Palacky University Olomouc Faculty of Law Law of International Organisations - Institutional structures II: Judicial organs and peaceful settlements of disputes Support of the foreign language profile of law tuition at the Faculty of Law in Olomouc CZ.1.07/2.2.00/

Why judicial organs? Every legal system has a dispute resolution system – a way to settle disputes between its subjects –Ranging from a tribe's elders committee to –Strictly formalised procedures (democratic States) –The same is true for IGOs

Why judicial organs? Broad variety of mechanisms –depending on various factors –the size of IGOs (advisory opinions x strict judicial settlement) –needs of the system / other tasks than just dispute settlement ECJ: guardian of legality, but also guaranteeing the unity of EU law + motor of the integration process –Types of disputes Settlement of disputes between member states Between IGO and member states Between MS and organ of IGO Settlement of staff disputes

Means of dispute settlement in International Law? 1899 and 1907 Hague Convention for the Pacific Settlement of International Disputes Art. 33 UN-Charter 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.

Means of dispute settlement in International Law? Diplomatic means –Negotiations –Good offices –Inquiry commissions / Fact finding commissions / Claims commissions –Mediation –Conciliation Legally binding means –Arbitration –Judicial settlements

Dispute settlement in IGOs Specific provisions in constituting instruments –Negotiation, then –arbitration or ICJ Usual means? –IGOs ≠ standing before ICJ or other courts –Recourse to arbitration or claims commission; advantage: IGO remains in control, as its consent is required (for establishment) Comprehensively defined systems –EU

Dispute settlement in IGOs VCLTSIO –Art. 66 –complex procedure –ICJ for certain matters –Otherwise, arbitral tribunal/conciliation commission

Article 66 VCLTSIO Procedures for judicial settlement, arbitration and conciliation 1. If, under paragraph 3 of article 65, no solution has been reached within a period of twelve months following the date on which the objection was raised, the procedures specified in the following paragraphs shall be followed. 2.With respect to a dispute concerning the application or the interpretation of article 53 or 64: (a) if a State is a party to the dispute with one or more States, it may, by a written application, submit the dispute to the International Court of Justice for a decision; (b) if a State is a party to the dispute to which one or more international organizations are parties, the State may, through a Member State of the United Nations if necessary, request the General Assembly or the Security Council or, where appropriate, the competent organ of an international organization which is a party to the dispute and is authorized in accordance with Article 96 of the Charter of the United Nations, to request an advisory opinion of the International Court of Justice in accordance with Article 65 of the Statute of the Court; (c) if the United Nations or an international organization that is authorized in accordance with Article 96 of the Charter of the United Nations is a party to the dispute, it may request an advisory opinion of the International Court of Justice in accordance with Article 65 of the Statute of the Court; (d) if an international organization other than those referred to in subparagraph (c) is a party to the dispute, it may, through a Member State of the United Nations, follow the procedure specified in subparagraph (b); (e) the advisory opinion given pursuant to subparagraph (b), (c) or (d) shall be accepted as decisive by all the parties to the dispute concerned; (f) if the request under subparagraph (b), (c) or (d) for an advisory opinion of the Court is not granted, any one of the parties to the dispute may, by written notification to the other party or parties, submit it to arbitration in accordance with the provisions of the Annex to the present Convention. 3.The provisions of paragraph 2 apply unless all the parties to a dispute referred to in that paragraph by common consent agree to submit the dispute to an arbitration procedure, including the one specified in the Annex to the present Convention. 4.With respect to a dispute concerning the application or the interpretation of any of the articles in Part V, other than articles 53 and 64, of the present Convention, any one of the parties to the dispute may set in motion the conciliation procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.

ICJ´s Advisory Jurisdiction Art. 96 UN-Charter a) The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. b) Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

ICJ´s Advisory Jurisdiction Article 65 ICJ Statute 1. 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. 2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

ICJ´s Advisory Jurisdiction AO on any legal question at the request of the body authorized by UN Charter (art. 96 UN) – GA, SC, + other UN organs and specialized agencies authorized by GA –This question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law… –lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently been given by the Court. Therefore, the Court will, as it has done often in the past, “identify the existing principles and rules, interpret them and apply them..., thus offering a reply to the question posed based on law” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004) (Legality of the Threat or Use of Nuclear Weapons, 1996) “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

Other tribunals within the UN system ICJ – principal judicial organ of the UN Number of specialized supervisory organs, especially in human rights treaties –Committee against torture –Committee on the Elimination of Racial Discrimination –Committee on the Elimination of Discrimination against Women –Committee on the Rights of the Child –Committees of ICCPR and ICESCR

Other tribunals within the UN system Problems with such bodies: –Can be hardly viewed as judicial bodies –They make suggestions and recommendations –Some may entertain complaints, communications made by States or even individuals –BUT can´t make binding decisions –Nevertheless impact is considerable Authoritative interpretations, etc.

Other tribunals within the UN system SC made tribunals –International Criminal Tribunal for Rwanda –International Criminal Tribunal for the Former Yugoslavia UN Compensation Commission –Compensation of war damages brought by individuals, governments, corporations.. International Tribunal for the Law of the Sea –Created under the 1982 Las of the Sea Convention

Dispute settlement in other IGOs Other organizations having their own dispute settlement mechanism –OSCE –ECOWAS –EFTA –Andean Common Market –Benelux –Organization of Arab Petroleum Exporting Countries –Organization of Central American States NATO? –No NATO court

Dispute settlement in other IGOs The GATT / WTO system Administrative Tribunals Other systems