Peaceful Settlement of Disputes in International Organizations

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Peaceful Settlement of Disputes in International Organizations

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.
Whether expressly or in practice, all regional international organizations offer to their Member States some kind of mechanism for the peaceful settlement of disputes-at least those concerning the interpretation or application of their constitutive acts (cf Art. 24 ASEAN Charter of the Association of Southeast Asian Nations, Art. 26 Constitutive Act of the African Union, Art. 37 Charter of the Organization of the Islamic Conference, Art. 29 Convention Establishing the Association of Caribbean States [1895 UNTS 3], etc). Moreover, continental and, sometimes, sub-regional organizations, frequently institute mechanisms which can be used in view of the peaceful settlement of disputes between their members.

In the Americas

Thus, in the Americas, the Inter-American Committee on Peaceful Settlement (which replaced in 1970 the Inter-American Peace Committee created in 1940) and the Permanent Council of the OAS play a primary role in the peaceful resolution of disputes on the continent (see Arts 84-89 Charter of the Organization of American States; 119 UNTS3), while the general and more classical procedures envisaged by the 1948 Pact of Bogotá are rarely resorted to (see however the (see this next term) Border and Transborder Armed Actions Case [Nicaragua v Honduras; Nicaragua v Costa Rica];the (see this next term) Territorial and Maritime Dispute Case [Nicaragua v Colombia]; the Dispute regarding Navigational and Related Rights [Costa Rica v Nicaragua] [Judgment] [19 July 2009]; the Maritime Dispute [Peru v Chile] [Application] [18January 2008]; and the Aerial Herbicide Spraying [Ecuador v Columbia] [Application] [31 March 2008], all introduced before the ICJ on the basis of Art. 31 Pact of Bogotá).

In Central America, the Tegucigalpa Protocol to the Charter of the Organization of Central American States (1695 UNTS 382; amending the Charter of the Organization of Central American States) injected new life in that Organization by creating the Central American Integration System and by reorganizing the Central American Court of Justice (see the Demanda por violación de normativa del y principios comunitarios centroamericanos del Sistema de la Integración Centroamericana [SICA] [Nicaragua v Honduras] [27November 2001] 13 Gazeta Oficial de la Corte Centroamericana de Justicia 2).

Within the Caribbean Community(‘CARICOM’), the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (2259 UNTS 293) establishes a comprehensive system of dispute settlement in which the various institutions (Conference of the Heads of States, Council of Ministers, Caribbean Court of Justice) may perform a function of dispute settlement (Arts 187-223). In the (see this next term) MERCOSUR, various treaties tended to institutionalize the procedure of settlement of disputes, although with mitigated results. Thus, the Treaty for the Establishment of a Common Market between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay (2140 UNTS 257; ‘Treaty of Asunción’) only provided for an obligation to negotiate whose failure opens the path to conciliation under the auspices of the political organs of the organization (Annex III Treaty of Asunción).

The Protocol of Brasilia for the Settlement of Disputes adds that the failure of the political mechanisms leads to the establishment of an ad hoc arbitral tribunal (Arts 8-24 Protocol of Brasilia for the Settlement of Disputes), whereas the Olivos Protocol for the Solution of Controversies in the Mercosur accentuates the judicial aspect through the establishment of a Permanent Review Court which has competence to confirm, modify, or revoke the arbitral decisions(Art. 22 Olivos Protocol).

League of Arab States

In accordance with Art. 5 Charter (Pact) of the League of Arab States, the Council of the organization can ‘mediate in a dispute which may lead to war between two Member States or between a Member State and another State in order to conciliate them’ and enjoys an optional competence to arbitrate ‘should the two contending parties apply’ to it.

Europe

The (see this next term) European Convention for the Peaceful Settlement of Disputes (1957) of 29 April 1957 also contains a jurisdictional clause providing for the jurisdiction of the ICJ (Art. 1 ECPSD) which has been invoked in some cases (see Certain Property [Liechtenstein v Germany] [Preliminary Objections]; or Jurisdictional Immunities of the State [Germany v Italy][Application] [23 December 2008]) but it does not institutionalize any specific mechanism (see also Art. 33 (see this next term) European Convention for the Protection of Human Rights and Fundamental Freedoms [1950] on inter-States applications).

In the framework of the (see this next term) Organization on Security and Co-operation in Europe (OSCE), on the other hand, two institutional mechanisms are at the disposal of the Member States for settling their disputes: the ‘La Valetta Dispute Settlement Mechanism’ created by a Report of 1991 (Organization on Security and Co-operation in Europe ‘Principles for the Settlement of Disputes, and Decisions on Procedures of the Conference on Security and Co-operation in Europe for the Settlement of Disputes’ [8 February 1991]) amended in 1992, which combines rather tortuously mediation and more or less ‘compulsory conciliation’ and the Court of Conciliation and Arbitration instituted by the Convention on Conciliation and Arbitration Within the Conference on Security and Co-operation in Europe; none of them has ever been used up to now (2010) but the OSCE offers its good offices or acts as a mediator (see eg the good offices mission concerning the Russian minorities in Estonia and Latvia[‘CSCE Mission to Estonia’ (13 December 1992) CSCE/18-CSO/Journal No 3, Annex 2; ‘CSCE Mission to Latvia’ (23September 1993) CSCE/23-CSO/Journal No 3, Annex 3]; the mediation between Moldova and Transdniestria which started in 1993 [‘CSCE Mission to the Republic of Moldova’ (4 February 1993) CSCE/19-CSO/Journal No 3, Annex 3];the ‘Minsk Process’, from 1995 onwards, in the case of the Nagorno-Karabakh between Armenia and Azerbaijan) or proceeds to inquiry (see eg ‘Verification Mission to Kosovo’ [25 October 1998] PC.DEC/263; the fact-finding missions in Chechnya [‘Assistance Group to Chechnya’ (11 April 1995) PC.DEC/35] or Croatia [‘CSCE Mission to Croatia’ (18April 1996) PC.DEC/112]) on a case-by-case basis.

European Union

As for the European Union (‘EU’), it gets more and more involved in the civilian aspects of crisis management, as a part of its security and defence policy. In 2010 24 such missions weredeployed in Europe, Africa, and the Middle East. Moreover, on 2 December 2008, the EU established an independent fact-finding mission on the conflict in Georgia to investigate the origins and course of the conflict (see Council Decision 2008/901/CFSP of 2 December 2008 concerning an Independent International Fact-Finding Mission on the Conflict in Georgia [2008] OJ L323/66 and Independent International Fact-Finding Mission on the Conflict in Georgia [30September 2009]).

Uncontroversially, it is within the European Union that the most sophisticated mechanisms have been set up since 1951. Following the Treaty Establishing the European Economic Community (294 UNTS 17) instituting the (see this next term) European (Economic) Community, the Treaty on the Functioning of the European Union ([2008] OJ C115/47; ‘TFEU’) excludes any possibility to settle disputes between Member States concerning its implementation outside the mechanisms it sets up in respect to the (see this next term) MOX Plant Arbitration and Cases. Two such mechanisms must be mentioned: the proceedings for failure to fulfil an obligation as established by Art. 259 TFEU (ex Art 227 Consolidated Version of the Treaty Establishing the European Community [(2006) OJ 321E/37; ‘TEC’]; see also Case C-459/03 Commission of the European Communities v Ireland [2006] ECR I-4635 or Case C-145/04 Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917) and the seising of the ECJ through a “compromise” (Art. 273TFEU, ex Art. 239 TEC).

Africa

In Africa despite the non-use of the less sophisticated mechanism created within the framework of the late Organization of African Unity (‘OAU’)-see the Protocol of the Commission of Mediation, Conciliation and Arbitration and the Cairo Declaration Approving a Mechanism for Conflict Prevention, Management and Resolution in Africa-the Protocol relating to the Establishment of the Peace and Security Council of the African Union establishes the Peace and Security Council ‘as a standing decision-making organ for the prevention, management and resolution of conflicts’ which is at the heart of a much more complex and ambitious machinery vested with very diverse functions, among which “peace-making, including the use of good offices, mediation, conciliation and enquiry” (Art. 6 (c) Protocol relating to the Establishment of the Peace and Security Council of the African Union), but with no real power of decision in the field of dispute settlement. Still in Africa, several sub-regional organizations also have competences in this field, in particular the (see this next term) Economic Community of West African States (ECOWAS) and the (see this next term) Southern African Development Community (SADC).

International Organizations Acting as Quasi-Judicial Bodies

The mechanisms of dispute settlement within technical organizations rely on the political bodies and/or specialized committees, which act as quasi-judicial bodies. Being adopted within an institutional frame, the decisions are authoritative for the interpretation of the constitutive act of the organization and can be adjudicatory in nature. Art. 69Convention on the International Maritime Organization (289 UNTS 3; (see this next term) International Maritime Organization [IMO]) gives the Assembly a specific role in resolving disputes concerning its interpretation or application which, in the absence of any satisfactory settlement, can be submitted to the ICJ. A similar mechanism is set up in Art. 75 Constitution of the World Health Organization (14 UNTS 185; (see this next term) World Health Organization [WHO]; see Armed Activities on the Territory of the Congo [New Application: 2002] [Democratic Republic of the Congo v. Rwanda] [Jurisdiction and Admissibility] 43).

Art. 24 Articles of Agreement of the International Monetary Fund (2 UNTS 39; (see this next term) International Monetary Fund [IMF]) endow the Board of Executive Directors and the Board of Governors with the competence to issue interpretative decisions binding upon the members, including with respect to disputes between members (for a discussion on the binding nature of its decisions, see West v Multibanco Comermex, United States Court of Appeals Ninth Circuit [6January 1987] 807 F 2d 820). The (see this next term) International Civil Aviation Organization (ICAO)’s Constitution puts the Council at the heart of the mechanism of dispute settlement (Art. 84 Convention on International Civil Aviation; 15 UNTS 295;‘Chicago Convention’); this mechanism was uncoupled on occasions (for instance, in 1971 when Pakistan seized the Council of a dispute with India; the Council’s decision on the admissibility of the request was submitted for annulment to the ICJ-Appeal Relating to the Jurisdiction of the ICAO Council [India v Pakistan] [1972] ICJ Rep 46).

Furthermore, the Council dealt with disputes more informally, outside the framework of Art. 84 Chicago Convention (see the fact-finding investigation established, on the basis of Art. 55 Chicago Convention, by the ICAO Secretary-General on the Soviets’ missile attack on the Korean Airlines flight 007 in 1983-GF Fitzgerald ‘The Use of Force against Civilian Aircraft: The Aftermath of the KAL Flight 007 Incident’ [1984] 22 ACDI 291-311). Last but not least, the Constitution of the International Labor Organization (15 UNTS 40; (see this next term) International Labor Organization [ILO]) provides for quasi-judicial mechanisms of complaint that inspired the creation of the human rights monitoring bodies.

They settle mainly hybrid disputes-the representation procedure of Arts 24 and 25 ILO Constitution allows an association of employers or workers to complain against a State-although Arts 26-33 ILO Constitution provide for conciliation in inter-State disputes, this was rarely used (insofar, six procedures; see CJ Tams Enforcing Obligations “erga omnes” in International Law [CUP Cambridge 2005] 72).

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

  • PJIM De Waart The Element of Negotiation in the Pacific Settlement of Disputes between States (Nijhoff TheHague 1973).
  • LB Sohn ‘The Security Council’s Role in the Settlement of International Disputes’ (1984) 78 AJIL 402-4.R Escher Friedliche Erledigung von Streitigkeiten nach dem System der Vereinten Nationen (Schulthess Zurich1985).
  • C Amigo Román La solución de controversias internacionales y sus mecanismos (1994/95) 86 Revista de la Facultad de Derecho de la Universidad Complutense de Madrid 93-113.
  • S Rosenne and others ‘Third Party Settlement at the Turn of the Century: Some Old Problems Revisited and Some New Problems not Foreseen at The Hague in 1899/2007, or in the Statutes of the Permanent Court of International Just and the International Court of Justice’ in United Nations (ed) International Law as a Language for International Relations (Kluwer The Hague 1996) 479-92.
  • CP Économides ‘L’obligation de règlement pacifique des différends internationaux: une norme fondamentaletenue à l’écart’ in Boutros Boutros-Ghali Amicorum discipulorumque liber: Peace, Development, Democracy(Bruylant Bruxelles 1999) 405-18.
  • C Hauss International Conflict Resolution (Continuum London 2001).
  • CJ Tams and C Bouguillon ‘La deuxième conférence de La Haye et le règlement pacifique des différends’ (2004)113 RGDIP 75-94.
  • K Oellers-Frahm ‘Nowhere to Go?: The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction’ in T Giegerich (ed) A Wiser Century?: Judicial Dispute Settlement, Disarmament and the Laws of War100 Years after the Second Hague Peace Conference (Duncker & Humblot Berlin 2009) 435-53.

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