The Settlement of International Disputes

The Settlement of International Disputes.

Peaceful Settlement of DisputesHistorically, International Law has been regarded by the international community as a means to ensure the establishment and preservation of world peace and security.The maintenance of international peace and security has always been the major purpose of the International Law. It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945. Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled. Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law.States have concluded a great number of multilateral treaties aiming at the peaceful settlement of their disputes and differences.The most important treaties are 1. the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations.2. Furthermore, there are regional agreements, such as the 1948 American Treaty on Pacific Settlement (Bogot Pact),3. the 1957 European Convention for the Peaceful Settlement of Disputes,4. and the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization of African Unity.In addition to such general treaties on dispute settlement, there are many bilateral and multilateral agreements which include specific clauses related to dispute settlement. The Charter of the United Nations devotes Chapter VI to the methods and procedures for the pacific settlement of disputes. Paragraph 1 of Article 33 of the Charter states the methods for the pacific settlement of disputes as the following: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements. This paragraph obliges States parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek a solution by any of the listed methods or other peaceful means of their own choice. The methods of peaceful settlement of disputes fall into three categories: diplomatic, adjudicative, and institutional methods.Diplomatic methods involve attempts to settle disputes either by the parties themselves or with the help of other entities.Adjudicative methods involve the settlement of disputes by tribunals, either judicial or arbitral.Institutional methods involve the resort to either the United Nations or regional organizations for settlement of disputes.

1. Negotiation Negotiation is the oldest, most common, and the simplest methods of settling international disputes. Negotiation ...is a diplomatic procedure whereby representatives of states engage in discussing matters...between them...to clarify and reconcile their divergent positions and resolve the dispute. It is recognized by the great majority of treaties of pacific settlement as the first step towards the settlement of international disputes. Most of the treaties make a failure to settle a dispute by negotiation a condition precedent to compulsory arbitration or judicial settlement. It is, therefore, not surprising that negotiation comes first in the list of means of pacific settlement of disputes stipulated in Article 33(1) of the Charter of the United Nations. Negotiation consists of discussions between the concerned parties with a view to understand the opposing positions and opinions and reconcile the differences. It is very suited to the clarification and elucidation of the opposing contentions. It is the most satisfactory means to settle disputes since it is a voluntary bilateral and self-help means; the parties are directly engaged in the process; intervention by any third party in the process is not necessary. Negotiations, however, do not always succeed in reaching solutions to disputes or differences between the parties. Thus, third parties interventions are needed to help the parties in reaching a settlement to their disputes and differences; here comes the importance of the other diplomatic methods of dispute settlement.

2. Mediation, Conciliation and Good OfficesMediation, conciliation and good offices are three methods of peaceful settlement of disputes by which third parties seek to assist the parties to a dispute in reaching a settlement.All involve the intervention of a supposedly disinterested individual, State, commission, or organization to help the parties.When the parties are unwilling to negotiate, or fail to negotiate effectively, assistance by a third party through its mediation, conciliation, or good offices may be necessary to help in procuring a settlement.This assistance may be requested by one or both of the parties, or it may be voluntarily offered by a third party.Although there is no distinction in the general features of mediation, conciliation, and good offices, a theoretical and practical distinction can be made among them according to the degree of third party participation, and the extent to which the disputants are obliged to accept the outcomes of the procedures.1. Mediationis clearly a political method of settlement. In mediation a third-party, acceptable to both parties to the dispute, effects communication between the parties and participates actively in the process of negotiation by offering proposals for settlement. Mediation is a process through which an outside party (third party) endeavors to bring the disputants together and assists them in reaching a settlement. The third party offers his assistance to the parties to a dispute. The consent of the disputants is not necessarily required initially, but no mediation proceedings can be commenced without their consent. The mediator actively and directly participates in the settlement itself. He does not content himself with making negotiations possible and undisturbed.He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute.However, his proposals represent nothing more than recommendations.They have no binding force on either disputant.The parties to a dispute are free to accept or reject his proposals.

2. Similar to mediation isGood offices, which is not mentioned in the UN Charter. Good offices is recognized by the Hague Convention for the Pacific Settlement of International Disputes of 1899 (187 CTS 410). It is like mediation except that the third-party does not participate actively in the negotiations. S/he merely effects communication between the parties saving them the difficulties of personal contact. And the parties have no prior commitment to the result. When the parties to a dispute reach the point of not being able to solve it by negotiation, or the point where they have broken off diplomatic relations, but they are convinced that a settlement is important to them, the utilization of the technique of good offices may be helpful. Good offices may be utilized only with the agreement or the consent of both disputants. A third party attempts to bring the disputants together in order to make it possible for them to find an appropriate settlement to their differences through their negotiations. In this regard, the function of the third party is to act as a go-between, transmitting messages and suggestions in an effort to create or restore a suitable atmosphere for the parties to agree to negotiate or resume negotiation. When the negotiations start, the functions of the good offices come to an end.The procedure of good offices, in contrast to mediation, has a limited function which is simply bringing the disputants together. In mediation, the mediator takes an active part in the negotiations between the disputants and may even suggest terms of settlement to the disputants. Method of good offices consists of various kinds of action aiming to encourage negotiations between the parties to a dispute. Also, in contrast to the case of mediation or conciliation, the profferer of good offices does not meet with the disputants jointly but separately with each of them.Seldom, if ever, the profferer attends joint meetings between the parties to a dispute. Normally, the role of the profferer of good offices terminates when the parties agree to negotiate, or to resume negotiation.However, the profferer may be invited by the parties to be present during the negotiations.As in case of mediation, an offer of good offices may be rejected by either or both parties to a dispute.3. Conciliation differs from arbitration in one very important respect: the result of the former is not legally binding and thus has no influence on any further litigation of the dispute. Boczek1...a diplomatic method of third-party peaceful settlement..., whereby a dispute is referred by the parties, with their consent, to a permanent or ad hoc commission, ...whose task is impartially to examine the dispute and to prepare a report with the suggestion of a concrete proposal. Conciliation is a process of settling a dispute by referring it to a specially constituted organ whose task is to elucidate the facts and suggest proposals for a settlement to the parties concerned. However, the proposals of conciliation, like the proposals of mediators, have no binding force on the parties who are free to accept or reject them. As in the case of mediation, conciliators may meet with the parties either jointly or separately. The procedures of conciliation are generally instituted by the parties who agree to refer their dispute to an already established organ, commission or a single conciliator, which is set up on a permanent basis orad hocbasis; third parties cannot take the initiative on their own. The conciliators are appointed by the parties to a dispute.They can be appointed on the basis of their official functions or as individuals in their personal capacity. Conciliation is described by some as a combination of enquiry and mediation.The conciliator investigates the facts of the dispute and suggests the terms of the settlement.But conciliation differs from enquiry in that the main objective of the latter is the elucidation of the facts in order to enable the parties through their own accord to settle their dispute; whereas the main objective of conciliation is to propose a solution to a dispute and to win the acceptance of the parties to such solution.Also, conciliation differs from mediation in that it is more formal and less flexible than mediation; if a mediators proposal is not accepted, he can present new proposals, whereas a conciliator usually present a single report.

EnquiryAlso calledas inquiryorfact-finding, which is a good description of what it is. It may be used as an independent procedure or as a preliminary part of other methods of peaceful dispute settlement. It can and, in a few cases, it has led to settlements by exposing the truth of a situation to the parties involved. One of the common obstacles preventing the successful settlement of a dispute by negotiation is the difficulty of ascertaining the facts which have given rise to the differences between the disputants.Most international disputes involve an inability or unwillingness of the parties to agree on points of facts.Herein lays the significance of the procedure of inquiry as a means of pacific settlement of disputes. Many bilateral agreements have been concluded under which fact-finding commissions have been set up for the task of reporting to the parties concerned on the disputed facts.In addition, the procedure of inquiry has found expression in treaties for the pacific settlement of disputes. The two Hague Conventions of 1899 and 1907 established commissions of inquiry as formal institutions for the pacific settlement of international disputes.[9]They provided a permanent panel of names from which the parties could select the commissioners.The task of a commission of inquiry was to facilitate the solution of disputes by elucidating the facts by means of an impartial and conscientious investigation.The report of a commission was to be limited to fact-finding and was not expected to include any proposal for the settlement of the dispute in question. With the establishment of the League of Nations, the means of inquiry took on a new significance.Inquiry and conciliation were viewed as integral parts of a single process for bringing about a pacific settlement to a dispute.[10]It is in the light of this background that the Charter of the United Nations specifically lists enquiry as one of the methods of pacific settlement of international disputes. Enquiry as a separate method of dispute settlement has fallen out of favor.It has been used as part of other methods of dispute settlement.Its purpose is to produce an impartial finding of disputed facts and thus to prepare the way for settlement of dispute by other peaceful methods.The parties are not obliged to accept the findings of the enquiry; however, they always do accept them. The utilization of enquiry has been evident in the practice of international organizations, such as the United Nations and its specialized agencies.Enquiry has been used as part of other methods of dispute settlement in the context of general fact-finding.

Section 2:Adjudicative Methods of Dispute Settlement[12] The major disadvantage of the diplomatic methods of dispute settlement is that the parties to them are under no legal obligation to accept the proposals of settlement suggested to them. Thus, the adjudicative methods of dispute settlement are preferable because they provide the issuance of binding decisions, rather than mere recommendations as in cases of diplomatic methods.It is this binding force of the decisions rendered at the end of the adjudicative methods that distinguishes these methods from other methods of dispute settlement. Adjudicative methods of dispute settlement consist of two types of procedures, arbitration and judicial settlement. Arbitration and judicial settlement are two methods involve the determination of differences between States through legal decisions of tribunals.Whereas in case of judicial settlement the decision is made by an established court, permanent (such as the International Court of Justice) orad hoc, in case of arbitration it is made by a single arbitrator or arbitral tribunal.The major characteristic of these two methods is that a judicial decision or an award is binding on the parties and must be carried out in good faith. It is not until the establishment of the League of Nations that the terms arbitration and judicial settlement became distinguished.Under the Covenant of the League judicial settlement meant settlement by the Permanent Court of Justice (PCIJ), whereas arbitration meant settlement by other tribunals.This same distinction is carried over by the Charter of the United Nations, but with the International Court of Justice (ICJ) substituting for the Permanent Court of International Justice (PCIJ). Arbitration was defined in the 1899 Hague Convention for the Pacific Settlement of Disputes as the settlement of differences between states by judges of their choice and on the basis of respect for law;[13]this same definition was repeated in the 1907 Hague Convention.[14]The procedures of arbitration grew to some extent out of the processes of diplomatic settlement and represented an advance towards a developed international legal order. Arbitration is considered the most effective and equitable means of dispute settlement. It combines elements of both diplomatic and judicial procedures.However, it is much more flexible than judicial settlement.It gives the parties to a dispute the choices to appoint the arbitrators, to designate the seat of the tribunal, and to specify the procedures to be followed and the law to be applied by the tribunal.Moreover, the arbitration proceedings can be kept confidential. Arbitration cannot be initiated without the agreement of the parties to a dispute. An agreement of arbitration may be concluded for settling a particular dispute, or a series of disputes that have arisen between the parties.It may be in the form of a general treaty of arbitration. The usual pattern in arbitration agreement as regards the appointment of arbitrators is that each of the two parties has to appoint one arbitrator or more, and the appointed arbitrators have to appoint the arbitrator, who is known as an umpire.Usually, the arbitral tribunal consists of three arbitrators, who can decide by majority vote.The parties may agree to refer their dispute to a single arbitrator, who may be a foreign head of a State or government, or a distinguished individual. Judicial settlement is a settlement of dispute between States by an international tribunal in accordance with the rules of International Law.The international character of the tribunal is in both its organization and its jurisdiction.International tribunals include permanent tribunals, such as the International Court of Justice (ICJ), the International Tribunal for the law of the Sea (ITLOS), the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human rights, and includead hoctribunals, such as the United Nations Tribunal in Libya. The ICJ is the most important international tribunal, because of its both prestige and jurisdiction.It is the principal judicial organ of the United Nations.All members of the United Nations areipso factoparties to the Statute of the Court. The judges of the ICJ are appointed by the United Nations, not by the parties to a dispute.The ICJ has to apply the rules and principles of International Law, which are enumerated in Article 38 of the Statute of the Court; the parties have no choice in specifying the rules to be applied by the Court.The jurisdiction of the Court includes all disputes between States concerning the interpretation of a treaty, any question of International Law, the existence of any fact constituting breach of international obligations, and the nature or extent of the reparation to be made for the breach of an international obligation. The Charter of the United Nations refers to arbitration and judicial settlement in Article 33(1) as two methods among other methods of pacific settlement that States are encouraged to utilize in seeking a solution to their international disputes.It is also provides in Article 36(3) a guidance to the Security Council requiring it to take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice.Despite this provision, the Charter does not impose on members of the United Nations the obligation to submit any dispute, even legal one, to the Court.Moreover, the Charter provides that nothing in it shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.[15]

Litigationandarbitration Litigationandarbitrationare both considered to be judicial as opposed to political means of settlement because their results are both legally binding. The terms of arbitration are agreed on in advance either through an ad hoc agreement or a treaty. The former is called a compromis and the latter a compromissory clause. In both cases the parties agree to the jurisdiction of the arbitrators, the method of selecting the arbitrators, a definition of the dispute, the procedure to be followed, and sometimes the applicable law. Litigation results in opinions that are usually published; arbitration results in awards that are sometimes published. Arbitration is a legal method of dispute settlementwhich requires the prior consent of each party tothe dispute. This is usually done through a specialagreement between the parties called a compromise.514Arbitration is provided for inArticle 33 of the UN Watercourses Conventionandcomplemented by the Annex to the Convention whichsets out the rules for the establishment and operationof an Arbitral Tribunal (Article 33 (10)(b)and (AnnexArticles 1-14) as included in the opposite column. It is important to note that parties are not bound touse the particular arbitral formula of Article 33 and areinstead able to utilise other procedures if the parties tothe dispute otherwise agree (Article 33(10)(b)). Theseother options could include use of the proceduresof thePermanent Court of Arbitration(PCA), whichis not a court but rather a special mechanism, theprimary purpose of which is to assist states in settlingtheir international controversies.515The PCA wasestablished in 1899 under theHague Convention No 1 forthe Pacific Settlement of International Disputesandis able to provide its services to all arbitration casessubmitted to it by agreement of the parties to a dispute.It has recently updated its procedures to respond tocurrent international practice and a particularly relevantoutcome is the 2001 Optional Rules for ArbitratingEnvironmental Disputes which provides more detailedprovisions than the arbitration procedure in theConvention.516One significant distinguishing factorbetween the ICJ and the PCA is that both internationalorganisations and companies can be parties to PCproceedings under the 2001 Optional whereas onlystates can be parties to proceedings before the ICJ.517 There have been numerous international arbitrationsof water disputes since the late 19th Century, a selectlist of more recent cases include: the1941 Trail SmelterArbitration518; the1947 Lac Lanoux Arbitrationbetween Spain and France519; the 1968 Gut Dam casebetween the United States and Canada520; the 1994Landmark 62-Mount Fitz Roy case between Argentinaand Chile521; the 2004 arbitration between Netherlandsand France pursuant to a nearly 70 year dispute; andthe1976 Convention on the Protection of the RhineAgainst Pollution by Chloridesand the AdditionalProtocol of 1991522. Most recently, in 2011, the PCAdelivered an Order on Interim Measures regarding theIndus Waters Kishenganga Arbitration(Pakistan v.India), which is examined in the opposiet column with a specific focus onthe process of dispute resolution.523

Institutional Methods of Dispute SettlementInstitutional methods of dispute settlement involve the resort to international organizations for settlement of international disputes.These methods have come into existence with the creation of the international organizations.The most eminent organizations, which provide mechanisms for settling dispute between their member States, are the United Nations and the regional organizations, such as the European Union, the Organization of American States, the Arab league and the African Union.

Settlement of international disputes by the United Nations The United Nations was founded in October 24, 1945, and had 192 Member States, the Articles of Association is mainly the "UN Charter", which is to maintain international peace and in security, the development of friendly relations between countries, promote international cooperation and coordination of national actions. It has a total of five major organs: the United Nations General Assembly, Security Council, the Economic and Social Council, International Court of Justice and the Secretariat, all agencies are to perform their functions under the provisions of the Charter. Chapter VI of theUnited Nations Charterdeals with peaceful settlement of disputes. It requires countries with disputes that could lead to war to first of all try to seek solutions through peaceful methods such as "negotiation, enquiry,mediation, conciliation,arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." If these methods ofalternative dispute resolutionfail, then they must refer it to theUN Security Council. Under Article 35, any country is allowed to bring a dispute to the attention of the UN Security Council or the General Assembly. This chapter authorizes the Security Council to issue recommendations but does not give it power to make binding resolutions; those provisions are containedChapter VII.[1][2][3] Chapter VI is analogous to Articles 13-15 of theCovenant of the League of Nationswhich provide for arbitration and for submission of matters to the Council that are not submitted to arbitration.United Nations Security Council Resolution 47andUnited Nations Security Council Resolution 242are two examples of Chapter VI resolutions which remain unimplemented. The Settlement of international disputes is one of the most important roles of the United Nations.The Charter of the United Nations stipulates that it is the task of the United Nations to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.[17] To this end, the Charter provides a system for the pacific settlement or adjustment of international disputes or situations under which the wide competence of the United Nations in this matter is established, and the corresponding obligations of the members of the United Nations are imposed.This system is delineated mainly in Chapter VI of the Charter. Chapter VI of the Charter contains the United Nations mechanism for the pacific settlement of disputes.Article 33 obliges the parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to settle such a dispute by any of the enumerated peaceful means therein, or by any peaceful means of their choice. When the parties fail to observe their obligations or their efforts are not successful, the United Nations will intervene to consider the dispute and give its recommendations on the matters.The Security Council is given the primary responsibility in this regard.[18]It is entitled to intervene either on its own initiative, upon invitation of any member of the United Nations, upon invitation by the General Assembly, or upon a complaint of a party to a dispute.[19] The Security Council may follow three courses of action.First, it may call upon the parties to a dispute to settle their dispute by any of the peaceful means listed in Article 33(1).[20]Second, it may recommend to the parties appropriate procedures or method of settlement.[21]Third, it may recommend terms of settlement, as it may consider appropriate.[22] Although under the Charter the Security Council is given the primary role for maintaining international peace and security, the General assembly is not excluded from doing so. Under Articles 11, 12 and 14, the General Assembly may discuss and make recommendations for procedures or methods of adjustment, or for terms of settlement, with regard to any dispute or situation brought before it.The disputes or situations may be brought before the General Assembly by the Security Council, any member of the United Nations, or any State party to such dispute.[23]CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTESArticle 331. 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.2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.Article 34The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.Article 351. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.Article 361. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.Article 371. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.Article 38Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.United Nations In Resolving International Disputes1. It has always been a controversial topic that whether the United Nations plays an important role in international affairs, this essay agrees that the United Nations is indeed an effective institution, it plays an irreplaceable role in dealing with many international disputes and settlement of international affairs. However, the United Nations also has its limitations and shortcomings, which are mainly reflected in the poor settlement of regional disputes and the inability to stop the war. This essay will firstly introduce the principal organs of the United Nations in terms of the settlement of disputes. Following this, it will discuss the limitations and shortcomings of the United Nations in maintaining international peace and security. Finally, it will look at how the limitations and shortcomings reflected in the settlement of Iraq War.2. First, the General Assembly and the Secretary-General. The United Nations General Assembly is composed by all Member States, which is the deliberative organ of the United Nations, and holding a regular session each year. There must be two-thirds of the UN General Assembly adopted on "important issues"; for the "general problems", more than half would be permitted. Generally speaking, resolutions adopted by the Assembly are not legally binding, and they are more of a political and moral strength. The role of Secretary-General of the United Nations is reflected more of a third-party intervention in the peaceful settlement of international disputes.3. Second, the Security Council. Within the United Nations, Security Council plays an important political position; it is the only organization which has right to take action for the maintenance of international peace and security under the Chapter VII of "UN Charter", and all the United Nations Member States must comply with any resolution made by the Council in its terms of reference.To take the Iraq war for example, after the 1991 Gulf War the United Nations Security Council passed a total of over 60 resolution, mainly around the Gulf War cease-fire, liability and compensation for war, destruction of weapons of mass destruction in Iraq, against terrorism and the request of Iraq on full cooperation with the United Nations issues. (Bennett, 2008) In the international level, these resolutions made by the Council is the legal basis for international community to deal with the Iraq issue, which provides the rights and obligations of Iraq and other members of the United Nations on the issue, but also decides the position of the United Nations in Iraq's post-war reconstruction. But overall, the U.S. and British military action against Iraq is the challenge that defies the United Nations security system, which just exposes the limitations and shortcomings of the United Nations Security Council in maintaining international peace and security.

The Limitations And Shortcomings Of UN Reflected In The Iraq IssueIt is not only used to encourage the participating countries of the Hague Peace Conference in 1899 to take peaceful settlement of international disputes in order to prevent the outbreak of war, but also the "Hague spirit which affects the future development of international law in the field of peaceful settlement of international disputes. Article 1 of the UN Chapter clearly states: To maintain international peace and security and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Thus, "safeguarding world peace and security" is in the first place of the four purposes of United Nations organizations.However, the United States and Britain launched the war on Iraq by passing the Security Council, which is an act of unilateralism of "the United Nations Charter" and "international law", and it has become an indisputable fact of disregard of the law. (Pfaff, 2003) It violates the basic principles of the Charter, including the sovereign equality of Member States; in good faith to fulfill international obligations; peaceful settlement of international disputes; not to use force or threat of force against any Member State on the territorial integrity or political independence; collective assistance; ensure that non- Member States to comply with the Charter principles and non-interference in internal affairs. It can not cover up the hegemonic and non-humanitarian reflected in their actions with any excuse. (Sellersed, 1996)However, the problem is that there is no independent and effective mechanism above the nations which has the power to conduct certain punishment and coercive measures, even the United Nations can not do anything. (Michael, 2003) In other words, although the Charter and international law clearly prohibit such behavior, but they did not provide the legal consequences for the violation of prohibition; or even if provided, the enforceability of the resolution is still a very difficult problem. (Thomas, 2001)Thus, there has been a constant friction and conflict between the major powers unilateralism and multilateralism established by the United Nations, (Boutros, 2003) the United States so-called "preemptive" self-defense theory, "human rights overriding sovereignty" principle began to follow. All these have given a heavy blow to the United Nations security mechanisms, which is built up painstakingly by all countries in the world. The United Nations powerless on this issue has become an embarrassing situation.ConclusionIn summary, the important role of United Nations in resolving international disputes is self-evident, but its limitations and weaknesses exposed are also cause for concern. The reflection of international community on the result of the war in Iraq is that the role and authority of the United Nations should be strengthened rather than be weakened. The United Nations role in Iraq's reconstruction can not be replaced by any country or institution. The world today is facing problems such as terrorism, proliferation of weapons of mass destruction, which are all global issues. To find a legal and effective way to address these problems requires global cooperation. Therefore, it is imperative to reform the United Nations, by realizing its shortcomings in conflict, the UN would find the direction and thus to make better self-development.

(2)Peaceful Settlement of Dispute by Regional Organizations:[24]Article 33(1) of the Charter of the United Nations requires the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek, first of all, a solution by any of the peaceful methods enumerated therein.Among these enumerated methods is the resort to regional arrangements or agencies.Article 52 of the Charter recognizes the right of the members of the United Nations to establish regional arrangements or agencies for dealing with such matters related to the maintenance of international peace and security.Paragraph 2 of this Article requires the member States that are members of regional arrangements or agencies to make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.It seems that the obligation imposed upon the member States by Article 52(2) is consistent with their obligation under Article 33(1).However, paragraph 1 of Article 52 imposes two explicit limitations with regard to the utilization of regional arrangements and agencies.First, it requires that the matters dealt with must be appropriate for regional action.Second, it requires that the arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.Moreover, a third explicit limitation is imposed by Article 54 which requires that the Security Council should at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.No similar explicit limitations are imposed with regard to the utilization of other procedures for pacific settlement.Article 52 is not only confined to legitimizing regional arrangements or agencies and imposing an obligation upon the member States, but goes beyond such legitimization and obligation by pacing a duty on the Security Council itself.Paragraph 3 of this Article requires the Security Council to encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.This provision is in harmony with the general approach of the Charter related to the pacific settlement of disputes which requires the parties themselves to seek a solution to their dispute by any peaceful means of their own choice, and that the Council should give every opportunity to the parties to do so.If the parties have referred their local dispute to the Security Council before making any effort to achieve a settlement through the regional arrangements or agencies, then the Council is under a duty to remind them of their obligation, or to refer such dispute at its own initiative to such arrangements or agencies.International COURT OF JUSTICE

The creation of the Court represented the culmination of a long development of methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times. Article33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices should also be added to this list. Among these methods, certain involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters. Mediation and arbitration preceded judicial settlement in history. The former was known in ancient India and in the Islamic world, whilst numerous examples of the latter are to be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe and in Papal practice.The origins The modern history of international arbitration is, however, generally recognized as dating from the so-called Jay Treaty of 1794 between the United States of America and Great Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals in equal numbers, whose task it would be to settle a number of outstanding questions between the two countries which it had not been possible to resolve by negotiation. Whilst it is true that these mixed commissions were not strictly speaking organs of third-party adjudication, they were intended to function to some extent as tribunals. They reawakened interest in the process of arbitration. Throughout the nineteenth century, the United States and the United Kingdom had recourse to them, as did other States in Europe and the Americas. The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, and still more decisive, phase. Under the Treaty of Washington of 1871, the United States and the United Kingdom agreed to submit to arbitration claims by the former for alleged breaches of neutrality by the latter during the American Civil War. The two countries stated certain rules governing the duties of neutral governments that were to be applied by the tribunal, which they agreed should consist of five members, to be appointed respectively by the Heads of State of the United States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not being parties to the case. The arbitral tribunals award ordered the United Kingdom to pay compensation and it was duly complied with. The proceedings served as a demonstration of the effectiveness of arbitration in the settlement of a major dispute and it led during the latter years of the nineteenth century to developments in various directions, namely: sharp growth in the practice of inserting in treaties clauses providing for recourse to arbitration in the event of a dispute between the parties; the conclusion of general treaties of arbitration for the settlement of specified classes of inter-State disputes; efforts to construct a general law of arbitration, so that countries wishing to have recourse to this means of settling disputes would not be obliged to agree each time on the procedure to be adopted, the composition of the tribunal, the rules to be followed and the factors to be taken into consideration in making the award; proposals for the creation of a permanent international arbitral tribunal in order to obviate the need to set up a specialad hoctribunal to decide each arbitrable dispute.The Hague Peace Conferences and the Permanent Court of Arbitration (PCA)The Hague Peace Conference of 1899, convened at the initiative of the Russian CzarNicholasII, marked the beginning of a third phase in the modern history of international arbitration. The chief object of the Conference, in which a remarkable innovation for the time the smaller States of Europe, some Asian States and Mexico also participated, was to discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.With respect to arbitration, the 1899 Convention made provision for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted in essence of a panel of jurists designated by each country acceding to the Convention each such country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. The Convention further created a permanent Bureau, located at TheHague, with functions corresponding to those of a court registry or a secretariat, and it laid down a set of rules of procedure to govern the conduct of arbitrations. It will be seen that the name Permanent Court of Arbitration is not a wholly accurate description of the machinery set up by the Convention, which represented only a method or device for facilitating the creation of arbitral tribunals as and when necessary. Nevertheless, the system so established was permanent and the Convention as it were institutionalized the law and practice of arbitration, placing it on a more definite and more generally accepted footing. The Permanent Court of Arbitration was established in 1900 and began operating in 1902.A few years later, in 1907, a second Hague Peace Conference, to which the States of Central and South America were also invited, revised the Convention and improved the rules governing arbitral proceedings. Some participants would have preferred the Conference not to confine itself to improving the machinery created in 1899. The United States Secretary of State, ElihuRoot, had instructed the United States delegation to work towards the creation of a permanent tribunal composed of judges who were judicial officers and nothing else, who had no other occupation, and who would devote their entire time to the trial and decision of international cases by judicial methods. These judges, wrote SecretaryRoot, should be so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented. The United States, the United Kingdom and Germany submitted a joint proposal for a permanent court, but the Conference was unable to reach agreement upon it. It became apparent in the course of the discussions that one of the major difficulties was that of finding an acceptable way of choosing the judges, none of the proposals made having managed to command general support. The Conference confined itself to recommending that States should adopt a draft convention for the creation of a court of arbitral justice as soon as agreement was reached respecting the selection of the judges and the constitution of the court. Although this court was never in fact to see the light of day, the draft convention that was to have given birth to it enshrined certain fundamental ideas that some years later were to serve as a source of inspiration for the drafting of the Statute of the Permanent Court of International Justice(PCIJ).Notwithstanding the fate of these proposals, the Permanent Court of Arbitration, which in 1913 took up residence in the Peace Palace that had been built for it thanks to a gift from AndrewCarnegie, has made a positive contribution to the development of international law. Among the classic cases that have been decided through recourse to its machinery, mention may be made of theCarthageandManoubacases (1913) concerning the seizure of vessels, and of theTimor Frontiers(1914) andSovereignty over the Island of Palmas(1928) cases. Whilst demonstrating that arbitral tribunals set up by recourse to standing machinery could decide disputes between States on a basis of law and justice and command respect for their impartiality, these cases threw into bold relief the shortcomings of the Permanent Court of Arbitration. Tribunals of differing composition could hardly be expected to develop a consistent approach to international law to the same extent as a permanently constituted tribunal. Besides, there was the entirely voluntary character of the machinery. The fact that States were parties to the 1899 and 1907Conventions did not oblige them to submit their disputes to arbitration nor, even if they were minded so to do, were they duty-bound to have recourse to the Permanent Court of Arbitration nor to follow the rules of procedure laid down in the Conventions.The Permanent Court of Arbitration has recently sought to diversify the services that it can offer, alongside those contemplated by the Conventions. The International Bureau of the Permanent Court hasinter aliaacted as Registry in some important international arbitrations, including that between Eritrea and Yemen on questions of territorial sovereignty and maritime delimitation (1998 and 1999), that concerning the delimitation of the boundary between Eritrea and Ethiopia (2002), and that between Ireland and the United Kingdom under the 1992Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR). Moreover, in 1993, the Permanent Court of Arbitration adopted new Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State and, in 2001, Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment.For more information on the Permanent Court of Arbitration, please visit their website:www.pca-cpa.org.The work of the two Hague Peace Conferences and the ideas they inspired in statesmen and jurists had some influence on the creation of the Central American Court of Justice, which operated from 1908 to 1918, as well as on the various plans and proposals submitted between 1911 and 1919 both by national and international bodies and by governments for the establishment of an international judicial tribunal, which culminated in the creation of the PCIJ within the framework of the new international system set up after the end of the First World War.The Permanent Court of International Justice (PCIJ)Article14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), such a court to be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. It remained for the League Council to take the necessary action to give effect to Article14. At its second session early in 1920, the Council appointed an Advisory Committee of Jurists to submit a report on the establishment of the PCIJ. The committee sat in The Hague, under the chairmanship of BaronDescamps ( Belgium). In August1920, a report containing a draft scheme was submitted to the Council, which, after examining it and making certain amendments, laid it before the First Assembly of the League of Nations, which opened at Geneva in November of that year. The Assembly instructed its Third Committee to examine the question of the Courts constitution. In December1920, after an exhaustive study by a subcommittee, the Committee submitted a revised draft to the Assembly, which unanimously adopted it. This was the Statute of the PCIJ.The Assembly took the view that a vote alone would not be sufficient to establish the PCIJ and that each State represented in the Assembly would formally have to ratify the Statute. In a resolution of 13December1920, it called upon the Council to submit to the Members of the League of Nations a protocol adopting the Statute and decided that the Statute should come into force as soon as the protocol had been ratified by a majority of Member States. The protocol was opened for signature on 16December. By the time of the next meeting of the Assembly, in September1921, a majority of the Members of the League had signed and ratified the protocol. The Statute thus entered into force. It was to be revised only once, in 1929, the revised version coming into force in 1936. Among other things, the new Statute resolved the previously insurmountable problem of the election of the members of a permanent international tribunal by providing that the judges were to be elected concurrently but independently by the Council and the Assembly of the League, and that it should be borne in mind that those elected should represent the main forms of civilization and the principal legal systems of the world. Simple as this solution may now seem, in 1920 it was a considerable achievement to have devised it. The first elections were held on 14September1921. Following approaches by the Netherlands Government in the spring of 1919, it was decided that the PCIJ should have its permanent seat in the Peace Palace in The Hague, which it would share with the Permanent Court of Arbitration. It was accordingly in the Peace Palace that on 30January1922 the Courts preliminary session devoted to the elaboration of the Courts Rules opened, and it was there too that its inaugural sitting was held on 15February1922, with the Dutch jurist BernardC.J. Loder as President.The PCIJ was thus a working reality. The great advance it represented in the history of international legal proceedings can be appreciated by considering the following: unlike arbitral tribunals, the PCIJ was a permanently constituted body governed by its own Statute and Rules of Procedure, fixed beforehand and binding on parties having recourse to the Court; it had a permanent Registry which,inter alia, served as a channel of communication with governments and international bodies; its proceedings were largely public and provision was made for the publication in due course of the pleadings, of verbatim records of the sittings and of all documentary evidence submitted to it; the permanent tribunal thus established was now able to set about gradually developing a constant practice and maintaining a certain continuity in its decisions, thereby enabling it to make a greater contribution to the development of international law; in principle the PCIJ was accessible to all States for the judicial settlement of their international disputes and they were able to declare beforehand that for certain classes of legal disputes they recognized the Courts jurisdiction as compulsory in relation to other States accepting the same obligation. This system of optional acceptance of the jurisdiction of the Court was the most that it was then possible to obtain; the PCIJ was empowered to give advisory opinions upon any dispute or question referred to it by the League of Nations Council or Assembly; the Courts Statute specifically listed the sources of law it was to apply in deciding contentious cases and giving advisory opinions, without prejudice to the power of the Court to decide a caseex aequo et bonoif the parties so agreed; it was more representative of the international community and of the major legal systems of the world than any other international tribunal had ever been before it.Although the Permanent Court of International Justice was brought into being through, and by, the League of Nations, it was nevertheless not a part of the League. There was a close association between the two bodies, which found expressioninter aliain the fact that the League Council and Assembly periodically elected the Members of the Court and that both Council and Assembly were entitled to seek advisory opinions from the Court, but the latter never formed an integral part of the League, just as the Statute never formed part of the Covenant. In particular, a Member State of the League of Nations was not by this fact alone automatically a party to the Courts Statute.Between 1922 and 1940 the PCIJ dealt with 29contentious cases between States and delivered 27advisory opinions. At the same time several hundred treaties, conventions and declarations conferred jurisdiction upon it over specified classes of disputes. Any doubts that might thus have existed as to whether a permanent international judicial tribunal could function in a practical and effective manner were thus dispelled. The Courts value to the international community was demonstrated in a number of different ways, in the first place by the development of a true judicial technique. This found expression in the Rules of Court, which the PCIJ originally drew up in 1922 and subsequently revised on three occasions, in 1926, 1931 and 1936. There was also the PCIJsResolution concerning the Judicial Practice of the Court, adopted in 1931 and revised in 1936, which laid down the internal procedure to be applied during the Courts deliberations on each case. In addition, whilst helping to resolve some serious international disputes, many of them consequences of the First World War, the decisions of the PCIJ at the same time often clarified previously unclear areas of international law or contributed to its development.For more information on the Permanent Court of International Justice, please see the "PCIJ"pages on our website.The International Court of Justice (ICJ)The outbreak of war in September1939 inevitably had serious consequences for the PCIJ, which had already for some years known a period of diminished activity. After its last public sitting on 4December1939, the Permanent Court of International Justice did not in fact deal with any judicial business and no further elections of judges were held. In 1940 the Court removed to Geneva, a single judge remaining at The Hague, together with a few Registry officials of Dutch nationality. It was inevitable that even under the stress of the war some thought should be given to the future of the Court, as well as to the creation of a new international political order.In 1942 the United States Secretary of State and the Foreign Secretary of the United Kingdom declared themselves in favour of the establishment or re-establishment of an international court after the war, and the Inter-American Juridical Committee recommended the extension of the PCIJs jurisdiction. Early in 1943, the United Kingdom Government took the initiative of inviting a number of experts to London to constitute an informal Inter-Allied Committee to examine the matter. This Committee, under the chairmanship of SirWilliamMalkin ( United Kingdom), held 19meetings, which were attended by jurists from 11countries. In its report, which was published on 10February1944, it recommended: that the Statute of any new international court should be based on that of the Permanent Court of International Justice; that advisory jurisdiction should be retained in the case of the new Court; that acceptance of the jurisdiction of the new Court should not be compulsory; that the Court should have no jurisdiction to deal with essentially political matters.Meanwhile, on 30October1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security.This declaration led to exchanges between the FourPowers at DumbartonOaks, resulting in the publication on 9October1944 of proposals for the establishment of a general international organization, to include an international court of justice. The next step was the convening of a meeting in Washington, in April1945, of a committee of jurists representing 44States. This Committee, under the chairmanship of G.H.Hackworth ( United States), was entrusted with the preparation of a draft Statute for the future international court of justice, for submission to the SanFrancisco Conference, which during the months of April to June1945 was to draw up the United Nations Charter. The draft Statute prepared by the Committee was based on the Statute of the PCIJ and was thus not a completely fresh text. The Committee nevertheless felt constrained to leave a number of questions open which it felt should be decided by the Conference: should a new court be created? In what form should the courts mission as the principal judicial organ of the United Nations be stated? Should the courts jurisdiction be compulsory, and, if so, to what extent? How should the judges be elected? The final decisions on these points, and on the definitive form of the Statute, were taken at the San Francisco Conference, in which 50States participated. The Conference decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and with the Statute annexed to and forming part of the Charter. The chief reasons that led the Conference to decide to create a new court were the following: as the court was to be the principal judicial organ of the United Nations, it was felt inappropriate for this role to be filled by the Permanent Court of International Justice, which had up until then been linked to the League of Nations, then on the point of dissolution; the creation of a new court was more consistent with the provision in the Charter that all Member States of the United Nations wouldipso factobe parties to the courts Statute; several States that were parties to the Statute of the PCIJ were not represented at the SanFrancisco Conference, and, conversely, several States represented at the Conference were not parties to the Statute; there was a feeling in some quarters that the PCIJ formed part of an older order, in which European States had dominated the political and legal affairs of the international community, and that the creation of a new court would make it easier for States outside Europe to play a more influential role. This has in fact happened as the membership of the United Nations grew from 51 in 1945 to 192 in 2006.The San Francisco Conference nevertheless showed some concern that all continuity with the past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on the basis of past experience, and it was felt better not to change something that had seemed to work well. The Charter therefore plainly stated that the Statute of the International Court of Justice was based upon that of the PCIJ. At the same time, the necessary steps were taken for a transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of Justice. In any event, the decision to create a new court necessarily involved the dissolution of its predecessor. The PCIJ met for the last time in October1945 when it was decided to take all appropriate measures to ensure the transfer of its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its seat in the Peace Palace. The judges of the PCIJ all resigned on 31January1946, and the election of the first Members of the International Court of Justice took place on 6February1946, at the First Session of the United Nations General Assembly and Security Council. In April1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge Jos Gustavo Guerrero ( ElSalvador), the last President of the PCIJ. The Court appointed the members of its Registry (largely from among former officials of the PCIJ) and held an inaugural public sitting, on the 18th of that month. The first case was submitted in May1947. It concerned incidents in the Corfu Channel and was brought by the United Kingdom against Albania.HISTORY AND OVERVIEW The history if the ICJ began with the Hague Conferences of 1897 and 1907 as well as the Hague Convention of 1899. These gatherings called for the establishment of a permanent arbitrary body open to all states for the settlement of international disputes. The decision was made to codify international law in treaties and to establish the first permanent international court, the Permanent Court of Arbitration, which is still functional. Article 14 of the Covenant of the League of Nations, founded after World War I, allowed for the creation of a judicial body providing a peaceful method of dispute settlement based on international law. This new judicial international organization was followed through by the establishment of the Permanent Court of International Justice (PCIJ) in1920. Between 1921 and 1939 the Permanent Court of Arbitration issued more than 30 decisions and 30 advisory opinions. In the spring of 1945 at the San Francisco Conference, 50 nations drafted the Charter for a new World Organization. However, there were 13 nations not party to the PCIJ Statute. The decision was made to replace the PCIJ with a new court, the International Court of Justice principle judiciary organ, and dissolve the League of Nations. Both the PCIJ and the League of Nations were dissolved on April 18, 1946. In April 1946, the International Court of Justice was installed at the Peace Palace. The cases decided by the ICJ were to carry the same weight as those decided by the PCIJ. The International Court of Justice consists of 15 judges each with 9 years terms in office renewable. Five of these judges come from the Western part of the world, three from Africa, three from Asia, two from Latin America, and two from Eastern Europe. The judges are elected at the United Nations Headquarters via secret ballot by the General Assembly and the Security Council. In order to be elected, each judge must receive an absolute majority in both bodies, have a high moral character, expertise in international law, and qualify for the highest judiciary in their country. The judges are independent and do not reflect or represent their governments in any way. No two judges may be elected from the same county. Ad hoc judges are added when the disputing parties have no representation among the judges and these ad hoc judges also retain full voting rights.