Obligation of Peaceful Settlement Scope

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Scope of the Obligation of 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.

As has been written, “it is relatively unimportant to the Charter that States find a solution to their disputes: what is important is that the disputes do not deteriorate to the point of being settled through the recourse to force” (Charpentier and Sierpinski 429).

Limitation

In fact, the obligation to peacefully settle international disputes is limited to those ‘the continuance of which is likely to endanger the maintenance of international peace and security’ (Art. 33 UN Charter-see also the wording of the second principle in the Friendly Relations Declaration: ‘The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and Justice are not endangered’). Even in that case, there is no real obligation to positively ‘settle’ the dispute as shown by the verb ‘seek’ in that same provision (‘The parties to any dispute…shall, first of all, seek a solution…’): the only real obligation is not to resort to armed force to settle disputes. Such a wording clearly implies an obligation of conduct or of behaviour, not of result (for the content of that obligation see more in this legal Encyclopedia).

Note however that, in the special context of the case, in Legality of the Use or the Threat of Use of Nuclear Weapons (Advisory Opinion), the ICJ considered that the legal importance of the obligation resulting from the commitment taken by the parties under Art. 6 Treaty on the Non-Proliferation of Nuclear Weapons ([adopted 1 July 1968, entered into force 5 March 1970] 729 UNTS 161) to negotiate in good faith a nuclear disarmament ‘goes beyond that of a mere obligation of conduct’ (Legality of the Threat or Useof Nuclear Weapons [Advisory Opinion] para. 99).

International Disputes

According to Art. 2 (3) UN Charter the principle, thus defined, would be limited to ‘international disputes’, a qualification lately introduced in the Charter (UNCIO Documents of the United Nations Conference on International Organization volume 3 [United Nations Information Organizations New York 1945] 3). Art. 5 Pact of Bogotá also excludes ‘matters which, by their nature, are within the jurisdiction of the state’ (see also Art. 27 (b) European Convention for the Peaceful Settlement of Disputes; ‘ECPSD’). These qualifications must be read in conjunction with the principle embodied in Art. 2 (7) UN Charter ((see this next term) Domaine réservé) and are of very limited practical importance:

  • the scope of what can be called the ‘international concern’ has continuously widened since the adoption of the League Covenant in 1919 as illustrated eg by the extension of the notion of threat to the peace ((see this next term) Peace, Threat to) by the UNSC since 1945;
  • if a dispute endangers international peace and security, it is clearly ipso facto of an international character (this is the reason why the UNSC decided to keep temporarily the ‘situation in Spain’ in the mid-1940s on its agenda [see UNSCRes 7 [26 June 1946] and UNSC Res 10 [4 November 1946]) or that apartheid in South Africa (UNSC Res 417 [31October 1977]), or, more recently,
  • the threat of a coup d’État were brought on the UNSC agenda (see UNSC Res 1902[17 December 2009]); and, significantly,
  • Art. 33 UN Charter does not evoke ‘international disputes’, but ‘any dispute, the continuance of which is likely to endanger the maintenance of international peace and security’ (the classical example concerning the benign neglect of the UNSC for this qualification is the (see this next term) Eichmann Case).

The same holds true in relation to another intriguing issue concerning the obligation that ‘justice’ is not endangered by the continuance of a dispute, a mention added in Art. 2 (3) UN Charter, as an echo to the formula used in Art. 1 (1) UN Charter, at the (see this next term) Dumbarton Oaks Conference (1944) (UNCIO 580 and 582), which was not reproduced in Art. 33 UN Charter but which is copied in para. I (2) and (3) Manila Declaration. This mention reinforces the blurry and subjective nature of the characterization of a dispute as falling under Art. 2 (3) UN Charter.

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 Morgenthau La notion du ‘politique’ et la théorie des différends internationaux (Sirey Paris 1933).
  • M Virally ‘Le rôle des organisations internationales dans l’atténuation et le règlement des crises internationales’ (1976) Politique Etrangère 529-62.
  • V Coussirat-Coustère ‘Le règlement des différends dans l’æuvre de la CDI’ in R-J Dupuy Perspectives du droit international et européen: Recueil d’études à la mémoire de Gilbert Apollis (Pedone Paris 1992) 29-46.
  • GMDanilenko and R Müllerson (eds) Beyond Confrontation: International Law for the Post-Cold War Era (WestviewBoulder 1995) 309-34.
  • TV Chudojkina ‘Peaceful regulation and dispute settlement’ (1998) Moscow Journal of International Law 52-60.L Caflisch (ed) Le règlement pacifique des différends entre États: Perspectives universelles et européennes (Nijhoff The Hague 1998).
  • A Colomer Viadel (ed) El nuevo orden jurídico internacional y la solución de conflictos (Centro de Estudios Políticos y Constitucionales Madrid 2000).
  • ME O’Connell (ed) International Dispute Settlement (Ashgate Dartmouth Aldershot 2003).
  • FO Hampson ‘The Risks of Peace: Implications for International Mediation’ (2006) 22 Negotiation Journal 13-30.S Voigt,

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