Book VII The Peaceful Settlement of International Disputes and the Development and Role of International Criminal Tribunals, 29 Peaceful Settlement of International Disputes
Edited By: Sir Ivor Roberts KCMG
- Diplomatic relations — Negotiations and consultation — Fact-finding and inquiry — Mediation — Good offices — Conciliation — Arbitration — Jurisdiction of states, conflicts — UNCLOS (UN Convention on the Law of the Sea)
(p. 469) 29 Peaceful Settlement of International Disputes1
29.1 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 is 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’.
29.2 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(p. 470) 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.
29.3 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 ‘[a]ll 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’.
29.4 The United Nations has devoted much, if not always efficient, consideration to this issue. The General Assembly on 15 November 1982 approved the Manila Declaration on the Peaceful Settlement of International Disputes.5 This 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 on 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, and partly resentment of the Council by those who hanker for a General Assembly role. 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. Nor have the resources and mediation support capacities been adequate to the demand, or enough been done to work with regional organizations and civil society.
29.6 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 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 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.
29.7 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 for resolution. 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 settles certain questions among the parties while ‘freezing’ the sovereignty claims of some of the parties, and the non-recognition of those claims by others.
29.8 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 alternative. 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 (p. 472) negotiating process to settle disputes. An example is the permanent commission established as part of the Canada-US International Joint Commission.
Inquiry and Fact-finding
29.9 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.
29.10 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 crew members put on board; the trawler had in turn incapacitated the Danish officers and changed course. The Danish vessel fired on the fleeing trawler. The commission of inquiry found the facts which facilitated the settlement of the dispute, though 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 between Iran and Iraq.
29.11 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 (p. 473) 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
29.12 If relations between the parties are not conducive to successful negotiations or if negotiations have not succeeded, intervention by a third party may help. 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.
29.13 Three examples will suffice. 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. In 2006 UN Secretary-General Ko? Annan successfully mediated in a (p. 474) territorial dispute between Nigeria and Cameroon over ownership of the Bakassi peninsula.
29.14 In September 2008, the Security Council considered a paper 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.
29.15 This technique combines the characteristics of inquiry and mediation. Again, a person enjoying the confidence of the parties or a conciliation panel is tasked to establish the facts and put forward non-binding proposals for consideration by the parties. 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.
29.16 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. The judges are called arbitrators and their judgement is known as an award. Arbitration has a long history. But the Permanent Court of Arbitration, (p. 475) established under the 1899 Hague Convention, has a misleading name; it provides not an arbitral court but a mechanism for facilitating arbitrations.
29.17 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, with the assumption that they will submit in good faith to the outcome.
29.18 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.
29.19 While this may mean the International Court of Justice, Article 95 of the UN Charter makes clear that States may use other tribunals of choice. Further discussion of the ICJ can be found in Chapter 30.
Regional and Other Special Arrangements
29.20 Regional organizations often have their own arrangements for addressing disputes. 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.16
29.21 The three founding treaties of the European Union, as amended by successive treaty amendments, established the European Court of Justice with compulsory (p. 476) jurisdiction over certain matters within the Treaties; 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 Organization for Security and Cooperation in Europe (OSCE) has a large number of mechanisms for the avoidance and settlement of disputes, emphasizing dispute prevention and management, as much as settlement.17
29.22 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 (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, officeholders of the Economic Community of West African States were active 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.
29.23 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.
29.24 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. The Understanding of Rules (p. 477) 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.(p. 478)
1 For further reading, see J G Merills, International Dispute Settlement (4th edn, Cambridge: Cambridge University Press, 2005).
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.
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.
16 See also the coverage of regional organizations and their dispute settlement procedures in Chapter 28.
17 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.