the max planck encyclopedia of public international law

Transcription

THE MAX PLANCK
ENCYCLOPEDIA
OF PUBLIC
INTERNATIONAL LAW
VOLUME VIII
. -·-
----------------------
Published under the Auspices ofthe
Max Planck Institute for Comparative
Public Law and International Law
Edited under the Direction of
Rüdiger Wolfrum
MAX-PLANCK-GESELLSCHAFT
OXFORD
UNIVERSITY PRESS
PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES
des Weltraums im Lichte des volkerrechtlichen Strukturprinzips vom, Gemeinsamen Erbe der Menschheit" (Duncker &
Humblot Berlin 2003) .
QUINN , 'The New Age of Space Law: The Outer Space
· Treaty and the Weaponization ofSpace' (2008) 17 Minnesota
Journal oflnternational Law 475-502.
Atrr•een:•cuc Governing the Activities of States on the Moon and
Celestial Bodies (adopted 18 December 1979, entered
force 11 July 1984) 1363 UNTS 21.
Treaty (signed 1 December 1959, entered into force 23
961) 402 UNTS 71.
on International Liabilicy for Damage Caused by
Space Objects (signed 29 March 1972, entered into force 1
Pt :lepren~uc• 1972) 961 UNTS 187.
on Registration of Objects Launched into Outer
Space (opened for signature 14 January 1975, entered into
force 15 September 1976) 1023 UNTS 15.
'$'IiiVe!iïîëiïïl:m--t:lreHigh Seas (done 297\p·ri!-t-958;-emeredimo
30 September 1962) 450 UNTS 11.
IMQIW"''•"c'u on the Prohibition of the Development, ProducStockpiling of Bacteriological (Biological) and Toxic
and on their Destruction (opened for signature on
1972, entered into force on 26 March 1975) 1015
163.
..vJ11 vc.u "'m on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction (opened for signature 13 Januacy 1993, entered
i~to force 29 Aprill997) 1974 UNTS 45 .
:ro,nve-,ntir•n on the Prohibition ofMilitary or Any Other Hostile
Modification Techniques (adopted 10
._,~,.~.. •v~• 1976, entered into force 5 October 1978) (1977)
161LM90.
Co:nve1nticm relaring to the Non-Fortification and Neutralization..
the Aaland Islands (signed 20 Ocrober 1921, entered into
6April1922) 9 LNTS 211.
Threat or Use ofNu;lear Weapons (Advisory. Opinion)
ICJ Rep 226.
on Environmental Protection to the Antarctic Treaty
,......\.uu•uc;.,...._,J<.:J.uu·cr 1991 , entered into force 14 January 1998)
1) 30 ILM 1455.
Pacifie Nuclear Free Zone Treacy (concluded 6 August
1985, entered into force 11 December 1988) 1445 UNTS
177. .
Banning Nuclear Weapons Tests in the Atmosphere, in
Space and Under Water (signed 5 August 1963, entered
force 10 October 1963) 480 UNTS 43.
the Prohibition ofNuclear Weapons in Latin America
14 February 1967, entered into force 22 April 1968)
UNTS 326.
on Principles Governing the Acrivities of States in the
ëxJ:•lora.t:ion and Use of Outer Space, Including the Moon and
Celestial Bodies (signed 27 January 1967, entered into
10 October 1967) 610 UNTS 205.
the Limitation ofAn ti-Ballistic Missile Systems (signed 26
May 1972, entered inro force 3 October 1972) 944 UNTS 13.
201
Treaty on the Non-Proliferation of Nuclear Weapons (opened
for signature 1 July 1968, entered into force 5 March 197 0)
729 UNTS 161.
Treaty on the Prohibition of the Emplacement ofNuclear Weapons
and other Weapons ofMass Destruction on the Sea-Bed and the
Ocean Floor and in the Subsoil Thereof (concluded 11 February
1971, enrered into force 18 May 1972) 955 UNTS 115.
UNGA 1st Committee 1515th Meeting (1 November 1967)
GAOR 22nd Session 1515th Meeting.
UNGA, 'Report of the Secretary-General: Study on the Naval
Arms Race' (17 September 1985) UN DocA/40/535.
UNGA Res 808 (IX) (4 November 1954) GAOR 9th Session
Supp 21, 3.
UNGA Res 1472 (XIV) 'International Co-Operation in the
Peaceful Uses of Outer Space' (12 Decembet 1959) GAOR
!4th Session Supp 16, 5.
UNGARes 1962 (XVIII) (13 Decembet 1963) GAOR 18thSession Supp 15, 15.
UNGA Res 2832 (XXVI) 'Declaration of the Indian Ocean as
a Zone of Peace' (16 Decembet 1971) GAOR 26th Session
-supp-25~36:- - - - -- UNGA Res 3314 (XXIX) 'Definition ofAggression' (14 December 1974)GAOR29thSessionSupp31 vol 1, 142.
UNGA Res 31172 'Convention on the Prohibition of Military
or Any Other Hostile Use of Environmental Modification
Techniques' (10 December 1976) GAOR 31st Session Suppl
39, 36.
United Nations Convention on the Law of the Sea (concluded
10 December 1982, entered into force 16 Novembet 1994)
1833 UNTS 3.
Peaceful Settlement of
International Disputes
ALAIN PELLET
This article was fast updatedJune 2010
A. Introduction
B. The Obligation ofPeaceful Serclement of Disputes
1. Legal Nature of the Principle-From a Mere
Option to a Binding Obligation
2. Scope and Content of the Obligation of
Peaceful Settlement
C. The Free Choice of the Means ofPeaceful Serclement
1. The Variety ofMeans ofPeaceful Serdement
2. Progressive Institutionalization of the Peaceful
Means ofSetdemenr oflnternational Disputes
(a) The League ofNations and the United Nations
(b) Regional and Technical Organizations
3 . Combining the Use of the Various Means of
Peaceful Serclement
1
3
3
16
28
31
41
42
53
60
202
A. Introduction
1 According to che celebrated definition by the -->
B. The Obligation ofPeaceful
Settlement of Disputes
Permanent Court ofInternational justice (PC!]) recited
1. Legal Nature ofthe Principle-From a
in a great many other judicial decisions (see a list of
the case-law of the world court in the _.... International
Court ofjustice [IC]} judgment of 10 February 2005
in the Certain Property Case [Liechtenstein v Germany}
[Preliminary Objections} para. 24; --> Certain Property
Case [Liechtenstein v Germany}; see also Armed Activi-
Mere Option to a Binding Obligation
ties on the Terri tory ofthe Congo [New Application: 2002}
[Democratie Republic ofthe Congo v Rwanda} {fu risdiction and Admissibility} para. 90; --> Armed Activities
on the Territory ofthe Congo Cases; and Territorial and
Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea [Nicaragua v Honduras} para. 130),
contrary to a 'situation', which does not imply an existing difference of views between thep-ersons concerned,
'[a) dispute is a disagreement on a point oflaw or fact,
a conflict of legal views or of interests between two
persons' (Mavrommatis Palestine Concessions [Greece
v Great Britain} {jurisdiction}; --> Mavrommatis Concessions Cases-as for the difference between both
notions, see Legal Consequences for States of the Con-
tinued Presence ofSouth Africa in Namibia [South Wést
Africa} notwithstanding Security Council Resolution
276 [1970} [Advisory Opinion] 23-24 para. 25; Arts 1
(1), 12 (1), 34, 35 (1), or 36 (1) UN Charter use both
terms). Traditionally, it was the sovereign prerogative of States to sertie disputes berween them through
means they could freely choose, whether peaceful or
not. With the progressive prohibition of the use of
force (-->· Use ofForce, Prohibition of) in international
relations, the peaceful seulement of international disputes has become the general rule, recourse to nonpeaceful means being confined to the exceptional cases
where the use of force remained lawful, thar is: only in
case of self-defence or when the United Nations Security Council, acting under Chapter VII UN Charter, '
authorizes or imposes an action i!'lvolving the use of
armed force to maintain or restore international peace
and security (Art. 42 UN Charter).
2 Indisputably a legally binding obligation, the principle according to which international disputes must
be peacefully settied is a flexible one in thar while it
imposes an obligation of behaviour to its addressees
(see. sec. B below), it leaves them free to choose the
means for implementing it (see. sec. C below).
3 A corollary of the prohibition of the use of force
the principle that States must sertie their internation~
disputes by peaceful means (Arts 2 (3) and 33 UN
Charter) is, exactiy as its partner principle, neither a
traditional nor an absolute obligation, but, with this
qualification, its binding character is uncontroversial
as shown by the use of the word 'shall' in the relevant
provisions in the UN Charter (règlent or doivent in the
French text; arreglardn or tratardn in Spanish).Thiswas
made crystal clear by the ICJ in its judgment of21 June
2000. States are under an
------ ---- obligation to settle their disputes by peaceful means.
The choice of those means admittedly rests with
the parties under Article 33 of the United Nations
Charter. They are nonetheless under an obligation
to seek such a settlement, and to do so in good faith
in accordance with Article 2, paragraph 3, of the
Charter. (Aerial Incident of10 August 1999 [Pakistan
v India] {jurisdiction ofthe Court} para. 53)
4 In its 1986 Judgment in the--> MilitaryandParamilitary Activities in and against Nicaragua Case (Nicaragua
v United States ofAmerica), the I C] had already defined
'the principle that the parties to any dispute, particularly
any dispute the continuance of which is likely to en danger the maintenance ofinternational peace and security,
should seek a solution by peaceful means' as 'complementary to the principles of a prohibitive nature' like
the principle prohibiting recourse to the threat or use
of force in international relations or the principle of
non-intervention (Military and Paramilitary Activities
in and against Nicaragua [Merits} para. 290). An obvious consequence of chis complementary nature ofboth
princip les is that the obligation to peacefully settle disputes excludes the use or the threat of the use of force,
while the prohibition of the latter implies that disputes
must be settled peacefully-'exclusively' as emphasised
in para. I (2) the 1982 Manila Declaration on the Peaceful Settlement oflnternational Disputes.
5 In chat same judgment, the Court considered that,
'[e)nshrined in Article 33 of the United Nations Charter, which also indicates a number of peaceful means
which are available, this principle has also the status
tceful
'e-Froma
1/igation
un con troversia[
' in the relevant
)t doivent in
anish). 'Ihis..was
ment of21 June-
the
r an obligation
:o in good faith
raph 3, of the
1999 [Pakistan
a. 53)
y and Paramili4se (Nicaragud
Jready delined
te, particularly
kely to endan:e and security,
law' (Military and Paramilitary Activiin and_against Nicaragua [Merits} para. 290), chus
upon members as weil as non-members of
rganization.
Moreover, in spi te of sorne opposite
9
j:f rightly interpreted, the principle of peaceful
may be considered as a peremptory rule of
international law (--+ lus cogens): indeed, States
""'""•nr••n from deciding, by a treaty, not to set-..""--"--:Il pending dispute (orto 'freeze' it), buc chis is only
as long as the absence of solution is not a chreat
international peace and security. The essence of
principle lies elsewhere: it means chat if the dispute
a threat, the obligation to settle it peacefully
status of che principle as imposing a
obligation upon States is relatively new. As
as the use of force, including war, was perceived
patural right of States, inherent to their --+ soverche peaceful settlement of disputes between
appeared as a mere option open to them as an
lteJ:naltl:'ve to war: not only could a dispute be left unret.COivedt-a~ is scill the case today in so far as it does not
~~~~ut.uLc a threat to the maintenance of international
and security (para. 11 below)-but also, it could
settied by recourse co armed force:
.
r~
doubcful causes which do not involve essential
~""";.,..
'' if one of the parties will not accede either co
il_conference, an accommodation, a compromise, or
an .~bitration, the other has only che Jase resource
.fo~
· defence ofhimselfand his rights,-an appeal
5word; and he has justice on his side in taking
,.vu~~---·
against so untractable an adversary. For, in
~~·IJUI){llll cause, we can only demand ali the reamechods of elucidating che question, and
~~v~·~·'""' or accommodating the dispute'. (E de
The Law ofNation: or, Princip les ofthe Law of
Applied to the Conduct and Affairs ofNatiom
;:· ..ana~ .)Over.eunu [revised ed GG and] Robinson Lon. don 1797] 289)
:eful means
fonhé nation's 'essential righcs' however, Vattel held
chen, ' (s]he, [the nation] will not even attempt
mode of conferences on so odious a precension'
279).
•
203
7 le is '(w]ith a view to obviating, as far as possible,
recourse to force in the relations between States', chat
the signatoty powers of the International Convention
for the Pacifie Settlement of International Disputes
(' 1899 Hague Convention l') agreed 'to use their best
efforts to insure the pacifie settlement of international
differences'. This formula was repeated in Art. 1 Convention for the Pacifie Settlement of International
Disputes (' 1907 Hague Convention l'; --+ Hague Peace
Conferences [1899and 1907}). Since chen, the increase
in strength of the obligation of peaceful settlement follows a path parallel to chat of the limitation, then the
prohibition, of the use of force in international relations.
-Slfithe second Rague Convention orr5T07-ilie - Convention respecting the Limitation of the Employment of Force for che Recovery of Contract De bts (--+
Drago-Porter Convention [1901})- '[t]he Contracting
Powers [agreed] not to have recourse to armed force for
the recovery of contract debts claimed from the government of one country by the government of another
country as being due to its nationals' except 'when the
debtor stace refuses or neglects co reply to an offer of
arbitration, or, after accepting the offer, prevents any
compromis from being agreed on, or, afcer the arbitradon, fails to submit to the award'. Thus, che DragoPorter Convention established a concrete link between
che princip le of peaceful settlement (here through arbitration) and chat of non-recourse to armed force: the
corrimitment not to use force is the quid pro quo for
chat to resort to arbitration.
9 For its part, the Covenant of the League of Nations
('League Covenant') was drafced within the same spirit:
it did not prohibit war generally but, in Art. 12 League
Covenant,
[t]he Members of the League agree that, if there
should arise between them any dispute likely to lead
co a rupture they will submit the matter either to
arbitration or judicial sectlement orto enquiry by the
Council, and chey agree in no case to resort to war
un til three months after the award by the arbitrators
or the judicial decision, or the report by the Council.
The peaceful settlement of disputes (under its most
demanding forms-para. 11 below) had to be tried first
and only in case of failure was the res ore co war possible;
but, in chat case, it remained lawful. In spi te of the failure of the Geneva Protocol for the Pacifie Settlement of
204
International Disputes adopted by the General Assembly of the League ofNations on 2 October 1924, which
had tried in vain to institute an obligation of judicial
or arbitral settlement, the situation changed with the
General Treary for Renunciation ofWar as an Instrument ofNational Po licy, the so-called-+ Kellogg-Briand
Pact (1928) by which '[t]he High contracting parties
solemnly declare[d ... ] thar they condemn recourse
to war for the solution of international controversies,
and renounce it, as an instrument of national po licy in
their relations with one another' (Art. 1 Kellogg- Briand
Pact) and, in parallel, agreed 'thar the settlement or
solution of all disputes or conflicts of whatever nature
or of whatever origin they may be, which may arise
among them, shall never be sought except by pacifie
means' (Art. 2 Kellog- Briand Pact).
10 But this was at throrfgînof rfie paradox which
still characterizes the actual situation in this respect:
contemporar}r international law peremptorily prohibits the use of armed force as a means to settle disputes
between States and imposes on them a dury of peaceful
statement; but, at the same rime, it does not offer any
means for making this binding obligation enforceable:
the General Act for the Pacifie Settlement of International Disputes adopted on 26 September 1928 (' 1928
General Act'), separately from the Briand-Kellogg Pact,
offers a 'menu' of possible methods of peaceful sertiement without giving prioriry to any of them (paras
40-44 below) nor offering any means to enforce the
obligation to have recourse to peaceful means or the
solution obtained, th us making the obligation of peaceful settlement a binding dury devoid of any sanction.
11 The UN Charter does not cure what can be seen as
one of the fundamental weaknesses of international law.
Indeed, Art. 1 (1) UN Charter includes among the purposes of the United Nations the dury to 'bring about by
peaceful means, and in conformirywith the princip les of
justice and international law, adjustment or settlement of
international disputes or situations which might lead to a
breach of the peace' and Art. 2 (4) UN Charter imposes
on ail members to 'sertie their international disputes by
peaceful means in such a manner that international peace
and securiry, and justice, are not endangered'. But, while
'the General Assembly may recommend measures for the
peaceful adjustment of any situation' (Art. 14 UN Charter) and the Securiry Council is supposed 'when it deems
necessary, [to] cali upon the parties to sertie their dispute'
by the peaceful means enumerated in Art. 33 UN Ch
arter, no provision of the Charter permits the organizatio
to oblige States in dispute to have recourse to any par~
ticular means of settlemem nor to implement any agreed
or decided solution, except if the absence of settlemenr
threatens the maintenance of the international peace and
securiry {in which case, the provisions ofChapter VII UN
Charter will come into operation). Art. 94 UN Charter
offers a striking illustration of this cautious approach:
If any party to a case fails to perform the obligations
incumbent upon it under a judgmem rendered by
the [ICJ], the other party may have recourse to the
Securiry Council, which may, if it deems necessary,
make recommendations or decide upon measures to
be taken to give to the judgment (emphasis added).
The italics exemplify the limits of the possibility to
enforce the principle of peaceful settlemem, and of the
desire of the international communiry to insure such
an enforcement.
12 Weak and imperfect as it might seem, the principle
has been confirmed in numerous international instruments, whether binding or non-binding, at the world
or regionallevels and its positiviry cannot be denied.
13 Among the main universal relevant texts, the following United Nations General Assembly (-+ United
Nations, Genera/Assembly) resolutions can be cited:
(i) UNGA Res 2625 (XXV) (24 October 1970) (-+
Friendly Relations Declaration [1970]) mentions 'the
principle that States shall setde their international
disputes by peaceful means in such a manner that
international peace and securiry and justice are not
endangered' as the second of those principles and
partly clarifies its scope {para. 16 below); (ii) the
Manila Declaration elaborates more on the content
of the principle and invites Member States of the UN
to 'make full use of the provisions of the Charter of
the United Nations, induding the procedures and
means provided for therein, particularly Chapter
VI, concerning the peaceful settlement of disputes';
(iii) by UNGA Res 40/9 (6 November 1985), the
Assembly addressed a '[s]olemn appeal to States in
conflict to cease armed action forthwith and to sertie
disputes between them through negotiations, and to
States Members of the United Nations to underrake
to solve situations of tension and conflict and exiscing
·ganization
o any Patany
settlement
peaceand
er VII UN
N Charter
•roach:
disputes by polirical means and ro refrain from the
threar or use of force and from any intervention in
the internai affairs of other Srares'; (iv) in UNGA Res
43/51 'Declaration on the Prevention and Removal of
Disputes and Situations Which May Threaten International Peace and Securiry and on the Rule of the
United Nations in this Field' (5 December 1988)the General Assembly laid clown for the first rime a
clear link between prevention of conflict and dispute
· resolution (see also Territorial and Maritime Dispute
Nicaragua and Honduras in the Caribbean
Sea para 130 and UNGA Res 42/22 [18 November
principle
tl instnibe world
enied. ·
the fol-
no)
c~
ions 'the
national
content
the UN
arter of
:es and -
ares in
>setcle
mdto
ertake
:isting
' 1987]) or UNGA Res 47/120 [18 December 1992],
· welcoming the Secrerary-General's Report entitled
'An Agenda for Peace: Preventive Diplomacy, Peace~..,o:.::=:o and Peace-Keeping' [17 June 1992) and
integrating thepeacefuTsetdement ofd1spures lnthe
global concept of'prevemive diplomacy'; UN GA Res
57/26 'Prevention and Peaceful Settlement of Disputes' (19 November 2002) or UNGA Res 57/337
'Prevention of Armed Conflict' (3 July 2003); and
• (v) during the Millenium Summit, the Heads of
' State and Government reaffirmed, without much
emphasis, their dedication ro the 'resolution of disputes by peaceful means and in conformity with the
principles of justice and international law' (UNGA
- Res 55/2 'United Nations Millennium Declaration'
1 [8 September 2000) paras 4 and 9).
14 For its part, in Annex UN SC Res 1318 (7 Septembér 2000)-Declaration on Ensuring an Effective Role
for the Securiry Co un cil in rhe Maintenance of International Peace and Securiry Particularly in Africa-the
Council also makes plain rhe link between preof conflicts and peaceful settlement and
·: -underlines that the ultimate responsibiliry for resolv1'.. ing disputes and conflicts lies wirh the parties them• selves and that peacekeeping operations aimed ar
helping ro implement a peace accord can succeed
....._ only ro the extent thar there is a genuine and lastl ·ing commitment to peace by ali parties concerned.
' ' (Section VIII UNS CRes 1318-see also UNSC Res
f l366 [30 August 200 1) or UNSC Res 1809 [6 April
2008).
15 In conformiry with Art. 52 UN Charter-which
requires the members of the organization ro 'make every
effort to achieve pacifie settlement of local disputes'
through regional arrangements or by regional agencies
205
(para. 2) and the Securiry Council ro encourage such
settlements-the principle of peaceful settlement is also
formulared in many regional instruments such as: Arr. 5
Charter (pact) of the League of Arab States ([signed
22 March 1945, entered inro force 10 May 1945)
70 UNTS 237; (--+ League ofArab States [LAS}); Arts
23-25 Charter of the Organization of American Srares
([signed 30 Aprill948, emered into force 13 December
1951) 119 UNTS 3); and Art. 1 American Treaty on
Pacifie Sertlement (--+ Bogotd Pact [1948} Principle V
Conference for Securiry and Co-operation in Europe
'Final Acr' (--+Helsinki Final Act [1975}) or Art. 4 (e)
Constitutive Acr of rhe African Union ([clone 11 July
2000, entered into force 26'May 2001) 2158 UNTS
3; --+ African Union [AU}) and Art. 4 (a) African Union
'Prorocol relating to the Establishment of the Peace and
Securiry Council of the African Union'. -- _ __
2. Scope and Content ofthe Obligation
ofPeaceful Settlement
16 As has been written,
il est relativement indifférent à la Charte que les États
trouvent une solution à leurs d@rends: ce qui lui
importe, c'est que ces différends ne s'enveniment pas au
point de les conduire à les régler par la force (ir is relatively unimporrant to the Charter thar States find a
solution to their disputes: what "is important is rhat
the disputes do not deteriorare ro rhe point ofbeing
sertled through the recourse to force) : (Charpentier
and Sierpinski 429)
In fact, the obligation to peacefully sertie international
disputes is limired to th ose 'the continuance of which
is likely to endanger rhe maintenance ofinternarional
peace and securiry' (Arr. 33 UN Charter-see also the
wording of rhe second principle in the Friendly Relations Declaration: 'The principle thar States shall setde their international disputes by peaceful means in
such a manner that international peace and securiry
and Justice are not endangered'). Even in thar case,
there is no feal obligation ro posirively 'sertie' the dispute as shown by the verb 'seek' in thar same provision
('The parties to any dispute ... shall, first of ali, seek a
solution .. .' [emphasis added]): the only real obligation is nor ro resort to armed force to serrle disputes.
Such a wording clearly implies an obligation of conduce or of behavlour, not of result (for rhe content
206
of thar obligation see para. 20 below). Note however
thar, in the special context of the case, in Legality ofthe
Use or the lhreat of Use ofNuclear Weapons (Advisory
Opinion), the ICJ considered thar the legal importance of the obligation resulting from the commitment raken by the parties under Art. 6 Treary on the
Non-Proliferation of Nuclear Weapons ([adopted
1 July 1968, entered into force 5 March 1970) 729
UNTS 161) ro negotiate in good faith a nuclear disarmament 'goes beyond thar of a mere obligation of
conduct' (Legality ofthe lhreat or Use ofNuclear Weapons [Advisory Opinion] para. 99) .
17 According to Art. 2 (3) UN Charter the principle,
rhus defined, would be limited ro 'international dispures' (emphasis added), a qualification lately introduced in the Charter (UN CIO Documents ofthe Uni_!!_d_
Nations Conferencë on International Organi~tion vol 3
[United Nations Information Organizations New York
1945) 3) . Arr. 5 Pact of Bogod. also excludes 'matters
which, by their nature, are wirhin the jurisdiction of
the state' (see also Arr. 27 (b) European Convention
for the Peaceful Sert!ement of Disputes; 'ECPSD').
These qualifications must be read in conjunction with
the principle embodied in Art. 2 (7) UN Charter (-->
Domaine réserve} and are of very limired practical
importance:-
rhe scope of whar can be called the 'international
con cern' has continuously widened since the adoption of the League Covenant in 1919 as illustrated
eg by the extension of the notion of threat to the
peace (--> Peace, lhreat to) by the UNSC since 1945;
if a dispute endangers international peace and securiry, it is clearly ipso facto of an international character (this is the reason why the UNSC decided
ro keep temporarily the 'situation in Spain' in the
mid-1940s on its agenda [see UNSC Res 7 [26 June
1946) and UNSC Res 10 [4 November 1946)) or
thar apartheid in South Africa (UNSC Res 417 [31
Ocrober 1977)), or, more recent!y, the threat of a
coup d'État were brought on the UNSC agenda (see
UNSC Res 1902 [17 December 2009]); and, significant!y, Art. 33 UN Charter does not evoke 'international disputes', but 'any dispute, the continuance
of which is likely to endanger the maintenance of
international peace and securiry'. (Emphasis added;
the classical example concerning the benign neglect
of the UNSC for this qualification is the --> Eichmann Case)
18 The same holds true in relation to another intrigu_
ing issue concerning the obligation thar 'justice' is not
endangered by the continuance of a dispute, a mention
added in Art. 2 (3) UN Charter, as an echo to the formula used in Arr. 1 (1) UN Charter, ar the--> Dumbarton Oaks Conference (1944) (UNCIO 580 and 582),
which was not reproduced in Art. 33 UN Charter but
which is copied in para. I (2) and (3) Manila Declaration. This mention reinforces the blurry and subjective
nature of the characterization of a dispute as falling
under Art. 2 (3) UN Charter.
19 One of the main characreristics ratione materiae
of the obligation of peaceful sett!ement is the free
choice of the means to be used for its implementation (Sec. C below), at !east as far as States are concerned: States-must settle theinlispui:es peacefully;
but they can do this by the means they consent ro.
However, the principle of peaceful settlement must
have a concrete substance of its own, failing which,
it 'would have no proper meaning, but would essentially double the prohibitions of intervention and the
use of force' (Tomuschat La Charte des Nations Unies
[2002] 106; see also at 587).
20 The core aspect of thar obligation of conduct for
the States in dispute is to act in good faith. As stated
in the Manila Declaration, 'States should negotiate
meaningfully, in orcier ro arrive at an early sett!emenr
acceptable ro the parties' (para. I (1 0) Manila Declaration). This statement echoes the ICJ dictum according
rowhich
[the Parties) are under an obligation so ro conduct
themselves thar the negociations are meaningful,
which will not be the case when either of them
insists upon irs own position wirhout contemplating
any modification of it (North Sea Continental Shelf
Cases [Federal Republic ofGermany!Denmark; Federal
Republic ofGermany/Netherlands] para. 85 ; --> North
Sea Continental Shelf Cases; see also eg GabéikovoNagymaros Project [Hungary/Slovakia] [1997) ICJ
Rep 7 para. 141; Affaire du Lac Lanoux [1957) 12
RIAA281 paras 11-13; and UNGARes 531101 [8
December 1998) para. 2 (a)).
21 But this does nor mean thar negociations must be
held indefini rely; rhus, the PCIJ considered thar:
the question of the importance and chances of
success of diplomatie negociations is essentially a
morher intrigu_
tt 'justice' is nor
pute, a mention
echo to the forthe -+ Dumbar580 and 582),
TN Charter but
1anila Declara. and subjective
pute as
es peacefully;
:y consent ta.
tlemem mÙst
=ililing which,
would essenmien and the
Nations Unies
f conduct for
ith. As stated
1ld negotiate
-!y setdement
nila Declara-
85; -+North
Gabéikovo:
[1997] IC]
c [1957] 12
s 53/101 [8
:hances of
semially a
relative one. Negociations do not of necessity al ways
presuppose a more or Jess lengthy series of notes and
despatches; it may suffice thar a discussion should
have been commenced, and this discussion may
have been very short; this will be the case if deadlock
is reached, or if finally a point is reached at which
one of the Parties defini tel y declares himself unable,
or refuses, to give way, and rhere can be therefore
no doubt thar the dispute cannot be settled by dip~urrtatiic negociation (Mavrommatis Palestine Concessions [Greece v Great Britain] [jurisdiction] 13;
see also Southern Bluejin Tuna Cases [New Zealand
v Japan; Australia v fapan} [Provisional Measures}
ITLOS Cases Nos 3, 4 [27 August 1999] para. 60
or Land Reclamation by Singapore in and around
rhis respect, what is true for negociations is also
for rhe orher means of settlement and so are the
of rhe obligation, in particular that:'[t]he parties undertake . . . to abstain from any
of action whatsoever which may aggravate or
extend the dispute' (Art. 33 (3) 1928 General Act;
· -see also second principle para. 4 Friendly Relations
-Declaration [1970], para. I (8) Manila Declaration, or the PCI] in Electricity Company of Sofia
· and Bulgaria (Preliminary Objection) (Belgium v
'Bulgaria): 'the parties to a case must abstain from
~---'-:~_:::;
measure capable of exercising a prejudicial
· effect in regard to the execution of the decision to
be given and, in general, not allow any step of any
kind to be taken which might aggravate or extend
the dispute' (see also Frontier Dispute [Burkina
;.,+..,.c~rsot.f:(et'ublic of Mali] [Provisional Measures]
of JO ]anuary 1986][1986] ICJ Rep 3, 9 or
~.,'4-JiPlication of the International Convention on the
Elimination ofAl! Forms of Racial Discrimination
v Russian Federation} [Provisional Measures} [15 October 2008] para. 149 (c)) ; or- '(t]he
~ pârties to a dispute have the dury, in the event of
_ failure to reach a solution by [one] peaceful means,
.to continue to seek a settlement of the dispute by
• ' 1other peaceful means agreed upon by them'. (Principle 2 para. 3 UNGA Res 2625; see also para. I
(1 0) Manila Declaration.)
s~rt
•
207
23 Moreover, recourse to an agreed means of sertiement or an offer by a third party to assist the parties
to the dispure can never be seen as an unfriendly act
(see, eg, Art. 3 1907 Convention I: 'The exercise of
this right [to offer good offices or mediation] can never
be regarded by eirher of the parties in dispute as an
unfriendly act') .
24 Ratione temporis, the principle applies in ali circumstances, including when an armed conflict has
started and is going on (see AC Arend 'The Obligation
to Pursue Peaceful Settlement of International Disputes During Hostilities' [1984]24 VaJintlL 97-123).
Thus, Art. 3 1907 Hague Convention I provides that
' [p ]owers strangers to the dispute have the right to offer
good offices or mediation_even during the. cours.e....of
hostilities' and rhe UNGA and the UNSC have repeatedly called parties to an armed conflict, whether international or not, to find a peaceful solution to rheir
dispute (see, eg, UNGA Res 44/15 'The situation in
Afghanistan and its Implications for International
Peace and Security' [1 November 1989]; UNSC Res
582 [24 February 1986] concerning Iraq and Iran;
UNSC Res 787 [16 November 1992] concerning
Bosnia and Herzegovina; see also UNGA Res 63/307
'Status of Internally Displaced Persans and Refugees
from Abkhazia, Georgia, and the Tskhinvali Region/
South Ossetia, Georgia' [9 September 2009] or UNSC
Res 1907 [23 December 2009] para. 3 concerning
Djibouti and Eritrea) . Moreover, the obligation to seek
a peaceful solution is a continuous one and the parties
to a dispute cannat take shelter from rhe failure of a
particular means of settlement to stop rheir best efforts
to peacefully sertie their dispute (para. 20 above) .
25 Ratione personae, not only is the obligation to
peacefully setde disputes incumbent upon ali States
(para. 5 above), it also extends to non-State actors-at
!east on a non-reciprocal basis since, except in respect to
sorne hypotheses of application of the right of peoples
to -+ self-determination, the prohibition on the use of
force does not apply in rhe relations between States and
private entities.
26 It is certainly true thar the logic of the Charter is
primarily an imer-State logic (Ascensio 1050-51) and
sorne particular means of setdement are cl earl y reserved
to States (see, eg, Art. 34 (1) IC] Statu te) : 'Only States
may be parties in cases before the Court'). However,
comrary to sorne doctrinal views (Tomuschat La
208
Charte des Nations Unies [2002]106 para. 18, 109 para.
24; contra Hafner 'The Proliferation of Mechanisms
for Peaceful Settlement of Disputes' in Caflisch [1998]
29), there is no reason to exclude the non-State actors as
a matter of principle from the scope of the obligation:the principle of peaceful settlement is not only UN
Charter-based, it is a general principle having a customary character (para. 5 above);- even in the framework of the United Nations, non-State actors are
quite often directed to comply with the principle;
and- there can be no doubt thar States may, willingly, settle peacefully their disputes with non-State
parties.
settle their disputes with them-this is particularly th
case in the. fiel.ds of the protection of ---7 human righ;
and of fore1gn mvestments (---7 Investment Disputes) and
in certain regional organizations (paras 53-59 below).
C. The Free Choice of the Means
ofPeaceful Settlement
28 As recalled by the ICJ, international 'disputes are
required to be resolved by peaceful means, the choice
of which, pursuant to Article 33 of the Charter, is left
to the parties' (Fisheries ]urisdiction [Spain v Canada]
ljurisdiction ofthe Court} para. 56; ---7 Fisheries ]urisdiction Case [Spain v Canada}; see also Aerial Incident of
JO August 1999 [Pakistan v India} ljurisdiction of the
Court} para. 53 and paras 1-2 above). This freedom of
choiœis srressed by al! the iffilln instruments codifying the principle of peaceful settlement; this is the case
of principle 2 para. 2 Friendly Relations Declaration
(1970), and of para. I (3) and (1 O) Manila Declaration.
Severa! regional instruments follow the same approach
(see, eg, Art. 3 Pact of Bogoti; principle V Helsinki
Final Act [1975]).
27 Thus, para. I (12) Manila Declaration encourages
States 'to have recourse to the relevant procedures' thar
it mentions '[i]n order to facilitate the exercise by the
pëop!esconcerneaof the right to self-determination ... '
A striking illustration is given by the Abyei Arbitration
(Government oJSudan v Sudan People's Liberation Movement!Army) (Award) (Permanent Court of Arbitration
[22 July 2009]). Moreover and more generally, private
persans are now directly involved in disputes which are
settled at the internationallevel and the settlement of
which they participate in. It is qui te usual for the UNSC 29 ---7 Consent is therefore the condition to which
to cal! upon States to seek a peaceful solution to their resorr to any specifie means of settlement is subject:
disputes with non-State parties to an interna! conflict
It is well established in international law that no
(see,eg, UNSCRes389 [22April1976] para. 5; UNSC
State
can, without its consent, be compelled to subRes 435 [19 September 1978] para. 4; UNSC Res 1906
mit
its
disputes with other States either to media[23 December 2009] para. 10; UNSC Res 1339 (31
tion
orto
arbitration, orto any other kind of pacifie
January 2001] para. 5 or UNSC Res 1781 [15 October
settlement.
Such consent can be given once and for
2007] para. 3; UNSC Res 1529 [29 February 2004]
al!
in
the
form
of an obligation freely undertaken,
para. 7 or UNSC Res 1584 [1 February 2005] paras
but
it
can,
on
the
contrary, also be given in a special
5 or 8). And, since the end of the 1970s, the Co uncil
case
apart
from
any
existing obligation. (Status of
and the General Assembly cal! upon 'al! the parties to
the Eastern Carelia [Advisory Opinion} PCI] Series
the (armed) conflict' or 'al! interested parties' (includB No 5 27)
ing non-governmental entities) to seek a peaceful setdement (see, eg, UNGA Res 3212 [XXIX] 'Question This is confirmed, for example, by Art. 95 UN Charter
ofCyprus' [1 November 1974] para. 4 and UNSC Res which preserves the possibility for the members of the
365 [13 December 1974] para. 2 and UNSC Res 451 UN to entrust the solution of their differences to tribu[15 June 1979] para. 2; UNGA Res 35/27 'Question of nais others than the IC].
East Timor' [11 November 1980] para. 3or UN GARes
36/50 'Question of East Timor' [24 November 1981] 30 In the contemporaryworld, except in sorne limited
para. 3; UNSC Res 1016 [21 September 1995] paras 3, regional contexts where special conventions may create
5; UNSC Res 1094 [20 January 1997] para. 2; UNSC very constraining mechanisms (paras 53-58 below),
Res 1556 [30JUly2004] para. 5; UNSCRes 1791 [19 States remain extremely attached to the principle of
December 2007] para. 3; or UNSC Res 1876 [26 June consent in that matter, as shown in particular by the
2009] para. 7). Last but not !east, States may consent usual exclusion of compulsory means in the provisions
to let private persans resort to international means to concerning the settlement ofdisputes, or the possibiliry
particularly the
~ human rights
nt Disputes) and
53-59 below).
feans
al 'disputes are
ans, the choice
Charter, is left
>ain v Canada}
'sheries }urisdic·rial Incident of
'isdiction of
his freedom of
tments codifythis is the case
1s Declaration
.a Declaration.
:ame approach
>le V Helsinki
ion to which
: is subject:
!law that no
pelled to sub1er to mediadnd of pacifie
once and for
' undertaken,
:n in a speciaiJn. (Status of
1PC!] Series
UN Charter
mbers of the
1ces to tribu-
to make reservations to such provisions, in multilateral
general conventions. See, eg, the --+ Vienna Convention on Diplomatie Relations (1961) and the--+ Vienna
Convention on Consular Relations (1963), both being
coupled with optional protocols concerning the settlement of disputes; Art. 16 (2) Convention on Access to
Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters (2161
VNTS 447), mechanism of opt-in to judicial settle~~~-=
through a separate declaration; Art. 20 (2) International Convention for the Suppression ofTerrorist
Bombings (2149 UNTS 256); Art. 24 (2) International Convention for the Suppression of the Financing
ofTerrorism (2178 UNTS 197); or Art. 66 (3) United
Nations Convention against Corruption, which ali
proviàe-f<H-express authorizations_to_make reserYations
co the provisions relating to the sett!ement of disputes;
or Art. 10 Convention on Cluster Munitions (48 ILM
357)) which leaves the choice of a given means of setdement to the common consent of the parties. The
universal human rights treaties establishing monitoring bodies make a distinction berween the settlement
of inter-State disputes and berween private persans
and a Stace. However, both mechanisms rely on the
principle of consent (see Art. 41 --+ International Covenant on Civil and Political Rights [1966}, instituting
an ppting-in inter-States conciliation procedure under
the auspices of the Human Rights Committee and the
individual complaint mechanism provided for by the
Optional Protocol to the International Covenant on
Civil and Political Rights [999 UNTS 302]; see also
Art. 21 and 22 Convention againstTorture and Other
- Crut!, Inhuman or Degrading Treatment or Punish[1465 UNTS 85; 'CAT'); the Convention on the
...Rights of the Child [1577 UNTS 3) is deprived of any
provision for the settlement of inter-S tate disputes or
individual complaints). In fact, at the universallevel,
the only reallimit to the consensual principle is linked
with the priority of the maintenance of peace (para. 40
below).
1. The l-ariety ofMeans ofPeaceful Settlement
s maycreate
-58 below),
principle of
;ular by the
~ provisions
~ possibility
3J.· Ir is impossible to draw a complete list of the
~arious means of peaceful sett!emenr-not so much
because they are so diversified (in fact they can be
linked to a handful of rather weil established typespara. 40 below), but because, concretely, a particular dispute is solved by the combination of various
209
means. With this caveat, Art. 33 UN Charter gives a
list of the usual peaceful means of settlement which
offers a convenient starting point; it includes: 'negociation, enquiry, mediation, conciliation, arbitrarion, judicial settlement, resort to regional agencies
or arrangements'. However, this list is not en ti rely
homogeneous (regional agencies or arrangements
can refer to al! the others and are different in their
geographical scope more than by their nature) and is
open-ended; it is nevertheless reproduced unchanged
in the Friendly Relations Declaration or in principle
V Helsinki Final Act-see also, but omitting arbitratian and judicial settlement Art. 6 (c) Protocol relating to the Establishment of the Peace and Security
Co un cil of the African Union. Good offices, the on! y
signi{icam 'gli~sing means' in Art. 33 UN Charter,
are mentioned for the first time in -a UN instrument
in the list of peaceful means by para. 3 UNGA Res
3283 (XXIX) (12 December 1974)-see also para. I
(5) Manila Declaration, or UNGA Res 42/22 para .
17-but are included among the means offered in
the 1907 Hague Convention I or the Pact of Bogot:L
Moreover, many international conventions expressly
refer to Art. 33 UN Charter (see, eg, Art. 65 (3) --+
Vienna Convention on the Law ofTreaties [1969} or
Art. 279 United Nations Convention on the Law of
the Sea [1833 UNTS 397;--+ Law of the Sea, Settlement ofDisputes]) .
32 It is not for this entry in the Encyclopedia to detail
the characteristics of the various means of peaceful
sett!ement, nor to give concrete examples of each of
them (this is clone under the respective name of each
particular means of settlement). It is enough to underline that the precise definitions and borders of each of
them are uncertain (an uncertainty aggravated by the
terminological fantasy of many treaties) and thar there
exists more a continuum than clear distinctions berween
them. Moreover, ail types of classifications are debatable. The four main criteria distinguishing berween
various categories of peaceful means generally used are
based:
(i) on the nature of the dispute, supposed to be either
'legal' or 'political'; (ii) on the basis adopted for the
solution, whether international law exclusively or
more flexible considerations; (iii) on the more or less
intrusive role played bya third party in its resolution;
and (iv) on the binding, or non-binding, character of
the final solution.
210
33 Severa! classical treaties or special clauses of peace- 1965] para. 2; UNSC Res 687 [3 April 1991) Pmbl.
ful settlement are based on the assumption thar poli ti- and many provisions; UNSC Res 1754 [30 April 2007]
cal and legal disputes can be distinguished. This is Pmbl.; UNSC Res 1741 [30 January 2007] Pmbl.
the case of the famous optional clause of Art. 36 (2) para. 3; UNGA Res 36/121 'Question ofNamibià [10
ICJ Statu te (~International Court ofjustice, Optional December 1981] Pmbl. and many provisions) so much
Clause) according to which '[t]he states parties .. . may so that Schachter has stressed the 'Quasi-Judicial Role of
at any rime declare thar they recognize as compulsory the Security Council and the General Assembly'.
ipso facto . .. the jurisdiction of the Court in al! legal
36 From an academie point of view at !east, the disdisputes .. .' (emphasis added; see also Art. 36 (3) UN
tinctions berween the purely bilateral means of sertieCharter, para. 45 below). Similarly, the ECPSD (para.
ment (that is direct negociations between the parties)
56 below) is en tire! y based on the distinction between
and chose in which a third intervenes, and, among the
legal disputes (submirred to the compulsory jurisdiclatter, between the means leading to a binding or a nontion of the ICJ-Arr. 1 ECPSD) and other disputes
binding solution, are more meaningful.
(optionally submitted to conciliation and arbitrarion) . Art. 5 Pact oftheArab League reintroduces and 37 The intervention of a neutra! third State or organ
makes explicit the distinction in setting apart disputes in inter-State disputes, whether they had resulred in
involving 'the independence of a Stace, its sovereignty ~war or not, bec~e qui te usual_in the _remo te past,
or its territorial integrity . In reality, the distinction without the distinction berween the various modaliis artificial and non-operational. Any international ties of intervention having ever been very clear (nor
dispute involves both political and legal elements- is it nowadays in ali cases). Thus, as early as the 12th
or, more precisely, can be appreciated as weil from a century Pope Alexander III, and his S1:1ccessors, 'were
pure! y legal and from a political perspective.
frequent!y chosen as arbitrators in quarfels agitating
Europe' (JH Ralston International Arbitration from
34 This is also why means ofsettlement based on interAthens to Locarno [Stanford University Press Stanford
national law (arbirration or recourse to the ICJ) can be
1929]181); so was, during the next century, the King
combined with rulings made by a political organ on
of France Louis XI, and ' (i]n 1334 Philip ofValois as
the basis of poli rica! considerations (see also Art. 38 (2)
"judge, negotiator and amiable compositeur" brought
ICJ Stature opening a possibiliry for the parties to
about the conclusion of a peace berween the king of
agree to confer to the Court itself the power to decide a
Bohemia, the princes of Germany and the Duke of
case ex aequo et bono) . Thus, since the UNSC has funcBrabant' (ibid 182-83). However, it was only at the
tions of a political nature, while 'the Court exercises
very end of the 18th century (~ fay Treaty [1794!!
pure! y judicial functions', '[b]orh organs can therefore
and during the 19th century thar the various types
perform their separate but complementary functions
of peaceful means for the setdement of international
with respect to the same events' (Military and Paradisputes involving third persons crystallized into the
military Activities in and against Nicaragua ljurisdicforms we are now familiar with and thar a clear distinction and Admissibility} 435 para. 95): '(i]t is for the
tion was made berween the pure! y diplomatie and the
Court, the principal judicial organ of the United
judicial means-even though the intervention of the
Nations, to resolve any legal questions thar may be in
third person can rake many for ms and be of extremely
issue berween parties to the dispute; and the resolution
varying intensity or degree of constraint upon the parof such legal questions by the Court may be an importies to the dispute.
tant, and sometimes decisive, factor in promoting the
peaceful sertlement of the dispute' (ibid 434 para. 93) . 38 Although iris an oversimplification, since rhere are
no clear thresholds and various means are often com35 For its part, the Security Council, and to sorne extent
bined for the seulement of a single dispute, a 'scale'
the General Assembly, although not bound to comply
can be established from the !east ro the most inrrusive
with pre-existing legal rules except the provisions of the
means as follows:UN Charter and peremptory norms of public interdiplomatic ~ negotiation wherher bilateral or
national law, has recourse to legal arguments or motives
within the framework of an international organiin law their recommendations or decisions relating to the
zation ('diplomacy by conference or parliamenrary
serdement of disputes (UNSC Res 216 [12 November
1 1991] Pmbl.
30 April2007]
2007] Pmbl.
fNamibia' [10
;ions) so much
udicial Role of
embly'.
!east, the
eans of settle:n the parties)
td, among the
ding or a non-
diplomacy has come to be recognized ... as one of
the established modes of international negotiation'
[South- West Africa Cases (Ethiopia v South Africa;
Liberia v South Africa) (Preliminary Objections)
;- -+ good offices, the purpose of which is to
. facilitate contacts between the parties;--+ mediation,
. which goes further since ' [t]he part of the mediaconsists in reconciling the opposing daims and
~li::apjpealsir:tg the feelings of resentmerit which may have
'arisen between the States at variance' (Art. 4 1907
) Hague Convention I);- establishment of an international commission of inquiry 'to facilitate a solution of[the dispute] byelucidatingthe facts by means
an impartial and conscientious investigation'
(Art. 9 1907 Hague Convention Œ=--+ conciliafio~n
· which aims at elucidating 'the questions in dispute,
:. ro collect with that abject al! necessary information
i by means of enquiry or otherwise, and to endeavour
; ' to bring the parties to an agreement. It may, afi:er
.' the case has been examined, inform the parties of
•the terms of setdement which seem suitable to it,
' •and lay clown the period within which they are to
' make the ir decision' (Art. 15 (1) 1928 General Act
'' and Revised General Act for the Pacifie Setdement
of International Disputes [' 1949 General Act'); see
also Art. 15 (1) ECPSD);- -+ arbitration the abject
ofwhich is 'the settlement of disputes between States
'· ~ Judges of their own choice and on the basis of
, rçspect for law. Recourse to arbitration implies an
, ~ngagement to submit in good faith to the Award'
-~ (J\rt. 37 1907 Hague Convention I); and--+ judisettlement ofinternational disputes which differs
.·
from arbitration in cillat the tribunal is established on
.' â permanent basis.
~"""'----
remote past,
:ious modali:ry clear (no~
y as the 12th
cessors, 'were
reis agitating
itration from
ress Stanford
ury, the King
J ofValois as
eur" brought
1 the king of
the Duke of
> only at the
·eaty [1734])
·arious types
nternational
zed into the
;lear distinctatic and the.
ntion of the
Df extremely
pon the par-
1ce there are
ofi:en comtte, a 'scale'
•st intrusive
•ilateral or
11al organiliamentary
~.-
39 The 'diplomatie' means of settlement (good offices,
~diation, and conciliation) have in common that
they result in an optional solution which is not binding
the parties un til they have accepted it; they can be
operated by one or severa! individuals or States and, in
..,_•.,",.'-"-M::~ of mediation or, more frequent! y, of conciliation, by a panel which follows a more or less forma! proœdure. The contradictory principle is one of the main
traits of the arbitral and judicial settlementswhich differ
from each other mainly by a more or less pronounced
institutionalization; but the growing tendency to creare more or less permanent tribunals in arder to rule
on large categories of disputes must be noted (see, eg,
the-+ Iran-United States Claims Tribunal or the OSCE
•
211
Court of Conciliation and Arbitration-para. 56
below); the-+ Permanent Court ofArbitration (PCA) is
a middle road solution: on! y its Secretariat (the International Bureau which serves as registry for the Court) has
been created on a permanent basis by the 1899 Hague
Convention I revised in 1907, while the 'Court' is but a
list of potential arbitrators designated by the contracting parties; in surplus, rules for the arbitral procedures
have been adopted and progressively expanded and
modernized. As for judicial setdement properly said,
the first attempt to institute a specialized permanent
tribunal was made by the Convention on the Conversion ofMerchant Ships into War Ships ([1908) 2 AJIL
Supp 133) creating the -+ International Prize Court
(!PC), which was never established in fact; for its part
the-+ CentralAmerican Court ofjustice (1307-18) created in 1907 disappeared 10 years la ter and it was on! y
in 1920 that the first permanent judicial body could be
established at cille universal leve!-the PCIJ, replaced
by the ICJ in 1945. The second half of the 20th century has seen a blooming of numerous judicial bodies
in many regional and technical frameworks .
40 The parties to a given dispute may, in most casesexcept when cille third party itself is bound by its own
statute-(see Pree Zones of Upper Savoy and the District
of Gex [France v Switzerland] [Order} PCI] Series A No
22; -+ Pree Zones of Upper Savoy and Gex Case), adjust
the modalities of the procedure or of the outcome of the
means ofsettlement they resort to. However, the general
rules applicable to each of these various techniques are
now, in their general !ines, weil fixed-and were essentially laid clown in the Hague Conventions I of 1899
and 1907 and in the 1928 General Act. In fact, al! innovations since cillen are but variations on the same general them es. Even the massive outbreak ofinternational
organizations in the pacifie setdement of international
disputes since 1945 has not radically changed the general profiles of the various means traditionally resorted
to. Thus, the UN bodies, and in particular, cille Security Council, the General Assembly, or the SecretaryGeneral have recourse, according to circumstances, to
good offices, mediation, or conciliation. However a
drastic innovation lies in the fact that, at !east as far as
the Security Co un cil is concerned, the recourse to th ose
means, and, in sorne hypocilleses the solution itself, can
be imposed on the parties, thus seriously breaking the
consent principle, when the international peace and
security are, or are likely to be, breached or threatehed.
212
2. Progressive Institutionalization ofthe Peaceful
Means ofSettlement ofInternational Disputes
43 The main weaknesses of this very innova .
tlve
mechanism were that (i) the Council could not in
vene in relation ~it~ matters 'w~ic~ ~y i.nrernatiot~~
41 The absence of any general mechanism of enforcelaw [are] solely wtthm the domesuc JUnsdtction'; (ii) it
ment of the obligation to peacefully settle international
could only make recommendations, comrary to wha
disputes (para. 11 above) must not conceal the profound
was envisaged in the Protocol for the Pacifie Settle~
changes which have occurred in the implementation of
ment of International Disputes which never entered
the principle since its origins. The main traits ofthe evoluimo force-para. 9 above, and (iii) when said recom.
tion ofthe peaceful seulement probablyare its progressive
mendations could not be unanimously agreed to b
'externalization' and its instirutionalization: while origithe members, recourse to war was permitted. Art. 1~
nally limited to a diplomatie negociation between the
League Covenam scaffolding is us ua!!y seen as a failure
protagonists of a given dispute, the seulement of inter(even though it was used in severa! cases more or Jess
national disputes has progressively involved more syssuccessfully-see, eg -4 Aiand islands dispute between
tematically third parties and, in particular, international
Finland and Sweden [(1920) 1 League ofNations Of!i.
organizations which, at the world or regionallevels, are
cial Journal, Spec Supp 3, 3]; the Sino-]apanese Case
nowadays qui te usually the framework in which disagree([1931] LoN Officia!Journal2453; League ofNations
ments between States, and other actors, are settled. This
'Report of the Lytton Commission on
is in striking contrast with_th~traditiQnal decentralized
of Nations Publications vol -7 No 12; LoN General
cnaraci:er ofthe international society which, contrary to
Assembly 'Resolution of 24 February 1933' LoN
domestic legal orders, offers no organ entrusted with the
Official Journal Spec Supp 112, 75; the Leticia Case
(quasi-) monopoly of the settlement of disputes.
between Colombia and Peru [case brought before the
Council in January 1933, Report accepted by the par(a) The League ofNations and the United Nations
ties on 23 June 1933, LoN Official Journal10/1933];
42 It is onlywith the League ofNations that the interand the League of Nations 'Report of the League of
vention of international organizations in international
Nations Commission on the Chaco Dispute [11 May
disputes has become usual: the League Covenant
1934] [1934] 2 AJIL Supp Official Documenrs 137;
in eludes five articles relating to peaceful settlement (Ans
see also -4 Gran Chaco Conflict [1928-35]).
12-15 and 17 League Covenant-the latter concerning disputes involving States which were not members 44 The United Nations Charter accemuates the trend
of the League). The League Covenant not only imposed towards the institutionalization of the peaceful seulea limited obligation to peacefully settle international ment of international disputes, but on!y very partially
disputes (para. 9 above), but also envisaged the estab- remedies the weaknesses of the League Covenant.
lishment of a permanent judicial organ, the PCI]. The Chapter VI UN Charter (Arts 33-38) is fully devoted
Court, 'competent to hear and determine any dispute to the 'Pacifie Settlemem of Disputes', but it is primaof an international character which the parties thereto rily concerned with disputes, or situations, of a parsubmit co it' or co 'give an advisory opinion upon any ticular character: chose, 'the continuance of which is
dispute or question referred to it by the Council or by likely to endanger the maintenance of international
the Assembly' of the League of Nations, was eventu- peace and security'. Besicles recalling the principle
ally created outside the organization, by a Stature of that the parties to any such dispute, 'sha!l, first of ali,
the Permanent Court oflnternational Justice (6 LNTS seek a solution' by one of the peaceful means enumer389). Moreover, Art. 15 League Covenant organized ated-non-exhaustively-in Art. 33 (1) UN Charter
the compulsory intervention of the Council in 'any dis- (para. 11 above), Chapter VI UN Charter provides for
pute likely to lead to a rupture, which is not submitted the intervention of the Security Council, the General
to arbitration or judicial setdement in accordance with Assembly, and the IC]. Art. 33 UN Charter chen has
Article 13', th us establishing a 'war moratorium' dur- been righdy described as an article-charnière (a piving the effortS for the peaceful resolution of the dispute ota! article-see JP Quéneudec 1\rticle 33' in JP Cot
and prohibiting war against any party complying with and A Pellet [eds] La Charte des Nations Unies: Comrecommendations unanimously adopted by the Co un- mentaire article par article [2nd ed Economica Paris
1991] 566): complementing Art. 2 (3) UN Charter
cil which could also refer the dispute co the Assembly.
wl
it
(0
ot
th
Cl
4!
ex
~ry
Y' international
sdiction'; (ii) it
ntrary to what
Pacifie Settlenever enrered
:n said recorn. agreed to by
titted. Art. 15
:en as a fail ure
s more or less
;pute between
Nations Qffi_
/apanes_e
ue of Nations
quiry' League
LoN General
1933' LoN
: Leticia Case
he before the
d by the partai 1011933];
1e League of
ute [11 May
umenrs 137;
).
tes the trend
1ceful settleery partially
: Covenanr.
1lly devoted
: it is primats, of a parofwhich is
tternational
e principle
first of ali,
ns enumerN Charter
'rovides for
1e General
:r then has
ère (a pivin ]P Cot
ûes: Comnica Paris
~ Charter
which enunciates a general principle (para. 3 above),
it imposes upon the parties che primary responsibility
to settle cheir dispute by means of their choice, but it
olfers the safety net of the UN machinery and opens
the way to the use of the coercive means envisaged in
Chapter VII UN Charter.
45 The Security Council has the primary role as
~ipressly recognized by para. II (4) Manil a Declaration:
'when it deems it necessary', it shall cali upon the par, ties to settle their dispute by such means (Art. 33 (2)
ùN Charter), or may make recommendations to the
parties to any dispute to that end 'if ali the parties to
any dispute so request' (Art. 38 UN Charter); pre~entively it-'may inv-estigate any disp_ute, or any situ'{' ation which might lead to international friction or
,-give rise to a dispute, in order co determine whether
the continuance of the dispute or situation is likely
•-to endanger the maintenance of international peace
and security' (Art. 34 UN Charter- on the difference between a 'dispute' and a 'situation', see para. 1
above); any State, whether a member of the United
Nations or not, may bring any dispute, or any situation of that kind to the attention of the Council
• (Art. 34 UN Charter) and so can the SecretaryGeneral (Art. 99 UN Charter), while States must do
so in case of failure of the pacifie means indicated
in Art. 33 UN Charter (emphasis added;Art. 37 (1)
UN Charter); and the Council, at any stage of the
dispute (or in respect to the 'situation'), may 'recominend appropriate procedures or methods of adj usement' (Art. 36 (1) UN Charter) and, ifit 'deems chat
~...,..,..,.,____continuance of the dispute is, in fact, likely to
.. endanger the preservation of international peace
" and security, it shall decide whether to cake action
under Article 36 orto recommend su ch ter ms ofset- dement as it may consider appropriate' (Art. 37 (2)
UN Charter); moreover, a dispute not peacefully
settled can constituee a threat to the peace and, if it
determines that this is the case (Art. 39 UN Charter), the Security Council will have recourse to the
....~easures contemplated in Chapter VII UN Charter
(--+Sanctions).
46 However, it must be noted that, when acting
- under Chapter VI UN Charter, the Council has not
been much concerned with the special qualifications
of the dispute as defined in chose provisions, whether
concerning:
•
213
the distinction between a situation and a dispute,
describing the same faces successively as a 'situation'
or a 'dispute' (see, eg, the Kashmir crisis-cfUNSC
Res 38 [17 January 1948] and UNSC Res 123 [21
February 1957]-or using both wordings to designate one and the same issue in a single resolutionsee, eg, UNSC Res497 [17 December 1981)); or-the
likeliness chat it endangers the international peace or
security-a distinction, at !east in this form, which is
made neither in Art. 2 (3) UN Charter nor in principle 2 para. 1 Friendly Relations Declaration or in
para. I (2) Manila Declaration; this is in line with the
constantly expanding interpretation of a threat to
the peace by the Security Council when it acts under
Chapter VII (Art. 39 UN Charter; a notion including 'human wigedy' in one country-see UNSC Res
794 [3 December 1992]).
47 Art. 35 (1) and (2) UN Charter also opens to ali
States the possibility to bring any dispute or situation which might lead to international friction to the
attention of the General Assembly as weil as to chat of
the Council, whereas Art. 14 UN Charter entitles the
Assembly to 'recommend measures for the peaceful
adjustment of any situation'. Moreover, wh en acting
under Art. 36 UN Charter, the UNSC may refer a dispute for settlement to the General Assembly, as it did in
the Spanish case (UNSC Res 10 [4 November 1946]).
However, the role of the Assembly in that matter is secondary in that
[w]hile the Security Council is exercising in respect
of any dispute or situation the functions assigned
to it in the ... Charter, the General Assembly shall
not make any recommendation with regard to that
dispute or situation unless the Security Council so
requests (Art. 12 (1) UN Charter).
Nevertheless, the General Assembly has not refrained
from considering situations on the Security Council's
agenda, but it has refrained from taking decisions on
chose matters (see United Nations United Nations Repertory ofPractice of United Nations Organs Supplement
No 8 [1989-94] vol 2 under Art. 12; see also United
Nations Secretariat [ 1991] 95 United Nations Juridicial
Yearbook 289) in line with the--+ Unitingfor Peace Resolution (1950) (Resolution 'Dean Acheson'-UNGA
Res 377 [V] 'Uni ting for Peace' [3 November 1950])which is, however, more a soft alternative to Chapter
VII than a complement to Chapter VI UN Charter.
214
48 Moreover, the UN Charter creates the IC] as 'the
principal judicial organ of the United Nations' (Art. 92
UN Charter-see more generally Chapter XIV UN
Charter), and vests it with the competence to decide
on 'ali cases which the parties refer to it' (Art. 36 (1)
IC] Stature). For its part, in making recommendations
under Art. 36 (3) UN Charter, the Security Council
is supposed to 'take into consideration that legal disputes should as a general rule be referred by the parties
to the International Court of Justice' (para. 34 above)
and 'may, if it deems necessary, make recommendations or decide upon measures to be taken to give to
the judgment' in case of non-performance by one of
the parties upon request of the other party (Art. 94 UN
Charter-see para. 11 above). Interestingly, only once
did the Security Council recommend the parties to a
dispute to refer it to the ICJ on the basis of Art. 36 (3)
UN Charter (UNSC Res 22 [9 April 1947] relating
to the ~ Corfu Channel Case; see also Corfu Channel
[United Kingdom ofGreat Britain and Northern freland
v Albania} [Preliminary Objections} [Separate Opinion
by ]udges Basdevant, Alvarez, Winiarski, ZoriCié, De
Visscher, Badawi Pasha, Krylov} [1948] IC] Rep 31 and
the more indecisive invitation addressed to the parties
in UNSC Res 395 [25 August 1976] concerning the
Aegean Sea Continental Shelf [Greece v Turkey} [1978]
IC] Rep 3).
49 More generally, this complex mechanism has
worked with mitigated results. The most intrusive
means of settlement theoretically at the disposai of the
United Nations have been sparingly used: the judicial
settlement through the IC] has remained marginal and
neither the Security Co uncil nor the General Assembly
has fully exploited the possibilities offered by the Charter. While the resolutions adopted by the Council in
matters concerning the pacifie settlement of disputes
could be legally binding (cf Legal Consequencesfor States
of the Continued Presence of South Africa in Namibia
[South West Africa} notwithstanding Security Council
Resolution 276 [1970} [Advisory Opinion} [1971] IC]
Rep 52-53 para. 113)-for example if the parties had
decided to refera dispute toit and agreed to vest it with
decision-power, it has mainly acted through recommendations and its decisions on the substance of the
disputes have always been grounded on Chapter VII
UN Chapter, th us going beyond the scope of the mere
pacifie settlement of disputes. This is the case when the
Council has imposed particular means of settlement
on one particular State (see UNSC Res 687 [3 April
1991] and UNSC Res 692 [20 May 1991] , establish.
ing the UN Compensation Commission to determine
the scope oflraq's liability in relation with the invasion
of Kuwait, or UNSC Res 731 [21 January 1992] and
UNSC Res 748 [31 March 1992]-imposingon Libya
ir
to surrender two nationals suspected in the Lockerbie
A
incident, to accept responsibility and to pay compen.
sation). In chose cases and others (see, eg, UNSC Res
5
1022 [22 November 1995]; UNSC Res 1244 [ 10 June
[\
1999]; UNSC Res 1464 [4 February2003] and UNsc
cl
Res 1527 [4 February 2004]; UNSC Res 1564 (18
tJ
September 2004], requesting the Secretary-General to
(
establish a commission of inquiry [the Cassese Com.
t•
mission]; UNSC Res 1595 [7 April2005); UNSC Res
0
1664 [29 March 2006] and UNSC Res 1757 [30 May
2007) ~taglishing firs_t:__an_inyestigation -CoJmnlJSS:IOn;---r - s
the Special Tribunal in relation to different attacks in
J
Lebanon), the Security Council clouds the issue and
prevents any clear-cut distinction between Chapters VI
and VII UN Charter.
50 For its parr, the General Assembly does not enjoy
any decision-making power in this field but, like the
Security Council, has created commissions of inquiry
(UNGA Res 106 [S-1] 'Special Committee on Palestine' [15 May 1947]; UNGARes 1601 [XV] 'The Situation in the Republic of the Congo' [15 April 1961]
or UNGA Res 3114 [XXVIII] 'Establishment of the
Commission oflnquiry on the Reported Massacres in
Mozambique' [12 December, 1973]; or entrusted the
Secrerary-General with missions of [non-compulsory]
peaceful setdement• UNGA Res 63/245 'Situation of
Human Rights in Myanmar' [24 December 2008)) and it has frequendy associated itself with the positions
taken by the Council (UNGA Res 61/18 'The Situation in Afghanistan' [28 November 2006]; UNGARes
62/116 'Question of Western Saharà [17 December
2007]).
51 Sorne of the subsidiary bodies have equally
engaged in various forms of dispute setdement. 1hus,
the Human Rights Council, created by UNGA Res
60/251 'Human Rights Council' (15 March 2006) in
orcier to replace the much criticized Commission on
Human Rights, has also established fact-finding missions (see UN HR Council Resolution S-9/1 Grave
Violations ofHuman Rights in the Occupied Palestinian Territory [12 January 2009] or UN HR Council
s 687 [3 April
91], establish1 to determine
h the invasion
1ry 1992] and
)Sing on Libya
the Lockerbie
pay compeng, UNSC Res
1244 [10]
3] and UNSC
Zes 1564 [18
ry-General to
:=assese Com-
]; UNSCRes
757 [30
commission,
:ne attacks in
the issue and
t Chapters VI
>es not enjoy
but, like the
1s of inquiry
tee on PalesV] 'The SituApril 1961]
ment of the
Massacres in
ntrusted the
:ompulsory]
Situation of
1ber 2008])
he positions
'The SituaUNGARes
'December
tve equally
nene. Thus,
JNGA Res
:h 2006) in
mission on
nding mis-.
-9/1 Grave
:d PalestinR Council
Situation of Human Rights in
[13 December 2006]; UN HR Co un cil 'Implementation of General Assembly Resolution 60/251 of
15 March 2006 [9 March 2007]) or the Baena Soares
Commission to inquire imo human rights violations
in Lebanon (UN HR Council Resolution S-2/1 [11
2006]).
Peaceful means of settlement are not only a substiarmed conflicts, but equally a way of preventing
them (see, eg, the IC] Judgment in the case of-+ Maritime Delimitation and Territorial Questions between
Qatar and Bahrain [Qatar v Bahrain], which put an end
co.a 100-year-old dispute and prevented the outburst
of an armed conflict; see C Paulson 'Compliance with
[jPiitalîlrdgrr.tents of the-International--Co.urLoLJustice
sirice 1987' [2004] 98 AJIL 433-61, 453-55). In the
Agenda for Peace, Secretary-General Bourros-Ghali
defines 'preventive diplomacy' as an 'action to prevem
disputes from arising between parties, to prevent existlng disputes from escalating imo conflicts and to limit
the spread of the latter wh en they occur' (para. 20). This
new policy of conflict prevention, carried on by Kofi
Annan (see 'Prevention of Armed Conflict: Report of
the Secretary-General' [7 June 2001]) and approved
by the Security Council (UNSC Res 1366 [30 August
2001]), led, on occasion, to the deployment of peacekeeping forces to prevent the outburst of an armed conillet (see in particular UNSC Res 795 [11 December
1992]-deployment of the United Nations Protection
Force in the former Yugoslav Republic ofMacedonia).
The· important role of preventive diplomacy was
~._2:~1litz<~u by UN GA Res 471120, by the UN Millenaswell as bythe UN SC Res 1318 (see
·also· UNGA Res 611293 [13 September 2007], or, in
~he same vein, UNSC Res 1887 [24 September 2009];
UN GARes 64/109 [11 December 2009]).1he philoso!iliy, or at !east the rhetoric, of prevention is therefore
slowly making its way in the UN's approach to conflict
settlemem. Accordingly, prevention stands at the heart
of the International Commission on Intervention and
State Sovereignty 'The Responsibility to Protect' in
UNGA 'Letter Dated 26 July 2002 from the Permanent Representative of Canada to the United Nations
addressed to the Secretary-General' (14 August 2002).
Secretary-General Ban Ki-moon's Report 'Implementing the Responsibility to Protect' (12 January 2009)
endorses the concept, underlying the necessity of a preventive strategy.
215
(b) Regional and Technical Organizations
53 Whether express! y or in practice, ali regional international organizations offer to their Member States
sorne kind of mechanism for the peaceful settlement
of disputes-at !east chose concerning the interpretation or application of their constitutive aces (cf Art. 24
ASEAN Charter of the Association of Southeast Asian
Nations, Art. 26 Constitutive Act of theMrican Union,
Art. 37 Charter of the Organization of the Islamic
Conference, Art. 29 Convention Establishing the
Association ofCaribbean States [1895 UNTS 3], etc).
Moreover, continental and, sometimes, sub-regional
organizations, frequently instituee mechanisms which
can be used in view of the peaceful settlement of disputes between their members.
54 Thus, in the Americas, the Imer-American Gommittee on Peaceful Settlement (which replaced in 1970
the Inter-American Peace Committee created in 1940)
and the Permanent Council of the OAS play a primary
role in the peaceful resolution of disputes on the continent (see Arts 84-89 Charter of the Organization of
American States; 119 UNTS 3), while the general and
more classical procedures envisaged by the 1948 Pact
ofBogota are rarely resorted to (see however the-+ Border and Transborder Armed Actions Case [Nicaragua v
Honduras; Nicaragua v Costa Rica}; the -+ Territorial
and Maritime Dispute Case [Nicaragua v Colombia];
the Dispute regarding Navigational and Related Rights
[Costa Rica v Nicaragua] [judgment] [19 July 2009];
the Maritime Dispute [Peru v Chile] [Application]
[18 January 2008]; and the Aerial Herbicide Spraying
[Ecuador v Columbia] [Application] [31 March 2008],
ali introduced before the IC] on the basis of Art. 31
Pact of Bogot:i). In Central America, the Tegucigalpa
Protocol to the Charter of the Organization of Central American States (1695 UNTS 382; amending
the Charter of the Organization of Central American
States) injected new !ife in chat Organization by creating the Central American Integration System and
by reorganizing the Central American Court of Justice (see the Demanda por violacion de normativa del
y principios comunitarios centroamericanos del Sistema
de la IntegracùJn Centroamericana [SICA] [Nicaragua v
Honduras] [27 November 2001] 13 Gazera Oficial de
la Corte Centroamericana de Justicia 2). Within the
Caribbean Community ('CARICOM'), the Revised
Treaty of Chaguaramas Establishing the Caribbean
Community Including the CARICOM Single Market
216
and Economy (2259 UNTS 293) establishes a comprehensive system of dispute settlement in which the
various institutions (Conference of the Heads of States,
Council ofMinisters, Caribbean Court of]ustice) may
perform a function of dispute settlement (Arts 187223). ln the--> MERCOSUR, various treaties tended to
institutionalize the procedure of settlement of disputes,
although with micigated results. Thus, the Treaty for
the Establishment of a Common Market between the
Argentine Republic, the Federative Republic of Brazil,
the Republic of Paraguay and the Eastern Republic of
Uruguay (2140 UNTS 257; 'Treaty of Asunci6n') only
provided for an obligation to negotiate whose failure
opens the pa th to conciliation under the auspices of the
political organs of the organization (Annex III Treaty of
Asunci6n). The Protocol of Brasilia for the Settlement
of Disputes adds that the failure of the poli ti cal mechanisms leadno-the estal5lïsliment0f an ad hoc arbitral
tribunal (Arts 8-24 Prorocol of Brasilia for the Settlement of Disputes) , whereas the Olivos Protocol for the
Solution of Controversies in the Mercos ur accentua tes
the judicial aspect through the establishment of a Permanent Review Court which has competence to confirm, modify, or revoke the arbitral decisions (Art. 22
Olivos Prorocol).
55 In accordance with Art. 5 Charter (Pact) of the
League of Arab States, the Council of the organization can 'mediate in a dispute which may lead to war
between two Member States or berween a Member
State and another State in order to concilia te them' and
enjoys an optional competence to arbitrate 'should the
two contending parties apply' to it.
56 The --> European Convention for the Peacefol SettlementofDisputes (1951) of29 April1957 also contains
a jurisdictional clause providing for the jurisdiction
of the ICJ (Art. 1 ECPSD) which has been invoked
in sorne cases (see Certain Property [Liechtenstein v
Germany] [Preliminary Objections}; or jurisdictional
Immunities of the State [Germany v !taly] [Application}
[23 December 2008)) but ir does not institutionalize
any specifie mechanism (see also Art. 33 --> European
Convention for the Protection ofHuman Rights and Fundamental Freedoms [1950} on inter-State applications) .
ln the framework of the --> Organization for Security
and Co-operation in Europe (OSCE), on the other hand,
rwo institutional mechanisms are at the disposai of
the Member States for settling their disputes: the 'La
Valetta Dispute Settlemem Mechanism' created by
Report of 1991 (OSCE 'Principles for the Settlernen:
of Disputes, and Decisions on Procedures of the Con.
ference on Security and Co-operation in Europe for th
Settlement of Disputes' [8 February 1991]) amende~
in 1992, which combines rather tortuously rnediation and more or Jess 'compulsory conciliation' (para.
66 below) and the Court of Conciliation and Arbitrarion instituted by the Convention on Conciliation and
Arbitration Within the Conference on Securiry and
Co-operation in Europe; none of them has ever been .
used up to now (20 10) but the OSCE offers its good
offices or acts as a mediator (see, eg, the good offices
mission concerning the Russian minorities in Estonia
and Larvia ['CSCE Mission to Estonia' (13 Decernber
1992) CSCE/18-CSO/Journal No 3, Annex 2; 'CSCE
Mission to Larvi~' (23 September 1993)
CSO/Jou~al No 3, Annex 3]; the mediation between
Moldova and Transdniestria which started in 1993
['CSCE Mission to the Republic of Moldova' (4 February 1993) CSCE/19-CSO/Journal No 3, Annex 3);
the 'Minsk Process', from 1995 onwards, in the case of
the Nagorno-Karabakh berween Armenia and Azerbaijan) or proceeds to inquiry (see, eg, 'Verification Mission to Kosovo' [25 October 1998] PC.DEC/263;
the fact-finding missions in Chechnya ['Assistance
Group to Chechnya' (11 April1995) PC.DEC/35] or
Croatia ['CSCE Mission to Croatià (18 April 1996)
PC.DEÇ/112)) on acase-by-case basis. As for the European Union ('EU'), it gets more and more involved in
the civilian aspects of crisis management, as a part ofits
security and defence policy. In 2010 24 such missions
were deployed in Europe, Mrica, and the Middle East.
Moreover, on 2 December 2008, the EU esrablished
an independent fact-finding mission on the confl.ict
in Georgia to investigate the origins and course of the
conflict (see Council Decision 2008/901/CFSP of 2
December 2008 concerning an Independent International Fact-Finding Mission on the Conflict in Georgia
[2008] 0] L323/66 and Independent International
Fact-Finding Mission on the Conflict in Georgia [30
September 2009)) .
57 Uncontroversially, it is within the European Union
that the most sophisticated mechanisms have been set
up since 1951 . Following the Treaty Establishing the
European Economie Community (294 UNTS 17)
instituting the --> European (Economie) Community,
the Treary on the Functioning of the European Union
:reared by a
' Sertlemenr
of the Conrope for the
Damended
ts!y media.tion' (para.
nd Arbirrailiation and
:curiry
> ever been
:rs its good
ood offices
in Estonia
December
: 2; ~~··"='"-2SCE/23n between
l in 1993
ra' (4 FebAnnex 3];
:he case of
:!Azerbai.tion Mis)EC/263;
\ssistance
~C/35] or
•cil 1996)
theEurovo!ved iri
Dart ofits
InternaGeorgia
lational
·gia [30
Union
set
ng the
·s 17)
:unity,
Jnion
~en
OJ C115/47; 'TFEU') excludes any possibilco sett!e disputes between Member States concernits implementation outside the mechanisms it secs
(para. 68 below) in respect co the -+ MOX Plant
.. ilrlnm~""'" and Cases. Two such mechanisms must be
, ...,,.m,u"'"'~· the proceedings for failure co fulfil anoblias established by Art. 259 TFEU (ex Art. 227
.ou~v''""·"'~ Version of che Treacy Establishing the
Community [(2006) OJ 321E/37; 'TEC'];
!"."-'""<-=c::. Case C--459/03 Commission of the European
't: fi:omrr.!un;meJ v freland [2006] ECR I-4635 or Case
45/04 Kingdom ofSpain v United Kingdom ofGreat
and Northern freland [2006] ECR I-7917) and
seising of the ECJ through a compromis (Arc. 273
, ex Art. 239TEC).
217
concerning its interpretation or application which, in
che absence of any satisfactory settlement, can be submitted to the IC]. A similar mechanism is set up in
Art. 75 Constitution of the World Health Organization
(14 UNTS 185;-+ WorldHealth Organization [WHO];
see Armed Activities on the Territory of the Congo (New
Application: 2002] [Democratie Republic of the Congo
v Rwanda] ljurisdiction andAdmissibility] 43). Art. 24
Articles of Agreement of the International Monetary
Fund (2 UNTS 39; -+ International Monetary Fund
(!MF]) endow che Board of Executive Directors and
the Board of Governors with the competence to issue
interpretative decisions binding upon the members,
induding wich respect co disputes berween members
(for a discussion on the binding nature ofits decisions,
see West v Multibanco Comermex, United States Court
ti:J.e non-use-uf-the Jess sophis-of AppealSNinth CirCUit [ôJanuary 1987·]- 807- F 2cl
rlcated mechanism created within the framework of
820). The-+ International Civil Aviation Organization
the lace Organization of African Unicy ('OAU')-see
(ICAO)'s Constitution puts the Council at the heart of
the Protocol of the Commission of Mediation, Conthe mechanism of dispute seulement (Art. 84 Conven~ili~tion and Arbitration and the Cairo Declaration
tion on International Civil Aviation; 15 UNTS 295;
AP.proving a Mechanism for Conflict Prevention,
'Chicago Convention'); this mechanism was uncouManagement and Resolution in Africa-the Protocol
pled on occasions (for instance, in 1971 when Pakistan
telati~g to the Establishment of the Peace and Securicy
seised the Council of a dispute with India; the CounCouncil of the African Union establishes the Peace and
cil's decision on the admissibility of the request was
Serurity Council 'as a standing decision-making organ
submitted for annulment co che IC]-Appeal Relating
for the prevention, management and resolution of conto the ]urisdiction ofthe !CAO Council (India v Pakistan]
fliers' which is at the heart of a much more complex and
[1972] ICJ Rep 46). Furthermore, the Council dealt
arnbitious machinery vested with very diverse funcwith disputes more informally, outside the framework
tions, among which 'peace-making, induding the use
of Arc. 84 Chicago Convention (see the fact-finding
of good offices, mediation, conciliation and enquiry'
investigation established, on the basis of Art. 55 Chi(Art. 6 (c) Protocol relating to the Establishment of the
cago Convention, by the lCAO Secretary-General
Peac~ and Securicy Council of the African Union), but
on the Soviets' missile attack on the Korean Airlines
y;ith n() real power of decision in the field of dispute
flight 007 in 1983-GF Fitzgerald 'The Use of Force
j~tdement. Still in Africa, severa! sub-regional organiagainst Civilian Aircraft: The Aftermath of the KAL
zaèions also have competences in this field, in particuFlight 007 Incident' [1984] 22 ACDI 291-311). Lasr
lar the Economie Community ofWest African States
but not least, the Constitution of the International
('ECOWAS') and the-+ Southern African Developme~t
Labour Organization (15 UNTS 40; -+International
Community (SADC).
'
.. '
Labour Organization [lLO]) provides for quasi-judicial
59- The mechanisms of dispute sectlement within mechanisms of complaint chat inspired the creation of
technical organizations rely on the political bodies and/ the human rights monitoring bodies (para. 30 above).
or specialized committees, which act as quasi-judicial They sertie mainly hybrid disputes-the representation
bodies. Being adopted within an institutional frame, procedure of Arts 24 and 25 lLO Constitution allows
the decisions are auchoritative for the interpretation an association of employees or workers to complain
of the constitutive act of che organization and can be against a State-although Arts 26-33 lLO Constituadjudicatory in nature. Art. 69 Convention on the tion provide for conciliation in inter-State disputes,
l_!lternational Maritime Organization (289 UNTS this was rarely used (insofar, six procedures; see CJ
3; ' -+ International Maritime Organization [!MO]) Tams Enforcing Obligations erga omnes in International
gives che Assembly a specifie role in resolving disputes Law [CUP Cambridge 2005] 72).
216
and Economy (2259 UNTS 293) establishes a comprehensive system of dispute settlement in which the
various institutions (Conference of the Heads of States,
Council ofMinisters, Caribbean Court ofJustice) may
perform a function of dispute settlement (Arts 187223). In the-> MERCOSUR, various treaties tended to
institutionalize the procedure of settlement of disputes,
although with mitigated results. Thus, the Treaty for
the Establishment of a Common Market berween the
Argentine Republic, the Federative Re public of Brazil,
the Republic of Paraguay and the Eastern Republic of
Uruguay (2140 UNTS 257; 'Treaty of Asunci6n') only
provided for an obligation to negotiate whose failure
opens the path to conciliation under the auspices of the
political organs of the organization (Annex III Treaty of
Asunci6n). The Protocol of Brasilia for the Settlement
of Disputes adds thar the failure of the political mechanisms leads to-theestaolïslïment Of an aâ noe arbitral
tribunal (Arts 8-24 Protocol of Brasilia for the Seulement of Disputes), whereas the Olivos Protocol for the
Solution of Controversies in the Mercosur accentua tes
the judicial aspect through the establishment of a Permanent Review Court which has competence to confirm, modifY, or revoke the arbitral decisions (Art. 22
Olivos Protocol).
55 In accordance with Art. 5 Charter (Pact) of the
League of Arab States, the Council of the organization can 'mediate in a dispute which may lead to war
between rwo Member States or berween a Member
State and another State in arder to conciliate them' and
enjoys an optional competence to arbitrate 'should the
rwo contending parties apply' toit.
56 The ~ European Convention for the Peaceful Settlement ofDisputes (1 957) of 29 April 1957 also co mains
a jurisdictional clause providing for the jurisdiction
of the ICJ (Art. 1 ECPSD) which bas been invoked
in sorne cases (see Certain Property [Liechtenstein v
Germany] [Preliminary Objections]; or jurisdictional
Immunities of the State [Germany v ltaly] [Application]
[23 December 2008]) but it does not institutionalize
any specifie mechanism (see also Art. 33 -> European
Convention for the Protection ofHu man Rights and Fundamental Freedoms [1950] on inter-Stace applications) .
ln the framework of the -> Organization for Security
and Co-operation in Europe (OSCE), on the other hand,
two instirutional mechanisms are at the disposa! of
the Member States for setding their disputes: the 'La
Valetta Dispute Setdemem Mechanism' created by
Report of 1991 (OSCE 'Principles for the Settlemen:
of Disputes, and Decisions on Procedures of the Co
nference on Security and Co-operation in Europe for th
Setdemem of Disputes' [8 February 1991]) amende~
in 1992, which combines rather tortuously media.
tian and more or less 'compulsory conciliation' (para.
66 below) and the Court of Conciliation and Arbitrati on instituted by the Convention on Conciliation and
Arbitration Within the Conference on Security and
Co-operation in Europe; none of them has ever been
used up to now (20 1O) but the OSCE offers its good
offices or acts as a mediator (see, eg, the good offices
mission concerning the Russian minorities in Estonia
and Latvia ['CSCE Mission to Estonià (13 December
1992) CSCE/ 18-CSO/Journal No 3, Annex 2; 'CSCE
Mission to Latvià (23 September 1993) CSCE/23CSO/Journal No 3, Annex 3] ; the mediation between
Moldova and Transdniestria which started in 1993
['CSCE Mission to the Republic of Moldova' (4 February 1993) CSCE/19-CSO/Journal No 3, Annex 3];
the 'Minsk Process', from 1995 onwards, in the case of
the Nagorno-Karabakh berweenArmenia andAzerbaijan) or proceeds to inquiry (see, eg, 'Verification Mission to Kosovo' [25 October 1998] PC.DEC/263;
the fact-finding missions in Chechnya ['Assistance
Group to Chechnya' (11 April1995) PC.DEC/35) or
Croatia ['CSCE Mission to Croatià (18 April 1996)
PC.DEÇ/112]) on acase-by-case basis.AsfortheEuropean Union ('EU'), it gets more and more involved in
the civilian aspects of crisis management, as a part ofirs
security and defence po licy. In 2010 24 such missions
were deployed in Europe, Africa, and the Middle East.
Moreover, on 2 December 2008, the EU established
an independent fact-finding mission on the conflict
in Georgia to investigate the origins and course of the
conflict (see Co un cil Decision 2008/90 1/CFSP of 2
December 2008 concerning an Independent International Pact-Finding Mission on the Conflict in Georgia
[2008] OJ L323/66 and Independent International
Fact-Finding Mission on the Conflict in Georgia [30
September 2009]).
57 Uncontroversially, it is within the European Union
thar the most sophisticated mechanisms have been set
up since 1951. Following the Treaty Establishing the
European Economie Community (294 UNTS 17)
instituting the -> European (Economie) Community,
the Treaty on the Functioning of the European Union
218
3. Com bining the Use ofthe ~rious
Means of Peaceful Settlement
60 Neither Art. 2 (3) nor Arr. 33 UN Charter fixes any
priority among the peaceful means to settle disputes
which they list. And the Pact ofBogota expressly states
thar none of the means it enumerates has 'preference
over others except as expressly provided' (Art. 3 Pact
ofBogora).
61 Even recourse to negociations has no predominance over the other means of setdement. However,
concretely, 'negociations occupy a somewhat special
position' (Tomuschat La Charte des Nations Unies
(2002] 588) in thar:
'States should, without prejudice to the righr of free
choice of means, bear in mind chat direct negociations are ;1. flexible and....effective means.-of peaceful
setdement of their disputes' (para. I (1 0) Manila
Declaration); they can be a necessary prerequisite
to idemify the existence and content of a dispute
brought before a third party (Mavrommatis Palestine
Concessions [Greece v Great BrÛain} {jurisdiction} 24
or Right of Passage over !ndian Territory [Portugal v
India} [Preliminary Objections} (1957] IC] Rep 125;
--> Right of Passage over Indian Territory Case); the
choice of a particular means of settlement necessarily
in volves sorne kind ofnegociation at a ti me or another
(commonly ex ante, when the parties adopted a convention or a special provision of a larger creaty relating to the setdement of future disputes); and failing
an agreement for having recourse to other means,
negociations will remain the common-law means for
the pacifie setdement, from which the parties cannot
escape except by seising the UN Security Council or
the General Assembly in accordance with Art. 35 (1)
UN Charter, a possibilitywhich constituees the only
real li mit to the consensual principle (para. 29 above)
and, by way of consequence, of the free choice of the
peaceful means of dispute setdement.
62 Moreover, exact!y as for any other means of sertiement, negociations can be held together and in parallel
with those other means. This is crue for:
direct negociation and judicial setdement: 'Neither
in the Charter nor otherwise in international law is
any general rule to be found to the effect thar the
exhaustion of diplomatie negociations constituees a
precondition for a matter to be referred to the Court'
(Land and Maritime Boundary between Cameroon
and Nigeria {jurisdiction} (2002] ICJ Rep 303; see
also Aegean Sea Continental Shelf [Greece v Turkey]
{jurisdiction} 12 para. 29); judicial settlemenr and
resort to regional arrangements: ' ... the Coure is
unable to accept either thar there is any requirernenr
of prior exhaustion of regional negotiating processes
as a precondition to seizing the Court; or thar the
existence of the Contadora process constituees in
this case an obstacle to the examina ti on by the Courr
of the Nicaraguan Application and judicial determination in due course of the submissions of the Parties
in the case' (Military and Parami!itary Activities in
and against Nicaragua {jurisdiction and Admissibi/ity} 440-41 para. 106; see also Armed Activities on
the Terri tory of the Congo [New Application: 2002}
{jurisdiction and Admissibility} 4_!_p~~- 92 and 43_
--para. 100); orattempt to settle the dispute within
the Security Council and before the IC] : 'the Court
is of the view chat the face thar a matter is before the
Security Council should not prevent it being dealt
with by the Court and thar both proceedings could
be pursued pari passu'. (Military and Paramilitary
Activities in and against Nicaragua {jurisdiction and
Admissibility} 433 para. 93; see also United States
Diplomatie and Consu!ar Staffin Tehran (1980] ICJ
Rep 3 para. 40; and para. 34 above)
63 By the same token, it will be apparent chat neither
regional nor judicial settlements have any precedence
over other means of settlemem.
64 Art. 13 League Covenant could have been interpreted as establishing at !east a preference for the judicial or arbitral settlement oflegal disputes. But, besicles
the fact thar the distinction between legal and political
disputes is artificial (para. 33 above) and thar such a
priority never prevailed, the UN Charter has adopred
a much more modest approach by sim ply recommending (by using the verb 'should' and not 'shall') to the
Security Council to 'take into consideration thar legal
disputes should as a general rule be referred by the parties to the International Court of]ustice' .
65 Similarly, the apparent priority given by Art. 52
UN Charter to achieve pacifie settlemem of local
disputes through regional arrangements or agencies
(see also Art. 2 Pact of Bogora) is misleading-if only
because, according to para. 4 of chat provision, it 'in no
way impairs the application of Articles 34 and 35' (see
als
an
re
in
er<
nu
or
rnt
lÜ
in'
44
o[1
Ad
in
pr<
nat
_jfi
m
[rn
see
[G
Oc
ag
eff<
Jur
201
Re:
Ar;
De
the
Al
[co
org
Re:
Un
che
as;
the
sin
Rej
vol
Art
oq
co:
tiv
in1
Se
si<
ween Cameroon
:] Rep 303; see
'lreece v Turkeyj
setdemenc and
.. the Coure rsny requirement
iating processes
lrt; or thar the
.ra. 92 and
iispute within
C]: 'the Coure
:r is before the
it being dealt
eedings could
i Paramilitary
:risdiction and
United States
·n [1980] ICJ
t
Y'
thar neither
precedence
: been interfor the judiBut, besicles
md political
thar such a
1as adopted
:commendtall') to the
n thar legal
by the par)y Art. 52
t of local
r agencies
~-ifonly
it 'in no
d 35' (see
1,
Ait. 2 Pact ofBogora and Art. 24 (2) OAS Charter,
219
forces according to a principle of proximity and on the
para. I (6) Manila Declaration) . Moreover, as the premises thar sorne States could be more inclined to
recalled: ' ... it is also important always ro bear accept the implication of a regional organization (see
mind thar al1 regional , bilateral, and even multilat- African Union/United Nations Hybrid Operation in
arrangements thar the Parties to this case may have Darfur, UNSC Res 1891 [13 Ocrober 2009] para. 3) .
rouching on the issue of settlement of disputes
66 However, even if there is no hierarchy between the
the jurisdiction of the International Court of]ustice,
various means of peaceful setdement, it goes without
be made always subject to the provisions ofArticle
saying thar States, and other parties to international
of che Charter' (Military and Paramilitary Activities
disputes, may voluntarily consent to a given means
{mdagainst Nicaragua ljurisdiction andAdmissibility}
of settlement either unilaterally, essentially by accept107; see also Armed Activities on the Territory
!!'4'1'Li"""_-·
ing arbitral or judicial optional treaty clauses-see eg
Congo [New Application: 2002} ljurisdiction and
Art. 36 (2) I C] Statu te, or by entering a treaty imposing
.Mml).IHn.•"YJ 41 para. 92 and 43 para. 100). However,
a given means of settlement. In such cases, the parties
fn conformity with Art. 36 (2) UN Charter the usual
'are under an obligation to implement in good faith ali
of the Security Council is to differ the exarni..
P,'ractice
.'
f d'
d Ch
VI UN Ch
the provtswns of agreements concluded by them for the
natwn o a tspute un er
apter
arter
. .
,
.
._ . (
setdementofthetrdtsputes (para.I(11)MantlaDecla.h b
. al
.wtt y a_regwflaLQigantzatton _see, e&___ . ) . 1 d'
·
h
h
b'
d'
1 ·
" SC R 144 [19 J 1 19601
c .
th
ratton mc u mg-to comp1ywtt t e_ m mg_so uttons
tJ''N
es
uy
-rerernng e matter
.
.
.
· · US/C u ba] to th e OAS paras 1 an d 2; whtch may be dectded accordmgly.
, · '1 es cnsts
[mtsst
see also UNSC Res 530 [19 May 1983]-Nicaragua 67 Quite often, agreed peaceful means are combined
[Contadora Group] paras 1-3 or UNSC Res 1840 [14 and offered either in the alternative or successively ro the
October2008]-Haiti [OAS, CARICOM] Pmbl.).As parties in dispute. Th us, most of the general conventions
d. general rule, the Security Council supports regional regarding the peaceful settlement of disputes (the 1899
éfforts to settle disputes (see, eg, UNSC Res 1177 [26 Hague Convention I or the 1907 Hague Convention
June 1998] para. 4 and UNSC Res 1298 [17 May I; the 1928 and 1949 General Acts; the 1948 Pact of
1000]-Ethiopia/Eritrea [OAS]-para. 4; UNSC Bogora; or the 19 57 ECPSD) offer the Contracting ParRes 1192 [27 August 1998]-Lockerbie [League of ties a possibility to choose between a variety of meansArab States, OAU, OIC] Pmbl.; UNSC Res 1726 [15 sometimes privileging one of them as the common
I>ecember 2006]-Côte d'Ivoire [the SC endorses law means (ICJ for the European Convention [Art. 1
the decisions of the Peace and Security Council of the ECPSD] or the Pact ofBogora [Art. 31 Pact ofBogot:i];
AU]; UNSC Res 1897 [30 November 2009]-Somalia conciliation in the case of the General Act [Art. 1 1928
[cooperation with a number of regional and technical General Act and 1949 General Act]). Many multilateral
organizations]-Pmbl., paras 13 and 14; or UNSC conventions combine them more or Jess logically, for a
Res 1902 [17 December 2009]-Burundi [African complicated system of-in certain cases--compulsory
-para. 3). The competence of the UNSC is ali mechanism see Part X.V UN Convention on the Law
the more pre-emptive where the situation could qualif)r of the Sea; see also eg the OSCE Stockholm Convenas a threat to the international peace and security (on tion on Conciliation and Arbitration (Arts 18 and 2);
~e impossibili ty of voting for a resolution referring the
Art. 14 (1) Convention for the Suppression ofUnlawsituation in.Guatemala to the OAS, see United Nations ful Acts against the Safety of Civil Aviation 1971 (974
I?.ep~rtory ofPractice oJUnitedNations Organs ( 1945-54) UNTS 177); see Questions ofInterpretation and Applica- vol-:2 Articles 23-54 of the Charter [UN 19 55], un der tion of the 1971 Montreal Convention Arising from the
Art. 52). Nowadays, the relationship between the UN, Aerial Incident at Lockerbie (Preliminary Objections)
= =-•,uu ·in particular the Security Council, and regional (1998) ICJ Rep 9; Art. 29 (1) Convention on the Elimiorganizations revolves about co-operation rather than nation of Al! Forms of Discrimination against Women
ÇQmpetition (see UNSC Res 1318 'Ensuring an effec- (1249 UNTS 13); see Armed Activities on the Territory
tive role for the Security Council in the maintenance of of the Congo (New Application: 2002) Uurisdiciion and
international peace and security, particularly in Africa' Admissibility); Art. 30 (1) CAT; see Questions relating
Section VII para. 1) . Such co-operation led on occa- to the Obligation to Prosecute or Extradite (Provisional
sion to the establishment of combined peacekeeping Measures) (28 May 2009) para. 51 .
220
68 Sometimes, the parties agree to an exclusive means Netherlands] [Award] Permanent Court of Arbitration
ofsettlement to solve a given dispute or category of dis- [24 May 2005] 27 RIAA 35).
putes. This is the case in the European Union where
69 Such a predominance is only conceivable within
Art. 344 TFEU (ex Art. 292 TEC), imposes upon
the framework of regional contexts where solidarity
Member States 'nor co submir a dispute concerning
berween the Member States of a particular union is
the interpretation or application of the Treaties co
strong and limitations of sovereign rights commonly
any merbod of settlement other than those pr6vided
accepted. In more general contexts, the traditionaJ
for therein'. In the Mox Plant Case (freland v United
non-binding means prevail-even if, statistically, the
Kingdom) (Order), invoking this provision, the Eurostress on such or such means may vary in rime: rhus
pean Commission considered thar the dispute between
inquiry was very popular between the two world war~
Ireland and the United Kingdom on the construction
(at !east on paper), while it is now dedining, except
of a mixed oxid ('MOX') facility and the potential risk
within the framework of the UN-but outside the speit poses to the environment of the Irish Sea related to
cifie provisions of Art. 34 UN Charter. Similarly conthe application of community law and that Ireland had
temporary practice is marked by the striking decline of
ignored the exclusive jurisdiction of the ECJ by seistraditional conciliation, in spire of the ritual insertion
ing an OSPAR arbitral tribunal (Art. 32 Convention
of treaty provisions envisaging it, or mediation-at
for the Protection of the Marine Environment of the
-leasr-outside the UN or reg1onal organJZations. spite
North-East AtlantiC [ opene or signature 22 Septemof an apparent revival of ad hoc arbitration and a growber 1992, entered into force 25 March 1998) 32 ILM
ing but moderate interest in the I CJ, the usual resort to
1069]; Dispute concerning Access to Information under
binding means remain confined to regional contexts.
Article 9 of the OSPAR Convention-freland v United
The best is the enemy of the good and this situation is
Kingdom Permanent Court ofArbitration [2 July 2003]
not to be regretted: in an international society where
(2003) 42 ILM 1118) and the International Tribunal
sovereignty and national selfishness still prevail, it
for the Law of the Sea (Art. 290 (5) UN Convention on
would be utopian and counterproductive to envisage
the Law of the Sea-Mox Plant Case [freland v United
the generalization of more constraining means of setKingdom] [Order}, see in particular para. 62 acknowldement of international disputes.
edging thar an Annex VII UN Convention on the Law
of the Sea-arbitral tribunal would have jurisdiction). 70 Ir is true thar, in the absence of any pre-existing
In its judgment of30 May 2006, the Grand Chamber treaty obligation, the combination of the two main
principles governing the matter, ie the consensual
of the ECJ found thar
implementation of the obligation co peacefully setby bringing proceedings under the disputede international disputes on the one hand, and the
settlement system set out in the Convention,
free choice of the means to implement it on the other
without having firsr informed and consulted the
band, might lead to an impasse. At this point, the precompetent Community institutions, Ireland bas
eminence of negociations as a means of pacifie sertiefailed to comply with its dury of cooperation un der
ment resurfaces and, if the deadlock persists and is of
Articles 10 EC and 192 EA. (Case C-459/03 Comsuch a nature thar the maintenance of international
mission v freland [2006] ECR I-04635)
peace and security is endangered, the compulsory
For its part, the Annex VII Tribunal granted the recourse to the UN machinery set forth in Chapter
required provisional measures, albeit suspénding the VI UN Charter (Art. 3 7 (1) UN Charter, see para.
merits while waiting for the decision of the ECJ 'bear- 45 above), with a possible culmination in the use of
ing in minci considerations of mutual respect and com- coerdon of Chapter VII UN Charter, would be the
ity which should prevail berween judicial institutions outcome. Legal!y and logically; the system is unfailing;
both of which may be called upon to determine rights concretely, it is anorher matter since (i) the Securiry
and obligations as between two States' (Mox Plant Case Council-which theoretically bas the lasr word but
[freland v United Kingdom] [Order No 3] para. 28), enjoys a wide discretion co act or not under Chapter
rhus remarkably admitting the pre-eminence of ECJ VI UN Charter, can be paralysed by a veto or, more
jurisdiction in matters related to the application of simply, the disinterest of its members towards the discommunity law (cf Iron Rhine Arbitration [Belgium v pute; and (ii) in fact, the means it can use are limited.
'fhi
anG
pri1
cati
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ci
E }1
n
os
ci
il
}
d
JA
f.
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(
}N
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This reconfirms thar the prohibition of the use of force
and the peaceful settlement of disputes are inseparable
ivable within
ere solidarity
ular union is
ts commonly
te traditiona]
ttistically, the
n rime: rhus,
o world wars
ining, excepr
tside the speimilarly conng decline of
:ual insertion
ediation-ar
ions. In spi te
landagrowsual resort to
nal contexts.
s situation is
ociety where
1 prevail, it
: to envisage
Jeans of setpre-existing
: two main
consensual
.cefulJy settd, and the
nt, the precHic settlets and is of
. see para.
the use of
ud be the
unfailing;
: Security
word but
· Chapter
or, more
s the dis: limited.
princip les both imellecrually and asto their implementation in concreto.
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s.
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pacifique des difion de paix duraational5-35.
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di diritto interienrifica Napoli
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the Second Hague Peace Conference (Duncker & Hum blot Ber•lin 2009) 435-53.
Select Documents
Abyei Arbitration {Government ofSut:Uzn v Sut:Uzn People$ Liberation Movement!Army) (Award) Permanent Court of Arbitrarion (22 July 2009).
Aerial Incident of10 August 1999 {Pakistan v India) Uurisdiction
ofthe Court) [2000] IC] Rep 12.
African Union 'Protocol relating to the Establishment of the
Security Council of the African Union' (adopted 9
July 2002, enrered inro force 26 December 2003).
American Treaty on Pacifie Setrlement (signed 30 April 1948,
. entered into force 6 May 1949) 30 UNTS 55 (Bogod. Pact).
Armed Activities on the Terri tory of the Congo {New Application:
2002) (Democratie Republic ofthe Congo v Rwant:Uz) Uurisdiciio; andAdmissibility) [2006] IC] Rep 40.
Declaration Approving a Mechanism for Confl.ict Prevention, Management and Resolution in Africa {clone 29 July
1993) Doc AHG/Decl.! (XXIX).
,.,.._..Pi-A:- Property Case (Liechtenstein v Germany) {Preliminary
Objections) [2005] ICJ Rep 6.
Çb_arrer of the United Nations (adopted 26 June 1945, entered
into force 24 October 1945) 145 BSP 805.
COE 'European Convention for me Peaceful Sertlemenr of Disputes' (clone 29 Aprill957, enrered into force 30 Aprill958)
320 UNTS 243.
Conference for Security and Co-operation in Europe 'Final Act'
(adopted 1 August 1975) (1975) 14 ILM 1292.
'
223
Convention for che Pacifie Serrlement oflnrernational Disputes
{adopted 18 October 1907, entered into force 26 January
1910) (1907) 205 CTS 233.
Convention respecting me Limitation of the Employmenr of
Force for me Recovery of Contract Debts {do ne 18 Ocrober
1907, entered into force 26 January 191 0) (1908) 2 AJIL
Supp 81.
Covenant of me League ofNacions (signed 28 June 1919, entered
into force 10 January 1920) (1919) 225 CTS 195.
Electricity Company of Sofia and Bulgaria {Belgium v Bulgaria
(Preliminary Objection) PCIJ Series A/B No 77.
Fisheries ]urisdiction (Spain v Canat:Uz) Uurisdiction ofthe Court)
[1998] ICJ Rep432.
General Acr for me Pacifie Sertlemenr oflnternational Disputes
(concluded 26 September 1928, entered into force 16 August
1929) 93LNTS 343.
General Treaty for Renunciation of War as an Instrument of
National Policy {signed 27 August 1928, entered into force 25
) Uiy r929t 94iNfS57.- - - - - - - - - - - International Commission on Intervention and Stace Sovereignry 'The Responsibility to Protect' in UNGA 'Lerrer Dated
26 July 2002 from the Permanent Representative of Canada
to the United Nations addressed ro the Secretary-General' (14
August 2002) UN DocA/57/303 Annex.
International Convention for the Pacifie Setrlement oflnternational Disputes (adopted 29 July 1899, entered inro force 4
September 1900) {1898-99) 187 CTS 410.
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 {1970) {Advisory Opinion) [1971] IC]
Rep 16.
Legality ofthe Use or the 7hreatofUse ofNuclear Weapons (Advisory
Opinion) [1996] ICJ Rep 226.
Mavrommatis Palestine Concessions {Greece v Great Britain) Uurisdiction) PCIJ Series A No 2, Il.
Military and Paramilitary Activities in and against Nicaragua
{Nicaragua v United States ofAmerica) Uurisdiction andAdmissibility) [1984] ICJ Rep 392.
Military and Paramilitary Activities in and against Nicaragua
{Nicaragua v United States ofAmerica) {Merits) [ 1986] IC] Rep
14.
Mox Plant Case {freland v United /(jngdom) {Order) ITLOS Case
No 10 (3 December 2001).
Mox Plant Case {freland v United /(jngdom) {Order No 3) Permanent Court of Arbitration {24 June 2003) {2003) 42 ILM
1187.
North Sea Continental ShelfCases (Federal Republic ofGermany
v Denmark; Federal Republic ofGermany v Netherlands) (1969)
IC] Rep 3.
K ÜELLERS-FRAHM and A ZIMMERMANN, Dispute Settlement in Public International Law: Texts and Materials (2nd ed
Springer Berlin 200 1).
Olivos Protocol for me Solution of Controversies in the Mercosur (signed 18 February 2002, entered into force 1 January
2004) 2251 UNTS 243.
OSCE 'Convention on Conciliation and Arbitra rion Within the
Conference on Security and Co-operation in Europe (CSCE)'
224
PEACEKEEPING FORCES
(signed 15 December 1992, entered into force 5 December
1994) (1993) 32 !LM 557.
' Principles for the Setdement of Disputes, and Decisions on
Procedures of the Conference on Securiry and Co-operation
in Europe for the Setdement of Disputes' (8 February 1991)
(1991) 95 RGDIP 605.
Protocol of Brasilia for the Seulement of Disputes (signed 17
December 1991) (1997) 36 !LM 691.
Prorocol of the Commission of Mediation, Conciliation and
Arbitration (done 21 July 1964) (1964) 3 !LM 1116.
Prorocol for the Pacifie Seulement of International Disputes
(signed 2 Ocrober 1924, never entered into force) (1925) 19
AJILSupp 9.
Revised General Act for the Pacifie Setdement of International
Disputes (adopted 28 April 1949, entered into force 20 September 1950) 71 UNTS 101.
South- ~st Africa Cases (Ethiopia v South Africa; Liberia v South
Africa) (Preliminary Objections) [1962] ICJ Rep 319.
urritorial andMaritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v Honduras) (2007) ICJ Doc
2007 General List No-120. ___ _ _____ _
UNGA 'An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of
the SecuriryCouncil on 31 January 1992' (17]une 1992) UN
DocA/47/277-S/2411.
UNGA 'Implementing the Responsibiliry to Prorecr: Report of
the Secretary-General' (12 January 2009) UN DocA/63/677.
UNGA ' Prevention of Armed Conflict: Report of the SecretaryGeneral' (7 June 200 1) UN Doc A/55/985.
UNGA 'Report of the Special Commiuee on the Charter of the
United Nations and on the Srrengthening of the Role of the
Organization' GAOR 36th Session Supp 33.
UNGA Res 37/10 'Manila Declaration on the Peaceful Setdement ofinternational Disputes' (15 November 1982) GAOR
37th Session Supp 51,261.
UNGA Res 40/9 'Solemn Appeal to States in Conflict to Cease
Armed Action Forrhwirh and ro Setde Disputes between
them Through Negociations, and ro States Members of the
United Nations to Undertake ro Solve Situations ofTension
and Conflict and Existing Disputes by Political Means and ro
Refrain &om the Threat or Use of Force and from any Intervention in the Internai Affairs of Other States' (6 November
1985) GAOR40th Session Supp 53, 146.
UNGA Res 42/22 'Declaration on the Enhancement of the
Effectiveness of the Principle ofRefraining from the Threat or
Use ofForce in International Relations' (18 November 1987)
GAOR 42nd Session Su pp 49 vol I, 288.
UNGA Res 43/51 'Declaration on the Prevention and Removal of
Disputes and Situations Which May Threaren International Peace
and Securiryand on the Rule of the United Nations in this Field' (5
December 1988) GAOR 43rd Session Supp 49 volt, 276.
UNGA Res 471120 'An Agenda for Peace: Preventive Diplomacy
and Related Matters' (18 December 1992) GAOR 47th Session Su pp 49 vol!, 41.
UNGA Res 53/101 'Principles and Guidelines for International
Negociations' (8 December 1998) GAOR 53rd Session Supp
49 vol 1, 355.
UNGA Res 55/2 'United Nations Millennium Declaration'
(8 September 2000) GAOR 55th Session Su pp 49 vol! , 4.
UNGA Res 57/26 'Prevention and Peaceful Setdemem of Dis.
putes' (19 November 2002) GAOR 57th Session Supp 49
vol! , 513.
UNGA Res 57/337 ' Prevention ofArmed Conflict' (3 ]uly 2003)
GAOR 57th Session Su pp 49 vol3, 13.
UNGA Res 60/251 'Human Righrs Council' (15 March 2006)
GAOR 60th Session Su pp 49 vol3, 2.
UNGA Res 377 (V) 'Uniting for Peace' (3 November 1950)
GAOR 5th Session 10.
UNGA Res 2625 (XXV) 'Declaration on Principles ofinternational Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United
Nations' (24 Ocrober 1970) (GAOR 25th Session Supp 28,
121.
UNGA Res 3283 (XXIX) 'Peaceful Settlement of International
Disputes' (12 December 1974) GAOR 29th Session Su pp 31
vol1,6.
United Nations (ed) A Survey ofTreaty Provisions for the Pacifie
Settlement of International Disputes__l9~12Ji2
Nations Geneva) UN Pub. 1966.V.5).
United Nations (ed) Systematic Survey ofTreaties for the Pacifie
Settlement ofInternational Disputes 1928-48 (United Nations
Geneva) UN Pub. 1949.V:3.
UNSC Res 22 (1947) (9 Aprill947) SCOR 2nd Year 3.
UNSCRes395 (1976) (25August 1976) SCOR31srYear 15.
UNSC Res 731 (1992) (21 January 1992) SCOR47th Year 51.
UNSC Res 748 (1992) (31 March 1992) SCOR47th Year 52.
UNSC Res 1318 (2000) (7 September 2000) SCOR 55th
Year 169.
Peacekeeping Forces
MICHAEL BOTHE
This article was fast updatedApril 2011
A. Notion
B. Historie Development and Practice
1. The League ofNations
2. The United Nations: Period ofTrial and
Error (1949--64)
3. The Consolidation of the Concept:
The Middle East after 1973
4. Complex Peacekeeping Operations (1990 on ward)
5. Peacekeeping in Crisis:
Former Yugoslavia ( 1992 onward)
6. The Double TrackApproach: Peacekeeping and
Mandated Military Enforcement Action
7. ln Search of a Division ofTasks: United Nations
Peacekeeping and Regional Organizations
8. Current Peacekeeping: A Complex Scene
1
7
7
13
15
17
19
22
25
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the max planck encyclopedia of public international law

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