CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

Peaceful settlement Of disputes under UN

charter
Political Science Final Draft

Submitted by:- Submitted to:-

Aditya Parihar Dr. S.P. Singh
Roll. No.-1706 Faculty of Political Science
Course – B.A. LL.B (Hons.)
Semester – 2nd
 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. S.P Singh , without the kind support
of whom and help the completion of the project could not have been possible for me. She
donated her valuable time from her busy schedule to help me to complete this project and
suggested me from where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very
useful and could not be ignored in writing the project. I would also like to thank those friends
who provided me their laptop from there busy schedule, so that I can also complete my work
on time.

Last but not the least, I am very much thankful to my parents and family, who always stand
aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

Aditya Parihar

Roll. No.- 1706

B.A. LLB. (Hons.)

1st – Semester

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 Peaceful Settlement of
Dispute Under UN Charter
PUBLIC INTERNATIONAL LAW

Page 2 of 31
 CONTENTS

INTRODUCTION
PACIFIC MEANS OF SETTLEMENT OF INTERNATIONAL
DISPUTES

NEGOTIATION

ARBITRATION

MEDIATION AND GOOD OFFICES

CONCILIATION AND ENQUIRY

UN PROCEDURES

INTERNATIONAL COURT OF JUSTICE

CONCLUSION

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INTRODUCTION
INTERNATIONAL DISPUTES AND SETTLEMENT – AN OVERVIEW

“An international or territorial dispute is a disagreement over the rights of two or more states
with regard to control of a given piece of land. International disputes find their roots in a
number of issues including natural resources, ethnic or religious demography, and even
ambiguous treaties. When left unchecked, international disputes have caused criminal actions,
terrorism, wars, and even genocide—all in the name of reasserting rights over territory. The
UN Charter in no way allows states to use force to annex territory from any other state: “All
Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.”

Arbitration can be made an appropriate international dispute settlement mechanism for

international disputes when arbitration agreements are carefully drafted. Arbitration is
especially valuable in contract disputes between a private company located in a Western nation
and a government agency or government-controlled company in a developing state as well as
in the framework of East-West trade agreements. Parties to international contracts often favour
arbitration because compared to litigation they believe it is inexpensive, rapid, informal,
generative of consensus, and a means of minimizing or avoiding the need for lawyers. These
advantages are partially attainable through the careful structuring of the arbitration agreement,
but without the proper agreement they can prove illusory. International dispute settlement is a
relatively new field of academic study that increasingly combines private and public
international law and raises enduring issues of global importance.” 1

International dispute settlement is concerned with the techniques and institutions which are
used to solve international disputes between States and/or international organizations.
International disputes can be solved either by use of force (coercion) or by peaceful settlement.
Techniques used for peaceful settlement of international disputes are negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice (Art. 33, UN Charter).2

1
http://www.globalsecurity.org/military/world/war/disputes.htm, last accessed on June 25, 2014.
2
http://www.peacepalacelibrary.nl/research-guides/settlement-of-international-disputes/international-
dispute-settlement/, last accessed on June 25, 2014.

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In a general way, international law provides the practical rounding out of the principles of
peaceful co-existence. International law provides the criteria for the identification of States and
organizations of States, and of the nationality of individuals and legal entities. International
law provides the definition of the political and territorial limits and the jurisdiction of States,
and also their immunities from jurisdiction. International law also provides the basis of the civil
responsibility of States for breaches of international law, together with the appropriate
remedies. And lastly international law provides the principles and modalities governing the
peaceful settlement of disputes between States.3

A dispute can be defined as a disagreement on a point of law or fact, a conflict of legal views
or of interests between two States. Disputes relate to an alleged breach of one or
more legal duties. They may also relate to a question of attribution of title to territory, to
maritime zones, to movables or to parts of the cultural heritage of a State.

Peace is very much the heart of the purposes and principles of the United Nations Charter which
provides that "All Members shall settle their international disputes by peaceful means."4
Indeed, the U.N. Charter obliges Parties to, first of all, "seek a pacific settlement of disputes."5
“Still, war is an unfortunate reality and, as such, is a subject for international law.6 The U.N.
Charter does not shy away from the sad reality of war. In fact, the Charter envisages a state of
armed conflict by recognizing the right of self-defence in the event of an armed attack.7 The
obligation to seek peaceful solutions, however, is supplemented by the duty of all States to
promote a complete and general disarmament.8

AIMS & OBJECTIVES:

The researcher here wants to know about:

1. Ways of Peaceful settlement of disputes.

2. Provisions under UN charter for peaceful settlement of disputes.
3. About the applicability of those provisions on ground level.

3
http://chinesejil.oxfordjournals.org/content/8/2/267.full, last accessed on June 25, 2014.
4
U.N.CHARTER, art. 2, Para 3.
5
U.N.CHARTER, art. 33.
6
Aldrich, New Life for the Laws of War, 75 AM. J. INT'L L. 764 (1981)
7
U.N. CHARTER, art. 51.
8
Art. 15, The Economic Rights and Duties of States, U.N. General Assembly Resolution 3281, 29 Sess. (1974).

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HYPOTHESIS:

The researcher assumes that provisions under UN charter has helped greatly in settling
international disputes peacefully.

RESEARCH QUESTION:

The researcher wants to find about:

1. What are international disputes?

2. How those Disputes can be solved peacefully?
3. What are the provisions under UN charter for solving these disputes?
4. How far those provisions are applicable in solving those disputes?

RESEARCH METHODOLOGY:

The researcher has used Doctrinal method of research to complete this project.

LIMITATIONS:

There was time constraint due to which the researcher has to limit the ambit of his research and
focus on some specific topics.

CHAPTERIZATION:

1. Introduction
2. Peaceful settlement of disputes
3. UN procedure
4. International Court Of Justice
5. Conclusion

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PACIFIC MEANS OF SETTLEMENT OF INTERNATIONAL DISPUTES

Once the principle of the obligation to seek a peaceful settlement of disputes is established, it
becomes necessary to look to the procedures of international law which implement this
principle. The principle of pacific settlement of disputes is not an isolated concept in
international law. The monotony and uniformity in formulation of the principle contrasts with
the wide variety of the nature and effect of the proposed procedures. Peaceful settlement of
disputes is intimately supported, supplemented, and reinforced by nations in terms of friendly
relations, good neighbourliness, good will, and cooperation.9 The raison d'etre of diplomacy
and diplomatic relations regards negotiations as the first and most important means of peaceful
settlement of disputes.

Historically, International Law has been regarded by the international community as a means
to ensure the establishment and preservation of world peace and security. The maintenance of
international peace and security has always been the major purpose of the International Law.

• It was the basic objective behind the creation of the League of Nations in 1919 and the
United Nations in 1945.

• Since the direct cause of war and violence is always a dispute between States, it is therefore
in the interest of peace and security that disputes should be settled.

• Methods and procedures for the peaceful (pacific) settlement of disputes have been made
available in the International Law.

States have concluded a great number of multilateral treaties aiming at the peaceful settlement
of their disputes and differences. The most important treaties are

1. the 1899 Hague Convention for the Pacific Settlement of International Disputes which was
revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the
Pacific Settlement of Disputes which was concluded under the auspices of the League of
Nations.

2. Furthermore, there are regional agreements, such as the 1948 American Treaty on Pacific
Settlement (Bogotá Pact)10,

9
I. POP., VOISINAGE ET BON VOISINAGE EN DROIT INTERNATIONAL (1980).
10
Id

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3. the 1957 European Convention for the Peaceful Settlement of Disputes,

4. and the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization
of African Unity.

In addition to such general treaties on dispute settlement, there are many bilateral and
multilateral agreements which include specific clauses related to dispute settlement.

• The Charter of the United Nations devotes Chapter VI to the methods and procedures for
the pacific settlement of disputes.

• Paragraph 1 of Article 33 of the Charter states the methods for the pacific settlement of
disputes as the following: negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, and resort to regional agencies or arrangements11.

• This paragraph obliges States parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, to seek a solution by any of
the listed methods or other peaceful means of their own choice.

The methods of peaceful settlement of disputes fall into three categories: diplomatic,
adjudicative, and institutional methods. Diplomatic methods involve attempts to settle
disputes either by the parties themselves or with the help of other entities. Adjudicative
methods involve the settlement of disputes by tribunals, either judicial or
arbitral. Institutional methods involve the resort to either the United Nations or regional
organizations for settlement of disputes12.

NEGOTIATION

Negotiation is undoubtedly the oldest means of dispute settlement. In their dissenting opinions
in Mavrommatis, Judges Moore and Pessôa referred to it as, respectively, the “legal and orderly
administrative process by which governments, in the exercise of their unquestionable powers,
conduct their relations one with another and discuss, adjust and settle, their differences” and as
“debate or discussion between the representatives of rival interests, discussion during which
each puts forward his arguments and contests those of his opponent.” Like consultation within

11
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-
disputes

12
Supra Note 3

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the context of the World Trade Organization’s dispute settlement system, negotiation allows
the parties to a dispute to exchange information, assess their respective cases, and attempt to
reach a mutually agreed upon understanding. Negotiation serves to focus disagreements and
make disputes more “concrete,” with a view to settlement. Negotiation “...is a diplomatic
procedure whereby representatives of states engage in discussing matters...between them...to
clarify and reconcile their divergent positions and resolve the dispute.”13

MEDIATION AND GOOD OFFICES14

The next type of procedure is mediation, which is the first of a series of modes of third-party
settlement. Good offices is a similar mechanism. There is no standard definition of mediation
but it is nonetheless normally distinguished from conciliation. In principle, mediation involves
the direct conduct of negotiations on the basis of proposals made by the mediator. Modern
practice contains an important example of an effective mediation.

These procedures involve the participation of a neutral third party, whether an individual, a
group of persons, or a state or international organisation through their representatives or senior
officials. The third party’s role, which is dependent on the consent of the disputants, is to
encourage states to reach an agreed compromise or settlement of their dispute. Terms of
settlement may be proposed by the mediator, or a third party’s role may be limited to bringing
the contending parties together to negotiate directly (this is known as good offices). Whatever
form the process takes, any settlement will result from negotiation and agreement of the parties
themselves, perhaps assisted by the third party; but it will not be a binding decision issued by
that party on the basis of its findings of fact and legal rulings (as in judicial settlements).

Mediation is commonly provided for in various multilateral treaties for the peaceful settlement
of disputes. The United Nations and, in particular, the Secretary-General, have often either
recommended or performed mediation or good offices, for example in Cyprus from 1984
onwards. The UN Secretary-General and his counterparts in regional organisations are often
engaged in mediation, such as periodically in the Kashmir dispute between India and Pakistan;
the Cyprus question involving the two governments on Cyprus itself and Greece and Turkey.

13
Boleslaw A. Boczek, International Law: A Dictionary 379 (Scarecrow Press, Dictionaries of International Law,
No. 2, 2005)
14
http://chinesejil.oxfordjournals.org/content/8/2/267.full &
http://www.users.on.net/~roehr/notes/old/International%20Law/SG/law00521to10sg06.pdf, last accessed on
June 25, 2014.

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Another example was the Falkland/Malvinas Islands dispute following the Argentine invasion
in 1982 and before UK forces recaptured possession of the islands.

The Pope or his representative sometimes mediates, and did so successfully in the aftermath of
the Beagle Channel Arbitration between Argentina and Chile, when Argentina refused to
implement the award and armed conflict seemed imminent. Eventually mediation succeeded
and Chile accepted the settlement promoted by the Pope’s representative, under which Chile
gave up its rights in South Atlantic waters around the disputed islands but was confirmed in its
sovereignty over the islands themselves.

CONCILIATION15

The essence of conciliation is the impartial examination of a dispute by a third party, either
appointed ad hoc or a standing conciliation body or panel set up by treaty, with a view to
recommending terms of settlement to the parties. It is not a procedure based on law, and
recommendations do not have to respect parties’ legal rights. The parties are not obliged to
accept the recommendations. Conciliation is often a private procedure, and the report and
recommendations are confidential to the parties. It is a middle ground between inquiry (which
does not produce concrete proposals) and arbitration (which does produce a binding ruling).

Questions of law may well arise in any international dispute, and many conciliation
commissions have included lawyers as well as diplomats and persons with relevant expertise
such as geologists, geographers, fisheries experts and environmental scientists. There are
extensive provisions for conciliation of a range of disputes that may arise under the Law of the
Sea Convention 1982, which is now in force. Mechanisms for conciliation are also established
under The Hague Conventions for the Pacific Settlement of International Disputes 1899 &
1907 and the General Act on the Pacific Settlement of International Disputes 1928.

A fairly recent example of successful resort to conciliation is the Jan Maven Island case in
1981. Title to the island was disputed between Norway and Iceland, the issues being over the
continental shelf and fishing rights. The two states agreed to the establishment of a conciliation
commission that made certain recommendations and the two governments accepted these.
Norway’s title to the island was upheld in the commission’s Report.

15
http://www.users.on.net/~roehr/notes/old/International%20Law/SG/law00521to10sg06.pdf, last accessed
on June 25, 2014.

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ENQUIRY

A device which has proved useful on some occasions is the Commission of Inquiry. This
institution originated in the Hague Conventions of 1899 and 1907. Its specific purpose is to
elucidate the facts behind a dispute in order to facilitate a settlement. It does not involve the
application of rules of law. The purpose of the Commissions of Inquiry is provisional and
political. The device is linked to the idea that the resort to an inquiry provides a cooling off
period and reduces the risk of counter-measures or breaches of the peace. Moreover, the Report
on the facts de facto facilitates the settlement of the dispute. Recent examples of Commissions
of Inquiry concerned the Red Crusader incident between Denmark and the United Kingdom
(1962), and the Letelier and Moffitt case between Chile and the United States (1992)16. By
way of exception in both these cases, the role of the Commission was not confined to findings
of fact and was essentially judicial.

This method attempts to establish the factual basis for a settlement between states, whereby the
states involved voluntarily refer the dispute to a neutral fact finding person or body. Although
there is no legal obligation for the parties to accept the findings of the person/body, this
procedure can be invaluable - there is presently no permanent fact finding machinery set up
under International Law17.

ARBITRATION

Arbitration is the most common ‘judicial’ means of settlement of international disputes.

According to the International Law Commission, international arbitration ‘is a procedure for
the settlement of disputes between States by a binding award on the basis of law and as the
result of an undertaking voluntarily accepted’. Some of the characteristics of Arbitration are as
follows –

➢ it is voluntary;
➢ it is binding on the parties;

16
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-
disputes
17
Id

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 ➢ the parties can agree on what law is to be applied (however, often International Law is
used as most international arbitration is concerned with issues of International Law, but
it does not have to be);
➢ The arbitrator(s), which can be a single person, a number of persons, or a
Commission/Tribunal, is/are chosen by the parties.

The permanent machinery for the establishment of an international arbitration ‘court’ was

founded under the Hague Conventions for the Pacific Settlement of International Disputes 1899
& 1907, but this machinery has only been used 28 times, and only four times since 1945ṅ18.

The terms of arbitration are agreed on in advance either through an ad hoc agreement or a
treaty. The parties agree to the jurisdiction of the arbitrators, the method of selecting the
arbitrators, a definition of the dispute, the procedure to be followed, and sometimes the
applicable law19.

Recent examples of international arbitration are:

✓ the Beagle Channel Arbitration between Chile & Argentina;

✓ the Anglo-French Continental Shelf case;
✓ the Rainbow Warrior case between France and New Zealand (the then UN Secretary-
General was the arbitrator);
✓ the Taba dispute between Israel & Egypt;
✓ Iran-US Claims Tribunal;
✓ the very important Island of Palmas case (Topic 8) - note that this is one area (issues
regarding sovereignty over Territory) where international arbitration has made some
very important contributions to International Law;
✓ the agreement between Libya and the international community to establish a Scottish
court in the Netherlands to try the two Libyan suspects;
✓ International commercial arbitration between a state and an international corporation,
using various arbitration treaties and international arbitration institutions (see the
Redfern & Hunter extract)

18
Supra Note 6

19
Id

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•

It is important to note that parties are not bound to use the particular arbitral formula of Article
33 and are instead able to utilise other procedures if ‘the parties to the dispute otherwise agree’
(Article 33(10)(b)). These other options could include use of the procedures of the Permanent
Court of Arbitration (PCA), which is not a ‘court’ but rather a special mechanism, the primary
purpose of which is to assist states in settling their international controversies.515 The PCA
was established in 1899 under the Hague Convention No 1 for the Pacific Settlement of
International Disputesand is able to provide its services to all arbitration cases submitted to it
by agreement of the parties to a dispute. It has recently updated its procedures to respond to
current international practice and a particularly relevant outcome is the 2001 Optional Rules
for Arbitrating Environmental Disputes which provides more detailed provisions than the
arbitration procedure in the Convention.516 One significant distinguishing factor between the
ICJ and the PCA is that both international organisations and companies can be parties to PC
proceedings under the 2001 Optional whereas only states can be parties to proceedings before
the ICJ.51720

There have been numerous international arbitrations of water disputes since the late 19th
Century, a select list of more recent cases include: the 1941 Trail Smelter Arbitration518 ; the
1947 Lac Lanoux Arbitration between Spain and France 519; the 1968 Gut Dam case between
the United States and Canada520 ; the 1994 Landmark 62-Mount Fitz Roy case between
Argentina and Chile521; the 2004 arbitration between Netherlands and France pursuant to a
nearly 70 year dispute; and the 1976 Convention on the Protection of the Rhine Against
Pollution by Chlorides and the Additional Protocol of 1991522. Most recently, in 2011, the
PCA delivered an Order on Interim Measures regarding the Indus Waters Kishenganga
Arbitration(Pakistan v. India), which is examined in the opposiet column with a specific focus
on the process of dispute resolution.523

UN PROCEDURES21

• The United Nations was founded in October 24, 1945, and had 192 Member States, the
Articles of Association is mainly the "UN Charter", which is to maintain international peace

20
"Ways and means for making the evidence of customary international law more readily
available" (PDF). Report of the International Law Commission, 1950. United Nation
21
http://www.un.org/en/documents/charter/chapter6.shtml, last accessed on June 25, 2014.

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 and in security, the development of friendly relations between countries, promote
international cooperation and coordination of national actions. It has a total of five major
organs: the United Nations General Assembly, Security Council, the Economic and Social
Council, International Court of Justice and the Secretariat, all agencies are to perform their
functions under the provisions of the Charter.
• Chapter VI of the United Nations Charter deals with peaceful settlement of disputes. It
requires countries with disputes that could lead to war to first of all try to seek solutions
through peaceful methods such as "negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice."
• If these methods of alternative dispute resolution fail, then they must refer it to the UN
Security Council. Under Article 35, any country is allowed to bring a dispute to the
attention of the UN Security Council or the General Assembly. This chapter authorizes the
Security Council to issue recommendations but does not give it power to make binding
resolutions; those provisions are contained Chapter VII22.
• Chapter VI is analogous to Articles 13-15 of theCovenant of the League of Nations which
provide for arbitration and for submission of matters to the Council that are not submitted
to arbitration. United Nations Security Council Resolution 47 and United Nations Security
Council Resolution 242 are two examples of Chapter VI resolutions which remain
unimplemented.
• The Settlement of international disputes is one of the most important roles of the United
Nations. The Charter of the United Nations stipulates that it is the task of the United
Nations “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 peace23.”
• To this end, the Charter provides a system for the pacific settlement or adjustment of
international disputes or situations under which the wide competence of the United Nations
in this matter is established, and the corresponding obligations of the members of the United
Nations are imposed. This system is delineated mainly in Chapter VI of the Charter.
• Chapter VI of the Charter contains the United Nations mechanism for the pacific settlement
of disputes. Article 33 obliges the parties to a dispute, the continuance of which is likely

22
History of failed peace talks, BBC, 2007-11-26
23
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-
disput

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 to endanger the maintenance of international peace and security, to settle such a dispute by
any of the enumerated peaceful means therein, or by any peaceful means of their choice.
• When the parties fail to observe their obligations or their efforts are not successful, the
United Nations will intervene to consider the dispute and give its recommendations on the
matters. The Security Council is given the primary responsibility in this regard. It is
entitled to intervene either on its own initiative, upon invitation of any member of the
United Nations, upon invitation by the General Assembly, or upon a complaint of a party
to a dispute24.
• The Security Council may follow three courses of action. First, it may call upon the parties
to a dispute to settle their dispute by any of the peaceful means listed in Article
33(1). Second, it may recommend to the parties appropriate procedures or method of
settlement. Third, it may recommend terms of settlement, as it may consider appropriate.

• Although under the Charter the Security Council is given the primary role for maintaining
international peace and security, the General assembly is not excluded from doing so.

• Under Articles 11, 12 and 14, the General Assembly may discuss and make
recommendations for procedures or methods of adjustment, or for terms of settlement, with
regard to any dispute or situation brought before it. The disputes or situations may be
brought before the General Assembly by the Security Council, any member of the United
Nations, or any State party to such dispute25.

The Charter of United Nations says as under regarding the pacific means of settlement of
international disputes –

Article 33

1. The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.

24
Supra Note 9
25
Köchler, Hans. The Concept of Humanitarian Intervention in the Context of Modern Power, International
Progress Organization, 2001, ISBN 3-900704-20-1, p. 21.

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 2. The Security Council shall, when it deems necessary, call upon the parties to settle their
dispute by such means26.

Article 34

The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the continuance of
the dispute or situation is likely to endanger the maintenance of international peace and
security.

Article 35

1. Any Member of the United Nations may bring any dispute, or any situation of the nature
referred to in Article 34, to the attention of the Security Council or of the General
Assembly.

2. A state which is not a Member of the United Nations may bring to the attention of the
Security Council or of the General Assembly any dispute to which it is a party if it
accepts in advance, for the purposes of the dispute, the obligations of pacific settlement
provided in the present Charter.

3. The proceedings of the General Assembly in respect of matters brought to its attention
under this Article will be subject to the provisions of Articles 11 and 1227.

Article 36

1. The Security Council may, at any stage of a dispute of the nature referred to in Article
33 or of a situation of like nature, recommend appropriate procedures or methods of
adjustment28.

2. The Security Council should take into consideration any procedures for the settlement
of the dispute which have already been adopted by the parties.

26
"Ways and means for making the evidence of customary international law more readily
available"(PDF). Report of the International Law Commission, 1950. United Nations.
27
Id
28
Id

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 3. In making recommendations under this Article the Security Council should also take
into consideration that legal disputes should as a general rule be referred by the parties
to the International Court of Justice in accordance with the provisions of the Statute of
the Court.

Article 37

1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by
the means indicated in that Article, they shall refer it to the Security Council.

2. If the Security Council deems that the continuance of the dispute is in fact likely to
endanger the maintenance of international peace and security, it shall decide whether
to take action under Article 36 or to recommend such terms of settlement as it may
consider appropriate29.

Article 38

Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the
parties to any dispute so request, make recommendations to the parties with a view to a pacific
settlement of the dispute.

1. It has always been a controversial topic that whether the United Nations plays an important
role in international affairs, this essay agrees that the United Nations is indeed an effective
institution, it plays an irreplaceable role in dealing with many international disputes and
settlement of international affairs. However, the United Nations also has its limitations and
shortcomings, which are mainly reflected in the poor settlement of regional disputes and
the inability to stop the war. This essay will firstly introduce the principal organs of the
United Nations in terms of the settlement of disputes. Following this, it will discuss the
limitations and shortcomings of the United Nations in maintaining international peace and
security. Finally, it will look at how the limitations and shortcomings reflected in the
settlement of Iraq War.

29
Supra Note 26

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2. First, the General Assembly and the Secretary-General. The United Nations General
Assembly is composed by all Member States, which is the deliberative organ of the United
Nations, and holding a regular session each year. There must be two-thirds of the UN
General Assembly adopted on "important issues"; for the "general problems", more than
half would be permitted. Generally speaking, resolutions adopted by the Assembly are not
legally binding, and they are more of a political and moral strength. The role of Secretary-
General of the United Nations is reflected more of a third-party intervention in the peaceful
settlement of international disputes.

3. Second, the Security Council. Within the United Nations, Security Council plays an
important political position; it is the only organization which has right to take action for the
maintenance of international peace and security under the Chapter VII of "UN Charter",
and all the United Nations Member States must comply with any resolution made by the
Council in its terms of reference30.

To take the Iraq war for example, after the 1991 Gulf War the United Nations Security
Council passed a total of over 60 resolution, mainly around the Gulf War cease-fire,
liability and compensation for war, destruction of weapons of mass destruction in Iraq,
against terrorism and the request of Iraq on full cooperation with the United Nations
issues. (Bennett, 2008) In the international level, these resolutions made by the Council is
the legal basis for international community to deal with the Iraq issue, which provides
the rights and obligations of Iraq and other members of the United Nations on the issue,
but also decides the position of the United Nations in Iraq's post-war reconstruction. But
overall, the U.S. and British military action against Iraq is the challenge that defies the
United Nations security system, which just exposes the limitations and shortcomings of
the United Nations Security Council in maintaining international peace and security31.

The Limitations And Shortcomings Of UN Reflected In The Iraq Issue

It is not only used to encourage the participating countries of the Hague Peace Conference in
1899 to take peaceful settlement of international disputes in order to prevent the outbreak of
war, but also the "Hague spirit which affects the future development of international law in the
field of peaceful settlement of international disputes. Article 1 of the “UN Chapter” clearly

30
Chapter VII as Exception: Security Council Action and the Regulative Ideal of Emergency, page 56
31
Id

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states: To maintain international peace and security …and 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.” Thus,
"safeguarding world peace and security" is in the first place of the four purposes of United
Nations organizations32.

However, the United States and Britain launched the war on Iraq by passing the Security
Council, which is an act of unilateralism of "the United Nations Charter" and "international
law", and it has become an indisputable fact of disregard of the law. (Pfaff, 2003) It violates
the basic principles of the Charter, including the sovereign equality of Member States; in good
faith to fulfill international obligations; peaceful settlement of international disputes; not to use
force or threat of force against any Member State on the territorial integrity or political
independence; collective assistance; ensure that non- Member States to comply with the
Charter principles and non-interference in internal affairs. It can not cover up the hegemonic
and non-humanitarian reflected in their actions with any excuse. (Sellersed, 1996)

However, the problem is that there is no independent and effective mechanism above the
nations which has the power to conduct certain punishment and coercive measures, even the
United Nations can not do anything. (Michael, 2003) In other words, although the Charter and
international law clearly prohibit such behavior, but they did not provide the legal
consequences for the violation of prohibition; or even if provided, the enforceability of the
resolution is still a very difficult problem. (Thomas, 2001)

Thus, there has been a constant friction and conflict between the major powers unilateralism
and multilateralism established by the United Nations, (Boutros, 2003) the United States so-
called "preemptive" self-defense theory, "human rights overriding sovereignty" principle
began to follow. All these have given a heavy blow to the United Nations security mechanisms,
which is built up painstakingly by all countries in the world. The United Nation’s powerless
on this issue has become an embarrassing situation33.

INTERNATIONAL COURT OF JUSTICE

32
Supra Note 30
33
Id

Page 19 of 31
• The creation of the Court represented the culmination of a long development of methods
for the pacific settlement of international disputes, the origins of which can be traced back
to classical times.

• Article 33 of the United Nations Charter lists the following methods for the pacific
settlement of disputes between States: negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, and resort to regional agencies or arrangements; good
offices should also be added to this list. Among these methods, certain involve appealing
to third parties. For example, mediation places the parties to a dispute in a position in which
they can themselves resolve their dispute thanks to the intervention of a third party.
Arbitration goes further, in the sense that the dispute is submitted to the decision or award
of an impartial third party, so that a binding settlement can be achieved. The same is true
of judicial settlement (the method applied by the International Court of Justice), except that
a court is subject to stricter rules than an arbitral tribunal, particularly in procedural
matters34.

• Mediation and arbitration preceded judicial settlement in history. The former was known
in ancient India and in the Islamic world, whilst numerous examples of the latter are to be
found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in
medieval Europe and in Papal practice.

The origins

• The modern history of international arbitration is, however, generally recognized as dating
from the so-called Jay Treaty of 1794 between the United States of America and Great
Britain35.

• This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed
commissions, composed of American and British nationals in equal numbers, whose task
it would be to settle a number of outstanding questions between the two countries which it
had not been possible to resolve by negotiation. Whilst it is true that these mixed
commissions were not strictly speaking organs of third-party adjudication, they were
intended to function to some extent as tribunals. They reawakened interest in the process

34
"The Court | International Court of Justice". www.icj-cij.org. Retrieved 10 January 2018.
35
"International Court of Justice: UK abandons bid for seat on UN bench". BBC. Retrieved 21 November 2017.

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 of arbitration. Throughout the nineteenth century, the United States and the United
Kingdom had recourse to them, as did other States in Europe and the Americas.

• The Alabama Claims arbitration in 1872 between the United Kingdom and the United
States marked the start of a second, and still more decisive, phase. Under the Treaty of
Washington of 1871, the United States and the United Kingdom agreed to submit to
arbitration claims by the former for alleged breaches of neutrality by the latter during the
American Civil War. The two countries stated certain rules governing the duties of neutral
governments that were to be applied by the tribunal, which they agreed should consist of
five members, to be appointed respectively by the Heads of State of the United States, the
United Kingdom, Brazil, Italy and Switzerland, the last three States not being parties to the
case36. The arbitral tribunal’s award ordered the United Kingdom to pay compensation and
it was duly complied with. The proceedings served as a demonstration of the effectiveness
of arbitration in the settlement of a major dispute and it led during the latter years of the
nineteenth century to developments in various directions, namely:

• sharp growth in the practice of inserting in treaties clauses providing for recourse to
arbitration in the event of a dispute between the parties;

• the conclusion of general treaties of arbitration for the settlement of specified classes
of inter-State disputes;

• efforts to construct a general law of arbitration, so that countries wishing to have

recourse to this means of settling disputes would not be obliged to agree each time on
the procedure to be adopted, the composition of the tribunal, the rules to be followed
and the factors to be taken into consideration in making the award;

• proposals for the creation of a permanent international arbitral tribunal in order to

obviate the need to set up a special ad hoc tribunal to decide each arbitrable dispute37.

The Hague Peace Conferences and the Permanent Court of Arbitration (PCA)

The Hague Peace Conference of 1899, convened at the initiative of the Russian
Czar Nicholas II, marked the beginning of a third phase in the modern history of international
arbitration. The chief object of the Conference, in which — a remarkable innovation for the

36
Posner, E. A., and De Figueiredo, M. F. P. (June 2005). "Is the International Court of Justice
Biased?" (PDF). Journal of Legal Studies. University of Chicago. 34
37
Id

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time — the smaller States of Europe, some Asian States and Mexico also participated, was to
discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement
of International Disputes, which dealt not only with arbitration but also with other methods of
pacific settlement, such as good offices and mediation.

With respect to arbitration, the 1899 Convention made provision for the creation of permanent
machinery which would enable arbitral tribunals to be set up as desired and would facilitate
their work. This institution, known as the Permanent Court of Arbitration, consisted in essence
of a panel of jurists designated by each country acceding to the Convention — each such
country being entitled to designate up to four — from among whom the members of each
arbitral tribunal might be chosen. The Convention further created a permanent Bureau, located
at The Hague, with functions corresponding to those of a court registry or a secretariat, and it
laid down a set of rules of procedure to govern the conduct of arbitrations. It will be seen that
the name “Permanent Court of Arbitration” is not a wholly accurate description of the
machinery set up by the Convention, which represented only a method or device for facilitating
the creation of arbitral tribunals as and when necessary. Nevertheless, the system so established
was permanent and the Convention as it were “institutionalized” the law and practice of
arbitration, placing it on a more definite and more generally accepted footing. The Permanent
Court of Arbitration was established in 1900 and began operating in 190238.

A few years later, in 1907, a second Hague Peace Conference, to which the States of Central
and South America were also invited, revised the Convention and improved the rules governing
arbitral proceedings39. Some participants would have preferred the Conference not to confine
itself to improving the machinery created in 1899. The United States Secretary of State,
Elihu Root, had instructed the United States delegation to work towards the creation of a
permanent tribunal composed of judges who were judicial officers and nothing else, who had
no other occupation, and who would devote their entire time to the trial and decision of
international cases by judicial methods. “These judges”, wrote Secretary Root, “should be so
selected from the different countries that the different systems of law and procedure and the
principal languages shall be fairly represented”. The United States, the United Kingdom and
Germany submitted a joint proposal for a permanent court, but the Conference was unable to

38
J. G. Merrills (2011). International Dispute Settlement. New York: Cambridge University Press. pp. 116–
134. ISBN 978-0521153393.
39
See Charney J "Compromissory Clauses and the Jurisdiction of the International Court of Justice" (1987)
81 American Journal of International Law 855.

Page 22 of 31
reach agreement upon it. It became apparent in the course of the discussions that one of the
major difficulties was that of finding an acceptable way of choosing the judges, none of the
proposals made having managed to command general suppor40t. The Conference confined
itself to recommending that States should adopt a draft convention for the creation of a court
of arbitral justice as soon as agreement was reached “respecting the selection of the judges and
the constitution of the court”. Although this court was never in fact to see the light of day, the
draft convention that was to have given birth to it enshrined certain fundamental ideas that
some years later were to serve as a source of inspiration for the drafting of the Statute of the
Permanent Court of International Justice (PCIJ).

Notwithstanding the fate of these proposals, the Permanent Court of Arbitration, which in 1913
took up residence in the Peace Palace that had been built for it thanks to a gift from
Andrew Carnegie, has made a positive contribution to the development of international law.
Among the classic cases that have been decided through recourse to its machinery, mention
may be made of the Carthage and Manouba cases (1913) concerning the seizure of vessels,
and of the Timor Frontiers (1914) and Sovereignty over the Island of Palmas (1928) cases.
Whilst demonstrating that arbitral tribunals set up by recourse to standing machinery could
decide disputes between States on a basis of law and justice and command respect for their
impartiality, these cases threw into bold relief the shortcomings of the Permanent Court of
Arbitration. Tribunals of differing composition could hardly be expected to develop a
consistent approach to international law to the same extent as a permanently constituted
tribunal. Besides, there was the entirely voluntary character of the machinery. The fact that
States were parties to the 1899 and 1907 Conventions did not oblige them to submit their
disputes to arbitration nor, even if they were minded so to do, were they duty-bound to have
recourse to the Permanent Court of Arbitration nor to follow the rules of procedure laid down
in the Conventions41.

The Permanent Court of Arbitration has recently sought to diversify the services that it can
offer, alongside those contemplated by the Conventions. The International Bureau of the
Permanent Court has inter alia acted as Registry in some important international arbitrations,
including that between Eritrea and Yemen on questions of territorial sovereignty and maritime
delimitation (1998 and 1999), that concerning the delimitation of the boundary between Eritrea

40
Supra Note 38

41
"Provisional measures are indicated in the case of the Frontier Dispute" (PDF)

Page 23 of 31
and Ethiopia (2002), and that between Ireland and the United Kingdom under the
1992 Convention for the Protection of the Marine Environment of the North-East Atlantic
(OSPAR). Moreover, in 1993, the Permanent Court of Arbitration adopted new “Optional
Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in
2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the
Environment”42.

The work of the two Hague Peace Conferences and the ideas they inspired in statesmen and
jurists had some influence on the creation of the Central American Court of Justice, which
operated from 1908 to 1918, as well as on the various plans and proposals submitted between
1911 and 1919 both by national and international bodies and by governments for the
establishment of an international judicial tribunal, which culminated in the creation of the PCIJ
within the framework of the new international system set up after the end of the First World
War.

The Permanent Court of International Justice (PCIJ)

Article 14 of the Covenant of the League of Nations gave the Council of the League
responsibility for formulating plans for the establishment of a Permanent Court of International
Justice (PCIJ), such a court to be competent not only to hear and determine any dispute of an
international character submitted to it by the parties to the dispute, but also to give an advisory
opinion upon any dispute or question referred to it by the Council or by the Assembly. It
remained for the League Council to take the necessary action to give effect to Article 1443. At
its second session early in 1920, the Council appointed an Advisory Committee of Jurists to
submit a report on the establishment of the PCIJ. The committee sat in The Hague, under the
chairmanship of Baron Descamps ( Belgium). In August 1920, a report containing a draft
scheme was submitted to the Council, which, after examining it and making certain
amendments, laid it before the First Assembly of the League of Nations, which opened at
Geneva in November of that year. The Assembly instructed its Third Committee to examine
the question of the Court’s constitution. In December 1920, after an exhaustive study by a
subcommittee, the Committee submitted a revised draft to the Assembly, which unanimously
adopted it. This was the Statute of the PCIJ.

42
Pieter H.F. Bekker (12 December 2003). "The UN General Assembly Requests a World Court Advisory
Opinion On Israel's Separation Barrier". American Society of International Law. Retrieved 21 November 2017.
43
Suh, Il Ro (April 1969). "Voting Behavior of National Judges in International Courts". The American Journal of
International Law. 63 (2): 224–236. doi:10.2307/2197412. JSTOR 2197412.

Page 24 of 31
The Assembly took the view that a vote alone would not be sufficient to establish the PCIJ and
that each State represented in the Assembly would formally have to ratify the Statute. In a
resolution of 13 December 1920, it called upon the Council to submit to the Members of the
League of Nations a protocol adopting the Statute and decided that the Statute should come
into force as soon as the protocol had been ratified by a majority of Member States. The
protocol was opened for signature on 16 December. By the time of the next meeting of the
Assembly, in September 1921, a majority of the Members of the League had signed and ratified
the protocol44. The Statute thus entered into force. It was to be revised only once, in 1929, the
revised version coming into force in 1936. Among other things, the new Statute resolved the
previously insurmountable problem of the election of the members of a permanent international
tribunal by providing that the judges were to be elected concurrently but independently by the
Council and the Assembly of the League, and that it should be borne in mind that those elected
“should represent the main forms of civilization and the principal legal systems of the world”.
Simple as this solution may now seem, in 1920 it was a considerable achievement to have
devised it. The first elections were held on 14 September 1921. Following approaches by the
Netherlands Government in the spring of 1919, it was decided that the PCIJ should have its
permanent seat in the Peace Palace in The Hague, which it would share with the Permanent
Court of Arbitration. It was accordingly in the Peace Palace that on 30 January 1922 the Court’s
preliminary session devoted to the elaboration of the Court’s Rules opened, and it was there
too that its inaugural sitting was held on 15 February 1922, with the Dutch jurist
Bernard C. J. Loder as President.

The PCIJ was thus a working reality. The great advance it represented in the history of
international legal proceedings can be appreciated by considering the following:

• unlike arbitral tribunals, the PCIJ was a permanently constituted body governed by its
own Statute and Rules of Procedure, fixed beforehand and binding on parties having
recourse to the Court;

• it had a permanent Registry which, inter alia, served as a channel of communication

with governments and international bodies;

44
Supra Note 39

Page 25 of 31
 • its proceedings were largely public and provision was made for the publication in due
course of the pleadings, of verbatim records of the sittings and of all documentary
evidence submitted to it;

• the permanent tribunal thus established was now able to set about gradually developing
a constant practice and maintaining a certain continuity in its decisions, thereby
enabling it to make a greater contribution to the development of international law;

• in principle the PCIJ was accessible to all States for the judicial settlement of their
international disputes and they were able to declare beforehand that for certain classes
of legal disputes they recognized the Court’s jurisdiction as compulsory in relation to
other States accepting the same obligation. This system of optional acceptance of the
jurisdiction of the Court was the most that it was then possible to obtain45;

• the PCIJ was empowered to give advisory opinions upon any dispute or question
referred to it by the League of Nations Council or Assembly;

• the Court’s Statute specifically listed the sources of law it was to apply in deciding
contentious cases and giving advisory opinions, without prejudice to the power of the
Court to decide a case ex aequo et bono if the parties so agreed46;

• it was more representative of the international community and of the major legal
systems of the world than any other international tribunal had ever been before it.

Although the Permanent Court of International Justice was brought into being through, and by,
the League of Nations, it was nevertheless not a part of the League. There was a close
association between the two bodies, which found expression inter alia in the fact that the
League Council and Assembly periodically elected the Members of the Court and that both
Council and Assembly were entitled to seek advisory opinions from the Court, but the latter
never formed an integral part of the League, just as the Statute never formed part of the
Covenant. In particular, a Member State of the League of Nations was not by this fact alone
automatically a party to the Court’s Statute.

Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between States and delivered
27 advisory opinions. At the same time several hundred treaties, conventions and declarations

45
""World Court: Completing the Circle" Time, 28 November 1960". Time. 28 November 1960. Retrieved 4
November2011.
46
Id

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conferred jurisdiction upon it over specified classes of disputes. Any doubts that might thus
have existed as to whether a permanent international judicial tribunal could function in a
practical and effective manner were thus dispelled. The Court’s value to the international
community was demonstrated in a number of different ways, in the first place by the
development of a true judicial technique. This found expression in the Rules of Court, which
the PCIJ originally drew up in 1922 and subsequently revised on three occasions, in 1926, 1931
and 193647. There was also the PCIJ’s Resolution concerning the Judicial Practice of the Court,
adopted in 1931 and revised in 1936, which laid down the internal procedure to be applied
during the Court’s deliberations on each case. In addition, whilst helping to resolve some
serious international disputes, many of them consequences of the First World War, the
decisions of the PCIJ at the same time often clarified previously unclear areas of international
law or contributed to its development.

For more information on the Permanent Court of International Justice, please see the
"PCIJ" pages on our website.

The International Court of Justice (ICJ)

The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ,
which had already for some years known a period of diminished activity. After its last public
sitting on 4 December 1939, the Permanent Court of International Justice did not in fact deal
with any judicial business and no further elections of judges were held. In 1940 the Court
removed to Geneva, a single judge remaining at The Hague, together with a few Registry
officials of Dutch nationality. It was inevitable that even under the stress of the war some
thought should be given to the future of the Court, as well as to the creation of a new
international political orde48r.

In 1942 the United States Secretary of State and the Foreign Secretary of the United Kingdom
declared themselves in favour of the establishment or re-establishment of an international court
after the war, and the Inter-American Juridical Committee recommended the extension of the
PCIJ’s jurisdiction. Early in 1943, the United Kingdom Government took the initiative of
inviting a number of experts to London to constitute an informal Inter-Allied Committee to
examine the matter. This Committee, under the chairmanship of Sir William Malkin ( United

47
William, Samore, (1956). "National Origins v. Impartial Decisions: A Study of World Court Holdings". Chicago-
Kent Law Review. 34 (3): 193–222. ISSN 0009-3599. Retrieved 6 June 2016.
48
Supra Note 38

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Kingdom), held 19 meetings, which were attended by jurists from 11 countries. In its report,
which was published on 10 February 1944, it recommended49:

• that the Statute of any new international court should be based on that of the Permanent
Court of International Justice;

• that advisory jurisdiction should be retained in the case of the new Court;

• that acceptance of the jurisdiction of the new Court should not be compulsory;

• that the Court should have no jurisdiction to deal with essentially political matters.

Meanwhile, on 30 October 1943, following a conference between China, the USSR, the United
Kingdom and the United States, a joint declaration was issued recognizing the necessity “of
establishing at the earliest practicable date a general international organization, based on the
principle of the sovereign equality of all peace-loving States, and open to membership by all
such States, large and small, for the maintenance of international peace and security”.

This declaration led to exchanges between the Four Powers at Dumbarton Oaks, resulting in
the publication on 9 October 1944 of proposals for the establishment of a general international
organization, to include an international court of justice. The next step was the convening of a
meeting in Washington, in April 1945, of a committee of jurists representing 44 States50. This
Committee, under the chairmanship of G. H. Hackworth ( United States), was entrusted with
the preparation of a draft Statute for the future international court of justice, for submission to
the San Francisco Conference, which during the months of April to June 1945 was to draw up
the United Nations Charter. The draft Statute prepared by the Committee was based on the
Statute of the PCIJ and was thus not a completely fresh text. The Committee nevertheless felt
constrained to leave a number of questions open which it felt should be decided by the
Conference: should a new court be created? In what form should the court’s mission as the
principal judicial organ of the United Nations be stated? Should the court’s jurisdiction be
compulsory, and, if so, to what extent? How should the judges be elected? The final decisions
on these points, and on the definitive form of the Statute, were taken at the San Francisco
Conference, in which 50 States participated51. The Conference decided against compulsory
jurisdiction and in favour of the creation of an entirely new court, which would be a principal

49
Supra Note 39
50
Supra Note 42
51
"Interim Accord" (PDF). 13 September 1995. Archived from the original (PDF) on 25 March 2009.

Page 28 of 31
organ of the United Nations, on the same footing as the General Assembly, the Security
Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and
with the Statute annexed to and forming part of the Charter. The chief reasons that led the
Conference to decide to create a new court were the following:

• as the court was to be the principal judicial organ of the United Nations, it was felt
inappropriate for this role to be filled by the Permanent Court of International Justice,
which had up until then been linked to the League of Nations, then on the point of
dissolution;

• the creation of a new court was more consistent with the provision in the Charter that
all Member States of the United Nations would ipso facto be parties to the court’s
Statute;

• several States that were parties to the Statute of the PCIJ were not represented at the
San Francisco Conference, and, conversely, several States represented at the
Conference were not parties to the Statute;

• there was a feeling in some quarters that the PCIJ formed part of an older order, in
which European States had dominated the political and legal affairs of the international
community, and that the creation of a new court would make it easier for States outside
Europe to play a more influential role. This has in fact happened as the membership of
the United Nations grew from 51 in 1945 to 192 in 200652.

The San Francisco Conference nevertheless showed some concern that all continuity with the
past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on
the basis of past experience, and it was felt better not to change something that had seemed to
work well. The Charter therefore plainly stated that the Statute of the International Court of
Justice was based upon that of the PCIJ. At the same time, the necessary steps were taken for
a transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of
Justice. In any event, the decision to create a new court necessarily involved the dissolution of
its predecessor. The PCIJ met for the last time in October 1945 when it was decided to take all
appropriate measures to ensure the transfer of its archives and effects to the new International
Court of Justice, which, like its predecessor, was to have its seat in the Peace Palace. The judges

52
"The Court finds that Greece, by objecting to the admission of the former Yugoslav Republic of Macedonia to
NATO, has breached its obligation under Article 11, paragraph 1, of the Interim Accord of 13 September
1995" (PDF). The International Court of Justice. 5 December 2011. Retrieved 2014-02-02.

Page 29 of 31
of the PCIJ all resigned on 31 January 1946, and the election of the first Members of the
International Court of Justice took place on 6 February 1946, at the First Session of the United
Nations General Assembly and Security Council. In April 1946, the PCIJ was formally
dissolved, and the International Court of Justice, meeting for the first time, elected as its
President Judge José Gustavo Guerrero ( El Salvador), the last President of the PCIJ. The Court
appointed the members of its Registry (largely from among former officials of the PCIJ) and
held an inaugural public sitting, on the 18th of that month. The first case was submitted in
May 1947. It concerned incidents in the Corfu Channel and was brought by the United
Kingdom against Albania.53

53
"Provisional measures are indicated in the case of the Frontier Dispute" (PDF).

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CONCLUSION

In coming to my conclusion, I shall look at the more problematical aspects of the process of
adjudication, whether in the International Court or in courts of arbitration. The special
attraction of adjudication is that it is definitive and removes a source of political antagonism
and tension between the parties. The alternative is either negotiation, which involves the
responsible officials in making compromises, or inaction. In any event, adjudication has certain
inherent limitations. In the first place, the International Court is to a great extent dependent
upon the parties when it comes to matters of fact and the Court is reluctant to ask questions of
the parties. And there is no appeal. Second, the International Court sometimes operates in legal
fields on the margins of normal areas of justiciable issues.

By way of conclusion, it is convenient to present a series of propositions:

• First, the system of peaceful settlement of inter-State disputes is a significant part of

the universe of international relations.

• Second, the modalities are very varied and adjudication is simply one instrument
forming part of an entire orchestra of modes of peaceful settlement.

• Third, in relation to settlement on the basis of law, the practice of arbitration is as

significant as the work of standing tribunals, such as the International Court.

• Fourth, the system we have is not attuned to the settlement of purely political disputes.

• Fifth, the International Court has a successful record of the settlement of disputes
concerning territory and delimitation, including maritime delimitation.

• And lastly, resort to both the International Court and to ad hoc arbitration constitutes
the general practice of all regions.

The general outcome is ironical, to say the least. In the era of decolonization, in the 1960s,
western pundits expressed portentous concerns about the aptitude of the new States to
participate in what was seen as a western system of international law and dispute settlement.
These concerns were both condescending and unfounded.

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