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24650 results in Public International Law

Page 420 of 1233

  • 8 - International Dispute Settlement in the UN Convention on the Law of the Sea

  • from PART II - INTERNATIONAL DISPUTE SETTLEMENT IN PARTICULAR FIELDS
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 229-274

  • Summary

    Main Issues

    Generally, the effectiveness of mechanisms for the peaceful settlement of international disputes can be said to rely on a sound balance between voluntary and compulsory procedures. Thus the reconciliation of these elements should be an important issue when establishing mechanisms of international dispute settlement. The dispute settlement system in the LOSC provides a useful insight into this issue. This chapter will seek to examine the law and procedure of the dispute settlement system in the LOSC. In particular, the following issues will be discussed:

  • (i) What are the principal features of the procedures of international dispute settlement in the LOSC?

  • (ii) What is the significance of the compulsory procedures for dispute settlement in the LOSC and what are their limitations?

  • (iii) What is the difference between the ICJ and ITLOS?

  • (iv) What is the role of arbitral tribunals under the LOSC in the settlement of disputes concerning marine affairs?

  • (v) Do the multiple judicial bodies set out in the LOSC create a fragmentation of international law?

    • INTRODUCTION

    The ever-increasing use of the oceans necessitates international rules regulating various human activities at sea. The body of international rules that bind States and other subjects of international law in their marine affairs is called the international law of the sea. A global legal framework for governing the oceans was established by the LOSC, adopted in 1982. The Convention that comprises 320 Articles and nine Annexes covers marine issues in a quasi-comprehensive manner. As the LOSC represents a complex balance of interests of various actors, however, international disputes are likely to arise with regard to its interpretation and application. Thus the establishment of the system of international dispute settlement is crucial in its implementation. The system of international dispute settlement under the Convention is characterised by three principal features.

    The first noteworthy feature is that the dispute settlement system is set out as an integral part of the Convention. In this regard, the LOSC shows a clear contrast with the Optional Protocol Concerning Compulsory Settlement of Dispute, which was adopted as a distinct treaty at the First United Nations Conference on the Law of the Sea in 1958.3 The built-in dispute settlement system, including the compulsory procedures, can be considered as an important tool for securing the integrity of the interpretation and application of the Convention.

  • 12 - The Quest for Peace in International Law

  • from PART II - INTERNATIONAL DISPUTE SETTLEMENT IN PARTICULAR FIELDS
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 382-395

  • Summary

    Main Issues

    In a narrow sense, sustainable peace in the international community means absence of armed conflicts and disputes endangering international peace and security. While the peaceful settlement of international disputes is a prerequisite to achieve sustainable peace in a narrow sense, it is not sufficient to achieve this goal. Sustainable peace in a narrow sense relies on the interlinkage of three elements: peaceful settlement of international disputes, the prohibition of the threat or use of force secured by an international security system, and disarmament. The three pillars can be regarded as essential conditions for peace. The role of the peaceful settlement of international disputes in international relations must be examined in connection to the other two elements. Focusing on the interlinkage of the three pillars, this chapter will seek to consider the role of the peaceful settlement of international disputes in a broad context. In particular, the following issues will be discussed:

  • (i) What is the interrelationship between peaceful settlement of international disputes, the prohibition of the use or threat of force and disarmament?

  • (ii) What are the problems associated with the interaction of the three elements?

  • (iii) How is it possible to strengthen the interlinkage of the three elements to achieve sustainable peace?

    • INTRODUCTION

    ‘Peace’ is an elusive concept and it is difficult to define it a priori in abstract. The Preamble of the UN Charter appears to contain two categories of components of peace. The first category relates to components necessary to maintain peace in a narrow sense which means absence of armed conflicts and disputes endangering international peace and security. This category includes two elements that are closely interlinked: the prohibition of armed force and the maintenance of international peace and security. The second category of components is those necessary to achieve peace in a broad sense which refers to the situation where human rights are adequately protected and all people can promote economic and social progress. These components embodied in the Preamble include: the protection of ‘fundamental human rights’, promotion of social progress and better standards of life in larger freedom, and the promotion of the economic and social advancement of all peoples. Given that a healthy environment provides a foundation for all life, it is also necessary to add the protection of the environment as a component of peace in a broad sense.

  • 1 - International Dispute Settlement in Perspective

  • from PART I - FOUNDATION OF INTERNATIONAL DISPUTE SETTLEMENT
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 3-27

  • Summary

    Main Issues

    The settlement of disputes is one of the essential functions of law and this is equally true of international law. Indeed, the peaceful settlement of international disputes is a prerequisite to the maintenance of international peace and security. Furthermore, the establishment of mechanisms for settling international disputes is needed to secure the effectiveness of the international legal system. Peaceful settlement of international disputes thus occupies a central place within international law. As we shall discuss in this book, international law provides a range of means of international dispute settlement. They include negotiation, good offices, mediation, inquiry (fact-finding), conciliation, dispute settlement through international organisations, arbitration and judicial settlement. As a preliminary consideration, this chapter will discuss basic concepts and issues concerning peaceful settlement of international disputes in international law. The principal focus will be on the following issues:

  • (i) What is the obligation of peaceful settlement of international disputes?

  • (ii) What are international disputes in international law?

  • (iii) What is the principle of free choice of means?

  • (iv) What is the distinction between static and dynamic disputes?

  • (v) Should means of international dispute settlement differ according to the types of disputes?

    • INTRODUCTION

    Whilst international disputes stem from a variety of factors, such as strategic, political, economic, cultural and religious factors, two elements in particular merit highlighting from the viewpoint of international law.

    The first noteworthy element concerns the interpretation and application of rules of international law. In the municipal legal system, basic functions of law – that is, legislative, executive and judicial functions – are essentially monopolised by the State authority. In this sense, the municipal legal system can be regarded as a centralised legal system. Under this system, a dispute with regard to the interpretation and application of law is to be settled eventually by municipal courts. Jurisdiction of the municipal courts is obligatory in the sense that it does not rely on the consent of the parties of the litigation, and the decisions of the courts are enforced by the State authority. Thus the uniform interpretation and application of municipal law can be secured in the municipal legal system. In contrast, international law is considered as a decentralised legal system since there is no centralised authority which exercises legislative, executive and judicial functions.

  • 2 - Negotiation, Good Offices and Mediation

  • from PART I - FOUNDATION OF INTERNATIONAL DISPUTE SETTLEMENT
  • Yoshifumi Tanaka, University of Copenhagen
  • Book:
    The Peaceful Settlement of International Disputes
    Published online:
    21 June 2018
    Print publication:
    11 January 2018, pp 28-51

  • Summary

    Main Issues

    Given that the majority of disputes are resolved through negotiation in practice, negotiation can be considered as the fundamental means for settling international disputes. Hence it seems appropriate to commence our examination with negotiation. Good offices and mediation may be said to be an adjunct to negotiation since these means aim to facilitate dispute settlement through negotiation between the parties in dispute. Accordingly, it is necessary to examine these means of dispute settlement in connection with negotiation. In this regard, it is important to note that negotiation and legal means of international dispute settlement, namely international adjudication, are not mutually exclusive but complementary. Thus particular attention must be paid to interaction between negotiation and international adjudication. This chapter will focus particularly on the following issues:

  • (i) Why should negotiation be examined in international law?

  • (ii) What are the principal features and functions of negotiation in the field of international dispute settlement?

  • (iii) What is the interrelationship between negotiation and international adjudication?

  • (iv) If an international dispute cannot be settled through negotiation, what is the next step to be taken?

  • (v) What is the role of good offices and mediation and what are their limitations?

    • INTRODUCTION

    It is generally recognised that the majority of international disputes are settled by negotiations. In some cases, negotiations may be the only and final means of settling international disputes. Therefore, it would be no exaggeration to say that negotiation is the fundamental means of international dispute settlement. In reality, however, it is not infrequent that direct negotiation encounters serious difficulties or even deadlock due to the adamant attitude of parties in dispute. In this case, involvement of a third party may be needed with a view to making concessions or breaking stalemate in negotiations.

    The degree of involvement of the third party varies on a case-by-case basis. Where the involvement of the third party is limited to providing an additional channel of communication, such an intermediary is considered to be offering ‘good offices’. Where a third party takes a more active role by making proposals, such an act is called ‘mediation’. Good offices can be said to be a modest mode of assistance by a third party, whilst mediation is an active mode of intervention by the third party.

Page 420 of 1233