Strengthening and institutionalizing of traditional means

· Obligation to settle disputes peacefully has meant states have tried to strengthen traditional mechanisms and establish them on a more permanent basis.

o particularly for conciliation or adjudication functions, some bodies have been set up specifically with those functions

o for negotiation, still most widespread means of settling disputes, some treaties make recourse to it compulsory (e.g. UN Convention on Law of Sea, art. 238; Article VIII(2) of 1959 Antarctic Treaty).

10.7.1 Resort to compulsory conciliation or adjudication

· Traditional system providing for unilateral resort to conciliation or arbitration has been strengthened:

o Compulsory conciliation or adjudication procedures are laid down in multilateral treaties

o They rest on basic consent of the overwhelming majority of member states of int’l community

Conciliation

· conclusions and proposals of conciliator (third party) are not binding on the parties.

· But there have been steps forward:

o Providing for a right to initiate, or obligation to submit to conciliation

o Establishing a procedure to be followed in conciliation

o Setting up a body responsible for seeking to induce contending parties to reach an amicable

Compulsory conciliation

· Some countries argue that int’l rules only make sense if there is a compulsory means of settling disputes

· Vast majority of states do not want to tie their hands to one form of settlement vs. another – strongly oppose obligation for settlement procedures which lead to win/lose conclusions

а Compulsory conciliation mid-way position between two extremes

Compulsory conciliation – Example - Vienna Convention on Law of Treaties, 1969:

· disputes concerning any provision on the invalidity of treaties other than on jus cogens can be submitted to conciliation within 12 months of their beginning (art. 66(b))

· Any party to dispute can set in motion conciliation procedure by writing to UN SG

· Conciliation Commission appointed by SG – hears facts, examines claims and objections, and makes proposals to parties

· Has quasi-judicial powers, but its findings and proposals are not binding on parties

· But weight of report probably has more importance than that of a legally binding judgement

· In practice, this mechanism has never been utilized

Compulsory Adjudication

· advocated by developing countries, resisted by West

· 1969 Vienna Convention on Law of Treaties, Art. 66(a) – disputes relating to jus cogens may be submitted to ICJ at request of one party only, after 12 months have elapsed since start of dispute without any settlement being reached

· 1982 Convention on Law of Sea, Art. 279 – imposes duty on states to exchange their views as to mode of settlement; if no method agreed on, each contending party has right to resort to conciliation. If offer not accepted or unsuccessful, any party to the dispute can initiate judicial proceedings before one of 4 courts (Int’l Tribunal on Law of Sea, ICJ, Arbitral Tribunals)

o Developing countries have used this mechanism a number of times, Australia & NZ used Arbitral Tribunal against Japan in Southern Bluefin Tuna

· Mechanisms are designed to settle disputes relating to the interpretation or application of specific multilateral treaties – provided fro in compromissory clauses or clauses on compulsory conciliation.

· Other mechanisms not associated with treaties, like International Centre for Settlement of Investment Disputes:

o set up under aegis of World Bank to try to set up legal regime that protected interests of both investors and developing states

o No permanent tribunal, but an Administrative Council with panels of conciliators and arbitrators

o has been very successful, primarily in arbitration.

10.7.2 The increasing dispute-settlement role of UN organs

· Another important development - handling of disputes likely to threaten or endanger peace of security by Security Council or General Assembly

o Central political body of int’l organized community now monopolizes (or should) those disputes that threaten int’l peace and security.

o Body empowered to call parties concerned to explain their position and try to narrow differences, reconcile views, recommend equitable solutions – central organs of Conciliation

o Any party to the dispute or any third party can bring a dispute to attention of SC or GA

o SC has further contributed to settlement of disputes by setting up bodies with special judicial functions – e.g. UN Compensation Commission, charged with considering claims for damages after Iraq invasion of Kuwait; ICTR and ICTY.