- Variety of Means of Peaceful Settlement of International Disputes
Variety of Means 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.
It is impossible to draw a complete list of the various means of peaceful settlement-not so much because they are so diversified (in fact they can be linked to a handful of rather well established types), but because, concretely, a particular dispute is solved by the combination of various means. With this caveat, Art. 33 UN Charter gives a list of the usual peaceful means of settlement which offers a convenient starting point; it includes: “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements” . However, this list is not entirely homogeneous (regional agencies or arrangements can refer to all the others and are different in their geographical scope more than by their nature) and is open-ended; it is nevertheless reproduced unchanged in the Friendly Relations Declaration or in principle V Helsinki Final Act-see also, but omitting arbitration and judicial settlement Art. 6 (c) Protocol relating to the Establishment of the Peace and Security Council of the African Union.
Good offices, the only significant ‘missing means’ in Art. 33 UN Charter, are mentioned for the first time in a UN instrument in the list of peaceful means by para. 3 UNGA Res 3283 (XXIX) (12 December 1974)-see also para. I (5) Manila Declaration, or UNGA Res 42/22 para. 17-but are included among the means offered in the 1907 Hague Convention I or the Pact of BogotÃ¡. Moreover, many international conventions expressly refer to Art. 33 UN Charter (see eg Art. 65(3) (see this next term) Vienna Convention on the Law of Treaties  or Art. 279 United Nations Convention on the Law of the Sea [1833 UNTS 397; (see this next term) Law of the Sea, Settlement of Disputes]).
Categories of peaceful settlements
It is not for this entry in the Encyclopedia to detail the characteristics of the various means of peaceful settlement, nor to give concrete examples of each of them (this is done under the respective name of each particular means of settlement). It is enough to underline that the precise definitions and borders of each of them are uncertain (an uncertainty aggravated by the terminological fantasy of many treaties) and that there exists more a continuum than clear distinctions between them. Moreover, all types of classifications are debatable. The four main criteria distinguishing between various categories of peaceful means generally used are based:
- on the nature of the dispute, supposed to be either ‘legal’ or ‘political’;
- on the basis adopted for the solution, whether international law exclusively or more flexible considerations;
- on the more or less intrusive role played by a third party in its resolution; and
- on the binding, or non-binding, character of the final solution.
Several classical treaties or special clauses of peaceful settlement are based on the assumption that political and legal disputes can be distinguished. This is the case of the famous optional clause of Art. 36 (2) ICJ Statute ((see this next term) International Court of Justice, Optional Clause) according to which ‘[t]he states parties…may at any time declare that they recognize as compulsory ipso facto…the jurisdiction of the Court in all legal disputes…’ (see also Art. 36 (3)UN Charter). Similarly, the ECPSD is entirely based on the distinction between legal disputes (submitted to the compulsory jurisdiction of the ICJ-Art. 1 ECPSD) and other disputes (optionally submitted to conciliation and arbitration).
Art. 5 Pact of the Arab League reintroduces and makes explicit the distinction in setting apart disputes involving ‘the independence of a State, its sovereignty or its territorial integrity’. In reality, the distinction is artificial and non-operational. Any international dispute involves both political and legal elements-or, more precisely, can be appreciated as well from a purely legal and from a political perspective.
Rulings made by a political organ
This is also why means of settlement based on international law (arbitration or recourse to the ICJ) can be combined with rulings made by a political organ on the basis of political considerations (see also Art. 38 (2) ICJ Statute opening a possibility for the parties to agree to confer to the court itself the power to decide a case “ex aequo et bono” ). Thus, since the UNSC has functions of a political nature, while ‘the Court exercises purely judicial functions’, ‘[b]oth organs can therefore perform their separate but complementary functions with respect to the same events’ (Military and Paramilitary Activities in and against Nicaragua [Jurisdiction and Admissibility] 435 para. 95): ‘[i]t is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to the dispute; and the resolution of such legal questions by the Court may be an important, and sometimes decisive, factor in promoting the peaceful settlement of the dispute’ (ibid 434 para. 93).
For its part, the Security Council, and to some extent the General Assembly, although not bound to comply with pre-existing legal rules except the provisions of the UN Charter and peremptory norms of public international law, has recourse to legal arguments or motives in law their recommendations or decisions relating to the settlement of disputes(UNSC Res 216 [12 November 1965] para. 2; UNSC Res 687 [3 April 1991] Pmbl. and many provisions; UNSC Res 1754[30 April 2007] Pmbl.; UNSC Res 1741 [30 January 2007] Pmbl. para. 3; UNGA Res 36/121 ‘Question of Namibia’ [10December 1981] Pmbl. and many provisions) so much so that Schachter has stressed the ‘Quasi-Judicial Role of the Security Council and the General Assembly’.
From an academic point of view at least, the distinctions between the purely bilateral means of settlement (that is direct negotiations between the parties) and those in which a third intervenes, and, among the latter, between the means leading to a binding or a non-binding solution, are more meaningful.
The intervention of a neutral third State or organ in inter-State disputes, whether they had resulted in a war or not, became quite usual in the remote past, without the distinction between the various modalities of intervention having ever been very clear (nor is it nowadays in all cases). Thus, as early as the 12th century Pope Alexander III, and his successors, ‘were frequently chosen as arbitrators in quarrels agitating Europe’ (JH Ralston International Arbitration from Athens to Locarno [Stanford University Press Stanford 1929] 181), so was, during the next century, the King of France Louis XI, and ‘[i]n 1334 Philip of Valois as “judge, negotiator and amiable compositeur” brought about the conclusion of a peace between the king of Bohemia, the princes of Germany and the Duke of Brabant’ (ibid 182-83).However, it was only at the very end of the 18th century ((see this next term) Jay Treaty ) and during the 19th century that the various types of peaceful means for the settlement of international disputes involving third persons crystallized into the forms we are now familiar with and that a clear distinction was made between the purely diplomatic and the judicial means-even though the intervention of the third person can take many forms and be of extremely varying intensity or degree of constraint upon the parties to the dispute.
Scale of Intrusive Means
Although it is an oversimplification, since there are no clear thresholds and various means are often combined for the settlement of a single dispute, a ‘scale’ can be established from the least to the most intrusive means as follows:
- diplomatic (see this next term) negotiation whether bilateral or within the framework of an international organization (‘diplomacy by conference or parliamentary diplomacy has come to be recognized…as one of the established modes of international negotiation’ [South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) 346]);
- (see this next term) good offices, the purpose of which is to facilitate contacts between the parties;
- (see this next term) mediation, which goes further since ‘[t]he part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance’ (Art. 4 1907 Hague Convention I)
- establishment of an international commission of inquiry ‘to facilitate a solution of [the dispute] by elucidating the facts by means of an impartial and conscientious investigation’ (Art. 9 1907 Hague Convention I);
- (see this next term) conciliation which aims at elucidating ‘the questions in dispute, to collect with that object all necessary information by means of enquiry or otherwise, and to endeavour to bring the parties to an agreement. It may, after the case has been examined, inform the parties of the terms of settlement which seem suitable to it, and lay down the period within which they are to make their decision’ (Art. 15 (1) 1928 General Act and Revised General Act for the Pacific Settlement of International Disputes [‘1949 General Act’]; see also Art. 15 (1) ECPSD);
- (see this next term) arbitration the object of which is ‘the settlement of disputes between States by Judges of their own choice and on the basis of respect for law. Recourse to arbitration implies an engagement to submit in good faith to the Award’ (Art.37 1907 Hague Convention I); and
- (see this next term) judicial settlement of international disputes which differs from arbitration in that the tribunal is established on a permanent basis.
‘Diplomatic’ means of settlement
The ‘diplomatic’ means of settlement (good offices, mediation, and conciliation) have in common that they result in an optional solution which is not binding upon the parties until they have accepted it; they can be operated by one or several individuals or States and, in the cases of mediation or, more frequently, of conciliation, by a panel which follows a more or less formal procedure. The contradictory principle is one of the main traits of the arbitral and judicial settlements which differ from each other mainly by a more or less pronounced institutionalization; but the growing tendency to create more or less permanent tribunals in order to rule on large categories of disputes must be noted (see eg the (see this next term) Iran-United States Claims Tribunal or the OSCE Court of Conciliation and Arbitration); the(see this next term) Permanent Court of Arbitration (PCA) is a middle road solution: only its Secretariat (the International Bureau which serves as registry for the Court) has been created on a permanent basis by the 1899 Hague Convention I revised in1907, while the ‘Court’ is but a list of potential arbitrators designated by the contracting parties; in surplus, rules for the arbitral procedures have been adopted and progressively expanded and modernized.
As for judicial settlement properly said, the first attempt to institute a specialized permanent tribunal was made by the Convention on the Conversion of Merchant Ships into War Ships ( 2 AJIL Supp 133) creating the (see this next term) International Prize Court (IPC), which was never established in fact; for its part the (see this next term) Central American Court of Justice (1907-18) created in 1907 disappeared10 years later and it was only in 1920 that the first permanent judicial body could be established at the universal level-the PCIJ, replaced by the ICJ in 1945. The second half of the 20th century has seen a blooming of numerous judicial bodies in many regional and technical frameworks.
Modalities of the procedure or of the outcome
The parties to a given dispute may, in most of the cases-except when the third party itself is bound by its own statute-(see Free Zones of Upper Savoy and the District of Gex [France v Switzerland] [Order] PCIJ Series A No 22; (see this next term) Free Zones of Upper Savoy and Gex Case), adjust the modalities of the procedure or of the outcome of the means of settlement they resort to. However, the general rules applicable to each of these various techniques are now, in their general lines, well fixed-and were essentially laid down in the Hague Conventions I of 1899 and 1907 and in the1928 General Act. In fact, all innovations since then are but variations on the same general themes. Even the massive outbreak of international organizations in the pacific settlement of international disputes since 1945 has not radically changed the general profiles of the various means traditionally resorted to.
Thus, the UN bodies, and in particular, the Security Council, the General Assembly or the Secretary-General have recourse, according to circumstances, to good offices, mediation, or conciliation. However a drastic innovation lies in the fact that, at least as far as the Security Council is concerned, the recourse to those means, and, in some hypotheses the solution itself, can be imposed to the parties, thus seriously breaking the consent principle, when the international peace and security are, or are likely to be, breached or threatened.
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
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- DW Bowett ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 EJIL 89-101.
- M Irish ‘Transnationalism and the Settlement of Disputes: The Role of Nonstate Actors’ in MK Young and YIwasawa (eds) Trilateral Perspectives on International Legal Issues: Relevance of Domestic Law and Policy(Transnational Publishers New York 1996) 363-76.
- J Collier and V Lowe The Settlement of Disputes in International Law: Institutions and Procedures (OUP Oxford1999).
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- P Fois ‘Il nuovo ordine internazionale, il regionalismo e la soluzione pacifica delle controversie’ in — Studi didiritto internazionale in onore di Gaetano Arangio-Ruiz (Scientifica Napoli 2003) 997-1018.
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