Hasil (
Bahasa Indonesia) 1:
[Salinan]Disalin!
II. MEANS OF SETTLEMENTA. Negotiations and consultations21. Referring to negotiation, the International Court of Justice re- marked that "there is no need to insist upon the fundamental character of this method of settlement". I It observed in this connection,2 as did its predecessor, the Permanent Court of International Justice,3 that, unlike other means of settle- ment, negotiation which leads to "the direct and friendly settlement of ... disputes between parties" is universally accepted. Furthermore, negotiations are usu- ally a prerequisite to resort to other means of peaceful settlement of disputes. This was recognized as far as arbitral or judicial proceedings were concerned by the Permanent Court in the following words: "Before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by diplomatic negotiations." 4, It should be noted that the term "diplomacy" is used in some treaties, such as the 1949 Revised General Act for the Pacific Settlement of International Disputes, as a synonym of "nego- tiations", as is also the phrase "through the usual diplomatic channels" as it appears, for instance, in the 1948 Charter of the Organization of American States.1. Main characteristicsNegotiations 22. The Manila Declaration on the Peaceful Settlement of International Disputes highlights flexibility as one of the characteristics of direct negotia- tions as a means of peaceful settlement of disputes (sect. I, para. 10). Nego- tiation is a flexible means of peaceful settlement of disputes in several respects. It can be applied to all kinds of disputes, whether political, legal or technical. Because, unlike the other means listed in Article 33 of the Charter, it involves only the States parties to the dispute, those States can monitor all the phases of the process from its initiation to its conclusion and conduct it in the way they deem most appropriate.ILC.J Reports 1969, p. 48, para. 86. 21n its judgment in the North Sea Continental Shelf case, ibid. 31n its Order of 19 April 1929 in the case of the Free Zones of Upper Savoy and the District of Gex (PC.LJ., Series A, No. 22, p. 13). 4 PC.J.J., Series A, No. 2, p. 15. 5The question of the place which negotiation occupies among other means of peaceful settlement of disputes was discussed, inter alia, in the framework of the United Nations Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation among States. For a summary of the arguments advanced on this question within the Special Committee, see Official Records of the General Assembly, Twentieth Session, Annexes, agenda items 90 and 94, document A/5746, paras. 156, 158 and 161-163 and ibid., Twenty-first Session, Annexes, agenda item 87, document A/6230, paras. 195-206.
23. Another characteristic of negotiation highlighted by the Manila Declaration is effectiveness (sect. I, para. 10). Suffice it to say in this connec- tion that in the reality of international life, negotiation, as one of the means of peaceful settlement of disputes, is most often resorted to by States for solving contentious issues and that, while it is not always successful, it does solve the majority of disputes. Consultations 24. Consultations may be considered as a variety of negotiations. While they are not mentioned in Article 33 of the Charter, they are provided for in a growing number of treaties as a means of settling disputes arising from the interpretation or application of the treaty concerned. Mention may be made in this connection of article 84 of the 1975 Convention on the Representation of States in their Relations with International Organizations of a Universal Character, which provides for the holding of consultations at the request of any of the parties, as well as of article 41 of the 1978 Conven- tion on Succession of States in Respect of Treaties and article 42 of the 1983 Convention on the Succession of State Property, Archives and Debts, both of which provide for "a process of consultation and negotiation". 25. In other treaties, consultations are provided for as a preliminary phase in the process of settlement of disputes. Reference is made in this connection to article XI of the 1959 Antarctic Treaty, article 17 of the 1979 Convention on the Physical Protection of Nuclear Material and article XXV of the 1980 Convention on the Conservation of Antarctic Marine Living Resources, which provide, in case of disputes, that the States parties shall consult among themselves with a view to the settlement of the dispute by peaceful means. Exchanges of views 26. Exchanges of views may also be considered as a form of consulta- tions. They play an important role in the system established by the 1982 United Nations Convention on the Law of the Sea for the peaceful settlement of disputes arising from the interpretation and application of the Convention. Reference is made in this connection to article 283 of the Convention, which reads as follows: " 1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settle- ment by negotiation or other peaceful means. "2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of im- plementing the settlement."
2. Initial phase 27. Normally, the negotiating process starts as the result of one State perceiving the existence of a dispute and inviting another State to enter into
negotiations for its settlement. The start of the negotiating process is conditional upon the acceptance by the other State of such an invitation. It may occur that a State invited to enter into negotiations has valid reasons to believe that there is no dispute to negotiate and that there is, therefore, no basis for the opening of negotiations. It may also occur that a State, while agreeing to enter into negotiations, subjects the opening of negotia- tions to conditions unacceptable to the first State. The discretion of States with respect to the initiation of the negotiating process is, however, subject to certain limitations. 28. A number of treaties place on the States Parties thereto an obli- gation to carry out "negotiations", "consultations", or "exchanges of views" whenever a controversy arises in connection with the treaty con- cerned. Examples of such treaties are the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (General Assembly resolution 34/68, annex, art. 15, para. 1), the 1975 Vienna Con- vention on the Representation of States in their Relations with Interna- tional Organizations of a Universal Character (art. 84), the 1982 United Nations Convention on the Law of the Sea (art. 283, para. 1) and the 1959 Antarctic Treaty (art. VIII, para. 2). Under some of those treaties, parties to a dispute arising from the interpretation or application of the treaty are under an obligation to start the consultation or negotiation process without delay (see art. 283, para. 1, of the United Nations Convention on the Law of the Sea; art. 15, para. 2, of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies; and art. VIII, para. 2, of the Antarctic Treaty). 29. Furthermore, many treaties providing for peaceful settlement pro- cedures make resort to the third party means of settlement envisaged in the treaty conditional upon failure of negotiations. This approach is to be found in some treaties specifically concluded for the settlement of all disputes which may arise among the States parties thereto, such as for example, the 1949 Revised General Act for the Pacific Settlement of Interna- tional Disputes (art. I). 30. This approach is also to be found in the dispute settlement clause of many multilateral treaties, such as article 4 of the 1948 Convention on the International Maritime Organization, and article VIII of the 1969 Interna- tional Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. 31. It should furthermore be pointed out that the setting in motion of the negotiating process can be encouraged by international organizations. Aside from the fact that such organizations provide a meeting place where representatives of States parties to a dispute can get together and conduct formal or informal discussions with a view to settling the dispute, organs of an international organization may contribute to the opening of negotia- tions by addressing to the parties recommendations to that effect. 32. In the case of the United Nations, the General Assembly may, as is recalled in section II, paragraph 3 (a), of the Manila Declaration, "discuss any situation, regardless of origin, which it deems likely to impair the general
welfare or friendly relations among nations and, subject to Article 12 of the Charter, recommend measures for its peaceful settlement". The means of settlement which the General Assembly has most frequently recommended to the parties to a dispute is negotiation. Reference is made in this respect to resolution 40/9 of 8 November 1985, in which the Assembly addressed a solemn appeal to States in conflict to proceed to the settlement of their disputes by negotiations and other peaceful means. 33. In addressing such recommendations to the parties, the General Assembly has often asked them to take account in their negotiations of spe- cific elements such as the purposes and principles of the Charter; the objec- tives of resolution 1514 (XV) of 14 December 1960 (Declaration on the Granting of Independence to Colonial Countries and Peoples); the interests of the people concerned; the right to self-determination and independence; and the principle of nationa
Sedang diterjemahkan, harap tunggu..