PENYELESAIAN SENGKETA INTERNASIONAL

Nandang Sutrisno

Pendahuluan

Sejak Abad 16 konflik internasional telah membawa konsekuensi-konsekuensi yang tidak diinginkan. Ahli-ahli Internasionalts bagaimana menyelesaikan sengketa? Unrestrained conflict would entail considerable loss of human life. how international society could be managed so as to avoid conflict and a descent into widespread war. Since 19th Century (armaments increased) a number of methods have emerged designed to resolve intl disputes short

Methods of Peaceful Resolution of Disputes

1.

2.
3.

Diplomatic methods Legal or judicial methods Methods under particular rules of international organization

Un-peaceful Methods of Dispute Resolution

Definition

A dispute: A specific disagreement concerning a matter of fact , law or policy in which a claim or assertion of one party is met with refusal, counterclaim or denial by another. If unresolved it may give rise to a conflict. A conflict: Signifying a general state of hostility between the parties. The peaceful methods: designed to prevent conflict

Principles of International Law

The UN Charter promotes the peaceful resolution of disputes [Art. 1(1)]. Art. 2(3) reads:
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Art. 33(1) reads: The parties to any dispute, the continuance of which is likely endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Art. 33(2):

entitles the Security Council to call upon both parties to adopt one or other method of peaceful resolution.

Referring to Art. 2(3) the GA Declaration on Principles of International Law of 1970 noted:
States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful methods of their choice.

The Use of Force

Restrictions on the use of force

Art. 2(3): All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Art. 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Limited Exceptions: (a)The right to use of force in self-defense (b)The right to use force when authorized by the UNSC (c)Force undertaken by the five major powers before SC was functional; and

(d)The use of force against enemy states.

Judicial Settlement by the International Court of Justice

PCIJ created by the LN in 1922

29 contentious cases 27 advisory opinions

ICJ created by the UN in 1946

1946 2004:

89 contentious cases 25 advisory opinions

Jurisprudential legacy:

Timid, prudent, creative, dynamic and inspiring.

Procedural Issues

Principal judicial organ of the UN Representation of the main forms of civilization and of the principal legal systems of the world 15 judges

Elected for 9 years

Elected regardless of their nationality from among persons of high moral character, who posses the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognised competence in international law Africa (3), Latin America (2), Asia (3), Western Europe and others (5), Eastern Europe (2).

Independence:

Not undertake any political or administrative task If a judge has acted as counsel or agent in relation to a matter excluded Judge Higgins in the Lockerbie and Gabcikovo-

Nagymaros

Chambers:

A full court of up to 17 judges (+ ad hoc) Small chambers: 5 judges; 3 judges (4 cases) A new Chamber for Environmental Matters: 7 judges

Decisions:

Based on a majority The President has a casting vote where the vote is equal Final

Parties:

Only states Bodies (only for advisory opinion)

Primary sources:

Applicable Law

Article 38(1) of the ICJ Statute: a. International conventions, whether general or particular, establishing rules expressly recognised by contesting states; b. International custom, as evidence of a general practice accepted as law; c. The general principles of law recognised by civilised nations; d. Subject to the provisions of Article 59, judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Ex aequo et bono (equity)

Article 38(2)

No precedent (stare decisis)

Preliminary considerations

Competence Jurisdiction Competence de competence (Art. 36(2)) A state may object, that:

Local remedies have not been exhausted The matter is one exclusively for domestic law There has been no effective acceptance of the jurisdiction of the Court The matter is not concrete or is moot An essential state is not before the Court The applicants have no legal interests in the subject matter The Court should exercise judicial restraint.

Contentious jurisdiction

A state may refer a matter to the ICJ in various ways:

A special agreement Forum prorogatum [Corfu Channel Case (UK v Albania)] Based on bilateral or multilateral treaties (Tehran Hostages Case) Optional clause [Interhandel Case (Switzerland v US)]

Enforcement of judgments

Article 59 of the ICJ Statute:

A decision of the Court has no binding force except between the parties and in respect of that particular case.

But referred to and adopted by succeeding courts and other national and international judicial bodies. Article 94 of the UN Charter:

Article 94 of the UN Charter:

1.

2.

Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

UNSC:

Recommendations Enforcement measures as a last resort.

Record of compliance:

States do respect and give effect to orders of the Court [(Territorial Dispute Case (Libya v Chad)] Exceptions [Corfu Channel; Fisheries Jurisdiction; Tehran Hostages; the Nicaragua]. Provisional measures repeatedly ignored

PENYELESAIAN SENGKETA INTERNASIONAL

Penyelesaian Sengketa Secara Damai

Arbitrase Internasional Pengadilan Negosiasi Mediasi Good Offices (Jasa baik) Konsiliasi Enquiry (Penyelidikan) Fact Finding (Penemuan Fakta) Penyelesaian regional Penyelesaian di bawah PBB

Penyelesaian Sengketa dengan Kekerasan

Perang Tindakan bersenjata bukan perang Retorsi Reprisal Blokade damai Embargo Intervensi