Peaceful Settlement of Disputes [1]
Historically, International Law has
been regarded by the international community as a means to ensure the
establishment and preservation of world peace and security. The maintenance of international peace and
security has always been the major purpose of the International Law. It was the basic objective behind the
creation of the League of Nations in 1919 and
the United Nations in 1945.
Since the direct cause of war and violence
is always a dispute between States, it is therefore in the interest of peace
and security that disputes should be settled.
Methods and procedures for the peaceful (pacific) settlement of disputes
have been made available in the International Law.
States have concluded a great number of
multilateral treaties aiming at the peaceful settlement of their disputes and
differences. The most important treaties
are the 1899 Hague Convention for the Pacific Settlement of International
Disputes which was revised by the Second Hague Peace Conference in 1907,[2]
and the 1928 General Act for the Pacific Settlement of Disputes which was
concluded under the auspices of the League of Nations.[3] Furthermore, there are regional agreements,
such as the 1948 American Treaty on Pacific Settlement (Bogotá Pact),[4]
the 1957 European Convention for the Peaceful Settlement of Disputes,[5]
and the 1964 Protocol of the Commission of Mediation and Arbitration of the
Organization of African Unity.[6] In addition to such general treaties on
dispute settlement, there are many bilateral and multilateral agreements which
include specific clauses related to dispute settlement.
The Charter of the United Nations devotes
Chapter VI to the methods and procedures for the pacific settlement of
disputes. Paragraph 1 of Article 33 of
the Charter states the methods for the pacific settlement of disputes as the
following: negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, and resort to regional agencies or arrangements. This paragraph obliges States parties to any
dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, to seek a solution by any of the listed
methods or other peaceful means of their own choice.
The methods of peaceful settlement of
disputes fall into three categories: diplomatic, adjudicative, and
institutional methods. Diplomatic
methods involve attempts to settle disputes either by the parties themselves or
with the help of other entities.
Adjudicative methods involve the settlement of disputes by tribunals,
either judicial or arbitral.
Institutional methods involve the resort to either the United Nations or
regional organizations for settlement of disputes.
Section
1: Diplomatic Methods of Dispute
Settlement
Diplomatic methods of dispute settlement
are negotiation, enquiry, mediation, conciliation, and good offices.
A. Negotiation [7]
“Negotiation” is the oldest, most common,
and the simplest methods of settling international disputes. It is recognized by the great majority of
treaties of pacific settlement as the first step towards the settlement of
international disputes. Most of the
treaties make a failure to settle a dispute by negotiation a condition
precedent to compulsory arbitration or judicial settlement. It is, therefore, not surprising that
negotiation comes first in the list of means of pacific settlement of disputes
stipulated in Article 33(1) of the Charter of the United Nations.
Negotiation consists of discussions
between the concerned parties with a view to understand the opposing positions
and opinions and reconcile the differences.
It is very suited to the clarification and elucidation of the opposing
contentions. It is the most satisfactory
means to settle disputes since it is a voluntary bilateral and self-help means;
the parties are directly engaged in the process; intervention by any third
party in the process is not necessary.
Negotiations, however, do not always
succeed in reaching solutions to disputes or differences between the parties. Thus, third parties interventions are needed
to help the parties in reaching a settlement to their disputes and differences;
here comes the importance of the other diplomatic methods of dispute
settlement.
B. Enquiry [8]
One of the common obstacles preventing the
successful settlement of a dispute by negotiation is the difficulty of
ascertaining the facts which have given rise to the differences between the
disputants. Most international disputes
involve an inability or unwillingness of the parties to agree on points of
facts. Herein lays the significance of
the procedure of inquiry as a means of pacific settlement of disputes.
Many bilateral agreements have been
concluded under which fact-finding commissions have been set up for the task of
reporting to the parties concerned on the disputed facts. In addition, the procedure of inquiry has
found expression in treaties for the pacific settlement of disputes.
The two Hague Conventions of 1899 and 1907
established commissions of inquiry as formal institutions for the pacific
settlement of international disputes.[9] They provided a permanent panel of names from
which the parties could select the commissioners. The task of a commission of inquiry was to
facilitate the solution of disputes by elucidating the facts by means of an
impartial and conscientious investigation.
The report of a commission was to be limited to fact-finding and was not
expected to include any proposal for the settlement of the dispute in question.
With the establishment of the League of Nations , the means of inquiry took on a new
significance. Inquiry and conciliation
were viewed as integral parts of a single process for bringing about a pacific
settlement to a dispute.[10] It is in the light of this background that
the Charter of the United Nations specifically lists “enquiry” as one of the
methods of pacific settlement of international disputes.
Enquiry as a separate method of dispute
settlement has fallen out of favor. It
has been used as part of other methods of dispute settlement. Its purpose is to produce an impartial
finding of disputed facts and thus to prepare the way for settlement of dispute
by other peaceful methods. The parties
are not obliged to accept the findings of the enquiry; however, they always do
accept them.
The utilization of enquiry has been
evident in the practice of international organizations, such as the United
Nations and its specialized agencies.
Enquiry has been used as part of other methods of dispute settlement in
the context of general fact-finding.
C. Mediation, Conciliation and Good Offices
[11]
Mediation, conciliation and good offices
are three methods of peaceful settlement of disputes by which third parties
seek to assist the parties to a dispute in reaching a settlement. All involve the intervention of a supposedly
disinterested individual, State, commission, or organization to help the
parties. When the parties are unwilling
to negotiate, or fail to negotiate effectively, assistance by a third party
through its mediation, conciliation, or good offices may be necessary to help
in procuring a settlement. This
assistance may be requested by one or both of the parties, or it may be
voluntarily offered by a third party.
Although there is no distinction in the
general features of mediation, conciliation, and good offices, a theoretical
and practical distinction can be made among them according to the degree of
third party participation, and the extent to which the disputants are obliged
to accept the outcomes of the procedures.
Mediation is a process through which an
outside party (third party) endeavors to bring the disputants together and
assists them in reaching a settlement.
The third party offers his assistance to the parties to a dispute. The
consent of the disputants is not necessarily required initially, but no
mediation proceedings can be commenced without their consent. The mediator actively and directly
participates in the settlement itself.
He does not content himself with making negotiations possible and
undisturbed. He is expected to offer
concrete proposals for a solution and a settlement of substantive issues
related to a dispute. However, his
proposals represent nothing more than recommendations. They have no binding force on either
disputant. The parties to a dispute are
free to accept or reject his proposals.
Conciliation is a process of settling a
dispute by referring it to a specially constituted organ whose task is to
elucidate the facts and suggest proposals for a settlement to the parties
concerned. However, the proposals of
conciliation, like the proposals of mediators, have no binding force on the
parties who are free to accept or reject them.
As in the case of mediation, conciliators may meet with the parties
either jointly or separately. The
procedures of conciliation are generally instituted by the parties who agree to
refer their dispute to an already established organ, commission or a single
conciliator, which is set up on a permanent basis or ad hoc basis; third
parties cannot take the initiative on their own. The conciliators are appointed by the parties
to a dispute. They can be appointed on
the basis of their official functions or as individuals in their personal
capacity.
Conciliation is described by some as a
combination of enquiry and mediation.
The conciliator investigates the facts of the dispute and suggests the
terms of the settlement. But
conciliation differs from enquiry in that the main objective of the latter is
the elucidation of the facts in order to enable the parties through their own
accord to settle their dispute; whereas the main objective of conciliation is
to propose a solution to a dispute and to win the acceptance of the parties to
such solution. Also, conciliation
differs from mediation in that it is more formal and less flexible than
mediation; if a mediator’s proposal is not accepted, he can present new
proposals, whereas a conciliator usually present a single report.
When the parties to a dispute reach the
point of not being able to solve it by negotiation, or the point where they
have broken off diplomatic relations, but they are convinced that a settlement
is important to them, the utilization of the technique of good offices may be
helpful. Good offices may be utilized
only with the agreement or the consent of both disputants. A third party attempts to bring the
disputants together in order to make it possible for them to find an
appropriate settlement to their differences through their negotiations. In this regard, the function of the third
party is to act as a go-between, transmitting messages and suggestions in an
effort to create or restore a suitable atmosphere for the parties to agree to
negotiate or resume negotiation. When
the negotiations start, the functions of the good offices come to an end. The procedure of good offices, in contrast to
mediation, has a limited function which is simply bringing the disputants
together. In mediation, the mediator
takes an active part in the negotiations between the disputants and may even
suggest terms of settlement to the disputants.
Method of good offices consists of various kinds of action aiming to
encourage negotiations between the parties to a dispute. Also, in contrast to the case of mediation or
conciliation, the profferer of good offices does not meet with the disputants
jointly but separately with each of them.
Seldom, if ever, the profferer attends joint meetings between the
parties to a dispute. Normally, the role
of the profferer of good offices terminates when the parties agree to
negotiate, or to resume negotiation.
However, the profferer may be invited by the parties to be present
during the negotiations. As in case of
mediation, an offer of good offices may be rejected by either or both parties
to a dispute.
The use of mediation, conciliation, and
good offices has a long history. These
methods have been the subject of many bilateral and multilateral treaties. However, with the establishment of the League of Nations , permanent organs were set up to
perform the functions of these methods of pacific settlement of disputes. In this context, the Charter of the United
Nations lists in Article 33(1) mediation and conciliation, but not good
offices, as methods of pacific settlement available to the parties to any
dispute. Notably, in the practice of the United Nations, the terms “mediation”,
“conciliation”, and “good offices” have been used with considerable looseness,
flexibility and little regard to the distinctions which exist between them.
Mediation and conciliation have both
advantages and disadvantages as compared to other methods of dispute
settlement. They are more flexible than
arbitration or judicial settlement. They
leave more room for the wishes of the disputants and the initiatives of the
third party. The disputants remain in
control of the outcome. Their
proceedings can be conducted in secret. However,
there are disadvantages to mediation and conciliation. Their proceedings cannot be started and be
effective without the consent, cooperation, and goodwill of the
disputants. The proposed settlement is
no more than a recommendation with any binding force upon the disputants.
Section
2:
Adjudicative Methods of Dispute Settlement [12]
The major disadvantage of the diplomatic
methods of dispute settlement is that the parties to them are under no legal
obligation to accept the proposals of settlement suggested to them. Thus, the adjudicative methods of dispute
settlement are preferable because they provide the issuance of binding
decisions, rather than mere recommendations as in cases of diplomatic
methods. It is this binding force of the
decisions rendered at the end of the adjudicative methods that distinguishes
these methods from other methods of dispute settlement.
Adjudicative methods of dispute settlement
consist of two types of procedures, “arbitration” and “judicial
settlement”. Arbitration and judicial
settlement are two methods involve the determination of differences between
States through legal decisions of tribunals.
Whereas in case of judicial settlement the decision is made by an
established court, permanent (such as the International Court of Justice) or ad
hoc, in case of arbitration it is made by a single arbitrator or arbitral
tribunal. The major characteristic of
these two methods is that a judicial decision or an award is binding on the
parties and must be carried out in good faith.
It is not until the establishment of the League of Nations that the terms “arbitration” and
“judicial settlement” became distinguished.
Under the Covenant of the League “judicial settlement” meant settlement
by the Permanent Court of Justice (PCIJ), whereas “arbitration” meant
settlement by other tribunals. This same
distinction is carried over by the Charter of the United Nations, but with the
International Court of Justice (ICJ) substituting for the Permanent Court of
International Justice (PCIJ).
Arbitration was defined in the 1899 Hague
Convention for the Pacific Settlement of Disputes as “the settlement of
differences between states by judges of their choice and on the basis of
respect for law”;[13]
this same definition was repeated in the 1907 Hague Convention.[14] The procedures of arbitration grew to some
extent out of the processes of diplomatic settlement and represented an advance
towards a developed international legal order.
Arbitration is considered the most
effective and equitable means of dispute settlement. It combines elements of
both diplomatic and judicial procedures.
However, it is much more flexible than judicial settlement. It gives the parties to a dispute the choices
to appoint the arbitrators, to designate the seat of the tribunal, and to
specify the procedures to be followed and the law to be applied by the
tribunal. Moreover, the arbitration
proceedings can be kept confidential.
Arbitration cannot be initiated without
the agreement of the parties to a dispute. An agreement of arbitration may be
concluded for settling a particular dispute, or a series of disputes that have
arisen between the parties. It may be in
the form of a general treaty of arbitration.
The usual pattern in arbitration agreement
as regards the appointment of arbitrators is that each of the two parties has
to appoint one arbitrator or more, and the appointed arbitrators have to
appoint the arbitrator, who is known as an “umpire”. Usually, the arbitral tribunal consists of
three arbitrators, who can decide by majority vote. The parties may agree to refer their dispute
to a single arbitrator, who may be a foreign head of a State or government, or
a distinguished individual.
Judicial settlement is a settlement of
dispute between States by an international tribunal in accordance with the
rules of International Law. The
international character of the tribunal is in both its organization and its
jurisdiction. International tribunals
include permanent tribunals, such as the International Court of Justice (ICJ),
the International Tribunal for the law of the Sea (ITLOS), the European Court
of Justice, the European Court of Human Rights and the Inter-American Court of
Human rights, and include ad hoc tribunals, such as the United Nations
Tribunal in Libya
The ICJ is the most important
international tribunal, because of its both prestige and jurisdiction. It is the principal judicial organ of the
United Nations. All members of the
United Nations are ipso facto parties to the Statute of the Court. The
judges of the ICJ are appointed by the United Nations, not by the parties to a
dispute. The ICJ has to apply the rules
and principles of International Law, which are enumerated in Article 38 of the
Statute of the Court; the parties have no choice in specifying the rules to be
applied by the Court. The jurisdiction
of the Court includes all disputes between States concerning the interpretation
of a treaty, any question of International Law, the existence of any fact
constituting breach of international obligations, and the nature or extent of
the reparation to be made for the breach of an international obligation.
The Charter of the United Nations refers
to “arbitration” and “judicial settlement” in Article 33(1) as two methods
among other methods of pacific settlement that States are encouraged to utilize
in seeking a solution to their international disputes. It is also provides in Article 36(3) a
guidance to the Security Council requiring it “to take into consideration that
legal disputes should as a general rule be referred by the parties to the
International Court of Justice”. Despite
this provision, the Charter does not impose on members of the United Nations
the obligation to submit any dispute, even legal one, to the Court. Moreover, the Charter provides that nothing
in it “shall prevent Members of the United Nations from entrusting the solution
of their differences to other tribunals by virtue of agreements already in
existence or which may be concluded in the future”.[15]
Section
3: Institutional Methods of Dispute
Settlement
Institutional methods of dispute
settlement involve the resort to international organizations for settlement of
international disputes. These methods
have come into existence with the creation of the international
organizations. The most eminent
organizations, which provide mechanisms for settling dispute between their
member States, are the United Nations and the regional organizations, such as
the European Union, the Organization of American States, the Arab league and
the African Union.
(1) Peaceful Settlement of Dispute by the
United Nations: [16]
The Settlement of international disputes
is one of the most important roles of the United Nations. The Charter of the United Nations stipulates
that it is the task of the United Nations “to bring about by peaceful means,
and in conformity with the principles of justice and international law, adjustment
or settlement of international disputes or situations which might lead to a
breach of the peace.”[17] To this end, the Charter provides a system
for the pacific settlement or adjustment of international disputes or
situations under which the wide competence of the United Nations in this matter
is established, and the corresponding obligations of the members of the United
Nations are imposed. This system is
delineated mainly in Chapter VI of the Charter.
Chapter VI of the Charter contains the
United Nations mechanism for the pacific settlement of disputes. Article 33 obliges the parties to a dispute,
the continuance of which is likely to endanger the maintenance of international
peace and security, to settle such a dispute by any of the enumerated peaceful
means therein, or by any peaceful means of their choice. When the parties fail to observe their
obligations or their efforts are not successful, the United Nations will
intervene to consider the dispute and give its recommendations on the matters. The Security Council is given the primary
responsibility in this regard.[18] It is entitled to intervene either on its own
initiative, upon invitation of any member of the United Nations, upon
invitation by the General Assembly, or upon a complaint of a party to a
dispute.[19] The Security Council may follow three courses
of action. First, it may call upon the
parties to a dispute to settle their dispute by any of the peaceful means
listed in Article 33(1).[20] Second, it may recommend to the parties
appropriate procedures or method of settlement.[21] Third, it may recommend terms of settlement,
as it may consider appropriate.[22]
Although under the Charter the Security
Council is given the primary role for maintaining international peace and
security, the General assembly is not excluded from doing so. Under Articles 11, 12 and 14, the General
Assembly may discuss and make recommendations for procedures or methods of
adjustment, or for terms of settlement, with regard to any dispute or situation
brought before it. The disputes or
situations may be brought before the General Assembly by the Security Council,
any member of the United Nations, or any State party to such dispute.[23]
(2) Peaceful Settlement of Dispute by Regional
Organizations: [24]
Article 33(1) of the Charter of the United
Nations requires the parties to any dispute, the continuance of which is likely
to endanger the maintenance of international peace and security, to seek, first
of all, a solution by any of the peaceful methods enumerated therein. Among these enumerated methods is the “resort
to regional arrangements or agencies”.
Article 52 of the Charter recognizes the
right of the members of the United Nations to establish regional arrangements
or agencies “for dealing with such matters related to the maintenance of
international peace and security”.
Paragraph 2 of this Article requires the member States that are members
of regional arrangements or agencies to “make every effort to achieve pacific
settlement of local disputes through such regional arrangements or by such
regional agencies before referring them to the Security Council.
It seems that the obligation imposed upon
the member States by Article 52(2) is consistent with their obligation under
Article 33(1). However, paragraph 1 of
Article 52 imposes two explicit limitations with regard to the utilization of
regional arrangements and agencies.
First, it requires that the matters dealt with must be “appropriate for
regional action”. Second, it requires
that the “arrangements or agencies and their activities are consistent with the
Purposes and Principles of the United Nations”.
Moreover, a third explicit limitation is imposed by Article 54 which
requires that the Security Council should “at all times be kept fully informed
of activities undertaken or in contemplation under regional arrangements or by
regional agencies for the maintenance of international peace and
security”. No similar explicit
limitations are imposed with regard to the utilization of other procedures for
pacific settlement.
Article 52 is not only confined to
legitimizing regional arrangements or agencies and imposing an obligation upon
the member States, but goes beyond such legitimization and obligation by pacing
a duty on the Security Council itself.
Paragraph 3 of this Article requires the Security Council to “encourage
the development of pacific settlement of local disputes through such regional
arrangements or by such regional agencies either on the initiative of the
states concerned or by reference from the Security Council”.
This
provision is in harmony with the general approach of the Charter related to the
pacific settlement of disputes which requires the parties themselves to seek a
solution to their dispute by any peaceful means of their own choice, and that
the Council should give every opportunity to the parties to do so. If the parties have referred their local
dispute to the Security Council before making any effort to achieve a
settlement through the regional arrangements or agencies, then the Council is
under a duty to remind them of their obligation, or to refer such dispute at
its own initiative to such arrangements or agencies.
[1] See generally J. Collier and V. Lowe, The
Settlement of Disputes in International Law, Cambridge
(1999); J.G. Merrills, International Dispute Settlement, 3rd
ed., Cambridge (1998); K.V. Raman, Dispute Settlement
Trough the United Nations, Oxford
[2] Text of the 1899 Hague Convention in 9
U.K.T.S. (1901) Cd. 798. Text of the
1907 Hague Convention
in 6 U.K.T.S
(1071) Cd. 4575.
[3] Text in 93 L.N.T.S. 342.
[4] Text in 30 U.N.T.S. 55.
[5] Text in 320 U.N.T.S. 243.
[6] Text in 3 I.L.M (1964) 1116.
[7] See generally Collier & Lowe,
Chapter 2; P.J. De Waart, The Element of Negotiation in the Pacific
Settlement of Dispute between States, The Hague
(1973); A. Lall, Modern International Negotiation, New York
[8] See generally Merrills, chapter 3; and
Shaw, pp. 923-5.
[9] The 1899 Hague Convention for the Pacific
Settlement of Disputes arts. 9, 10, 11, 14 & 32; and the 1907 Hague
Convention for the Pacific Settlement of Disputes arts. 9, 12, 45 & 57.
[10] See
L. Goodrich and A. Simons, The United Nations and the Maintenance of
International Peace and Security, p. 173 (1955).
[11] See
generally Merrills, chapters 2 & 4; Shaw, pp. 921-3 & 925-8; and
Malanczuk, pp. 275-7 & 278-81.
[12] See
generally Brownlie, chapter 32; Malanczuk, pp. 281-95; Merrills, chapter 5;
S. Rosenne , The Law and Practice of
International Court, 1920-1996, 4 vols., 3rd ed., The Hague
(1997); S. Schwebel, International Arbitration: Three Salient Problems, Cambridge
[13] The
1899 Hague Convention for the Pacific Settlement of Disputes art. 15.
[14] The
1907 Hague Convention for the Pacific Settlement of Disputes art. 37.
[15] The U.N
Charter art. 95.
[16] See
generally Malanczuk, pp. 385-7; Merrills, chapter 10; M. Roman, Dispute
Settlement through the United Nations, Oxford
[17] U.N
Charter art. 1(1).
[18] Id.
art. 24(1).
[19] Id.
arts. 11(3), 33(2), 34, 35, 36(3) & 99.
[20] Id.
art. 33(2).
[21] Id.
art. 36(1).
[22] Id.
art. 37(2).
[23] Id.
art. 35.
[24] See
generally Merrills, chapter 11; and Shaw, pp. 928-50.
