The UN Charter-Based Mechanisms

The Charter-based procedures for settling international disputes are catalogued in Article 33 of the UN Charter, which states:

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.⁵⁵

As can be noted, the above Charter provision acknowledges the fact that the conflict resolution approaches mentioned therein are not exhaustive. Room is therefore left to “other peaceful means of their (states’) own choice.”⁵⁶ It is not surprising therefore that other conflict settlement mechanisms, such as peacekeeping and good offices to be discussed later in this chapter have been developed over time and are currently in full use. But one of the conflict resolution theory states that to resolve any conflict, the set of available approaches that can be applied include coercion, mediation, arbitration, negotiation and adjudication.⁵⁷

Merrills⁵⁸ has grouped the UN Charter-based means of dispute settlement into Diplomacy Methods (i.e. negotiation, inquiry, mediation and conciliation) on the one hand and Legal Methods (i.e.

arbitration and judicial settlement of conflicts) on the other.

Negotiation among parties to a dispute is as old as the state system and is the most common method of dispute settlement. It involves direct discussion by diplomatic representatives of

53 A pledge that was inserted in the Charter as a direct reaction to the effects of the 2^nd World War. See the same issue stressed further in the Report of the Secretary-General on the work of the United Nations, Prevention of Armed Conflict, supra note 2

54 See Article 1(1) of the UN Charter.

55 All these techniques of dispute resolution were embodied in international law and practices well before the advent of the United Nations, and the Charter merely recognized their existence and encouraged their use.

56 UN Charter, Article 33.

57 Schellenberg, J. (1996) Conflict Resolution Theory, Research, and Practice, Albany: State University of New York Press, p. 9.

58 Merrills, J. ‘The Means of Dispute Settlement, in Evans, M. (Ed.)(2003), International Law, Oxford: Oxford University Press, p. 531; See further Peck, supra note 10.

the parties to the dispute, for purposes of reaching an agreement on matters at issue. But negation is only possible if the parties to the dispute are ready and willing to deal with each other. In situations of serious conflicts where no possibilities exist to make the parties negotiate, other methods may be the best option.

Inquiry, as a term of art, is used in two distinct, but related senses. In the broader sense it refers to the process that is performed whenever a court or other body endeavours to resolve a disputed issue of fact. In another sense, which is our present concern, inquiry refers to a specific institutional arrangement, which disputing parties may select in preference to arbitration or other techniques, because they desire to have some disputed issue independently investigated. In its institutional sense then, inquiry refers to a particular type of international tribunal known as the commission of inquiry and introduced by the 1899 Hague Convention.⁵⁹ Although it is not mandatory that the parties accept the findings of the inquiry, they usually do. The inquiry is limited to findings of fact and does not include proposed terms of settlement.⁶⁰

Good offices (not mentioned in Article 33) is the name given to friendly assistance rendered by a third-party for the purpose of bringing disputants together so that they may seek to reach a settlement. Good offices may be rendered by a state, a group of states, or even an individual of international standing such as the UN Secretary-General. The third-party representative meets each disputant separately but may, with consent convey messages between them.

Technically, good offices are limited to facilitating negotiation by the states directly concerned and do not include discussion of substantive issues. The method is particularly useful where the disputing parties have broken off diplomatic relations or where negotiations have been interrupted and neither side takes the initiative to resume them, out of pride or out of fear that such action would be an indication of weakness.

Mediation occurs when a third party actively participates in the discussion of substantive issues and offers proposals for settlement. If the disputants are not speaking, the mediator may also render good offices as a prelude to mediation. A mediator may meet with the parties

59 See Article 9 of the Hague Convention for the Pacific Settlement of Disputes 1899, which states: “In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.”

60 As most disputes hinge on disputed questions of fact, inquiry may be means of lowering tensions as well as reducing the area of disagreement between the disputants.

either separately or jointly and is expected to maintain an attitude of impartiality throughout.

He can expect little success unless he enjoys the confidence of all parties. His proposals are suggestions only, with no binding force on any party. Disputants are of course free to reject an offer to mediate.⁶¹ The most important elements of a successful mediation are neutrality and legitimacy on the part of the mediator. And it has been argued that; “the assurance of neutrality in mediation creates the necessary perception of mediator legitimacy, professionalism, and fairness…

the third party is not connected to either disputant, is not biased towards either side, has no investment in any outcome except settlement, and does not expect any special reward from either side.”⁶²

Conciliation⁶³ is a procedure for settling a dispute by referring it to a commission, or occasionally a single conciliator, charged to examine the facts and recommend a solution that the parties are free to accept or reject. Conciliation is more formal and less flexible than mediation. Whereas mediation is a continuing process of assisting negotiations among parties to a dispute, conciliation involves formal submission of the dispute to a conciliation body in anticipation of a final report containing the conciliator’s findings and recommendations for settlement. The boundaries between the two tend to be blurring in practice because the conciliator usually confers informally with the parties, hoping to find an area of agreement. Moreover, in the United Nations parlance, the terminology of mediation, conciliation and good offices is frequently used without careful reference to the legal distinctions among them. Thus the UN conciliator may in reality be a mediator who also finds it necessary to render good offices and never has occasion to publish a formal recommendation for a settlement.

Another view is that conciliation is closer to inquiry in many senses. Conciliation puts third-party intervention on a formal legal footing and institutionalizes it in a way comparable, but not identical to inquiry. The function of the conciliation commission is to provide information and advice as to the merits of the parties’ positions and to suggest a settlement that corresponds to what they deserve, not what they claim. This approach reflects the historical link between conciliation and the procedure for enlarged inquiry.

61 Riggs, R and Plano, J. (1988) The United Nations: International Organization and World Politics, California:

Brooks/Cole Publishing Co, p.187.

62Bercovitch, J. (Ed.,) (1996), Resolving International Conflicts–The Theory and Practice of Mediation, London: Lynne Reimer, p.57.

63 It has also been defined as an intervention to resolve an international dispute by a body without

political authority that has the trust of the parties involved and is responsible for examining all aspects of the dispute and proposing a solution that is not binding for the Parties. See Mollel, A. (2007). ‘Judicial Settlement of Armed Conflicts in International Law: Reflecting the 2005 International Court of Justice Decision in the Democratic Republic of Congo’ in Nordic Journal of international Law, 76(4), pp. 407-434.

Arbitration⁶⁴ is a procedure by which disputants agree to submit a controversy to judges of their own choice, who render a legally binding decision based on the principles of international law.

Commonly each side names one or two arbitrators, and those two or four designate one additional arbitrator to complete the panel. The essential characteristics of arbitration are (1) free choice of judges (arbitrators), (2) respect for international law, and (3) obligation to comply with the award.

The parties frequently stipulate in the arbitral agreement (compromis) the particular rules of law or equity, or even special rules, that are to be applied. The parties are relieved of their obligations to accept or carry out the award only if the arbitrator disregarded instructions in the compromis.

Arbitration is at least as old as the Greek city-states, and within the modern state systems it enjoyed a substantial renaissance during the nineteenth and early twentieth centuries. Since 1994, arbitration has been used extensively in resolving trade and investment disputes but less frequently in resolving political disputes between states. One notable recent example is the U.S-Iran agreement to arbitrate claims arising out of the hostage crisis.⁶⁵ Many modern treaties include a provision that controversies arising out of the interpretation or application of the treaty shall be resolved by arbitration.⁶⁶ The other most notable modern example is under the 1982 Law of the Sea Convention, which relies more on arbitration as the dispute settlement mechanism.

Judicial Settlement or Adjudication, like arbitration produces a legally binding award or judgment based on rules of international law. Unlike arbitration, however, the parties for their particular case do not choose the judges, but are members of the pre-constituted international tribunal. Settlement of disputes by international courts based on voluntary acceptance by the parties is made possible either through advance agreement to accept the jurisdiction of the court in special types of cases or through agreement at the time the dispute is submitted.⁶⁷ The same is generally true of arbitration.

The International Court of Justice (ICJ) and its predecessor the Permanent Court of International Justice (PCIJ) are principal examples of judicial bodies for the settlement of disputes at the global level. The role of adjudication in the resolution of disputes is limited in several ways.⁶⁸ Decisions have generally been carried out, but no effective means have been available to enforce Court decisions against a few recalcitrants that have ignored their obligation to comply. Noncompliance is most common in cases involving controversies over the Court’s jurisdiction.

64 Ibid.

65 US Settlement of the Hostage Crisis: Jan. 1981, US-Iran. 20 I.L.M. 223 (hereinafter referred to as the Iran-United States): Background Information: Iran-Iran-United States Claims Tribunal, IRAN-US CLAIMS TRIBUNAL, available at <http://www.iusct.org/background-english.html> last visited, September 8, 2009.

66 Such arbitration clauses, as are famously referred to, are worded thus: “any dispute, controversy or claim arising out of or relating this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration.”

67 See Article 36 of the ICJ Statute.

68 Mollel, supra note 63, p. 415.

However, the weaknesses and limitations of the international adjudicatory system as a whole, and its jurisdictional limitations in armed conflicts situations in particular have been pointed as main shortcomings of the legal approach to dispute settlement.⁶⁹ These matters, and many others relating to adjudication as a conflict resolution mechanism, will be dealt with in more details under chapter five of this study.

Although in theory the UN Charter provides for a range of dispute settlement procedures, in practice it has never been able to fully develop an effective dispute settlement mechanism. Many disputes, both international and internal, have gone unresolved and others have only been addressed when it was too late to stop their escalation into fully- blown conflicts.⁷⁰ Arguably, the weaknesses and limitations of each of the above methods and the UN in general in resolving contemporary internal armed conflicts make it imperative to resort to other non-Charter based approaches to conflict resolution.⁷¹