ULI459U-GLOBAL POLITICAL ECONOMY
Chapter 8: Dispute Settlement Mechanisms in International Law
Introduction
International disputes are disputes arising in the international arena and between international legal persons. The resolution of international disputes can be examined in two ways: Diplomatic (peaceful) and judicial method. The parties decide on the dispute resolution methods. It can be said that diplomatic solution methods are generally non-binding, but judicial solution methods are binding.
Methods of Peaceful Settlement of Disputes
Diplomatic settlement methods that we can call non- judicial peaceful settlement methods are diplomatic negotiation, good offices, mediation, conciliation and research-investigation. The purpose of these methods is to enable the parties to come together to discuss and resolve their disputes and to find solutions.
Methods of Peaceful Settlement of Disputes:
• Diplomatic Negotiation • Good Offices • Mediation • Conciliation • Investigation
In the United Nations Convention, special emphasis was put on diplomatic settlement methods, which are among the peaceful settlement methods instead of using force in the resolution of disputes.
Diplomatic Negotiation
A diplomatic negotiation is the discussion or examination of a dispute, a matter, an agreement to be made, or an attempt to take place, between two or more parties, verbally or in writing. Negotiations usually take place only with the participation of the parties. But with the approval of the parties, third parties may also join the meeting. Multilateral negotiations usually take place under the name of conference or congress. If there is no agreement or an acceptable tradition regarding the resolution of disputes between the parties, it is not possible to mention the necessity of reaching a conclusion. In other words, there is no obligation to reach a solution as a result of the meeting
Good Offices
Good offices can be described as a third state or international organization providing friendly services to the parties to the dispute for the purpose of resolving disputes in a modestly friendly manner so that they can start negotiations and produce solutions
Mediation
In mediation, there is a third person referred to as a mediator. Mediation is the participation of the international organization, the third state or one person in negotiations with the states parties to the dispute to negotiate and resolve their disputes, in resolving disputes.
The beginning and end of the mediator’s duty shall be with the approval of the states parties. The parties may make the mediation method obligatory in resolving the dispute between them by making or concluding an agreement. The parties are not obliged to accept the mediation’s recommendations regarding the resolution of the dispute.
Conciliation
Conciliation is a peaceful solution method in which states that are parties to the dispute create an independent commission and ask this commission to examine the issue and bring solutions to them. It can be accepted that the main objectives of the method of conciliation are to determine disputes, to reduce tension, to encourage the negotiations.
Investigation
The investigation is the activities carried out by the commission, commissioned to make objective determinations regarding the disputes between the states. During the investigation by the commission, the activities of listening to witnesses, visiting the place of dispute, and making necessary determinations are carried out. The parties are not bound by the report prepared as a result of the investigation. However, if a solution is to be reached as a result, this report will be taken into consideration.
Methods of Judicial Settlement of Disputes
Permanent Court of Arbitration
With the The Hague Convention for the Pacific Settlement of International Disputes of 1899, the establishment of the Permanent Court of Arbitration on dispute resolution and the basic rules regarding the arbitration have been regulated.
Although it is thought to be related to the resolution of interstate disputes, the Permanent Court of Arbitration has been the jurisdiction to apply for commercial and investment disputes since 1930, where one side is the state and the other is a private entity.
Persons who may be parties to the dispute before the court are two or more states, two or more international organizations, state and real or legal persons, international organizations and real or legal persons. It is not mandatory to be a party to the Hague Conventions of 1899 and 1907 in order to apply to the Permanent Court of Arbitration.
The International Court of Justice
The states that are the parties to the dispute claim that their demands are legal and the demands of the other party are political. Due to the need for an independent and impartial tribunal between states, to resolve disputes from past to present, the Permanent Court of International Justice has been established after the First World War. With the establishment of the United Nations after the Second World War, this Court was replaced by the International Court of Justice.
The International Court of Justice was established due to the need for an independent and impartial tribunal for the resolution of disputes between states after the First World War as Permanent Court of International Justice, it is one of the main organs of the United Nations that replaced this Court with the establishment of the United Nations after the Second World War.
The ICJ (International Court of Justice) was established in June 1945 with the United Nations Charter and started to work in April 1946. The ICJ consists of 15 judges elected by the United Nations General Assembly and the Security Council for a nine-year term of office. The official languages of the ICJ are English and French.
The ICJ has two types of powers, namely binding decision-making and consultation in inter-state cases.
The Authority to Make Binding Decisions in Cases
Since the ICJ is empowered to resolve disputes between states, only states can be parties to cases. There are three conditions to be a party to the cases in the ICJ. First, the UN member states can automatically become a party to lawsuits because they are also parties to the ICJ Status. Second, although not a member of the UN, the member states of the ICJ Status can become a party to the cases. Thirdly, states that are not members of the ICJ Status can become a party to the cases under the conditions determined by the Security Council.
According to Article 59 of the ICJ Statute, the decisions made are final and binding. Compliance with these decisions is mandatory for states parties. However, when this obligation is violated, there is no mechanism to force compliance. If the decisions are not followed, the only way to apply is to apply to the Security Council.
The Authority to Issue Advisory Opinion
The mandate to seek advisory advice from the ICJ has been given to five bodies of the United Nations and 16 specialized organizations of the United Nations family or affiliated organizations. This authority was first given to the United Nations General Assembly and the Security Council, and it was stated that other United Nations bodies and specialist organizations could only use this authority in terms of “legal questions arising within their activities”. Unlike the ICJ’s decisions, these views are essentially advisory and non-binding. The requesting body, institution or organization is free to comply with the advisory opinion. However, if the opinion of the ICJ is approved by the relevant body or institution, it results in the conclusion that the advisory opinion is approved by international law (International Court of Justice).
The Court of Justice of the European Union
The Court of Justice of the European Union was established in 1952 with the aim of ensuring the interpretation and application of European Union law. For this purpose, the Court of Justice of the European Union reviews whether the actions of the European Union
institutions comply with the law, ensures that the member states of the Union comply with the obligations under the treaties, and interprets European Union law at the request of the national courts. The Court of Justice of the European Union forms the judicial authority of the European Union, ensuring uniform application and interpretation of EU law in cooperation with the courts of the member states.
The Court of Justice
The courts of the member states can apply to the Court of Justice to ensure that their laws comply with EU legislation in order to ensure effective and uniform implementation of European Union law and to prevent different interpretations. The response of the Court of Justice is the final decision upon this application. This decision of the Court of Justice binds the other national courts as well as the court that applied for the same disputes. The Court of Justice also determines whether a member state has fulfilled its obligations under European Union law; it regulates the annulment of an arrangement, directive or decision adopted by an institution, organization, authority of the European Union; it determines whether it is lawful for European Union institutions, bodies, offices not to act; and it examines the cases of appeals against the decisions of the General Court. There is no charge for cases before the Court of Justice.
The General Court
The General Court is a court appointed by the mutual agreement of the governments of the member states, with two judges from each member state. The General Court deals with cases brought by real or legal persons against the institutions, bodies, offices, actions of the European Union institutions and employees. The decisions of the General Court can be appealed within two months, and the Court of Justice conducts the appeal trial.
The Proceedings within the World Trade Organization
The World Trade Organization (WTO), which has the main objectives of facilitating the circulation of goods and services in international trade and of making the legislation related to investment predictable, and whose founders include Turkey, officially started its activities on 1 January 1995.
One of the most important features of the WTO is that it has a Dispute Settlement Body, enabling WTO members to take trade disputes to the DSB if they cannot resolve them through bilateral negotiations. The power of DSB on the disputes arising from the implementation of the WTO Agreements among the member states is exclusive and the decision regarding any commercial dispute is binding for the parties.