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Book V International Disputes and Courts, 24 Prevention and Management of Conflict and Settlement of Disputes

Emyr Jones Parry

From: Satow's Diplomatic Practice (7th Edition)

Edited By: Sir Ivor Roberts

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Since World War II — Sovereignty — Peace treaties — Governments — International peace and security

(p. 509) 24  Prevention and Management of Conflict and Settlement of Disputes

The Nature of Conflict

24.1  Conflict-related issues1 occupy a spectrum, ranging from its absence, peace; through emerging conflict; actual conflict or war; ending hostilities; to the challenge of building stable, peaceful societies and States. Inter-State war has diminished since 1945, partly because of the system of international peace (p. 510) preservation put in place, primarily through the United Nations, and perhaps because such conflict is less likely with more democratically elected governments of States participating in the international trade and financial system. But conflict within States remains potent with armed non-State actors a frequent characteristic.

Identifying and Promoting Conflict Resolution

24.2  The old proverb is so relevant. Prevention is better than cure. Successful conflict prevention is in effect dispute resolution before escalation into actual conflict. The benefits are obvious. The costs of prevention are dwarfed by the human and financial consequences of conflict and the subsequent investment needed to create successful peaceful States. Identification of potential conflict or dispute is key. Causes can include grievances and traditional hatreds, weak States and poor governance, ideological or belief-motivated pressures, resource exploitation, ethnicities and poverty, the ability to finance and support rebellion, and more. Early warning of disputes and nascent conflict is essential. The UN system, governments, diplomats, international and non-governmental organizations often have access to information indicating a looming problem, the more so given the spread of internet and cell phone networks. But knowledge is not enough. There then needs to be action, preferably coordinated, and those in dispute have to accept help if the problems are to be tackled. Possible techniques to promote dispute resolution are discussed later. Additionally, external players can provide targeted financial, development assistance to support peace initiatives. Pressure can also be applied on the parties directly by governments and international organizations and through sanctions, for example to confiscate assets or deny access to travel or financial markets; arms embargoes; and the preventative deployment of international troops.

Negotiating Solutions to Conflict

24.3  Better than conflict is that the parties to a dispute should negotiate a diplomatic solution to resolve the dispute. This depends on getting the parties or their representatives to the table. This can depend on whether the timing is ripe, particularly if conflict has already broken out. It is also invariably more difficult in an intra-State dispute, partly because the degree of commitment to a cause can be great, as in identity or recognition of minorities, and partly because of the difficulty in identifying and gaining acceptance of which parties are entitled (p. 511) to participate in the negotiations. Those excluded can often be spoilers to deny a successful outcome. It is important to emphasize the role of women in negotiations. United Nations Security Council resolution 1325 adopted in 2000 insists that women should participate in decisions, including mechanisms for prevention of conflict and peace negotiations. This resolution has been followed by others developing its themes and the subject is debated annually in the Security Council. It is for States to comply with the spirit of the resolutions which the United Nations family also seeks to implement.

24.4  Negotiating an end to conflict requires a comprehensive approach starting with a cessation of hostilities and some form of agreement between the belligerent parties, which in an intra-State conflict will require accepting peaceful coexistence within agreed State structures. Agreements need to provide for demobilization, disarmament and reintegration of fighting forces, and frequently a system of validation. The challenge then is to stop any re-emergence of fighting and ensure security, through both military and police presence, with perhaps an international element; provide economic prospects; and move to establish political and social structures, the rule of law, respect for human rights, and justice for victims. A ‘winner takes all’ approach is rarely successful. Usually each party will expect to derive some benefit from the arrangements.


24.5  Peacebuilding after conflict is difficult, but achieved successfully can resolve conflict for the long term. Successful peacebuilding in countries emerging from conflict requires stability, a secure environment without conflict, a prospect of economic progress, and institutions which ensure the rule of law and deliver a sense of justice acceptable to combatants and victims. It entails a sustained effort over many years, and the risk of recidivism into conflict is always present, and indeed is the case with many conflicts. The challenge of preventing re-emergence of conflict diminishes only as the parameters listed above are successfully established. In 2005 the Security Council and the General Assembly each adopted resolutions setting up a Peacebuilding Commission, which is an intergovernmental advisory body available to support peace efforts in countries emerging from conflict. It has three aims: to bring together all the relevant actors, including international donors, the International Financial Institutions, and national governments; to marshall resources and advise on and propose integrated strategies for post-conflict recovery and development; and to improve the coordination of support. It is (p. 512) the State itself which decides its policies for recovery drawing on the advice, encouragement, and resources provided.

Role of the Security Council

24.6  When conflict has emerged or appears likely, the situation can be brought to the United Nations Security Council if its members agree that there is a threat to international peace and security. The range of options available to the Council include the deployment of UN Peacekeepers. Although not mentioned in the Charter, such deployments, which began in 1948, are now a frequent measure to prevent the re-emergence of conflict. Each deployment is approved by the Security Council in a resolution which mandates the purpose and conditions for the deployment of ‘blue helmets’, a common term for a United Nation Peacekeeping mission. The basic principles for deployment are that there should be a peace agreement between the warring parties who have consented to the presence of international troops, that the mission is impartial, and that generally the use of force is only sanctioned in self-defence, and in defence of the mandate and of civilians. The budget for this peacekeeping is separate from the general United Nations budget. The African Union has also approved its own peacekeeping deployments; in 2007 a hybrid operation with the United Nations in Darfur, the United Nations African Union Mission in Darfur, and alone in Somalia, also in 2007, the African Union Mission in Somalia, which drew its troops from many African States.

Threats to States

24.7  Intra-State conflict poses more of a threat in general than that between States. But today’s States can face a myriad of external threats which include weapons of mass destruction, international terrorism, espionage, climate change, and increasingly cyber threats. This last category can affect individuals, organizations, companies, and governments. Hackers have many motives. These may include greed or criminal purpose. It may be to steal intellectual property or gain an advantage. It may be capricious or seriously intended to maim, damage, or do physical or economic harm. All of us to some extent have to protect against this threat. For governments the primary aim of ensuring the protection of citizens and ensuring their economic well-being is paramount. It also potentially affects the way in which business is transacted within and between governments as measures have to be put in place to maximize security and minimize risk.

(p. 513) Inter-State Disputes

24.8  There is little new in disputes between States—in some ways, they are as inevitable as disputes between individuals. Here we will concentrate on disputes between States while recognizing that many ‘international’ disputes may not involve States as parties.2 Disputes have varied subject-matter and need not concern political matters; they may, for example, be commercial in nature. A dispute can be defined as a specific disagreement relating to rights or interests where a party considers that it has a claim against another which that other rejects. The Mavrommatis case3 defined a dispute as ‘a disagreement over a point of law or fact, a conflict of legal views or interests between two persons’.

24.9  Among early efforts to settle disputes, prominent was the 1899 Hague Convention for the Pacific Settlement of International Disputes, followed by further efforts in 1907 to provide for a number of mechanisms which might be deployed.4 The options available permitted parties to agree on the process which they considered most likely to produce a satisfactory outcome. Any reference to any form of judicial and binding process required the prior agreement of the parties.

24.10  Resolution of disputes became a central tenet of the Charter of the United Nations. Article 1.1 sets out a primary purpose: ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’. Article 2.3 requires that ‘[all] members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. In Chapter VI on Pacific Settlement of Disputes, Article 33 sets out a possible menu through which the parties to a threat which may endanger the maintenance of international peace and security shall first of all seek a solution ‘by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.

24.11  The United Nations has devoted much, if not always efficient, consideration to this issue. The General Assembly on 15 November 1982 approved the Manila (p. 514) Declaration on the Peaceful Settlement of International Disputes.5 It underlined the principles of peaceful settlement of international disputes and the non-use of force in international relations. The Declaration drew on the Charter provisions to underline the need for the UN to increase its effectiveness in this area. All States were enjoined to settle disputes exclusively by peaceful means on the basis of sovereign equality of States and on the basis of free choice as to means; the resolution elaborated the different ways of settling disputes. States Parties to regional arrangements were asked to make every effort to find a solution through those arrangements. Continuing effort is the order of the day, with the prospect of a reference to the Security Council if a threat to international peace and security emerges. In practice, such references have been few, partly because of sovereignty concerns, partly resentment of the Council by those who hanker for a General Assembly role, and partly because successive Secretaries-General of the United Nations have been reluctant to use their prerogative under the Charter to make such reference. Despite the demand and potential powers available to it, the United Nations has not responded sufficiently well to the challenge, particularly where disputes have their origin within a member State. The principle of non-interference in matters essentially within the domestic affairs of a sovereign State in Article 2.7 is widely invoked to inhibit involvement in intra-State disputes, although this is countered by the Responsibility to Protect doctrine (see Chapter 2, paragraph 2.24) which is not a Charter provision. Nor in general have the resources and mediation support capacities been adequate to the demand, or has enough been done to work with regional organizations and civil society.

24.12  The methods and techniques available to help resolve international disputes are similar, within and without the United Nations context. The principle of free choice of means should apply to decisions made by States. We will now summarize them in turn.

Direct Negotiation and Consultation between the Parties

24.13  This is the most common means of settlement and involves the conduct of direct talks between the parties to a dispute, aimed at resolving the dispute; negotiations are used at some stage of almost every dispute. They are often conducted through ‘diplomatic channels’; that is, through foreign offices or diplomatic representatives, the delegations often including or comprising (p. 515) representatives from different departments of government. If settlement of the dispute through these means fails, the negotiations may be raised to the level of Heads of State or Government. A precondition for success is that the parties should have the political will to work for agreement, and that customarily where relevant, politics and public opinion in the States concerned permit the negotiations to proceed. This process is entirely in the hands of the parties and does not involve a third party. Negotiations are bilateral or multilateral depending on the number of parties involved. Such negotiations are sometimes conducted in secret, this being the only basis for the parties agreeing to a process. The Norwegian government successfully facilitated in secret the Oslo Accord on Palestine in 1993. Another example would be Henry Kissinger’s negotiations with the North Vietnamese from 1969–73.

24.14  If the subject-matter of the dispute means that substantive settlement is very difficult, different techniques may be used to assist with the process. Agreement may be possible on procedures, rather than substance; for example the result of the negotiations may be agreement to submit the dispute to a third party, either for advice or for a resolution which the parties agree in advance will be binding. Or a ‘without prejudice’ clause may be agreed which allows the parties to discuss certain matters while leaving the most contentious alone; for example, the sovereignty ‘umbrella’ under which the United Kingdom and Argentina negotiated on Falkland Islands matters without raising the question of sovereignty.6 This followed the precedent of the Antarctic Treaty 1959 which creates the basis for continuing cooperation between the parties while ‘freezing’ the sovereignty claims of some of the parties and their non-recognition by others.

24.15  Some treaties impose an obligation on parties to consult together before taking any other action, as in Article 283 of the UN Convention on the Law of the Sea; refusal by one party to take part in such consultations does not prevent the other party from resorting to another process. But there is no general duty to attempt settlement by negotiation and negotiations do not have to be exhausted before resort is made to another option. The means of settlement set out in Article 33 of the Charter are alternatives. However, at least some exchanges between governments will be necessary before a difference of view can be called a dispute and it is only if there is a ‘dispute’ that the matter can be taken to the International Court of Justice (ICJ). Sometimes, bilateral treaties can include a formalized negotiating process to settle disputes. An example is the permanent commission established as part of the Canada–US International Joint Commission.

(p. 516) Negotiation Facilitated by Third Parties

24.16  Negotiations between disagreeing parties may be encouraged by other governments or organizations. The parties to the dispute, at least initially, may not be prepared to meet face to face. The third party tries to establish a basis of trust with the protagonists, seeks to understand their concerns and interests, and then attempts to narrow the differences. This can involve shuttle diplomacy between the parties and many contacts over a period of time. This then constitutes what might be termed a peace process. President Carter’s efforts in 1978 produced two Accords: a Framework for a Peace Treaty between Israel and Egypt and a Framework for wider Middle East peace. The countries constituting the Friends of Guatemala supported the peace process which ended the 1990–6 civil war.

Inquiry and Fact-finding

24.17  The aim, in terms used in the 1907 Hague Convention,7 is ‘to facilitate a solution of … disputes by elucidating the facts by means of an impartial and conscientious investigation’. Fact-finding is a process performed by all tribunals, but it can also be a means of settlement of disputes separate from other mechanisms. While it should not involve the application of rules of law if the dispute has its basis in fact, it may also contribute to a solution if the dispute has legal content. The resulting acceptance by both parties of established facts should help find solutions, and can contribute to a successful outcome by a range of methods. The General Assembly in 1991 defined fact-finding as ‘any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security’.8 Prior approval by the States concerned is usually required.

24.18  A commission of inquiry was established by the British and Danish governments following the Red Crusader incident in 1961. A British trawler of that name had been arrested by a Danish fisheries protection vessel by having two Danish officers put on board; the trawler had in turn incapacitated these officers and (p. 517) changed course. The Danish vessel fired on the fleeing trawler. The commission of inquiry found the facts which facilitated the settlement of the dispute. Although it took nearly a year after the commission’s report, the governments agreed mutually to waive their claims. The commission did in practice approach the role of an arbitration in that it made some legal rulings as well as finding the facts. A further example was the investigation by the UN Secretary-General in 1984 of the use of chemical weapons in the war between Iran and Iraq.

24.19  The UN Compensation Commission was established by the Security Council in 1991 to consider claims against Iraq arising from its invasion of Kuwait.9 It was described by the Secretary-General as having a fact-finding role in the settlement of claims by governments, companies, and organizations.10 Claims for compensation have been assessed by expert panels and several billion dollars of compensation paid. The role is not judicial or arbitral but administrative, since the issue of overall liability was settled by Security Council resolution 687 (1991).

Mediation and Good Offices

24.20  If relations between the parties are not conducive to successful negotiations or if negotiations have not succeeded, intervention by a third party may help. This third party must be acceptable to all the parties to the dispute. Good offices provide an additional channel of communication for the parties. Mediation involves the intervention of a third State or States, a disinterested party, or UN organ with the disputing States in an effort to advance proposals aimed at a compromise solution. As Article 4 of the 1899 Hague Convention put it: ‘The part of the mediator consists in reconciling the opposing claims and appeasing the feeling of resentment which may have arisen between the States at variance.’ Usually action is by a third party of particular standing or reputation who seeks to bring about, initiate, or secure the continuation of negotiations, without necessarily himself participating in the negotiations. To succeed, this method requires the agreement and cooperation of the parties. Any proposals are non-binding on the parties. The settlement is likely to require compromise on both sides, because the aim of the mediator will be to suggest proposals which both parties can willingly accept. Both the Security Council and the General Assembly are competent to recommend the use of good offices or mediation by a member State, agency, or organ of the UN. The terms are broadly interchangeable, (p. 518) However, a mediator in seeking to reconcile different claims is likely to advance proposals aimed at an acceptable compromise solution.

24.21  Five examples demonstrate the diversity of interventions. The UN Secretary-General, Perez de Cuellar, mediated between France and New Zealand over the Rainbow Warrior affair in 1986.11 Although the process was termed ‘mediation’, the parties agreed in advance that the result would be binding, and they entered into an agreement to implement its terms.12 The Beagle Channel dispute between Chile and Argentina arose in 1978 as a result of failure by Argentina to accept or implement an award by an arbitral tribunal. A mediation by envoys of the Pope produced a settlement in 1984 which did not depend on the terms of the legal award. The Catholic Community of Sant’Egido mediated in the Mozambique civil war which concluded in 1992. Civil war in Macedonia was averted in 2000 through the coordinated and active mediation by the Secretaries-General of the Organization for Security and Cooperation in Europe (OSCE) and NATO, and the High Representative of the European Union (EU). In 2006 UN Secretary-General Kofi Annan successfully mediated in a territorial dispute between Nigeria and Cameroon over ownership of the Bakassi peninsula.

24.22  In September 2008, the Security Council considered a paper on mediation tabled by the President of the Council, Burkina Faso, encouraged by its success in March 2007 in brokering an agreement between the Ivorian government forces and the former rebel Forces Nouvelles. The resulting Presidential Statement13 issued by the Council focused on the role of mediation in settling disputes. It emphasized the importance of mediation and the role of the Secretary-General and his special representatives and envoys, exhorted the Secretariat to build up its mediation capabilities, welcomed regional efforts, and encouraged participation by women in the settlement of disputes.


24.23  This technique combines the characteristics of inquiry and mediation. Again, a person enjoying the confidence of the parties or a conciliation panel is (p. 519) tasked to establish the facts and put forward non-binding proposals for consideration by the parties within an informal third party machinery for negotiation. Some treaties provide for resort to conciliation if there is a dispute under the terms of the treaty concerned; while this is not now common with bilateral treaties it is more frequent in multilateral treaties. Detailed conciliation procedures are provided, for example, in the Vienna Convention on the Law of Treaties and the Convention on the Law of the Sea. In spite of the existence of these treaties, conciliation is now rarely used. The model rules for conciliation set out in General Assembly resolution 50/5014 are unlikely to serve much practical use. One reason for its unpopularity may be that the time and expense of setting up and appearing before a conciliation panel may come close to the resources needed for an arbitration tribunal, but the parties are left without a binding result.


24.24  This is the determination of an outcome by a legally binding decision of one or more arbitrators or a tribunal, chosen by the parties or by a method agreed by the parties. Arbitration may be agreed between the parties on an entirely ad hoc basis or be built into particular treaty arrangements. The judges are called arbitrators and their judgment is known as an award. For the parties, recourse to the procedure implies submission, in good faith, to the award. Arbitration has a long history. But the Permanent Court of Arbitration, established under the 1899 Hague Convention, has a misleading name; it provides not an arbitral court but a mechanism for facilitating arbitrations.

24.25  Compulsory settlement of disputes, such as is provided by arbitration, was a move away from a power-based system to a more principled approach. Arbitration is not dissimilar to a judicial settlement by the International Court of Justice in that the result is binding on the parties. But usually the tribunal is created for a specific purpose. Unlike resort to the ICJ, the parties have to bear the costs of the tribunal, and these can be very heavy; this will be a consideration in deciding whether to put a dispute to the Court or to arbitration. Since the tribunal’s award will be final, the parties need to be quite clear about the detail to which they are signing up before entering into the proposed arbitration, and consider the likely outcomes given the assumption that they will submit in good faith to the outcome.

(p. 520) 24.26  Arbitration can only settle a dispute, of course, if the parties accept the result. An example where they did not do so is the award of the Boundary Commission established to settle the boundary dispute between Ethiopia and Eritrea.15 The arbitration used the facilities of the Permanent Court of Arbitration. Although the two States agreed to accept the award as final and binding, Ethiopia found it impossible to do so. It can be argued that arbitrators, in interpreting the facts and the law, need also to take into account the probable reaction of the parties to possible decisions. A successful example was the Kishenganga Arbitration which resolved the dispute between India and Pakistan over a vital water resource.

Judicial Settlement

24.27  Judicial settlements and arbitration are the two compulsory means of settlement of disputes. However, in contrast to arbitration, judicial settlement is established by international agreement between States transferring jurisdiction over specified disputes to an international court or tribunal, or to the national courts of States. The composition of such courts or tribunals may not be within the control of the parties, and their decisions not always appealable. Recourse is often to the International Court of Justice, but Article 95 of the UN Charter makes clear that States may use other tribunals of choice.

Compromis (Special Agreement)

24.28  This term denotes an agreement to refer a dispute to arbitration or to judicial settlement, the matters in dispute being defined more clearly in the agreement itself. The normal English equivalent of the term is ‘special agreement’ (though ‘Arbitration Agreement’ is frequently used in the case of an arbitration); and in French or Spanish the single word ‘compromis’ or ‘compromiso’ is used. Article 40.1 of the Statute of the International Court of Justice provides that:

[c]ases are brought before the Court, as the case may be, either by the notification of the special agreement (compromis) or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated.

24.29  An example is the Special Agreement for Submission to the International Court of Justice of the Dispute between Malaysia and Singapore concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, which (p. 521) was jointly notified to the Court on 24 July 2003.16 The special agreement comprised six short Articles including the submission of the dispute to the Court, the subject of the litigation, the applicable law (in those proceedings the principles and rules of international law recognized in Article 38(1) of the Statute of the Court), and the agreement of the parties to accept the judgment of the Court as final and binding upon them.17

24.30  The content of a special agreement (compromis) referring a dispute to the International Court of Justice can be relatively simple since the composition of the Court and the procedure to be followed are already determined by the Statute of the Court and the Rules of Court. More complex arrangements are necessary when the parties wish to refer a dispute to an ad hoc court of arbitration.

24.31  In 1958 the International Law Commission drew up a set of Model Rules on Arbitral Procedure which the General Assembly brought to the attention of Member States ‘for their consideration and use, in such cases and to such extent as they consider appropriate, in drawing up treaties of arbitration or compromis’.18

24.32  The Permanent Court of Arbitration (PCA) is a body established under The Hague Conventions of 1899 and 1907 with the aim of facilitating the settlement of international disputes by recourse to arbitration. Its headquarters are in the Peace Palace at The Hague, alongside the International Court of Justice. As now organized, the PCA offers hearing facilities and ancillary administrative services to arbitral tribunals operating ad hoc or under the auspices of another institution, and as part of these services has drawn up a list of model clauses for the submission of disputes to arbitration. It has also in recent years revised, or drawn up afresh, a series of Rules of Procedure suitable for the conduct of arbitrations between States, arbitrations involving international organizations, and other combinations of disputing parties, most notably the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States, adopted in 1992.19

24.33  A recent example of a compromis for reference of a dispute to ad hoc arbitration, making use of the facilities of the PCA, is provided by the Arbitration Agreement (p. 522) of July 2003 between the Belgian and Netherlands governments.20 This concerned the reactivation of the so-called ‘Iron Rhine’ railway line, and how the associated costs are to be borne. The two governments agreed that the Tribunal should operate under the PCA’s Optional Rules as modified by agreement between them.

Regional and Other Special Arrangements

24.34  Article 33 of the Charter of the United Nations mentions ‘resort to regional agencies or arrangements’ among peaceful means to find a solution to a dispute. This is further developed in Chapter VIII, and specifically in Article 52. Regional organizations often have their own provisions for addressing disputes and technical means to do so. Indeed, there is often an obligation that parties belonging to such organizations will, if in dispute with each other, follow the resolution procedures established by or within that organization.21 Thus the Council of Europe and its Regional Court of Human Rights, established by the European Court of Human Rights by the European Convention for Human Rights 1952 exercises jurisdiction over member States in respect of member States’ observance of human rights.

24.35  The three founding treaties of the European Union, as amended by successive treaty amendments, established the European Court of Justice with compulsory jurisdiction over certain matters within the Treaties; basing itself on the body of European law, it gives binding judgments on actions brought by the European Commission or a Member State against a particular State or States. The Court also has other forms of jurisdiction in relation to companies and individuals, it rules on challenges to the legality of acts of the Community, and national courts refer issues of EU law to it for its decision. The OSCE has a large number of mechanisms for the avoidance and settlement of disputes, emphasizing dispute prevention and management, as much as settlement.22

24.36  The African Union (AU), established to replace the Organization of African Unity, has a Peace and Security Council with functions that include the use of good offices, mediation, conciliation, and enquiry. Members of the Commission (p. 523) (the Secretariat) of the AU have been active in political interventions to resolve disputes both between and within States. Similarly, at a regional level in Africa, groupings have become increasingly active in resolving disputes. In 2004 and 2005, office-holders of the Economic Community of West African States were instrumental in coping with the consequences of a coup in Guinea Bissau and the possible inauguration of an unelected President in Togo. In 2008, the Southern African Development Community attempted to secure the implementation of the power-sharing agreement in Zimbabwe.

24.37  There are many conventions, or organizations set up under their auspices, which have their own dispute settlement provisions, some of them of great complexity. The United Nations Convention on the Law of the Sea is one of these. Part XV of the Convention is entirely devoted to the settlement of disputes between parties concerning the interpretation or application of the Convention. If no solution has been reached by other means, Article 286 of the Convention stipulates that the dispute be submitted at the request of any party to the dispute to a court or tribunal having jurisdiction. Article 287 of the Convention defines these as: the International Tribunal for Law of the Sea, set up by the Convention (with its seat in Hamburg); the International Court of Justice; an arbitral tribunal constituted in accordance with Annex VII of the Convention; or a special arbitral tribunal constituted in accordance with Annex VIII. States may declare, when they become party to the Convention, which means of settlement they choose. There are particular settlement provisions for particular kinds of disputes.

24.38  The World Trade Organization (WTO), established in 1994 to replace the General Agreement on Tariffs and Trade (GATT), has a binding dispute settlement system which has generally proved effective. Understanding on Rules and Procedures Governing the Settlement of Disputes provides the basis for resolving disputes relating to the application of WTO rules. The Dispute Settlement Body includes panels established where necessary and an appellate body to consider and make recommendations on specific complaints, which are then referred to the Dispute Settlement Body. The Understanding also makes reference to good offices, conciliation, mediation, or arbitration, undertaken with the consent of the parties.

Procedures Envisaged in the Charter of the United Nations

24.39  For completeness we should underline the role of the Security Council and the General Assembly. The Council, having the primary responsibility for the (p. 524) maintenance of international peace and security, may under Chapter VI of the Charter, inter alia, investigate any dispute or any situation which might lead to international friction or give rise to dispute. It may then recommend appropriate procedures or methods of adjustment, and can decide to use its powers to act to preserve international peace and security. For its part, the General Assembly is empowered under Chapter IV of the Charter to discuss any question within the scope of the Charter and to make recommendations to the Council.

International Administration of Territory

24.40  The principle of non-intervention in the domestic jurisdiction of a State is set out in Article 2.7 of the United Nations Charter. Yet the involvement of international organizations in territorial administration goes back at least to the League of Nations. Namibia, a former German colony, was mandated to South Africa by the League in 1920. In 1973 the United Nations recognized the South West African People’s Organization as the official representative of the Namibian people, although the territory remained under South African administration until it became independent in 1980. The practice has been surprisingly common. The United Nations High Commissioner for Refugees administers camps housing refugees and internally displaced persons, and international organizations are responsible for the administration of assistance programmes in various territories. These are usually implemented with the consent of the State. Wider administration of territory or even all the territory of a State can arise from a dispute as to who is entitled to exercise control or if there is a grave problem with the governance of a territory. In each case there needs to be a legitimate process for deciding who should take on the administration and why this should occur. This is wholly different from administration by an occupying power, and is usually confirmed by the United Nations. Three examples illustrate the practice. Security Council resolution 1244 in 1999 established the United Nations Interim Administration in Kosovo, and in the same year resolution 1246 set up the Transitional Administration in East Timor. The United Nations Security Council welcomed the Dayton Accords of 1996 which created the role of High Representative of the International Community in Bosnia Herzegovina, bestowing defined governmental responsibilities on the post.


1  For further reading, see J G Merills, International Dispute Settlement (5th edn, Cambridge: Cambridge University Press, 2011); Ian Brownlie. Peaceful Settlement of International Disputes (Oxford: Oxford University Press, 2009); United Nations Handbook on Peaceful Settlement of Disputes (1992).

2  For example, international investment disputes between States on the one hand and individuals or companies on the other may, since the entry into force in 1966 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, be submitted to independent conciliation commissions and arbitral tribunals constituted in each case under the framework laid down by the Convention.

3  PCIJ, Series A, No 2 (1924) 11.

4  1907 Hague Convention for the Pacific Settlement of International Disputes.

5  General Assembly resolution 37/10 of 15 November 1982.

6  See 1989 Joint Statement in 29 ILM 1291.

7  This followed from an earlier version of arrangements for inquiry commissions in the 1899 Hague Convention.

8  Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security A/RES/46/59 of 9 December 1991.

9  Established by Security Council resolution 687 (1991).

10  Report of the UN Secretary-General, 2 May 1991 (S/22559) para 20.

11  In 1985, the Rainbow Warrior, a ship owned by the environmental organization Greenpeace, was in Auckland harbour about to go on a protest voyage to Moruroa Atoll, a French nuclear test site, when it was sunk by agents of DGSE, the French foreign intelligence service. A photographer was drowned on the sinking ship.

12  The agreement was later broken by France, and an arbitration was necessary before that further dispute was finally resolved.

13  Presidential statement of 23 September 2008 (S/PRST/2008/36).

14  United Nations Model Rules for the Conciliation of Disputes between States; GA resolution 50/50 adopted on 29 January 1996.

15  Established under the Comprehensive Peace Agreement, signed in Algiers in December 2000.

17  For the judgment of the Court in the case, given on 23 May 2008, see <http://www.icj-cij.org/docket/files/130/14492.pdf>.

18  <http://legal.un.org/ilc/texts/instruments/english/commentaries/10_1_1958.pdf>; General Assembly resolution 1262 (XIII) of 14 November 1958.

19  Text at <http://www.pca-cpa.org/upload/files/2STATENG.pdf>. See too the UN Handbook on the Peaceful Settlement of Disputes between States, paras 168–95, 1992: <http://www.un.org/law/books/HandbookOnPSD.pdf>.

20  Full text, with English translation, available at <http://www.pca-cpa.org/upload/files/BE-NL%20Arbitration%20Agreement.pdf>. For other such agreements see <http://www.pca-cpa.org/showpage.asp?pag_id=1029>.

21  See also the coverage of regional organizations and their dispute settlement procedures in Chapter 23.

22  A useful summary is at <http://www.osce.org/documents/sg/2004/06/4056_en.pdf>. However, the so-called ‘Valetta mechanism’ for the peaceful settlement of disputes was never used.