The Peaceful Settlement of International

Disputes
Abstract

The purpose is to provide a general survey of the practice among

States of the peaceful settlement of international disputes. The
survey reflects the variety of instruments for peaceful settlement,
including negotiation, conciliation and commissions of inquiry.
Care is taken to indicate the quantitative significance of the interState arbitration in relation to the use of standing international
tribunals, such as the International Court of Justice. The analytical
commentary includes discussion of the typology of disputes and
the comparative merits of arbitration and the process of
adjudication in the International Court.

1. It is logical to begin by asking what purposes international law serves. In a

general way, international law provides the practical rounding out of the
principles of peaceful co-existence. International law provides the criteria for
the identification of States and organizations of States, and of the nationality
of individuals and legal entities. International law provides the definition of
the political and territorial limits and the jurisdiction of States, and also their
immunities from jurisdiction. International law also provides the basis of the
civil responsibility of States for breaches of international law, together with
the appropriate remedies. And lastly international law provides the principles
and modalities governing the peaceful settlement of disputes between
States.
2. And before I move into my subject, I would point out the anomaly to be
found in a number of academic handbooks, that is to say, the absence of an
adequate treatment of the subject of peaceful settlement. This is a pity
because, although international law is a relatively weak system and it is
often difficult to obtain a peaceful resolution of a dispute, there is in fact a
regular pattern of peaceful settlement which is inadequately reported,
probably because of the absence of any drama, an absence of casualties.
3. My subject matter is the settlement of disputes. A dispute can be defined
as a disagreement on a point of law or fact, a conflict of legal views or of
interests between two States. Disputes relate to an alleged breach of one or
more legal duties. They may also relate to a question ofattribution of title to
territory, to maritime zones, to movables or to parts of the cultural heritage
of a State.
4. Peaceful settlement is a phrase which covers a considerable variety of
processes and outcomes. The following cases are merely examples:

a. settlement according to law resulting from judicial

decision or arbitration;
b. settlement involving negotiations between States
and political compromise;
c. pre-ordained settlements, such as the reversion of
Hong Kong to China, in accordance with the Joint
Declaration on the Question of Hong Kong agreed
in 1984;1
d. multilateral settlements implemented with the
lawful authority of the international community,
including the Peace Treaties with Italy2 and
Japan3 after World War Two.
e. 5. The standard type of dispute settlement is based upon the
genuine consent of the parties to the dispute and involves the
application of law, and in the case of purely factual issues, the
application of judicial standards of the assessment of evidence.
6. There are certain limitations placed upon the justiciability of disputes
which are dictated by rule of law considerations. In the first place, there is
the distinction between legal and political disputes. The essential point is not
the existence of a political element; disputes will always have such an
element. The requirement is the existence of a legal dispute which can be
segregated from the political elements. There are also more technical bases
for non-justiciability, and especially the element of mootness. Thus, in
the Northern Cameroons Case, 4 the International Court found that the legal
status of the territory in question had already been determined by the
General Assembly.
7. In the well-known Nuclear Tests Cases5 in 1974, the International Court
held that the issue raised by Australia and New Zealand was moot as a
consequence of French undertakings not to continue the nuclear tests. In the
words of the Court:The Court, as a court of law, is called upon to resolve
existing disputes between States. Thus the existence of a dispute is the
primary condition for the Court to exercise its judicial function; it is not
sufficient for one party to assert that there is a dispute, since whether there
exists an international dispute is a matter for objective determination by the
Court (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania
(First Phase), Advisory Opinion, I.C.J. Reports 1950, p. 74). The dispute
brought before it must therefore continue to exist at the time when the Court
makes its decision. It must not fail to take cognizance of a situation in which
the dispute has disappeared because the object of the claim has been
achieved by other means. If the declarations of France concerning the
effective cessation of the nuclear tests have the significance described by

the Court, that is to say if they have caused the dispute to disappear, all the
necessary consequences must be drawn from this finding.8. Certain
situations involve complex questions of territorial title and allegiance which
cannot be resolved within the framework of a bilateraldispute. This was the
case in the Western Sahara case,6 on which the International

Court gave an Advisory Opinion in 1975.

I.

The typology of disputes

9. Territorial and boundary disputes concern both substantial material interests but
also sensitive questions of social geography and traditional regional connections. It is
tempting to seek to design a typology of disputes. Certainly, territorial and boundary
disputes have relatively special characteristics. In the first place, they involve
neighbouring States and therefore may generate problems of public order. Second, the
process of peaceful settlement may take place only a year or two following an armed
conflict related to the very same issues which gave rise to the armed conflict. This was
true of the Rann of Kutch arbitration,7 theEritreaEthiopia Boundary Commission
Case8 and the Cameroon v. Nigeriacase9 before the International Court of Justice.
10. Third, areas involved in a boundary dispute may include populations whose regional
and historical ties may be threatened with disturbance as a direct result of the
determination of a land boundary. In the aftermath of the Cameroon v. Nigeria case, the
problems of implementation were the subject of an Agreement concerning the
modalities of withdrawal and transfer of authority in the Bakassi Peninsula prepared by
a CameroonNigeria Mixed Commission. The International Court decided the case on 10
October 2002. The Agreement on implementation was concluded on 12 June 2006. 10
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II. Methods

of settlement

11. I can now move on to the different methods of peaceful

settlement. There is a variety of instruments apart from judicial
settlement and the literature of international law perhaps gives
too much emphasis to adjudication.
12. The first and classical mode of settlement is negotiation. This
involves a direct and bilateral process. Negotiation can produce a
settlement in accordance with legal criteria or in accordance with
both legal and political criteria. In any case, negotiation is
politically more flexible than adjudication.
13. A recent example of a negotiated settlement related to the
NATO bombing campaign against Yugoslavia in 1999. On 7 May
1999, NATO aircraft bombed the Chinese Embassy in Belgrade,
killing three Chinese nationals and wounding approximately 20
others. American officials described the episode as a tragic
mistake.

14. On 30 July 1999, the United States agreed to pay China the
sum of four and a half million dollars for the families of those
killed or injured. The Memorandum of Understanding11 provided
in part:
1. The two sides have reached a consensus on the payment
relating to deaths, injuries or losses suffered by the personnel of
the Chinese side. The U.S. Government will pay to the Chinese
Government the sum of U.S. $4,500,000 in a single payment as
promptly as possible consistent with U.S. legal requirements, for
direct distribution by the latter to the bereaved families and those
suffering injuries or losses.

2. The Chinese Government, upon receipt of the amount

mentioned above, will distribute, as soon as possible, all the funds
among the bereaved families and those suffering injuries or
losses, and provide the U.S. Government with relevant
information and receipts confirming the distribution.

3. The agreed amount, when fully paid as agreed, will

constitute a full and final settlement of any and all claims for
deaths, injuries or losses suffered by the personnel of the Chinese
side caused by the U.S. bombing of the Chinese Embassy in the
Federal Republic of Yugoslavia.

4. The banking modalities are contained in the attached

Annex.

5. The U.S. side has indicated that it will continue the

negotiations with the Chinese side on the settlement of the
property loss and damage of the Chinese side on an expedited
basis.
US Department of State Legal Adviser David R. Andrews asserted
that the payment will be entirely voluntary and does not
acknowledge any legal liability. This payment will not create any
precedent.12
15. After five rounds of talks, the United States and China, on 16
December 1999, also signed two agreements concerning
compensation for damage to the diplomatic properties of both
States. In the first agreement, the United States stated its intent
to seek US$ 28 million in funding from Congress for damage to

the Chinese Embassy in Belgrade. In the second agreement,

China agreed to pay US$ 2.87 million for damage to US diplomatic
and consular properties in China caused by the Chinese
demonstrations.13
16. Negotiation has a role in the less dramatic context of maritime
delimitation. I refer here to the Agreement between the PRC and
the Socialist Republic of Vietnam signed on 25 December 2000 on
delimitation in the Beibu Gulf.14 The first paragraph of the
Agreement provides as follows:1. The Parties have determined the
demarcation line for the territorial seas, exclusive economic zones
and continental shelves of the two countries in the Beibu Gulf in
accordance with the 1982 United Nations Convention on the Law
of the Sea, generally accepted principles of international law and
international practice, based on the full consideration of all
relevant circumstances of the Beibu Gulf and on the equitable
principle, and through friendly consultation.
III. Mediation

The next type of procedure is mediation, which is the first of a series of

modes of third-party settlement. Good offices is a similar mechanism. There
is no standard definition of mediation but it is nonetheless normally
distinguished from conciliation. In principle, mediation involves the direct
conduct of negotiations on the basis of proposals made by the mediator.
Modern practice contains an important example of an effective mediation.
This was the Papal Mediation in the years 1978 to 1984 between Chile and
Argentina.15 The two States formally accepted the mediation of the Holy See
in the Agreement signed on 8 January 1978. The mediation lasted five years
and resulted in a definitive Treaty of Peace and Friendship signed on 29
November 1984.16 Other modern examples of mediation exist. They include
the mediation of the Soviet Union between India and Pakistan over the Rann
of Kutch in 196617 and the mediation of Algeria between Iran and the United
States concerning the Hostage Crisis in 19801981.18
18. Mediation is commonly provided for in various multilateral treaties for the
peaceful settlement of disputes. The United Nations and, in particular, the
Secretary-General, have often either recommended or performed mediation
or good offices, for example in Cyprus from 1984 onwards.19
IV. Conciliation
1.The next type of third-party settlement is conciliation which is similar in purpose to
mediation. The emphasis is usually on fact-finding, and conciliation is believed to be
more structured than mediation.

2.The institution has been defined as:20the process of settling a dispute by referring it
to a commission of persons whose task it is to elucidate the facts and usually after
hearing the parties and endeavouring to bring them to an agreement to make a report
containing proposals for a settlement, which is not binding.21. There have been only a
small number of conciliation procedures in recent times, and the procedure tends to
emerge as less attractive than arbitration. In 1995, the Special Committee on the
Charter of the United Nations proposed a revised version of the Model Rules for the
Conciliation of Disputes between States, and this was approved by the Sixth Committee.
V.

Commissions of inquiry

1.. A device which has proved useful on some occasions is the Commission of Inquiry.
This institution originated in the Hague Conventions of 1899 and 1907. Its specific
purpose is to elucidate the facts behind a dispute in order to facilitate a settlement. It
does not involve the application of rules of law.
2.The purpose of the Commissions of Inquiry is provisional and political. The device is
linked to the idea that the resort to an inquiry provides a cooling off period and reduces
the risk of counter-measures or breaches of the peace. Moreover, the Report on the
facts de facto facilitates the settlement of the dispute. Recent examples of Commissions
of Inquiry concerned the Red Crusader incident between Denmark and the United
Kingdom (1962),21 and the Letelier and Moffitt case between Chile and the United
States (1992).22 By way of exception in both these cases, the role of the Commission
was not confined to findings of fact and was essentially judicial.
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VI.

Arbitration

The general concept of arbitration is ancient, but in modern practice it

appears in the Jay Treaty of 1794, between the United States and Britain. The
institution gained a political profile in Anglo-American practice of the late
nineteenth century. The spectacular case was the Alabama ClaimsAward of
1872,23 by which the United Kingdom was ordered to pay compensation to
the United States of 15 million dollars for her acts of intervention on the
side of the Confederate forces in the Civil War. The Tribunal consisted of an
uneven number of members with the power to decide by majority vote. The
Tribunal adopted a judicial procedure and produced a reasoned Award. Other
nineteenth-century arbitrations included the Behring Sea arbitration
(1893),24 the British Guianaarbitration (1897)25 and the North Atlantic
Coast Fisheries arbitration (1910).26
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VII. The

Permanent Court of Arbitration

. I must mention the establishment in 1899 of the Permanent Court of Arbitration. This is
an institution with premises and staff based in the Peace Palace in The Hague. The
institution includes a panel of arbitrators nominated by the contracting States of the
Hague Convention. In the years up to 1931, 20 cases of arbitration were heard under
the auspices of the Permanent Court. In the recent past, the apparatus of the Permanent
Court has played a useful role in providing a Registrar and accommodation for several
inter-State arbitrations.

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VIII. The

applicable law

In the nineteenth century practice, the arbitration Tribunals were mandated to apply
law and equity and Awards were produced without reasons. In the twentieth century,
the modalities of arbitration were essentially the same as adjudication, and the
modalities involved the application of legal principles and the adoption of a fully
reasoned Award. The essential character of arbitration is that it is ad hoc, private and
expensive. In principle, it is free from preliminary objections, but there may be issues
relating to the scope of the dispute.
.
X. Arbitrations

since 1945

1 .Since 1945, the incidence of arbitration has been fairly high and it is important to
bear in mind that some arbitrations are as important as many of the cases before the
International Court of Justice.
2. Arbitrations fall into two categories, those under clauses in standing treaties and
those under ad hoc agreements to arbitrate.
3. The following arbitrations occurred under standing treaty clauses:

A
a.Air

Transport Services Agreement Arbitration (United States v. France), Award

1963 and Interpretative Decision 1964.27
b.ItalyUnited States Air Transport Arbitration, Award (Advisory Opinion), 1965.28

C.ArgentinaChile Frontier (Palena) Case, 1966.29

D.Beagle Channel Arbitration, Award and Decision,

18 February 1977 (Chile and

Argentina).30

Arbitration and adjudication can now be compared

The following observations may be made:
a. The control over procedure exercised by the parties is much greater in the
case of arbitration. While the flexibility of arbitration has some attraction,
control by the parties can lead to substantial delay.
b. Arbitration is litigation in conditions of privacy: no third-party intervention is
possible. This absence of the possibility of intervention gives arbitration an
advantage over the International Court, in which third-party intervention is
allowed under certain conditions.
c. The International Court has the advantage that the Court and Registry are
available without cost.
d. Arbitration usually produces no jurisdictional problems.
e. Enforcement problems tend to be less acute in the case of the International
Courtbut both systems have enforcement problems.

f.

Arbitration is relatively expeditious, but a number of arbitrations concerned

with territorial disputes and maritime delimitation have taken as long as
proceedings in the International Court.

The standing Court known as the International Court of

Justice
. The International Court of Justice is the principal judicial organ of the United

Nations. As such, the Court performs two roles. In the first place, it is
available to States generally for the purpose of dispute settlement. Thus
even States not bound by the system of compulsory jurisdiction may agree
to resort to the Court on the basis of a special agreement. In this way, the
Court is in competition with the practice of ad hoc arbitration.
40. In the second place, the Court has a jurisdiction of an advisory character,
which involves a duty to give advice to the political organs of the United
Nations at their request on any legal question. Article 96(1) of the Charter
allows other organs of the United Nations and specialized agencies to
request an opinion, if they are authorized by the General Assembly to do so.

Article 36, paragraph 2, of the Statute of the Court creates the basis of the
system of compulsory jurisdiction. This provides in material part as follows:2.
The States parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other State accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;

c. the existence of any fact which, if established, would constitute a

breach of an international obligation;

d. the nature or extent of the reparation to be made for the breach of

an international obligation.
. The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain States, or for a
certain time.4. Such declarations shall be deposited with the SecretaryGeneral of the United Nations, who shall transmit copies thereof to the
parties to the Statute and to the Registrar of the Court.42. The incidence of
acceptances of jurisdiction in advance under Article 36(2) has varied over
the years. At present, out of 193 member States of the United Nations, 66
States have accepted the jurisdiction based upon Article 36(2). The number
of acceptances as a proportion of parties to the Statute has
steadily decreased but in recent years has been stable. In any event, a good
number of States take cases in front of the Court on the basis of special
agreements in preference to going to arbitration. Since 1984, the Court has
been reasonably busy, usually with some 12 cases on the docket. At present,

at least 16 cases are on the docket. From 1946 until the present, the Court
has dealt with 110 contentious cases and 24 requests for advisory opinions.
What then are the principal purposes of the Court?

First, to settle disputes effectively;

Second, to remove issues of public order, such as uncertain boundary
lines, and thus to reduce the risk of conflict.
Third, to develop the rules of the law;
Fourth, to provide an exemplar for the management of cases by other
tribunals.

The Court is a collegiate body and it maintains a high standard of

independence and professionalism. With rare exceptions, the Court avoids
the making of compromise solutions sometimes to be seen in the work of
courts of arbitration. There remain a number of problems which are probably
inherent in the political context in which the Court exists. Some Governments
consider that the Court should deal with cases more expeditiously, while
others are put in fear by what can be seen to be too much haste, especially
in relation to matters of fact.
. In general, the prognosis for the Court is good. The flow of cases is broadbased and not confined to one type of jurisdiction or to States of a particular
region.
Certain cases, such as the Nuclear Tests Cases47 or
the NicaraguaCase,48 have attracted forecasts of doom for the Court. But
there is no evidence that such decisions had deterrent effects and the
business of the Court actually increased in the wake of the Nicaragua case.
In any event, the jurisdiction of the Court depends upon consent, and it is
always consent which lies behind the main sources of jurisdiction; that is:

compulsory jurisdiction by virtue of declarations made under Article

36(2) of the Statute;

ad hoc consent for particular cases derived from negotiated special

agreements;

dispute settlement clauses in pre-existing treaties, as in the ELSI case

between the United States and Italy.49 This case was based upon the
Treaty of Friendship, Commerce and Navigation of 1948.
I shall now look more closely at the System of Compulsory Jurisdiction. In the
context of international relations both in 1920 and in 1945, the conception of
compulsory jurisdiction in a standing court of international justice was very
radical indeed and remains so. It is conventional to assess the role of the
Court almost exclusively in terms of the progress and rate of development of
the system of compulsory jurisdiction. Initially at least that will be my angle
of approach.

In the United Kingdom and elsewhere, the conventional view has been that
there is a qualitative deterioration in the system of compulsory jurisdiction:
a. There is the practice of making reservations. It was in fact
recognized from the very outset that States accepting the
compulsory jurisdiction had a certain power to define the classes of
legal disputes with respect to which the declaration of acceptance
was to apply, and to impose conditions ratione personae. But the
variety and nature of the reservations was perhaps not fully
appreciated.
b. There is the use of the automatic reservation. The U.S.
Declaration of 1946, withdrawn in 1985, included the reservation
relating to disputes essentially within the domestic jurisdiction of
the U.S. as determined by the U.S..
c. There is the reservation of the right to withdraw acceptance at will,
and at any moment, by notice to the Secretary-General of the
United Nations.
In general, this picture of dilapidation is considerably out of focus. The
different sources of the alleged dilapidation may be taken one by one:
a. First, the significance of the system of compulsory jurisdiction as
such.No doubt it has symbolic significance and this explains the
tendency to make the Optional Clause the only measure of the
performance of the Court, and to regard it as a criterion of
successful operation. But many States are prepared to use the
Court on the basis of special agreements, sometimes even when
they could have used the Optional Clause jurisdiction. Since 1945,
some major disputes have been submitted to the Court by means of
special agreements.
b. The second source of dilapidation relates to the significance of
reservations and is perhaps exaggerated. They were always part of
the scheme of things and indeed the possibility of making
reservations was seen by the League Assembly as a means of
encouraging adherence to the Optional Clause. In any case, the
Court has placed limitations on the process of exploiting the
principle of reciprocity. The significance of the automatic
reservation has been less than expected:
1. After it backfired against France in the Norwegian
LoansCase,50 it looked less useful.
2. Originally the U.S. example was followed by five States. Of
States presently Parties to the Optional Clause, very few
employ the automatic reservation.
3. It may be noted that the automatic reservation was not
invoked by the United States in the Nicaragua case.

c. The third source of alleged dilapidation relates to the question of

procedural reforms.In the 1978 Rules of Court, various criticisms
were taken into account. And in any case, it may be doubted
whether internal procedural reform is a major issue.
d. The fourth alleged problem is the supposedly disappointing amount
of business the Court gets.

It may be recalled that the Court had 98 contentious cases up to the end of
1999, and at that time this was regarded as a very modest production. But
this type of arithmetic is a poor index of the practical significance of the
Court. Other indices and factors should be taken into account. Since 1984,
there has been a regular flow of work. The flow of business is broad-based
and not confined to one type of jurisdiction or to States of a particular region.
This is a significant element in any assessment of the work of the Court. It is
to be emphasized that the cases before the Court have a special character.
The true analogy is with public law and the key question is often status and
not compensation. A high proportion of decisions concern the status of
territory and the allocation of important resources. Such decisions include
the following:
Anglo-Norwegian Fisheries;51
North Sea Continental Shelf Cases;52
Gulf of Maine case;53
Chad v. Libya;54
Denmark v. Norway;55
Cameroon v. Nigeria.56
53. In sum, these considerations suggest that the picture of dilapidation
normally presented is exaggerated to a substantial degree.
XIII. Concluding observations
54. In coming to my conclusion, I shall look at the more problematical
aspects of the process of adjudication, whether in the International Court or
in courts of arbitration. The special attraction of adjudication is that it is
definitive and removes a source of political antagonism and tension between
the parties. The alternative is either negotiation, which involves the
responsible officials in making compromises, or inaction.
55. At the same time, adjudication involves a loss of political control over a
situation. As Sir Gerald Fitzmaurice has observed:57The main conclusion is
that apart from the natural reluctance to litigate felt by almost everyone,
governments prefer to deal with disputes by political means rather than by
submission to adjudication, and fight shy of the commitment involved by
going to law: they dislike the loss of control that is entailed over the future of
the case, the outcome of which they can no longer influence politically once
it is before a court of law, since this will then depend upon legal
considerations with which they do not find themselves at home. They much

prefer a political forum such as the United Nations in which leverage can be
exercised through the influence of majorities. In general, the proliferation of
international organisations has proved a disservice to the cause of
international adjudication.Fitzmaurice was the British Foreign Office Legal
Adviser for many years, and expressed this view in 1973 after his retirement.
56. In any event, adjudication has certain inherent limitations. In the first
place, the International Court is to a great extent dependent upon the parties
when it comes to matters of fact and the Court is reluctant to ask questions
of the parties. And there is no appeal. Second, the International Court
sometimes operates in legal fields on the margins of normal areas of
justiciable issues. The Gabcikovo case between Slovakia and Hungary is a
good example of this experience. With a degree of confidence in the survival
of the contractual framework (the 1977 Treaty), the Court held by 13 votes to
2:that Hungary and Slovakia must negotiate in good faith in the light of the
prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the Treaty of 16 September 1977, in
accordance with such modalities as they may agree upon .5857. In cases
such as this, the Court is, in effect, transferring the burden of decisionmaking back to the parties. While the intention is to be constructive, the
result is contradictory because the parties in the Special Agreement of 1993
had expected the Court to answer the questions formulated in Article 2.
58. By way of conclusion, it is convenient to present a series of propositions:

First, the system of peaceful settlement of inter-State disputes is a

significant part of the universe of international relations.

Second, the modalities are very varied and adjudication is

simply oneinstrument forming part of an entire orchestra of modes of
peaceful settlement.
Third, in relation to settlement on the basis of law, the practice of
arbitration is as significant as the work of standing tribunals, such as the
International Court.
Fourth, the system we have is not attuned to the settlement of purely
political disputes.
Fifth, the International Court has a successful record of the settlement
of disputes concerning territory and delimitation, including maritime
delimitation.

And lastly, resort to both the International Court and to ad

hocarbitration constitutes the general practice of all regions.
59. The general outcome is ironical, to say the least. In the era of
decolonization, in the 1960s, western pundits expressed portentous concerns
about the aptitude of the new States to participate in what was seen as a
western system of international law and dispute settlement. These concerns
were both condescending and unfounded.

60. And, before I close, I wish to thank the University and the Awards
Committee for their decision to elect me as the first recipient of the Wang
Tieya Award.