Öz
Disputes, tensions and conflicts are present in all spheres of human
society, either at the national, regional, or international level. Therefore,
international law requires peaceful methods for dispute settlement and somehow
it becomes an imperative in international relations.
From a legal point of view, the dispute settlement in international law
creates an obligation for states to settle their disputes in accordance with
the international law by using the peaceful means and mechanisms. They can
choose between diplomatic, judicial and institutional means. Such means include
legally binding and non-binding mechanisms: negotiation, good offices and
conciliation (as diplomatic means and non-binding third party facilitation);
intervention of an international or regional organization and its bodies or
representatives (as an institutional mechanism), and legally-binding mechanisms
such as arbitration and international adjudication (as judicial means).
Although there is a specific obligation for the states to settle their disputes
through peaceful means, they are also free to choose the most suitable peaceful
mechanism for their dispute.
The distinction between the diplomatic and judicial means is related to
the difference between two categories of disputes: legal and political. The
legal disputes are more related to judicial means of settlement, within the international
law. Political disputes use diplomatic channels and political principles
instead of international law in order to settle disputes. The diplomatic means
are characterized by the lack of binding effect to any conclusion and taking
into account all relevant circumstances. By their nature they are less
ambiguous compared to judicial means. Arbitration as judicial mean is optional,
more flexible and adapted to the objectives of the states. Its conclusions have
binding effect. The International Court of Justice and its proceedings are also
binding, more rigid, less flexible and take only legal aspects as relevant.
States are not always willing to make conciliation in terms of dispute
settlement, mostly due to national interests and sovereignty. When states need
to choose among these various means, they have to take into consideration their
mutual relations and the nature of their dispute.
Nowadays, inter-states disputes are real problems in maintaining
stability and promoting peaceful relations between states. Consequently, the
aim of this paper is to identify the peaceful means and delicate techniques
known in the international law and to distinguish their advantages and
disadvantages and how states can apply them in order to reach an acceptable and
reasonable solution and reduce the risk of new disputes and conflicts between them
in future.
Anahtar Kelimeler
Kaynakça
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Öz
Kaynakça
- Bernier, Ivan and Latulippe, Nathalie. The International Convention on the protection and promotion of the diversity of cultural expressions: Conciliation as a dispute resolution method in the cultural sector. Available at: http://www.diversite-culturelle.qc.ca/fileadmin/documents/pdf/document_reflexion_eng.pdf [accessed 30th November 2016] Brennan, Lorraine M.(2015). Preparing the client in an international mediation: what to expect from the process. In: Rovine, Arthur W., Contemporary issues in international arbitration and mediation: The Fordham papers. Koninklijke Brill NV, Leiden, The Netherlands. Charter of the United Nations.(1945). Available at: http://www.un.org/en/sections/un-charter/un-charter-full-text/ [accessed: 10th December 2016] French, Duncan, Saul, Mathew and White, Nigel.(2010). (eds.). International law and dispute settlement: New problems and techniques, Hart Publishing, Oxford. Hague Convention for the Pacific Settlement of International Disputes. (1899). Available at: https://www.loc.gov/law/help/us-treaties/bevans/m-ust000001-0230.pdf [accessed: 8th December 2016] Hague Convention for the Pacific Settlement of International Disputes. (1907). Available at: https://cil.nus.edu.sg/rp/il/pdf/1907%20The%20Hague%20Convention%20for%20the%20Pacific%20Settlement%20of%20International%20Disputes-pdf.pdf [accessed: 8th December 2016] Kohen, Marcelo.(2013). Interaction between diplomatic and judicial means at the initiation of proceedings. In: De Chazournes, Laurence Boisson, Kohen, Marcelo and Vinũales, Jorge E. (eds.). Diplomatic and judicial means of dispute settlement. MartinusNijhoff, Leiden, Boston. Lapidoth, Ruth. Some reflections on peaceful means for the settlement of inter-state disputes. Georgetown University Law Center. Available at: http://ciwr.ucanr.edu/files/186748.pdf [accessed: 5th December 2016] Merrills, J.G. (2011). International dispute settlement. 5th ed. Cambridge University Press. Murithi, Tim. (2015).The failure of the UN Security Council in creating the framework conditions for mediation. Paper presented at the International Mediation Conference, 2-4 June 2015, University of Pretoria, South Africa, Centre for Mediation, Department for Political Sciences. Murphy, Sean D. (2002). United States practice in International Law. Volume 1: 1999-2001. Cambridge University Press. Peck, Connie. (1996). The United Nations as a dispute settlement system: improving mechanisms for the prevention and resolution of conflict. Kluwer Law International, The Hague. Petersman, Ernst-Ulrich. (2004). Justice as Conflict resolution: proliferation, fragmentation and decentralization of dispute settlement in international trade. EUI Working Paper LAW No.2004/10. European University Institute, Florence, Department of Law. Palmer, Geoffrey. (2012). Perspectives on international dispute settlement from a participant, VUWLR, Vol.43. Peters, Anne. (2003). International dispute settlement: a network of cooperational duties. EJIL, Vol.14, No.1: 1-34. Rosenne, Shabtai. (2006). The law and practice of the International Court of Justice 1920-2005. 4th ed. MartinusNijhoft, Leiden. Sander, Frank E.A. (2014). Alternative dispute resolution in the United States: An overview. In: Betancourt, Julio Cesar, and Crook, Jason A. (eds.) ADR, Arbitration, and Mediation: A collection of essays. CIArb Chartered Institute of Arbitrators. Author House UK. Simmonds, Kenneth R. (1987). Public International Arbitration – Roundtable, 22 Texas International Law Journal. Strutt, Keith. (2014). Mediation vs. negotiation. The Driver Trett Digest. Driver Group, London. Available at: https://www.driver-group.com/wp-content/uploads/2015/06/BYTE-9-MEDIATION-VS-NEGOTIATION.pdf [accessed: 5th December 2016] Ury,William, Brett, Jeanne M., Goldberg, Stephen B. (1988). Getting disputes resolved: designing systems to cut the costs of conflict. Jossey-Bass. University of Michigan. Vienna Convention on the Law of Treaties 1155 UNTS 331. 8ILM 679. (1969). Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf [accessed: 10th December 2016] Vienna Convention on Succession of States in Respect of Treaties 1946 UNTS 3. (1978). Available at:http://legal.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf [accessed: 10th December 2016]
Ayrıntılar
| Bölüm | Makaleler |
|---|---|
| Yazarlar | |
| Yayımlanma Tarihi | 30 Nisan 2017 |
| Gönderilme Tarihi | 6 Şubat 2017 |
| Yayımlandığı Sayı | Yıl 2017Cilt: 3 Sayı: 7 |
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