Peaceful Settlement of International Disputes: Current State and Perspectives
| Autor | Antônio Augusto Cançado Trindade |
| Ocupação do Autor | Juiz da Corte Internacional de Justiça (Haia) |
| Páginas | 391-439 |
XVIII
Peaceful Settlement of International Disputes:
Current State and Perspectives1
Sumário:1I. Introduction: The Basic Problem of Compulsory J urisdiction. II. Interac-
tion or omplementarity of Means of Peaceful Set tlement. III. Diplomatic Means of
Peaceful Settlement. 1. Negociation. 2. Conciliation. 3. Fact-Finding. 4. Good Offi -
ces. 5. Mediation. 6. Arbitral and Judicial Settlem ent. IV. Settlement of Disputes in
Multilateral Treaties. V. The Search for ad hoc Solutions. 1. The Experience of Con-
tadora. 2. The Experience of Guarantor States. 3. Other Exp eriences. VI. The Work
of the Special Committee on the Charter of the United Nations and on the Streng-
thening of the Role of the Organization. VII. Peaceful Settlement and the Renuncia-
tion of the Use of Force in International Relations. VII I. Peaceful Settlement beyond
State Voluntarism: Some New Trends. IX. Peaceful Settlement and the General Inte-
rests of the International Community. X. Concluding Observations.
I. Introduction: The Basic Problem of Compulsory Jurisdiction
The fundamental problem underlying the whole chapter of international law
concerning peaceful set tlement of international disputes remains t he vexata quaestio
of compulsory jurisdiction, largely unresolved from the days of the two Hague
Peace Conferences (1899 and 1907) to date. For if, on the one hand the U.N. Charter
provides for the general principle of the duty of member States of peaceful settle-
ment of disputes which may put at risk international peace2, on the other hand that
duty coexists with the prerrogative of the choice left to the contending parties (mem-
bers or not of the United Nations) of adoption of one of the methods of peaceful
settlement of disputes (within and outside the United Nations)3.
1 Trabalho de pesquisa apresentado pelo Autor em quatro conferências m inistradas no XX XI
Curso de Direito Internacional O rganizado pela Comissão Jurídica Interamerican a da Organiza-
ção dos Estados Americanos (OEA), realizado no Rio de Janeiro, Brasil, em 04 -06 de agosto de 2004.
2 A general principle which is incor porated in mandatory terms i n the U.N. Charter – Ar-
ticle 2(3) – and restated in resolution 2625 (XXV) of 1970 of the U.N. General Assembly on
Principles of International Law Governing Friendly Relations and Cooperation among State;
cf. David Davies Memorial Institute of International Studies, International Disputes: the Legal
Aspects (Report of a Study Group), London, Europa Publs., 1972, pp. 8-14.
3 F.S. Northedge and M.D. Donelan, International Disputes: the Political Aspects, London,
Europa Publs., 1971, p. 241.
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ANTÔNIO AUGUSTO CANÇADO TRINDADE
The domain of peaceful resolution of international conf licts appears thus con-
stantly marked by the ineluctable and persistent ambivalence between, on the one
hand, the States’ general duty of peaceful settlement, – which ensues from a general
principle of international law, – and, on the other hand, the freedom of choice ac-
corded to them, – a faculty left to the States, – as to the means of settlement to be
employed. The inherent tension between the general duty of peaceful resolution and
the free choice of means has had a repercussion in the application of international
instruments, in so far as pe aceful settlement of disputes is concerned.
Preliminarily, before embarking on an examination of this significant and
complex chapter of International Law, I would like to dedicate my present series of
four lectures on the topic at issue, in this year’s Course of International Law Orga-
nized by the Inter-American Juridical Committee of the Organization of American
States (2004), to the memory of my distinguished colleague at the Curatorium of The
Hague Academy of International Law, Professor Daniel Bardonnet, a fine jurist and
a grand seigneur, who passed away in Paris less than a month ago. The departure of
this great and learned friend, who so much appreciated and fully understood the
cultures of Latin America, is indeed a g reat loss to contemporary international law.
A few years ago we participated together, Bardonnet and I, in a previous ver-
sion of this Course of International Law Organized by the Inter-American Juridical
Committee here in Rio de Janeiro. On that occasion, he and I, in the company of
another fine jurist, Dr. Keith Highet, former member of the aforementioned Com-
mittee, held – the three of us – a long and memorable panel precisely on the topic of
the peaceful settlement of international disputes. Most of our remarks were formu-
lated in an entirely spontaneous way. I understand that this panel was then record-
ed, but was never published, and will thus, most likely and regrettably, be vanished
with the onslaught of time. In any case, I cannot let this occ asion pass without dedi-
cating my four current lectures of 2004 to my dear and recently departed friend
Daniel Bardonnet, with whom I shared gratifyi ng moments during the last three
decades, in our common cultivation of international law in various countries, in
Latin America and in Europe.
Traditional international legal doctrine has been, somewhat surprisingly,
generally conniving with perm issiveness (as to choice of methods). Dispute settle-
ment has thus remained particularly vulnerable to manifestations of State volun-
tarism and considerations of accommodation of power, thereby resisting attempts
of codification or systematization4. Despite that, multiple instruments of dispute-
4 Thus, it has on occasions been relegated to juri sdictional clauses appearing in Optional
Protocols, rather than in the co dification Conventions themselves. For a critici sm, cf. H.W. Briggs,
“The Optional Protocols of Geneva (1958) and Vienna (1961, 1963) Concerning the Compulsory
Settlement of Disputes”, Recueil d’études de Droit international en hommage à P. Guggenheim,
Genève, IUHEI, 1968, pp. 628-641; and cf. S. Rosenne, “The Settlement of Treaty Disputes u nder
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-settlement have been devised and applied in the last decades, with varying results.
And there seems to appear, in recent years, a growing awareness of the need to give
greater weight to the general principle of the duty of peaceful settlement, which
ought certainly to prevail over the prerrogative (of free choice of means) left to the
contending parties.
In the years following the two Hague Peace Conferences (of 1899 and 1907),
there were endeavours to render widely obligatory the peaceful settlement of dis-
putes (as exemplified by the 1924 Geneva Protocol on the Pacific Settlement of Inter-
national Disputes and the 1925 Locarno Treaty). In the absence, in most cases, of a
strict obligation of submitting pending disputes specif ically to compulsory jurisdic-
tion – without prejudice to the general principle of peaceful settlement – there per-
sists the central problem of the matter:
“there is a clear obligation not to settle disputes by force, but the option left to the par-
ties to choose among the possible methods of se ttlement such frequently indecisive meth-
ods as negotiation, enquiry or mediation results in a substantial proportion of cases in a
stalemate rather than a settlement ”
5
.
However, keeping in mind this caveat as to the absence of a guarantee of a com-
pulsory settlement, it is to be observed that it does not ensue therefrom that the way
would be entirely open to State voluntarism in the present domain of international law.
It is certain that the procedures of the U.N. Security Council6 are supple-
mentary to the traditional methods of peaceful settlement of disputes (mentioned
in Article 33(1) of the U.N. Charter)7, but it does not result therefrom that the ques-
tion at issue is wholly under the control of the will of the States: in fact, the consent
of the contending parties is not necessar y for a dispute to be taken before the Secu-
rity Council or the General Assembly, and nor even for the Security Council to ex-
ert its investigatory powers8; the Council can act on its own initiative, upon re-
quest of any member State of the U.N., or as a result of the initiative of the Secretary
the Vienna Convention of 1969”, 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
(1971) pp. 1-62; R.J. Dupuy, “Codification et règlement des différends – Les débats de Vienne sur
les procédures de règlement”, 15 Annuaire français de droit international (1969) pp. 70-90.
5 C.W. Jenks, The World beyond the Charter, London, Allen & Unwin, 1969, p. 165, and cf.
p. 166. – Likewise, Witenberg used to warn that “seuls sont justiciables les États qui auront
accepté de l’être. L’État ne sera justiciable que dans la mesure où il aura accepté de l’être»; J.C.
Witenberg, L’organisation judiciaire, la procédure et la sentence internationales – traité pratique, Paris,
Pédone, 1937, p. 3.
6 Ch apter VI of the U.N. Charter.
7 D.W. Bowett, “The United Nations and Peaceful Settlement”, International Di sputes: the
Legal A spects, London, Europa Publs., 1972, pp. 179-180.
8 Under Article 34; D. Davies Memorial Institute, International Disputes: the Legal Aspects, op.
cit. supra n. (1), pp. 8-14.
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