Chapter 6: The settlement of International disputes

1. What is the role of the UN in Dispute Settlement?

 The Charter of the United Nations has a special role in the settlement of
international disputes, and has recognized many important provisions related to the
peaceful settlement of international disputes. For the purpose of expanding these
provisions, the United Nations General Assembly adopted a number of resolutions
and declarations dealing with peaceful international disputes.
 General Assembly: Any UN member may bring a dispute to the GA to be
considered. Non UN members may also bring a dispute as long as they accept the
obligations of peaceful settlement of the dispute
 Security Council:UNSC has much more broad and effective powers in its
international dispute resolution and settlement than the GA. It is the main body for
such considerations, and any finding of the SC will generally trump that of the GA.
 ROLE OF THE UN IN DISPUTE SETTLEMENT :
1. Peaceful settlement: SC may call upon states to settle a dispute in any
peaceful manner if the dispute is threat to international peace, security or
justice.
2. Investigative power: UNSC has power to conduct investigation into
disputes to determine whether it is likely to endanger international peace
and security.
3. Any State may bring dispute
4. Resolution power: UNSC has power to recommend appropriate
procedures/methods of adjustment including those already used.
5. Referral to ICJ: generally, UNSC should refer legal disputes to the ICJ.
6. Unsolved disputes: if a dispute cannot be resolved as between parties by
mean listed in article 33 of the Statute, then dispute should be referred to the
UNSC.
7. Power to take action: if continuance of dispute is likely to endanger
international peace and security, the SC may take action or recommend
terms of settlement as appropriate.
2. Name peaceful means of dispute settlement?
 These methods can be categorized into:
1. Diplomatic means: negotiation, good offices,mediation, inquiry and
conciliation)
2. Adjudicative/ judicial means: arbitration and judicial settlement)
 Negotiation: is a strategic discussion that resolves an issue in a way that both
parties find acceptable. In a negotiation, each party tries to persuade the other to
agree with his or her point of view and reach some form of compromise. In certain
circumstances there may exist a duty to enter into negotiations arising out of
particular bilateral or multilateral agreements.
Negotiation is the simplest, cheapest, and most flexible means and always the first
step of settling state disputes.
 Good offices: A third party (as a “go-between”) tries to persuade disputing states to
enter into negotiations; when negotiations start, its functions are at an end.
 Mediation: as compared with offering good offices, a mediator, on the other hand,
is more active and actually takes part in the negotiations and may even suggest
terms of settlement to the disputing states.
 Inquiry: The main purpose of inquiry is “fact-finding”. After some negotiations,
disputing states may sometimes agree to appoint an impartial body (ad hoc and
permanent) to carry out an inquiry. The report or findings of the investigative
committee are not binding on the parties to the dispute. (nhớ học thêm mấy cái cơ
quan rồi thông qua ntn đồ á đa số, thiểu số gì đó, ở dưới cũng v luôn nha)
 Conciliation: is referring the dispute to a commission of persons whose task it is to
elucidate the facts and to make a report containing proposals for a settlement.
Report of the commission does not have the binding character of an award or a
judgment.
 Arbitration: can be defined as a procedure for the settlement of disputes between
states by a binding award on the basis of law and as a result of an undertaking
voluntarily accepted.
 Court: International court of justice shall be the principal judicial organ of the
United nations. The ICJ has two main categories of jurisdiction: jurisdiction in
contentious cases, advisory jurisdiction.

 Mediation, conciliation and good offices are three methods of peaceful settlement
of disputes by which third parties seek to assist the parties to a dispute in reaching a
settlement. All involve the intervention of a supposedly disinterested individual,
State, commission, or organization to help the parties. When the parties are
unwilling to negotiate, or fail to negotiate effectively, assistance by a third party
through its mediation, conciliation, or good offices may be necessary to help in
procuring a settlement. This assistance may be requested by one or both of the
parties, or it may be voluntarily offered by a third party.
 Conciliation differs from “inquiry” in that the main object of inquiry is the
elucidation of the facts, in the hope that the parties will of their own accord be able
to settle the dispute; whereas the main object of conciliation is to provide the active
services of a commission of persons in bringing the parties to an agreement.
 Conciliation differs from arbitration and judicial settlement in that under
conciliation the parties are under no obligation to adopt the proposed settlement;
whereas a legal obligation exists to comply with the award or judgment of a duly
constituted tribunal.

3. Which means of dispute settlement have results that bind the parties?
 Legal (or adjudicatory) means of dispute settlement (arbitration and
judicial settlement) result in third party decisions that are binding upon the
parties to the dispute.
 Arbitration is a device for leaving the settlement of disputes as much
in the hands of the parties as is possible. Parties are free in deciding
the law to be applied and also the method of settlement, including
the place where the dispute is to be settled, by whom and in
accordance with that procedures. Usually the arbitration proceedings
consist of two stages: written procedure and oral procedure, Arbitral
 awards are usually passed at deliberation by a majority vote. The
award of the arbitral tribunal is final and binding on the parties.
 Judicial Settlement: International courts like the International Court
of Justice (ICJ) pronounce binding judgments on the disputes
submitted to them by states. Parties have an obligation to comply
with these judgments in good faith, and international mechanisms
can impose sanctions or other enforcement measures against non-
compliance. The decisions of all international courts are final and
binding on the parties concerned must strictly comply. With a very
strict and effective enforcement mechanism of international court
judgments, by statute of the court or by the Charter of international
organizations, Court decisions are usually guaranteed to be enforced
through the authority of the authorities of international
organizations.

4. What are the differences between arbitration and court?

 Arbitration:
 Party autonomy: the formulation of the question to be submitted to the
tribunal, the rules of laws to be applied and the time limit within which an
award must be made must also be mutually agreed upon by the states
concerned.
 Judges of their own choice: sole arbitrator, arbitral tribunal, mixed arbitral
commision.
 Specially: arbitrators can be experts in a particular field of law.
 Confidentiality: Arbitration sits in private.
 No appeal: The award is final and without appeal.
 Effective enforcement: 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards.

 Court: (Only States may be parties in cases before the Court. The Court can
exercise jurisdiction only when the parties refer the case to it.)
 Formal and structured proceedings with established rules of evidence,
pleadings, and hearings. Can be lengthy and complex, involving discovery,
motions, and trials.
 Judge or jury decides the case based on the law and presents evidence.
 Public setting operated by the state judiciary, with established judges and
courtrooms.
 Confidentiality: Generally public proceedings with limited privacy, unless
specifically sealed by the court.
 The final award is binding on the parties. However if there is a discovery of
new facts, the Court (ICJ) applies revision of judgment.

5. Negotiation is a compulsory settlement in every dispute. RoW?

 Wrong. A negotiation is a strategic discussion that resolves an issue in a way that
both parties find acceptable. In a negotiation, each party tries to persuade the other
to agree with his or her point of view and reach some form of compromise.
 Although in certain circumstances there may exist a duty to enter into negotiations
arising out of particular bilateral or multilateral agreements, negotiation is not a
compulsory settlement in every dispute for several factors:
 Some disputes, particularly those involving complex legal or technical
issues, may not be suitable for negotiation and might require adjudication
through courts, arbitration, or other formal mechanisms.
 Both parties involved in the dispute must be willing to engage in negotiation
and compromise for it to be successful. If one party refuses to negotiate or
is unwilling to budge on their position, negotiations may not be a viable
option.
 The results of the negotiations are not binding on the parties.

6. Arbitration will be used when one of the disputing parties requests it. RoW?
 Wrong. One party's request alone might not trigger arbitration if there's no prior
agreement or legal basis.
 Arbitration depends upon the willingness of the states involved to submit to
adjudication. Consent can be on an ad hoc basis or based on a treaty. Arbitration
can only take place if both parties have agreed to it.

7. After arbitration, parties can use court as their dispute settlement. RoW? ko
chắc lắm :))
 Wrong. In principle, once an arbitration award is issued, it is considered final and
binding. This means parties cannot generally appeal the award or re-litigate the
dispute in court. However, it remains a possibility in certain scenarios where the
arbitration process was flawed or the award violates fundamental principles.
 When resolving the disputes, the Court shall determine whether the parties had an
arbitration agreement. The Court must also review the documents attached to the
petition to determine whether the Court has jurisdiction over the dispute.
 In case there was a request for Arbitration to resolve the dispute, and the arbitral
Tribunal has been resolving that dispute, the Court shall return the petition to the
plaintiff. After the decision of the Arbitral tribunal, the plaintiff requests the Court
to settle the dispute, the court shall accept and settle the dispute according to civil
procedures.
8. States that are the parties to the dispute are entitled to (có quyền) use all
means to settle the dispute. RoW?
Wrong. Article 2(3) of the Charter provides that: “All members shall settle their
international disputes by peaceful means such a manner that international peace and
secutiry, and justice, are not endagered…”. Peaceful means of dispute settlement:
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of their own choice.
Therefore, parties to dispute are entitled to use all peaceful means of dispute
settlement not all means to settle the dispute (all means can be the use of force,...).
9. When there is a dispute, the parties are supposed to bring it to the ICJ?
 - There is no requirement at a particular point in the dispute that the parties are
supposed to bring it to ICJ.
- Article 36 [Statue] “ The jurisdiction of the Court comprises all cases which the
parties refer to it…”. This phrase clearly indicates that the Court can exercise
jurisdiction only when the parties refer the case to it.
- The court’s jurisdiction is not compulsory, it’s voluntary only and is dependent on
the consent of the parties. If neither party has accepted the ICJ's jurisdiction, they
are not obligated to bring their dispute there.
10. Agreements of international law are only expressed in the legislation of
international law. (sao có câu này lạc quẻ ta ? Check thử nhén)
Wrong.
A special agreement offers the possibility of applying all or part of the Geneva
Conventions to a specific situation of conflict. It is an agreement that is signed on
an ad hoc basis by the parties to the conflict
Hình thức công nhận không chính thức, quan hệ giữa các bên chỉ phát sinh trong
một phạm vi nhất định nhằm giải quyết vụ việc cụ thể, và quan hệ đó sẽ chấm dứt
ngay sau khi hoàn thành công việc

Hay cái này trời

1. Treaties:

 Formal, written agreements between states or international

organizations, governed by the Vienna Convention on the Law of
Treaties (VCLT).
 They create legally binding obligations for the parties involved,
requiring consent through signature, ratification, or accession.
 Examples include the UN Charter, the Geneva Conventions, and the
Paris Agreement on climate change.

2. Customary International Law:

 Unwritten rules that have evolved through consistent state practice

and acceptance as law.
 They don't require written agreements but reflect a common
understanding of legal obligations among states.
 Examples include the prohibition of aggression, the principle of non-
intervention, and diplomatic immunity.

3. General Principles of Law:

 Fundamental legal principles recognized in most national legal

systems, applied to international law as well.
 They provide a basis for interpreting treaties and customary law and
fill gaps in international legal rules.
 Examples include good faith, due process, and the prohibition of
unjust enrichment.