Council (UN 53.1) - Security Council shall, where appropriate utilize regional arrangements or agencies for enforcement action under its authority. No enforcement without the authorization of the Security Council unless, measures against enemy states under UN 107 or, in regional arrangements directed against renewal of aggressive policy. Until, such time as the organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.
        
        Advisory Opinions (UN 96 & ICJ 65) - The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Other UN Organs so authorized by the Gen. Assembly may request advisory opinions on legal questions arising within the scope of their activities.
      - Optional Clause - a clause wherein every state can declare that it accepts ipso facto and without special agreement, the compulsory jurisdiction of the court in relation to any other state accepting the same obligation.
  - - - Obligation to Negotiate (Macedonia v. Greece) - Instead, obligation to enter into negotiations and to pursue them as far as possible, with a view to concluding agreements. The state must conduct themselves so that the negotiations are meaningful, no bad faith, and pay reasonable regards to the interest of the other state.
        
        Exclusions - Does not cover obligation to agree. Similarly, does not exclude recourse to the other procedures.
      - Pros and Cons -
        
        Advantages - State does not have to resort to or include third parties in resolution
        1a. Parties remain in control of a dispute
        
        Disadvantages - Can’t negotiate on sensitive and highly contentious subjects like sovereignty.
        2a. No Guarantee of resolution as limited due to logistical concerns or recourse to other more definitive methods.
    - - Good Offices - Exercise of moral or political influence on disputing parties by another entity to either set up direct negotiations or to get the parties to resume broken off negotiations.
        
        Role of Mediators - facilitates parties' dialogue, provides suggestions, possible solutions and information, identifies aims. A strong mediator may influence the parties.
        
        Who Can Mediate - States, UN and several regional organizations charged with dispute resolution, NGOs (Red Cross), Individuals with necessary qualifications.
        
        Pros and Cons -
        
        Advantages - An active participant authorized and expected to advance new ideas and interpret proposals from both parties.
        
        Disadvantages - Can only take place if the parties to a dispute consent and if a mediator is willing and available to act in such capacity.
        2a. Parties must be ready to compromise. If the states are unwilling to consider mediation, then would-be mediators useless.
    - - Usage - common in bilateral treaties to deal with a specific dispute. In multilateral treaties, conciliation is used with other procedures. Useful when the parties seek an equitable comrpomise in a dispute where the main claims are legal.
        
        Pros and Cons -
        
        Advantages - Formalizes 3rd party intervention, allows it to make recommendations. Offers a procedure adaptable to a variety of needs and provides structured involvement of outsiders.
        
        Disadvantages - Non-binding in nature.
    - - Applicability - Here, presumed that the parties agree on the applicable law and are disputing over the facts.
        
        Definitions -
        
        Broad: - Process performed whenever a court or other body attempts to resolve a disputed issue of fact
        
        Narrow - a specific institutional arrangement which may be selected instead of arbitration or other techniques to establish facts. This is pursuant to the 1899 Hague Convention. However, rarely used as an inquiry can be done through an international organization.
        
        Conditions for Inquiry - Only when certain special conditions are satisfied will an inquiry commission be set up.
        
        Disputed issue is largely of fact
        
        No other procedure is being employed
        
        Parties are willing to accept that their version of events may be wrong
    - - Scope - The parties set up the arbitration. Thus, they define the question and specify the basis of the decision.This requires agreement between parties.
        
        How Applied - Can be employed ad hoc or provided for in advance in the provisions of a treaty; may be optional or compulsory, and may be combined with other methods
        
        When Applicable - Used for disputes on legal issues (Ex: territorial and boundary disputes, commercial disputes, expropriation and state responsibility)
        
        Forms of Arbitration -
        
        Mixed Arbitration - between a state and an individual or corporation. Here, the jurisdiction of the tribunal is based on a contract rather than a treaty
        
        Regular Arbitration - Conducted between States.
        
        Limitations of Arbitration - the enforcement may be difficult – does not guarantee that the losing party carries out the award – relies on the responsible behavior of the parties