- History of Peaceful Settlement of Disputes Obligation
History of Peaceful Settlement of Disputes Obligation
Note: this entry is based on the article, authored by Alain Pellet, “Peaceful Settlement of International Disputes” of the Max Planck Encyclopedia of Public International Law.
A corollary of the prohibition of the use of force, the principle that States must settle their international disputes by peaceful means (Arts 2 (3) and 33 UN Charter) is, exactly as its partner principle, neither a traditional nor an absolute obligation, but, with this qualification, its binding character is uncontroversial as shown by the use of the word ‘shall’ in the relevant provisions in the UN Charter (rÃ¨glent or doivent in the French text; arreglarÃ¡n or tratarÃ¡n in Spanish). This was made crystal clear by the ICJ in its judgment of 21 June 2000. States are under an obligation to settle their disputes by peaceful means. The choice of those means admittedly rests with the parties under Article 33 of the United Nations Charter. They are nonetheless under an obligation to seek such a settlement, and to do so in good faith in accordance with Article 2, paragraph 3, of the Charter (Aerial Incident of 10 August 1999 [Pakistan v India] [Jurisdiction of the Court] para. 53).
Military and Paramilitary Activities in and against Nicaragua Case
In its 1986 Judgment in the (see this next term) Military and Paramilitary Activities in and against Nicaragua Case, the ICJ had already defined ‘the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means as complementary to the principles of a prohibitive nature’ like the principle prohibiting recourse to the threat or use of force in international relations or the principle of non-intervention (Military and Paramilitary Activities in and against Nicaragua [Merits] 145 para. 290). An obvious consequence of this complementary nature of both principles is that the obligation to peacefully settle disputes excludes the use or the threat of the use of force, while the prohibition of the latter implies that disputes must be settled peacefully-‘exclusively’ as emphasised in para. I (2) the 1982 Manila Declaration on the Peaceful Settlement of International Disputes.
In that same judgment, the Court considered that, ‘[e]nshrined in Article 33 of the United Nations Charter, which also indicates a number of peaceful means which are available, this principle has also the status of customary law’ (Military and Paramilitary Activities in and against Nicaragua [Merits] para. 290), thus binding upon members as well as non-members of the organization. Moreover, in spite of some opposite views, if rightly interpreted, the principle of peaceful settlement may be considered as a peremptory rule of public international law ((see this next term) Ius cogens): indeed, States are not prevented from deciding, by a treaty, not to settle a pending dispute (or to ‘freeze’ it), but this is only true as long as the absence of solution is not a threat to the international peace and security. The essence of the principle lies elsewhere: it means that if the dispute is such a threat, the obligation to settle it peacefully appears as a corollary of the peremptory prohibition of the use of force in international relations in contradiction to the UN Charter, and the breaches of that obligation must be dealt with in accordance with the Charter.
Principle of Peaceful Settlement of Disputes Obligation
The current status of the principle as imposing a binding obligation upon States is relatively new. As long as the use of force, including war, was perceived as a natural right of States, inherent to their (see this next term) sovereignty, the peaceful settlement of disputes between States appeared as a mere option open to them as an alternative to war: not only could a dispute be left unresolved-as is still the case today in so far as it does not constitute a threat to the maintenance of international peace and security-but also, it could be settled by recourse to armed force:
“In doubtful causes which do not involve essential points, if one of the parties will not accede either to a conference, an accommodation, a compromise, or an arbitration, the other has only the last resource for the defence of himself and his rights,-an appeal to the sword; and he has justice on his side in taking up arms against so untractable an adversary. For, in a doubtful cause, we can only demand all the reasonable methods of elucidating the question, and of deciding or accommodating the dispute” (Ede Vattel The Law of Nation: or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns [revised edn GG and J Robinson London 1797] 289).
As for the nation’s ‘essential rights’ however, Vattel held that, then, ‘[s]he, [the nation] will not even attempt the mode of conferences on so odious a pretension’ (at 279).
It is ‘[w]ith a view to obviating, as far as possible, recourse to force in the relations between States’, that the signatory powers of the International Convention for the Pacific Settlement of International Disputes (‘1899 Hague Convention I’) agreed ‘to use their best efforts to insure the pacific settlement of international differences’. This formula was repeated in Art. 1 Convention for the Pacific Settlement of International Disputes (‘1907 Hague Convention I’; (see this next term) Hague Peace Conferences [1899 and 1907]). Since then, the increase in strength of the obligation of peaceful settlement follows a path parallel to that of the limitation, then the prohibition, of the use of force in international relations.
Hague Convention of 1907
In the second Hague Convention of 1907-the Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts ((see this next term) Drago-Porter Convention )-‘[t]he Contracting Powers [agreed] not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals’ except ‘when the debtor state refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, prevents any compromis from being agreed on, or, after the arbitration, fails to submit to the award’. Thus, the Drago-Porter Convention established a concrete link between the principle of peaceful settlement (here through arbitration) and that of non-recourse to armed force: the commitment not to use force is the quid pro quo for that to resort to arbitration.
League of Nations Covenant
For its part, the Covenant of the League of Nations (‘League Covenant’) was drafted within the same spirit: it did not prohibit war generally but, in Art. 12 League Covenant, “[t]he Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council.”
The peaceful settlement of disputes (under its most demanding forms) had to be tried first and only in case of failure was the resort to war possible; but, in that case, it remained lawful. In spite of the failure of the Geneva Protocol for the Pacific Settlement of International Disputes adopted by the General Assembly of the League of Nations on 2 October 1924, which had tried in vain to institute an obligation of judicial or arbitral settlement, the situation changed with the General Treaty for Renunciation of War as an Instrument of National Policy, the so-called (see this next term) Kellogg-Briand Pact (1928) by which ‘[t]he High Contracting Parties solemnly declare[d …] that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another’ (Art. 1 Kellogg-Briand Pact) and, in parallel, agreed ‘that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means’ (Art. 2 Kellog-Briand Pact).
But this was at the origin of the paradox which still characterizes the actual situation in this respect: contemporary international law peremptorily prohibits the use of armed force as a means to settle disputes between States and imposes on them a duty of peaceful statement; but, at the same time, it does not offer any means for making this binding obligation enforceable: the General Act for the Pacific Settlement of International Disputes adopted on 26 September1928 (‘1928 General Act’), separately from the Briand-Kellogg Pact, offers a ‘menu’ of possible methods of peaceful settlement without giving priority to any of them nor offering any means to enforce the obligation to have recourse to peaceful means or the solution obtained, thus making the obligation of peaceful settlement a binding duty devoid of any sanction.
Guide to the Peaceful Settlement of International Disputes
- 1. Introduction to the Peaceful Settlement of International Disputes
- 2. Peaceful Resolution of Disputes Obligation, which comprises:
- a. History of Peaceful Settlement of Disputes Obligation
- b. Peaceful Settlement of Disputes Obligation Nature
- c. Obligation of Peaceful Settlement Scope
- d. Obligation of Peaceful Settlement Content
- 3. Means of Peaceful Settlement of Disputes between states, which comprises:
- a. Variety of Means of Peaceful Settlement
- b. Institutionalization of the Peaceful Means of Settlement
- c. History of the Peaceful Means of Settlement
- d. Peaceful Settlement of Disputes in International Organizations
- 4. Variety Use of Means of Peaceful Settlement
- 5. European Convention for the Peaceful Settlement of Disputes
- Ch Rousseau Ch Rousseau La compÃ©tence de la SociÃ©tÃ© des Nations dans le rÃ¨glement des conflitsinternationaux (Pedone Paris 1927).
- A Cassese ‘The Concept of Legal Dispute in the Jurisprudence of the International Court’ (1975) XIVComunicazioni e studi 173-200.
- M Brus and others (eds) The United Nations Decade of International Law: Reflections on International Dispute Settlement (Nijhoff Dordrecht 1991).
- MMTA Brus Third Party Dispute Settlement in an Interdependent World: Developing an International Framework (Nijhoff Dordrecht 1995).
- K Savitri ‘The United Nations Charter Framework for Conflict Resolution: Procedures and Practices of Pacific Settlement of Disputes’ (1997) 53 India Quarterly 61-100.
- RM Riquelme Cortado ‘La promociÃ³n de medios y mÃ©todos de arreglo pacÃfico de las controversias en la conmemoraciÃ³n del centenario de la primera conferencia internacional de la Paz (1899-1999)’ (1999) 15 Anuariode derecho internacional 385-478.
- F Horchani (ed) RÃ¨glement pacifique des diffÃ©rends internationaux (Centre de Publication Universitaire Tunis2002).
- JG Merrills International Dispute Settlement (4th edn CUP Cambridge 2005).