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Settlement Of Disputes In International Law Notes

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Supv 9 - Settlement of Disputes in International Law Settlement of Disputes - Recourse to the Courts
* Art 2(3) UN Charter requires peaceful settlement of disputes. Central tenet of IL and may be jus cogens!
* Can be done in the following ways:
* Negotiations
# Binding if concluded in treaty form;
# Some obligations to negotiate such as Law of the Sea Convention or Art 33 UN Charter (if likely to endanger international peace and security).
# This can be done by mediation (good offices) where a trusted third party sits in the good office and chairs the negotiations.
* UN Determination
# Under ARt 14 UN Charter the UN must recommend measures for peaceful adjustment. But it is a political body which determines measures by block alliances rather than impartiality. Though it's good for determining Statehood as with China in 1974 and the former Yugoslavia.
* Security Council
# ARt 36(3) UN Charter says the SC must first note that parties should refer disputes to the ICJ for determination. The general rule is if the SC has taken determinative measures, the ICJ won't exercise jurisdiction per Lockerbie Case, but if not concrete measures, the ICJ will exercise jurisdiction per Armed Activities on the Congo. In Lockerbie, Judge Weeramantry said the ICJ should have the power to review legality of SC decisions. Harris says this leads to more questions, could it exercise judicial review over decisions, adopt its own response, undermine the legality of the actions? Alvarez say the realists believe the ICJ should stay out of the way of the SC, while legalists such as Judge Weeramantry say both are equal but different roles (political/legal) and the ICJ needs to be the last resort defender of the system's legitimacy. Alvarez sits in the middle ground arguing for them to coexist in tension. But at present it cannot rule.
# Under Art 37 UN Charter any matter can be referred to SC, and by third parties, if danger to peace and security. It can't enforce settlement, but can propose it under ARt 38. Note that if it is threat/breach of the peace, it can enforce Art 39 Charter VII measures.
* Other UN Bodies
# The fact other UN bodies are considering doesn't preclude ICJ per Construction of a Wall Case.
* Regional Settlement 23

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