SHIVANI SINGH

BA. LLB(HONS.) 2ND YEAR- REGULAR

PROJECT- PUBLIC INTERNATIONAL LAW
TOPIC- PEACEFUL RESOLUTION OF LEGAL AND POLITICAL
DISPUTES

SUBMITTED TO-
DR. GHULAM YAZDANI
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ACNOWLEDGEMENT

This assignment would not have been possible without the essential and gracious support of
Dr. Ghulam Yazdani whose motivation contributed tremendously to my project. I also would
like to thank him for showing me some examples pertaining to this project.

I am highly indebted to him for his guidance and constant supervision as well as for
providing necessary information regarding the project & also for his support in completing
the project.

I would like to express my gratitude towards my parents & fellow mates for their kind co-
operation and encouragement which help me in completion of this project.

I would like to express my special gratitude and thanks to faculty of law persons for giving
me such attention and time.

My thanks and appreciations also go to my friends in developing the project and people who
have willingly helped me out with their abilities.
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PEACEFUL RESOLUTION OF LEGAL AND POLITICAL DISPUTES

The Charter of the United Nations provides in its Chapter one that the Organization and its Members,
in pursuit of the Purposes stated in Article 1, shall act in accordance with, among others, the following
principle:

"All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered" (Article 2, paragraph 3).

It furthermore, in Chapter VI (Pacific Settlement of Disputes), declares that:

"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." (Article 33, paragraph 1).

NEGOTIATIONS AND CONSULTATIONS

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, as did its predecessor,
the Permanent Court of International Justice,2 that, 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”, as is also the phrase “through the usual diplomatic channels” as it appears, for
instance, in the 1948 Charter of the Organization of American States.

“In certain circumstances there may exist a duty to enter into negotiations arising out of particular bilateral
or multilateral agreements. Article 283 (1) of the Convention on the Law of the Sea, 1982 provides, for
example, that when a dispute arises between states parties concerning the interpretation or application of the
Convention, ‘the parties to the dispute shall proceed expeditiously to an exchange of views regarding its
settlement by negotiation or other peaceful means.’ Other treaties may predicate resort to third- party
mechanisms upon the failure of negotiations. In addition, although, it has been emphasised that: ‘Neither in
the Charter or otherwise in international law is any general rule to be found to the effect that the exhaustion
of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court’, it is possible
that tribunals may direct the parties to engage in negotiations in good faith and may indicate the factors to be

1
I.C.J Reports 1969, p. 48, para. 86.
2
In its Order of 19 April 1929 in the case of the Free Zones of Upper Savoy and the District of Gex (P.C.I.J., Series A, No. 22, p.
13).
3
P.C.I.J., Series A, No. 2, p. 15.
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taken into account in the course of negotiations between the parties. Where there is an obligation to
negotiate, this would imply also an obligation to pursue such negotiations as far as possible with a view to
concluding agreements. The Court held in the North Sea Continental Shelf cases that;”4
“The parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and
not merely to grow though a formal process of negotiation as a sort of prior condition....they are under an
obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when
either of them insists upon its own position without contemplating any modifications of it.”5

Main characteristics
Negotiations
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).
Suffice it to say in this connection that 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.

CONSULTATIONS
Consultations may be considered as a variety of negotiations. While they are not mentioned in Article 33 of
the Charter, they are provided for in a growing number of treaties as a means of settling disputes arising
from the interpretation or application of the treaty concerned. Mention may be made in this connection of
article 84 of the 1975 Convention on the Representation of States in their Relations with International
Organizations of a Universal Character, which provides for the holding of consultations at the request of any
of the parties, as well as of article 41 of the 1978 Convention on Succession of States in Respect of Treaties
and article 42 of the 1983 Convention on the Succession of State Property, Archives and Debts, both of
which provide for “a process of consultation and negotiation”.
In other treaties, consultations are provided for as a preliminary phase in the process of settlement of
disputes. Reference is made in this connection to article XI of the 1959 Antarctic Treaty, article 17 of the
1979 Convention on the Physical Protection of Nuclear Material and article XXV of the 1980 Convention on
the Conservation of Antarctic Marine Living Resources, which provide, in case of disputes, that the States
parties shall consult among themselves with a view to the settlement of the dispute by peaceful means.
Articles 84 and 85, paragraph 1, of the 1975 Vienna Convention on the Representation of States in their
Relations with International Organizations of a Universal Character read in part as follows:
“Article 84. Consultations
“If a dispute between two or more States Parties arises out of the application or interpretation of the present
Convention, consultations between them shall be held upon the request of any of them.”

“Article 85. Conciliation

If the dispute is not disposed of as a result of the consultations referred to in article 84 within one month
from the date of their inception, any State participating in the consultations may bring the dispute before

4
MALCOM N. SHAW, INTERNATIONAL LAW 1015-1016 (6th ed. 2008).
5
North Sea Continental Shelf Cases, I.C.J Reports, 1966, pp. 3, 47.
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a conciliation commission...”
Articles 41 and 42 of the 1978 Vienna Convention on Succession of States in respect of Treaties read as
follows:

“Article 41. Consultation and negotiation

“If a dispute regarding the interpretation or application of the present Convention arises between two or
more Parties to the Convention, they shall, upon the request of any of them, seek to resolve it by a process
of consultation and negotiation.”

“Article 42. Conciliation

“If the dispute is not resolved within six months of the date on which the request referred to in article 41 has
been made, any party to the dispute may submit it to the conciliation procedure specified in the
Annex to the present Convention...”

INQUIRY

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 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 was most successfully used in the Dogger Bank incident of 1904 where Russian naval ships forced
on British fishing boats in the brief that there were hostile Japanese torpedo craft. The Hague provisions
were put into effect and the report of the international inquiry commission contributed to a peaceful
settlement of the issue. This encouraged an elaboration of the technique by the 1907 Hague Conference, and
a wave of support for the procedure. The United Nations, for instance, concluded forty-eight bilateral treaties
between 1913 to 1940 with provisions in each one of them for the creation of a permanent inquiry
commission. These agreements were known as the ‘Bryan treaties’. However, the use of commission of
inquiry in accordance with the Hague Convention of 1907 proved in practice to be extremely rare. The Red
Crusader inquiry in 1962 followed an interval of some forty years since the previous inquiry. This
concerned an incident between a British trawler and a Danish fisheries protection vessel, which subsequently
involved British frigate. Although instituted as a fact-finding exercise, it did incorporate judicial aspects. A
majority of the Commission were lawyers and the procedures followed a judicial pattern. In addition, aspects
of the report reflected legal findings, such as the declaration that the firing on the trawler by the Danish
vessel is an attempt to stop it escaping arrest for alleged illegal fishing, ‘exceeded legitimate use of armed
force’. In the Letelier and Moffitt case, the only decision to date under one of the Bryan treaties, a US-Chile
Commission was established in order 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. As in the
Red Crusader inquiry, the commission in its decision in January 1992 made a number of judicial
determinations and decision in January 1992 made a number of judicial determinations ad the proceedings
were conducted less as a fact-finding inquiry and more as an arbitration. The value of inquiry within specified
institutional frameworks, nevertheless, has been evident. Its use has increased within the United Nations generally and
in the specialised agencies. Inquiry is also part of other processes of dispute settlement in the context of general
fact-finding.61 But inquiry as a separate mechanism in accordance with the Hague Convention of 1907 has
fallen out of favour. In many disputes, of course, the determination of the relevant circumstances would
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simply not aid a settlement, whilst its nature as a third-party involvement in a situation would discourage
some states.”6

The function of inquiry-investigation or elucidation of a disputed issue of fact-was comprehensively dealt

with in the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes. Article 9
of the 1907 Convention reads as follows:
“In disputes of an international nature involving neither honour nor essential interests, and arising from a
difference of opinion on points of fact, the Contracting Powers deem it expedient and desirable 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
disputes by elucidating the facts by means of an impartial and conscientious investigation.”

Inquiry as a means of settlement of disputes has been provided for in a number of bilateral and multilateral
treaties, including the Covenant of the League of Nations, the Charter of the United Nations and the
constituent instruments of certain specialized agencies and other international organizations within the
United Nations system, and in various instruments by the regional bodies.

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.”
On 18 December 1967, the General Assembly adopted resolution 2329 (XXII), in which it requested the
Secretary-General to prepare a register of experts in legal and other fields, whose services the States parties
to a dispute might, by agreement, use for fact-finding in relation to a dispute. It also requested Member
States to nominate up to five of their nationals to be included in such a register. As mentioned in paragraph
144 of the first report of the Secretary-General (A/5094), the role of such fact-finding bodies “as a
stabilizing factor in themselves, in situations potentially endangering the maintenance of international peace
and security, should not be overlooked, nor the part which they have on occasions played in providing a
means of liaison and communication between conflicting parties.
To a great extent the task of such fact-finding bodies established in accordance with the above-mentioned
resolution “in relation to a dispute" may be regarded as seeking the prevention of a dispute or the prevention
of the aggravation of a dispute and the adjustment of situations the continuance of which is likely to give rise
to a dispute.
Recognition that fuller use and further improvement of the means for fact-finding of the United Nations
could contribute to the strengthening of the role of the Organization in the maintenance of international
peace and security and promote the peaceful settlement of disputes as well as the prevention and removal of
threats to the peace has developed slowly together with a new willingness on the part of Member States to
enhance the role of the United Nations. The 1988 Declaration on the Prevention and Removal of Disputes
and Situations Which May Threaten International Peace and Security and on the Role of the United Nations
in this Field called for full use of the fact-finding capabilities of the Security Council, the General Assembly
and the Secretary-General in strengthening further the role and effectiveness of the United Nations in

6
MALCOM N. SHAW, INTERNATIONAL LAW 1020-1021 (6th ed. 2008).
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maintaining international peace and security for all States. The Special Committee on the Charter of the
United Nations and on the Strengthening of the Role of the Organization had developed further on fact-
finding by the United Nations. The Committee elaborated a Declaration on Fact-finding by the United
Nations in the Field of the Maintenance of International Peace and Security, which was adopted by the
General Assembly at its forty-sixth session.24 The Declaration aims at enhancing the use of and improving
the fact-finding means available to the Security Council, the General Assembly and the Secretary-General in
the fulfilment of their functions relating to the maintenance of international peace and security relating to the
maintenance of international peace and security.

GOOD OFFICES
When States parties to a dispute are unable to settle it directly between themselves, a third party may offer
his good offices as a means of preventing further deterioration of the dispute and as a method of facilitating
efforts towards a peaceful settlement of the dispute. Such an offer of good offices, whether upon the
initiative of the third party in question or upon the request of one or more parties to the dispute, is subject to
acceptance by all the parties to the dispute. In other words, the third party offering good offices,
be it a single State or a group of States, an individual or an organ of a universal or regional international
organization, must be found acceptable to all the parties to the dispute.

The third party exercising good offices normally seeks to encourage the parties to the dispute to resume
negotiations, thus providing them with a channel of communication. However, there are cases in which the
third party exercising good offices is authorized to do more than merely act as a go between and is allowed
to take active part in the dispute settlement process, by making proposals for its solution and holding
meetings with the parties to the dispute to discuss such proposals. In such situations, the third party in
question may be considered as not only contributing his good offices but also as undertaking mediation.
Accordingly, good offices may be said to share a common characterization with mediation as a method of
facilitating a dialogue between parties to an international dispute, aimed, as the case may be, at scaling down
hostilities and tensions and designed to bring about an amicable solution of the dispute.

In the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes, containing
specific provisions establishing good offices as one of the peaceful methods of settlement of disputes, good
offices is indeed treated as if it were interchangeable with mediation,7suggesting that the two methods,
although explicitly treated as distinct in at least one regional treaty,8 are usually seen as performing functions
which may sometimes not be distinguishable in practical terms. Good offices was construed
in this manner because in a given dispute the role of the third party exercising good offices may change in
accordance with the developments of the events relating to the dispute. Such developments, in turn,
determine the nature and degree of involvement of such third party in the process of facilitating the efforts
towards a peaceful settlement of the dispute, thus making it difficult to say when good offices ended and
mediation began.

Although Article 33, paragraph 1, of the Charter of the United Nations does not specifically mention good
offices among the peaceful means for the settlement of disputes between States, it has been mentioned in

7
See, e.g., Arts. 2-8 on Good offices and Mediation of the 1899 and 1907 Hague Conventions.
8
See, e.g., Arts. IX to XIV of the American Treaty on Pacific Settlement (Pact of Bogoti).
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recent international instruments. Thus, the 1982 Manila Declaration on the Peaceful Settlement of
International Disputes 4 places good offices on an equal footing with the other peaceful methods enumerated
in Article 33, paragraph 1, of the Charter by providing, in its paragraph 5, as follows:

"States shall seek in good faith and in a spirit of cooperation an early and equitable settlement of their
international disputes by any of the following means: negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional arrangements or agencies or other peaceful means of their
own choice, including good offices. In seeking such a settlement, the parties shall agree on such peaceful
means as may be appropriate to the circumstances and the nature of their dispute." Moreover, the 1988
Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International
Peace and Security and on the Role of the United Nations in this Field" also provides, in its paragraph 12,
that "the Security Council should consider sending, at an early stage, fact-finding or good offices missions
or establishing appropriate forms of United Nations presence, including observers and peace-keeping
operations, as a means of preventing the further deterioration of the dispute or situation in the areas
concerned.”

Functions
According to the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes, in
which good offices and mediation were treated interchangeably, the methods were assigned the following
functions: “In case of serious disagreement or dispute, before an appeal to arms, the contracting [signatory]
Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or
more friendly Powers.”9 Friendly Powers allowed to intervene in the dispute, as further provided in the
conventions, “have the right to offer good offices or mediation even during the course of hostilities.”10

Under the Pact of Bogota, where an attempt was made to distinguish good offices from mediation, the
following specific provision was made: “The procedure of good offices consists in the attempt by one or
more American Governments not parties to the controversy, or by one or more eminent citizens of any
American State which is not a party to the controversy to bring the parties together, so as to make it possible
for them to reach an adequate solution between themselves.”11 The Pact further provided that "once the
parties have been brought together and have resumed direct negotiations, no further action is to be taken by
the State or citizens that have offered their good offices or accepted an invitation to offer them; they may,
however, by agreement between the parties, be present at the negotiations.12

In a statement describing his responsibilities under the Charter, the Secretary-General made the following
cogent explanation of the functions of good offices: "Furthermore, the Security Council and other organs of
the United Nations have entrusted the Secretary-General with various tasks which broadly entail the exercise
of good offices. This is a very flexible term as it may mean very little or very much. But, in an age in which
negotiations have to replace confrontation, I feel that the Secretary-General's good offices can significantly
help in encouraging Member States to bring their disputes to the negotiating table. Negotiations today have a
character quite different from what they had in the past. Talleyrand called negotiations '1 'art de laisser les
autres suivre votre propre voie'. That, however, was true of a world which no longer exists. Today,
negotiations need to take account of the great political and economic changes in our world. In order to
succeed, and if the vital interests of all concerned are taken sufficiently into consideration, no party will

9
Article 2 of both the 1899 and the1907 Hague Conventions.
10
Article 3 of both the 1899 and the 1907 Hague Conventions.
11
Article IX of the Pact of Bogoti, pp. 86.
12
Article X of the Pact of Bogoti.
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consider it a sign of weakness to listen to a cogent argument, and accept a demonstrably reasonable outcome.
The parties may retain their different outlooks, but wherever they confront one another, life imposes upon
them the obligation to seek all possible points of rapprochement and try to reduce the elements of contention
and conflict. The task of the United Nations and the purpose of the good offices of the Secretary-General is
to make the discharge of this obligation easier. In view of the complexity of the issues which arise in our
dynamic world, traditional diplomacy can no longer suffice. New methods and devices have become
important. "The process involved contributes to the growth of international law, for every resolution of a
dispute, every new agreement, adds a new building-stone to the edifice of law. More immediately, it answers
the needs of peace-making. It is a very complex task, requiring great discretion. One of my predecessors
rightly remarked that, 'while the Secretary- General is working privately with the parties in an attempt to
resolve a delicate situation, he is criticized publicly for his inaction or even lack of interest'. In situations of
confrontation, the parties to a dispute are extremely sensitive and this makes it important that they should
have confidence in the impartiality or the objectivity of the United Nations and its Secretary-General. The
only instrument I can use is persuasion. When successful, it is a more powerful weapon than constraint, for it
makes the persuaded party an ally of the solution. But to be able to persuade, you must prove the virtues of a
solution, demonstrate the need to compromise and convince the party concerned that an agreement
today is much more advantageous for it than a doubtful victory tomorrow. It is here that inventiveness is
essential. We have to stretch our imagination to discern points of potential agreement even where at first
sight they look non-existent. Even more important is patience, the refusal to give up in the face of apparently
hopeless odds. Patience is greatly helped by the realization that in so many areas some of the great
problems of today reflect the accumulation of violations, mistakes and passivity stretching over long periods.

Good offices may be offered and undertaken: by a single State or a group of States; within the framework of
an international organization such as the United Nations, its specialized agencies or other international
organizations, both global or regional; or by an individual acting alone, with the advice of an established
committee or with the assistance of a special or personal representative.

In recent practice, good offices has been undertaken as a joint effort between the United Nations and
regional organizations. Apart from the Secretaries General of the Organization of African Unity (OAU) and
the Organization of American States (OAS), who have contributed their good offices individually or jointly
with the Secretary-General of the United Nations, other prominent individuals such as heads of State in the
respective regions have also tendered their good offices to bring about the peaceful settlement of regional
disputes.
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. In other words, mediation is a process of dispute resolution in which one or
more impartial third parties intervenes in a conflict or dispute with the consent of the participants and assists
them in negotiating a consensual and informed agreement. It can also be said as a confidential process of
negotiations and discussions in which a “neutral” third party or mediator assists in resolving a dispute
between two or more parties.

Thus, mediation as a method of peaceful settlement is more than an adjunct to negotiations. As can be seen,
for example, in the practice of the United Nations, it has emerged to become a distinctive method for
facilitating a dialogue between parties to an international dispute, aimed at scaling down hostilities and
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tensions and for achieving, through a political process controlled by the parties, an amicable solution of an
international dispute. A very important, perhaps crucial feature of mediation is that it facilitates for the
disputing parties recourse to a peaceful approach to the dispute.
The most important feature of Mediation is that it provides a solution that both parties can live with, instead
of a verdict imposed by a court. Both parties are involved in suggesting possible solutions to the conflict.
Mediation is based on the voluntary cooperation and good faith participation of all parties. The mediator
cannot force the parties to resolve their differences. But the mediator can help the parties reach a solution
agreeable to both of them. If the parties work out all or some of their differences, the resolution - or
agreement - is put in writing and signed by both the parties. Mediation may be able to plow beneath the
surface of frequently vexatious litigations by addressing the underlying conflicts. The mediator acts as a
bridge to iron the wrinkles of differences affecting the parties. Mediation differs from arbitration, in which
the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively
participate in the discussion. Unlike a judge or an arbitrator, a mediator does not decide what is right or
wrong or make suggestions about ways to resolve a problem. A mediator seeks to help parties to develop a
shared understanding of the conflict and to work toward building a practical and lasting resolution.
Mediation serve to identify the disputed issues and to generate options that help disputants reach a mutually-
satisfactory resolution. It offers relatively flexible processes; and any settlement reached should have the
agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the
party with the strongest argument. Mediation is different from counseling, therapy or advocacy. The
mediator does not take sides or push for any one solution. Mediators maintain a neutral role. Mediation
focuses on the future, not the past, and what will resolve the conflict. Mediation does not replace the need
for legal advice or counseling if your “rights” in a situation are the concern.
Once identified, the mediator can provide invaluable services in the effort to reach a peaceful settlement of
the dispute. If a settlement is to be achieved, communication between the disputants is essential. During
periods of crisis, however, no party may be willing to initiate the requisite communication. Popular passions
can further inhibit the initiation of communication between the disputants. In such a situation, the leaders of
the disputing nations may feel restrained by domestic political pressures from pursuing a moderate approach
to the dispute. Intervention by a third party, therefore, may be essential if negotiations are to be initiated. The
mediator often serves as the primary conduit of communication between the parties. Cyrus Vance, former
Deputy Secretary of Defense and later Secretary of State, performed in this capacity during his mediation of
the 1967 Cyprus dispute, as did Henry Kissinger following the 1973 Yom Kippur War.

Once thrust into the settlement arena, the mediator can have a significant impact on the course of the
ensuing negotiations. A mediator can contribute to the settlement by controlling or influencing the
negotiating agenda. During the early stages of his mission, the mediator should seek to discern the
conditions sine qua non of each side. The mediator should then try to direct the attention of the parties
towards resolving those immediate issues. This function can be of particular importance where the injection
of certain issues, at an early stage in the negotiations, may lead to a collapse in the settlement efforts.

At the outset of his mediation, Vance convinced the Greeks and the Turks to concentrate on issues that could
be resolved bilaterally without the participation of Cypriot President Makarios. Vance's action was based on
a concern that any effort to expand the negotiating agenda to include issues requiring Makarios' participation
in the early stages of the talks would have delayed, and possibly doomed, his peacekeeping mission.13
Similar concerns prompted Henry Kissinger's successful efforts to keep discussion of the Palestinian issue

13
In the early stages of Vance's mediation, Greece and Turkey made efforts to expand the scope of discussion beyond issues that
needed to be resolved in order to achieve a settlement of the immediate crisis. Vance was able to persuade Greece and Turkey to
focus on the essential elements of a bilateral agreement. Interview with Cyrus R. Vance, in New York City (Apr. 13, 1981).
11 | P a g e

out of the initial Israeli-Egyptian disengagement negotiations.14 This course of action may narrow the scope
of what can be achieved in the short-term, and this drawback must be balanced against the risk that another
approach could lead to a complete failure.

The mediator may be able to facilitate settlement by shaping the disputants' perceptions. The mediator is in a
position to help each side fully understand the position of the other, and thereby assist in drafting proposals
that take the opposing positions more fully into consideration. By exposing one side to the views and
attitudes of the other, the intermediary may help elucidate the justifications and rationales behind a proffered
proposal. In addition, the mediator may help one side to begin to understand the constraints under which the
opposing side is operating. For example, during the 1967 Cyprus mediation, Turkish Premier Demirel was
under tremendous political pressure to invade Cyprus. In partial response to this pressure, Demirel put
forward a significant last minute condition regarding the internal security arrangements on Cyprus. This
condition threatened a complete breakdown in the talks.15 By explaining to the Greeks the political
constraints under which Demirel was operating, Vance helped to elicit a favorable response to this demand.

During his mediation, the intermediary may be called upon to explain or interpret a particular proposal made
by a party. By clearing up misunderstandings concerning a proposal, the mediator may enable a party to
make a more considered judgment concerning its acceptability. In addition, the mediator can interpret a
proposal in such a way as to make acceptance more likely. In so doing, the mediator should be careful to
avoid distorting the proposal. Otherwise, the mediator’s stature could be compromised and his usefulness
diminished. The mediator may encourage the parties to accept a peaceful solution by emphasizing the costs
of failure. During his “shuttle diplomacy” in the Middle East after the Yom Kippur War, Kissinger
impressed upon the Israelis that failure of the negotiations could lead to renewed hostilities, increased Soviet
influence in the Middle East, and further Israeli isolation in the world community.16 During his talks with the
Turks, Vance discussed the deleterious effects a failure in the negotiations could have on regional security
and Turkey's economic well-being.17A sober analysis of the costs of continued conflict can enhance the
disputants' willingness to accept a peaceful resolution.

The mediator may facilitate peaceful settlement by highlighting areas where compromise can be reached and
by injecting independent proposals into the negotiations. During Vance's initial round of discussions with
Greek and Turkish leaders, each side presented a list of negotiable issues. These issues clearly exceeded the
requirements of an agreement settling the immediate crisis. To increase the possibility of short-term success,
Vance synthesized the crucial conditions put forward by each side into a settlement package. This distillation
was put forward as Vance's plan and served as the basis for the remaining negotiations. Similarly, Kissinger
formulated an “American plan” for settlement following his initial round of exploratory discussions with
Israeli and Egyptian leaders. This proposal then served as the focus of the remaining disengagement talks.
This procedure has the advantage of allowing each side to avoid the appearance of making a concession or
accepting a proposal thrust on it by the opposing side.

The participation of a third party in the settlement process may present the contesting parties with an
opportunity to convey private assurances to the opposing side. If one side is reluctant to commit itself
publicly to a particular position, such an opportunity may be particularly important. During the initial
disengagement talks, Israel sought an Egyptian commitment to demilitarize the Suez Canal. Sadat refused to

14
69 DEP'T STATE BULL. 706 (1973); Sheehan, Step by Step in the Middle East, at 24-25, 27-28.
15
N.Y. Times, Nov. 29, 1967, at 1, col. 8.
16
Sheehan, supra note 14, at 37-39.
17
Interview with Cyrus R. Vance, supra note 13.
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commit his government explicitly to this action, which he believed to be an affront to Egyptian sovereignty.
By incorporating agreement on this point into private assurances exchanged between the parties, Kissinger
was able to elicit a significant concession from Egypt while affording Sadat the opportunity to proclaim that
demilitarization of the canal was “purely a matter of Egyptian sovereignty” and was “in no way” linked to
the disengagement accord.18

Cyrus Vance faced a similar problem during his mediation of the 1967 Cyprus crisis. After eliciting Greek
and Turkish approval of adjustments in the internal security arrangements on Cyprus, Vance was unable to
convince Makarios to accede to these agreements. Like Sadat, Makarios objected to these proposals on the
grounds that they threatened Cypriot sovereignty.19 Because Turkey was adamant that additional security
guaranties for the Turkish Cypriots be forthcoming, Makarios’ recalcitrance threatened to undermine the
agreement. Fortunately, Vance was able to reach an implied understanding with Makarios regarding steps
that would be taken to resolve the crisis. He conveyed these private assurances to the Turks, thereby
salvaging the agreement.20

Once agreement on substantive issues is achieved, the presence of an intermediary may afford the disputants
a convenient vehicle for announcing agreement. During the incipient stages of the 1967 Cyprus dispute,
Turkey made several demands on the Greeks. The Turks backed up their demands with a threat to invade
Cyprus and an ominous show of force.21Although the Greeks were willing to accede on several points, they
refused to do so under a Turkish threat of war.22 To circumvent this potential stumbling block, Vance
suggested that an appeal from U.N. Secretary-General U Thant serve as an umbrella for the announcement
of the settlement agreement.23 A settlement was thus reached without appearing to humiliate the Greeks. To
avoid the appearance of an Israeli or Egyptian capitulation, the announcement of the initial Israeli-Egyptian
troop limitation agreement was handled in much the same manner. Arguably, such an arrangement is merely
a public relations gesture. Nonetheless, public perceptions of national honour are legitimate concerns of
national leaders. Consequently, the proffering of this illusion may be an important service in the pursuit of
peaceful settlement through mediation.

Where the disputants are unwilling to attempt to settle their differences through direct negotiations, third-
party mediation may be an effective means of facilitating peaceful settlement. A mediator can help reach a
settlement by controlling or influencing the negotiation agenda, shaping the disputants' perceptions of their
opponent's motivations, emphasizing the costs of continued conflict, and injecting independent proposals
into the negotiations. The presence of a mediator may help resolve the conflict by restraining the disputants
and by presenting the belligerents with a mechanism for rationalizing and transmitting concessions. In this
capacity, a third party can make a significant contribution to the maintenance of world peace.

18
34 FACTS ON FILE 38 (1974). See generally 70 DEP'T STATE BULL. 141 (1974).
19
N.Y. Times, Dec. 2, 1967, at 1, col. 3; id, Dec. 3, 1967, at 1, col. 4.
20
Vance, supra note at 13.
21
Turkish warplanes made several menacing flights over Cypriot territory during the early stages of the crisis. See Letter dated
Nov. 18, 1967 from the Representative of Cyprus to the President of the Security Council, 22 U.N. SCOR, Supp. (Oct.-Dec. 1967)
238, U.N. Doc. S/8251 (1967). If nothing else, these fights forcefully reminded the Greek Cypriots that Turkish jets were only 10
minutes from Cyprus, whereas Greek jets would have to fly hundreds of miles to protect the island and would arrive with nearly
empty fuel tanks.
22
N.Y. Times, Nov. 23, 1967, at I, col 6; at 12, col. 1.
23
Interview with Cyrus R. Vance, supra note 13.
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CONCILIATION

“The process of conciliation involves third party investigation of the basis of the dispute and the submission
of a report embodying suggestions for a settlement. As such it involves elements of both inquiry and
mediation, and in fact the process of conciliation emerged from treaties providing for permanent inquiry
commissions. Conciliation reports are only proposals and as such do not constitute binding decisions. They
are thus different from arbitration awards. The period between the world wars was the heyday for
conciliation commissions and many treaties made provision for them as a method for resolving disputes. But
the process has not been widely employed and certainly has not justified the faith evinced in it by states
between 1920 and 1938.Nevertheless, conciliation processes do have a role to play. They are extremely
flexible and by clarifying the facts and discussing proposals being stimulate negotiations between the parties.
The rules dealing with conciliation were elaborated in the 1928 General Act on the Pacific Settlement of
International Disputes (revised in 1949). The functions of the commissions were to be composed of five
persons, ne appointed by each opposing side and the other three to be appointed by agreement from within
amongst the citizens of third states. The proceedings were to be concluded within six months and were not to
be held in public. The conciliation procedure was intended to deal with mixed legal –factual situations and to
operate quickly and informally.”24
“There have of late been a number of proposals to reactivate the conciliation technique, but how far they
will succeed in their aim remains to be seen. A number of multilateral treaties do, however, provide for
conciliation as a means of resolving disputes. The 1948 American Treaty of Pacific Settlement; 1957
European Convention for the Peaceful Settlement of Disputes; the 1964 Protocol on the Commission of
Mediation, conciliation and arbitration to the Charter of the Organization of African Unity (now the African
Union); the 1969 Vienna Convention on the Law of Treaties; the 1981 Treaty Establishing the Organization
of Eastern Caribbean States; the 1975 Convention on the Representation of States in their Relations with
International Organizations; the 1978 Vienna Convention on Succession of States in respect of Treaties; the
1982 Convention on the Law of the Sea and the 1985 Vienna Convention on the Protection of the Ozone
layer, for example, all contain provisions concerning conciliation.”25

“The conciliation procedure was used in the Iceland-Norway dispute over the continental shelf delimitation
between Iceland and Jan Mayen island. The agreement establishing the Conciliation Commission stressed
that the question was the subject of continuing negotiations and that the commission report would not be
binding, both elements characteristics of the conciliation method. The Commission had also to take into
account Iceland’s strong economic interests in the area as well as other factors. The role of the concept of
natural prolongation within continental shelf delimitation was examined as well as the legal status of islands
and relevant state practice and court decisions. The solution proposed by the Commission was for a joint
development zone, an idea that would have been unlikely to come from a judicial body reaching a decision
solely on the basis of the legal rights of the parties. In other words, the flexibility of the conciliation process
seen in the context of continued negotiations between the parties was demonstrated.”26

Such Commissions have also been established outside the framework of specific treaties, for example by the
United Nations. Instances would include the Conciliation Commission for Palestine under General Assembly
Resolution 194 (III), 1948, and the Conciliation Commission for the Congo under under resolution 1474
(ES-IV) of 1960.

24
Shaw, supra note 4.
25
Ibid.
26
Ibid.
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ARBITRATION

International arbitration is the process of resolving disputes between or among transnational parties through
the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties,
which is usually given via an arbitration clause that is inserted into the contract or business agreement. The
decision is usually binding. Arbitration is today most commonly used for the resolution of commercial
disputes, particularly in the context of international commercial transactions (International Commercial
Arbitration). It is also used in some countries to resolve other types of disputes, such as labour disputes,
consumer disputes, and for the resolution of certain disputes between states and between investors and states.
As the number of international disputes mushrooms, so too does the use of arbitration to resolve them. There
are essentially two kinds of arbitration, ad hoc and institutional. An institutional arbitration is one that is
entrusted to one of the major arbitration institutions to handle, while an ad hoc one is conducted
independently without such an organization and according to the rules specified by the parties and their
attorneys.

Ad hoc, or unadministered, arbitration is flexible, relatively cheap and fast way of dispute settlement – if the
parties co-operate. When parties are not able to co-operate, the assistance of an institution to move the
arbitration forward is necessary.

One reason for the growth of arbitration is that there are now many arbitral bodies, and parties can select
one that is best suited to their needs. Some organizations welcome any type of dispute. In contrast, there are
organizations that specialize in particular types of disputes, such as those involving investments (e.g. ICSID)
or that focus on a particular topic, such as intellectual property disputes (e.g. WIPO Arbitration and
Mediation Center), sports-related disputes (e.g. Court of Arbitration for Sport). Some arbitral bodies also
specialize in disputes in particular industries (e.g. Society of Maritime Arbitrators).
Another factor in selecting an institution is the nature of the party: One institution may be open only to states
or member governments (e.g. WTO Dispute Settlement System), while another may be available to states or
private parties (e.g. Permanent Court of Arbitration).

Arbitration as a Private “Rule of Law”

“Investors’ consistent selection of arbitration as the dispute resolution mechanism of choice in China reflects
both an appreciation of the shortcomings of China’s legal system and myopia about how those shortcomings
affect arbitration in China. Headlines report daily that markets in Asia are the fastest growing in the world.”
As a result, foreign investors-perhaps “smitten by the same kind of opportunism that attracted Chinese
immigrants one hundred years ago to the United States’ ‘gold mountain,’ continue to pour investment dollars
into China. Surprisingly, the boom of foreign investment in China has occurred despite what is generally
regarded as inadequate legal protection for investors. Even more surprising, however, is investors' initially
naive confidence that arbitration will protect their Chinese investments. Many investors appear astonished to
learn that international arbitration clauses in their multimillion dollar contracts do not necessarily provide a
viable means for resolving disputes or protecting their investments. In making business plans and decisions,
cautious investors evaluate both the potential for profits and the attendant risks. In the highly entrepreneurial,
rapidly expanding Chinese marketplace, the potential gains are staggering. For this reason, some investors
have discounted the high risks. Whatever discount exists, however, does not obviate questions about whether
and to what extent investments are legally protected. The ability to answer these questions with some degree
of certainty often depends on how developed the “rule of law” is in the place of investment. The term “rule
of law” has many different meanings for different people and there is even a great deal of debate about
15 | P a g e

whether this concept should be exported outside of the Western legal traditions from whence it came. For
most investors, however, and for the purposes of this Essay, the term “rule of law” is used to describe a legal
system that guarantees minimum levels of certainty, predictability, and objectivity. Of these three,
predictability is probably the most important element because it allows investors to make informed decisions
about potential profits in relation to the attendant risks. This observation leads back to one of the reasons for
arbitration's popularity in China. In China, the “rule of law” is still developing and is often held hostage to
local interests and biases. The biases or perceived biases of local courts against foreign entities, especially
entities whose claims or defences could have serious economic consequences for the locale of the dispute,
are a worldwide phenomenon. In China, systematic protections against these biases in local courts have been
slow to emerge. Arbitration, at least in theory, provides an alternative. Without being fully aware of its
limitations, investors in China have unquestioningly adopted arbitration as their dispute resolution choice. In
fact, one study revealed that, in making investment decisions, investors tend to add a substantial legal risk
premium to reflect the contingent risk of subjection to a foreign court rather than a neutral international
forum.”27

“The perception that arbitration provides refuge against the uncertainties of national courts is supported to
some degree by the nature of arbitration and the degree of control parties have in shaping arbitration
proceedings. Arbitration permits parties from two different countries to exercise a great deal of control over
how a dispute will be resolved. Parties can choose the place of arbitration, the nationality or qualifications of
the arbitrators, and the language of arbitration. Together, these three factors can go a long way toward
neutralizing the local biases that can influence a proceeding that is in a hostile jurisdiction, in a foreign
language, and before an adjudicator who may be more sympathetic to the local party (or even hostile to the
foreign party). In addition, the parties can choose the applicable substantive law, thus sidestepping a
country's fledgling commercial law that may not provide the predictability investors seek. Finally, almost all
types of arbitration proceedings remain confidential. Through these controls over the dispute resolution
process, parties appear able to insulate themselves, at least partially, from real and perceived local biases of
national courts. In this way, parties see arbitration as a form of ‘private rule of law’.”28

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,29 with jurisdiction over law of the sea
disputes.

27
Frederick Brown & Catherine A. Rogers, The Role of Arbitration in Resolving Transnational Disputes: A Survey of Trends in
the People' s Republic of China 15 BERKELEY J.I.L. 330, 331-334 (1997).
28
Ibid.
29
165Article 287 (1) (a) and annex VI, article 1 (1). The Tribunal, as well as its Sea-Bed Disputes Chamber, having jurisdiction in
disputes with respect to activities in the Area, is to be established upon entry into force of the Convention.
16 | P a g e

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. The Statute of the International Court of Justice provides
in its Article 60 that “the judgment [of the Court] is final and without appeal”. The only exceptions to the
rule concern questions of scope or execution of the judgment, which may be subject to further decisions,
though of the same court. Thus, Article 60 of the ICJ Statute provides further that “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”30 The
degree of finality of decisions of arbitral tribunals, on the other hand, depends on what is specifically agreed
upon in a compromis, which may provide for the possibility of decisions being subject to an appeal before
international courts.31

It may also be pointed out that because international courts or tribunals are pre-constituted institutions, they
are ipsofacto 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.32 Moreover, owing to the same
characteristic as permanent institution, an international court such as the International Court of Justice
appears to be better suited for developing uniform jurisprudence of international law than ad hoc arbitral
tribunals. Such jurisprudence is developed by the courts while exercising jurisdiction on contentious cases
between States’, or advisory jurisdiction on legal questions referred to it by an international organization and
relating to disputes between States, between States and international organizations and those between
international organizations’. As the principal judicial organ of the United Nations, the International Court of
Justice has also a quasi-appellate jurisdiction for the decisions of administrative tribunals established within
the United Nations system. These pre-constituted forums, whether of a regional or world-wide scale, appear
also better suited than arbitral tribunals to rule on questions of international law raised in cases before
domestic courts, thereby exercising secondary jurisdiction, where such jurisdiction is conferred.

Resort to Judicial Settlement

A brief analysis of both the Permanent Court of International Justice and the International Court of Justice
indicates that, of the cases referred to those courts for judicial settlement, many involve questions of
interpretation or application of treaties,33 or concern specific problems such as (a) those relating to
sovereignty over certain territories and frontier disputes;34 (b) those concerning maritime delimitations and
other law of the sea disputes;35 (c) those arising from the law of diplomatic protection of nationals
abroad;36 (d) those arising from circumstances relating to the use of force;37 and (e) cases involving
enforcement of contracts and violation of certain principles of customary international law.38

Further examples of the type of cases for which resort to judicial settlement is envisaged are also found in a
number of regional treaties which established courts for the settlement of certain disputes. Thus, the
European Court of Human Rights and the Inter-American Court of Human Rights, created respectively by
the European Convention on Human Rights of 4 November 1950, and the American Convention on Human

30
167See, e.g., the Chorzow Factory Case (Germany v. Poland), P.C.I.J. Series A, No. 13, p. 4.
31
See, e.g., Appeal from a judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (Hungary v. Czechoslovakia), PC.I.J.
Series A/B, No. 61, p. 208.
32
169See, e.g., Article 41 of the I.C.J. Statute and paragraph 5 of article 290 of the Law of the Sea Convention.
33
S.S. Wimbledon (France, United Kingdom, Italy, Japan v. Germany), P.C.I.J. Series A, No. 1, p. 15.
34
Status of Eastern Greenland (Denmark v. Norway), P.C.I.J. Series A/B, No. 53, p. 22.
35
Fisheries (United Kingdom v. Norway), I.C.J. Reports 1951, p. 116.
36
Oscar Chinn (United Kingdom v. Belgium), PC.I.J. Series A/B, No. 63, p. 65; Nottebohm (Liechtenstein v. Guatemala), I.C.J.
Reports 1955, p. 4.
37
Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, p. 4.
38
S.S. Lotus (France v. Turkey), P.C.I.J. Series A, No. 10, p. 4.
17 | P a g e

Rights of 22 November 1969, have jurisdiction in matters relating to human rights violations in connection
with the provisions of these agreements. In the area of regional economic integration, the Convention of 25
March 1957 relating to Certain Institutions Common to the European Communities created the Court of
Justice of the European Communities to exercise jurisdiction in matters concerning the European Coal and
Steel Community, the European Economic Community and the European Atomic Energy Community. The
Treaty concerning the Creation and the Statute of a Benelux Court of Justice of 31 March 196539 confers
upon the Court jurisdiction over questions of interpretation regarding rules of law common to the Benelux
countries (e.g., treaty provisions or decisions of the Committee of Ministers) for the purpose of ensuring
uniform application of these rules by their national courts or by the Benelux Arbitral College. The Treaty
Creating the Court of Justice of the Cartagena Agreement of 28 May 197640 confers upon the Court
jurisdiction in matters relating to the interpretation and application of the Agreement of Sub-regional
Integration of the Andean Group of 21 May 1969 concluded by five members of the Latin American Free
Trade Association (LAFTA). As regards the matter concerning the peaceful use of nuclear energy, the
Convention on the Establishment of a Security Control in the Field of Nuclear Energy of 20 December
195741 established the European Nuclear Energy Tribunal before which decisions of the European Nuclear
Energy Agency concerning the scope of security controls can be appealed by States parties to the
Convention or by affected enterprises. On the question of State immunities, the Additional Protocol to the
European Convention on State Immunity of 16 May 197242 created the European Tribunal for the purpose of
determining cases concerning alleged breach of the rules of State immunity contained in the Convention.

RESORT TO REGIONAL AGENIES OR ARRANGEMENTS

Article 33 of the Charter of the United Nations mentions “resort to regional agencies or arrangements”
among the peaceful means by which States parties to a dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall seek a solution to the dispute.

Further to their being mentioned in Article 33 of the Charter of the United Nations, regional agencies or
arrangements are dealt with in Chapter VIII of the Charter, and, more specifically, as regards peaceful
settlement of disputes, in Article 52 thereof.

Article 52 refers to both “regional arrangements” and “regional agencies”. 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.43 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 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 international law such as the protection of human rights,44 economic integration and shared
resources management.45 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

39
Memorial du Grand-Duche de Luxembourg, 183 Recueil de Legislation 1973, II, A, p. 984.
40
International Legal Materials, vol. XVIII, p. 1203.
41
Karin Oellers and others, Disputes Settlement in Public International Law, p. 620.
42
Explanatory Reports on the European Convention on State Immunity and the Additional Protocol, Council of Europe (1972),
pp. 49-65, 67-72.

43
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.
44
See, e.g., the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ibid., vol. 213, p. 221.
45
See, e.g., the 1963 Act regarding Navigation and Economic Co-operation between the States of the Niger Basin, ibid., vol. 587,
p. 9.
18 | P a g e

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.”46

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,47have set up bodies of third-party settlement, such as judicial tribunals.

The inclusion of resort to regional agencies or arrangements among the means of peaceful settlement of
disputes under Article 33 of the Charter of the United Nations was to give the Member States the option to
apply any of the enumerated peaceful means in a regional setting or forum. Thus, the settlement of disputes
through regional agencies or arrangements relies upon the free choice of those specific means (negotiation,
inquiry, good offices, mediation, conciliation, arbitration and judicial settlement) by the parties to a local
dispute, invoking first the settlement procedures as established under the regional instrument in question, as
envisaged in Article 52 of the Charter.

46
See Article 5 of the Pact of the League of Arab States, article 23 of the OAS Charter and Article XIX of the OAU Charter.
47
See Article 19 of the Convention for the Protection of Human Rights and Fundamental freedoms and Article 33 of the American
Convention on Human Rights (Pact of San Jose).
19 | P a g e

CONCLUSION
In the era of nuclear bombardment, pacific settlement becomes the need of the hour. Supranational
organizations should be conferred more powers with respect to resolving disputes amongst the nations. The
notion of international law as positive morality must be given a narrow implication so that all the recognized
nations must feel coercive insofar as the application of international rules. The peaceful settlement should
not be called off and the occasion of dialogue must be provided to the nations in dispute. This will surely
resolve disputes of trivial nature and remove the possibilities of war in the world instead. Mediation,
arbitration, conciliation, negotiation, etc, these categories of peaceful settlement are available to the nations
which must be used extensively and the scope of such remedies must be widened in order to abstain
ourselves from irrelevant fights and wars. At times, nations refute such peaceful techniques with a narrow
view to wage war against the other nations which subsequently turns into suffering of massive irreparable
loss of human lives and economy. Such wars, not only, effect the war nations but also the other nations
which are not a party to the war. Such nations are, oftenly, seen to be very small having a very small
territory with limited population and restricted means of livelihood. By resorting to peaceful methods of
problem resolution such scenarios could be avoided and every nation could contribute in the welfare of the
entire world.

********