THEA FAYE B.

CAHUYA

1. War and other International Trade/Economic Disputes: Settlement

Mechanism under International Law
I. An international or territorial dispute is a disagreement over the rights of
two or more states with regard to control of a given piece of land. International
disputes find their roots in a number of issues including natural resources, ethnic
or religious demography, and even ambiguous treaties. When left unchecked,
international disputes have caused criminal actions, terrorism, wars, and even
genocide—all in the name of reasserting rights over territory. The UN Charter in
no way allows states to use force to annex territory from any other state: “All
Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.”
‘International’ disputes, however, are not restricted to those between states: also
applicable are those disputes involving other entities, including international
organizations, ‘de facto regimes, ethnic communities enjoying a particular kind of
status under international law, national liberation movements,’ and ‘peoples who
are holders of the right of self-determination.’
A dispute is legal if it involves justiciable rights based on law or fact
susceptible of adjudication by a judicial or arbitral tribunal. It is political if it
cannot be decided by legal processes on the basis of the substantive rules of
international law because the differences of the parties spring from animosities in
their mutual attitudes rather than antagonism of legal rights. The solution to such
a dispute lies not in the councils of the courts but in the corridors of diplomacy.

What is a war? A war is typically fought by a country or group of countries

against an opposing country with the aim of achieving an objective through the
use of force. Wars can also be fought within a country in the form of a civil or
revolutionary war.

According to the Oxford English Dictionary, "war" is defined as “A state of

armed conflict between different countries or different groups within a country. A
state of competition or hostility between different people or groups. A sustained
campaign against an undesirable situation or activity. Wars have been a part of
human history for thousands of years, and have become increasingly destructive
as industrialization and technology have advanced.

There is rarely one single, clear cause of conflict and, ultimately, war. The
causes of a war are usually numerous, and several reasons for a conflict can be
intertwined in a complicated way. Many theories have been put forth over the
years as to why wars happen, and some of the greatest minds have offered their
take on the subject. Some of the main reasons of war are economic gain,
territorial gain, religion, nationalism, revenge, civil war, revolutionary war, and
defensive war.

II.  Historically, 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 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.  Furthermore, there are regional agreements, such as the 1948
American Treaty on Pacific Settlement (Bogotá Pact), the 1957 European
Convention for the Peaceful Settlement of Disputes, 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.
 The diplomatic methods of dispute settlement are negotiation, enquiry,
mediation, conciliation, and good offices. “Negotiation” is the oldest, most
common, and the simplest methods of settling international disputes.  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.

Enquiry is an investigation of the points in question, on the theory that

their elucidation will contribute to the solution of the differences between the
parties. The findings of the party making the inquiry are not conclusive upon the
disputing states but they nevertheless may exert a strong moral influence in the
settlement of the conflict.

Mediation, 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.

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.

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 or ad hoc basis; 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 mediator’s proposal is not accepted,
he can present new proposals, whereas a conciliator usually present a single
report.   

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.

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) or ad 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.

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 include ad
hoc tribunals, such as the United Nations Tribunal in Libya.

Institutional methods of dispute settlement involve the resort to

international organizations by the parties’ own volition or taken by the body itself
as its own instance if allowed by agreement of the members 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.

On the other hand, disputes may be settled through retorsion, reprisals or

intervention. Such methods are hostile which could result to war. Retorsion is any
action taken in retaliation where the acts complaint of do not constitute a legal
ground of offense but are rather in the nature of unfriendly acts but indirectly
hurtful to other states. The act of retaliation is also unfriendly but not illegal and
may be in kind or of a different nature than the act that provoked it. Example of it
is severance of diplomatic or consular relations. Reprisals are arts of self-help on
the part of the injured state, responding after an unsatisfied demand to an act
contrary to international law on the part of the offending state. Example are
display of force, occupation of territory, embargo and pacific blockade.

III. Some of the pertinent issues relative to war and settlement of disputes are
the following:

a. Whether or not pacific dispute settlement used singly such as

negotiation can effectively settle a dispute among nations considering
their differences.

b. Whether or not reprisals and counter-measures can legitimately be

used in instances where the dispute arose due to an unlawful act by
one party.

c. Whether or not Security Council has the power to settle disputes not
affecting international peace and security.

d. Whether or not the Tribunal should not have required the Philippines to
engage in negotiations as a precondition for it to proceed to deal with
the dispute on merits in the case of Philippines v. China.
 e. Whether or not a general principle of non-intervention and a prohibition
of the use of force existed under customary international law (to which
its jurisdiction was limited).

IV. On the first issue, international law set forth other methods of pacific
settlement of dispute wherein it could be used to fill up or support the lapses of
the other methods. For example, negotiation alone do not always succeed to in
reaching to solutions. 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. In case of
negotiation, it can go hand in hand with enquiry for a successful settlement.

On the second issue, as I have read in the Customary International

Humanitarian Law, reprisals and counter-measures can be lawfully used in
instances where the dispute arose due to an unlawful act by one party provided
that it shall apply the principle of proportionality. It is intended to act as a brake
on escalating cycles of transactional violence. Not all proportionality discourse
arises in this way. Proportionality also enters into the legal discourse between
coastal states allocating their fair shares of territorial seas, exclusive economic
zones, and oceanic and subsoil resources. It arises when a person convicted of
an international crime asserts the ensuing sentence to be disproportionate.

On the third issue, there is one case wherein a climate change is regard
as a threat to international peace and security. The United Nations Security
Council has held two debates on climate change. The first in April 2007 was an
open debate about the relationship between energy, climate, and security under
the chairmanship of the United Kingdom. The second debate was held in July
2011 under German leadership. Both debates revealed contrasting opinions and
the Council did not pass a resolution on either occasion. Nevertheless, a
presidential statement is issued by the Security Council in 2011 recognizing that
climate change may aggravate certain existing threats to international peace and
security. The statement also expressed concern about the possible security
implications for states losing territory to a rising sea level. Thus, the Security
Council adopts presidential statement by consensus. in this case, I conclude that
Security Council can only settle disputes affecting international peace and
security.

On the fourth issue, the Tribunal spent considerable effort as part of its
duty to satisfy itself that there is a “dispute” between the Philippines and China.
In this connection, it concluded, among other things, that the Philippines made
the necessary effort to “exchange views” on the means of settling the dispute
with China as required under article 283 of the Convention. But it also admitted
that “the Parties’ many discussions and consultations did not address all of the
matters in dispute with the same level of specificity that is now reflected in the
Philippines’ Submissions”. As the Tribunal so rightly emphasized, resolving the
issues of sovereignty, historic titles and rights and the maritime delimitation
require direct negotiations. Only such negotiations would have given both the
Philippines and China the opportunity they needed to appreciate their respective
claims in concrete terms and to engage in right earnest to resolve them. Unless
some rounds of negotiations took place, no party to the dispute could have
legitimately claimed and established in good faith that it exhausted all the
possibilities for a negotiated settlement of the dispute

On the fifth issue, in the case of NICARAGUA VS UNITED STATES, the

Court concluded that principles such as those of the non-use of force, non-
intervention, respect for the independence and territorial integrity of States, right
of collective self defense and the freedom of navigation, continue to be binding
as part of customary international law, “despite the operation of provisions of
conventional law in which they have been incorporated. The Court states that
“The significance for the Court of cases of State conduct prima facie inconsistent
with the principle of non-intervention lies in the nature of the ground offered as
justification. Reliance by a State on a novel right or an unprecedented exception
to the principle might, if shared in principle by other States, tend towards a
modification of customary international law. In fact, however the Court finds that
States have not justified their conduct by reference to a new right of intervention
or a new exception to the principle of its prohibition. The United States authorities
have on some occasions clearly stated their grounds for intervening in the affairs
of a foreign State for reasons connected with, for example, the domestic policies
of that country, its ideology, the level of its armaments, or the direction of its
foreign policy. But these were statements of international policy, and not an
assertion of rules of existing international law.”

V. No, engagement in war is not a relevant action under the present norms of
international law. The United Nations came into being in 1945, following the
devastation of the Second World War, with one central mission: the maintenance
of international peace and security. The UN does this by working to prevent
conflict; helping parties in conflict make peace; peacekeeping; and creating the
conditions to allow peace to hold and flourish. These activities often overlap and
should reinforce one another, to be effective. The UN Security Council has the
primary responsibility for international peace and security. The General Assembly
and the Secretary-General play major, important, and complementary roles,
along with other UN offices and bodies. Such international laws are established
for the purpose to avoid war and violence.

Even though there were some lapses in the methods of settling disputes,
there are international courts and tribunals who can fill such gaps. The Court’s
role is to settle, in accordance with international law, legal disputes submitted to it
 by States and to give advisory opinions on legal questions referred to it by
authorized United Nations organs and specialized agencies. The Court decides
disputes between countries, based on the voluntary participation of the States
concerned. If a State agrees to participate in a proceeding, it is obligated to
comply with the Court’s decision. Such methods of dispute are under the
adjudicative and institutional method of dispute settlement. 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. On the other hand, in the diplomatic methods of dispute
settlement, the parties to them are under no legal obligation to accept the
proposals of settlement suggested to them. Their proceedings cannot be started
and be effective without the consent, cooperation, and goodwill of the
disputants.  The proposed settlement is no more than a recommendation with
any binding force upon the disputants.

VI. Having International Law that could protect and maintain the peace and
security among nations, people could freely and safely live a life that they want
without any worries that any misfortune will befall upon them. The law aims to
prioritize the rights and welfare of the people.

2. The Security Council vis-à-vis the other United Nations Institutions

The United Nations Security Council (UNSC) is, in many ways, a unique
institution. It exercises legislative, judicial and executive powers; operates with
few (if any) legally binding checks and balances and has even been described as
being ‘unbound by law’. The Council has broad powers to maintain international
peace and security, most notably under Chapter VII of the UN Charter, and its
decisions are binding on UN members.
The UNSC occupies a singular position in international law being the only
institution that can (i) authorize the use of force (outside of measures taken in
self-defense) and (ii) make determinations that are binding on states regardless
of their direct consent or other treaty obligations. Its creation embodied the
principle of collective security, in an attempt to avoid future conflicts at the scale
of World War II, by co-opting the ‘Great Powers’ and the ability of states to wage
war within the structures of the UN Charter. On the other hand, other United
Nations’ institutions are breakdown into specialized agencies and related
organizations. Specialized Agencies provide for international action to promote
economic and social progress, report to the Economic and Social Council. These
specialized agencies work in the economic, social, scientific and technical fields
and possess their own legislative and executive bodies, their own secretariats
and their own budgets. Example of which are International Labour Organization,
World Health Organization, Universal Postal Union and etc. Related
Organizations are those which have cooperation agreements with the United
Nations, with many points in common with that of Specialized Agencies, but they
do not refer to Article 57 and 63 of the United Nations Charter, relevant to
Specialized Agencies. Nonetheless, these organizations are part and parcel of
the work of CEB. They include International Organization for Migration, World
Trade Organization, International Atomic Energy Agency and etc.
Is there a way to restrain Security Council power? Article 24(2) is the
starting point of much analysis of restraints on the UNSC. These restraints
usually attempt to ascertain what legal rules apply to the Council and then to
determine how the validity of Council conduct could be adjudicated in light of
those rules. For example, David Schweigman reads Article 24(2) as requiring
compliance with norms such as human rights, self-determination and the
principle of good faith. Similarly, Erika de Wet recognizes the Council’s broad
powers but argues that it is still bound by ius cogens and the purposes and
principles of the UN. While there can be little doubt that the UN Charter itself
creates a bare framework of the limits of Council action, it also delivers ‘scant
clarity concerning the specific contours of those limits. The UN Charter’s text is
notoriously vague, making it difficult to use it to construct a meaningful regime to
constrain the Council.
The other main avenue to ground legal limits to UNSC action is ius
cogens. As Alexander Orakhelashvili has argued, as states can never derogate
from the peremptory norms of international law, this limitation must also carry
over to institutions created by states. Thus, it is argued, all international
organizations are limited by ius cogens norms such as the prohibition on the use
of force and certain fundamental universal rights. While, again, it seems clear
that the Council cannot act contrary to ius cogens, ascertaining which norms fall
within this rarefied category is difficult. Even if a hard core of peremptory norms
were established, the extent of such a legal regime would be limited or at least
contested. Thus, the project of binding the Council with hard legal rules is still
very much in nascent form. While these attempts have real merit and potential, it
may be some time before they are sufficiently sophisticated to realize their theory
in practice.
Even if the limits of Council action were clear, the more difficult question
then becomes what body could adjudicate on the validity of Council action. As
Jeremy Farrall notes, the ‘key question…is how to ensure that the Security
Council observes and respects those legal limits. To many scholars, the ‘favored
mechanism is judicial review’. However, a proposal for institutionalized judicial
review of the Council – for example, by the ICJ – was rejected during UN Charter
negotiations. Thus, attempts to subject the Council to judicial review face
jurisdictional issues, particularly if the decision is to bind the Council. The ICJ is
still the most promising candidate for institutionalized judicial review of the
Council; however, its contentious jurisdiction could, at best, decide upon the
legality of a Council action as it applied between states party to a dispute. Its
advisory opinions, though they carry substantial weight, would not be binding,
and it is politically difficult to have such opinions requested from the ICJ.
Domestic and regional courts have become more emboldened to review Council
resolutions or, at least, their implementation by states and bodies such as the
European Union (EU). Thus, they may also provide a judicial forum for review.
However, again, jurisdictional issues here mean that the decisions of these
municipal courts cannot bind the Council. Further, the fragmented nature of
municipal oversight and rules being applied may also prove problematic if such
courts become more interventionist in their review of Council action. Finally, in
addition to courts, states themselves may rely on legal arguments to justify non-
compliance with Council decisions; although whether or not they would be legally
justified in doing so is controversial.
This summary of the dominant approaches to restraining the UNSC is
critical; however, the overall project is institutionally helpful and will likely bear
fruit. Indeed, legal language already plays a role in current debates over the
legitimacy of Council action and is an important factor in Council decision
making. At the same time, however, history shows an aversion by states to
institutionalizing the legal oversight of the Council. Further, attempts at reform
face stiff opposition. Thus, while accepting the value of legal rules to restrain the
Council, this article suggests that (at least in relation to its Chapter VII powers),
the Council is better viewed at present as being primarily restrained by non-legal
mechanisms.