A/HRC/33/48
populations have been imposed. These mechanisms are also referred to in the Declaration
on Principles of International Law concerning Friendly Relations and Cooperation among
States in Accordance with the Charter of the United Nations, according to which, States
shall 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 means of their choice. 6
16.
While States are free, as a matter of principle, to agree on such peaceful means as
may be appropriate to the circumstances and the nature of their disputes, 7 they are obligated
to fulfil in good faith their obligations under the Charter. The legality of recourse to
countermeasures in situations where inter-State negotiations are under way remains
questionable.8
17.
The Charter also provides that the Security Council shall, when it deems necessary,
call upon the parties to settle their dispute by peaceful means (Article 33(2)), and that any
member of the United Nations may bring any dispute, or any situation of the nature referred
to in Article 34, to the attention of the Security Council or of the General Assembly (Article
35(1)). The Special Rapporteur points out that, in accordance with Article 50 of the Charter,
any State confronted with special economic problems as a result of the implementation of
United Nations sanctions have the right to consult the Security Council. The ongoing
debates surrounding the application of Article 50 and the compensation mechanisms that
could be devised to that effect should considered to some extent relevant also to the issue of
compensation for the adverse impacts of unilateral coercive measures. 9
B.
Remedies available under specific dispute settlement clauses in treaties
1.
International Court of Justice
18.
The International Court of Justice has dual jurisdiction. The Court may be called
upon to consider legal issues relating to unilateral coercive measures in the exercise of both
its contentious jurisdiction and its advisory jurisdiction.
Contentious jurisdiction
19.
The Court may only deal with an inter-State dispute when the States concerned have
recognized its jurisdiction. Therefore, no State can be a party to proceedings before the
Court unless it has consented thereto.10 Disputes between targeting and targeted States
regarding the application of unilateral coercive measures would fall under the broad
6
7
8
9
10
See General Assembly resolution 25/2625, annex .
See for example, Handbook on the Peaceful Settlement of Disputes between States (OLA/COD/2394)
(United Nations publication, Sales No. E.92.V.7), paras. 19-20.
It has been argued that “when the target State is engaged in negotiations in good faith, there should be
no need to resort to countermeasures, and thus countermeasures would not be permitted under the
requirement of necessity. It is only when the target State refuses to cooperate in dispute settlement in
good faith that countermeasures become necessary”. See Y. Iwasawa and N. Iwatsuki, “Procedural
Conditions” in The Law of International Responsibility, J. Crawford, A. Pellet and S. Olleson, eds.
(Oxford, Oxford University Press, 2010), p. 1153.
With regard to the application of Article 50 of the Charter, see A/47/277-S/24111, para.41, in which
the Secretary-General recommended that the Security Council devise a set of measures involving the
financial institutions and other components of the United Nations system that can be put in place to
insulate States from such difficulties. Such measures would be a matter of equity and a means of
encouraging States to cooperate with decisions of the Council.
See R. Mackenzie and others, The Manual on International Courts and Tribunals, 2nd ed. (Oxford,
Oxford University Press, 2010), p. 14.
5
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents