Peaceful Settlement of Disputes

Disputes
• A dispute is a disagreement about something fairly specific. An
international dispute is a disagreement, typically (but not exclusively)
between states with consequences on the international plane.
• Contrast with complex situations e.g. Arab-Israeli problems which are
too complex to be classified merely as a ‘dispute’ (it contains many
disputes!)
• NB - States are under no obligation to resolve disputes!
• Denmark & Canada over Hans Ø
• BUT…. They do have to use peaceful means to settle those disputes
they choose to resolve!
UN Principles – Art 2, UN Charter
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership,
shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
4. 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.
….
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter Vll.
 United Nations Charter, Chapter VI:
Pacific Settlement of Disputes
• Article 2(3) specifies an obligation of states to settle disputes
peacefully:
• All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.

• Peaceful settlement of disputes: Chapter VI of the UN Charter

Chapter VI of the UN Charter
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.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means.
Non-Adjudicatory (Diplomatic)
means of settling disputes
Negotiation
• States negotiate between themselves to find a suitable solution (or at least
contain and/or manage the dispute).
• Preferred (& most widely used) method of dealing with international
disputes
• May also be required under the terms of a treaty or general international
law e.g. ICJ, North Sea Continental Shelf case
• NB - duty to negotiate ≠ duty to agree!
• Requires a genuine attempt by at least one of the parties to engage in
discussions with the other with a view to resolving the dispute. ICJ, Georgia
v Russia
• Should be viewed as not only its own mechanism, but existing alongside
the others as well incl. court cases (twin-track).
• Not always effective: e.g. parties refuse to speak to each other; positions
too far apart; equitable solution not possible because of massive power
imbalance; etc.
 Mediation & Good Offices
• Involves a third party – usually someone deemed neutral and trustworthy by the
parties.
• Where the support is passive e.g. facilitating communications, encouraging the
participants to resume direct negotiations, it is called ‘good offices’.
• In Mediation the third party is an active participant. E.g. suggesting new ideas,
interpreting and transmitting each party’s proposals to the other, reminding parties
of their real objectives, reframing and encouraging rethinking, finding suitable
compromises etc
• No specific rules on procedure – mediator can choose
• A powerful mediator may also be able to facilitate agreement by offering
inducements to agree or indicating that failure will prove costly
• Requires consent by both parties, and a willing mediator!
• Examples: UN Secretary General & regional counterparts, organisations like the ICRC,
states or individuals.
• May also be an entity like the ECtHR (although they are subject to certain external limitations
e.g. ‘on the basis of human rights’)
Commissions of Inquiry & Fact-Finding Missions
• When state’s disagree about the facts surrounding the dispute they
can appoint a impartial commission of inquiry or a fact-finding
mission.
• Can also be established by an international organisation or
supervisory organ e.g. UN Human Rights Council
• Useful for air or maritime incidents
• Examples: Dogger Bank incident (1904), Red Crusader Incident
(1961); Malaysian Air crash over Ukraine (2014);
Conciliation
• Conciliation involves a third-party investigation of the basis of the
dispute and the submission of a report containing suggestions for a
settlement. Thus involves elements of both inquiry and mediation
• Normally (although not always) done by a commission containing
several members.
• Report is non-binding c.f. arbitration award, avoids fault finding, just
offers a possible solution.
• Set out as a means of dispute resolution in a number of multilateral
treaties e.g. VCLT, UNCLOS
• Examples: Iceland & Norway – boundaries of the continental shelf
(1981); maritime boundary between Australia & Timor Leste (2018)
 Mechanisms for dispute settlements:
adjudicatory and non-adjudicatory
Non-adjudicatory dispute Adjudicatory
settlement • International Court of Justice (ICJ)
• Negotiation • Permanent Court of Arbitration (PCA)
• Good offices
• Mediation International Criminal Law
• Inquiries/ fact-finding missions • International Criminal Court (ICC)
• Conciliation • Courts and tribunals with specialised
mandate
• International Criminal Tribunal for former
Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda
(ICTR)
The Role of the United Nations
• The Security Council, General Assembly and UN Secretary General all
have roles to play in the peaceful settlement of disputes
• The Security Council has the ‘primary responsibility for the
maintenance of international peace and security’ (Art 24, UN Charter)

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.
2. The Security Council shall, when it deems necessary, call upon the parties to
settle their dispute by such means.
Chapter VI of the UN Charter
• 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
• 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.
• 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.
• 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 12.
13
Chapter VI of the UN Charter
• Article 36
• 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 adjustment.
• The Security Council should take into consideration any procedures for the settlement of the
dispute which have already been adopted by the parties.
• 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
• 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.
• 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 appropriate.
• 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.
General Assembly & UNSG
• General Assembly can make recommendations as well (Art 14).
• Non-binding (c.f. certain security council resolutions (see Module 3!)
• NB - GA cannot recommend where the UNSC is exercising its functions (Art 12)
• UN Secretary General
• provision of good offices
• can also bring any matter to the attention of the UNSC which ‘in his opinion
may threaten the maintenance of international peace and security’. (Art 99)
Adjudicatory/Judicial dispute
settlement
 Mechanisms for dispute settlements:
adjudicatory and non-adjudicatory
Non-adjudicatory dispute Adjudicatory
settlement • International Court of Justice (ICJ)
• Negotiation • Permanent Court of Arbitration (PCA)
• Good offices • other arbitral tribunals…
• Mediation
• Inquiries/ fact-finding missions
• Conciliation International Criminal Law
• International Criminal Court (ICC)
• Courts and tribunals with specialised
mandate
• International Criminal Tribunal for former
Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda
(ICTR)
Arbitration
• Arbitration: the settlement of differences between states by judges of
their own choice and on the basis of respect for law
• Based on consent of the parties
• Can be provided for in a general dispute settlement treaty
• Or a specific treaty may require it to be used e.g. UNCLOS
• Compris – ad hoc consent re a particular dispute after it has occured
• Parties create their own arbitral tribunal (whether that is an individual
arbitrator or a panel) and largely maintain control over the process
• Can appoint experts other than legally qualified e.g. scientists
• Can apply other (non legally-binding) rules
• Procedure can be easily changed by the parties (although there are draft rule if
wanted)
• Decisions can be confidential
• Final Awards are final and binding on the parties
Permanent Court of Arbitration (PCA)
• Long history of practice that led to the establishment of the PCIJ (predecessor of ICJ),
which led to …
• PCA established by treaty after the First Hague Peace Conference in 1899
• Intergovernmental organization providing a variety of dispute resolution services
• Functions are governed by The PCA Arbitration Rules 2012 (relating to disputes
involving at least one State, State-controlled entity, or intergovernmental
organization) (See: https://docs.pca-cpa.org/2015/11/PCA-Arbitration-Rules-2012.pdf )
• Not just about Arbitration – PCA can also support Mediation and conciliation and
other forms of peaceful dispute resolution
• Admin support to fact-finding/ Commissions of Inquiry
• Guest tribunals: makes its facilities available upon request to tribunals
(see more on the function of PCA here: https://pca-cpa.org/en/home/ )
Arbitration (…cont)
• Mixed arbitration: Between a state on one side and a individual or
corporate entity in the other
• Examples: Iran-USA Claims tribunal; investment arbitration
• PCA provides administrative support in international arbitrations
involving various combinations of states, state entities, international
organizations and private parties
The International Court of Justice (ICJ)
• Established through the UN Charter in 1945
• One of the principal organs of the United Nations, and independent from other organs
(e.g. UNSC)
• General jurisdiction - but no obligatory jurisdiction – must be by consent
• States can consent to ICJ jurisdiction through:
• Agreeing with another party to bring a particular matter before the ICJ (compromis)
• a Declaration (art 36(2) ICJ Statute)
• Becoming party to a specific agreement or a general agreement that specifies the ICJ
as the dispute resolution method e.g. Torture Convention
• Consent after case been filed with Court by another state (forum prorogatum)
• Composed of 15 judges appointed by the Security Council and the General Assembly (for
9 year terms)
• P5 (SC) elect one each: remaining 10 elected based on geographical/ political
representation (ad hoc judges may also be appointed for specific cases)
The jurisdiction of the ICJ
• The Court’s provides judgements on cases submitted to it. It can hear both
contentious cases and issue advisory opinions.
Contentious Cases
• Legal disputes between States in relation to international law
• Distinction between state access to the Court, and the Court’s jurisdiction
over a matter
• Only member states have access to the Court (incl. all UN Member States)
• Access also possible for non-state parties (art 35(2))
• Cannot exercise jurisdiction over cases where it involves the rights and
obligations of a third party state who has not consented (Monetary Gold
principle)
• Can issue provisional measures in order to preserve the rights of the
parties e.g. Ukraine v Russia, March 2022
• Judgement of the ICJ is final (i.e. no appeal) and binding on the parties (but
not on others)
The jurisdiction of the ICJ (…cont)
Advisory opinions:
• Gives advice on legal questions at the request of the Security Council,
the General Assembly, or specialized agencies or one related
organization authorized by the GA
• Has to be within the ‘scope of activities’ of the requesting organ c.f.
ICJ declined jurisdiction to WHO in the Nuclear weapons AO, but
UNGA allowed.
• Advisory opinions are advice …. Not binding (even when they touch
on the legal rights and obligations of states) & do not require consent
Examples of ICJ decisions and Advisory Opinions
• The Corfu Channel Case (United Kingdom of Great Britain and Northern
Ireland v. Albania) (Judgment 1949)
• https://www.icj-cij.org/public/files/case-related/1/001-19480325-JUD-01-00-EN.pdf
• The Legality of Use by a State of Nuclear Weapons in Armed Conflict
(Advisory Opinion 1996)
• https://www.icj-cij.org/public/files/case-related/95/095-19960708-ADV-01-00-EN.pdf
• Legal Consequences of the Construction of a Wall in Occupied Palestinian
Territory (Advisory Opinion 2004)
• https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf
• Case Concerning Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v. United States of America) (Judgment 1986)
• https://www.icj-cij.org/public/files/case-related/70/070-19841126-JUD-01-00-EN.pdf
International courts and tribunals with a
specialised mandate
• International Tribunal for the Law of the Sea (ITLOS)
• Created through the International Convention of the Law of the Sea (UNCLOS)
• Court decisions and advisory opinions
• Decisions final and binding on the parties
• Human rights courts and tribunals (see next module!) e.g. ECtHR
• World trade organisation (WTO) Dispute Settlement Body (DSB)
• Regional Dispute Bodies e.g. Court of Justice of the European Union
(CJEU)
International courts and tribunals with a
specialised mandate (…cont)
International Criminal Law
• International Criminal Court (ICC) (specific crimes)
• International Criminal Tribunal for Former Yugoslavia (ICTY)
(specific for crimes committed from 1991 to 2001 in Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the
Former Yugoslav Republic of Macedonia.)
• International Criminal Tribunal for Rwanda (ICTR)
(specific for crimes committed in Rwanda 1994)
• Extraordinary Chambers in the Courts of Cambodia
(hybrid court- established within national court but mandated through agreement btw UN and Cambodia)
• formed in 2006 by the Kingdom of Cambodia and the United Nations (UN), in order to prosecute
and try those responsible for the genocide carried out by the Khmer Rouge led by Pol Pot in
Democratic Kampuchea between 1975-1979.
• Special Tribunal for Lebanon (STL)
• an international criminal tribunal for the prosecution, under international law, of criminal acts of
those responsible for the assassination of Rafic Hariri on 14 February 2005