PUBLIC INTERNATIONAL LAW APRIL 18

PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES - Proven to be an effective means of resolving disputes that may have
otherwise escalated to armed conflicts
 UN Charter clearly outlines the general obligations of States to resort to
pacific settlement of disputes
 Legal obligation to settle disputes peacefully – have attained the character
Mediation
of jus cogens – a peremptory norm
- Seek the participation of a neutral party or parties, to help resolve
How disputes should be settled: contentious issues developing between conflicting States.
 Settle their international disputes by peaceful means in such a manner that - Mediator offers concrete proposals to settle the dispute
international peace and security, and justice, are not endangered
Chas W. Freeman, Jr. (Diplomat, Author) – mediation; process by which a 3rd party (or
 Refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state or in any other group of parties), whose interest will be affected by the perpetuation of a dispute or by
manner inconsistent with the purpose of the UN its particular outcome, fosters and participates in negotiations between the direct
 All members shall give UN every assistance in any action it takes – shall parties to a dispute, assisting them to recognize common interests and to compose a
refrain from giving assistance to any State against which the UN is taking solution on the basis of these interest.
preventive or enforcement action
 Organization shall ensure that States which are not members of UN act in
accordance with these principles so far as may be necessary for the
maintenance of international peace and security Good Offices

Disputes and Situations - A state or an international organization brings States in dispute together,
around the proverbial conference table, in order to persuade them to start
negotiations
Dispute – a disagreement or a conflict of interest between international legal persons o Encourage parties to negotiate or to resume negotiations
or states o Opens channels of communication between parties involved in a
dispute
Situation – exists when there is a complex chain of events and issues that give rise to - GO and M are almost identical except that in the latter, the mediator plays a
not one but several disputes which are interlinked within a given context such as the more active role in the negotiations
situation between Israel and Palestine
Inquiry or Fact Finding
 A conflict conjures an image of hostility between States.
o GR: conflicts entail armed clashes - By an international organization or group involves the constitution of a fact-
o It is during periods of conflict, especially when there is already a finding body that seeks to gather data relevant to a given dispute
situation, that the parties must resort to the ways and means of - Can diffuse tension effectively as it informs parties to a dispute, in a factual
peaceful settlement. and objective manner
- It is an attempt to clarify misunderstandings and issues through the search
Eight Paths to Peaceful Settlement for and presentation of facts for the information and benefit of the parties
concerned
1. Diplomatic Negotiations
2. Mediation Conciliation
3. Good Offices
4. Inquiry or Fact Finding - A settlement brought about by the intervention of a third party, usually with
5. Conciliation the use of diplomatic methods.
6. Arbitration o Conciliator gets the contending parties to agree to submit their
7. Adjudication dispute to a permanent or ad hoc commission or to a single
8. Referral to Regional Agencies or Arrangements conciliation
- Sometimes, third party investigation of the dispute is conducted and a report
Diplomatic Negotiations is submitted containing proposals for settlement
o Report is only a proposal and does not constitute a binding
- Entail the use of ambassadors, envoys and other members of a country’s decision
diplomatic service
PUBLIC INTERNATIONAL LAW APRIL 18
Arbitration
- A process of adjudication by a tribunal
- Majority of its members are selected by the parties to the dispute
- The parties agree to accept the decision of the arbitrators as final and
binding, unlike in the conciliation method where compliance is voluntary.
o Consent of the parties in dispute is STRICTLY REQUIRED,
unless a treaty exists between them that specifies the mechanism
to be adopted, in the event one party refuses to give its consent
- COMPROMISE – is an agreement between States, submitting a dispute to
arbitration, defining the terms of the submission, the issues to be resolved,
the powers of the tribunal to arbitrate and the procedural aspects of the
arbitration.
o Serves as a record of the agreement of the parties to accept the
tribunal’s decision as binding
Adjudication
- A dispute between States or among them may be resolved through the
intervention of the International Court of Justice, or
o in case the dispute involves the Law of the Sea, the dispute may
be submitted to the International Tribunal for the Law of the Sea
- member of UN adheres to the UN Charter and ICJ statute; it does not mean
that said member-state has ipso facto agreed to confer jurisdiction on the
ICJ, when a dispute with other states arises
o acquisition of jurisdiction – optional and subject to either
expressed or implied consent of the parties, as when States enter
into a treaty with a compromissory clause, or in cases involving
forum prorogatum
- COMPROMISSORY CLAUSE – clause in a treaty which provides that all
disputes relating to the party to the ICJ by a unilateral act
- FORUM PROROGATUM – refers to the tacit consent of the parties or any
of the parties, to submit to the Court’s jurisdicition
Referral to Regional Agencies or Arrangements
- Article 33 of the UN Charter allows referral of a dispute to “regional
agencies or arrangements”
- Arab League, ASEAN, ECOWAS – have in place dispute resolution
mechanisms to help member States come into terms in the event of dispute
Abovementioned methods are the ways which may bring about peace and avoid
conflict.
COERCIVE MEASURES SHORT OF WAR
When negotiations fail, States in conflict may resort to – other measures, at times
coercive but still short of war
Retorsion
- Retaliatory action taken by one State against another State in reaction to
acts which the retaliating State deems to be against its interest.
o Retaliation to the stringent or harsh regulations or treatment of its
citizens who are within the geographical boundaries of the foreign
country against which retorsion is directed.
- Countermeasures in response to an unfriendly act
- Act carried out by one State against another in retaliation to a similar act
that the retaliating State believes is harmful to its national interest
o Typical method – adoption of equally stringent measures against
the citizens of an offending State who may be found within the
borders of the retaliating State
o One form of retorsion – revocation of tariff concessions not
guaranteed by treaty, or the imposition of additional duties or
requirements to goods entering the territorial jurisdiction of the
retaliating State
- Exercise of extorsion should be done with caution by States, as unilateral
acts of retorsion may actually exceed the harm done by the offending state
to the interest or citizens of the retaliating state.
Embargo
- Another measure short of war
- Embargar – meaning of confiscate, embargo may consist of the seizure of
vessels belonging to another State or it may consist in the prohibition of
government to the movement of its own merchant ships in or out of its ports
- FORM OF AN EDICT restricting the departure of vessels or movement of
goods to one country or to an identified port or territory.
- Embargo may be a trade embargo, which is a prohibition to import goods
from one or more states
o Prohibition; by government edict and is used not only as a means
to obtain redress for wrongs committed by the erring state, but
also to enforce the collective will of other nations which may have
entered into a coalition to enforce the embargo
- UN Security Council passed Resolution 757 – imposed a complete
economic embargo on the Federal Republic of Yugoslavia (FRY)
- UN Security Council Resolution 787 – prohibited transshipment through the
Federal Republic of Yugoslavia of certain designated goods
PUBLIC INTERNATIONAL LAW APRIL 18
Boycott
- Consists of the suspension of trade relations with the offending state or its
nationals
o Purpose of a boycott is to harm the economic or commercial life
of a state against which it is directed
- International law also allows a boycott to be instituted against a state in
order to penalize a state for the commission of an internationally illegal act
or to force a state to cease and desist from further committing acts against
international law
- A boycott should be imposed when a state refuses without justifiable reason
to obey the judgment of an international tribunal
o Enforced as soon as jus cogens norms are violated
 genocide, racial discrimination, slavery
 nature are crimes that will be so well-
documented that any reasonable person
could only conclude that such atrocities
against mankind are indeed being committed
and thus, require the intervention of coercive
measures.
NEUTRALITY
- Nations have option to refrain in participating in an armed conflict BY
ADOPTING NEUTRALITY
- STATUS of the State that voluntarily abstains from participating in a war
between other states
- Nation REFUSES to PARTICIPATE in conflict – DECLARE its
NEUTRALITY
o Armed Neutrality
 Since the neutral state is armed to defend its
sovereignty, in the event its declared neutrality is not
respected
Neutralization – guaranty made in a Convention that States signatories to the treaty
shall not take up arms against the neutralized state
Accdg to Law of Armed Conflict
- Neutral nations have the right of inviolability
o Observe the duty of abstention and impartiality
- Acts of hostilities are prohibited in a neutral territory
o Applies to neutral waters and airspace
- Belligerents are forbidden to move personnel and war materiel across
neutral territory
- If a PRISONER OF WAR (POW) escapes neutral territory, NEUTRAL
STATE (NS) may cause his repatriation or leave the escaped POW in
peace
o Escaped POW must not be allowed to commit acts hostile to the
interest of a belligerent while staying in the territory of a NS
Belligerent Ships in Neutral Ports
- NS shall close its ports and roadsteads to belligerents
o Roadstead – an anchorage for ships usually less sheltered than a
harbor
- If conflict breaks out
o NS must give the belligerent vessel 24 hours to leave the NS
harbor
o Warships are forbidden to remain in a neutral port or roadstead
beyond such period
 May stay longer – violent storms
o Neutral nations have the correlative duty to prevent use of their
airspace by belligerent aircraft
Protocol I Additional to the 1949 Geneva Convention (refer to book)
PUBLIC INTERNATIONAL LAW APRIL 18

Neutral Territory Swords in Ploughshares

- Hostile acts in neutral waters, airspace and land territory are prohibited
- NS has obligation of preventing its territory from being a sanctuary of a
belligerent force in conflict
- If NS CANNOT COMPLY with this sine qua non condition, then the
aggrieved belligerent may undertake enforcement measures in order to
protect its interest in the conflict
Engaging in Commerce with Belligerent States
- Neutral nations may engage in commerce with belligerent states but cannot
supply war armaments and materiel to a belligerent without violating its duty
to be impartial
o NN may lose its status of neutrality in the event it supplies
armaments to belligerent state
o Opposing belligerent may stop the flow of war materiel – valuable
during war – through hostile or violent means
- UN was formed for the purpose of promoting world peace by turning swords
into ploughshares
Lieber Code
- Customary international law
- Contained instructions for the government of the armies of US in the field
Martens Clause
- In cases not covered by humanitarian law conventions, combatants and
civilians are not wholly deprived of protection because they are safeguarded
by the principles of international law which emanate from accepted practices
establish among civilized people, from the laws of humanity, and the
dictates of public conscience

Neutrality and the United Nations Blockade

- Member states are obligated to provide assistance to the UN in the event
the Security Council finds it NECESSARY to use force in order to maintain
and restore international peace and security
- Act of sealing off a place to prevent goods or people from entering or
leaving
- Purpose is to isolate a state by blockading its strategically important
harbors, towns or cities in order to prevent the traffic of commerce or people
to bring down to its knees the blockade state
o Prior declaration addressed to NS of the intention to establish a
blockade
o Blockading power must issue a declaration that must specify the
date of the start of blockade and its geographical extent

Doctrine of Continuous Voyage

A TREATISE ON WAR AND THE LAWS OF WAR - Contraband goods are carried by a neutral vessel to a neutral port and from
there transported or transshipped to an enemy port
Jus ad Bellum (Right to war)

- Refers to the rules of international law governing the right of a state to go to

war and the justifications and reasons for war Nature of Contraband
- Legality of the use of force by states
1. Absolute Contraband
Jus in Bello (The law in waging war) 2. Conditional Contraband
3. Free Goods
- Refers to the rules of international law regulating the actual conduct of
hostilities once war begins
- International humanitarian law which seeks to limit the effects of armed
conflict and alleviate the sufferings of the victims of war

Function of International Committee for the Red Cross (ICRC)

- To address the reality of conflict and the fulfillment of its mission of

protecting and assisting the victims of war without regards to the reasons
why the war was being fought