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International Dispute Settlement
The UN Charter in Art 3(2) states that all members 'shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered'. Although addressed to members, this obligation is also part of customary international law, which all states must observe. There is, however, no obligation to actually settle disputes —
the only obligation is that if states choose to settle, it must be done peacefully. A dispute may arise not only between states, but also between a state and a company (Texaco v Libya), or between rival groups (Sudan) … these are also 'international' disputes which the obligation to settle peacefully applies to. There are several modes of dispute settlement: negotiation, mediation, settlement by the
UN, conciliation, arbitration, and recourse to the ICJ. Of these, only the final two are 'legal'
means of dispute settlement. The others are 'diplomatic' means.
Negotiation is the most common method of dispute settlement. There is no obligation to negotiate,
apart from the obligation to negotiate in good faith once parties have entered into negotiations. This,
however, would only require states to act honestly/reasonably in attempting to reach a settlement,
not oblige them to actually settle. There are, however, treaties which specify that negotiation ought to be the primary route of dispute settlement, and parties are then bound by a legal obligation to negotiate; eg: Law of the Sea Convention 1982.
Mediation and good offices precedes the negotiation stage, persuading parties to negotiate, and then mediate when the parties have actually started negotiations. Or, where negotiation is not possible, the mediator interferes between the parties, aiding them in helping to reach a compromise.
Examples of this could be the UN SG interfering in the Falklands Islands issue, or the Pope intervening between Argentina and Chile over the sovereignty of certain islands. Mediation is still a non-legal process though, as the mediator does not have the power to make a decision..
Settlement by the UN can be done by the GA, or the SC (and also the ICJ, which is an organ of the
UN, but this is considered under a separate title below). Important to remember that these are still non-legal methods. The GA makes recommendations for the settlement of disputes, which are not legally binding, and cannot be imposed on parties. 'The Assembly is a political body which makes decisions based on bloc allegiances rather than impartial judgment'. GA's political character makes it more suitable to offer solutions to political and economic disputes, rather than legal questions.
The SC has powers under Chapter VI of the Charter to settle disputes (Art 33). Any member or nonmember may refer disputes to the SC if they seem to threaten international peace and security.
However, without the presence/consent of the parties, the SC is generally reluctant to make recommendations (eg: India/Pakistan conflict). But SC also concerned with political rather than legal matters, and Art 36(3) of the Charter says that legal disputes should primarily be referred to the ICJ. However, SC's decisions may affect the ICJ's judgments/awarding of remedies/interim measures in certain cases (see page 290 Dixon for more).
Conciliation is a third party settlement — where the third party has the power to investigate the matter and submit suggestions that are not necessarily binding.
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