The Peaceful Settlement of International Disputes 1107164273, 9781107164277

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The Peaceful Settlement of International Disputes Cambridge

The Peaceful Settlement of International Disputes Addjessing not only ingir-State dispute settlement but qIso the secern亡nt of disputes involving non-State actors, The Peaceful Settlement of International Disputes offers a clear and systematic overview of the procedures for dispute settlement in international 2 aw.

In light of the diversification of dispute settlement procedures, traditional means of inter­ national dispute settlement are discussed alongside newly developing fields such as the dispute settlement system under the United Nations Convention on the Law of the Sea, the WTO dispute settlement systems, the peaceful settlement of international environ­ mental disputes, intra-State disputes, mixed arbitration, the United Nations Compensation Commission and the World Bank Inspection Panel. Figures are used throughout the book to help the reader to better understand the procedures and institutions of international dispute settlement, and suggestions for further reading support exploration of relevant issues.

Suitable for postgraduate law and international relations students studying dispute settle­ ment in international law and conflict resolution, this book helps students to easily grasp key concepts and issues. is Professor of International Law at the Faculty of Law, University of Copenhagen. He has taught at several different univers让ies and has published widely in the fields of peaceful settlement of international disputes, the law of the sea and interna­ tional environmental law. yoshifumi tanaka

The Peaceful Settlement

of International Disputes YoShifumi Tanaka University of Copen hagen

g Cambridge UNIVERSITY PRESS

Cambridge UNIVERSITY PRESS

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www.cambridge.org Information on this title: www.cambridge.org/9781107164277 b0l:10.10b/9781316687062 © Yoshifumi Tanaka 2018

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First published 2018 Printed in the United Kingdom by Clays. St Ives pic

A CQtaloguBirecojd forthis puMicotion isovsilsbls

theBritisn Library.

ISBN 978-1-107-16427-7 Hardback ISBN 978-1-316-61588-1 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Dfdicated to my teachers, Lucius Caflisch, Hugh Thirlway and Tftsuo Sato.

Nation will not take up sword agi^i^^nst na'^^on, no'r will they train for war amy more. Isaiah 2:4

Contents

List of Figures page xiii List of Tables xiv Preface xv Acknowledgements xvii List of Abbreviations xviii Table of Cases xxi Table of Treaties and Instruments PART I

xxxiv

FOUNDATION OF INTERNATIONAL DISPUTE

SETTLEMENT

1

1 International Dispute Settlement in Perspective 1

Intruduciion

3

3

2

Obligation of Peaceful Settlement of International Disputes

3

The Concept of International Disputes in Inter national Law 3.1 Definition of International Disputes 3.2 Identification of International Disputes

5 8

8 9

14

3.3 The Distinction between Legal (Static) and Non-Legal (Dynamic) Disputes

17

3.4 The Diversification of 'Disputes' in International Relations 4

Classification of Means of International Dispute Settlement

19

4」Classification of Means of the Settlement of Inter-State Disputes

19

4.2 Classification of Dispute Settlement Means in a Contemporary Context

5

Principal Features of the Dispute Settlement System

6

Conclusions

2

Introduction

International Law

25

2 Negotiation, Good Offices and Mediation 1

in

28

28

29

Negotiation and International Law

2」The Relationship between Negotiation and International Law

2.2 The Concept of Negotiation

VII

30

29

23

24

eiii Contents 3

Inturiaction between Nsgotiztion ana Iniernarion&iAdjudicatWcin 3.1 Prg-Adjsdicativs Stafne 3.2 During Adjudication

32

3.3 Post-Adjudicative Stage 4

Obligation No Nggoiiat亡

33

37

43

5 Timeframe for Negotiations 6

Outcome of Negotiations

7

Good Offices

40

43

7.1 GeneralConsidera廿ons

43

7.2 Process of Good Offices

43

72 Functions and Practice of Good Offices

8

44

屋

Med iation

45

8.1 General Considerations

82 Process of Mediation

46

8.3 Practice of Mediation

47

8.4 Limitations of Mediation and Good Offices

9

Conclusions

Introduction

2 Inquis

49

50

3 Inquiry and Conciliation 0

31

32

52

52

33

2.1 Functions of Inquiry

53

22 Institution of Inquiry

44

22 Case Study (1): Inquiry by Inquiry Commissions

44

2.4 Case Study (2): Inquiry under the Auspices of International Organisations

5 Conciliation

3.1 Typology of Conciliation

65

3.2 Function of Conciliation

65

3.3 Institutional Aspects of Conciliation 3.4 Limits of Conciliation 4

Conclusions

62

65

67

69

71

4 InternatidnalDispui Settlement through the Unit亡d Nations 0

Introdu ction

2

The Role of the Security Council in International Dispute Settlement

73

73

2.2 Activities of the UN Security Council

77

80

2.3 Questions Associated with Veto

2.4 Disqualification from Voting

74

74

2.1 Procedure of Dispute Settlement

82

2.5 The Relationship between the Security Council and the International Court of Justice

3

The Role of the General Assembly in International Dispute Settlement 3.1 Functions of the General Assembly

3.2

84

85

85

Predominance of the Security Council over the General Assembly

87

4 The Role of the UN Secretary-General in International Dispute Settlement

88

d.l Aclivi廿r of the 切 Secwta寸88 4.2 Independence of the UN Secretary-General 5 rh(? United Nations and Regiona' Arrangements

95 98

5.1 Cooperation between the United Nations and Regional Arrangements

98

5.2 Concurrence of Jurisdiction between the UN Security Council and Regional Organisations

99

ix Conte nts 5.3 Interaction between RegionslInsBiutions and IntcmatBiul Adjudic;H^on 5.4 Limits with Regional Organisations and Arrangements

i02

6 Conclusions

5 lntur・Statt Arbitrctioo 1祇曲曲伽

105

'05

2

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