INTRODUCTION
The UN has been
instrumental in ensuring peaceful resolution of any conflict as espoused in its
Charter. The main mandate of the UN is to ensure world peace and in this
endeavor it has achieved a great number of successes. The UN has been able to
bring a range of capacities to bear - from mediation through humanitarian
assistance and peacekeeping to support for elections and reconstruction - all
in a framework of international legitimacy..Since its inception the UN has been
involved in all major issues and decisions of the last 60 years and it is
needed more than ever to solve the complex problems of the21st century. Below
is a discussion of the methods of dispute resolution adopted by the United
Nations.
THE
WORK OF THE UN SECURITY COUNCIL AND THE UN GENERAL ASSEMBLY
Maintaining
of peace and security represents the primary purpose behind the establishment
of the UN.Art 33of the UN Charter obliges the parties to a dispute of
which is likely to endanger the maintenance of international peace and security
to seek resolution by negotiation, enquiry, conciliation, arbitration, judicial
settlement, regional agencies or other peaceful means of their choice.
Art
36of the UN Charter empowers the Security
Council at any stage of the dispute or of any situation of like nature, to
recommend the appropriate procedure or method of adjustment. In so doing he
must take into consideration any procedure for settlement of the dispute which
have already been adopted by the parties. In making recommendation he should
also consider that disputes should be submitted to the ICJ by the parties.
Art
37 obliges the parties to a dispute who
fail to settle the dispute in accordance to ART33 to submit it to the UN
Security council.
The
Security Council has been granted the discretion to determine whether a dispute
submitted to it is of such a nature as it continuance endanger the maintenance
of international peace and security.
It
should be noted that the UNSC may intervene on its own initiative, upon
invitation by a member of the UN, upon being called to attention by the UNGA, upon receiving a complaint from a party
to the dispute.
COURSES
OF ACTION AVAILABLE TO THE UNSC
Call upon the parties to settle the dispute in a
peaceful manner: In 1976 the Security
Council called upon Greece and Turkey
to resume direct negotiation over their difference with regard to Aegean sea
dispute and appealed to them; to do everything within their powers to ensure
this result in mutually acceptable solution.
Recommend appropriate
procedures and methods of adjustment.
The UN Security Council
may set up subsidiary organisation to assist in the settlement of a dispute.In Corfu channel case the Security Council
established a fact finding subcommittee to investigate the evidence relating to
the incident which had already been laid before it.
The Security Council may also set up good offices to
facilitate dispute resolution. In 1947 it set up a good office consisting of
Belgium, Australia and the US, to promote the resumption of negotiation over
the independence of Indonesia and to supervise implementation of ceasefire
between Dutch and Indonesian forces. This was later reconstructed to form the
UN Commission for Indonesia which supervised transition to independence.
UNSC may also appoint individual mediators. In Indian v Pakistan dispute over Kashmir,
the Security Council appointed General McNaughton, to act as a mediator over
the question demilitarisation of the area in 1949. He was later succeeded by
Sir Owen Dixon in 1950.
It
may also refer the dispute to regional organisation or any other method of
settlement by bodies.
In addition it may recommend
terms of settlement as it may consider appropriately. In this regard,UNSC
may call for: Complete or partial interruption of economic relations. In 1991
the UN Security Council called for the economic disruption against Yugoslavia
by its members, disruption of means of transport, disruption of means of
communication or severance of diplomatic relations.
Members are requested to enforce
the recommendations voluntary because they are not binding on them. Often
members approves of the Security Council recommendation.
Dispute resolution
under The UNSC under Chapter VI
The United Nations Charter, Under Chapter VI has made
provisions which aim at a peaceful settlement of disputes. It requires
countries with disputes which are a danger to international peace and could
lead to war to first of all try to seek solutions through peaceful methods
which are provided for under Article 33 of the charter and these include:
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement
and other peaceful means of their own choice.
A failure of these dispute resolution mechanisms will lead
to a referral of the dispute to the UN Security Council. This is provided for
under Article 35 of the charter which provides that any country is
allowed to bring a dispute to the attention of the UN Security Council or the
General Assembly.
This Security Council is authorized to issue recommendations
but does not give it power to make binding resolutions as provided for under
article 38 of the charter as read with article 39 through article 43.
This is in line with Articles 13 of the Covenant of the League of
Nations which provide that:“The Members of the League agree
that whenever any dispute shall arise between them which they recognise to be
suitable for submission to arbitration or judicial settlement and which cannot
be satisfactorily settled by diplomacy, they will submit the whole
subject-matter to arbitration or judicial settlement.”[1]
This means that the states are required to submit
matters to the Council that are not submitted to arbitration. In the United Nations Security Council Resolution 47[2] (India Vs Pakistan) where
several Pakistani tribesmen had entered the region of Kashmir for the purpose
of fighting and the Indians had consequently sent an enormous troops to counter
the Pakistani. The dispute was directed to the UN Security council and after
hearing arguments from both India and Pakistan the Council increased the size
of the Commission established by United Nations Security Council Resolution 39 (and
which had been ignored by Pakistan) to five members, instructed the Commission
to go to the Kashmir and help the governments of India and Pakistan restore
peace and order to the region. The resolution recommended that in order to
ensure the impartiality of the plebiscite Pakistan withdraw all tribesmen and
nationals who entered the region for the purpose of fighting and that India
leave only the minimum number of troops needed to keep civil order.
Similarly, in the United Nations Security Council Resolution 242[3]
(The dispute between Israel, Egypt,Jordan Syria and Lebanon) where the security
council made a resolution with an effect that Israel shall withdraw all
its armed forces from the territories it acquired during the recent conflict
and that all claims or states of belligerency be terminated and respect
for and acknowledgment of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace within
secure and recognized boundaries free from threats or acts of force
UN GENERAL ASSEMBLY.
UNGA
supplement the UNSC in performance of it role. UNGA step in to act when the
UNSC fails to act because to lack of unanimity among the members. In the
dispute, which the Israel had occupied Syrian
Golan Height. Failure of the UNSC to act owing tothe US veto, led to the transfer of the
matter to UNGA under the uniting for peace resolution. On February 6, 1982, the
UNGA adopted a resolution calling it members to apply economic and diplomatic
sanctions against Israel on voluntary basis and as well laid the grounds for
possible expulsion of the Israel from the UN.
MANDATE OF THE UNGA
It may recommend
peaceful adjustment of a situation regardless of its origin.:The General Assembly is to mediate conflict is enshrined in article 10 of the Charterthe General
Assembly is empowered to discuss any question or matter within the scope of the
Charter, InChina
v Korea war the UNGA determined that Chinese intervention in Korea
constituted an act of aggression and called upon the Chinese to cease hostility
and to withdraw from Korea. After the Chinese government failed to comply UNGA
adopted a resolution recommending employment of economic sanctions against Chineese
Government.
The UNGA may establish
subsidiary organs: The bodies may be
purely for fact finding or may also involve solution finding. These organs are
to observe mediation conciliation and good offices. In 1950 the UNGA constituted a good office
committee comprising of representatives of Sweden and Mexico to explore the
possibility of settling the Korean War.
The UNGA may also
appoint a single mediator to help in resolving a dispute:
In 1958 ,UNGA appointed Count Bernadotte as the UN mediator for Palestine war.
He was tasked with arranging for operation continues of basic services and to
secure and to protect the holy places and promoting peaceful adjustment to the
future.
It may hold special meeting to discuss a situation.
A special session was held for disarmament of Palestine.Art. 11of the
Charter says that the General Assembly is specifically empowered to discuss any
question or matter relating to the maintenance of international peace and
security which is brought before it by a State or by the Security Council, and,
except as provided in Art.12may make recommendations to
the State or States concerned or to the Security Council or to both.
The
UNGA may refer a dispute to regional bodies or any other form of settlement.
For example the UN has been working with the AU in maintenance of peace and
security. The UN and the AU peace keepers patrol side by side in Darfur.
MEDIATION
AS A METHOD ADOPTED BY THE UNGA
The main method of resolving disputes which have been
mainly used by the general assembly is mediation
and in the process it has helped develop the field of mediation which has
become fairly crowded.
The concept of mediation has been developed
through a number of resolutions of the general assembly. The Manila Declaration on the
Peaceful Settlement of International Disputes reaffirmed the Charter
Principle that all States shall settle their disputes by peaceful means and
listed, inter-alia, negotiation, mediation and good offices as
means of peaceful settlement. Adopted by consensus on 15 November 1982, the
Declaration underlined the important role of the General Assembly in this field
and stressed the need for it to effectively discharge its
responsibilities.
In July 2011, the General Assembly adopted by
consensus its first resolution specifically on mediation. The landmark
resolution entitled "Strengthening the role of mediation in the
Peaceful Settlement of Disputes, Conflict Prevention and Resolution" recognized
the increased use of mediation, reflected on current challenges facing the
international community in such mediation efforts and called on key actors to
develop their mediation capacities.
The report given by the Secretary General about
challenges of mediation were that there has been an increase in
unconstitutional changes in governments, disputed elections, incomplete
political transitions, social tensions and inter-communal violence. This
resurgence of conflicts has been concentrated in Africa and the Middle East,
but other regions have also been affected.
The general assembly has therefore taken the following
steps to better help resolve the ever changing dynamics of conflict between
nations.
The first step is to optimize the use of mediation which mainly helps resolve conflicts
which are political in nature. They have become prepared operation wise by constituting a standby team of mediation experts who are deployed within 72
hours and are experts in constitution making and political affairs. The team is
comprised of 7 members among whom 3 are women. It also has a roster of about
240 specialized personnel on mediation who are on call.
Capacity
building has also been a major step in the efforts of the general assembly to resolve
disputes. This is done at national and regional levels. There has been
partnering with different sectors in order to enhance mediation. The women have
also been involved in these efforts and although it has been a slow process it
if finally gaining ground.
ROLE OF THE
SECRETARY GENERAL
The UN- charter describes the Secretary General as
Chief Administrative Officer of the organization who shall act in that capacity
and perform such other function as entrusted to him by the Security Council,The
General Assembly,Economic and Social Council and other United Nations organs.
The duties of the Secretary General in dispute resolution falls into two
distinct parts as enlisted below:
1. Functions delegated by the Security Council and
General Assembly underArt 98 of theUN- Charterwhich states, The
Secretary General shall act in that capacity in all meetings of the General
Assembly,SecurityCouncil,Economic and Social Council and the Trusteeship
Council and shall perform such other functions as are entrusted to him by
these organs and will make an annual report to the General Assembly
on the work of the organization.
2. Various
actions undertaken at the request of interested parties or by the Secretary
General's own initiative as provided by Art
99 of the Charterwhich states that the Secretary General may bring to the
attention of the security council any matter which in his opinion may threaten
the maintenance of international peace and security.However the ability of the
secretary general to take action to promote the settlement of disputes on his
own initiative does not guarantee that such intervention will be successful.
Once a dispute arises the secretary general is given
authority to investigate the possibilities of settlement. For example in the
case of Diplomatic Staff in Tehran, in investigating whether the dispute stood
a chance to be resolved the security council called on Iran to release the
personnel of the embassy immediately and requested the secretary general to
lend his good offices for the immediate implementation of the resolution.
Organization and administration of United Nations peace
keeping operations of various kinds through
his own initiative or through the request of the interested parties as governed
by Article 99 of the UN- Charter. E.g. in the effort of resolving the
border dispute between Thailand and Cambodia, the secretary general first
discussed the issue with the parties and later on appointed Ambassador Johan
Beck- Frills of Sweden as his special representative who acted as a mediator
and resumed diplomatic relation between the two states.
He
also has the role of of acting as a mediator or arbitrator between
two parties that are conflicting.He makes use of his independence and
impartiality as the head of globalization to prevent and stop the spread of
conflict.In The Rainbow Warrior Case between France and New Zealand the parties
through negotiation had resolved some disputes between them but two issues
remained unresolved i.e. The future of the French agents imprisoned in New
Zealand and the question of compensation.As an arbitrator the secretary general
resolved these issues to the satisfaction of the parties and the matter was
finally concluded.
The Secretary General is expected to act without fear or
favour but also stick within his constitutional competence.ie. It is his
independence that enabled him to arbitrate in the Rainbow Warrior case between
France and New Zealand.
UNITED NATIONS PEACEKEEPING OPERATIONS
Peacekeeping is the assistance given to host countries to
help them navigate from the difficult path of conflict to peace. It has unique
strengths, including legitimacy, burden sharing, and an ability to deploy and
sustain troops, and police from around the globe, integrating them with
civilian peacekeepers to advance multidimensional mandates.
Today’s
multidimensional peacekeeping operations are called upon not only to maintain
peace and security, but also to facilitate the political process, protect
civilians, assist in the disarmament, demobilization and reintegration of
former combatants; support the organization of elections, protect and promote
human rights and assist in restoring the rule of law.
Peace keeping is one
among a range of activities undertaken by the United Nations to maintain
international peace and security thought the world. Other activities include:
conflict prevention and mediation, peacemaking, peace enforcement and peace building.
Principles of UN Peacekeeping
Consent of the Parties:UN peacekeeping operations are deployed with the
consent of the main parties to the conflict. This requires a commitment by the
parties to a political process. Their acceptance of the peace keeping
operations, provides the UN with the necessary freedom of action, both
political and physical, to carry out its mandated tasks.Universality of consent
becomes less probable in volatile settings, characterized by the presence of
armed groups not under the control of the parties or by the presence of other
spoilers
Impartiality:it is crucial to maintaining the consent and
cooperation of the main parties, but should not be confused with neutrality or
inactivity. UN should be impartial in their dealings with conflicting parties
but not neutral the execution of their mandate.
Non use of force
except in self defense and the defense of the mandate:Force may be used at the tactical level, with the
authorization of the Security Council, if acting in self defense and the
defense of the mandate. Robust
peacekeeping involves the use of force at the tactical level with the
authorization of the Security Council and consent of the host nation and/or the
main parties to the conflict.
By contrast, peace enforcement does not require the
consent of the main parties and may involve the use of military force at the
strategic or international level, which is normally prohibited for member
states under Article 2(4) of the Charter, unless authorized by the Security
Council.
THE ICJ AT A GLANCE
The
International Court of Justice was founded in 1945. The number of cases
referred to it over the past year has risen and it’s no longer unusual to have
more than ten cases in its list. A large number of treaties and declarations
have made indication to the international court to adjudicate where parties
have a dispute.
The International Court
is basically involved with settlement of disputes and adjudication. In order
for a court to decide it has to go through the evidence presented usually
inform of documentary evidence. This includes relevant texts, treaties and
declaration, affidavits, official records of international organizations among
others. Occasionally, documentary evidence may be argued by the oral testimony
of witnesses and experts. The court may also visit the scene. This helps in
increasing the value of evidence presented. In the case of Hungary v Slovakia, which involved construction of a dam, the court
decided to visit the scene.
Evaluating the evidence: This may be a task for the courts because it’s
along and elaborate process. Materials
can be disregarded and be considered as irrelevant to the issue. Narrowing down
the evidence into specific issues is hard in some disputes hence the court has
to grumble with the facts. The
Nicaraguacase Involving border crossing issues and the use of force in
Central America courts had to evaluate a huge amount of confusing evidence. The
difficulty in this case was compounded by USA failure to recognize the
jurisdiction of the court hence refused to take part in the proceedings. This
didn’t prevent the court from deciding the case. Thou there was no evidence
from one side, the court had to decide without prejudice.
Evaluating the
evidence is a matter of deciding and applying the appropriate standard of proof
the court is not explicit. Oil platforms case, the court wasn’t
persuaded by evidence from the USA but didn’t establish why more evidence is
needed.
Statutes and rule
contain a number of provisions which allows the courts to add-on to the
evidence tendered by the parties with its own investigations. It’s entitled to
request the parties to call witnesses Article
30; permits the court to call for assessors to sit during the proceedings
to ensure decisions are well reached at.
Article 50; the court is permitted to do an inquiry or
sought expert opinion. Corfu channel case,
after listening to the conflicting evidence of both parties, the court
appointed a committee of experts consisting of officials. The committee
submitted two reports; the court visited the scene to. The report resented
formed a basis for the judgment.
There are various
ways to speed up cases at the international court.This includes several
changes to the courts rules and practice direction this are methods to simplify
procedure
Extension of the
courts function. Courts obligation to apply the law has not prevented
it from broadening the basis of its decision to take into account cultural
diversity from refining and elaborating law and taking into account different
circumstances.
When considering how
the judicial function may be extended. Courts must respect limitations of
jurisdiction conferred by the treaty and scope of the dispute as defined by the
parties on their pleadings. Kasikili/sedudu
island case; a special agreement asked for a ruling on the boundary between
Botswana and Namibia and the status of the disputed island. In its judgement,
the court answered this question but went ahead to declare that the two
channels around the island the vessels and the nationals were entitled to equal
treatment.
Article 38; the court may at times at the request of the
parties give a decision eqaeque at bono.
This could achieve complete flexibility but at the price of complete
uncertainty as to the criteria of decision. Parties could refer the case to the
court on an agreed basis between the two parties.
The parties could
modify the courts function by indicating the principles it should apply. This
may achieved by framing a question in such always to limit the range of permissible
solutions. Gulf of maincase, the
special agreement asked the court to decide the course of the single maritime
boundary between their respective continental shelf and fisheries zone they
specified the points by which the boundary should run. The court went on to
withdraw the boundary accordingly.
COURT SETTLEMENT OF DISPUTES WITH A POLITICAL ASPECT.
Courts are normally
legal institutes and are not required to decide on political issues. Yet states
are political entities whose disputes consistently have a political dimension.
In such an instance courts are put in a delicate situation. In the Nicaragua case, U.S.A announced it would
not take further part in the case. They stated that the court err red in
finding that they had jurisdiction and secondly, the courts should have held
the case was in admissible on the grounds that the matter raised a political
aspect. The court has sought to apply two principles to see if the political
aspect of disputes has any bearing on its power to adjudicate.
- If a question is referred to a court which can’t be resolved using a legal criteria it has to decline to adjudicate.
- Provided the case raises the aspect of international law, then to fulfill its function the court must give a decision whatever the background or political complication. Aegean Sea Continental Shelf, the dispute was considered to be of a highly political nature. The court had to decide whether the case was more political or legal. It was held, dispute involving two states in respect of delimitation of can hardly fail to have some political aspect. Both countries were claiming sovereignty hence legal rights were at the bottom of the whole dispute. This was a legal dispute.
Article 53, refusal of a party to appear is no obstacle
as long as the party has jurisdiction. The
Nicaragua case diplomatic staff ofTehran displays instance where A.53 was
invoked. A state may be an unwilling
party but go ahead to implement the decision. In The Temple case, the willing party may use the unwillingness of the
other arty to their advantage.
THE SIGNIFICANCE OF THE ICJ
The number of cases
referred for the past years has risen showing the significance of the court to
many states. A large number of treaties and declarations refer disputes to the
court. The increase in reliance of the court comes with challenges and
advantages.
Advantages
- Relieves countries the task of setting up new tribunals each time there is a dispute. This saves time, effort and resource in creating tribunals.
- A permanent court is more likely to establish a consistent jurisprudence and hence contributing in the growth and progress of law.
- Despite the existence of so many tribunals, the international court is the only court with general competence in the sense that, disputes relating to any aspect of international law.
Challenges
o There is reluctance of
states to surrender control over their disputes.
o There is unwillingness
to trust the persons who compose the court
o Political matters
can’t be adjudicated upon by courts. In this respect most disputes are of a political
nature.
o Parties are at liberty
to discontinue with the proceedings, at any time and this happens when a
settlement out of court has been reached the court ca not question the decision
of the parties to discontinue the proceedings.
o Parties feel that the
international courts supplies inadequate answers to current issues.
ARE THE DECISIONS OF THE POLITICAL ORGANS OPEN TO A
LEGAL CHALLENGE?
The answer to the
question whether the decisions of the political organs are open to legal
challenge is not a straightforward one. Member states do not have the right to
bring proceedings or challenge directly the decisions of the UN. Furthermore,
the expectation that the Council will function under the Rule of Law is not
reinforced by the normal legal safeguards one would expect to find surrounding
the exercise of executive powers in a democratic, constitutional system. For
example, there is no judicial review of the Security Council’s decisions and
provision for third-party settlement of disputes between the Council and a
member. The Council could agree to arbitration with a member, but has never yet
done so, and even the power to request an Advisory opinion has been used only
once by the Council in nearly fifty years in the Advisory Opinion on the Legal consequences for states for the continued
presence of South Africa in South West Africa.
The question can
therefore be analyzed in two ways:
- Security Council Decisions are Conclusive and irrebuttable as regards the measures approved or condemned by those decisions.Under Article 24 (1) of the UN Charter, the Security Council is endowed with the primary responsibility regarding International peace and security.Art 25, member states agree to ‘accept and carry out the decisions of the Security Council.’ The rationale of this view is that it would be extremely difficult for the Security Council to discharge its functions if the member states were free to challenge those decisions and decline to implement them.
Limitation
of the view
A member state is
entitled to assume that in taking any decision, the Security Council will
uphold international law and safeguard the legal rights of States. The Preamble to the Charter recited the
intention 'to establish conditions under which justice and respect for the
obligations arising from treaties and other sources of international law can be
maintained'.
Article 1(1) states the purpose of settling disputes 'in
conformity with the principles of justice and international law’ and Article 24(2) commits the Council to
discharging its duties in accordance with that purpose. In Article 36(3) the
Council is exhorted to encourage States to refer legal disputes to the Court.
This implies that legal disputes are not the business of the Council. Article 40 provides the power to order
provisional measures. This power is to be exercised 'without prejudice to the
rights, claims or position of the parties concerned and the obligation of
members to accept the council’s decisions under Article 25 is limited to
decisions ‘in accordance with the
present Charter.’
- Security Council Decisions are prima facie to be presumed valid and binding but their binding force may be rebutted on proof that they are ultra vires or contrary to the UN Charter.
There is some judicial
support for the view that the acts of the Council enjoy only a prima facie validity,
a presumption of legality that can be challenged in the final analysis. In the Expenses case the Court said…When the Organization takes action which
warrants the assertion that it was appropriate for the fulfillment of one of
the stated purposes of the United Nations, the presumption is that such action
is not ultra vires the
Organization.
In the Lockerbie cases
the court said, “... the Court... considers that prima facie this
obligation [i.e. Article 25] extends to the decision contained in resolution
748 (1992)...
Thus, despite the
Court's apparent acceptance of the binding force of Security Council resolution
748 (1992) there is some evidence that, at the merits stage, the Court might
reserve the right to question its validity.
The Lockerbie Cases
before the International Court of Justice1
On 3 March 1992, Libya filed two separate applications
instituting proceedings against the US and the UK Governments, in respect of a
dispute over the interpretation of the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23
September 1971. This filing followed the explosion of a bomb in the Pan Am
Flight 103 over the town of Lockerbie, Scotland, on 21 December 1988, which
killed all 259 passengers and crew, as well as eleven residents of the town of
Lockerbie. The Lord Advocate of Scotland and a grand Jury of the US
respectively accused two Libyan citizens, Abdelbaset Ali Mohmed Al Megrahi and
Ali Amin KhalifaFhimah, of this bombing. Consequently, the UK and US
Governments requested Libya to extradite the accused so that they could be
prosecuted in Scotland or in the US. The United Nations Security Council
adopted three resolutions (Resolutions 731, 748 in 1992 and Resolution 883 in
1993), ordering Libya to “give a full and efficient answer” to the demands made
by UK and the US “in order to contribute to the clearance of international
terrorism”. Before the ICJ, Libya claimed that it had not signed any
extradition treaty with the UK and the US, and that, subsequently and in
conformity with the 1971 Montreal Convention (Articles 5 and 7), which requires
a State to establish its own jurisdiction over alleged offenders present in its
territory in the event of their non-extradition, only Libyan authorities had
jurisdiction to try their own citizens. When bringing its claim in front of the
ICJ, Libya pointed out that the alleged acts constituted an offence with the
meaning of Article 1 of the Montreal Convention. Thus, it asserted that the ICJ
had jurisdiction to hear disputes between Libya and the respondent states
concerning the interpretation or application of the provisions of the
Convention.
On 27 February 1998, the ICJ, the main judicial body of the
United Nations declared that it had jurisdiction on the basis of Article 14,
paragraph 1 of the Montreal Convention, to hear the disputes between Libya and
the respondent states concerning the interpretation of the Convention in
relation to the incident that occurred in Lockerbie. It further declared the
claims admissible. Libya had agreed that the two accused, be tried by five
Scottish Judges sitting in a neutral Court, in the Netherlands. Abdelbaset Ali
Mohmed Al Megrahi was found guilty on 31 January 2001. He was convicted of 270
counts of murder for his part in the bombing of Pan Am Flight 103 and sentenced
to life imprisonment. His co-accused, Al
Amin KhalifaFhimah was found not guilty and released.
Therefore in conclusion, whereas it is clear that the Court
is entitled to proceed with a case which is also being considered by the
political organs and, as indicated earlier, it has made this point many times,
its power to question decisions made by such organs raises constitutional
issues going to the very heart of the international system which are still
controversial.
Procedures for dispute settlement in International Organisations with
specialized activities under the United Nations
The general procedure is that if a dispute
between member states is not settled by negotiation, it is referred to one of
the main organs of the organisation for settlement. If that organ fails to
settle, the dispute is further referred to the International Court of Justice
or to an arbitral tribunal, unless otherwise agreed.
Referral to the ICJ has not gained notoriety
because the scope of activities of these specialized agencies does not give
rise to serious disputes between them and their members. Thus the bulk of the
disputes arising are settled through negotiation. Most of the disputes are in
relation to the interpretation and application of the constitutive instruments
or the various constitutions and as such there are provisions on the procedures
to be followed in such instances as illustrated below.
- Article XIV paragraph 2 of the United Nations Educational Scientific and Cultural Organization (UNESCO) constitution provides that any question or dispute concerning the interpretation of the constitution shall be referred for determination to the ICJ or to an arbitral tribunal as the General Conference may determine under its rules of procedure.
- Article 75 of the constitution to the World Health Organisation (WHO) gives resort to the ICJ in case of any dispute. It does not provide for arbitration as an option.
- Article 66 and 65 of the International Maritime Organisation (IMO) constitution also provides the option of referral of disputes to the ICJ but only for the court’s advisory opinions.
Apart from such
provisions, dispute settlement procedures and methods are also incorporated in
agreements concluded under the auspices of these specialized and organisations.
For example;
Under the Food and
Agricultural Organisation (FAO) agreements, there’s provision for conciliation,
arbitration or referral to the ICJ. Other agreements provide for the
appointment of a Committee of Experts by the Director General of FAO, for
purposes of giving recommendations which are not binding.
UNESCO Convention
against Discrimination in Education is supplemented by a protocol instituting a
conciliation and Good Offices Commission to seek resolutions of disputes that
may arise between parties to that convention.
The UN and Regional
Arrangements or Agencies
An important
question arises concerning the harmonization of various provisions of the
Chatter of the UN dealing with the respective competence of regional agencies
and arrangements on the one hand, and the competence of the UN itself on the
other hand.[4]
The problem arises
where a state member of a regional organisation consistently observes the ‘try
first’ principle, that is, trying out the machinery of the regional body
concerned in dispute settlement first, while the other disputant state insists
that the dispute be handled by the United Nations Security Council directly.
This was the case in the 1954 Guatemala
Situation. In that year, the United States invaded Guatemala by deploying
the CIA in a bid to overthrow Arbenz’s administration, which was communist in
nature. It succeeded. Guatemala took its complaint before the Security Council
while the USA insisted on the problem being handled by the Organisation of
American States (OAS). The Security Council decided not to take up the matter
but have it heard in the first instance by the OAS.
A practice is
evolving in a bid to reconcile these ‘regional’ and ‘universal’ approaches,
which has worked well where the parties have agreed to submit their dispute to
a regional agency, and have decided to remain so committed throughout the
various stages of the settlement process.
The Security Council
has also set a practice in situations where a party to a local dispute has
reservations about the regional forum and insists on having direct access to
the Council. It inscribes the matter in its agenda. Thereafter the Council
consults with both parties and on establishing that the dispute has not yet
become sufficiently acute to endanger peace and security, it refers the dispute
to a regional forum as provided under Article 52, paragraph 2 and 3 of the
Charter. But it keeps the matter in its agenda under review. This system has
proved advantageous in that if the dispute evolves to one actually endangering
international peace and security, or where one of the parties to the dispute
deems the regional procedure to have failed, the Council resumes immediately
considering the dispute without having to incorporate the matter in its agenda
afresh.
This can be
illustrated by the 1960 Cuba Complaint[5].
The complaint concerned the Cuban revolution in 1959 which led to a
deteriorating relationship between itself and the US. The US had an interest in
purchasing Cuba from the Spanish Empire. As a result the US maintained an
embargo which made it illegal for US corporations to do business in Cuba. The
Security Council in passing its resolution acknowledged that there was an
ongoing debate inside the OAS and thus decided to delay any actions on the
matter until it received a report from the OAS. It went ahead and urged all
states to refrain from any actions that would have increased tension between
the two states.
Practice over the years has shown that despite
the Charter being cited as the basis for the interaction between the UN and
regional agencies, this has not been the case in recognising or authorizing
activities of these organisations.[6]
- In 2003, the African Union deployed military observers to Burundi but the Council did not adopt a resolution as required under Chapter VII of the Charter.
- Also in 2004, the Council welcomed rather than authorised the AU deployment of observers with a peace-keeping mission to the Darfur region in Sudan.
In conclusion, there is an increasingly
encouraging involvement of regional organisations and the UN for the purpose of
maintaining peace and security as illustrated below.
Ø The North Atlantic Treaty Organisation (NATO)
and the UN have been involved jointly in peace efforts in the Kosovo.
Afghanistan and Iraq.
Ø Economic Community for West African States
(ECOWAS) and the UN have played a significant role in Liberia where ECOWAS
created a military observer group in 1990 for peace maintenance.
Ø The AU has been involved in Chad and also in
Darfur. In that regard, the Security Council passed a resolution[7]
which mandated innovative and substantive UN assistance to the AU mission in
Sudan (AMIS).
THE EFFECTIVENESS OF THE UNITED NATIONS
The extent to which the Organization is regularly
involved in international disputes, and The degree to which, in cases in which
the United Nations is involved, its participation is successful in the sense of
achieving or encouraging a settlement are the major determinants of the
effectiveness of the UN.
It is important to note that many disputes are never
considered by the United Nations because no incentive to raise them is present,
while of those which are considered, the extent, and ultimately the
effectiveness, of institutional action is likely to depend very much on the
nature of the dispute and the circumstances in which the reference to the UN is
made.
These include;
- Confrontations involving the Permanent Members of the Security Council are the clearest example of disputes in which the United Nations is likely to play at best a marginal role e.g. the dispute over Berlin between 1958-1961
- Disputes in which major states consider that their interests are directly involved and unlikely to be furthered by United Nations action e.g. Thus while the Soviet interventions in Hungary in 1956 and in Czechoslovakia in 1968 were all raised in the United Nations, there was really no possibility of the Organization’s becoming deeply involved in these issues.
THE FAILURES OF THE UN IN DISPUTE SETTLEMENT
- Tension between East and West effectively wrecked the United Nations as a collective security system. Consequently most of the sanctioning provisions of Chapter VII of the UN Charter proved to be a dead letter during the Cold War.
o The disregard of Security Council resolutions in the
diplomatic hostages crisis, the Iran–Iraq war, the Falklands dispute and other
crises, showed that the force of collective opinion is hardly an adequate
substitute.
- On some issues, moreover, dissension within the United Nations created a situation in which steps towards the settlement of a dispute had to be taken outside the Organization e.g. The Camp David Agreements, for example, were concluded by Israel, Egypt and the United States without any reference to the Security Council. Moreover, in 1982, in a development of considerable significance, these Agreements led to the creation of a 3,500-strong peace-keeping force, the Multinational Force and Observers (MFO), again outside the United Nations.
o The failure of
peacekeeping operations in Rwanda, Somalia, Bosnia and now Darfur(Sudan), show
how difficult it is to stop ethnic violence and to mediate in a very difficult
andhopeless situation
THE
ACCOMPLISHMENTS OF THE UN IN DISPUTE SETTLEMENT
The optimistic observers of the UN see a glass more
than half full, with far greater potential for the Organization if only its
member States would utilize the processes contemplated in the Charter. Chapter
VI offers the non-forcible means to this end; lack of coercive measures does
not diminish the UN's effectiveness.The optimists typically cite two categories
of UN accomplishments –
A history
of UN diplomatic interventions that have defused tensions in certain situations
this typically consisting of a litany of missions by
the Secretary-General or his Special Representatives that aim to demonstrate
how his maneuvering avoided bloodshed and led to an eventual settlement.
The results
of some UN peacekeeping operations such as the results of peace-keeping in
freezing and preventing the escalation of conflicts in Kashmir, Cyprus, the
Golan Heights, and elsewhere.
The reactivation of Chapter VII of the UN
Charter means that for the first
time the use of economic and military coercion has become a real option. Both
were used effectively when Iraq invaded Kuwait.
The recent
tendency to combine efforts with the Regional
Organizations e.g. thus in
Haiti economic sanctions were imposed by the Security Council following earlier
action by the OAS, in Bosnia, NATO was used to supply military support.
IN
CONCLUSION: In order
to become more effective in peacekeeping, the UN needs to take into
consideration the following issues.The
UN can be said to be only a diplomatic international forum in which persuasion,
argument, negotiation and a search for consensus are the means available for
handling international disputes. In addition:
o The UN has to reduce
the stockpile of military hardware, nuclear weapons and small arms and
resources devoted to conflicts. Under article 26 of the UN Charter the
establishment and maintenance of international peace and security with the
least diversion for armaments of the world’s human and economic resources is
paramount.
o Furthermore the UN
has to reassert the principles of the Charter of the United Nations which calls
for the peaceful resolution of conflicts.
REFERENCES
o
Bowett, D.W. "Legal
aspects." In International Disputes, by C.M.H WALDOCK, Chapter 3.
London, 1972.
o
Merrills,
J.G. International Dispute Settlement 4th Edition. New York: Cambridge
University Press, 2005.
o
—.
"The Charter of the United Nations,." San Francisco, October 24th,
1945.
o
Ratner,
Steven R. Image and Reality of the UN Peaceful settlement of disputes,
1995.
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