INTERNATIONAL DISPUTE

SETTLEMENT UNDER UNITED

NATIONS
Article 1 of the United Nations Charter states that the purposes of the United Nations are “to
maintain international peace and security, and to that end to take effective collective measures
for the prevention and removal of threats to the peace, and for the suppression of acts of
aggression or other breaches of the peace, 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”. Chapter 6 of the
UN charter (Article 33- Article38) provides for pacific settlement of disputes. This section
deals with the practice of the Security Council aimed at promoting and implementing
recommendations and methods or procedures for the peaceful settlement of disputes within the
framework of Articles 33-38 of Chapter VI and Articles 11 and 99 of the Charter of the United
Nations. Overall, Chapter VI of the Charter contains various provisions according to which the
Security Council may make recommendations to the parties to a dispute or situation.

Article 33 of the Charter states that

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 of the UN Charter talks about the power of the Security Council to investigate
disputes which are likely to endanger the maintenance of international peace and security. Article
36 says that

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 33 can be seen as obligations of parties to a dispute. The processes mentioned in this
Article are

i. Negotiation
The Manila Declaration on the Peaceful Settlement of International Disputes highlights
flexibility as one of the characteristics of direct negotiations as a means of peaceful
settlement of disputes (sect. I, Para. 10). Negotiation is a flexible means of peaceful
settlement of disputes in several respects. It can be applied to all kinds of disputes,
whether political, legal or technical. Because, unlike the other means listed in Article 33
of the Charter, it involves only the States parties to the dispute, those States can monitor
all the phases of the process from its initiation to its conclusion and conduct it in the way
they deem most appropriate. Another characteristic of negotiation highlighted by the
Manila Declaration is effectiveness (sect. I, Para. 10). In the reality of international life,
negotiation, as one of the means of peaceful settlement of disputes, is most often resorted
to by States for solving contentious issues and that, while it is not always successful, it
does solve the majority of disputes
Referring to negotiation, the International Court of Justice remarked that "there is no
need to insist upon the fundamental character of this method of settlement". 1 It observed
in this connection, 2that, unlike other means of settlement, negotiation which leads to "the
direct and friendly settlement of ... disputes between parties" is universally accepted.
Furthermore, negotiations are usually a prerequisite to resort to other means of peaceful
settlement of disputes. This was recognized as far as arbitral or judicial proceedings were
concerned by the Permanent Court in the following words: "Before a dispute can be made
the subject of an action at law, its subject matter should have been clearly defined by
diplomatic negotiations." 3 It should be noted that the term "diplomacy" is used in some
treaties, such as the 1949 Revised General Act for the Pacific Settlement of International
Disputes, as a synonym of "negotiations".

ii. Enquiry
In an international dispute involving in particular a difference of opinion on points of
fact, the States concerned may agree to initiate an inquiry to investigate a disputed issue
of fact, as well as other aspects of the dispute, to determine any violations of relevant
treaties or other international commitments alleged by the parties and to suggest
1
ICJ Reports 1969, p. 48, Para. 86.
2
In its judgment in the North Sea Continental Shelf case, ibid.
3
P.C.I.J., Series A, No. 2, p. 15.
 appropriate remedies and adjustments. Inquiry may also be resorted to when parties to a
dispute agree on some other means of settlement (arbitration, conciliation, regional
arrangements, etc.) and there arises a need for collecting all necessary information in
order to ascertain or elucidate the facts giving rise to the dispute
Inquiry, as an impartial third-party procedure for fact-finding and investigation, may
indeed contribute to a reduction of tension and the prevention of an international dispute,
as distinct from facilitating the settlement of such a dispute. The possibility of fact-
finding (inquiry) contributing to the prevention of an international dispute was
recognized, for example, by the General Assembly in its resolution 1967 (XVIII) of 16
December 1963 on the "Question of methods of fact-finding." In the resolution, the
Assembly stated its belief "that an important contribution to the peaceful settlement of
disputes and to the prevention of such disputes could be made by providing for impartial
fact-finding within the framework of international organizations and in bilateral and
multinational conventions".
Inquiry may thus involve the hearing of the parties, the examination of witnesses or visits
on the spot.4 Inquiry may thus employ the techniques of gathering evidence which are
normally used in the arbitral or judicial process thus combining the benefits of diplomacy
and legal techniques to obtain for the parties an impartial report on the issues in dispute,
or of suggesting a solution of the problem.
Machinery designated as a panel for inquiry and conciliation is often constituted for this
purpose. An inquiry must not necessarily be conducted by a group of people constituting
a commission or a panel. An inquiry may indeed be undertaken by one person alone.
Thus the States concerned may agree to approach, for example, the Secretary-General of
the United Nations or the chief administrative officer of any of the specialized agencies
or of bodies within the United Nations system to appoint a special representative or a
mission to carry out an inquiry on the difficulties which have arisen between such States
or to investigate the events giving rise to a complaint by one State against another, with
the view to bringing about an amicable solution." 5Both the General Assembly and the
Security Council are equally free to ask the Secretary-General of the United Nations to
appoint a special representative to undertake an inquiry in connection with issues falling
under their responsibilities and competence and have done so on several occasions.6

Inquiry may be set in motion by mutual consent of the States concerned on an ad hoc
basis, relying upon a treaty in force between them, creating a general obligation to settle
disputes by peaceful means. It may also be initiated in accordance with the terms of an

4
articles 9 to 36 of the 1907 Hague Convention,
5
The Secretary-General announced on 21 July 1988 that he was sending a mission to Iran and Iraq to investigate the
situation of prisoners of war at the request of these States (see document S/20147).
6
See, e.g., Security Council resolution 384 (1975) of 22 December 1975 on the situation in Timor and the statement
of the President of the Security Council of 28 February 1974 in connection with the complaint by Iraq.
 applicable treaty, specifically establishing inquiry as the mode of handling a category of
disputes and indicating how the process may be initiated, including its method of work.

iii. MEDIATION
Mediation is a method of peaceful settlement of an international dispute where a third
party intervenes to reconcile the claims of the contending parties and to advance his own
proposals aimed at a mutually acceptable compromise solution. Mediation can be
resorted to for the purposes of reducing the tension which may have developed in the
course of an international dispute, thereby performing a preventive function.
Mediation is a procedure which may be set in motion either upon the initiative of a third
party whose offer to mediate is accepted by the parties to the dispute, or initiated by the
parties to the dispute themselves agreeing to mediation.
An offer of mediation may be accepted by a written agreement, for example. In an
agreement signed at Montevideo on 8 January 1979, Chile and Argentina accepted the
proposal to settle the dispute concerning the implementation of the 1977 Beagle Channel
Award through the mediation of Cardinal Antonio Samor. In the Indus Basin dispute case
between India and Pakistan, for instance, it was first agreed in 1952, through the
mediation of the International Bank for Reconstruction and Development that particular
engineering measures should be worked out to increase the water supply in the region. In
1960, then, after intensive negotiations undertaken by the Bank, a treaty was signed by
the parties which specifically provided for such a plan, while another agreement
concerning the financing of the project was signed by a group of countries and the Bank.7
Mediation cannot be imposed upon the parties to an international dispute without their
consent or their acceptance of the particular mediator. It is generally understood that the
proposals made by the mediator for a peaceful solution of a dispute are not binding upon
the parties.

iv. CONCILIATION
Parties to an international dispute may agree to submit it to a peaceful settlement
procedure which would, on the one hand, provide them with a better understanding of
each other's case by undertaking objective investigation and evaluation of all aspects of
the dispute and, on the other hand, provide them with an informal third-party machinery
for the negotiation and non-judicial appraisal of each other's legal and other claims,
including the opportunity for defining the terms for a solution susceptible of being
accepted by them. They would thus submit the dispute to conciliation, the peaceful
settlement procedure which combines the elements of both inquiry and mediation.
As a method of peaceful settlement of international dispute between States, conciliation
evolved from a series of bilateral treaties concluded in the first decades of the twentieth

7
Signed at Karachi on 19 September 1960, United Nations, Treaty Series, vol. 444, p. 259
 century. Of considerable importance was the adoption in 1922 by the League of Nations
of a resolution encouraging States to submit their disputes to conciliation commissions.
"The task of the Conciliation Commission shall be to elucidate the questions in dispute,
to collect with that object all necessary information by means of enquiry or otherwise,
and to endeavor to bring the parties to an agreement. It may, after the case has been
examined, inform the parties of the terms of settlement which seem suitable to it, and lay
down the period within which they are to make their decision."8
In the various multilateral treaties establishing a conciliation commission, provisions are
made for the appointment generally of an odd number of conciliators: usually a five-
member commission but sometimes a three-member commission. Each party to the
dispute has then the right to appoint either one of the three conciliators or two of the five
conciliators, as the case may be. The third or the fifth conciliator, who is also often
designated chairman, is normally appointed by a joint decision of the two parties to the
dispute and, in some cases, by a joint decision of either the two or the four conciliators
already appointed by the parties. Where difficulties arise in the appointment of either the
third or the fifth member, thus preventing the completion of the composition of a
commission, the parties may assign the right of making the necessary appointment in
such a case to a third party, usually a prominent individual. All these provisions take into
account the requirement that the parties to the dispute may not have more than one, or a
designated number, of their respective nationals appointed to the commission.

v. ARBITRATION
The 1899 and 1907 Hague Conventions for the Pacific Settlement of International
Disputes described the object of international arbitration as the settlement of disputes
between States by judges chosen by the parties themselves and on the basis of respect for
law. 9They further provided that recourse to the procedure implied submission in good
faith to the award of the tribunal. Accordingly, one of the basic characteristics of
arbitration is that it is a procedure which results in binding decisions upon the parties to
the dispute.
The power to render binding decisions is, therefore, a characteristic which arbitration
shares with the method of judicial settlement by international courts whose judgments are
not only binding but also, as in the case of the International Court of Justice, final and
without appeal, as indicated in article 60 of the I.C.J. Statute. For this reason, arbitration
and judicial settlement are both usually referred to as compulsory means of settlement of
disputes. Arbitration, in general, is constituted by mutual consent of the States parties to a
specific dispute where such parties retain considerable control over the process through
the power of appointing arbitrators of their own choice.

8
Geneva General Act for the Pacific Settlement of International Disputes,1949,Art.15,Para 1
9
See articles 15 and 37 respectively of the 1899 and 1907 Hague Conventions for the Pacific 103Settlement of
International Disputes
 Arbitration has thus emerged as one of the third-party procedures most frequently chosen
for settling, for example, territorial and boundary disputes,10 disputes concerning
interpretation of bilateral or multilateral treaties, and those relating to claims of violation
of international law.11
Consent of the parties to arbitration may be expressed prior to or after the occurrence of a
dispute. Parties may agree to submit all or special categories of future disputes to
arbitration. Such commitment may be made in multilateral or bilateral treaties entirely
devoted to the peaceful settlement of disputes." A more common method is by inclusion
of a compromissory clause in a treaty, by which parties agree to submit all or part of their
future disputes regarding that treaty to arbitration. Parties may also agree to go to
arbitration by a special agreement or a compromise after the occurrence of a dispute.
Arbitration as a third-party procedure may be performed by one individual, appointed by
the parties to the dispute, as a sole arbitrator or umpire, or by a group of individuals
appointed to form an arbitral tribunal. In most treaties establishing an arbitration tribunal,
an odd number of arbitrators are usually provided: some require five arbitrators while the
most common practice has been arbitral tribunal of three members

vi. JUDICIAL SETTLEMENT

States parties to a dispute may seek a solution by submitting the dispute to a pre-
constituted international court or tribunal composed of independent judges whose tasks
are to settle claims on the basis of international law and render decisions which are
binding upon the parties. This method is generally referred to as judicial settlement,
which constitutes one of the means of the peaceful settlement of international disputes set
out in Article 33 of the Charter of the United Nations.
The first international court of a world-wide scale was the Permanent Court of
International Justice, which was created by the Covenant of the League of Nations in
1922. It was succeeded by the International Court of Justice, established in 1946 as a
principal organ of the United Nations. Under Article 36 of its Statute, the International
Court of Justice has general jurisdiction in "all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force." Another international institution for judicial settlement is the
International Tribunal for the Law of the Sea, provided for under the 1982 United
Nations Convention on the Law of the Sea, with jurisdiction over law of the sea disputes.

10
See for e.g., the Rann of Kutch arbitration (India v. Pakistan) in Reports of International Arbitral Awards, vol.
XVII (United Nations publication, Sales No. EIF.80.V.2) (hereinafter referred to as UNIRAA), Argentina-Chile
frontier case, UNIRAA, vol. XVI, pp. 109-181; the case concerning the delimitation of the continental shelf between
the United Kingdom and France, ibid., vol. XVIII, pp. 3-129; the Beagle Channel arbitration between Chile and
Argentina, in International Law Reports, vol. 52, p. 93; Lake Lanoux arbitration (France v. Spain), ibid., vol. 24, p.
101
11
See, for example, The Alabama claims (United States v. United Kingdom), Moore, History and Digest of the
International Arbitration to which the United States has been a party (1898), vol. 1, p. 653; the Trail Smelter
arbitration (United States v. Canada), UNIRAA, vol. III, pp. 1907-1982;
 Both judicial settlement and arbitration make recourse to an independent judicial body to
obtain binding decisions, as pointed out in the previous section. Arbitral tribunals,
however, are essentially of an ad hoc nature, and are composed of judges selected on the
basis of parity by the parties to a dispute who also determine the procedural rules and the
law applicable to the case concerned. International courts and tribunals, by contrast, are
pre-constituted inasmuch as they are permanent judicial organs whose composition,
jurisdictional competence and procedural rules are predetermined by their constitutive
treaties. Furthermore, judicial settlement may be distinguished from arbitration in that the
decisions of international courts and tribunals are, as a rule, not appealable.
It may also be pointed out that because international courts or tribunals are pre-
constituted institutions, they are ipso facto better suited than ad hoc arbitral tribunals-
which take longer to constitute-to deal with urgent matters such as requests for interim
(provisional) measures of protection
Settlement of international disputes by international courts is subject to the recognition by
the States concerned of the jurisdiction of the courts over such disputes. The recognition
may be expressed by way of a special agreement between the States parties to a dispute
(compromis) conferring jurisdiction upon a court in a particular dispute, or by a
compromissory clause providing for agreed or unilateral reference of a dispute to a court,
or by other means. In the event of a dispute as to whether a court has jurisdiction, the
matter is settled by the decision of the court.12

vii. RESORT TO REGIONAL AGENCIES OR ARRAGEMNETS

The term "regional arrangements" denotes agreements (regional multilateral treaties)
under which States of a region undertake to regulate their relations with respect to the
question of the settlement of disputes, without creating there under a permanent
institution or a regional international organization with international legal personality. 13
The term "regional agencies", by contrast, refers to regional international organizations
created by regional multilateral treaties under a permanent institution with international
legal personality to perform broader functions in the field of the maintenance of peace
and security, including the settlement of disputes.14
The words "regional agencies or arrangements" may also be applied, in an extensive
manner, to agreements of a more specific subject matter, namely, systems created by
some regions of the world for the development of some very specific areas of

12
ICI Statute, Article 36, paragraph 6.
13
See, e.g., the 1957 European Convention for the Peaceful Settlement of Disputes, United Nations, Treaty Series,
vol. 320, p. 243, and the 1948 American Treaty on Pacific Settlement (the Pact of Bogota), ibid., vol. 30, p. 55, at p.
84.
14
1See, e.g., the League of Arab States created under the Pact, signed at Cairo on 22 March 1945, United Nations,
Treaty Series, vol. 70, p. 237; the Organization of American States (OAS) established under the Charter, signed at
Bogota on 30 April 1948 (the Bogota Charter), ibid., vol. 119, p. 3, as amended by the Protocol of Buenos Aires,
signed on 27 February 1967, ibid., vol. 721, p. 264, at p. 324, and by the Protocol of Cartagena de Indies signed on 5
December 1985, OA.S. Treaty Series, No. 66
international law such as the protection of human rights, economic integration and
shared resources management. These regional agreements may provide for specific
means of peaceful settlement of disputes arising between States parties to those
agreements, disputes which concern the interpretation and/or application of, or
compliance with, their provisions. Regional agencies or arrangements deal with most of
the means of peaceful settlement of disputes under Article 33 of the Charter of the United
Nations and provide for the technical aspects of the resort to such means. Those regional
agencies aimed at performing wide functions in the field of the maintenance of
international peace and security have their own mechanisms for the peaceful settlement
of disputes, either by reference to negotiation, inquiry, mediation, conciliation, judicial
settlement and arbitration or by endowing permanent organs with specific functions for
this purpose. As far as regional agencies devoted to performing functions in specific areas
are concerned, it should be mentioned that their constituent instruments also include
provisions concerning the peaceful settlement of disputes arising in connection with the
interpretation or application of their provisions. Moreover, some of these regional
agencies, particularly those created for the protection of human rights and those intended
to achieve economic integration, have set up bodies of third-party settlement, such as
judicial tribunals