THE SETTLEMENT OF DISPUTES BY PEACEFUL MEANS

The fundamental purpose of International law is maintenance of peace; J. G. Merrills,

International Dispute Settlement, 4th edn, Cambridge, 2005,
The Two Techniques Of Conflict Management;
Diplomatic procedures; To resolve differences by the use of the discussion and fact-finding
methods.
Adjudication; The determination by a disinterested third party of the legal and factual issues
involved, either by arbitration or by the decision of judicial organs.
A range of mechanisms may be utilized; Chad–Libya boundary dispute. Conflict armed
hostilities since 1973, the two states signed a Framework Agreement in August 1989 in which
they undertook to seek a peaceful solution, the dispute was submitted to the International Court,
the decision of the Court was delivered on 3 February 1994.
All the methods available to settle disputes are operative only upon the consent of the particular
states.
Article 2(3) of the United Nations Charter provides 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.
The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States:
States shall accordingly seek early and just settlement of their international disputes by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements or other peaceful means of their choice.
States have a free choice as to the mechanisms adopted for settling their disputes.
The parties to a dispute have the duty to continue to seek a settlement by other peaceful means
agreed by them, in the event of the failure of one particular method.
Failure to resolve a dispute, which is a danger the maintenance of international peace and
security, the parties ‘shall refer it to the Security Council’; Article 37(1)
Different Bodies;
1. The American Treaty on Pacific Settlement (the Pact of Bogota), 1948 of the Organization of
American States.
2. The European Convention for the Peaceful Settlement of Disputes, 1957
3. The Helsinki Final Act of the Conference on Security and Co-operation in Europe, 1975.
DIPLOMATIC METHODS OF DISPUTE SETTLEMENT
1. Negotiation
 The simplest and most utilized form.
 Consists of discussions between the interested parties with a view to reconciling divergent
opinions.
 A precursor to other settlement procedures.
 Suited to the clarification, if not always resolution, of complicated disagreements.
 The most satisfactory means to resolve disputes since the parties are so directly engaged.
Agreements can provide for negotiations;
Article 283(1) of the Convention on the Law of the Sea, 1982; ‘the parties to the dispute shall
proceed expeditiously to an exchange of views regarding its settlement by negotiation or other
peaceful means’
In the North Sea Continental Shelf cases, it was held:
“the parties are under an obligation to enter into negotiations with a view to arriving at an
agreement….. they are under an obligation so to conduct themselves that the negotiations are
meaningful”
In the German External Debts case 47 ILR, pp. 418, 454; “although an agreement to negotiate
did not necessarily imply an obligation to reach an agreement, ‘it does imply that serious efforts
towards that end will be made’
On disputes that international peace and security, the parties to such disputes shall first of all
seek a solution by negotiation, inquiry or mediation, and then resort, if the efforts have not borne
fruit, to more complex forms of resolution; Article 33 of the UN Charter
2. Good offices and mediation
 Involves the use of a third party, whether an individual, state or international organization, to
encourage the contending parties to come to a settlement
 Aims at persuading the parties to a dispute to reach satisfactory terms for its termination by
themselves.
 Good offices are involved where a third party attempts to influence the opposing sides to
enter into negotiations
 E.g. the role played by the US President in 1906 in concluding the Russian– Japanese War,
or the function performed by the USSR in assisting in the peaceful settlement of the India–
Pakistan dispute in 1965.
 UN Secretary-General can sometimes play an important role by the exercise of his good
offices. The Geneva Agreements relating to Afghanistan in 1988.
The Hague Conventions of 1899 and 1907 laid down many of the rules governing these two
processes.
3. Inquiry
 Where differences of opinion on factual matters arise in a dispute between parties, a
commission of inquiry is set up to ascertain precisely the facts in contention.
 First elaborated in the 1899 Hague Conference as a possible alternative to the use of
arbitration.
 Used where the conflict centres around a genuine disagreement which can be resolved by
recourse to an impartial and conscientious investigation.
 Successfully used in the Dogger Bank incident of 1904 where Russian naval ships fired on
British fishing boats thinking they were hostile Japanese torpedo craft. The international
inquiry commission led to a peaceful settling of the issue.
 The Red Crusader inquiry of 1962 in an incident between a British trawler and a Danish
fisheries protection vessel, which subsequently involved a British frigate.
 A US–Chile Commission January 1992; To determine the amount of compensation that
would be paid by Chile to the US in respect of an assassination alleged to have been carried
out by it in Washington DC.

4. Conciliation
 Involves a third-party investigation of the basis of the dispute and the submission of a report
embodying suggestions for a settlement.
 Involves elements of both inquiry and mediation
 Emerged from treaties providing for permanent inquiry commissions.
 Conciliation reports are only proposals and do not constitute binding decisions.
 Conciliation commissions mostly used in the period between the world wars.
 The processes are extremely flexible and may stimulate negotiations between the parties.
The rules dealing with conciliation were elaborated in the General Act on the Pacific Settlement
of International Disputes 1949.
Treaties that provide for conciliation as a means of resolving disputes;
 The 1948 American Treaty of Pacific Settlement.
 European Convention for the Peaceful Settlement of Disputes 1957.
 The 1964 Protocol on the Commission of Mediation, Conciliation and Arbitration to the
Charter of the Organisation of African Unity (now the African Union);
 The conciliation procedure was used in the Iceland–Norway dispute over the continental
shelf delimitation between Iceland and Jan Mayen island; 20 ILM, 1981, p. 797
 The United Nations; the Conciliation Commission for the Congo under resolution 1474 (ES-
IV) of 1960.
INTERNATIONAL INSTITUTIONS AND DISPUTE SETTLEMENT
Regional Organizations
Article 52(1) of Chapter VIII of the UN Charter; Nothing in the Charter precludes the
existence of regional arrangements for dealing with such matters relating to the maintenance of
international peace and security as are appropriate … and consistent with the purposes and
principles of the UN.
Article 52(2); members entering into such arrangements are to make every effort to settle local
disputes peacefully through such regional arrangements…..
Various regional organizations have created machinery for the settlement of disputes.
1. The African Union (Organisation of African Unity)
 Established in 1963.
 Article XIX of its Charter referred to the principle of ‘the peaceful settlement of disputes by
negotiation, mediation, conciliation or arbitration’
 A Commission of Mediation, Conciliation and Arbitration was established by the Protocol of
21 July 1964.
 In the Somali–Ethiopian conflict, a commission was set up by the OAU in an attempt to
mediate.
 In the Western Sahara dispute, an OAU committee in July 1978, sought to reach a settlement
in the conflict.
2. The Organisation of American States.
 Signed at Bogota in 1948;
 Article 23 of its charter; International disputes between member states must be submitted to
the Organisation for peaceful settlement.
 The 1948 American Treaty of Pacific Settlement sets out mechanisms; good offices,
mediation and conciliation to arbitration and judicial settlement by the ICJ.

3. The Arab League

 Established in 1945.
 Aims at increasing co-operation between the Arab states.
 Facilities for peaceful settlement of disputes are informal.
 With exception of the creation in 1961 of an Inter-Arab Force to keep the peace between Iraq
and Kuwait.
 An Arab Security Force was sent to Lebanon in 1976 to be succeeded by the Arab Deterrent
Force between 1976 and 1983.
4. The European Convention for the Peaceful Settlement of Disputes
 Adopted by the Council of Europe in 1957
 Legal disputes are to be sent to the ICJ, although conciliation may be tried prior.
 Other disputes are to go to arbitration, unless the parties have agreed to accept conciliation.
 In the NATO alliance, there exist good offices facilities, and inquiry, mediation, conciliation
and arbitration procedures may be instituted.
INTERNATIONAL ORGANISATIONS AND FACILITIES OF LIMITED
COMPETENCE
Have their own procedures for settling disputes between their members.
Such procedures vary from organization to organization.
They are usually economic and involve mixed disputes, that is between states and non-state
entities.
A number of regional dispute mechanisms concerning economic questions have been
established;
The North American Free Trade Agreement (NAFTA), 1992.
 Between the US, Mexico and Canada.
 Under Chapter 11, investment disputes may be raised by individual investors of one state
party against another state party.
 If not resolved by negotiations, may be submitted to arbitration.
The World Bank (i.e. the International Bank for Reconstruction and Development and the
International Development Association)
 Established in 1993
 Inspection Panel system for private citizens who believe their interests have been or may be
harmed by a project financed by the World Bank.
BINDING METHODS OF DISPUTE SETTLEMENT
A special place is accorded to the creation of judicial bodies.
Such courts and tribunals may be purely inter-state or permit individuals to appear as applicants
or respondents.
They may be permanent or temporary.
‘The adjudicative process can serve, not only to resolve classical legal disputes, but also as an
important tool of preventive diplomacy…..’. Jennings,
1. Arbitration

Grew out of the processes of diplomatic settlement and represented an advance towards a
developed international legal system.
The most effective and equitable manner of dispute settlement, where diplomacy fails.
Emerged with the Jay Treaty of 1794 between Britain and America; for the establishment of
mixed commissions to solve legal disputes between the parties.
Successfully used in the Alabama Claims arbitration of 1872, which resulted in the UK having
to pay compensation for the damage caused by its Confederate warship.
The settlement of differences between states by judges of their own choice and on the basis of
respect for law’; Article 15 of The Hague Convention of 1899.
An agreement to arbitrate under article 18 implied the legal obligation to accept the terms of the
award.
The Arbitration tribunal consists of a panel of persons, nominated by the contracting states (each
a maximum of four)
Should be individuals ‘of known competency in questions of international law, of the highest
moral reputation and disposed to accept the duties of an arbitrator’.
States are entitled to choose the members of the tribunal from the panel.
Model Rules on Arbitral Procedure by the ILC, adopted by the General Assembly in 1958;
Each party will appoint an equal number of arbitrators with the chairman or umpire
Each party selects two arbitrators from the panel, only one of whom may be a national of the
state.
The arbitrators then choose an umpire
States submit a dispute to the procedure of arbitration with their consent.
The law applied proceedings is international law, though parties may agree upon certain
principles and specify this in the compromis.
 In the British Guiana and Venezuela Boundary dispute, it was stated that occupation for fifty
years should be accepted as constituting a prescriptive title to territory.
 In the Trail Smelter case, the law to be applied was declared to be US law and practice with
regard to such questions as well as international law.
Agreements sometimes specify that the decisions should be reached in accordance with ‘law and
equity’.
The rules of procedure of the tribunal are often specified in the compromise.
Once an arbitral award has been made, it is final and binding upon the parties.
Grounds to nullify an award:
 Where a tribunal exceeds its powers under the compromis,
E.g; where the tribunal decides a question not submitted to it, or applies rules it is not authorised
to apply.
 Invalidity of the compromis is a ground of nullity.
 Corruption of a member of the tribunal
 Serious departure from a fundamental rule of procedure.
 Failure to state the reasons for the award.
 ‘Essential error’
Once a party recognises the award as valid and binding, it will not be able to challenge the
validity of the award at a later stage.
The appropriate mechanism to utilize as between states and international institutions, since only
states may appear before the ICJ in contentious proceedings.
THE INTERNATIONAL COURT OF JUSTICE
The impetus to create a world court for the international community developed as a result of the
atmosphere world wars; Rosenne, The World Court, 6th edn,
After World War 1, the League of Nations called for the formulation of proposals for the
creation of a world court.
The Permanent Court of International Justice (PCIJ) created in 1920.
Intended to provide a reasonably comprehensive system serving the international community.
It was intended as a way to prevent outbreaks of violence by enabling easily accessible methods
of dispute settlement.
The ICJ succeeded the PCIJ after World War 2.
It the ‘principal judicial organ’ of the United Nations; Article 92 of the Charter
It’s a continuation of the Permanent Court, with virtually the same statute and jurisdiction, and
with a continuing line of cases.
The Organization of The ICJ;
 It is situated at The Hague; Article 22, Statute of the ICJ
 Composed of fifteen members, elected from persons who possess the qualifications required
in their respective countries for appointment to the highest judicial offices.
 Members are elected by the General Assembly and Security Council from a list of qualified
persons.
 Tenure is for nine years and may be re-elected.
 They enjoy diplomatic privileges and immunities when on official business, Article 19,
Statute of the ICJ.
 A judge cannot be dismissed unless it is the unanimous opinion of the other members of the
Court; Article 18, Statute of the ICJ.
 The Court elects a president and vice-president for a three-year term which can be renewed,
Article 21, Statute of the ICJ
 The Court has the power to regulate its own procedure.
The Jurisdiction of the Court
It decides cases on the basis of international law as it exists at the date of the decision.
It cannot formally create law as it is not a legislative organ.
The Court has emphasized that, ‘it states the existing law and does not legislate’, the Fisheries
Jurisdiction case, ICJ Reports
Essential function is to resolve in accordance with international law, disputes placed before it.
The provision as to international law relates to the sources of law available for application by the
Court.
A matter brought before it should be a legal dispute; Article 36(2)
In the Mavrommatis Palestine Concessions (Jurisdiction) case, “a dispute could be regarded as
‘a disagreement over a point of law or fact….”
In the Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia) case,
Court stated that there was a legal dispute” between them’. ICJ Reports, 1996, pp. 595, 615
Only states may be parties in cases before the Court; Article 34.
The Court has jurisdiction in all cases referred to it by parties, and regarding all matters specially
provided for in the UN Charter or in treaties or conventions in force, Article 36(1).
The jurisdiction of the Court is founded upon the consent of the parties, which can be express or
inferred; Corfu Channel (Preliminary Objections) case
It is a well-established principle that the Court will only exercise jurisdiction over a state with its
consent.
As a consequence of this principle, the Court will not entertain actions between states that in
reality implead a third state without its consent. Monetary Gold case, ICJ Reports, 1954, pp.
19, 54;
Sources of Law, Propriety and Legal Interest
The Court will apply the rules of international law as laid down in Article 38 (treaties, custom,
general principles of law); Tunisia/Libya case, ICJ Reports, 1982
However, the Court may decidea case on the basis of justice and equity in disregard of technical
legal rules where the parties agree; Article 38(2)
Before the merits, the Court may have to deal with preliminary objections as to its jurisdiction or
as to admissibility; Nicaragua v usa
Preliminary objections to be made within three months after the delivery of the Memorial of the
applicant state.
Taking of Evidence
The Court is flexible with regard to the introduction of evidence; Damrosch, ‘Evidence and
Proof of Facts’ International Court of Justice at a Crossroads, pp. 355, 357,
It has the competence to determine the existence of any fact which if established would
constitute a breach of an international obligation.
May call upon the agents to produce any document; or at any time establish an inquiry
mechanism; or obtain expert opinion; or make on-site visits.
Has no power to compel production of evidence generally; nor may witnesses be subpoenaed;
nor is there is any equivalent to proceedings for contempt of court.
Assessment is mainly done of the documentary evidence provided, utilising also legal techniques
such as inferences and admissions against interest.
The Court will make its own determination of the facts and then apply the relevant rules of
international law to those facts it has found to exist
The Court may also take judicial notice of facts which are public knowledge; In Democratic
Republic of the Congo v. Uganda.
The burden of proof lies upon the party seeking to assert a particular fact or facts, the Nicaragua
(Jurisdiction and Admissibility) case, ICJ Reports, 1984
Evidence which has been illegally or improperly acquired may also be taken into account,
though its probative value would be adjusted accordingly.
Provisional measures
The Court has the power to indicate any interim measures which ought to be taken to preserve
the respective rights of either party; Article 41
These are to ensure the integrity of the proceedings.
In the Fisheries Jurisdiction case; to protect British fishing rights in Icelandic-claimed waters.
They are provided where there is an ‘urgent necessity to prevent irreparable prejudice to such
rights, before the Court has given its final decision’
Counter-claims: Article 80
Court may entertain a counter-claim if it ‘is directly connected with the subject-matter of the
claim of the other party’.
A counter-claim constitutes a separate claim, or ‘autonomous legal act’, while requiring to be
linked to the principal claim.
Third-party intervention: Article 62
There is no general right of intervention in cases before the Court by third parties as such, nor
any procedure for joinder of new parties by the Court itself
However, any state which considers that it has an interest of a legal nature which may be affected
by the decision in a case, may submit a request to intervene,.
In Indonesia/Malaysia (Philippines Intervening), the Court addressed the meaning of ‘interest of
a legal nature’.
Remedies
A declaratory judgment that the respondent has breached international law.
Such declarations may extend to provision for future conduct as well as past conduct.
The Court may also interpret a relevant international legal provision so that individual rights as
well as state rights are recognized in a particular case.
Restitution: In DRC v. Belgium case; Belgium was under an obligation to cancel the arrest
warrant concerned on the basis of the need for restitution.
Enforcement
Once given, the judgment of the Court is final and without appeal; Article 60
Although it has no binding force; Article 59
such decisions are often very influential in the evolution of new rules of international law.
Each member state undertakes to comply with the decision of the Court; Article 94 of the UN
Charter.
In case of non-compliance, the other party may have recourse to the Security Council which may
make recommendations or take binding decisions.
Non-compliance of Albania in the Corfu Channel case, ICJ Reports, 1949, p. 4; Iceland in the
Fisheries Jurisdiction case, ICJ Reports, 1974, p. 3
Application for interpretation of a judgment: Article 60
In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it
upon the request of any party;
Application for revision of a judgment; Article 61
If there arises any fact, after judgement, which was unknown to the Court and also to the party
claiming revision, in absence of negligence.
The application must be made within six months of the discovery of the new fact and within ten
years of the date of the judgment.
In the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the
Case Concerning the Continental Shelf (Tunisia/Libya), the Court held that Tunisia was
negligent in discovery of some facts.
The Advisory Jurisdiction of the Court: Article 65
The ICJ may give an advisory opinion on any legal question at the request of whatever body in
accordance with the Charter of the UN Charter.
Organs of the UN and specialised agencies where so authorised by the Assembly may request
opinions on legal questions arising within the scope of their activities; Article 96 of the Charter
The Court’s advisory jurisdiction is to ‘offer legal advice to the organs and institutions
requesting the opinion’.
In the Western Sahara case; advisory opinion as regards the nature of the territory and the legal
ties therewith of Morocco and Mauritania at the time of colonization.
On a request by the WHO on the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, ICJ Reports, 1996, p. 66. three conditions were set;
1. That the specialized agency in question must be duly authorised by the General Assembly to
request opinions from the Court.
2. That the opinion requested was on a legal question.
3. That the question must be one arising within the scope of activities of the requesting agency.
The WHO was authorized to deal with the effects of the use of nuclear weapons on health but the
question posed involved legality of the use of nuclear weapons
The increasing number of applications show that the Court is now playing a more central role
within the international legal system than thought possible two decades ago. Of course, many of
the most serious of international conflicts may never come before the Court, due to a large extent
to the unwillingness of states to place their vital interests in the hands of binding third-party
decision-making, while the growth of other means of regional and global resolution of disputes
cannot be ignored.