- Peaceful Settlement of International Disputes
- Guide to the Peaceful Settlement of International Disputes
Peaceful Settlement of International Disputes
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.
The League of Nations
It is only with the League of Nations that the intervention of international organizations in international disputes has become usual: the League Covenant includes five articles relating to peaceful settlement (Arts 12-15 and 17 League Covenant-the latter concerning disputes involving States which were not members of the League). The League Covenant not only imposed a limited obligation to peacefully settle international disputes, but also envisaged the establishment of a permanent judicial organ, the PCIJ.
The Court, ‘competent to hear and determine any dispute of an international character which the parties thereto submit to it’ or to ‘give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly’ of the League of Nations, was eventually created outside the organization, by a Statute of the Permanent Court of International Justice (6 LNTS 389).
Moreover, Art.15 League Covenant organized the compulsory intervention of the Council in ‘any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13’, thus establishing a ‘warmoratorium’ during the efforts for the peaceful resolution of the dispute and prohibiting war against any party complying with recommendations unanimously adopted by the Council which could also refer the dispute to the Assembly.
The main weaknesses of this very innovative mechanism were that
- the Council could not intervene in relation with matters ‘which by international law [are] solely within the domestic jurisdiction;
- it could only make recommendations, contrary to what was envisaged in the Protocol for the Pacific Settlement of International Disputes which never entered into force, and
- when said recommendations could not be unanimously agreed to by the members, recourse to war was permitted.
Art. 15 League Covenant scaffolding is usually seen as a failure (even though it was used in several cases more or less successfully-see for example:
- (see this next term) Ã…land islands dispute between Finland and Sweden[(1920) 1 League of Nations Official Journal, Spec Supp 3, 3];
- the Sino-Japanese case ( LoN Official Journal2453; League of Nations ‘Report of the Lytton Commission on Enquiry’ League of Nations Publications volume 7 No 12; LoN General Assembly ‘Resolution of 24 February 1933’ LoN Official Journal Spec Supp 112, 75;
- the Leticia case between Colombia and Peru [case brought before the Council in January 1933, Report accepted by the parties on 23 June 1933,LoN Official Journal 10/1933]; and
- the League of Nations ‘Report of the League of Nations Commission on the Chaco Dispute [11 May 1934]  2 AJIL Supp Official Documents 137; see also (see this next term) Gran Chaco Conflict [1928-35]).
The United Nations Charter
The United Nations Charter accentuates the trend towards the institutionalization of the peaceful settlement of international disputes, but only very partially remedies the weaknesses of the League Covenant. Chapter VI UN Charter (Arts 33-38) is fully devoted to the ‘Pacific Settlement of Disputes’, but it is primarily concerned with disputes, or situations, of a particular character: those, ‘the continuance of which is likely to endanger the maintenance of international peace and security’.
Besides recalling the principle that the parties to any such dispute, ‘shall, first of all, seek a solution’ by one of the peaceful means enumerated-non-exhaustively-in Art. 33 (1) UN Charter, Chapter VI UN Charter provides for the intervention of the Security Council, the General Assembly, and the ICJ.Art. 33 UN Charter then has been rightly described as an article-charniÃ¨re (a pivotal article-see JP QuÃ©neudec ‘Article33’ in JP Cot and A Pellet [eds] La Charte des Nations Unies: Commentaire article par article [2nd edn Economica Paris1991] 566): complementing Art. 2 (3) UN Charter which enunciates a general principle, it imposes up on the parties the primary responsibility to settle their dispute by means of their choice, but it offers the safety net of the UN machinery and opens the way to the use of the coercive means envisaged in Chapter VII UN Charter.
UN Security Council
The Security Council has the primary role as expressly recognized by para. II (4) Manila Declaration:
- ‘when it deems it necessary’, it shall call upon the parties to settle their dispute by such means (Art. 33 (2) UN Charter), or may make recommendations to the parties to any dispute to that end ‘if all the parties to any dispute so request’ (Art.38 UN Charter);
- preventively it ‘may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security’ (Art. 34 UN Charter-on the difference between a ‘dispute’ and a ‘situation’, see the entries about Settlement of Disputes in this Encyclopedia);
- any State, whether a member of the United Nations or not, may bring any dispute, or any situation of that kind tothe attention of the Council (Art. 34 UN Charter) and so can the Secretary-General (Art. 99 UN Charter), while States must do so in case of failure of the pacific means indicated in Art. 33 UN Charter (Art. 37 (1) UN Charter); and
- the Council, at any stage of the dispute (or in respect to the ‘situation’), may ‘recommend appropriate procedures or methods of adjustment’ (Art. 36 (1) UN Charter) and, if it ‘deems that the continuance of the dispute is, in fact, likely to endanger the preservation of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate’ (Art. 37 (2) UN Charter);
- moreover, a dispute not peacefully settled can constitute a threat to the peace and, if it determines that this is the case (Art. 39 UN Charter), the Security Council will have recourse to the measures contemplated in Chapter VII UN Charter ((see this next term) Sanctions).
Qualifications of the dispute
However, it must be noted that, when acting under Chapter VI UN Charter, the Council has not been much concerned with the special qualifications of the dispute as defined in those provisions, whether concerning:
- the distinction between a situation and a dispute, describing the same facts successively as a ‘situation’ or a ‘dispute’ (see eg the Kashmir crisis-cf UNSC Res 38 [17 January 1948] and UNSC Res 123 [21 February 1957]-or using both wordings to designate one and the same issue in a single resolution-see eg UNSC Res 497 [17 December1981]); or
- the likeliness that it endangers the international peace or security-a distinction, at least in this form, which is made neither in Art. 2 (3) UN Charter nor in principle 2 para. 1 Friendly Relations Declaration or in para. I (2) Manila Declaration; this is in line with the constantly expanding interpretation of a threat to the peace by the Security Council when it acts under Chapter VII (Art. 39 UN Charter; a notion including ‘human tragedy’ in one country-see UNSCRes 794 [3 December 1992]).
The General Assembly
Art. 35 (1) and (2) UN Charter also opens to all States the possibility to bring any dispute or situation which might lead to international friction to the attention of the General Assembly as well as to that of the Council, whereas Art. 14 UN Charter entitles the Assembly to ‘recommend measures for the peaceful adjustment of any situation’. Moreover, when acting under Art. 36 UN Charter, the UNSC may refer a dispute for settlement to the General Assembly, as it did in the Spanish case (UNSC Res 10 [4 November 1946]). However, the role of the Assembly in that matter is secondary in that “[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the…Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests” (Art. 12 (1) UN Charter).
Nevertheless, the General Assembly has not refrained from considering situations on the Security Council’s agenda, but it has refrained from taking decisions on those matters (see United Nations United Nations Repertory of Practice of United Nations Organs Supplement No 8 [1989-94] volume 2 under Art. 12; see also United Nations Secretariat 95 United Nations Juridical Yearbook 289) in line with the (see this next term) Uniting for Peace Resolution (1950) (Resolution ‘Dean Acheson’-UNGA Res 377 [V] ‘Uniting for Peace’ [3 November 1950])-which is, however, more a soft alternative to Chapter VII than a complement to Chapter VI UN Charter.
The International Court of Justice
Moreover, the UN Charter creates the International Court of Justice (ICJ) as ‘the principal judicial organ of the United Nations’ (Art. 92 UN Charter-see more generally Chapter XIV UN Charter), and vests it with the competence to decide on ‘all cases which the parties refer to it’ (Art. 36 (1) International Court of Justice Statute). For its part, in making recommendations under Art. 36 (3) UN Charter, the Security Council is supposed to ‘take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice’ and ‘may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment’ in case of non-performance by one of the parties upon request of the other party (Art. 94 UN Charter).
Interestingly, only once did the Security Council recommend the parties to a dispute to refer it to the ICJ on the basis of Art. 36 (3) UN Charter (UNSC Res 22 [9 April1947] relating to the (see this next term) Corfu Channel Case; see also Corfu Channel [United Kingdom of Great Britain and Northern Ireland v Albania] [Preliminary Objections] [Separate Opinion by Judges Basdevant, Alvarez, Winiarski, Zori?i?, DeVisscher, Badawi Pasha, Krylov]  ICJ Rep 31 and the more indecisive invitation addressed to the parties in UNSCRes 395 [25 August 1976] concerning the Aegean Sea Continental Shelf [Greece v Turkey]  ICJ Rep 3).
More generally, this complex mechanism has worked with mitigated results. The most intrusive means of settlement theoretically at the disposal of the United Nations have been sparingly used: the judicial settlement through the International Court of Justice has remained marginal and neither the Security Council nor the General Assembly has fully exploited the possibilities offered by the Charter. While the resolutions adopted by the Council in matters concerning the pacific settlement of disputes could be legally binding (cf Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] notwithstanding Security Council Resolution 276  [Advisory Opinion]  International Court of Justice Rep 52-53 para. 113)-for example if the parties had decided to refer a dispute to it and agreed to vest it with decision-power, it has mainly acted through recommendations and its decisions on the substance of the disputes have always been grounded on Chapter VII UN Chapter, thus going beyond the scope of the mere pacific settlement of disputes.
This is the case when the Council:
- has imposed particular means of settlement to one particular State (see UNSC Res 687 [3April 1991] and UNSC Res 692 [20 May 1991], establishing the UN Compensation Commission to determine the scope of Iraq’s liability in relation with the invasion of Kuwait, or
- UNSC Res 731 [21 January 1992] and UNSC Res 748 [31March 1992]-imposing on Libya to surrender two nationals suspected in the Lockerbie incident, to accept responsibility and to pay compensation).
- others (see eg UNSC Res 1022 [22 November 1995]; UNSC Res 1244[10 June 1999]; UNSC Res 1464 [4 February 2003] and UNSC Res 1527 [4 February 2004];
- UNSC Res 1564 [18September 2004], requesting the Secretary-General to establish a commission of inquiry [the Cassese Commission];
- UNSC Res 1595 [7 April 2005]; UNSC Res 1664 [29 March 2006] and UNSC Res 1757 [30 May 2007] establishing first an investigation commission, the Special Tribunal in relation to different attacks in Lebanon).
In those cases the Security Council clouds the issue and prevents any clear-cut distinction between Chapters VI and VII UN Charter.
Commissions of Inquiry
For its part, the General Assembly does not enjoy any decision-making power in this field but, like the Security Council, has created commissions of inquiry (UNGA Res 106 [S-1] ‘Special Committee on Palestine’ [15 May 1947]; UNGA Res1601 [XV] ‘The Situation in the Republic of the Congo’ [15 April 1961] or UNGA Res 3114 [XXVIII] ‘Establishment of the Commission of Inquiry on the Reported Massacres in Mozambique’ [12 December 1973]; or entrusted the Secretary-General with missions of [non-compulsory] peaceful settlement: UNGA Res 63/245 ‘Situation of Human Rights in Myanmar’ [24 December 2008]) and it has frequently associated itself with the positions taken by the Council (UNGARes 61/18 ‘The Situation in Afghanistan’ [28 November 2006]; UNGA Res 62/116 ‘Question of Western Sahara’ [17December 2007]).
Various forms of dispute settlement
Some of the subsidiary bodies have equally engaged in various forms of dispute settlement. Thus, the Human Rights Council, created by UNGA Res 60/251 ‘Human Rights Council’ (15 March 2006) in order to replace the much criticized Commission on Human Rights, has also established fact-finding missions (see UN HR Council Resolution S-9/1 Grave Violations of Human Rights in the Occupied Palestinian Territory [12 January 2009] or UN HR Council ResolutionS-4/101 Situation of Human Rights in Darfur [13 December 2006]; UN HR Council ‘Implementation of General Assembly Resolution 60/251 of 15 March 2006 [9 March 2007]) or the Baena Soares Commission to inquire into human rights violations in Lebanon (UN HR Council Resolution S-2/1 [11 August 2006]).
Preventing Armed Conflicts
Peaceful means of settlement are not only a substitute to armed conflicts, but equally a way of preventing them (see eg the ICJ Judgment in the case of (see this next term) Maritime Delimitation and Territorial Questions between Qatar and Bahrain [Qatar v Bahrain], which put an end to a 100 year-old dispute and prevented the outburst of an armed conflict; see C Paulson ‘Compliance with Final Judgments of the International Court of Justice since 1987’  98 AJIL 433-61,453-55). In the Agenda for Peace, Secretary-General Boutros-Ghali defines ‘preventive diplomacy’ as an ‘action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur’ (para. 20).
This new policy of conflict prevention, carried on by Kofi Annan (see ‘Prevention of Armed Conflict: Report of the Secretary-General’ [7 June 2001]) and approved by the Security Council (UNSC Res 1366 [30 August 2001]), led, on occasion, to the deployment of peacekeeping forces to prevent the outburst of an armed conflict (see in particular UNSC Res 795 [11 December 1992]-deployment of the United Nations Protection Force in the former Yugoslav Republic of Macedonia). The important role of preventive diplomacy was emphasized by UNGA Res 47/120, by the UN Millennium Declaration as well as by the UNSC Res 1318 (see also UNGA Res 61/293 [13 September 2007], or, in the same vein, UNSC Res 1887 [24 September 2009]; UNGA Res64/109 [11 December 2009]).
The philosophy, or at least the rhetoric, of prevention is therefore slowly making its way in the UN’s approach to conflict settlement. Accordingly, prevention stands at the heart of the International Commission on Intervention and State Sovereignty ‘The Responsibility to Protect’ in UNGA ‘Letter Dated 26 July 2002 from the Permanent Representative of Canada to the United Nations addressed to the Secretary-General’ (14 August 2002).Secretary-General Ban Ki-moon’s Report ‘Implementing the Responsibility to Protect’ (12 January 2009) endorses the concept, underlying the necessity of a preventive strategy.
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
- R Higgins ‘The Place of International Law in the Settlement of Disputes by the Security Council’ (1970) 64 AJIL 1-18.
- LB Sohn ‘The Future of Dispute Settlement’ in RSJ Macdonald and DM Johnston (eds) The Structure and Process of International Law (Nijhoff The Hague 1983) 1121-46.
- MG Monroy Cabra ‘SoluciÃ³n de controversias en el sistema americano’ in M Rama-Montaldo (ed) International Law in an Evolving World: Liber amicorum in Tribute to Professor Eduardo JimÃ©nez de ArÃ©chaga (FundaciÃ³n de cultura Universitaria Montevideo 1994) 1201-28.
- AG Koroma ‘The Peaceful Settlement of International Disputes’ (1996) 43 NILR 227-36.
- H Neuhold ‘Das System friedlicher Streitbeilegung der Vereinten Nationen’ in F Cede and L Sucharipa-Behrmann(eds) Die Vereinten Nationen: Recht und Praxis (Manz Wien 1999) 57-68.
- C Tinker ‘Dispute Resolution and International Law’ (2001) 17 NYL SchJ HumRts 985-1017.
- AS Al-Nami ‘Le rÃ´le de la ligue des Ã‰tats arabes dans le rÃ¨glement pacifique des diffÃ©rends inter-arabes’ (2004) 19 Arab Law Quarterly 227-42.
- I Brownlie ‘The Peaceful Settlement of International Disputes (The Wang Tieya Lecture in Public International Law)’ (2009) 8 Chinese Journal of International Law 267-83.