Public International Law:

INTERNATIONAL DISPUTES

Written and Reported By:

Victor Emmanuel S. Alvarez
Coreine Imee B. Valledor

Submitted to:
Judge Michelia Capadocia

March 7, 2015

What is a Dispute?
A dispute exists when one state claims that another state should behave
in a certain manner and that claim is rejected by the latter.
-

Kelsen

An international dispute is a disagreement on a point of law or fact, a conflict of legal

views or interests between two persons; it is an ACTUAL DISAGREEMENT between
states regarding the conduct to be taken by one of them for the protection or vindication
of the interest of the other.
Not every disagreement is a dispute. A disagreement does not amount to a dispute if its
resolution would have no practical effect on the relationship between the parties.
Where the disagreement has not yet ripened into a full-blown conflict or the issues have
not yet been sufficiently formulated and defined, there is what is known as a situation.
A SITUATION is, therefore, the initial stage of a DISPUTE.

WHEN IS A DISPUTE LEGAL?

A dispute is legal if it involves justiciable rights based on law or fact susceptible of
adjudication by a judicial or arbitral tribunal.
i.e.:

(1.) A conflict on the interpretation of a treaty;

(2.) The ascertainment of the boundaries of adjacent states.

On the other hand, it is political if it cannot be decided by legal processes on the basis
of the substantive rules of international law because the differences of the parties spring
from animosities in their mutual attitudes rather than from an antagonism of legal rights.
i.e.: (1.) One state, in the exercise of its sovereign rights, enacts immigration
discriminating against the nationals of another state over the latters protests.

STAGES
(1) SITUATION

The disagreement has not yet ripened into a full-blown conflict;

laws

The issues have not yet been sufficiently formulated and defined.

(2) DISPUTE

The actual disagreement between states regarding the conduct to be

taken by one of them for the protection or vindication of the interests of the
other.

(3) SETTLEMENT

Settlement must conform to one of the basic principles of the United

Nations, by peaceful means in such manner that international peace and
security, and justice, are not endangered

SETTLING DISPUTES
All members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.
-

Article 2, Paragraph 3

United Nations Charter

There is no general obligation to settle disputes, except perhaps those which might
endanger peace and security. But if a decision is made to settle disputes, they must
conform to the basic principle inscribed in Article 2, Pargaraph 3 of the United Nations
Charter.
Unlike municipal law, international law has not yet been able to provide for an adequate
machinery for the peaceful settlement of disagreements among states by compulsory
processes binding on the contending parties, such as are available from national
administrative and judicial tribunals. The closest approach in the international society to
such agencies is the International Court of Justice, but its jurisdiction is not general or
obligatory its competence to act is dependent on the consent of the parties involved.
In consequence, states have on many occasions found it necessary to settle their
disputes by themselves alone without regard to higher authority.

Key Provisions in the United Nations Charter

Article 33:
(1.) 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 choice.
(2.) The Security Council shall, when it deems necessary, call upon the
parties to settle their dispute by such means.

Article 36:
(1.) The Security Council may, at any stage of a dispute of the nature
referred to in Article 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment.

the

(2.) The Security Council should take into consideration any procedures for
the settlement of the dispute which have already been adopted by
parties.
(3.) In making recommendations under this Article the Security Council
should
also take into consideration that legal disputes should as a general rule
be referred by the parties to the International Court of Justice in
accordance with the provisions of the Statute of the Court.

Article 37:
(1.) Should the parties to a dispute of the nature referred to in Article 33 fail
to settle it by means indicated in that Article, they shall refer it to the
Security Council.
(2.) If the Security Council deems that the continuance of the dispute is in fact
likely to endanger the maintenance of international peace and security,
it
shall
decide whether to take action under Article 36 or to recommend
such
terms
of
settlement as it may consider appropriate.

Article 38:
Without prejudice to the provisions of Article 33 to 37, the Security Council
may, if all the parties to any dispute so request, make recommendations to
the parties with a view to a pacific settlement of the dispute.

Peaceful or Amicable Methods

As mentioned in Article 33 of the United Nations Charter, the amicable methods of
settling disputes are NEGOTIATION, ENQUIRY, MEDIATION, CONCILIATION,
ARBITRATION, JUDICIAL SETTLEMENT, and RESORT TO REGIONAL AND
INTERNATIONAL ORGANIZATIONS. Except for negotiation, they all involve the
participation of a third party, such as a state or a prestigious statesman or jurist. These
methods may also be availed of by the parties independently of the United Nations, or
upon its recommendation or direction, or with its active participation.
The peaceful means of settling disputes mentioned in the Charter may be classified
into:
NONJUDICIAL /
DIPLOMATIC
(a.) Negotiation

QUASI - JUDICIAL

(a.) Arbitration

JUDICIAL

(a.) Judicial Settlement

(b.) Enquiry
(b.1) Good Offices
(c.) Mediation
(d.) Conciliation

NON - JUDICIAL OR DIPLOMATIC METHODS

Negotiation
Negotiation is the discussion, undertaken by the parties themselves, of their
respective claims and counterclaims with a view to their just and orderly adjustment.
Where the talks prosper and agreement is reached, it is usually formalized in a treaty or,
more directly, effected through the rectification of the injury caused to the claimant state.

Enquiry
Enquiry is the investigation of the points in question, on the theory that their
elucidation will contribute to the solution of the differences between the parties. As most
disputes are caused by a misunderstanding of certain factual situations, their
clarification by an impartial and conscientious body can limit if not entirely remove the
areas of disagreement. The findings of the party making the enquiry are not conclusive
upon the disputing states, but they, nevertheless, may exert a strong moral influence in
the settlement of the conflict.
Good Offices
Good Offices is a method by which a third party attempts to bring the disputing
states together in order to enable them to discuss the issues in contention and arrive at
an agreement. This is usually employed when the parties are no longer on speaking
terms, that is, when they have severed diplomatic relations or have actually commenced
hostilities.
Mediation
Mediation is a more active involvement than good offices, by means of which the
third party does not merely provide the opportunity for the antagonists to negotiate but
also actively participates in their discussions in order to reconcile their conflicting claims
and appease their feelings of resentment. The suggestions of the mediator are merely
persuasive, however, and may be rejected without offense by the parties to the dispute.
Conciliation
Conciliation also calls for the active paticipation of a third party in the attempt of
the disputants to settle their conflict, and the recommendations made by it are likewise
not binding. Unlike mediation, however, the services of the conciliator are not offered by
the third party but solicited by the parties in dispute.

QUASI JUDICIAL METHOD

Arbitration
Arbitration is the solution of a dispute by an impartial third party, usually a tribunal
created by the parties themselves under a charter known as the compromis, which will
provide for, among others, the composition of the body and the manner of the selection
of its members, its rules if proceedings and sometimes even the law to be applied by it,
and the issues of fact or law to be resolved. Unlike in conciliation, the proceedings are

essentially judicial and the award is, by previous agreement, binding on the parties to
the dispute.

JUDICIAL METHOD
Judicial Settlements
Similar to the nature of proceedings and the binding character of an arbitration
proceeding, and the disputes submitted for adjudication are legal, rather than political.
Difference between Judicial Settlement and Arbitration:
JUDICIAL SETTLEMENT

ARBITRATION

* Judicial Tribunal is a pre-existing and

permanent body.

* Arbitral Tribunal is an ad hoc body created

and filled by the parties to dispute
themselves.

* Jurisdiction is usually compulsory.

* Submission
voluntary.

* Law applied by the tribunal is

independent of the will of the parties.

* Law applies by the tribunal is independent

of the will of the parties, but may be limited
by them.

to

Arbitration

is

usually

JUDICIAL SETTELEMENT: INTERNATIONAL COURTS OF JUSTICE

The Judicial Settlement of International Disputes is now entrusted to the UNs

principal judicial organ- International Courts of Justice (ICJ), which superseded the
Permanent Court of International Justice under the defunct League of Nations. It came
into being in 1945 through the Statute of the Court. All members of the UN are ipso
facto parties to the Statute of the International Court of Justice. However, being parties
to the Statute does not mean acceptance of its jurisdiction; it just allows the possibility
because only State parties may be parties in the court.
* Cardinal rule: States cannot be compelled to submit disputes to international
adjudication unless they have consented to it either before a dispute has arisen or

thereafter. They may also limit their acceptance to certain types of disputes and to
attach various conditions or reservations to their acceptance.
Such consent may be manifested in a treaty containing what is called the
compromissary clause, which empowers the Court to settle disputes arising from the
interpretation or the application of such treaty, or through the so-called optional
jurisdiction clause in Article 36 of the Statute.

Composition of the Court:

A body of independent judges (elected regardless of nationality) of high moral character
possessing the qualifications required in their respective countries for appointment to
the highest judicial offices, or are jurisconsults of recognized competence in
international law.
Consists of 15 members, no two of whom may be nationals of the same state. A
member is a national of a state where he/she ordinarily exercises civil and political
rights.
Chambers: The Court may form one or more chambers composed of three or more
judges to deal with particular categories of cases like labor, transit and communications,
etc. In dealing with a particular case, the court may form a chamber for that purpose. If
parties request it, the case may be heard in the chamber. Judgment rendered by a
chamber is considered as rendered by the whole Court.
Possible partiality: Judges of the same nationality as one of the parties shall retain
their right to sit in a case before the court. Is the Court includes upon the bench a judge
of the nationality of one of the parties, any other party may choose a person to sit as
judge (preferably from the list of persons nominated as candidates.)

ARTICLE 36 provides that:

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize
as compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:

a. the interpretation of a treaty;

b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
3. The declarations referred to above may be made unconditionally or on condition of
reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United
Nations, who shall transmit copies thereof to the parties to the Statute and to the
Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the parties
to the present Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice for the period which they still have to run and in
accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court.

Jurisdiction of the Court:

Contentious: Such jurisdiction of the Court over all cases which the parties refer to it
and all matters specially provided for in the Charter of the UN or in treaties or
conventions.
Advisory: The Court may give an advisory opinion on any legal question. UN Charter
empowers the General Assembly and the Security Council to make requests for
advisory opinions, while the General Assembly may authorize other UN agencies to
seek advisory opinions. Requests must be made in writing containing an exact
statement of the question upon which an opinion is required, and accompanied by all
necessary documents. By definition, advisory opinions are non-binding. Acceptance or
non-acceptance of the advisory opinion is determined by the internal law of the
institution.
If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security

Council which may, if it deems necessary, make recommendations or decide upon

measures to give effect to the judgment. This does preclude the employment of other
means directly by the other party, such as announcement of the fact of non-compliance
and appeal to the world opinion to persuade the losing litigant to abide by the decision.

ACTION BY REGIONAL ORGANIZATION

Another peaceful method of settling disputes which may be resorted to by the
parties on their own volition or taken by the body itself at its own issuance if allowed by
agreement of the members. Several such organizations now exist in the various regions
of the world but with varying degrees of effectiveness depending on their respective
charters.

HOSTILE METHODS
It is resorted when the pacific methods of settling disputes are unsuccessful. These
methods are not only unfriendly but may even involve illegal and coercive acts and are
usually imposed upon weak countries by strong powers. Nevertheless, they are
regarded as a mild alternative compared to war, in the sense that they may avoid the
necessity of creating a more serious state of hostilities which might not be justified by
the nature of the dispute.
The hostile methods of settling disputes maybe classified into retorsions, reprisals and
intervention.

RETORSIONS
It is any action taken in retaliation where the acts complained of do not
constitute a legal ground of offense but are rather in the nature of unfriendly acts but
indirectly hurtful to other states. It is not illegal and may be in kind or of a different
nature than the act provoked it; any of the forms of counter-measure in response to an
unfriendly act like shutting of ports to vessels, revocation of tariff concessions or the
display of naval forces near the waters of an unfriendly state.

Examples of Retorsions:

Severance of diplomatic/consular relations: Resorted to only when absolutely

necessary because severance might endanger peace. This is distinguished from
suspension which only involves withdrawal of diplomatic representation, but not
consular.

Boycott: Form of reprisal which consists of suspension of trade or business

relations with the nationals of an offending state. A form of economic aggression
which ought to be prohibited by law.

Non-intercourse: Suspension of all commercial intercourse with a state.

Stoppage of travel to other state; Denunciation of treaties; Imposition of

higher tariffs and other trade barriers; Currency Restrictions; Denial of
loans and withdrawal of privileges previously enjoyed; Recognition of a
rival government; and Adverse propaganda.

REPRISALS
These are forcible coercive measure which seeks to deter/obtain redress from
another because of the others illegal act, and because of the others refusal to make
amends. By itself, the act of reprise is illegal. It must be preceded by an unsatisfied
demand. They have the effect of suspending momentarily in the relations of the two
states the observance of this or that rule of international law. They are limited by the
experience of humanity and the rules of good faith, applicable in the relation of state
with state. They would be illegal if a previous act contrary to international law had not
furnished the reason for them. They aim to impose on the offending state reparation for
the offense or the return to legality in avoidance of new offenses.
Examples of REPRISALS:

Display of Force- Ex.: When the US Mediterranean Fleet proceeded to and

deployed along the coasts of Turkey in 1903 pending compliance with the
demand for the return of an American national kidnapped by a Turkish Bandit;

Occupation of Territory- Ex.: As when Italy seized the Greek Island of Corfu in
1923 for the murder of certain Italian officers in Greece;

Embargo- May consist of seizure of vessels even in the high seas. It may be
pacific, as when a state keeps its own vessels for fear that it might find their way
into foreign territory. There is also collective embargo on import.

Pacific Blockade- Naval operation carried out in peacetime where a state

prevents access to or exit from particular ports or portions of the coast of another

state for the purpose of compelling the latter to yield to demands made by the
blockading state. It is essentially a warlike act.

THE UNITED NATIONS

In the event that none of the discussed methods succeeds in settling the dispute, or
even if they are not employed, the United Nations may be asked or may decide on its
own authority to take a hand in its settlement. This task is addressed principally to the
Security Council but may, when the occasion requires, be taken over by the General
Assembly under conditions to be noted shortly.

The Security Council shall have jurisdiction to intervene in:

a.) All disputes affecting International peace and security; and
b.) All disputes which, although coming under the domestic jurisdiction
clause, have been submitted to it by the parties for settlement.

Such disputes may be brought to it by:

1.) The Security Council itself, on its own motion.
2.) The General Assembly.
3.) The Secretary- General.
4.) Any member of the United Nations.
5.) Any party to the dispute, provided that in the case of a state which is not a Member
of the United Nations, they should accept accepts in advance, for the purposes of the
dispute, the obligations of pacific settlement provided in the present Charter.

The Charter of the United Nations provides that The Security Council shall, in the
first instance, when it deems necessary, call upon the parties to settle their dispute by
any peaceful means in their own choice.
In case they are unable to adjust their differences by themselves through the
peaceful methods suggested, the Security Council may recommend appropriate
measures or methods of adjustment, taking into consideration: (a.) any amicable

measures already adopted by the parties; and (b.) the legal disputes should as a rule be
referred to the International Court of Justice.
If the measures also prove unavailing, then the Security Council may recommend
such actual terms of settlement as it may consider appropriate. This last step is in the
nature of a compulsory settlement of the dispute which the parties are under obligation
to abide by in the interest of international peace and security.
Finally, where the terms of settlement are rejected by any of the parties, the
Security Council is empowered to take more drastic steps, to wit1. In the first instance, The Security Council may decide what measures not involving
the use of armed force are to be employed to give effect to its decisions, and it may call
upon the Members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic
relations. This is known as PREVENTIVE ACTION.
2. Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to maintain or restore international peace and
security. Such action may include demonstrations, blockade, and other operations by
air, sea, or land forces of Members of the United Nations. This is known as
ENFORCEMENT ACTION.

In order to enable the United Nations to take urgent military measures, Members
shall hold immediately available national air-force contingents for combined international
enforcement action. The strength and degree of readiness of these contingents and
plans for their combined action shall be determined within the limits laid down in the
special agreement or agreements referred to in Article 43, by the Security Council with
the assistance of the Military Staff Committee.

The Military Staff Committee shall consist of the Chiefs of Staff of the permanent
members of the Security Council or their representatives. It is supposed to advise and
assist the Security Council on all questions relating to the Security Council's military
requirements for the maintenance of international peace and security, the employment
and command of forces placed at its disposal, the regulation of armaments, and
possible disarmament. It shall be responsible under the Security Council for the
strategic direction of any armed forces placed at the disposal of the Security Council.

There is always the possibility of that failure of unity among the Big Five that will
render the Security Council impotent in the Solution of International Disputes. As
previously observed, the veto cast by any of the permanent members will prevent
agreement on this matter. Recognizing this, the General Assembly adopted in 1950 the
Uniting for Peace Resolution which provides that if the Security Council, because of
lack of unanimity of the permanent members, fails to exercise its primary responsibility
for the maintenance of international peace and security in any case where there
appears to be a threat to the peace, breach of the peace, or act of aggression, the
General Assembly shall consider the matter immediately with a view to making
appropriate recommendations to Members for collective measures, including in the case
of a breach of the peace or act of aggression the use of armed force when necessary, to
maintain or restore international peace and security.
If not in session at the time, the General Assembly may meet in emergency
special session within twenty-four hours of the request therefor. Such emergency
special session shall be called if requested by the Security Council on the vote of any
seven members, or by a majority of the Members of the United Nations.