WEEK 1 - INTRODUCTION TO INTERNATIONAL COURTS AND TRIBUNALS

WEEK 1 - INTRODUCTION TO INTERNATIONAL COURTS AND TRIBUNALS

LECTURE 1

what is international dispute settlement?

wide range of disputes:

-bilateral (two states) or multilateral (more parties) disputes obilateral disputes on maritime boundaries obut also multilateral  South China Sea case -factual/legal disputes

ofactual : just about what happened (series of events/one particular event)

olegal : what the law is/whether it exists at all

-wide range of subjects as well -no rule in IL that disputes must be settled ototal free to let disputes exist obut if they do decide to settle, obliged by PIL to do so peacefully oart. 2(3) & (4) UN Charter: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered oinstead, the use of art. 33 UN Charter -art. 33 UN Charter oThe 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 oThe Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.-non legal methods: resolution is not reached on the basis of the law (solution more on the basis of politics, finances)

-legal methods: based on the law (arbitration/judicial settlement)

 spectrum ranges from no third parties at all (negotiations) to high third party involvement (judicial settlement)  no hierarchy between these methods and can be used simultaneously  it does not contain entirely ‘like’ things, different methods of settlement and then mentions the resort to regional agencies or arrangements, so different institutions 1 / 4

range of methods listed (non-legal and legal)

non legal:

-enquiry: process by which disputed facts are clarified by ad-hoc commission

ovalue lies in establishing an impartial record of the facts, which helps establish fault and causation, and how to calculate loss and injury -conciliation: further formalized the role of the third party, which may investigate a dispute and propose a solution, usually thought the submission of a non-binding final report to be considered by the parties othird party values the facts and law (more holistic approach) osounds more like arbitration/adjudication  enquiry and conciliation produce non-binding outcomes

legal methods:

-arbitration is a procedure for the binding settlement of a dispute through the application of legal rules by decision-makers who are selected by and with the participation of the disputing parties ohigh degree of control over who hose decision makers are oad hoc/temporary, as decision makers are only involved in that particular case -adjudication also involves a procedure for the binding settlement of a dispute through the application of legal rules, but decision-makers are members of a permanent institution  litigation does not mean that dispute is settled -eg North Sea Continental Shelf (just wanted the court to tell them how to draw the line, not what the line was) -sometimes we don’t always seek compliance -in rare cases it could cause of the problem going forward why use a binding method?-one of the parties really think that they have a strong legal case -small state can use this to rebalance the power  rebalancing difficult in negotiations -bringing case helps to force the other party back to the negotiating table -given course of action could help provide political cover at the domestic level  Shirley Scott article international Court of Justice -established in 1945 at the same time with the UN 2 / 4

oprinciple judicial order oICJ Statute is annexed to the UN Charter oone of main organs of the UN (next to SC/GA)

oThe Hague (instead of New York): predecessor was PCIJ (1922, but in

association with the League of Nations), also located here

-ICJ unique:

ooldest standing international court osubject matter jurisdiction of the whole field of PIL (general jurisdiction) oimportant role in the field of the development of PIL composition of the bench -arts. 2,3,9 ICJ Statute ohigh moral character oqualification of their country for highest court or jury councils orepresentative body  should represent different legal regions the world -practical composition o3 seats for African judges o2 Latin America/Caribbean o3 from Asia o5 Western Europe o2 Eastern Europe  European emphasis?oalways 5 nationals of P5, but practice broke down in 2018 -election of judges (arts 8 & 10 ICJ Statute) ofor 9 years oelections every 3 years (preventing for judicial memory)

oPCA National Groups (art. 6): looks at possible candidates and proposes

•election is simultaneous voting (GA and SC, absolute majority) owhen not member of PCA, also allowed to set up own National Group ounusual for them to have judicial background -judges are not representatives of their home state -judges ad hoc owhen state does not have one of its nationals on the bench, then it can choose one odoes not have to have to have the nationality of the requesting state orole has faced criticism 3 / 4

•judgements tend to align with the arguments of the appointed states

•where there are two judges ad hoc (both parties): they. tend to cancel

each other out

•Cecily: still valuable  confidence that states have in the process

(that judges ad hoc will take arguments seriously) -Chambers (art. 26) o5 members oto move more efficiently with the number of cases, but parties have to request these Chamber obut parties tend to value having all 15 members more than only 5 (possibility to choose their own judges)  tended to look more like arbitration tribunal oso discontinued in 2016 contentious jurisdiction -more weight -jurisdiction to decide legal disputes submitted to the Court by States -limited to states alone (art. 34 ICJ Statute) oindividuals, NGO’s, state-like entities, IO’s are left out -judgements are binding

non-contentious jurisdiction: Advisory Opinions

-court limited to giving advisory opinions on legal questions, and have to be brought by a very limited number of agencies oUNGA (mostly); UNSC; Specialized agencies authorized by GA oart 96 UN Charter -AO’s are not binding

-in practice however:

ostates could be involved in the AO request, because they are party to GA, but there has to be enough support omany recent ICJ AOs have related to ongoing disputes between states •eg Chagos Archipielago AO; Israel Wall; Kosovo Independence

INTER-STATE ARBITRATION

 in the 1800s Arbitration became a popular way to solve disputes

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