Peaceful Dispute Resolution: Principles and Methods
Principle of Peaceful Settlement of Disputes (Article 2.3 of the Charter of the United Nations)
Members shall settle their international disputes by peaceful means in such a way that does not compromise international peace, security, and justice.
- Obligation to settle disputes peacefully.
- Obligation not to intervene on the part of States not party to the dispute; states should refrain from intervening in unrelated disputes to aggravate them.
- Total application everywhere.
- When attempting to settle disputes peacefully and a State party rejects the solution of the conflict proposed by another state, it must offer an alternative solution; therefore, the position of a State party cannot be denied without offering an alternative.
- Free Choice of Media: States are free to choose the most appropriate means for achieving an early, fair, and equitable resolution.
- Article 33 of the Charter of the United Nations establishes an exhaustive attempt to settle disputes:
Article 33: 1. The parties to a 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, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice.
2. The Security Council, when it deems necessary, shall call upon the parties to settle their dispute by such means.
- These media can be classified as:
- Political and diplomatic: The solution is not mandatory for the States and can be:
- Principle of Direct Negotiation: The negotiation process only occurs between the parties to the dispute; no one else can interfere.
- Good Offices and Mediation: This negotiation occurs with the intervention of a third party. Good offices means that the parties will themselves seek solutions and facilitate contact between the parties, while mediation, in addition to contact between the parties or facilitating contact between them, proposes solutions to the dispute.
- Intervention of collective bodies: They can be:
- Inquiries: It is limited only to clarify the facts, so they are useless when it comes to a legal issue.
- Conciliation Commissions: They are linked to international organizations, and their task is to seek solutions to resolve the dispute.
- Legal and Judicial: The solution reached is binding on the parties, and may include:
- Arbitrator or Arbitration: The sentencing, which will be binding on the parties, is known as an Award (arbitration award).
- The essential feature of arbitration is that the parties determine its operation and the procedure to be carried out, but once the award is made, it will be binding on the parties.
- Access roads to arbitration are determined through an agreed clause in the agreement or treaty, which is called a compromissory clause.
- It is ad hoc to solve a particular issue; therefore, it depends on the parties.
- The tribunal acts as a permanent court.
- Examples: Nuremberg 1946, Tokyo 1948, former Yugoslavia, Rwanda.
- Some are hybrids, meaning that courts are not made, but that if international experts, in the case of Sierra Leone.
- Established Jurisdictions: Are courts or tribunals that are created by international organizations, which are established long ago; that is, not set to a specific conflict, but stopping down to fix all kinds of conflicts that may exist. Because of this feature, it follows that the terms and procedures are established beforehand, so that the parties must abide by or comply with what is already established, i.e., follow the existing procedure and the headquarters and the rules. Some examples are:
- Court of Justice of the European Union based in Luxembourg.
- European Court of Human Rights in Strasbourg.
- International Court of Justice based in The Hague.
- International Tribunal for the Law of the Sea
- American Court of Human Rights based in San Jose, Costa Rica.
- International Criminal Court based in The Hague (Netherlands).