1. Government 1740 International Law Summer 2006 Lecture 8: The ICJ and Peaceful Settlement of Disputes

2. 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

3. I. Overview: Disputes and Their Settlement Legal and Political Disputes

4. Types of Dispute Settlement Interstate Transnational Legal (Justiciable) Political (Non- justiciable)

5. 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

6. II. Non-judicial Means of Interstate Dispute Settlement

7. 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.”

8. Non-judicial Dispute Resolution  Negotiation  Good Offices  Mediation  Commission of Inquiry

9. Teddy Roosevelt, Russo- Japanese War, 1904- 05

10. Kofi Annan offers “good offices” in the current Israeli-Hezbollah conflict Qana, Lebanon Haifa, Israel

11. Storming of San Juan Hill, Spanish- American War, 1899 US refused European and Papal mediation in Spanish American War

12. Dayton Peace Accords (1995) “Contact Group:” U.S., U.K., France, Germany, Russia, EU Special Negotiator in former Yugoslavia

13. The Lytton Commission

14. Burundi (1995)  Security Council resolution 1012 to address the assassination and massacres in Burundi

15. Russia/Chechnya (2000)

16. III. Arbitration

17. 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

18. Permanent Court of Arbitration  Created the Hague Conference (1898)  Function: pool of arbitrators to be available to serve on a tribunal Not!

19. 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

20. Alabama Claims Case (1872)

21. Beagle Channel Case: Chile v. Argentina (1970s) CHILE ARGENTINA THE BEAGLE CHANNEL

22. Eritrea v. Yemen (1996-99) Area of Dispute Eritrea Yemen

23. IV. The International Court of Justice  The only general organ of judicial settlement in the international system

24.  Relatively new and rarely, but increasingly, employed.  Uses existing structures; permanent courts.  Voluntary process rendering a binding decision Adjudication

25. ICJ Origins  UN Charter Art 92  Succeeded the PCIJ  First sat in 1946

26. 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

27. 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”

28. What Law is the ICJ to Apply?  Article 38: Sources of international law  Equity or fairness

29. Issues on which the ICJ Rules:  Territorial disputes  Fisheries/Law of the Seas  Diplomatic and Consular Law  Non-use of force  Nuclear Tests  Non-intervention (Nicaragua v. U.S.)  Decolonization  State responsibility  Status of foreign investments

30. ICJ Jurisdiction

31. 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

32. 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

33. 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

34. US Policy with Respect to the Optional Clause  Self-judging reservation  Central American restriction  Withdrawal from Optional Clause

35. Types of Decisions Contentious and otherwise

36. Contentious Cases  Must have both parties’ consent  Proceedings  Decisions are by majority vote and are legally binding

37. Other Kinds of Decisions  Applicable Principles of International Law (North Sea Continental Shelf case)  Advisory Opinions

38. Other Procedural Issues  Quorum  Chambers Gulf of Maine

39. V. Legal Recourse in a Political Context The ICJ and international politics

40. Why delegate this kind of decision-making?  In many cases parties want to settle  Do not have the capacity to settle politically – About the same power as the adversary – Can’t get domestic political agreement  They expect to win  Even if they don’t win, it is easier to make concessions to “law” rather than to an adversary.

41. Struggles over Forum ? Peace Palace Security Council

42. How Successful is the ICJ?  Discouraging Trends  Encouraging Trends

45. Enduring western bias? Inevitable ideational bias?

46. 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.