Pacific Settlement of Disputes

In one line

Members must settle their disputes by peaceful means, article 33 lists the means and requires the parties to try them first, and the Security Council under Chapter VI may investigate, recommend procedures and, in a persisting dispute, recommend terms, but it cannot impose a settlement.

The duty: article 2(3)

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

That is the positive counterpart of the prohibition in article 2(4). The two must be read together: force is forbidden, and peaceful settlement is required. The duty is to settle by peaceful means; it is not a duty to reach a settlement, since no State can be compelled to agree.

The means: article 33

Article 33(1). 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.

Article 33(2). The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

The list is not a hierarchy, and the closing words matter. Other peaceful means of their own choice makes it open, and the phrase "of their own choice" preserves the principle of free choice of means: no procedure may be imposed on a State that has not consented to it.

The means, one by one.

Negotiation. Direct discussion between the parties. It is the ordinary first step, and many treaties make it a precondition to any other procedure.

Enquiry. The impartial ascertainment of disputed facts by a commission. Where a dispute turns on what happened, an enquiry may dissolve it.

Mediation. A third party takes an active part, proposing terms. Distinguish good offices, where the third party only brings the parties together and transmits messages without proposing terms.

Conciliation. A commission examines the dispute and proposes a settlement in a formal report. The proposals are not binding, and that is the whole difference from arbitration.

Arbitration. Settlement by arbitrators the parties choose, on the basis of law, by an award that binds. The Bay of Bengal award in [The Bay of Bengal Maritime Boundary Arbitration] and the Enrica Lexie award in [Republic of Italy v. Union of India] were both arbitrations.

Judicial settlement. Determination by a standing court, in this system the International Court of Justice, dealt with in [The International Court of Justice].

Regional agencies or arrangements. Chapter VIII, and article 52(2) requires Members entering into such arrangements to make every effort to achieve pacific settlement of local disputes through such regional arrangements or agencies before referring them to the Security Council, while article 52(3) requires the Council to encourage the development of pacific settlement of local disputes through such arrangements, either on the initiative of the States concerned or by reference from the Council.