Peaceful Settlement of

Dispute Under UN Charter

PUBLIC INTERNATIONAL LAW
 CONTENTS

INTRODUCTION
PACIFIC MEANS OF SETTLEMENT OF INTERNATIONAL
DISPUTES

NEGOTIATION

ARBITRATION

MEDIATION AND GOOD OFFICES

CONCILIATION AND ENQUIRY

UN PROCEDURES

INTERNATIONAL COURT OF JUSTICE

CONCLUSION

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INTRODUCTION
INTERNATIONAL DISPUTES AND SETTLEMENT – AN OVERVIEW

“An international or territorial dispute is a disagreement over the rights of two or more states
with regard to control of a given piece of land. International disputes find their roots in a
number of issues including natural resources, ethnic or religious demography, and even
ambiguous treaties. When left unchecked, international disputes have caused criminal
actions, terrorism, wars, and even genocide—all in the name of reasserting rights over
territory. The UN Charter in no way allows states to use force to annex territory from any
other state: “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.”

Arbitration can be made an appropriate international dispute settlement mechanism for

international disputes when arbitration agreements are carefully drafted. Arbitration is
especially valuable in contract disputes between a private company located in a Western
nation and a government agency or government-controlled company in a developing state as
well as in the framework of East-West trade agreements. Parties to international contracts
often favour arbitration because compared to litigation they believe it is inexpensive, rapid,
informal, generative of consensus, and a means of minimizing or avoiding the need for
lawyers. These advantages are partially attainable through the careful structuring of the
arbitration agreement, but without the proper agreement they can prove illusory. International
dispute settlement is a relatively new field of academic study that increasingly combines
private and public international law and raises enduring issues of global importance.” 1

International dispute settlement is concerned with the techniques and institutions which are
used to solve international disputes between States and/or international organizations.
International disputes can be solved either by use of force (coercion) or by peaceful
settlement. Techniques used for peaceful settlement of international disputes are negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice (Art. 33, UN Charter).2

1
http://www.globalsecurity.org/military/world/war/disputes.htm, last accessed on June 25, 2014.
2
http://www.peacepalacelibrary.nl/research-guides/settlement-of-international-disputes/international-
dispute-settlement/, last accessed on June 25, 2014.

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In a general way, international law provides the practical rounding out of the principles of
peaceful co-existence. International law provides the criteria for the identification of States
and organizations of States, and of the nationality of individuals and legal entities.
International law provides the definition of the political and territorial limits and the
jurisdiction of States, and also their immunities from jurisdiction. International law also
provides the basis of the civil responsibility of States for breaches of international law,
together with the appropriate remedies. And lastly international law provides the principles
and modalities governing the peaceful settlement of disputes between States.3

A dispute can be defined as a disagreement on a point of law or fact, a conflict of legal views
or of interests between two States. Disputes relate to an alleged breach of one or
more legal duties. They may also relate to a question of attribution of title to territory, to
maritime zones, to movables or to parts of the cultural heritage of a State.

Peace is very much the heart of the purposes and principles of the United Nations Charter
which provides that "All Members shall settle their international disputes by peaceful
means."4 Indeed, the U.N. Charter obliges Parties to, first of all, "seek a pacific settlement of
disputes."5 “Still, war is an unfortunate reality and, as such, is a subject for international law.6
The U.N. Charter does not shy away from the sad reality of war. In fact, the Charter
envisages a state of armed conflict by recognizing the right of self-defence in the event of an
armed attack.7 The obligation to seek peaceful solutions, however, is supplemented by the
duty of all States to promote a complete and general disarmament.8

AIMS & OBJECTIVES:

The researcher here wants to know about:

1. Ways of Peaceful settlement of disputes.

2. Provisions under UN charter for peaceful settlement of disputes.
3. About the applicability of those provisions on ground level.

3
http://chinesejil.oxfordjournals.org/content/8/2/267.full, last accessed on June 25, 2014.
4
U.N.CHARTER, art. 2, Para 3.
5
U.N.CHARTER, art. 33.
6
Aldrich, New Life for the Laws of War, 75 AM. J. INT'L L. 764 (1981)
7
U.N. CHARTER, art. 51.
8
Art. 15, The Economic Rights and Duties of States, U.N. General Assembly Resolution 3281, 29 Sess. (1974).

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HYPOTHESIS:

The researcher assumes that provisions under UN charter has helped greatly in settling
international disputes peacefully.

RESEARCH QUESTION:

The researcher wants to find about:

1. What are international disputes?

2. How those Disputes can be solved peacefully?
3. What are the provisions under UN charter for solving these disputes?
4. How far those provisions are applicable in solving those disputes?

RESEARCH METHODOLOGY:

The researcher has used Doctrinal method of research to complete this project.

LIMITATIONS:

There was time constraint due to which the researcher has to limit the ambit of his research
and focus on some specific topics.

CHAPTERIZATION:

1. Introduction
2. Peaceful settlement of disputes
3. UN procedure
4. International Court Of Justice
5. Conclusion

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PACIFIC MEANS OF SETTLEMENT OF INTERNATIONAL DISPUTES

Once the principle of the obligation to seek a peaceful settlement of disputes is established, it
becomes necessary to look to the procedures of international law which implement this
principle. The principle of pacific settlement of disputes is not an isolated concept in
international law. The monotony and uniformity in formulation of the principle contrasts with
the wide variety of the nature and effect of the proposed procedures. Peaceful settlement of
disputes is intimately supported, supplemented, and reinforced by nations in terms of friendly
relations, good neighbourliness, good will, and cooperation.9 The raison d'etre of diplomacy
and diplomatic relations regards negotiations as the first and most important means of
peaceful settlement of disputes.

Historically, International Law has been regarded by the international community as a means
to ensure the establishment and preservation of world peace and security. The maintenance
of international peace and security has always been the major purpose of the International
Law.

 It was the basic objective behind the creation of the League of Nations in 1919 and the
United Nations in 1945.

 Since the direct cause of war and violence is always a dispute between States, it is
therefore in the interest of peace and security that disputes should be settled.

 Methods and procedures for the peaceful (pacific) settlement of disputes have been made
available in the International Law.

States have concluded a great number of multilateral treaties aiming at the peaceful
settlement of their disputes and differences. The most important treaties are

1. the 1899 Hague Convention for the Pacific Settlement of International Disputes which
was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act
for the Pacific Settlement of Disputes which was concluded under the auspices of the
League of Nations.

2. Furthermore, there are regional agreements, such as the 1948 American Treaty on Pacific
Settlement (Bogotá Pact),

3. the 1957 European Convention for the Peaceful Settlement of Disputes,

9
I. POP., VOISINAGE ET BON VOISINAGE EN DROIT INTERNATIONAL (1980).

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4. and the 1964 Protocol of the Commission of Mediation and Arbitration of the
Organization of African Unity.

In addition to such general treaties on dispute settlement, there are many bilateral and
multilateral agreements which include specific clauses related to dispute settlement.

 The Charter of the United Nations devotes Chapter VI to the methods and procedures for
the pacific settlement of disputes.

 Paragraph 1 of Article 33 of the Charter states the methods for the pacific settlement of
disputes as the following: negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, and resort to regional agencies or arrangements.

 This paragraph obliges States parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, to seek a solution by any of
the listed methods or other peaceful means of their own choice.

The methods of peaceful settlement of disputes fall into three categories: diplomatic,
adjudicative, and institutional methods. Diplomatic methods involve attempts to settle
disputes either by the parties themselves or with the help of other entities. Adjudicative
methods involve the settlement of disputes by tribunals, either judicial or
arbitral. Institutional methods involve the resort to either the United Nations or regional
organizations for settlement of disputes.

NEGOTIATION

Negotiation is undoubtedly the oldest means of dispute settlement. In their dissenting

opinions in Mavrommatis, Judges Moore and Pessôa referred to it as, respectively, the “legal
and orderly administrative process by which governments, in the exercise of their
unquestionable powers, conduct their relations one with another and discuss, adjust and
settle, their differences” and as “debate or discussion between the representatives of rival
interests, discussion during which each puts forward his arguments and contests those of his
opponent.” Like consultation within the context of the World Trade Organization’s dispute
settlement system, negotiation allows the parties to a dispute to exchange information, assess
their respective cases, and attempt to reach a mutually agreed upon understanding.
Negotiation serves to focus disagreements and make disputes more “concrete,” with a view to

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settlement. Negotiation “...is a diplomatic procedure whereby representatives of states
engage in discussing matters...between them...to clarify and reconcile their divergent
positions and resolve the dispute.”10

MEDIATION AND GOOD OFFICES11

The next type of procedure is mediation, which is the first of a series of modes of third-party
settlement. Good offices is a similar mechanism. There is no standard definition of mediation
but it is nonetheless normally distinguished from conciliation. In principle, mediation
involves the direct conduct of negotiations on the basis of proposals made by the mediator.
Modern practice contains an important example of an effective mediation.

These procedures involve the participation of a neutral third party, whether an individual, a
group of persons, or a state or international organisation through their representatives or
senior officials. The third party’s role, which is dependent on the consent of the disputants, is
to encourage states to reach an agreed compromise or settlement of their dispute. Terms of
settlement may be proposed by the mediator, or a third party’s role may be limited to
bringing the contending parties together to negotiate directly (this is known as good offices).
Whatever form the process takes, any settlement will result from negotiation and agreement
of the parties themselves, perhaps assisted by the third party; but it will not be a binding
decision issued by that party on the basis of its findings of fact and legal rulings (as in judicial
settlements).

Mediation is commonly provided for in various multilateral treaties for the peaceful
settlement of disputes. The United Nations and, in particular, the Secretary-General, have
often either recommended or performed mediation or good offices, for example in Cyprus
from 1984 onwards. The UN Secretary-General and his counterparts in regional organisations
are often engaged in mediation, such as periodically in the Kashmir dispute between India
and Pakistan; the Cyprus question involving the two governments on Cyprus itself and
Greece and Turkey. Another example was the Falkland/Malvinas Islands dispute following
the Argentine invasion in 1982 and before UK forces recaptured possession of the islands.

10
Boleslaw A. Boczek, International Law: A Dictionary 379 (Scarecrow Press, Dictionaries of International Law,
No. 2, 2005)
11
http://chinesejil.oxfordjournals.org/content/8/2/267.full &
http://www.users.on.net/~roehr/notes/old/International%20Law/SG/law00521to10sg06.pdf, last accessed on
June 25, 2014.

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The Pope or his representative sometimes mediates, and did so successfully in the aftermath
of the Beagle Channel Arbitration between Argentina and Chile, when Argentina refused to
implement the award and armed conflict seemed imminent. Eventually mediation succeeded
and Chile accepted the settlement promoted by the Pope’s representative, under which Chile
gave up its rights in South Atlantic waters around the disputed islands but was confirmed in
its sovereignty over the islands themselves.

CONCILIATION12

The essence of conciliation is the impartial examination of a dispute by a third party, either
appointed ad hoc or a standing conciliation body or panel set up by treaty, with a view to
recommending terms of settlement to the parties. It is not a procedure based on law, and
recommendations do not have to respect parties’ legal rights. The parties are not obliged to
accept the recommendations. Conciliation is often a private procedure, and the report and
recommendations are confidential to the parties. It is a middle ground between inquiry (which
does not produce concrete proposals) and arbitration (which does produce a binding ruling).

Questions of law may well arise in any international dispute, and many conciliation
commissions have included lawyers as well as diplomats and persons with relevant expertise
such as geologists, geographers, fisheries experts and environmental scientists. There are
extensive provisions for conciliation of a range of disputes that may arise under the Law of
the Sea Convention 1982, which is now in force. Mechanisms for conciliation are also
established under The Hague Conventions for the Pacific Settlement of International Disputes
1899 & 1907 and the General Act on the Pacific Settlement of International Disputes 1928.

A fairly recent example of successful resort to conciliation is the Jan Maven Island case in
1981. Title to the island was disputed between Norway and Iceland, the issues being over the
continental shelf and fishing rights. The two states agreed to the establishment of a
conciliation commission that made certain recommendations and the two governments
accepted these. Norway’s title to the island was upheld in the commission’s Report.

ENQUIRY

12
http://www.users.on.net/~roehr/notes/old/International%20Law/SG/law00521to10sg06.pdf, last accessed
on June 25, 2014.

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A device which has proved useful on some occasions is the Commission of Inquiry. This
institution originated in the Hague Conventions of 1899 and 1907. Its specific purpose is to
elucidate the facts behind a dispute in order to facilitate a settlement. It does not involve the
application of rules of law. The purpose of the Commissions of Inquiry is provisional and
political. The device is linked to the idea that the resort to an inquiry provides a cooling off
period and reduces the risk of counter-measures or breaches of the peace. Moreover, the
Report on the facts de facto facilitates the settlement of the dispute. Recent examples of
Commissions of Inquiry concerned the Red Crusader incident between Denmark and the
United Kingdom (1962), and the Letelier and Moffitt case between Chile and the United
States (1992). By way of exception in both these cases, the role of the Commission was not
confined to findings of fact and was essentially judicial.

This method attempts to establish the factual basis for a settlement between states, whereby
the states involved voluntarily refer the dispute to a neutral fact finding person or body.
Although there is no legal obligation for the parties to accept the findings of the person/body,
this procedure can be invaluable - there is presently no permanent fact finding machinery set
up under International Law.

ARBITRATION

Arbitration is the most common ‘judicial’ means of settlement of international disputes.

According to the International Law Commission, international arbitration ‘is a procedure for
the settlement of disputes between States by a binding award on the basis of law and as the
result of an undertaking voluntarily accepted’. Some of the characteristics of Arbitration are
as follows –

 it is voluntary;
 it is binding on the parties;
 the parties can agree on what law is to be applied (however, often International Law is
used as most international arbitration is concerned with issues of International Law,
but it does not have to be);
 The arbitrator(s), which can be a single person, a number of persons, or a
Commission/Tribunal, is/are chosen by the parties.

The permanent machinery for the establishment of an international arbitration ‘court’ was

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founded under the Hague Conventions for the Pacific Settlement of International Disputes
1899 & 1907, but this machinery has only been used 28 times, and only four times since
1945.

The terms of arbitration are agreed on in advance either through an ad hoc agreement or a
treaty. The parties agree to the jurisdiction of the arbitrators, the method of selecting the
arbitrators, a definition of the dispute, the procedure to be followed, and sometimes the
applicable law.

Recent examples of international arbitration are:

 the Beagle Channel Arbitration between Chile & Argentina;

 the Anglo-French Continental Shelf case;
 the Rainbow Warrior case between France and New Zealand (the then UN Secretary-
General was the arbitrator);
 the Taba dispute between Israel & Egypt;
 Iran-US Claims Tribunal;
 the very important Island of Palmas case (Topic 8) - note that this is one area (issues
regarding sovereignty over Territory) where international arbitration has made some
very important contributions to International Law;
 the agreement between Libya and the international community to establish a Scottish
court in the Netherlands to try the two Libyan suspects;
 International commercial arbitration between a state and an international corporation,
using various arbitration treaties and international arbitration institutions (see the
Redfern & Hunter extract)

It is important to note that parties are not bound to use the particular arbitral formula of
Article 33 and are instead able to utilise other procedures if ‘the parties to the dispute
otherwise agree’ (Article 33(10)(b)). These other options could include use of the procedures
of the Permanent Court of Arbitration (PCA), which is not a ‘court’ but rather a special
mechanism, the primary purpose of which is to assist states in settling their international
controversies.515 The PCA was established in 1899 under the Hague Convention No 1 for
the Pacific Settlement of International Disputesand is able to provide its services to all

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arbitration cases submitted to it by agreement of the parties to a dispute. It has recently
updated its procedures to respond to current international practice and a particularly relevant
outcome is the 2001 Optional Rules for Arbitrating Environmental Disputes which provides
more detailed provisions than the arbitration procedure in the Convention.516 One significant
distinguishing factor between the ICJ and the PCA is that both international organisations and
companies can be parties to PC proceedings under the 2001 Optional whereas only states can
be parties to proceedings before the ICJ.517

There have been numerous international arbitrations of water disputes since the late 19th
Century, a select list of more recent cases include: the 1941 Trail Smelter Arbitration518 ; the
1947 Lac Lanoux Arbitration between Spain and France 519; the 1968 Gut Dam case
between the United States and Canada520 ; the 1994 Landmark 62-Mount Fitz Roy case
between Argentina and Chile521; the 2004 arbitration between Netherlands and France
pursuant to a nearly 70 year dispute; and the 1976 Convention on the Protection of the Rhine
Against Pollution by Chlorides and the Additional Protocol of 1991522. Most recently, in
2011, the PCA delivered an Order on Interim Measures regarding the Indus Waters
Kishenganga Arbitration(Pakistan v. India), which is examined in the opposiet column with a
specific focus on the process of dispute resolution.523

UN PROCEDURES13

 The United Nations was founded in October 24, 1945, and had 192 Member States, the
Articles of Association is mainly the "UN Charter", which is to maintain international
peace and in security, the development of friendly relations between countries, promote
international cooperation and coordination of national actions. It has a total of five major
organs: the United Nations General Assembly, Security Council, the Economic and
Social Council, International Court of Justice and the Secretariat, all agencies are to
perform their functions under the provisions of the Charter.
 Chapter VI of the United Nations Charter deals with peaceful settlement of disputes. It
requires countries with disputes that could lead to war to first of all try to seek solutions
through peaceful methods such as "negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements,
or other peaceful means of their own choice."

13
http://www.un.org/en/documents/charter/chapter6.shtml, last accessed on June 25, 2014.

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 If these methods ofalternative dispute resolution fail, then they must refer it to the UN
Security Council. Under Article 35, any country is allowed to bring a dispute to the
attention of the UN Security Council or the General Assembly. This chapter authorizes
the Security Council to issue recommendations but does not give it power to make
binding resolutions; those provisions are contained Chapter VII.[1][2][3]
 Chapter VI is analogous to Articles 13-15 of theCovenant of the League of Nations which
provide for arbitration and for submission of matters to the Council that are not submitted
to arbitration. United Nations Security Council Resolution 47 and United Nations
Security Council Resolution 242 are two examples of Chapter VI resolutions which
remain unimplemented.
 The Settlement of international disputes is one of the most important roles of the United
Nations. The Charter of the United Nations stipulates that it is the task of the United
Nations “to bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace.”[17]
 To this end, the Charter provides a system for the pacific settlement or adjustment of
international disputes or situations under which the wide competence of the United
Nations in this matter is established, and the corresponding obligations of the members of
the United Nations are imposed. This system is delineated mainly in Chapter VI of the
Charter.
 Chapter VI of the Charter contains the United Nations mechanism for the pacific
settlement of disputes. Article 33 obliges the parties to a dispute, the continuance of
which is likely to endanger the maintenance of international peace and security, to settle
such a dispute by any of the enumerated peaceful means therein, or by any peaceful
means of their choice.
 When the parties fail to observe their obligations or their efforts are not successful, the
United Nations will intervene to consider the dispute and give its recommendations on the
matters. The Security Council is given the primary responsibility in this regard.[18] It is
entitled to intervene either on its own initiative, upon invitation of any member of the
United Nations, upon invitation by the General Assembly, or upon a complaint of a party
to a dispute.[19]
 The Security Council may follow three courses of action. First, it may call upon the
parties to a dispute to settle their dispute by any of the peaceful means listed in Article

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 33(1).[20] Second, it may recommend to the parties appropriate procedures or method of
settlement.[21] Third, it may recommend terms of settlement, as it may consider
appropriate.[22]
 Although under the Charter the Security Council is given the primary role for maintaining
international peace and security, the General assembly is not excluded from doing so.

 Under Articles 11, 12 and 14, the General Assembly may discuss and make
recommendations for procedures or methods of adjustment, or for terms of settlement,
with regard to any dispute or situation brought before it. The disputes or situations may
be brought before the General Assembly by the Security Council, any member of the
United Nations, or any State party to such dispute.[23]

The Charter of United Nations says as under regarding the pacific means of settlement of
international disputes –

Article 33

1. The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle
their dispute by such means.

Article 34

The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the continuance
of the dispute or situation is likely to endanger the maintenance of international peace and
security.

Article 35

1. Any Member of the United Nations may bring any dispute, or any situation of the
nature referred to in Article 34, to the attention of the Security Council or of the
General Assembly.

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 2. A state which is not a Member of the United Nations may bring to the attention of the
Security Council or of the General Assembly any dispute to which it is a party if it
accepts in advance, for the purposes of the dispute, the obligations of pacific
settlement provided in the present Charter.

3. The proceedings of the General Assembly in respect of matters brought to its attention
under this Article will be subject to the provisions of Articles 11 and 12.

Article 36

1. The Security Council may, at any stage of a dispute of the nature referred to in Article
33 or of a situation of like nature, recommend appropriate procedures or methods of
adjustment.

2. The Security Council should take into consideration any procedures for the settlement
of the dispute which have already been adopted by the parties.

3. In making recommendations under this Article the Security Council should also take
into consideration that legal disputes should as a general rule be referred by the parties
to the International Court of Justice in accordance with the provisions of the Statute of
the Court.

Article 37

1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by
the means indicated in that Article, they shall refer it to the Security Council.

2. If the Security Council deems that the continuance of the dispute is in fact likely to
endanger the maintenance of international peace and security, it shall decide whether
to take action under Article 36 or to recommend such terms of settlement as it may
consider appropriate.

Article 38

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Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the
parties to any dispute so request, make recommendations to the parties with a view to a
pacific settlement of the dispute.

1. It has always been a controversial topic that whether the United Nations plays an
important role in international affairs, this essay agrees that the United Nations is indeed
an effective institution, it plays an irreplaceable role in dealing with many international
disputes and settlement of international affairs. However, the United Nations also has its
limitations and shortcomings, which are mainly reflected in the poor settlement of
regional disputes and the inability to stop the war. This essay will firstly introduce the
principal organs of the United Nations in terms of the settlement of disputes. Following
this, it will discuss the limitations and shortcomings of the United Nations in maintaining
international peace and security. Finally, it will look at how the limitations and
shortcomings reflected in the settlement of Iraq War.

2. First, the General Assembly and the Secretary-General. The United Nations General
Assembly is composed by all Member States, which is the deliberative organ of the
United Nations, and holding a regular session each year. There must be two-thirds of the
UN General Assembly adopted on "important issues"; for the "general problems", more
than half would be permitted. Generally speaking, resolutions adopted by the Assembly
are not legally binding, and they are more of a political and moral strength. The role of
Secretary-General of the United Nations is reflected more of a third-party intervention in
the peaceful settlement of international disputes.

3. Second, the Security Council. Within the United Nations, Security Council plays an
important political position; it is the only organization which has right to take action for
the maintenance of international peace and security under the Chapter VII of "UN
Charter", and all the United Nations Member States must comply with any resolution
made by the Council in its terms of reference.

To take the Iraq war for example, after the 1991 Gulf War the United Nations Security
Council passed a total of over 60 resolution, mainly around the Gulf War cease-fire,
liability and compensation for war, destruction of weapons of mass destruction in Iraq,
against terrorism and the request of Iraq on full cooperation with the United Nations
issues. (Bennett, 2008) In the international level, these resolutions made by the Council
is the legal basis for international community to deal with the Iraq issue, which provides

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the rights and obligations of Iraq and other members of the United Nations on the issue,
but also decides the position of the United Nations in Iraq's post-war reconstruction.
But overall, the U.S. and British military action against Iraq is the challenge that defies
the United Nations security system, which just exposes the limitations and shortcomings
of the United Nations Security Council in maintaining international peace and security.

The Limitations And Shortcomings Of UN Reflected In The Iraq Issue

It is not only used to encourage the participating countries of the Hague Peace Conference in
1899 to take peaceful settlement of international disputes in order to prevent the outbreak of
war, but also the "Hague spirit which affects the future development of international law in
the field of peaceful settlement of international disputes. Article 1 of the “UN Chapter”
clearly states: To maintain international peace and security …and 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.”
Thus, "safeguarding world peace and security" is in the first place of the four purposes of
United Nations organizations.

However, the United States and Britain launched the war on Iraq by passing the Security
Council, which is an act of unilateralism of "the United Nations Charter" and "international
law", and it has become an indisputable fact of disregard of the law. (Pfaff, 2003) It violates
the basic principles of the Charter, including the sovereign equality of Member States; in
good faith to fulfill international obligations; peaceful settlement of international disputes;
not to use force or threat of force against any Member State on the territorial integrity or
political independence; collective assistance; ensure that non- Member States to comply with
the Charter principles and non-interference in internal affairs. It can not cover up the
hegemonic and non-humanitarian reflected in their actions with any excuse. (Sellersed, 1996)

However, the problem is that there is no independent and effective mechanism above the
nations which has the power to conduct certain punishment and coercive measures, even the
United Nations can not do anything. (Michael, 2003) In other words, although the Charter
and international law clearly prohibit such behavior, but they did not provide the legal
consequences for the violation of prohibition; or even if provided, the enforceability of the
resolution is still a very difficult problem. (Thomas, 2001)

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Thus, there has been a constant friction and conflict between the major powers unilateralism
and multilateralism established by the United Nations, (Boutros, 2003) the United States so-
called "preemptive" self-defense theory, "human rights overriding sovereignty" principle
began to follow. All these have given a heavy blow to the United Nations security
mechanisms, which is built up painstakingly by all countries in the world. The United
Nation’s powerless on this issue has become an embarrassing situation.

INTERNATIONAL COURT OF JUSTICE

 The creation of the Court represented the culmination of a long development of methods
for the pacific settlement of international disputes, the origins of which can be traced back
to classical times.

 Article 33 of the United Nations Charter lists the following methods for the pacific
settlement of disputes between States: negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, and resort to regional agencies or arrangements; good
offices should also be added to this list. Among these methods, certain involve appealing
to third parties. For example, mediation places the parties to a dispute in a position in
which they can themselves resolve their dispute thanks to the intervention of a third party.
Arbitration goes further, in the sense that the dispute is submitted to the decision or award
of an impartial third party, so that a binding settlement can be achieved. The same is true
of judicial settlement (the method applied by the International Court of Justice), except
that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural
matters.

 Mediation and arbitration preceded judicial settlement in history. The former was known
in ancient India and in the Islamic world, whilst numerous examples of the latter are to be
found in ancient Greece, in China, among the Arabian tribes, in maritime customary law
in medieval Europe and in Papal practice.

The origins

 The modern history of international arbitration is, however, generally recognized as

dating from the so-called Jay Treaty of 1794 between the United States of America and
Great Britain.

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 This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed
commissions, composed of American and British nationals in equal numbers, whose task
it would be to settle a number of outstanding questions between the two countries which
it had not been possible to resolve by negotiation. Whilst it is true that these mixed
commissions were not strictly speaking organs of third-party adjudication, they were
intended to function to some extent as tribunals. They reawakened interest in the process
of arbitration. Throughout the nineteenth century, the United States and the United
Kingdom had recourse to them, as did other States in Europe and the Americas.

 The Alabama Claims arbitration in 1872 between the United Kingdom and the United
States marked the start of a second, and still more decisive, phase. Under the Treaty of
Washington of 1871, the United States and the United Kingdom agreed to submit to
arbitration claims by the former for alleged breaches of neutrality by the latter during the
American Civil War. The two countries stated certain rules governing the duties of
neutral governments that were to be applied by the tribunal, which they agreed should
consist of five members, to be appointed respectively by the Heads of State of the United
States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not being
parties to the case. The arbitral tribunal’s award ordered the United Kingdom to pay
compensation and it was duly complied with. The proceedings served as a demonstration
of the effectiveness of arbitration in the settlement of a major dispute and it led during the
latter years of the nineteenth century to developments in various directions, namely:

 sharp growth in the practice of inserting in treaties clauses providing for recourse to
arbitration in the event of a dispute between the parties;

 the conclusion of general treaties of arbitration for the settlement of specified classes
of inter-State disputes;

 efforts to construct a general law of arbitration, so that countries wishing to have

recourse to this means of settling disputes would not be obliged to agree each time on
the procedure to be adopted, the composition of the tribunal, the rules to be followed
and the factors to be taken into consideration in making the award;

 proposals for the creation of a permanent international arbitral tribunal in order to

obviate the need to set up a special ad hoc tribunal to decide each arbitrable dispute.

The Hague Peace Conferences and the Permanent Court of Arbitration (PCA)

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The Hague Peace Conference of 1899, convened at the initiative of the Russian
Czar Nicholas II, marked the beginning of a third phase in the modern history of international
arbitration. The chief object of the Conference, in which — a remarkable innovation for the
time — the smaller States of Europe, some Asian States and Mexico also participated, was to
discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement
of International Disputes, which dealt not only with arbitration but also with other methods of
pacific settlement, such as good offices and mediation.

With respect to arbitration, the 1899 Convention made provision for the creation of
permanent machinery which would enable arbitral tribunals to be set up as desired and would
facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted
in essence of a panel of jurists designated by each country acceding to the Convention —
each such country being entitled to designate up to four — from among whom the members
of each arbitral tribunal might be chosen. The Convention further created a permanent
Bureau, located at The Hague, with functions corresponding to those of a court registry or a
secretariat, and it laid down a set of rules of procedure to govern the conduct of arbitrations.
It will be seen that the name “Permanent Court of Arbitration” is not a wholly accurate
description of the machinery set up by the Convention, which represented only a method or
device for facilitating the creation of arbitral tribunals as and when necessary. Nevertheless,
the system so established was permanent and the Convention as it were “institutionalized” the
law and practice of arbitration, placing it on a more definite and more generally accepted
footing. The Permanent Court of Arbitration was established in 1900 and began operating in
1902.

A few years later, in 1907, a second Hague Peace Conference, to which the States of Central
and South America were also invited, revised the Convention and improved the rules
governing arbitral proceedings. Some participants would have preferred the Conference not
to confine itself to improving the machinery created in 1899. The United States Secretary of
State, Elihu Root, had instructed the United States delegation to work towards the creation of
a permanent tribunal composed of judges who were judicial officers and nothing else, who
had no other occupation, and who would devote their entire time to the trial and decision of
international cases by judicial methods. “These judges”, wrote Secretary Root, “should be so
selected from the different countries that the different systems of law and procedure and the
principal languages shall be fairly represented”. The United States, the United Kingdom and
Germany submitted a joint proposal for a permanent court, but the Conference was unable to

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reach agreement upon it. It became apparent in the course of the discussions that one of the
major difficulties was that of finding an acceptable way of choosing the judges, none of the
proposals made having managed to command general support. The Conference confined
itself to recommending that States should adopt a draft convention for the creation of a court
of arbitral justice as soon as agreement was reached “respecting the selection of the judges
and the constitution of the court”. Although this court was never in fact to see the light of
day, the draft convention that was to have given birth to it enshrined certain fundamental
ideas that some years later were to serve as a source of inspiration for the drafting of the
Statute of the Permanent Court of International Justice (PCIJ).

Notwithstanding the fate of these proposals, the Permanent Court of Arbitration, which in
1913 took up residence in the Peace Palace that had been built for it thanks to a gift from
Andrew Carnegie, has made a positive contribution to the development of international law.
Among the classic cases that have been decided through recourse to its machinery, mention
may be made of the Carthage and Manouba cases (1913) concerning the seizure of vessels,
and of the Timor Frontiers (1914) and Sovereignty over the Island of Palmas (1928) cases.
Whilst demonstrating that arbitral tribunals set up by recourse to standing machinery could
decide disputes between States on a basis of law and justice and command respect for their
impartiality, these cases threw into bold relief the shortcomings of the Permanent Court of
Arbitration. Tribunals of differing composition could hardly be expected to develop a
consistent approach to international law to the same extent as a permanently constituted
tribunal. Besides, there was the entirely voluntary character of the machinery. The fact that
States were parties to the 1899 and 1907 Conventions did not oblige them to submit their
disputes to arbitration nor, even if they were minded so to do, were they duty-bound to have
recourse to the Permanent Court of Arbitration nor to follow the rules of procedure laid down
in the Conventions.

The Permanent Court of Arbitration has recently sought to diversify the services that it can
offer, alongside those contemplated by the Conventions. The International Bureau of the
Permanent Court has inter alia acted as Registry in some important international arbitrations,
including that between Eritrea and Yemen on questions of territorial sovereignty and
maritime delimitation (1998 and 1999), that concerning the delimitation of the boundary
between Eritrea and Ethiopia (2002), and that between Ireland and the United Kingdom under
the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic
(OSPAR). Moreover, in 1993, the Permanent Court of Arbitration adopted new “Optional

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Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in
2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the
Environment”.

For more information on the Permanent Court of Arbitration, please visit their
website: www.pca-cpa.org.

The work of the two Hague Peace Conferences and the ideas they inspired in statesmen and
jurists had some influence on the creation of the Central American Court of Justice, which
operated from 1908 to 1918, as well as on the various plans and proposals submitted between
1911 and 1919 both by national and international bodies and by governments for the
establishment of an international judicial tribunal, which culminated in the creation of the
PCIJ within the framework of the new international system set up after the end of the First
World War.

The Permanent Court of International Justice (PCIJ)

Article 14 of the Covenant of the League of Nations gave the Council of the League
responsibility for formulating plans for the establishment of a Permanent Court of
International Justice (PCIJ), such a court to be competent not only to hear and determine any
dispute of an international character submitted to it by the parties to the dispute, but also to
give an advisory opinion upon any dispute or question referred to it by the Council or by the
Assembly. It remained for the League Council to take the necessary action to give effect to
Article 14. At its second session early in 1920, the Council appointed an Advisory Committee
of Jurists to submit a report on the establishment of the PCIJ. The committee sat in The
Hague, under the chairmanship of Baron Descamps ( Belgium). In August 1920, a report
containing a draft scheme was submitted to the Council, which, after examining it and
making certain amendments, laid it before the First Assembly of the League of Nations,
which opened at Geneva in November of that year. The Assembly instructed its Third
Committee to examine the question of the Court’s constitution. In December 1920, after an
exhaustive study by a subcommittee, the Committee submitted a revised draft to the
Assembly, which unanimously adopted it. This was the Statute of the PCIJ.

The Assembly took the view that a vote alone would not be sufficient to establish the PCIJ
and that each State represented in the Assembly would formally have to ratify the Statute. In
a resolution of 13 December 1920, it called upon the Council to submit to the Members of the
League of Nations a protocol adopting the Statute and decided that the Statute should come

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into force as soon as the protocol had been ratified by a majority of Member States. The
protocol was opened for signature on 16 December. By the time of the next meeting of the
Assembly, in September 1921, a majority of the Members of the League had signed and
ratified the protocol. The Statute thus entered into force. It was to be revised only once, in
1929, the revised version coming into force in 1936. Among other things, the new Statute
resolved the previously insurmountable problem of the election of the members of a
permanent international tribunal by providing that the judges were to be elected concurrently
but independently by the Council and the Assembly of the League, and that it should be
borne in mind that those elected “should represent the main forms of civilization and the
principal legal systems of the world”. Simple as this solution may now seem, in 1920 it was a
considerable achievement to have devised it. The first elections were held on
14 September 1921. Following approaches by the Netherlands Government in the spring of
1919, it was decided that the PCIJ should have its permanent seat in the Peace Palace in The
Hague, which it would share with the Permanent Court of Arbitration. It was accordingly in
the Peace Palace that on 30 January 1922 the Court’s preliminary session devoted to the
elaboration of the Court’s Rules opened, and it was there too that its inaugural sitting was
held on 15 February 1922, with the Dutch jurist Bernard C. J. Loder as President.

The PCIJ was thus a working reality. The great advance it represented in the history of
international legal proceedings can be appreciated by considering the following:

 unlike arbitral tribunals, the PCIJ was a permanently constituted body governed by its
own Statute and Rules of Procedure, fixed beforehand and binding on parties having
recourse to the Court;

 it had a permanent Registry which, inter alia, served as a channel of communication

with governments and international bodies;

 its proceedings were largely public and provision was made for the publication in due
course of the pleadings, of verbatim records of the sittings and of all documentary
evidence submitted to it;

 the permanent tribunal thus established was now able to set about gradually
developing a constant practice and maintaining a certain continuity in its decisions,
thereby enabling it to make a greater contribution to the development of international
law;

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  in principle the PCIJ was accessible to all States for the judicial settlement of their
international disputes and they were able to declare beforehand that for certain classes
of legal disputes they recognized the Court’s jurisdiction as compulsory in relation to
other States accepting the same obligation. This system of optional acceptance of the
jurisdiction of the Court was the most that it was then possible to obtain;

 the PCIJ was empowered to give advisory opinions upon any dispute or question
referred to it by the League of Nations Council or Assembly;

 the Court’s Statute specifically listed the sources of law it was to apply in deciding
contentious cases and giving advisory opinions, without prejudice to the power of the
Court to decide a case ex aequo et bono if the parties so agreed;

 it was more representative of the international community and of the major legal
systems of the world than any other international tribunal had ever been before it.

Although the Permanent Court of International Justice was brought into being through, and
by, the League of Nations, it was nevertheless not a part of the League. There was a close
association between the two bodies, which found expression inter alia in the fact that the
League Council and Assembly periodically elected the Members of the Court and that both
Council and Assembly were entitled to seek advisory opinions from the Court, but the latter
never formed an integral part of the League, just as the Statute never formed part of the
Covenant. In particular, a Member State of the League of Nations was not by this fact alone
automatically a party to the Court’s Statute.

Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between States and
delivered 27 advisory opinions. At the same time several hundred treaties, conventions and
declarations conferred jurisdiction upon it over specified classes of disputes. Any doubts that
might thus have existed as to whether a permanent international judicial tribunal could
function in a practical and effective manner were thus dispelled. The Court’s value to the
international community was demonstrated in a number of different ways, in the first place
by the development of a true judicial technique. This found expression in the Rules of Court,
which the PCIJ originally drew up in 1922 and subsequently revised on three occasions, in
1926, 1931 and 1936. There was also the PCIJ’s Resolution concerning the Judicial Practice
of the Court, adopted in 1931 and revised in 1936, which laid down the internal procedure to
be applied during the Court’s deliberations on each case. In addition, whilst helping to
resolve some serious international disputes, many of them consequences of the First World

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War, the decisions of the PCIJ at the same time often clarified previously unclear areas of
international law or contributed to its development.

For more information on the Permanent Court of International Justice, please see the
"PCIJ" pages on our website.

The International Court of Justice (ICJ)

The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ,
which had already for some years known a period of diminished activity. After its last public
sitting on 4 December 1939, the Permanent Court of International Justice did not in fact deal
with any judicial business and no further elections of judges were held. In 1940 the Court
removed to Geneva, a single judge remaining at The Hague, together with a few Registry
officials of Dutch nationality. It was inevitable that even under the stress of the war some
thought should be given to the future of the Court, as well as to the creation of a new
international political order.

In 1942 the United States Secretary of State and the Foreign Secretary of the United
Kingdom declared themselves in favour of the establishment or re-establishment of an
international court after the war, and the Inter-American Juridical Committee recommended
the extension of the PCIJ’s jurisdiction. Early in 1943, the United Kingdom Government took
the initiative of inviting a number of experts to London to constitute an informal Inter-Allied
Committee to examine the matter. This Committee, under the chairmanship of
Sir William Malkin ( United Kingdom), held 19 meetings, which were attended by jurists
from 11 countries. In its report, which was published on 10 February 1944, it recommended:

 that the Statute of any new international court should be based on that of the
Permanent Court of International Justice;

 that advisory jurisdiction should be retained in the case of the new Court;

 that acceptance of the jurisdiction of the new Court should not be compulsory;

 that the Court should have no jurisdiction to deal with essentially political matters.

Meanwhile, on 30 October 1943, following a conference between China, the USSR, the
United Kingdom and the United States, a joint declaration was issued recognizing the
necessity “of establishing at the earliest practicable date a general international organization,
based on the principle of the sovereign equality of all peace-loving States, and open to

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membership by all such States, large and small, for the maintenance of international peace
and security”.

This declaration led to exchanges between the Four Powers at Dumbarton Oaks, resulting in
the publication on 9 October 1944 of proposals for the establishment of a general
international organization, to include an international court of justice. The next step was the
convening of a meeting in Washington, in April 1945, of a committee of jurists representing
44 States. This Committee, under the chairmanship of G. H. Hackworth ( United States), was
entrusted with the preparation of a draft Statute for the future international court of justice,
for submission to the San Francisco Conference, which during the months of April to
June 1945 was to draw up the United Nations Charter. The draft Statute prepared by the
Committee was based on the Statute of the PCIJ and was thus not a completely fresh text.
The Committee nevertheless felt constrained to leave a number of questions open which it
felt should be decided by the Conference: should a new court be created? In what form
should the court’s mission as the principal judicial organ of the United Nations be stated?
Should the court’s jurisdiction be compulsory, and, if so, to what extent? How should the
judges be elected? The final decisions on these points, and on the definitive form of the
Statute, were taken at the San Francisco Conference, in which 50 States participated. The
Conference decided against compulsory jurisdiction and in favour of the creation of an
entirely new court, which would be a principal organ of the United Nations, on the same
footing as the General Assembly, the Security Council, the Economic and Social Council, the
Trusteeship Council and the Secretariat, and with the Statute annexed to and forming part of
the Charter. The chief reasons that led the Conference to decide to create a new court were
the following:

 as the court was to be the principal judicial organ of the United Nations, it was felt
inappropriate for this role to be filled by the Permanent Court of International Justice,
which had up until then been linked to the League of Nations, then on the point of
dissolution;

 the creation of a new court was more consistent with the provision in the Charter that
all Member States of the United Nations would ipso facto be parties to the court’s
Statute;

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  several States that were parties to the Statute of the PCIJ were not represented at the
San Francisco Conference, and, conversely, several States represented at the
Conference were not parties to the Statute;

 there was a feeling in some quarters that the PCIJ formed part of an older order, in
which European States had dominated the political and legal affairs of the
international community, and that the creation of a new court would make it easier for
States outside Europe to play a more influential role. This has in fact happened as the
membership of the United Nations grew from 51 in 1945 to 192 in 2006.

The San Francisco Conference nevertheless showed some concern that all continuity with the
past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on
the basis of past experience, and it was felt better not to change something that had seemed to
work well. The Charter therefore plainly stated that the Statute of the International Court of
Justice was based upon that of the PCIJ. At the same time, the necessary steps were taken for
a transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of
Justice. In any event, the decision to create a new court necessarily involved the dissolution
of its predecessor. The PCIJ met for the last time in October 1945 when it was decided to
take all appropriate measures to ensure the transfer of its archives and effects to the new
International Court of Justice, which, like its predecessor, was to have its seat in the Peace
Palace. The judges of the PCIJ all resigned on 31 January 1946, and the election of the first
Members of the International Court of Justice took place on 6 February 1946, at the First
Session of the United Nations General Assembly and Security Council. In April 1946, the
PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time,
elected as its President Judge José Gustavo Guerrero ( El Salvador), the last President of the
PCIJ. The Court appointed the members of its Registry (largely from among former officials
of the PCIJ) and held an inaugural public sitting, on the 18th of that month. The first case was
submitted in May 1947. It concerned incidents in the Corfu Channel and was brought by the
United Kingdom against Albania

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CONCLUSION

In coming to my conclusion, I shall look at the more problematical aspects of the process of
adjudication, whether in the International Court or in courts of arbitration. The special
attraction of adjudication is that it is definitive and removes a source of political antagonism
and tension between the parties. The alternative is either negotiation, which involves the
responsible officials in making compromises, or inaction. In any event, adjudication has
certain inherent limitations. In the first place, the International Court is to a great extent
dependent upon the parties when it comes to matters of fact and the Court is reluctant to ask
questions of the parties. And there is no appeal. Second, the International Court sometimes
operates in legal fields on the margins of normal areas of justiciable issues.

By way of conclusion, it is convenient to present a series of propositions:

 First, the system of peaceful settlement of inter-State disputes is a significant part of

the universe of international relations.

 Second, the modalities are very varied and adjudication is simply one instrument
forming part of an entire orchestra of modes of peaceful settlement.

 Third, in relation to settlement on the basis of law, the practice of arbitration is as

significant as the work of standing tribunals, such as the International Court.

 Fourth, the system we have is not attuned to the settlement of purely

political disputes.

 Fifth, the International Court has a successful record of the settlement of disputes
concerning territory and delimitation, including maritime delimitation.

 And lastly, resort to both the International Court and to ad hoc arbitration constitutes
the general practice of all regions.

The general outcome is ironical, to say the least. In the era of decolonization, in the 1960s,
western pundits expressed portentous concerns about the aptitude of the new States to
participate in what was seen as a western system of international law and dispute settlement.
These concerns were both condescending and unfounded.

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