Peaceful Settlement of Disputes Obligation Nature

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Nature of the Peaceful Settlement of Disputes Obligation

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.

A fundamental weaknesses of international law

The UN Charter does not cure what can be seen as one of the fundamental weaknesses of international law. Indeed, Art. 1 (1) UN Charter includes among the purposes of the United Nations the duty to ‘bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’ and Art. 2 (4) UN Charter imposes on all members to ‘settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’.

But, while ‘the General Assembly may recommend measures for the peaceful adjustment of any situation’ (Art. 14 UN Charter) and the Security Council is supposed ‘when it deems necessary, [to] call upon the parties to settle their dispute’ by the peaceful means enumerated in Art. 33 UN Charter, no provision of the Charter permits the organization to oblige States in dispute to have recourse to any particular means of settlement nor to implement any agreed or decided solution, except if the absence of settlement threatens the maintenance of the international peace and security (in which case, the provisions of Chapter VII UN Charter will come into operation). Art. 94 UN Charter offers a striking illustration of this cautious approach: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the[ICJ], the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment” (emphasis added). (“may, if it deems necessary” exemplify the limits of the possibility to enforce the principle of peaceful settlement, and of the desire of the(see this next term) international community to insure such an enforcement.)

Principle confirmed by UN Resolutions

Weak and imperfect as it might seem, the principle has been confirmed in numerous international instruments, whether binding or non-binding, at the world or regional levels and its positivity cannot be denied.

Among the main universal relevant texts, the following United Nations General Assembly ((see this next term) United Nations, General Assembly) resolutions can be cited:

  • UNGA Res 2625 (XXV) (24 October 1970) ((see this next term) Friendly Relations Declaration [1970]) mentions ‘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’ as the second of those principles and partly clarifies its scope;
  • the Manila Declaration elaborates more on the content of the principle and invites Member States of the UN to ‘make full use of the provisions of the Charter of the United Nations, including the procedures and means provided for therein, particularly Chapter VI, concerning the peaceful settlement of disputes’;
  • by UNGA Res 40/9 (6 November 1985), the Assembly addressed a “[s]olemn appeal to States in conflict to cease armed action forthwith and to settle disputes between them through negotiations, and to States Members of the United Nations to undertake to solve situations of tension and conflict and existing disputes by political means and to refrain from the threator use of force and from any intervention in the internal affairs of other States;”
  • in UNGA Res 43/51 ‘Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Rule of the United Nations in this Field’ (5 December 1988)-the General Assembly laid down for the first time a clear link between prevention of conflict and dispute resolution (see also Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea para 130 and UNGARes 42/22 [18 November 1987]) or UNGA Res 47/120 [18 December 1992], welcoming the Secretary-General’s Report entitled ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’ [17 June 1992]and integrating the peaceful settlement of disputes in the global concept of ‘preventive diplomacy’; UNGA Res57/26 ‘Prevention and Peaceful Settlement of Disputes’ (19 November 2002) or UNGA Res 57/337 ‘Prevention of Armed Conflict’ (3 July 2003); and
  • during the Millenium Summit, the Heads of State and Government reaffirmed, without much emphasis, their dedication to the ‘resolution of disputes by peaceful means and in conformity with the principles of justice and international law’ (UNGA Res 55/2 ‘United Nations Millennium Declaration’ [8 September 2000] paras 4 and 9)

Responsibility for resolving disputes and conflicts

For its part, in Annex UNSC Res 1318 (7 September 2000)-Declaration on Ensuring an Effective Role for the Security Council in the Maintenance of International Peace and Security Particularly in Africa-the Security Council also makes plain the link between prevention of conflicts and peaceful settlement and underlines “that the ultimate responsibility for resolving disputes and conflicts lies with the parties themselves and that peacekeeping operations aimed at helping to implement a peace accord can succeed only to the extent that there is a genuine and lasting commitment to peace by all parties concerned” (Section VIII UNSC Res 1318-see also UNSC Res 1366 [30 August 2001] or UNSC Res 1809 [6 April2008]; see also Peacekeeping).

Regional arrangements

In conformity with Art. 52 UN Charter-which requires the members of the organization to ‘make every effort to achieve pacific settlement of local disputes’ through regional arrangements or by regional agencies (para. 2) and the Security Council to encourage such settlements-the principle of peaceful settlement is also formulated in many regional instruments such as:

  • Art. 5 Charter (pact) of the League of Arab States ([signed 22 March 1945, entered into force 10 May 1945] 70 UNTS237; ((see this next term) League of Arab States [LAS]);
  • Arts 23-25 Charter of the Organization of American States ([signed 30 April 1948, entered into force 13 December1951] 119 UNTS 3) and Art. 1 American Treaty on Pacific Settlement ((see this next term) Bogotá Pact [1948]
  • Principle V Conference for Security and Co-operation in Europe ‘Final Act’ ((see this next term) Helsinki Final Act [1975]) or
  • Art. 4 (e) Constitutive Act of the African Union ([done 11 July 2000, entered into force 26 May 2001] 2158 UNTS 3;(see this next term) African Union [AU]) and Art. 4 (a) African Union ‘Protocol relating to the Establishment of the Peace and Security Council of the African Union’.

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

  • M Habicht Post-War Treaties for the Pacific Settlement of International Disputes (Harvard University PressCambridge 1931).
  • JHW Verzijl International Law in an Historical Perspective volume VIII Inter-States Disputes and their Settlement (Sijthoff Leiden 1976).
  • M Koskenniemi ‘Peaceful Settlement of Environmental Disputes’ (1991) 60 Nordic Jl I L 73-92.
  • DD Caron and G Shinkaretskaya ‘Peaceful Settlement of Disputes through the Rule of Law’ in F Damrosch
  • T Treves ‘Recent Trends in the Settlement of International Disputes’ (1997) 1 Cursos euromediterráneos Bancaja de derecho internacional 395-436.
  • J Dahlitz (ed) Peaceful Resolution of Major International Disputes (United Nations New York 1999).
  • A Peters ‘International Dispute Settlement: A Network of Cooperational Duties’ (2003) 14 EJIL 1-34.
  • J Alvarez International Organizations as Law-makers (OUP Oxford 2005) 415-516.

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