Pacific Settlement of Disputes

Distinguish diplomatic from judicial means. Negotiation, enquiry, mediation and conciliation are diplomatic: they produce proposals that bind nobody until accepted. Arbitration and judicial settlement are judicial: they produce a binding determination on the basis of law. The distinction decides what a State is agreeing to when it accepts a procedure.

The Council's powers under Chapter VI

Investigation, article 34

The 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 34 is the gateway article. It is also the source of the Charter's distinction between a dispute, a specific disagreement between identified parties, and a situation, a state of affairs that may produce one. The distinction matters for voting: the obligation to abstain under article 27(3) applies to a party to a dispute, so classifying a matter as a situation removes the disability.

Who may bring a matter, article 35

35(1). Any Member 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. The Member need not be a party.

35(2). A state which is not a Member may bring to the attention of the Council or the 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 Charter.

35(3). Proceedings of the Assembly on matters brought under article 35 are subject to articles 11 and 12.

Note the asymmetry. A Member may raise a dispute it is not party to, and a situation as well; a non-Member may raise only a dispute to which it is a party, and only on accepting the Charter's settlement obligations for that dispute.

Recommending procedures, article 36

36(1). The 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.

36(2). It should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.

36(3). In making recommendations, it 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.

Article 36(3) is the Charter's own preference for the Court, and it is the counterpart of article 36(3) of the Court's Statute. It is a should and not a shall, and it recommends the parties refer, not the Council.

The persisting dispute, article 37

37(1). 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.

37(2). If the 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 37(2) is the strongest thing in Chapter VI, and it is still a recommendation. The Council may propose the actual terms on which the dispute should be resolved. It cannot impose them. Where it wants to bind, it must find a threat to the peace under article 39 and move into Chapter VII, which is the subject of the next chapter.

By consent, article 38

Without prejudice to 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.

Article 38 needs all the parties to ask, and in exchange it drops every limitation: the dispute need not endanger international peace and security at all.

What the Council cannot do under Chapter VI

It cannot decide the merits. Everything in articles 33 to 38 is investigation and recommendation.

It cannot bind. Article 25 attaches to decisions; a Chapter VI recommendation is not a decision imposing an obligation to comply with its terms.

Its permanent members lose their vote on it. The proviso to article 27(3) requires a party to a dispute to abstain in decisions under Chapter VI, which is a real restraint precisely because Chapter VI is toothless.

Where Chapter VI ends, Chapter VII begins, and the bridge is the determination under article 39 that there exists a threat to the peace, a breach of the peace or an act of aggression.

A worked example

States AA and BB dispute the ownership of an island. Negotiations fail. State CC, a Member with no interest in the island, raises the matter in the Security Council. State DD, not a Member of the United Nations but a party to a related dispute with State AA, also wishes to raise it. The Council wishes to recommend that the parties go to arbitration, and later, when the dispute persists and troops mass on both sides, to recommend terms.

May State CC raise it? Yes. Article 35(1) permits any Member to bring any dispute, or any situation of the kind in article 34, to the attention of the Council or the Assembly, whether or not it is a party.

May State DD raise its dispute? Only under article 35(2), and only if it accepts in advance, for the purposes of that dispute, the obligations of pacific settlement provided in the Charter.

May the Council investigate? Article 34 permits investigation to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

May it recommend arbitration? Yes, under article 36(1), at any stage. Under article 36(2) it should take into account any procedures the parties have already adopted, and under article 36(3) it should bear in mind that legal disputes should as a general rule go to the International Court.

Are the parties bound to arbitrate? No. Article 36 produces a recommendation, and article 33(1) preserves the parties' choice of peaceful means of their own choice. Arbitration requires their consent.

May the Council recommend terms of settlement? Yes, under article 37(2), if it deems the continuance of the dispute in fact likely to endanger international peace and security, and it must first have been referred under article 37(1) or otherwise be seised. The terms remain a recommendation.

Suppose State AA is a permanent member. Under the proviso to article 27(3) it must abstain in decisions under Chapter VI, so it cannot vote on the article 36 or article 37 resolutions.

Change one fact: the troops cross the border. The Council may then determine under article 39 that there is a breach of the peace, and from that moment it is in Chapter VII, where its measures bind and where State AA may vote.

Distinctions table

What it does NOT mean

Article 2(3) does not require agreement. It requires that means of settlement be peaceful.

The article 33 list is not a hierarchy and not closed, since it ends with other peaceful means of the parties' own choice.

Conciliation is not arbitration. Conciliation proposes; arbitration decides by a binding award.

Mediation is not good offices. A mediator proposes terms; good offices only facilitate contact.

Article 37(2) does not impose a settlement. The Council recommends terms.

A non-Member cannot raise a dispute freely. Article 35(2) requires it to be a party and to accept the Charter's settlement obligations for that dispute.

Limits and criticism

Chapter VI depends on the consent it is designed to secure. A State that refuses every procedure commits no breach so long as it refrains from force, because the duty in article 2(3) is a duty of means.

The dispute and situation distinction is manipulable, and because the duty to abstain in article 27(3) attaches only to a party to a dispute, the classification is made by an organ whose permanent members have an interest in the answer.

Article 37(1) is widely ignored. Parties whose negotiations fail rarely refer the dispute to the Council as the article requires, and no consequence follows.

The Council prefers Chapter VII. Because Chapter VI produces nothing binding and disqualifies interested permanent members from voting, the Council has increasingly framed matters as threats to the peace, which gets it binding powers and full voting rights, and has left Chapter VI comparatively unused.

Quick revision

Article 2(3): settle disputes by peaceful means so that peace, security and justice are not endangered.

Article 33(1), the means, in order: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 33(2): the Council may call upon the parties to use them.

Diplomatic means (negotiation, enquiry, mediation, conciliation) propose; judicial means (arbitration, judicial settlement) bind. Good offices facilitate; mediation proposes.

Article 34: the Council may investigate a dispute or a situation. Article 35: any Member may raise a dispute or situation; a non-Member only a dispute to which it is a party, on accepting the Charter's settlement obligations for it.

Article 36: recommend procedures or methods, taking account of procedures already adopted and of the rule that legal disputes should as a general rule go to the International Court. Article 37: on failure the parties shall refer to the Council, which, if the dispute is in fact likely to endanger peace, may recommend terms of settlement. Article 38: on the request of all the parties, recommendations with a view to pacific settlement.

Article 52(2) and (3): every effort through regional arrangements first, and the Council shall encourage their development.

Nothing in Chapter VI binds, and a party to a dispute must abstain under the proviso to article 27(3).

Test yourself

1. List the means of peaceful settlement in article 33 and classify them.

Article 33(1) lists negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, and other peaceful means of the parties' own choice. Negotiation, enquiry, mediation and conciliation are diplomatic means: they produce proposals or findings which bind nobody until the parties accept them. Arbitration and judicial settlement are judicial means: they produce a determination on the basis of law which binds the parties. Resort to regional agencies may take either form depending on the arrangement. The list is not a hierarchy and it is not closed, and the closing words preserve the principle that no procedure may be imposed on a State which has not consented to it.

2. Distinguish good offices, mediation and conciliation.

In good offices the third party does no more than bring the parties into contact and transmit communications, without proposing any terms of settlement. In mediation the third party takes an active part in the negotiations and proposes terms, though the parties remain free to reject them. In conciliation a commission constituted for the purpose examines the dispute, ascertains the facts and sets out proposals for a settlement in a formal report, which again the parties are free to accept or refuse. All three are diplomatic means, and none produces a binding determination, which is what separates every one of them from arbitration.

3. What may the Security Council do under Chapter VI?

It may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether its continuance is likely to endanger the maintenance of international peace and security, under article 34. It may call upon the parties to settle by the means in article 33, under article 33(2). It may recommend appropriate procedures or methods of adjustment at any stage under article 36, taking into consideration procedures already adopted by the parties and the rule that legal disputes should as a general rule go to the International Court. Where the parties have failed to settle and the Council deems the continuance of the dispute in fact likely to endanger peace, it may recommend such terms of settlement as it considers appropriate under article 37(2). And under article 38, at the request of all the parties, it may make recommendations with a view to pacific settlement. Everything in the chapter is investigation or recommendation.

4. Who may bring a dispute to the Security Council?

By article 35(1) 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 the General Assembly, and it need not be a party to the dispute. By article 35(2) a state which is not a Member may bring to their attention any dispute to which it is a party, but only if it accepts in advance, for the purposes of that dispute, the obligations of pacific settlement provided in the Charter. By article 37(1) the parties to a dispute of the kind described in article 33 shall themselves refer it to the Council if they fail to settle it by the means indicated there. Article 35(3) subjects the Assembly's proceedings on such matters to articles 11 and 12.

5. Why does the distinction between a dispute and a situation matter?

Because of voting. The proviso to article 27(3) requires that in decisions under Chapter VI, and under article 52(3), a party to a dispute shall abstain from voting. If the matter before the Council is characterised as a situation rather than a dispute, no member is a party to it in the sense of the proviso, and a permanent member with an interest may vote and therefore veto. Article 34 uses both terms, permitting the Council to investigate any dispute or any situation which might lead to international friction or give rise to a dispute, and the classification is made by the Council itself, which is why the distinction has been criticised as manipulable.

6. Why has Chapter VI been little used compared with Chapter VII?

Because it produces nothing binding and it disqualifies interested permanent members from voting. Under Chapter VI the Council may only investigate and recommend, and the parties remain free to reject its recommendations, while the proviso to article 27(3) obliges a permanent member which is a party to a dispute to abstain. Under Chapter VII, once the Council determines under article 39 that there exists a threat to the peace, a breach of the peace or an act of aggression, it may take measures that bind all Members under article 25, and no member is obliged to abstain. The incentives therefore push the Council to characterise matters as threats to the peace, and the practical consequence is that Chapter VI has become largely a preliminary to Chapter VII rather than a system of settlement in its own right.