Means of Peaceful Settlement of Disputes between States

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Means of Peaceful Settlement of Disputes between States

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.

As recalled by the ICJ, international ‘disputes are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties’ (Fisheries Jurisdiction [Spain v Canada] [Jurisdiction of the Court] para. 56; (see this next term) Fisheries Jurisdiction Case [Spain v Canada]; see also Aerial Incident of 10 August 1999[Pakistan v India] [Jurisdiction of the Court] para. 53). This freedom of choice is stressed by all the main instruments codifying the principle of peaceful settlement; this is the case of principle 2 para. 2 Friendly Relations Declaration (1970), and of para. I (3) and (10) Manila Declaration. Several regional instruments follow the same approach (see eg Art. 3 Pact of Bogotá; principle V Helsinki Final Act [1975]).

Principle of Consent

(see this next term) Consent is therefore the condition to which resort to any specific means of settlement is subject: “It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement. Such consent can be given once and for all in the form of an obligation freely undertaken, but it can, on the contrary, also be given in a special case apart from any existing obligation” (Status of the Eastern Carelia [Advisory Opinion] PCIJ Series B No 5 27).

This is confirmed, for example, by Art. 95 UN Charter which preserves the possibility for the members of the UN to entrust the solution of their differences to tribunals others than the ICJ.

In the contemporary world, except in some limited regional contexts where special conventions may create very constraining mechanisms, States remain extremely attached to the principle of consent in that matter, as shown in particular by the usual exclusion of compulsory means in the provisions concerning the settlement of disputes, or the possibility to make reservations to such provisions, in multilateral general conventions. See eg the (see this next term) Vienna Convention on Diplomatic Relations (1961) and the (see this next term) Vienna Convention on Consular Relations (1963),both being coupled with optional protocols concerning the settlement of disputes; Art. 16 (2) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (2161 UNTS 447), mechanism of opt-in to judicial settlement through a separate declaration; Art. 20 (2) International Convention for the Suppression of Terrorist Bombings (2149 UNTS 256); Art. 24 (2) International Convention for the Suppression of the Financing of Terrorism (2178 UNTS 197); or Art. 66 (3) United Nations Convention against Corruption, which all provide for express authorizations to make reservations to the provisions relating to the settlement of disputes; or Art. 10 Convention on Cluster Munitions (48 ILM 357)] which leaves the choice of a given means of settlement to the common consent of the parties.

The universal human rights treaties establishing monitoring bodies make a distinction between the settlement of inter-State disputes and between private persons and a State. However, both mechanisms rely on the principle of consent (see Art. 41 (see this next term) International Covenant on Civil and Political Rights [1966], instituting an opting-in inter-States conciliation procedure under the auspices of the Human Rights Committee and the individual complaint mechanism provided for by the Optional Protocol to the International Covenant on Civil and Political Rights [999 UNTS 302]; see also Art. 21 and 22 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1465 UNTS 85; ‘CAT’]; the Convention on the Rights of the Child [1577 UNTS 3] is deprived of any provision for the settlement of inter-States disputes or individual complaints). In fact, at the universal level, the only real limit to the consensual principle is linked with the priority of the maintenance of peace.

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

References

See Also

Further Reading

  • O Schachter ‘The Quasi-Judicial Role of the Security Council and the General Assembly’ (1964) 58 AJIL 960-66.
  • J Monnier ‘Le règlement pacifique des litiges internationaux. Diagnostic et perspectives’ (1981) XXXVII Ann. Suisse de DI 9-24.
  • L Caflisch ‘Vers des mécanismes pan-européens de règlement pacifique des différends’ (1993) 97 RGDIP 1-38.
  • G Hafner and others ‘The Physionomy of Disputes and the Appropriate Means to Resolve Them’ in United Nations(ed) International Law as a Language for International Relations (Kluwer The Hague 1996) 559-74.
  • NL Wallace-Bruce The Settlement of International Disputes (Nijhoff The Hague 1998).
  • F Orrego Vicuña ‘A New System of International Dispute Settlement for the Twenty-First Century’ in CA Armas Barea and others (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda (Kluwer The Hague 2000) 235-46.
  • PY Chicot ‘L’actualité du principe du règlement pacifique des différends: Essai de contribution juridique à la notionde paix durable’ (2003) 16 Revue québécoise de Droit international 5-35.
  • ME O’Connell International Dispute Resolution: Cases and Materials (Carolina Academic Press Durham 2006).

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