Variety Use of Means of Peaceful Settlement

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Variety Use 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.

Neither Art. 2 (3) nor Art. 33 UN Charter fixes any priority among the peaceful means to settle disputes which they list. And the Pact of Bogotá expressly states that none of the means it enumerates has ‘preference over others except as expressly provided’ (Art. 3 Pact of Bogotá).

Negotiations

Even recourse to negotiations has no predominance over the other means of settlement. However, concretely,‘negotiations occupy a somewhat special position’ (Tomuschat La Charte des Nations Unies [2002] 588) in that:

  • ‘States should, without prejudice to the right of free choice of means, bear in mind that direct negotiations are a flexi bleand effective means of peaceful settlement of their disputes’ (para. I (10) Manila Declaration);
  • they can be a necessary prerequisite to identify the existence and content of a dispute brought before a third party (Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction] 24 or Right of Passage over Indian Territory[Portugal v India] [Preliminary Objections] [1957] ICJ Rep 125; (see this next term) Right of Passage over Indian Territory Case);
  • the choice of a particular means of settlement necessarily involves some kind of negotiation at a time or another(commonly ex ante, when the parties adopted a convention or a special provision of a larger treaty relating to the settlement of future disputes); and
  • failing an agreement for having recourse to other means, negotiations will remain the common-law means for the pacific settlement, from which the parties cannot escape except by seizing the UN Security Council or the General Assembly in accordance with Art. 35 (1) UN Charter, a possibility which constitutes the only real limit to the consensual principle and, by way of consequence, of the free choice of the peaceful means of dispute settlement.

Negotiations held with other Means

Moreover, exactly as for any other means of settlement, negotiations can be held together and in parallel with those other means. This is true for:

  • direct negotiation and judicial settlement: ‘Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court’ (Land and Maritime Boundary between Cameroon and Nigeria [Jurisdiction] [2002] ICJ Rep 303;see also Aegean Sea Continental Shelf [Greece v Turkey] [Jurisdiction] 12 para. 29);
  • judicial settlement and resort to regional arrangements: ‘…the Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seizing the Court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of the Nicaraguan Application and judicial determination in due course of the submissions of the Parties in the case’ (Military and Paramilitary Activities in and against Nicaragua [Jurisdiction and Admissibility] 440-41 para. 106; see also Armed Activities on the Territory of the Congo [New Application: 2002] [Jurisdiction and Admissibility] 41 para. 92 and 43 para.100); or
  • attempt to settle the dispute within the Security Council and before the ICJ: ‘the Court is of the view that the fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings could be pursued pari passu’ (Military and Paramilitary Activities in and against Nicaragua [Jurisdiction and Admissibility] 433para. 93; see also United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3 para. 40).

Judicial Settlement

By the same token, it will be apparent that neither regional nor judicial settlements have any precedence over other means of settlement.

Art. 13 League Covenant could have been interpreted as establishing at least a preference for the judicial or arbitral settlement of legal disputes. But, besides the fact that the distinction between legal and political disputes is artificial and that such a priority never prevailed, the UN Charter has adopted a much more modest approach by simply recommending (by using the verb ‘should’ and not ‘shall’) to the Security Council to ‘take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice…’.

Regional arrangements or agencies

Similarly, the apparent priority given by Art. 52 UN Charter to achieve pacific settlement of local disputes through regional arrangements or agencies (see also Art. 2 Pact of Bogotá) is misleading-if only because, according to para.4 of that provision, it ‘in no way impairs the application of Articles 34 and 35’ (see also Art. 2 Pact of Bogotá and Art.24 (2) OAS Charter, and para. I (6) Manila Declaration). Moreover, as the ICJ recalled: ‘…it is also important always to bear in mind that al1 regional, bilateral, and even multilateral, arrangements that the Parties to this case may have made, touching on the issue of settlement of disputes or the jurisdiction of the International Court of Justice, must be made always subject to the provisions of Article 103 of the Charter’ (Military and Paramilitary Activities in and against Nicaragua [Jurisdiction and Admissibility] 440 para. 107; see also Armed Activities on the Territory of the Congo [New Application: 2002] [Jurisdiction and Admissibility] 41 para. 92 and 43 para. 100).

However, in conformity with Art. 36(2) UN Charter, the usual practice of the Security Council is to differ the examination of a dispute under Chapter VIUN Charter if it is dealt with by a regional organization (see eg UNSC Res 144 [19 July 1960]-referring the matter[missiles crisis US/Cuba] to the OAS paras 1 and 2; see also UNSC Res 530 [19 May 1983]-Nicaragua [Contadora Group] paras 1-3 or UNSC Res 1840 [14 October 2008]-Haiti [OAS, CARICOM] Pmbl.).

As a general rule, the Security Council supports regional efforts to settle disputes (see eg UNSC Res 1177 [26 June 1998] para. 4 and UNSC Res1298 [17 May 2000]-Ethiopia/Eritrea [OAS]-para. 4; UNSC Res 1192 [27 August 1998]-Lockerbie [League of Arab States, OAU, OIC] Pmbl.; UNSC Res 1726 [15 December 2006]-Côte d’Ivoire [the SC endorses the decisions of the Peace and Security Council of the AU]; UNSC Res 1897 [30 November 2009]-Somalia [cooperation with a number of regional and technical organizations]-Pmbl., paras 13 and 14; or UNSC Res 1902 [17 December 2009]-Burundi [African Union]-para. 3).

The competence of the UNSC is all the more pre-emptive where the situation could qualify as a threat to the international peace and security (on the impossibility of voting for a resolution referring the situation in Guatemala to the OAS, see United Nations Repertory of Practice of United Nations Organs (1945-54) volume 2 Articles 23-54 of the Charter [UN 1955], under Art 52). Nowadays, the relationship between the UN, and in particular the Security Council, and regional organizations revolves about cooperation rather than competition (see UNSC Res 1318 ‘Ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa’ Section VII para. 1). Such cooperation led on occasion to the establishment of combined peacekeeping forces according to a principle of proximity and on the premises that some States could be more inclined to accept the implication of a regional organization (see African Union/United Nations Hybrid Operation in Darfur, UNSC Res 1891 [13 October2009] para. 3).

No Hierarchy

However, even if there is no hierarchy between the various means of peaceful settlement, it goes without saying that States, and other parties to international disputes, may voluntarily consent to a given means of settlement either unilaterally, essentially by accepting arbitral or judicial optional treaty clauses-see eg Art. 36 (2) ICJ Statute, or by entering a treaty imposing a given means of settlement. In such cases, the parties ‘are under an obligation to implement in good faith all the provisions of agreements concluded by them for the settlement of their disputes’ (para. I (11) Manila Declaration) including to comply with the binding solutions which may be decided accordingly.

Peaceful means combined

Quite often, agreed peaceful means are combined and offered either in the alternative or successively to the parties in dispute. Thus, most of the general conventions regarding the peaceful settlement of disputes (the 1899 Hague Convention I or the 1907 Hague Convention I; the 1928 and 1949 General Acts; the 1948 Pact of Bogotá; or the1957 ECPSD) offer the contracting parties a possibility to choose between a variety of means-sometimes privileging one of them as the common law means (ICJ for the European Convention [Art. 1 ECPSD] or the Pact of Bogotá [Art. 31 Pact of Bogotá]; conciliation in the case of the General Act [Art. 1 1928 General Act and 1949 General Act]).

Many multilateral conventions combine them more or less logically, for a complicated system of-in certain cases-compulsory mechanism see Part XV UN Convention on the Law of the Sea; see also eg the OSCE Stockholm Convention on Conciliation and Arbitration (Arts 18 and 2); Art. 14 (1) Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (974 UNTS 177); see Questions of Interpretation and Application of the 1971Montreal Convention Arising from the Aerial Incident at Lockerbie (Preliminary Objections) (1998) ICJ Rep 9; Art. 29(1) Convention on the Elimination of All Forms of Discrimination against Women (1249 UNTS 13); see Armed Activities on the Territory of the Congo (New Application: 2002) (Jurisdiction and Admissibility); Art. 30 (1) CAT; see Questions relating to the Obligation to Prosecute or Extradite (Provisional Measures) (28 May 2009) para. 51.

Exclusive means of settlement

Sometimes, the parties agree to an exclusive means of settlement to solve a given dispute or category of disputes. This is the case in the European Union where Art. 344 TFEU (ex Art. 292 TEC), imposes upon Member States ‘not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein’.

In the Mox Plant Case (Ireland v United Kingdom) (Order), invoking this provision, the European Commission considered that the dispute between Ireland and the United Kingdom on the construction of “amixed oxid” (‘MOX’) facility and the potential risk it poses to the environment of the Irish Sea related to the application of community law and that Ireland had ignored the exclusive jurisdiction of the ECJ by seizing an OSPAR arbitral tribunal(Art. 32 Convention for the Protection of the Marine Environment of the North-East Atlantic [(opened for signature 22September 1992, entered into force 25 March 1998) 32 ILM 1069]; Dispute concerning Access to Information under Article 9 of the OSPAR Convention-Ireland v United Kingdom Permanent Court of Arbitration [2 July 2003] (2003) 42ILM 1118) and the International Tribunal for the Law of the Sea (Art. 290 (5) UN Convention on the Law of the Sea -Mox Plant Case [Ireland v United Kingdom] [Order], see in particular para. 62 acknowledging that an Annex VII UN Convention on the Law of the Sea-arbitral tribunal would have jurisdiction). In its judgment of 30 May 2006, the Grand Chamber of the ECJ found that “by bringing proceedings under the dispute-settlement system set out in the Convention, without having first informed and consulted the competent Community institutions, Ireland has failed to comply with its duty of cooperation under Articles 10 EC and 192 EA” (Case C-459/03 Commission v Ireland [2006] ECRI-04635).

For its part, the Annex VII Tribunal granted the required provisional measures, albeit suspending the merits while waiting for the decision of the ECJ ‘bearing in mind considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States’ (Mox Plant Case [Ireland v United Kingdom] [Order No 3] para. 28), thus remarkably admitting the pre-eminence of ECJ jurisdiction in matters related to the application of community law (cf Iron Rhine Arbitration [Belgium v Netherlands][Award] Permanent Court of Arbitration [24 May 2005] 27 RIAA 35).

Such a predominance is only conceivable within the framework of regional contexts where solidarity between the Member States of a particular union is strong and limitations of sovereign rights commonly accepted. In more general contexts, the traditional non-binding means prevail-even if, statistically, the stress on such or such means may vary in time: thus, inquiry was very popular between the two world wars (at least on paper), while it is now declining, except within the framework of the UN-but outside the specific provisions of Art. 34 UN Charter. Similarly contemporary practice is marked by the striking decline of traditional conciliation, in spite of the ritual insertion of treaty provisions envisaging it, or mediation-at least outside the UN or regional organizations. In spite of an apparent revival of ad hoc arbitration and a growing but moderate interest in the ICJ, the usual resort to binding means remain confined to regional contexts. The best is the enemy of the good and this situation is not to be regretted: in an international society where sovereignty and national selfishness still prevail, it would be utopian and counterproductive to envisage the generalization of more constraining means of settlement of international disputes.

Impasse

It is true that, in the absence of any pre-existing treaty obligation, the combination of the two main principles governing the matter, ie the consensual implementation of the obligation to peacefully settle international disputes on the one hand, and the free choice of the means to implement it on the other hand, might lead to an impasse. At this point, the pre-eminence of negotiations as a means of pacific settlement resurfaces and, if the deadlock persists and is of such a nature that the maintenance of international peace and security is endangered, the compulsory recourse to the UN machinery set forth in Chapter VI UN Charter (Art. 37 (1) UN Charter), with a possible culmination in the use of coercion of Chapter VII UN Charter, would be the outcome. Legally and logically, the system is unfailing; concretely, that’s another matter since:

  • the Security Council-which theoretically has the last word but enjoys a wide discretion to act or not under Chapter VI UN Charter, can be paralysed by a veto or, more simply, the disinterest of its members towards the dispute; and
  • in fact, the means it can use are limited. This reconfirms that the prohibition of the use of force and the peaceful settlement of disputes are inseparable principles both intellectually and as for their implementation in “concreto”.

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

  • L Randolph Third Party Settlement of Disputes in Theory and Practice (Oceana New York 1973).
  • L Ferrari Bravo ‘Peaceful Settlement of Disputes in Europe in the Year 2000 and Beyond’ (1990) 45 Communità internazionale 522-37.
  • K-H Böckstiegel ‘Internationale Streiterledigung vor neuen Herausforderungen’ in Recht zwischen Umbruch undBewahrung : Völkerrecht, Europarecht, Staatsrecht : Festschrift für Rudolf Bernhardt (Springer Berlin 1995) 671-86.
  • J Dahlitz ‘Peaceful Settlement of International Disputes’ (1996/97) Russian Yearbook of International Law 207-15.
  • EU Petersmann ‘Proposals for Strengthening the UN Dispute Settlement System: Lessons from Internationa lEconomic Law’ (1999) 3 Max Planck UNYB 105-56.
  • F Orrego Vicuña International Dispute Settlement in an Evolving Global Society: Constitutionalization, Accessibility, Privatization (CUP Cambridge 2001).
  • J Finke Die Parallelität internationaler Streitbeilegungsmechanismen (Duncker & Humblot Berlin 2004).

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