Page 175 - Law of Peace, Volume ,

Pam 27-161-1

To maintain international peace and security, and to that Article 34
end [I] to take effective collective measures for the pre- The Security Council may investigate any dispute, or any
vention and removal of threats to the peace, and for the situation which might lead to intemational friction or give
suppression of acts of aggression or other breaches of the rise to a dispute, in order to determine whether the con-
peace and [2] to bring about by peaceful means, and in tinuance of the dispute or situation is likely to endanger
conformity with the principles of justice and international the maintenance of international peace and security.
law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace. Article 35
1. Any Member of the United Nations may bring any dis-
Article 1, paragraph 1 outlines two methods for the main- pute, or any situation of the nature referred to in Article
tenance of peace, the fust is by collective measures when 34, to the attention of the Security Council or of the
there is a threat to the peace, breach of the peace, or act of General Assembly. I
aggression; the second is by peaceful settlement of dis- 2. ....
putes. Chapter VI (arts. 33-38) contains the pacific settle- 3. The proceedings of the General Assembly in respect of
ment provisions of the Charter. These will be discussed matters brought to its attention under this Article will be
before the collective peace enforcement measures are ex- subject to the provisions of Articles 11 and 12.
amined.
The Security Council affiatively enters the dispute in
a. The Pacific Settlement of Disputes. Chapter VI of the articles 34-38. In Article 34 the Security Council may, on
Charter (Arts. 33-38) outlines the procedure for the its own, conduct an investigation to determine if a "dis-
pacific settlement of disputes. This procedure is asfollows:
pute" or a "situation" is one likely to endanger the main-
Article 33 tenance of international peace and security. Article 35,
1. The parties to any dispute, the continuance of which is paragraph 1, fimishes another means of getting a "dis-
likely to endanger the maintenance of international peace pute" or "situation" before the General Assembly or the
and security, shall, fust of all, seek a solution by negotia- Security Council. Article 35, paragraph 3, was inserted in
tion, enquiry, mediation, conciliation, arbitration, judicial order to keep distinct the separate roles of the General As-
settlement, resort to regional agencies or arrangements, sembly and the Security Council. Article 11 permits the
or other peaceful means of their own choice. General Assembly to discuss matters relating to interna-
2. The Security Council shall, when it deems necessary, tional peace and security and to make recommendations
call upon the parties to settle their disputes by such means. with regard to any such question to the state or states con-
cerned or to the Security Council. Article 12 prohibits the
Article 33 calls upon the parties themselves to seek a solu-
tion to any dispute "the continuance of which is likely to General Assembly from recommending a solution to a
endanger the maintenance of intemational 'peace and dispute which the Security Council is then considering,
security." This is the key to the procedure of peaceful set- unless the Security Council requests such a recornmenda-
tlement. 30 The primary duty is placed upon the parties tion.
themselves. The means offered are many. The first listed Articles 36, 37, and 38 contain the positive peacemaker
is negotiation. Negotiation is the direct intercourse be- rules that can be exercised by the Security Council if such
tween two or more states initiated and directed for the a "dispute" or "situation" exists. Under article 36 it may
purpose of either effecting an understanding between recommend the procedure for settlement, be it arbitra-
them or settling a dispute. Enquiry is a method of deter- tion, conciliation, or adjudication. For example, in the
mining the facts of a disputed incident, and of itself is not 1946 Corfu Channel dispute between Albania and the
meant to fm any responsibility that may result from the United Kingdom, the Security Council recommended
facts. Mediation is the intervention of a third sovereign that the parties go before the International Court of
who offers his objective solution in an endeavor to bring Justice. 31 If the parties themselves cannot settle their dis-
the two disputing states to an understanding. Conciliation putes they are obliged to refer it to the Security Council
differs from mediation in the fact that the solution is who may, under article 37, either recommend a
recommended by an impartial body of experts. It is an im- procedure for settlement or recommend the actual terms
provement on both enquiry and mediation. Enquiry alone of settlement. Article 38 permits the Security Council to
offers no solution. Mediation by a sovereign may be in- make recommendations to the parties at any stage of a dis-
fluenced by national self-interest. Conciliation also has pute if the parties so request. Article 36 places the Security
some advantages over arbitration. Its solution is only a Council in the role of a mediator. In articles 37 and 38, the
recommendation and therefore not binding as is an ar- Security Council is given the authority of a conciliator.
bitrator's award. In addition the conciliators are not bound Mediation and conciliation, the two nonjudicial means of
by the narrow legal limits that usually are made the settling disputes, are therefore put at the disposal of the
authority of an arbitrator. Security Council.

30. Eagleton, International Government 499 (3d ed. 1957). 31. Id. at 360, 506, 507.