Content of the 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.

One of the main characteristics “ratione materiae” of the obligation of peaceful settlement is the free choice of the means to be used for its implementation (infra Section C.), at least as far as States are concerned: States must settle their disputes peacefully; but they can do this by the means they consent to. However, the principle of peaceful settlement must have a concrete substance of its own, failing which, it ‘would have no proper meaning, but would essentially double the prohibitions of intervention and the use of force’ (Tomuschat La Charte des Nations Unies [2002] 106; see also at 587).

Good Faith

The core aspect of that obligation of conduct for the States in dispute is to act in good faith. As stated in the Manila Declaration, ‘States should negotiate meaningfully, in order to arrive at an early settlement acceptable to the parties’ (para. I (10) Manila Declaration). This statement echoes the ICJ dictum according to which “[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it (North Sea Continental Shelf Cases” [Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands] para. 85; (see this next term) North Sea Continental Shelf Cases; see also eg Gab?íkovo-Nagymaros Project [Hungary/Slovakia] [1997] ICJ Rep 7 para. 141; Affaire du Lac Lanoux [1957] 12 RIAA 281 paras 11-13; and UNGA Res 53/101 [8 December 1998] para. 2 (a)).

But this does not mean that negotiations must be held indefinitely; thus, the PCIJ considered that “the question of the importance and chances of success of diplomatic negotiations is essentially a relative one. Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can be therefore no doubt that the dispute cannot be settled by diplomatic negotiation” (Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction] 13; see also Southern Bluefin Tuna Cases [New Zealand v Japan; Australia v Japan] [Provisional Measures] ITLOS Cases Nos 3, 4 [27 August 1999] para. 60 or Land Reclamationby Singapore in and around the Straits of Johor [Malaysia v Singapore] [Order] ITLOS Case No 12 [10September 2003] para. 48; Barbados and the Republic of Trinidad and Tobago [Award] Permanent Court of Arbitration [11 April 2006] 45 ILM 800 para. 20).

Parties must abstain

In this respect, what is true for negotiations is also true for the other means of settlement and so are the consequences of the obligation, in particular that: “[t]he parties undertake…to abstain from any sort of action whatsoever which may aggravate or extend the dispute’ (Art.33 (3) 1928 General Act; see also second principle para. 4 Friendly Relations Declaration [1970], para. I (8) Manila Declaration, or the PCIJ in Electricity Company of Sofia and Bulgaria (Preliminary Objection) (Belgium v Bulgaria): ‘the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute” (see also Frontier Dispute [Burkina Faso/Republic of Mali] [Provisional Measures] [Order of 10 January1986] [1986] ICJ Rep 3, 9 or Application of the International Convention on the Elimination of All Forms of Racial Discrimination [Georgia v Russian Federation] [Provisional Measures] [15 October 2008] para. 149 (c)); or “[t]he parties to a dispute have the duty, in the event of failure to reach a solution by [one] peaceful means, to continue to seek a settlement of the dispute by other peaceful means agreed upon by them” (principle 2 para. 3 UNGA Res2625; see also para. I (10) Manila Declaration).

Moreover, recourse to an agreed means of settlement or an offer by a third party to assist the parties to the dispute can never be seen as an unfriendly act (see eg Art. 3 1907 Convention I: ‘The exercise of this right [to offer good offices or mediation] can never be regarded by either of the parties in dispute as an unfriendly act’).

“Ratione temporis”

“Ratione temporis” , the principle applies in all circumstances, including when an armed conflict has started and is going on (see AC Arend ‘The Obligation to Pursue Peaceful Settlement of International Disputes During Hostilities’ [1984] 24VaJIntlL 97-123). Thus, Art. 3 1907 Hague Convention I provides that ‘[p]owers strangers to the dispute have the right to offer good offices or mediation even during the course of hostilities’ and the UNGA and the UNSC have repeatedly called parties to an armed conflict, whether international or not, to find a peaceful solution to their dispute (see eg UNGARes 44/15 ‘The situation in Afghanistan and its Implications for International Peace and Security’ [1 November 1989];UNSC Res 582 [24 February 1986] concerning Iraq and Iran; UNSC Res 787 [16 November 1992] concerning Bosnia and Herzegovina; see also UNGA Res 63/307 ‘Status of Internally Displaced Persons and Refugees from Abkhazia, Georgia, and the Tskhinvali Region/South Ossetia, Georgia’ [9 September 2009] or UNSC Res 1907 [23 December2009] para. 3 concerning Djibouti and Eritrea). Moreover, the obligation to seek a peaceful solution is a continuous one and the parties to a dispute cannot take shelter from the failure of a particular means of settlement to stop their best efforts to peacefully settle their dispute.

“Ratione personae”

“Ratione personae” , not only is the obligation to peacefully settle disputes incumbent upon all States,it also extends to non-States actors-at least on a non-reciprocal basis since, except in respect to some hypotheses of application of the right of peoples to (see this next term) self-determination (see also (see this next term) Decolonization), the prohibition on the use of force does not apply in the relations between States and private entities.

It is certainly true that the logic of the Charter is primarily an inter-States logic (Ascensio 1050-51) and some particular means of settlement are clearly reserved to States (see eg Art. 34 (1) ICJ Statute): ‘Only States may be parties in cases before the Court’). However, contrary to some doctrinal views (Tomuschat “La Charte des Nations Unies” [2002] 106 para. 18, 109 para. 24; contra Hafner ‘The Proliferation of Mechanisms for Peaceful Settlement of Disputes’ in Caflisch[1998] 29), there is no reason to exclude the non-State actors as a matter of principle from the scope of the obligation:

• the principle of peaceful settlement is not only UN Charter-based, it is a general principle having a customary character;
• even in the framework of the United Nations, non-State actors are quite often directed to comply with the principle; and
• there can be no doubt that States may, willingly, settle peacefully their disputes with non-State parties.

Thus, para. I (12) Manila Declaration encourages States ‘to have recourse to the relevant procedures’ that it mentions‘[i]n order to facilitate the exercise by the peoples concerned of the right to self-determination…’. A striking illustration is given by the Abyei Arbitration (Government of Sudan v Sudan People’s Liberation Movement/Army) (Award)(Permanent Court of Arbitration [22 July 2009]). Moreover and more generally, private persons are now directly involved in disputes which are settled at the international level and the settlement of which they participate in. It is quite usual for the UNSC to call upon States to seek a peaceful solution to their disputes with non-State parties to an internal conflict (see eg UNSC Res 389 [22 April 1976] para. 5; UNSC Res 435 [19 September 1978] para. 4; UNSC Res 1906 [23December 2009] para. 10; UNSC Res 1339 [31 January 2001] para. 5 or UNSC Res 1781 [15 October 2007] para. 3;UNSC Res 1529 [29 February 2004] para. 7 or UNSC Res 1584 [1 February 2005] paras 5, or 8).

And, since the end of the 1970s, the Council and the General Assembly call upon ‘all the parties to the (armed) conflict’ or ‘all interested parties’ (including non-governmental entities) to seek a peaceful settlement (see eg UNGA Res 3212 [XXIX] ‘Question of Cyprus’ [1 November 1974] para. 4 and UNSC Res 365 [13 December 1974] para. 2 and UNSC Res 451 [15 June1979] para. 2; UNGA Res 35/27 ‘Question of East Timor’ [11 November 1980] para. 3 or UNGA Res 36/50 ‘Question of East Timor’ [24 November 1981] para. 3; UNSC Res 1016 [21 September 1995] paras 3, 5; UNSC Res 1094 [20January 1997] para. 2; UNSC Res 1556 [30 July 2004] para. 5; UNSC Res 1791 [19 December 2007] para. 3; or UNSCRes 1876 [26 June 2009] para. 7). Last but not least, States may consent to let private persons resort to international means to settle their disputes with them-this is particularly the case in the fields of the protection of (see this next term) human right sand of foreign investments ((see this next term) Investment Disputes) and in certain regional organizations.

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

• H Kelsen ‘The Settlement of Disputes by the Security Council’ (1948) 2 ICLQ 173-213. E Jiménez de Aréchaga ‘Le traitement des différends internationaux par le Conseil de sécurité’ (1954) 85 RdC 5-103.
• KV Raman (ed) Dispute Settlement through the United Nations (Oceana Dobbs Ferry 1977).
• Ph Pazartzis Les engagements internationaux en matière de règlement pacifique des différends entre États (LGDJParis 1992). United Nations Codification Division (ed) Handbook on the Peaceful Settlement of Disputes between States(United Nations New York 1992).
• SR Ratner ‘Image and Reality in the UN’s Peaceful Settlement of Disputes’ (1995) 6 EJIL 426-44.
• H Caminos ‘The Role of the United Nations and the Regional Organizations in the Maintenance of International Peace and Security’ (1998) 23 Thesaurus acroasium 187-215.
• CPR Romano The Peaceful Settlement of International Environmental Disputes (Kluwer The Hague 2000).
• P Schneider Internationale Gerichtsbarkeit als Instrument friedlicher Streitbeilegung (Nomos Baden-Baden 2003).
• M Albert and D Schmidten (eds) International Conflict Resolution (Mohr Siebeck Tübingen 2006).