INTERNATIONAL LAW

PEACEFUL SETTLEMENT OF DISPUTES:

 Disputes between states arising from claims and counter-claims concerning a matter of
fact, law and policy are an inevitable part of international relations and have frequently
led to armed conflict.
 It is the linchpin upon which the operation of all the other principles and rules rests,
including the central area of state responsibility.
 the idea of peaceful settlement of disputes developed in international law during its
‘classical’ period, while there was no general prohibition on the use of force.
 The UN Charter2 prohibits the use of force in Article 2(4) (with certain exceptions, to be
discussed below in Chapter 193) and requires all member states to ‘settle their
international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered’ (Article 2(3)).
 there is no agreement on the meaning of the term ‘international dispute’.
 ‘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’ (Article 1(1)).
 Chapter VI of the UN Charter is completely devoted to this purpose, but, as stated in
Article 33(1), it is limited to certain types of disputes, namely those ‘the continuance of
which is likely to endanger the maintenance of international peace and security’.
(negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their choice.)
 Diplomatic means, legal means, through international organizations.
 Diplomatic Means: negotiation (no third party), good offices, mediation, enquiry and
conciliation – no legally binding effect.
 Legal means are arbitration and adjudication leading to a legally binding third party
decision.
 The 1899 Hague Convention for the Pacific Settlement of International Disputes was
revised by the Second Hague Peace Conference in 1907, and by 1996 eighty-two states
were still bound by the 1899 or 1907 Convention.
 there are also a number of regional instruments, including the 1948 American Treaty on
Pacific Settlement (Bogotá Pact),10 the 1957 European Convention for the Peaceful
Settlement of Disputes.
 The 1972 Outer Space Liability Convention was in a way typical of a new form of
compromissory clause acceptable to states. The claims commission it provides for is only
a conciliation body unless the parties agree to accept its decision as a binding award.
 But even if states agree to a particular dispute settlement mechanism, this does not
necessarily mean that they will actually use it in a given case or abide by a third party
decision (although once they decide to accept the jurisdiction of a tribunal in a concrete
 case they usually do) and international law knows no effective general method to enforce
the decisions of international courts and tribunals,20 as is possible in the case of domestic
courts in national legal systems.

DIPLOMATIC METHODS:

 NEGOTIATION:
 A duty of states to enter into negotiations may be implied from the general
obligation of states to settle their disputes peacefully according to Article 2(3) of
the UN Charter and from the duty listed in the Friendly Relations Declaration of
1970 to select such ‘means as may be appropriate to the circumstances and the
nature of the dispute’.
 But negotiation is not always a good method of settling international disputes.
Neutral third parties seldom take part in negotiations, and this means that there is
no impartial machinery for resolving disputed questions of fact. It also means that
there is little to restrain a disputing state from putting forward extreme claims,
especially where its bargaining power is very strong. States can also deny that a
dispute exists and often demand that certain preconditions are fulfilled before
entering into negotiations.
 Dispute settlement clauses in treaties often provide for negotiation only as the first
step of a dispute settlement procedure and allow for the submission of the quarrel
to other means of peaceful settlement.
 GOOD OFFICES and MEDIATION:
 Sometimes third states, or international organizations, or often even an eminent
individual, may try to help the disputing states to reach agreement. Such help can
take two forms: good offices and mediation.
 A third party (as a ‘go-between’) is said to offer its good offices when it tries to
persuade disputing states to enter into negotiations; it passes messages and
suggestions back and forth and when the negotiations start, its functions are at an
end. Switzerland, with its ‘permanent neutrality’,27 for example, has often acted
as a protecting power in times of war or peace, such as representing the United
States in Cuba.
 a mediator, on the other hand, is more active and actually takes part in the
negotiations and may even suggest terms of settlement to the disputing states
(which is often seen as a characteristic of conciliation). Obviously a mediator has
to enjoy the confidence of both sides, and it is often difficult to find a mediator
who fulfils this requirement. (BEAGLE CHANNEL AWARD.) Mediation thus
takes the form of flexible negotiations with the participation of a third party. A
mediator can also provide financial support and other valuable assistance in the
performance of the solution agreed upon.
 Third-party involvement in the settlement of international disputes has also
frequently failed due to the lack of sufficient influence of the third party.
 Mediation has most chances in the settlement of smaller issues or local conflicts.
 INQUIRY:
 Many international disputes turn solely on disputed questions of fact, and an
impartial inquiry is a good way of reducing the tension and the area of
disagreement between the parties. After some negotiations, disputing states may
sometimes agree to appoint an impartial body (mostly ad hoc, but sometimes also
consisting of a permanent body established in advance by agreement for certain
kinds of disputes) to carry out an inquiry; the object of the inquiry is to produce
an impartial finding of disputed facts, and thus to prepare the way for a negotiated
settlement. The parties are not obliged to accept the findings of the inquiry, but
almost always do accept them.
 The 1907 Hague Convention, for example, describes the task of a commission of
inquiry as ‘to facilitate a solution…by means of an impartial and conscientious
investigation’ (Article 9) and limits its report ‘to a statement of facts’ which ‘has
in no way the character of an award’ (Article 35).
 DOGGER BANK INCIDENT.

 CONCILIATION:
 A method for the settlement of international disputes of any nature
according to which a Commission set up by the Parties, either on a
permanent basis or an ad hoc basis to deal with a dispute, proceeds to the
impartial examination of the dispute and attempts to define the terms of a
settlement susceptible of being accepted by them or of affording the
Parties, with a view to its settlement, such aid as they may have
requested.
 Although some conciliation treaties were also accepted by the Soviet Union, the
only global instrument providing for compulsory conciliation (and adjudication
and arbitration) was the 1928 General Act for the Pacific Settlement of
International Disputes. But it received only a few ratifications.
 In conciliation proceedings between states, third parties cannot take the initiative
on their own. Conciliators can be appointed on the basis of their official function,
for example heads of state or the UN Secretary-General, or as individuals in their
personal capacity. The general practice in establishing commissions is that the
parties to the dispute nominate one or two of their own nationals and agree on a
certain number of impartial and independent nationals of other states in order to
provide a neutral majority.
 Conciliation is also sometimes described as a combination of inquiry and
mediation. The conciliator, who is appointed by agreement between the parties,
investigates the facts of the dispute and suggests the terms of a settlement. But
conciliation is more formal and less flexible than mediation; if a mediator’s
proposals are not accepted, he can go on formulating new proposals, whereas a
conciliator usually only issues a single report.
 The parties are not obliged to accept the conciliator’s terms of settlement (they are
only recommendations); but, apart from that, conciliation often resembles
arbitration.
  Often the procedures are kept highly flexible in the interest of being able to deal
with the specific nature of a dispute.

LEGAL METHODS:

 ICJ:
 The ICJ and its predecessor the Permanent Court of International Justice (PCIJ)
are often referred to together as ‘the World Court’.
 The constituent treaty (or ‘Statute’) of the PCIJ was signed in 1920 and came into
force in 1921. The judges of the Court were not chosen by the parties to each
dispute, but were elected by the League of Nations.
 Its Statute, which closely resembles the Statute of the PCIJ, is annexed to the
United Nations Charter, so that all members of the United Nations are
automatically parties to the Statute. The two states which are currently not
members of the UN but are parties to the Statute of the Court are Switzerland and
Nauru.
 The Court has a double function: first, to settle legal disputes submitted to it by
states in accordance with international law, and secondly, to give advisory
opinions on legal questions referred to it by international organs and agencies
duly authorized to do so.
 COMPOSITION:
 The Court consists of fifteen judges; five are elected every three years to
hold office for nine years. The election procedure is complicated, but can
be summed up by saying that election requires an absolute majority of
votes in both the Security Council and the General Assembly sitting
independently of each other. The recent practice has been to select four
judges from West European states, one from the United States, two from
South America, two from East European states and six from Africa and
Asia. It should be noted that the five permanent members of the Security
Council are always represented by a judge in the Court. If a state
appearing before the Court does not have a judge of its own nationality at
the Court, it may appoint an ad hoc judge for the particular case.
 JURISDICTION:
 Only states may be parties in contentious proceedings before the Court.
 Jurisdiction in contentious proceedings is dependent on the consent of
states.
 Article 36(1) of the Statute provides: The jurisdiction of the Court
comprises all cases which the parties refer to it and all matters
specially provided for in the Charter of the United Nations or in
treaties and conventions in force.
 The Court has held that a defendant state may accept the jurisdiction of the
Court after proceedings have been instituted against it; such acceptance
may take the form of an express statement, or it can be implied if the
 defendant state defends the case on the merits without challenging the
jurisdiction of the Court.
 Article 36(3) of the Charter, dealing with the peaceful settlement of
disputes, empowers the Security Council to recommend that the parties to
a legal dispute should refer it to the Court.
 Article 36(3) of the Charter, dealing with the peaceful settlement of
disputes, empowers the Security Council to recommend that the parties to
a legal dispute should refer it to the Court.
 States which accept the jurisdiction of the Court under the optional clause
do so, according to paragraph 2, only ‘in relation to any other state
accepting the same obligation’ – principle of reciprocity.
 PROCEDURE:
 As laid down in its Statute and its Rules of Court, adopted in 1978, the
procedure of the Court in contentious cases includes a written phase, in
which the parties file and exchange pleadings, and an oral phase of public
hearings at which the Court is addressed by agents and counsel of the
parties.
 English and French are the two official languages and everything written
or said in one is translated into the other.
 Following the oral hearings, the Court deliberates in private and then
delivers its judgment at a public sitting. The judgment is final and there is
no appeal.
 Preliminary objections before hearing: jurisdiction etc.
 AD HOC CHAMBERS:
 A new development since the ICJ changed its procedural Rules of Court in
1978 to try to ‘attract more business’ has been the use of ad hoc chambers
under Article 26(2) of the Statute.114 While normally the Court decides in
its full composition of fifteen judges (sometimes sixteen or seventeen
judges, if ad hoc judges are appointed by the parties), the use of chambers
gives the parties influence as regards the number of judges to decide a
case (Article 17(2) of the Rules of Court) and as regards the composition
of the chamber.
 This enables them to have more confidence in the proceedings and their
final outcome than submitting to the uncertainties of the full Court.
 ENFORCEMENT:
 Judgments of the Court are binding (as are the judgments of all
international courts and arbitral tribunals).123 Article 94 of the United
Nations Charter authorizes the Security Council to ‘make
recommendations or decide upon measures to be taken to give effect to the
judgment’, although these powers have not yet been used to enforce a
judgment.
 UNSC: under Chapter VI of the Charter, dealing with the settlement of
disputes, and not the stronger measures under Chapter VII which require
an immediate threat to the peace before sanctions can be adopted.
 Advisory Opinions:
  In addition to its power to decide disputes between states (contentious
jurisdiction), the Court also has a power to give advisory opinions
(advisory jurisdiction).127 Article 96 of the United Nations Charter
provides: The General Assembly or the Security Council may
request the International Court of Justice to give an advisory
opinion on any legal question. Other organs of the United Nations
and specialized agencies, which may at any time be so authorized
by the General Assembly, may also request advisory opinions of
the Court on legal questions arising within the scope of their
activities.
 The advisory procedure of the Court is not open to states, but only to
international organizations. At present, six organs of the United Nations
and sixteen specialized agencies129 are authorized to request advisory
opinions of the Court.
 Unlike judgments, advisory opinions are only consultative and not binding
as such on the requesting bodies.

 If one counts everything together, from 1946 to 1990 the Court rendered fifty-two
judgments in contentious cases, sixty substantive orders and twenty-one advisory
opinions, which makes about three decisions on average per year.

 ARBITRATION:
 Arbitration is much more flexible than adjudication and gives the parties more
choices as regards the seat of the tribunal, the appointment and selection of
arbitrators and their qualifications, the procedure to be applied and regulating the
power of the tribunal through formulating its terms of reference (the so-called
compromis.)
 A further advantage is that arbitration proceedings can be kept confidential; there
is then no ‘washing of dirty linen in public’. The differences between arbitration
and judicial settlement, however, are being blurred on the international level, as
can be seen from the Chamber proceedings introduced at the International Court
of Justice.
 A frequent pattern in arbitration treaties171 is for each of the two parties to
appoint an arbitrator; the two arbitrators thus appointed agree on the choice of the
third arbitrator (or umpire); the arbitral tribunal consequently consists of three (or
more) persons, who can decide by majority vote. Of course, the parties can also
decide to refer the dispute to a single arbitrator, including to a foreign head of
state or government (a practice which is now rare).
 The Permanent Court of Arbitration (PCA), which was set up by the Hague
Convention for the Pacific Settlement of International Disputes in 1899,175
sponsored only twenty arbitrations between 1900 and 1932; since then it has been
overshadowed by the Permanent Court of International Justice (PCIJ) and the
International Court of Justice (ICJ), and has heard very few cases. The name of
this ‘Court’ is misleading. Each state party to the Convention176 may nominate
 four persons to serve on a panel of arbitrators, and disputing states may select
arbitrators from this panel in the traditional way. In reality, therefore, the 1899
Convention did not create a court; it merely created the machinery for setting up
arbitral tribunals. Also the composition of the ‘Court’ varies so much from case to
case that it cannot develop any coherent case law.

Settlement by the UN:

 PACIFIC SETTLEMENT OF DISPUTES (CHAPTER VI):

 Article 1(1) of the United Nations Charter states that it is one of the purposes 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
peace.
 Article 2(3) obliges member states to settle their disputes by peaceful means
in such a manner that international peace and security, and justice, are
not endangered.
 The two most important political organs of the United Nations for the peaceful
settlement of disputes are the Security Council and the General Assembly.
 A dispute may be brought before the Security Council:
 by a member of the United Nations, whether or not it is a party to the
dispute;
 by a state which is not a member of the United Nations, provided that it is
a party to the dispute and ‘accepts in advance, for the purposes of the
dispute, the obligations of pacific settlement provided in the…Charter’;
 by the General Assembly, which ‘may call the attention of the Security
Council to situations which are likely to endanger international peace and
security’;
 by the Secretary-General, who ‘may bring to the attention of the Security
Council any matter which in his opinion may threaten the maintenance of
international peace and security’.
 However, a state, the General Assembly, or the Secretary-General can only
request the Security Council to consider a dispute; it is for the Security Council to
decide whether to accede to that request by placing the dispute on its agenda.
 Chapter VI empowers the Security Council to make various types of
recommendations for the peaceful settlement of disputes; the Security Council
also has certain powers of investigation.
 According to the letter of the Charter, the circumstances in which the Security
Council may recommend terms of settlement are different from the circumstances
in which it may recommend procedures for settlement; but the circumstances in
question are defined in very imprecise terms. In practice, the Security Council
usually disregards these complexities and makes all sorts of recommendations,
without citing any articles of the Charter, and without bothering about the
tortuous and imprecise distinctions made in Chapter VI.
 Recommendations made by the Security Council under Chapter VI therefore do
not generally create legal obligations,13 although they often exercise great
political influence.
 The Council has authority to pass binding decisions only under Chapter VII.
 The General Assembly may also deal with disputes under Articles 10, 11(2), 12
and 14 of the Charter. The General Assembly may make recommendations and
appoint fact-finding missions; states are under no legal obligation to comply with
such recommendations or to cooperate with fact-finding missions,18 although
General Assembly recommendations often exercise great political influence.
 But the Security Council and the General Assembly are not, and were never
intended to be, judicial bodies. Although they take legal factors into account, they
also take political factors into account, and political considerations often
overshadow legal considerations in their deliberations.
 The functions of the Security Council and the General Assembly in connection
with the settlement of disputes represent a mixture of good offices, mediation,
inquiry and conciliation.
 Experience has shown that if a dispute between two members of the same alliance
is brought to the United Nations, enemies of the alliance may try to aggravate the
dispute (instead of encouraging the parties to settle it), in the hope of disrupting
the alliance. In view of these factors, the absence of a power to take binding
decisions should be regarded as a necessary safeguard for member states, and not
as a defect in the system.
 Normally states take disputes to the United Nations in order to put political
pressure on their opponents, by mobilizing world opinion against them.
Sometimes, however, recourse to the United Nations may serve another purpose;
a state which is under pressure from its own domestic opinion to take a ‘strong
line’ against another state may try to satisfy domestic opinion by making fierce
speeches at the United Nations, as a substitute for action of a more damaging
character.