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

Outline I. Overview: Interstate Disputes & Their Settlement II. Non-judicial Dispute Settlement A. Diplomatic Negotiation B. Good Offices C. Mediation D. Commission of Inquiry III. Arbitration (Compared to Adjudication) IV. The ICJ A. Background B. Jurisdiction C. Types of Decisions D. Legal recourse in a political context

I. Overview: Disputes and Their 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 Means of Interstate Dispute Settlement

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,

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. 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!

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 BEAGLE CHANNEL

Eritrea v. Yemen ( ) Area of Dispute Eritrea Yemen

IV. The International Court 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 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

United States Yugoslavia France UK Congo Belgium Libya Nicaragua USSR Colombia India Spain Germany Iran Netherlands Norway Peru Canada Australia Italy Portugal Pakistan Cameroon Iceland Lebanon Greece

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 Decisions 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 Political 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:  States have an obligation to settle disputes peacefully  Many possible means to do so: negotiation, good offices, mediation, arbitration and adjudication  The ICJ is the only organ of general judicial settlement in the int’l system  Permanent institution with its own statutes (integral part of the Charter)  It is an institution for state disputes  Use 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.