Çağ University

Introduction to International Law II

Peaceful Settlement of International Disputes

Instructor: Ast. Prof. Sami Doğru
 Introduction
No international court is endowed with
compulsory jurisdiction to resolve international
legal disputes between States.
Nevertheless, modern international law is
committed to the resolution of international
disputes by peaceful means.
The international legal system has developed a
number of ways of resolving such disputes by
judicial settlement.
There has been a tremendous growth in the
number of judical bodies which have jurisdiction to
decide disputes about international law.
 Introduction

However, many of them involve individuals

making claims against;
- their own State (e.g. the ECHR) or
- claims against individuals (e.g. the ICC)
These judicial bodies are important institutions
for the creation and enforcement of international
law.
 Peaceful Settlement of International Disputes

Dispute
A disagreement on a point of law or fact, a conflict of
legal views or interest between the parties (Coquia
and Santiago, 2005)
 Peaceful Settlement of International Disputes

International Dispute
A disagreement on a point of law or fact, a conflict of
legal views or of interests between two States.
Disputes relate to an alleged breach of one or more
legal duties.
They may also relate to a question of attribution of
title to territory, to maritime zones, to movables or to
parts of the cultural heritage of a State.
 Peaceful Settlement of International Disputes

Kinds of Disputes
1. Political disputes:
Non-justiciable, political or non-legal issues

2. Legal disputes:
Involves not only questions of law but also the
law itself
 Peaceful Settlement of International Disputes

UN Charter Art. 2(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.
 Peaceful Settlement of International Disputes

The international legal system has developed a

number of ways of resolving such disputes by judicial
settlement.

UN Charter Art. 2(3)

All Members shall settle their international disputes by

peaceful means in such a manner that international
peace and security, and justice, are not endangered.
 Peaceful Settlement of International Disputes

UN Charter Art. 33

1. The parties to any dispute, .... 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.
2. The Security Council shall, when it deems necessary,
call upon the parties to settle their dispute by such
means.
 Peaceful Settlement of International Disputes

1. Negotiation (görüşme)
2. Enquiry (soruşturma)
Diplomatic methods
3. Mediation (arabuluculuk)
4. conciliation (uzlaştırma)
5. Arbitration (hakemlik)
Legal methods
6. judicial settlement (yargısal
çözüm)
7. Resort to regional agencies
or arrangements
8. Other peaceful means of
their own choice
 Peaceful Settlement of International Disputes

The peaceful means of dispute settlement

Parties to a dispute are free to choose one or a

combination of these methods.
The methods of dispute settlement fall into two
categories:
A. Diplomatic methods: Non binding decisions
B. Legal methods: Binding decision
1. Arbitration
2. Judical settlement
 The peaceful means of dispute settlement
A. Diplomatic methods:
Negotiation: This involves direct contact between the parties
to a dispute.
•Mediation and ‘Good Offices’:This involves using a neutral
third party as a negotiator.
Commissions of inquiry: This is where an independent body
is used to establish the factual basis of a particular dispute.
Its findings may provide the foundations for a negoti­ated
settlement.
Conciliation : Where an independent body is engaged to
investigate the dispute and to provide a report containing
recommendations targeted to resolving the dispute.
However, such reports are not legally binding on the parties.
 The peaceful means of dispute settlement
A. Diplomatic methods:
1. Negotiation:
2. Mediation and ‘Good Offices’:
3. Commissions of inquiry:
4. Conciliation :

The above methods of dispute resolution do not

necessarily involve international law and so you do not
need to learn about them in detail.
 The peaceful means of dispute settlement

B. Legal methods:
1. International Court of Justice: Judical settlement:
2. Arbitration

No international court is endowed with compulsory

jurisdiction to resolve international legal disputes
between States.
 The peaceful means of dispute settlement

Judical settlement: ICJ

Submitting a dispute to a pre-constituted

international court or tribunal composed of
independent judges whose tasks are settle
claims on the basis of international law and
render decisions which are binding upon the
parties
 International Court of Justice (ICJ)

- Established in 1946 as a principal organ of the

United Nations
-Its seat is at the Peace Palace in The Hague
(Netherlands)
- It replaced the Permanent Court of International
Justice which had functioned in the Peace Palace
since 1922.
 International Court of Justice
Composition:
–15 judges elected to nine-year terms of office by the
UN General Assembly and SC sitting independently
of each other.
– It may not include more than one judge of any
nationality.
–Elections are held every three years for one-third
(1/3) of the seats, and retiring judges may be re-
elected.
– The Members of the Court do not represent their
governments but are independent magistrates.
 International Court of Justice
Composition :
–The judges must possess the qualifications required
in their respective countries for appointment to the
highest judicial offices, or be jurists of recognized
competence in international law.
–The composition of the Court has also to reflect the
main forms of civilization and the principal legal
systems of the world.
 International Court of Justice (ICJ)

- The ICJ is the current guardian of international law.

- The first ‘World Court’ was the Permanent Court of
International Justice (PCIJ), which was established in
1920 under the auspices of the League of Nations
(1919).
-Through its judgments the PCIJ was responsible for
delivering some of the most important
pronouncements on international law: e.g. the Lotus
Case (1927)
- It was superseded by the ICJ, which was created by
the ICJ Statute (1945).
 International Court of Justice (ICJ)

Article 92, UN Charter

‘The [ICJ] shall be the principal judicial organ of the
United Nations.
It shall function in accordance with the annexed
Statute, which is based upon the Statute of the [PCIJ]
and forms an integral part of the present Charter.’
 International Court of Justice (ICJ)

Access to the Court

Article 35, ICJ Statute provides that only States
have access to court.
Under Article 93 (1), UN Charter, all member States
are parties to the ICJ Statute.
 International Court of Justice (ICJ)

Access to the Court

Before the ICJ will admit a case, it must be satisfied
that:
- the dispute is a legal dispute (i.e. capable of being
settled by the application of principles and rules of
international law); and
- it has jurisdiction to decide the particular dispute in
question.
 International Court of Justice (ICJ)

Functions of the Court

1. To settle in accordance with international law the
legal disputes submitted to it by States, and
2. To give advisory opinions on legal questions
referred to it by duly authorized international organs
and agencies.
 International Court of Justice (ICJ)

Jurisdiction
Article 36(1), ICJ Statute
The jurisdiction of the Court comprises all cases
which the parties refer to it and all matters specially
provided for in the [UN] Charter or in treaties and
conventions in force.
Article 36(1) ICJ Statute emphasises the requirement
that a State has consented to the resolution of a
particular legal dispute by judicial means.
 International Court of Justice (ICJ)

Jurisdiction of the court:

Jurisdiction of the Court depends upon consent, the
recognition of the States of the jurisdiction of the
Court over a dispute. Recognition may be expressed
by
1. Special agreement
2. Compromissory clause in treaties
3. Forum prorogatum
4. Declaration of States that they accept in
advance the jurisdiction of the court in certain
cases; Optional Clause
 International Court of Justice (ICJ)

Jurisdiction:Article 36(1), ICJ Statute

 International Court of Justice (ICJ)

Jurisdiction of the court:

1. Special agreement(compromis/tahkimname):
States may refer a dispute to the Court by concluding
a special agreement.
Facts
Qatar and Bahrain were in dispute about certain maritime and
territorial issues. They sought to enter into an agreement so
that the dispute could be referred to the ICJ.
Legal principle
The ICJ decided that the minutes of the December 1990
meeting constituted an international agreement which could
give rise to ICJ jurisdiction.
 International Court of Justice (ICJ)

Jurisdiction of the court:

2. Jurisdictional clause in a treaty (andlaşmada
bir hüküm)
Some treaties concluded in the advance of a dispute
may involve provisions of dispute settlement and
recognize the jurisdiction of the ICJ.
Key case
Territorial Dispute (Libya v Chad)
Legal principle
The ICJ observed that the 1955 treaty: ‘clearly conveys the
intention of the parties to reach a definitive settlement of the
question of their common frontiers’
 International Court of Justice (ICJ)
Jurisdiction of the court:
3. Forum prorogatum (kabul yolu)
Forum prorogatum arises where consent is identifiable from
the conduct of a respondent State.
Facts
Djibouti alleged that France had failed to comply with
obligations agreed in a bilateral treaty between the two
States.Djibouti commenced legal proceedings before the ICJ.
In a letter written to the ICJ, France agreed that the Court had
jurisdiction to hear the case.
Legal principle
The ICJ observed that a claim of forum prorogatum can arise
‘when a respondent State has, through its conduct before the
Court or in relation to the applicant party, acted in such a way
 International Court of Justice (ICJ)
Jurisdiction of the court:
4. Jurisdiction via the optional clause (tek taraflı bildiri ile)
Article 36(2), ICJ Statute
States also may at any time unilaterally declare that they
recognize the jurisdiction of the court.
Facts
Portugal claimed a local CIL rule had been created that
allowed it to reach three Portuguese territorial enclaves that
were surrounded by territory belonging to India. Portugal
deposited its declaration with the UN Secretary General..
Legal principle
The ICJ decided that it was open to Portugal to initiate legal
proceedings by the optional clause as soon as its declaration
was deposited with the UN Secretary-General.
 International Court of Justice (ICJ)
Advisory Opinion (ICJ advisory jurisdiction)
Articles 65-68, ICJ Statute, empower a body duly
authorised by the UN to seek an Advisory Opinion
from the Court
Article 96 of the UN Charter
1. The General Assembly or the Security Council may
request the ICJ to give an advisory opinion on any
legal question.
2. Other organs of the UN 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.
 International Court of Justice (ICJ)
Advisory Opinion (ICJ advisory jurisdiction)
Advisory Opinions are not legally binding.
However, if an Advisory Opinion affects the rights and
obligations of States they are generally acted upon
A request for an Advisory Opinion must give rise to a
legal question because the ICJ is only authorised to
resolve legal disputes and to consider legal matters.
However, often requests manifest both legal and
political dimensions.
 International Court of Justice (ICJ)
Advisory Opinion (ICJ advisory jurisdiction)
Key case
The Kosovo Opinion (2010) ICJ 22/07/2010
Concerning: the validity of Kosovo’s declaration of
independence as a matter of international law
Legal principle
The ICJ decided that the question asked ‘whether or
not the applicable international law prohibited the
declaration of independence’ (at Para 56).
It decided that the declaration of independence did
not violate international law.
 Arbitration
Arbitration is one of the legal means of dispute
settlement and therefore, binding.
Arbitrators are elected by the parties.
In this respect it differs from the court
mechanism.
Like adjudication, the consent of all parties is
required for arbitration.
There could be a single arbitrator or an arbitration
commision composed of a group of arbitrators.
 Arbitration
The parties should negotiate first and degree on
the applicable law, the composition of the
arbitration organ and the extent and content of
the case to be arbitrated.
Therefore, a special agreement or compromis is
needed
The law applicable in arbitration is often
international law.
However, parties may specify that a national law
or equity my be applied.
If you have any questions, make an
appointment to see me in my office.

See you next week! 