About this topic
Settlement of international disputes covers the meaning of an international dispute, the duty that the Charter of the United Nations places on States to settle disputes peacefully, the pacific means of settlement, the compulsive means recognised by customary law, the collective measures of the Security Council under Chapter VII, and the right of self-defence under Article 51. The whole topic can be tested on one problem.
The Marovia and Dunland problem. Marovia and Dunland are neighbouring countries. Dunland's coast guard seizes a Marovian fishing trawler and arrests its 12 crew members. Dunland says the boat was fishing inside its waters. Marovia says it was on the high seas, where Dunland has no power at all. An angry Marovia then makes three moves:
- Move one: it cancels a state visit, expels two Dunland diplomats and ends a scholarship scheme for Dunland's students.
- Move two: after Dunland ignores a formal demand to free the crew, it suspends the landing rights that an air services treaty gives Dunland's airline.
- Move three: its navy rings Dunland's main port, and no ship may enter or leave.
Which of these moves are lawful? The answer is worked out in the final section, after the law has been set out.
Meaning of an international dispute
The classic definition of a dispute comes from the Permanent Court of International Justice (PCIJ), the predecessor of today's World Court, the International Court of Justice (ICJ).
Definition of dispute: "A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons." (PCIJ, Mavrommatis Palestine Concessions case, 1924)
Mavrommatis Palestine Concessions case (1924): Greece took up the claim of its national, whose concessions in Jerusalem were affected after Britain became the Mandatory power in Palestine. The Court first had to decide whether a real dispute existed. Held: a dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons; once Greece took up its citizen's claim, the quarrel became a dispute between two States. Principle: a dispute may concern law, fact or interests, and when a State takes up the claim of its national, the matter becomes an international dispute between States.
Three layers of a dispute
- Point of fact: what actually happened.
- Point of law: what the legal rights of the parties are.
- Conflict of interests: the clash that lies behind both.
The trawler dispute has all three layers. Where was the boat? A point of fact. Whose waters are those? A point of law. Behind both lies a clash of interests over fish.
The Charter duty of peaceful settlement
Once a dispute exists, the Charter of the United Nations gives two commands, one positive and one negative.
The positive command: Article 2(3)
"All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."
The negative command: Article 2(4)
"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."
| Provision | Nature of the command | What it requires |
|---|---|---|
| Article 2(3) | Positive | Settle international disputes by peaceful means, without endangering international peace and security, and justice |
| Article 2(4) | Negative | Refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the Purposes of the UN |
Read together, Articles 2(3) and 2(4) mean that peaceful settlement is not a first attempt that a State may abandon when its patience runs out. It is the only lawful road.
Classification of the methods of settlement
Textbooks divide the methods of settlement into two families: pacific means and compulsive means. Separate from both stands the collective action of the Security Council under Chapter VII.
| Basis | Pacific means | Compulsive means |
|---|---|---|
| Source | Article 33, Chapter VI of the Charter | Customary law |
| Who acts | The parties, alone or with the help of an outsider | One State acting by itself (unilaterally) to press the other |
| When used | First of all, as soon as a dispute exists | When talks stall |
| Methods | Negotiation, good offices, mediation, inquiry, conciliation, arbitration, judicial settlement, regional arrangements, other peaceful means | Complaint, retorsion, reprisal (today countermeasures), embargo, pacific blockade, intervention, war |
Pacific means of settlement
Article 33, in Chapter VI of the Charter, lists the pacific means:
"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."
The dial of control
The pacific means can be pictured on a dial. At one end, the parties keep full control. As the dial turns, they hand more and more power to an outsider, until at the far end an outsider decides and the parties must obey.
Negotiation
Negotiation sits at zero on the dial. The two governments talk directly, with no outsider in the room. Whatever they agree becomes the solution, and nothing is imposed.
Good offices
When the sides are too angry even to meet, a friendly State or a respected person offers a venue and carries messages, but stays out of the bargaining.
India and Pakistan met at Tashkent in January 1966 on the invitation of the Soviet Union, a meeting often cited in the context of good offices.
Mediation
In mediation, the outsider joins the talks and suggests compromises. The mediator advises but never decides. The Hague Convention for the Pacific Settlement of International Disputes, 1907, says that good offices and mediation "have exclusively the character of advice, and never have binding force."
| Basis | Good offices | Mediation |
|---|---|---|
| Role of the outsider | Offers a venue and carries messages | Joins the talks and suggests compromises |
| Part in the bargaining | Stays out of the bargaining | Takes part in the bargaining |
| Binding force | None; exclusively advice (Hague Convention, 1907) | None; exclusively advice (Hague Convention, 1907) |
Inquiry
Inquiry is used for disputes that turn on facts. A neutral commission investigates and fixes the facts. Under the Hague Convention, 1907, "The Report of the Commission is limited to a statement of facts, and has in no way the character of an Award."
A neutral commission studying the trawler's satellite tracking data could fix its position and so settle half of the Marovia and Dunland quarrel (the point of fact).
Conciliation
Conciliation goes further than inquiry. The commission examines both facts and law and recommends actual terms of settlement. Its proposal carries real weight, but it is still only a proposal, and either side may reject it.
A conciliation commission might propose that Dunland free the crew in return for a joint survey of the disputed waters.
Arbitration
With arbitration, the dial crosses from advice to decision. The Hague Convention, 1907, defines it:
"International arbitration has for its object the settlement of disputes between States by Judges of their own choice and on the basis of respect for law. Recourse to arbitration implies an engagement to submit in good faith to the Award."
The essentials of arbitration are:
- the parties choose the judges;
- the decision is made on the basis of respect for law;
- the parties promise in advance to obey, that is, to submit in good faith to the award.
Kutch boundary arbitration (India and Pakistan) (1968): the boundary dispute between India and Pakistan in Kutch went to arbitration, and the award was given on 19 February 1968. Held: most of the area went to India, but a smaller part went to Pakistan. Despite strong criticism at home, India accepted the award. Principle: a State that chooses arbitration cannot walk away from the award merely because it lost something.
Judicial settlement
At the far end of the dial is judicial settlement, where the outsider is a permanent court.
- Article 92: "The International Court of Justice shall be the principal judicial organ of the United Nations."
- Article 94(1): "Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party."
The parties do not pick the bench, but the Court acts only with their consent. Consent may be given by:
- a special agreement;
- a treaty clause; or
- a declaration.
| Basis | Arbitration | Judicial settlement |
|---|---|---|
| The decision-maker | Judges of the parties' own choice | A permanent court, the ICJ |
| Choice of judges | The parties choose the judges | The parties do not pick the bench |
| Basis of jurisdiction | The parties' own choice of arbitration and of the judges | Consent by special agreement, treaty clause or declaration |
| Binding force | Binding: an engagement to submit in good faith to the award | Binding: each Member undertakes to comply with the decision (Article 94(1)) |
Regional arrangements and other peaceful means
Beside the dial, regional arrangements let neighbouring States try their own regional body first, as Article 52 asks Members to do. The words "other peaceful means of their own choice" in Article 33 keep the list of pacific means open.
Pacific means compared
| Method | Role of the outsider | Result |
|---|---|---|
| Negotiation | No outsider; the governments talk directly | Whatever the parties agree; nothing imposed |
| Good offices | Offers a venue and carries messages; stays out of the bargaining | Advice only; never binding |
| Mediation | Joins the talks and suggests compromises | Advice only; never binding |
| Inquiry | Neutral commission finds the facts | Report limited to a statement of facts; not an award |
| Conciliation | Commission examines facts and law and recommends terms | A weighty proposal that either side may reject |
| Arbitration | Judges of the parties' own choice decide on the basis of law | Binding award |
| Judicial settlement | A permanent court (ICJ) decides, with the parties' consent | Binding decision |
Negotiation, good offices, mediation, inquiry and conciliation end in an agreement, advice, a finding of facts or a proposal; the parties keep the final say. With arbitration and judicial settlement the dial crosses from advice to decision: an outsider decides and the parties must obey.
Compulsive means of settlement
Suppose talks stall and Marovia wants to press Dunland by itself. Customary law recognised several compulsive means for this purpose. They are unilateral methods, used by a State acting alone.
Do not place the compulsive means in Chapter VII of the Charter. Chapter VII concerns collective action by the Security Council; compulsive means are unilateral methods of a single State.
Every unilateral method can be sorted with three questions:
- Is the act lawful in itself?
- If not, does it answer a prior wrong?
- Does it use armed force?
Complaint
The softest compulsive means is a complaint, a formal protest. It mainly secures respect for the laws of war.
In wartime, a State may complain to its enemy, often through a neutral State, that captured soldiers are denied medical care.
Retorsion
Retorsion is an act lawful in itself: an unfriendly but legal reply to an unfriendly act. Retorsion remains fully lawful today.
Under Article 9 of the Vienna Convention on Diplomatic Relations, a receiving State may declare any diplomat persona non grata, meaning no longer welcome, without giving reasons.
Marovia's first move is exactly retorsion. Nothing requires a State to make a state visit or to offer a scholarship, and expelling two diplomats is permitted by Article 9 of the Vienna Convention on Diplomatic Relations.
Expelling a diplomat can be retorsion, but arresting a diplomat is never retorsion, because diplomatic inviolability cannot be touched.
Reprisal
A reprisal is an act unlawful in itself but answering a prior wrong: a breach of international law used as a remedy.
Naulilaa case (award of 31 July 1928): in October 1914, a misunderstanding at the Portuguese fort of Naulilaa in Angola ended with three Germans shot dead. Without any demand for redress, German forces attacked Naulilaa and other Portuguese posts. Before the arbitral tribunal, Germany argued that these attacks were lawful reprisals. Held: the tribunal disagreed. A lawful reprisal requires (1) a prior breach of international law, (2) an unsatisfied demand for redress, and (3) a response not out of all proportion. Germany failed all three: the killings came from a misunderstanding rather than a breach of international law, no demand had been made, and the destruction went far beyond the injury. Principle: the Naulilaa test lays down the conditions of a lawful reprisal.
Conditions of a lawful reprisal (the Naulilaa test):
- a prior breach of international law by the other State;
- a demand for redress that has not been satisfied;
- a response that is not out of all proportion to the injury.
Armed reprisals are outlawed
Since then, armed reprisals have been outlawed. The Friendly Relations Declaration, 1970, says: "States have a duty to refrain from acts of reprisal involving the use of force."
Peaceful reprisals survive as countermeasures
Peaceful reprisals survive today as countermeasures. The International Law Commission's Articles on State Responsibility, 2001, allow countermeasures only within these limits:
- Purpose: only to bring a wrongdoer back into compliance.
- Procedure: only after a call to comply, notice and an offer to negotiate. Urgent countermeasures needed to preserve the injured State's rights may, however, be taken without the notice and offer to negotiate.
- No force: never by force.
- Diplomatic inviolability: never against diplomatic inviolability.
- Proportionality: "Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question."
Updated from the lecture: the lecture said countermeasures may be taken only after a call to comply, notice and an offer to negotiate. The correct position is that Article 52(1) of the ILC Articles requires a call to comply and a notice with an offer to negotiate, but Article 52(2) lets the injured State take such urgent countermeasures as are necessary to preserve its rights without first giving the notice and offer to negotiate. Source: Responsibility of States for Internationally Wrongful Acts, 2001 (ILC Articles), Article 52.
Marovia's second move fits here. Suspending treaty rights would ordinarily be a breach. It becomes a lawful countermeasure only if Dunland's seizure was itself wrongful, the call to comply, notice and offer to negotiate came first, and the suspension stays proportionate. So the answer turns on the very point of law in dispute: whose waters the boat was in.
| Basis | Retorsion | Reprisal |
|---|---|---|
| Lawful in itself? | Yes; an unfriendly but legal act | No; a breach of international law |
| What it answers | An unfriendly act | A prior wrong (breach of international law) |
| Conditions | None beyond legality of the act itself | Prior breach, unsatisfied demand for redress, response not out of all proportion (Naulilaa) |
| Status today | Fully lawful | Armed reprisals outlawed; peaceful reprisals survive as countermeasures |
| Marovia example | Move one | Move two (as a countermeasure) |
Embargo
The embargo is a cousin of reprisal. Originally, a State detained the offending State's ships lying in its own ports. Today an embargo usually means a collective trade ban.
The mandatory arms embargo on South Africa under Security Council Resolution 418 of 1977.
Pacific blockade
Once armed force enters, a State acting alone is almost always outside the law. A pacific blockade uses warships, without any declaration of war, to seal another State's ports.
A famous example of such naval pressure is the blockade of Venezuela by Britain, Germany and Italy over unpaid debts in December 1902.
Today, a State acting alone may blockade only in genuine self-defence, while Article 42 lists blockade among the Security Council's own measures.
Intervention
Intervention is dictatorial interference in the affairs of another State.
Nicaragua v. United States (Nicaragua case, decided by the ICJ on 27 June 1986): the United States trained, armed, financed and supplied the contra rebels and mined Nicaraguan waters. Held: by training, arming, financing and supplying the contras, the United States breached the duty not to intervene; by mining Nicaraguan waters, it breached the ban on the use of force. The Court rejected the plea of collective self-defence. Principle: support to rebels against another State is unlawful intervention, and the use of force cannot be justified as collective self-defence on these facts.
War
War is the extreme end of the compulsive means. For centuries it was treated as the final way to end a quarrel.
- The Kellogg-Briand Pact, 1928, renounced war as an instrument of national policy.
- The Charter banned force itself, whatever it is called.
Marovia's third move, the naval ring around Dunland's main port, fails. A seized fishing boat, however wrongful its seizure, is not an armed attack, and Marovia has no authority from the Security Council.
Compulsive means at a glance
| Method | Meaning | Armed force? | Position today |
|---|---|---|---|
| Complaint | A formal protest, mainly securing respect for the laws of war | No | The softest means |
| Retorsion | Unfriendly but legal reply to an unfriendly act | No | Fully lawful |
| Reprisal | Unlawful act answering a prior wrong | Armed or peaceful | Armed reprisals outlawed; peaceful ones survive as countermeasures |
| Embargo | Originally detention of the offending State's ships in one's own ports | No | Usually a collective trade ban |
| Pacific blockade | Warships seal another State's ports without a declaration of war | Yes | A State alone only in genuine self-defence; otherwise a Security Council measure (Article 42) |
| Intervention | Dictatorial interference in another State's affairs | May involve force | Unlawful (Nicaragua case) |
| War | The extreme end; once the final way to end a quarrel | Yes | Renounced by the Kellogg-Briand Pact, 1928; force banned by the Charter |
Collective measures of the Security Council under Chapter VII
Who, then, may use force? Chapter VII answers through the Security Council, which bears primary responsibility for peace.
Article 39: determination of a threat
The machinery begins with Article 39:
"The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."
The three situations that open Chapter VII are:
- a threat to the peace;
- a breach of the peace;
- an act of aggression.
Article 40: provisional measures
Before choosing measures, the Council may try to stop things getting worse:
"In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable."
Article 41: measures not involving armed force
"The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
The arms embargo on South Africa (Security Council Resolution 418 of 1977) is one example of a non-military measure.
Article 42: military action
"Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."
Note the words "would be inadequate" in Article 42. The Security Council need not exhaust sanctions under Article 41 before taking military action.
| Basis | Article 41 | Article 42 |
|---|---|---|
| Nature | Measures not involving the use of armed force | Action by air, sea or land forces |
| Examples | Complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other communications; severance of diplomatic relations | Demonstrations, blockade and other operations by air, sea or land forces of Members |
| When available | As decided by the Council to give effect to its decisions | When Article 41 measures would be inadequate or have proved to be inadequate |
Article 43: forces for the Security Council
Article 43(1) planned the troops:
"All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security."
No such special agreement has ever been concluded. Instead, the Council authorises willing States to act.
Security Council Resolution 678 of 29 November 1990 permitted "all necessary means" against Iraq's occupation of Kuwait.
Self-defence under Article 51
One door stays open for a single State. Article 51 says:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
Three features of Article 51 matter:
- Trigger: the trigger is an armed attack, not every wrong.
- Temporary: the right lasts only until the Security Council acts.
- Supervised: measures taken in self-defence must be reported to the Security Council at once.
Customary law adds two further limits: necessity and proportionality.
Force is lawful only in self-defence against an armed attack (Article 51) or through the Security Council (Chapter VII). A State acting alone has no other lawful road to force.
Solving the Marovia and Dunland problem
| Move | Classification | Lawful? | Reason |
|---|---|---|---|
| Move one: cancelling a state visit, expelling two diplomats, ending a scholarship scheme | Retorsion | Lawful | Unfriendly but legal acts; diplomats may be declared persona non grata without reasons (Article 9, Vienna Convention on Diplomatic Relations) |
| Move two: suspending air-services landing rights | Countermeasure (peaceful reprisal) | Conditionally lawful | Lawful only if Dunland acted wrongfully, a demand and an offer to negotiate came first, and the response stays proportionate |
| Move three: naval ring around Dunland's main port | Use of armed force | Unlawful | A seized fishing boat is not an armed attack, and there is no Security Council authority |
The wiser path was open all along: inquiry for the facts, and arbitration or the World Court for the law.
Quick revision
- Marovia's first move (cancelling a visit, expelling diplomats, ending scholarships) is lawful retorsion.
- Marovia's second move (suspending treaty landing rights) is a countermeasure, lawful only if Dunland acted wrongfully, a demand and an offer to negotiate came first, and the response stays proportionate.
- Marovia's third move (the naval ring) is unlawful force.
- The better course was inquiry for the facts, and arbitration or the World Court for the law.
- Talk first, press only within the law, and use force only in self-defence or through the Security Council.
