REDUCING INTERNATIONAL TENSION THROUGH THE
SETTLEMENT OF PERIPHERAL CONFLICTS

by

Daniel G. Partan

World Rule of Law Center

[Note: This preliminary draft is for private circulation and may not be quoted.]

In a world in which the cold war and confrontations between the major powers are the most dangerous sources of international tension, is it possible for the major powers to adopt a common approach towards the settlement of conflicts involving minor powers on the periphery of the cold war?

Local conflicts, even when they do not directly involve the major powers, contribute to international tension. To use the language of the Charter of the United Nations, even relatively minor local conflicts are detrimental to the development of "friendly relations among nations" and may constitute "threats to the peace" or even lead to local "breaches of the peace," thus becoming matters of concern to all Members of the United Nations even if the great powers do not become involved. For these reasons alone, all local disputes should be "settled by peaceful means," as set forth in the Charter of the United Nations, "in such a manner that international peace and security, and justice, are not endangered." But beyond that basic Charter principle it must also be recognized that in today's world every continuing dispute and unresolved

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situation, however local, has within it the seeds of major power conflict,
a conflict that may begin in a small way at the local level, but might es-
calate into general war.

Chairman Khrushchev made much the same point in his message
of December 31, 1963, to the governments of all countries. He pointed
out that it would be naive to say that nothing terrible can come of terri-
torial disputes between small states that do not possess nuclear weapons.
Such views, wrote Chairman Khrushchev, are wrong and harmful. He
continued:

Can one remain indifferent if the blood of peoples is shed over
frontier disputes? Moreover, one should be a realist in this
matter. In our times, when the development of international
relations has resulted in the interests of states--economic,
political, strategic, and other interests--becoming closely in-
tertwined, and when ramified systems of alliances are in exis-
tence, a clash that occurs in some one place and would seem to
be purely local in character, might quickly involve many other
states.

This would bring into play the commitments of allies, and
the fears, real or imaginary, of other states concerning their
security, both states adjoining the area of the conflict and states
thousands of kilometers away from it, and, we will say it plainly,
it would bring into play the desire of certain states to take advan-
tage of a local conflict in order to achieve their own special preda-
tory aims. At the same time one cannot fail to take into account
the fact that wars which begin with the use of conventional weapons,
in our time may develop into a world war with the use of thermo-
nuclear weapons.

The escalation of local conflict is of course only one of the ways
in which general war might begin,* and the control and settlement of local

*The ways in which a general nuclear war could be precipitated are discussed in the paper by Marshall D. Shulman entitled "A General Approach to Forms of Collaboration Between Adversary Societies Intended to Reduce International Tensions and the Danger of General War." See p. 6-9 for a discussion of "conflicts among smaller countries which may engage the great powers."

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conflict is therefore not an alternative to general and complete disarma-
ment. Disputes and situations involving the small powers are certain to
arise, however, and present a major danger of general war when they
draw in the major powers and are caught up in the cold war. It is there-
fore in the interest of world peace and of the major powers to evolve
methods whereby peripheral small power disputes and situations can be
controlled and settled without great power involvement.

Part I of this paper describes the kinds of dangerous small power
disputes and situations that can be expected to arise, and contains some
suggestions as to the circumstances in which it would be in the interests
of the United States and of the Soviet Union to adopt a common approach
to the control and settlement of each specific type of local conflict. Part
II contains a detailed list of the rules and procedures that could be followed
by the major powers in their joint effort to control and to achieve a peace-
ful settlement of dangerous small power conflicts.

# I. TYPES OF SMALL-POWER CONFLICT

There is no doubt an endless variety of ways in which a small
power conflict may arise and pose a danger of ultimate military involve-
ment by the great powers. For convenience, however, the types of con-
flict that seem most likely are set out under five headings below. The
five types of conflict are not necessarily listed in order of probability
or degree of danger of great power involvement. Nor are the five cate-
gories exclusive in the sense that any particular conflict will belong to

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only one category, or exhaustive in the sense that all of the possible ways
in which a potentially dangerous local conflict might arise are included in
the list. Although it is recognized that unforeseen kinds of conflict will
arise, the hope must be that rules and procedures worked out for fore-
seeable conflicts can be applied to the unforeseeable. The particular
rules and procedures mentioned are discussed in greater detail in Part
II of this paper.

A. Territorial Disputes

Chairman Khrushchev directed the attention of the world to the
many unsolved territorial and frontier disputes by his message of Decem-
ber 31, 1963, to the governments of all countries. Mr. Khrushchev defined
the problem as "territorial disputes and claims which arise over the
actually existing well-established frontiers of states," and stated his
"profound conviction that the use of force for settling territorial disputes
is not in the real interests of any people, [or] of any country." Mr.
Khrushchev proposed that all states conclude a treaty renouncing the use
of force for the settlement of territorial disputes or questions of frontiers.
Experience has shown, Mr. Khrushchev stated, that peaceful means of
settling territorial disputes are feasible, and recent changes in the world
show that:

> . . . at the present time we have a situation in which it is
> possible to set and accomplish in a practical way the task of
> ruling out from international life the use of force in territorial
> disputes between states.

In his reply to Chairman Khrushchev, President Johnson agreed

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that force should not be used to settle territorial disputes, but the President adopted a somewhat broader statement of the problem. Among other points, Mr. Johnson sought to include claims to change "demarcation or dividing lines established or confirmed by international agreement or practice," and attempts by any government or regime "to enlarge the territory under its control or administration by overthrowing or displacing established authorities."

The precise scope of the term "territorial disputes" is less important than the fact that by any definition this will be one of the major sources of tension between small powers for some time to come. As was pointed out by Mr. Khrushchev, many unsettled border questions exist in Africa and Asia, some of which are the result of the inheritance of artificial colonial boundaries. Two African border disputes, between Algeria and Morocco and between Ethiopia and Somalia, recently resulted in armed conflict. Other disputes, such as that over the inclusion of Sarawak and Sabah in the new Federation of Malaysia, threaten continually to erupt into violence.

In addition to frontier or border disputes between states, in which one state claims part of the territory held by the other, there exist certain special situations in which one side claims the entire territory held by the other, or challenges its right to exist as a separate entity. These special cases, such as the situation in China, the conflict between Israel and the Arab states, and Morocco's claim that Mauritania is part of the Moroccan Kingdom, are in a sense disputes over "territory," although for other

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reasons they may also be classed under other headings. The continuing
divisions of Germany, Korea and Vietnam are also in a sense "territorial"
problems, but the direct involvement of the major powers in these divisions
distinguishes them from the type of small power conflict considered here.

Setting apart the situations that are already part of the cold war,
it may be assumed that the major powers will recognize their common
interest in containing and peacefully settling the remaining territorial dis-
putes. The possible gain in influence for one of the major powers in a
particular African country as a result of support for its side in a terri-
torial dispute, for example, pales in significance when compared with the
danger that the intervention of the other major power on the other side will
lead to a confrontation that might escalate into general war. How, then,
may peripheral territorial disputes be settled without the involvement of
the major powers?

Mr. Khrushchev has suggested that the following peaceful settle-
ment procedures would be appropriate to these disputes: "negotiations,
mediation, conciliatory procedure, and also other peaceful means at the
choice of the parties concerned in accordance with the United Nations
Charter." Mr. Johnson's list specifically mentions also "arbitration,
judicial settlement, [and] action by a regional or appropriate United Nations
agency." Although the reference by Mr. Khrushchev to peaceful means
chosen by the parties certainly includes the additional procedures men-
tioned by Mr. Johnson, the difference between the two lists poses a serious
policy question: should the common approach by the major powers include

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recommendations to the parties to resort to regional agencies and sub-
mission of the dispute to third party judgment through arbitration or
adjudication?

Experience has shown* that regional agencies are frequently able
to achieve a settlement of territorial disputes, particularly those arising
in Africa and in Latin America. Experience also shows that some terri-
torial disputes are successfully settled through arbitration or adjudication.
Circumstances will vary cases, but it is clear that these procedures must
not be excluded from the common approach of the major powers to terri-
torial disputes in areas on the periphery of the cold war.

B. Civil Wars

A second major source of international tension undoubtedly lies
in civil wars and in the breakdown of law and order within particular
states. While many civil wars are not at the outset "international" in the
sense of being conflicts between two or more states, civil wars frequently
at least result in foreign involvement and may be quite dangerous from the
standpoint of conflict between the major powers.

The danger of great power involvement and of escalation to
general war was quite clear in the recent series of revolts in the Republic
of the Congo and in the breakdown of internal law and order in that state.
The response of the international community to the Congo problem typifies
the approach that will probably have to be taken in similar cases in the

*Particular precedents are discussed in Part II.*

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future. Where a government is clearly unable to maintain law and order, and where foreign intervention seems a certainty, each major power will consider that it is unable to accept the risk that its opponent will gain through more or less clandestine involvement. In these circumstances, the only alternative is maintenance of the *status quo* through the collective intervention of the United Nations. A United Nations police force will have to assume responsibility for internal law and order until it can be replaced by the constitutional authorities of the country. This procedure will prevent each major power from increasing its influence in the area, and in this sense may represent a loss to one or the other of the major powers, but correspondingly holds promise of eliminating the dangers of confrontation and escalation.

Other types of civil war may also call for great power restraint and for a common approach to peaceful settlement. For example, there is great potential danger in the foreign involvement in the fighting between the Republicans and the Royalists in Yemen and the fighting in Cyprus between Cypriots of Greek and Turkish descent. The major powers have not become directly involved in either of these conflicts, and, indeed, have recognized their common interest in eliminating or preventing the direct involvement of the smaller powers currently backing opposing factions in each case. The procedures used, namely, the establishment of the United Nations Peace-Keeping Force in Cyprus and the United Nations Yemen Observation Mission, are variations of the types of international police and peace observation forces used by the United Nations

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with considerable success over the past fifteen years.

One aspect of foreign involvement in civil wars that may be of
great importance for the future is the current effort of the Chinese People's
Republic to gain influence in Africa through fomenting revolution in some
of the newly independent African states. The *status quo* in Africa is un-
doubtedly to be preferred to increased Chinese Communist influence, both
from the standpoint of world peace, and from the standpoint both of the
Soviet Union and of the United States. This common interest may provide
a real possibility for developing procedures through the United Nations to
exclude foreign intervention in civil wars. For the reasons already men-
tioned, the job, though it needs to be done to preserve world peace, can-
not be done directly by either of the major powers.

C. Anti-Colonial Conflicts

Although most colonial territories have achieved independence,
and in most cases the transition has been peaceful, a few of the remaining
non-self-governing territories present immediate problems for world
peace. In Angola, for example, rebel forces are increasing in strength,
actively supported from the outside by some newly independent African
states, while there is little hope that Portugal will move peacefully toward
independence for Angola. A similar situation is developing with regard to
Mozambique and to South West Africa.

Other instances of future anti-colonial conflict may involve claims
by an existing state to annex an adjacent non-self-governing territory,

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rather than a demand for independence for the territory. These claims therefore resemble territorial disputes more than traditional anti-colonial wars of independence. Examples might include the Indian take-over of Goa, the Guatemalan claim to British Honduras, and the Indonesian absorption of West Irian, although in the latter case, the agreement between Indonesia and the Netherlands calls for an "act of self-determination" to be held by 1969, whereby the inhabitants of the territory will decide whether or not to sever their ties with Indonesia.

Some of the remaining anti-colonial situations involve a danger of direct confrontation between the major powers, and the area may present some possibilities for the development of common approaches to small power conflict.

As to Africa, for example, neither the United States nor the Soviet Union supports the retention by Portugal of Angola and Mozambique. It is also, however, not in the interests of either the Soviet Union or the United States for the future of these territories to be decided by a war between Portugal, possibly backed by South Africa, and the states of the Organization of African Unity, possibly backed by Communist China. The only solution that will protect both world peace and the interests of the major powers is to use the full panoply of United Nations peaceful settlement procedures in an effort to arrive at a workable formula for the future of Angola and Mozambique. If these procedures fail, a question that should not be pre-judged, it will probably be necessary to have resort to the

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enforcement procedures of Chapter VII of the Charter to maintain inter-
national peace and security.

The same reasoning would apply to the question of the status of
South West Africa, some aspects of which are currently before the Inter-
national Court of Justice in cases brought by Ethiopia and Liberia. Similar
situations may also arise in the future with regard to some of the remain-
ing non-self-governing territories in other parts of the world that are or
may possibly be claimed by neighboring states.

D. <u>**Intervention to Protect Human Rights or Economic Interests**</u>

Even apart from subversion and intervention in civil wars, the
threat or use of force by one state to protect or advance interests within
another state will remain a source of tension between the small powers.
The situation in South Africa may be placed in this category. It is possi-
ble, for example, that the desire of the independent African states to
abolish <u>apartheid</u> in South Africa will ultimately lead to armed conflict.
Other cases of intervention to protect human rights might easily arise.
The rights of minorities are involved, for example, in the territorial
dispute between Ethiopia and Somalia and in the potential Turkish inter-
vention in Cyprus, and the treatment of Indians in South Africa has long
been a source of international tension.

As to intervention to protect economic interests, the major
example is the British and French action in Suez, with the consequent
grave danger of major power involvement. Other possibilities of inter-

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vention might be presented by the expropriation of industries, or the
seizure of foreign owned ships or goods.

Apart from the problem of race relations in the areas of Africa that are still ruled by white minorities, the contexts in which potentially dangerous small power conflicts are likely to arise are perhaps less foreseeable than is true of the types of small power conflict already discussed. It is therefore not possible to point to a particular type of peaceful settlement procedure as likely to be the most appropriate or the most useful in the future. It is possible, however, to point out that one of the major difficulties in the area of small power intervention to protect human rights or economic interests will be the inadequacy of international rules governing small power action. The extent to which international law applies to the treatment by a state of its own nationals, or restricts or requires compensation for takings of foreign-owned property, is far from settled, and states raising claims in these areas have few agreed rules to go by. To some extent a framework of rules is being developed through the United Nations, and, as these problems remain a source of potentially dangerous small power conflict, the major powers should recognize their common interest in furthering the development and acceptance of these rules.

E. Miscellaneous Border Violations

Most violations of state borders are likely to be connected with
one or more of the previously listed types of small power conflict, such
as, for example, where border raids are carried out in connection with

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a territorial dispute. Incidents not connected with major conflicts are likely to be sporadic and non-recurring, and are not likely to be serious in the sense of escalating into a conflict involving the major powers. The possibility always exists, however, that a border incident or a series of incidents will be provoked or seized upon as a pretext for launching an action with broader objectives. Care must therefore be taken to include even minor incidents between small powers in the framework adopted for a common approach by the major powers to small power conflict.

## II. RULES AND PROCEDURES FOR A COMMON APPROACH BY THE MAJOR POWERS

If the great powers are agreed that a particular small power conflict must be contained and settled without becoming a part of the cold war, what steps can be taken to this end? And, once the great powers have recognized their common interest in peaceful settlement, how can each be certain that the other is keeping its part of the bargain? These twin questions will be presented by every peripheral small power conflict, and no doubt the particular facts of each conflict will lead to a particular result, the details of which cannot be predicted in advance. An attempt can be made, however, to set out in general terms the rules and procedures available to the major powers in their quest for peaceful settlement of small power conflict. Together with this general statement, some comments can be made as to possible procedures for verifying compliance with the several steps in the common approach adopted by the major powers.

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The list that follows begins with rules regarding non-involvement of the major powers, and then takes up the various positive steps that can be taken to move the parties to the conflict in the direction of peaceful settlement. The list concludes with peaceful settlement and enforcement procedures available through the United Nations and with some suggested new procedures that might be established to add to the capacity of the United Nations to deal with the type of conflict discussed. No particular conflict is likely to call for use of all of the steps on the list, but the steps appearing earlier in the list are likely to be used prior to the steps appearing later in the list. In some cases, however, several steps will need to be implemented at the same time. In particular, in many cases it will be necessary to combine impartial fact-finding and observation with the other steps taken.

## A. Military Assistance: Great Power Personnel

In most cases, the first step in controlling peripheral conflict would be for the major powers to agree not to ship their troops or military advisers into the conflict area. Since the conflict is by definition on the periphery of the cold war, the major powers are not likely to have bases or military advisers or military assistance groups in the area at the outset, and it would be relatively simple for each side to ascertain that the other was actually observing its obligation to keep its men out. The prohibition on great power military personnel would, of course, extend to para-military personnel and military advisers as well as to

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"volunteers." As to volunteers, the great powers would have to assume an obligation to see to it that no such groups were organized, trained or equipped on their territory for shipment to the conflict area.

In some cases, such as where local law enforcement has broken down, or where a revolt is alleged to have been fomented or assisted from the outside, the need for military or "police" assistance would be great, but in the type of conflict under discussion here, unilateral assistance by one or the other of the great powers would present a grave threat to world peace. The danger may be minimized by multilateral military or police assistance, which in the usual case would come through the United Nations, but in a proper case might instead be supplied by a regional organization.

## B. Military Assistance: Money and Weapons

The great powers might also undertake an obligation not to supply money or weapons to the parties to the conflict, but compliance with this obligation would be difficult to police even on the periphery of the cold war. As with military personnel, the principle should be established that any necessary financial or weapons assistance should come through multilateral channels in order to avoid direct competition between the major powers. In some cases, international observers may be used to verify compliance by checking claims by one party to the conflict that its opponent had received clandestine assistance from one of the major powers. Such a claim may be raised in the hopes of thereby inducing the other major power to come to the party's assistance to offset the assistance allegedly given to

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its opponent. Impartial observers would be doubly valuable here to curb
this special form of "third party genesis." The assurances provided by
the impartial observers would aid the Soviet Union and the United States
in adhering to a policy of "mutual example" in restraints on the supply of
money and weapons.

Proposals for the establishment of nuclear free areas might also
help to reduce the dangers involved in small power conflict. Since the
areas under discussion here are by definition on the periphery of the cold
war, it is not likely that the nuclear weapons of either side will be sta-
tioned in these areas. An agreement not to station weapons in defined
areas would, however, help to keep these areas, and future conflicts
within these areas, outside of the cold war.

C. Propaganda and Moral Assistance

In many cases it would not be reasonable to expect both major
powers to be entirely impartial as between all parties to a particular
peripheral conflict. In some situations, such as the situation in South
Africa or in Angola, both major powers can be expected at least morally
to back one side over the other. In other cases, such as, for example,
a breakdown of law enforcement in a newly independent state, or a mili-
tary coup d'etat, one of the major powers may be inclined to support the
pre-existing government as against putative rebel groups or military
dictators, and it may not be wise or just to require that power to put on
a face of neutrality as between the opposing factions. Limits must be

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placed on such moral support, however, in order to avoid escalation to a
situation in which the other major power feels constrained to intervene to
preserve its interests in the area. Propaganda is, of course, more easily
measured than clandestine provision of money and weapons,

In many cases, however, it should be possible for both major
powers to remain impartial as regards all parties to the conflict, and to
urge them to take appropriate steps for its settlement. Examples might
include the dispute between India and Pakistan concerning Jammu and
Kashmir, and many of the boundary disputes existing between newly inde-
pendent African countries.

D. Pressure for Peaceful Settlement

Beyond the initial restraints on great power action, most situ-
ations will require affirmative action to halt hostilities and to achieve
peaceful settlement. A first step in this direction could be statements by
the major powers urging the parties to the dispute to fulfill speedily their
Charter obligation to settle the dispute "by peaceful means in such a man-
ner that international peace and security, and justice, are not endangered."
A strongly stated message of this sort would also make plain that the parties
can expect no assistance from either of the major powers as each has recog-
nized that its involvement in the dispute would endanger world peace.

The obligation to settle disputes by peaceful means is amplified in
Article 33 (1) of the Charter as follows:

The parties to any dispute, the continuance of which is
likely to endanger the maintenance of international peace and

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security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

All existing peaceful settlement procedures are continued under the Charter as the normal means for the settlement of disputes, but the Charter also provides in Article 35 that dangerous disputes may be brought to the attention of the Security Council or of the General Assembly by any Member of the United Nations, or even by any non-Member that is a party to the dispute and accepts in advance the pacific settlement obligations provided in the Charter.

If a dangerous dispute is not settled by the peaceful means chosen by the parties to the dispute, they have an obligation under Article 37 (1) of the Charter to refer the dispute to the Security Council. The Council may recommend either "appropriate procedures or methods of adjustment" or appropriate "terms of settlement" if it considers that "the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security."

The Charter contains no corresponding provisions as to the procedure to be followed when a dangerous dispute or situation is brought to the attention of the General Assembly, but the provisions of Articles 10 through 14 give the Assembly broad powers to discuss "any questions" within the scope of the Charter, including specifically "any questions relating to the maintenance of international peace and security" brought to the attention of the Assembly under Article 35, with regard to which the Assembly may

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make recommendations to the states concerned or to the Security Council.
In addition, under Article 14 the Assembly may "recommend measures for
the peaceful adjustment of any situation, regardless of origin, which it
deems likely to impair the general welfare or friendly relations among
nations," a provision that certainly encompasses the peaceful settlement
of the types of dangerous disputes and situations dealt with in Chapter VI.
Action by the Assembly, however, is subject to the limitations of Article
11 (2) that any questions "on which action is necessary shall be referred
to the Security Council by the General Assembly either before or after
discussion," and of Article 12 (1) that:

> While the Security Council is exercising in respect of any
dispute or situation the functions assigned to it in the present
Charter, the General Assembly shall not make any recom-
mendations with regard to that dispute or situation unless the
Security Council so requests.

There is, therefore, no lack of power in the United Nations to
assist the parties in their quest for the peaceful settlement of dangerous
disputes. The Charter's peaceful settlement provisions do not extend to
imposing a decision as to the merits of the dispute on the parties, however,
or even a decision that a particular peaceful settlement procedure must be
accepted by the parties. The United Nations does, however, have additional
powers to deal with threats to the peace, breaches of the peace and acts of
aggression, and it is possible that under some circumstances action taken
for this purpose will have the ancillary effect of bringing about a settlement
of the dispute underlying the threat to the peace, breach of the peace, or
act of aggression.

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## E. Regional Arrangements

Article 33 of the U. N. Charter, quoted above, lists "resort to regional agencies or arrangements" as one of the methods through which the peaceful settlement of disputes is to be sought "first of all . . ." Article 52 (2) further specifies that:

> The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

The Security Council is directed in Article 52 (3) to "encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies . . ." Regional arrangements or agencies may also be utilized by the Security Council "for enforcement action under its authority," but Article 53 (1) stipulates that with certain exceptions "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council . . ."

The practice of regional organizations in the peaceful settlement of local disputes is discussed as appropriate in the paragraphs that follow.

## F. Negotiation

In terms of the number of disputes settled, direct negotiation between the parties is no doubt the most successful of the methods for the peaceful settlement of disputes mentioned in Article 33 of the Charter. Negotiation is also the method favored by the Soviet Union. Taking into

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account the Soviet view, it may be useful in some cases to establish _ad hoc_
joint negotiating committees between the parties to a particular dispute for
the purpose of exploring the possibilities of compromise. The great powers
could help in this respect by recognizing a principle that the parties to
every dispute that might endanger international peace have an obligation to
negotiate in the sense of making a sincere effort to determine whether some
compromise is acceptable to all sides. It remains true, however, that
direct negotiation can be of no avail if one or another of the parties concludes
that it cannot or will not accept any compromise.

G. <u>Good Offices</u>

Traditionally the term "good offices" means only that the state
offering its "good offices" brings the parties together so that they can
negotiate a settlement of the dispute. In this sense, offers of "good offices"
are valuable because they permit negotiations to begin without either side
taking the initiative. If states generally accept the suggested rule that all
states have a duty to negotiate their disputes, there would be little need
for the "good offices" of third party states. As it is, however, offers of
good offices by the great powers acting jointly would, in some cases, bring
about a _de facto_ recognition of the duty to negotiate.

In modern practice, good offices has received a second dimension
through the good offices of international organizations, although in this new
dimension, good offices has come close to what was traditionally known as
mediation or conciliation. In many cases the good offices of a regional

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organization or of the Secretary-General of the United Nations would be preferable to offers of good offices by the major powers.

### H. Mediation

Mediation differs from good offices in the sense that the mediator not only brings the parties together for negotiation, but also takes the initiative in the effort to find an acceptable solution. As has been noted, today the function of good offices shades off into mediation, and in some cases joint "good offices" committees of the great powers could also attempt to mediate the dispute.

Mediation by the United Nations has become increasingly common, and is frequently combined with other peaceful settlement steps. An example is the current United Nations involvement in Cyprus, where in accordance with a Security Council resolution, the Secretary-General has both appointed a U. N. mediator and arranged to send a U. N. police force to Cyprus. In other cases, the Secretary-General has appointed a U. N. mediator on his own initiative, although the individuals appointed are frequently called "Special Representatives" of the Secretary-General rather than United Nations mediators. Examples include the activities of Pier Spinelli as Special Representative of the Secretary-General in Jordan, and of Edward Zellweger as Special Consultant to the Secretary-General for Coordination of United Nations Activities in Laos. Another Special Representative of the Secretary-General, Nils Göran Gussing, is currently engaged in mediating the dispute between Cambodia and Thailand. These

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individuals are sent by the Secretary-General at the request of the countries concerned, carry out their duties in accordance with the terms of the request, and frequently maintain missions with a staff to assist them in their task of mediation.

## I. Fact-Finding and Commissions of Enquiry

Good offices and mediation are essentially private activities in which the possibilities of compromise are explored behind closed doors, and which, if they fail, leave the parties in the same positions as they were at the outset. The Commission of Enquiry is a somewhat stronger step, initiated by the Hague Convention of 1899. The idea was that the settlement of some disputes may be facilitated if the facts could be found through an investigation by an impartial commission. The commission envisaged by the Hague Convention would hear the parties and conduct an enquiry on the spot, and issue a report of its findings which could be accepted or rejected by the parties. The parties were also free to determine for themselves the legal meaning to be given to the commission's findings of fact.

Commissions of Enquiry have not been used recently, but the basic idea of obtaining an impartial statement of the facts has carried over to United Nations practice especially through the use of U. N. peace observation missions.

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J. Conciliation

The formal difference between "mediation" and "conciliation" is that a mediator theoretically only suggests possible compromise solutions of the dispute, whereas a conciliator investigates the facts and makes suggestions for a solution based on his findings of fact. In both cases the parties are under no obligation to accept the suggestions offered, but the suggestions of a conciliator, being based on impartial findings as to the facts involved, are correspondingly more difficult to reject.

Conciliation procedures have been written into a great many treaties, including treaties concluded by either the Soviet Union or the United States. For example, the United States is party to the General Convention of Inter-American Conciliation of 1929, and conciliation clauses are included in numerous boundary treaties concluded by the Soviet Union. In view of their acceptance of conciliation for these purposes, the major powers might be willing to suggest conciliation as a means of settling small power conflicts.

United Nations mediators frequently act like conciliators in that they find facts as well as suggest solutions. The U. N. mediator for Cyprus, Mr. Sakari S. Tuomioja of Finland, for example, was directed by the Security Council resolution to "use his best endeavors . . . for the purpose of promoting a peaceful solution and an agreed settlement of the problem confronting Cyprus . . ." In carrying out this assignment, Mr. Tuomioja will first have to investigate the current situation in Cyprus in order to be able to mediate on the basis of his interpretations of the facts.

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The Security Council also directed the U. N. Mediator to report periodically to the Secretary-General on his efforts, and it may be expected that these reports will contain his evaluation of the facts of the dispute between the Greek and Turkish communities.

Fact-finding and mediation are frequently accomplished through regional organizations, which, as will be recalled, are one of the methods of peaceful settlement mentioned in Article 33 of the U. N. Charter.

Within the Organization of American States (OAS), for example, the procedures of the Rio Treaty may be used to empower the Council of the OAS, acting provisionally as the Organ of Consultation, to call for a cease-fire in a conflict between American states and to take "all other necessary measures to establish or maintain inter-American peace and security and for the solution of the conflict by peaceful means." On occasion these powers have been used to establish investigating committees to investigate disputes on the spot and to make recommendations to the Organ of Consultation. In some cases decisions based on these recommendations have been accepted by the parties and have provided a basis for the peaceful settlement of the dispute.

An example is the complaint by Costa Rica in 1948 that it was being invaded by troops based in Nicaragua. An investigating committee was promptly dispatched by the Council of the OAS acting provisionally as the Organ of Consultation under the Rio Treaty "to investigate on the spot the facts denounced and their antecedents." The committee reported that there was no doubt that the "revolutionary movement that erupted in

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Costa Rica was organized mainly in Nicaraguan territory" and that the
Nicaraguan Government had failed to take "adequate measures to prevent
revolutionary activities directed against a neighboring and friendly country
from being carried out." On the basis of this report, the Provisional Organ
of Consultation called upon the parties to observe the principles and rules of
non-intervention, and a Pact of Amity was concluded between the Governments
of Costa Rica and Nicaragua. In 1955, Costa Rica claimed that the Govern-
ment of Nicaragua had undertaken a "systematic campaign" to threaten the
independence of Costa Rica. The OAS again sent an investigating committee
armed with aerial observers, whose reports resulted in the internment of
revolutionary troops in Nicaragua and in the conclusion of new agreements
between Costa Rica and Nicaragua to prevent subversion and illegal border
crossings and to establish a permanent Commission of Investigation and Con-
ciliation to aid in the maintenance of peace between the two countries.

Another example of conciliation through regional organizations is
furnished by the recent activities of the Organization of African Unity (OAU).
The Charter of the OAU, adopted at Addis Ababa on May 25, 1963, provides
for the future establishment by a separate Protocol of a permanent Commis-
sion of Mediation, Conciliation and Arbitration to assist in carrying out the
obligation undertaken by the members of the OAU "to settle all disputes among
themselves by peaceful means." The Commission has not yet been established,
but the OAU has already played an active role in the peaceful settlement of
border conflicts. A cease-fire in the dispute between Algeria and Morocco
was followed by an OAU "ad hoc" commission of arbitration. The commission's
activities led to an agreement settling the dispute signed on February 20, 1964.

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K. U. N. Peace Observation Missions

The traditional framework of peaceful settlement procedures goes from mediation, fact finding and conciliation to arbitration and adjudication. United Nations practice has, however, developed the new procedure of peace observation, a procedure that falls short of arbitration in the sense that no decision of the controversy results, but also goes beyond arbitration in the sense of introducing an element of collective coercion on the parties. U. N. observers have been used with some success in a broad range of incidents beginning with the truce supervisors appointed by the United Nations Commission for India and Pakistan to observe compliance with the truce in Kashmir, and the establishment of the U. N. Truce Supervision Organization (UNTSO) in the Middle East, to observe compliance with the four General Armistice Agreements concluded by Israel with Egypt, Lebanon, Jordan and Syria. U. N. observers also contributed to the settlement of Greek claims that guerillas were receiving support across the Greek frontiers with Albania, Bulgaria and Yugoslavia during the Greek civil war, and of similar claims by Lebanon in 1958, that an internal revolt was being fomented by foreign elements crossing Lebanon's frontiers. In the Greek case, the U. N. Special Committee on the Balkans sent observers whose reports supported the allegations of the Greek government, whereas the U. N. Observer Group in Lebanon, established by the Security Council in 1958, reported that it was unable to find evidence of illegal infiltration. In both cases,

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however, the existence and activities of U. N. observers acted as a
symbol of the concern of the international community and undoubtedly con-
tributed to the ultimate peaceful settlement.

L. United Nations Police Forces

From the standpoint of peaceful settlement of disputes, it is
possible to conceive of at least two roles for armed forces under the aegis
of the United Nations in addition to the U. N. peace observation missions
already mentioned. First, United Nations troops may be used to carry
out police functions in cooperation with the constitutional government by
helping to maintain law and order within a state, and, second, U. N.
troops may be used to take enforcement action against the government of
a state. Although in theory these two functions are distinct, in practice
the borderline is somewhat imprecise because any U. N. armed force,
which must always act in accordance with the Charter and with the terms
of the resolutions establishing it, may sometimes find itself at odds with
the wishes of the government that it has come to assist. In such a case,
even a force with purely "police" functions may act in such a way as to
have a material impact on the government or the internal affairs of the
host state.

In any event, it is certainly within the powers of the Security
Council when the great powers are in agreement to establish either kind
of force as the circumstances require. The possible uses and potential
value of the various kinds of U. N. forces in containing and in settling

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Peripheral disputes need not be detailed here. There are, however, certain major problems in building a presently operative capacity within the United Nations to make use of these possibilities. First, the Soviet Union has questioned the established practice of entrusting the control and operation of U. N. forces to the direction of the Secretary-General. Mr. Khrushchev has taken the view that, although there are neutral nations, there can be no neutral men, the Secretary-General of the United Nations included. As an alternative, Mr. Khrushchev has suggested that U. N. forces should be directed by a "troika" consisting of representatives of Eastern, Western and "neutral" nations. Second, as was shown by the recent effort to send a U. N. force to Cyprus, it may be a difficult and time-consuming process to assemble troops and material from appropriate sources for a particular U. N. force once it has been established by the United Nations. It has been suggested that even if Article 43 of the Charter is not implemented, states should give the United Nations detailed statements of the type of forces and equipment that they will maintain on a stand-by basis within their national armies for possible use by the United Nations. Third, there is still no agreement on the means of financing United Nations forces. The established practice in accordance with Article 17(2) of the Charter has been for the General Assembly to apportion peace-keeping expenses among the Members, but some Members including the Soviet Union have challenged the authority of the Assembly to make assessments for peace-keeping expenses and have refused to pay the assessments levied against them.

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A solution to each of these problems must be found to provide the United Nations with a real capacity to deal with the type of peripheral disputes discussed here.

## M. Arbitration

The foregoing discussion has concerned methods of controlling small power conflict or, at most, of bringing the parties to an agreed solution. There remains the need for procedures capable of producing a legally binding decision as to the merits of the conflict. The only procedures available today, namely arbitration and adjudication, relate to the decision of legal questions involved in disputes. The compulsory decision of non-legal or "non-justicable" disputes must await the development of new procedures, some suggestions for which are described in the final section.

Most international arbitrations are held on the basis of law, and, in this sense, arbitration is indistinguishable from adjudication. Arbitration is more within the control of the parties than is adjudication, however. Arbitral tribunals consist of arbitrators selected by the parties for the purpose of deciding a particular dispute or class of disputes, and are sometimes also subject to direction by the parties as to the rules to be applied in reaching a decision. International courts, on the other hand, consist of judges appointed by a broader group of states, and function under rules adopted for the generality of cases brought to the court, rather than for a particular dispute.

In addition, with very few exceptions, every arbitration depends

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upon the voluntary submission of the parties. Even where there is a general
agreement to arbitrate disputes arising under a treaty, a particular dispute
can be put to arbitration only if the parties actually carry out their basic
agreement by appointing arbitrators and submitting the dispute to the tribu-
nal.

Apart from these relatively technical differences between arbitra-
tion and adjudication, it is worthwhile to distinguish between the two proce-
dures because some states that have as yet shown no interest in adjudication
are more receptive to arbitration. The Soviet Union, for example, although
it is a party to the Statute of the International Court of Justice by virtue of
its membership of the United Nations, has not accepted the so-called com-
pulsory jurisdiction of the Court under Article 36(2) of the Court's Statute.
The Soviet Union has, however, made use of arbitration for the settlement
of commercial disputes arising out of its trade relations with members of
the Council for Mutual Economic Aid. The Soviet Union is also a member
of the Permanent Court of Arbitration at the Hague, and appoints judges to
that Court, although it has not yet participated in any arbitration case within
the framework of the Hague Court.

It may also be noted that the Charter of the Organization of African
Unity provides for a Commission of Mediation, Conciliation and Arbitration,
but makes no mention of the International Court of Justice or of judicial
settlement of legal disputes. The African states are also parties to the
Statute of the International Court of Justice, however, and some African
states have accepted the Court's compulsory jurisdiction under Article 36(2).

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Uganda is the latest African state to do so, having recently accepted the Court's compulsory jurisdiction for all legal disputes without reservation within the terms of Article 36(2) of the Statute of the Court. It may also be noted that the most significant matter currently before the Court, the *South West Africa Cases*, was brought to the Court by two African states, Ethiopia and Liberia.

## N. Adjudication

As has already been noted, many states including the Soviet Union have shown no enthusiasm for judicial settlement of legal disputes. One hundred sixteen states are parties to the Statute of the Court, but only forty have filed declarations accepting the Court's compulsory jurisdiction under Article 36(2) of the Statute, and many of these declarations are subject to debilitating reservations. The Charter of the United Nations provides, however, that as a general rule legal disputes should be referred by the parties to the International Court of Justice, and this is one method of peaceful settlement that could be recommended for particular disputes by the Security Council or the General Assembly. There is at present no power under the Charter by which an organ of the United Nations may require that legal questions be submitted to the Court, however.

Some objections to the use of the International Court of Justice for the settlement of legal disputes are that the Court is remote, expensive, and does not adequately represent all the legal systems of the world. To some extent these objections may be met by dividing the Court into panels to hear

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particular cases, and by new appointments to the bench, such as the recent
election of the Court's first African Judge.

The most serious objection, however, is that many ostensibly legal
disputes are in reality political, and that a decision according to the law
will therefore not settle the dispute. While this objection has some merit
with regard to certain disputes, it does not apply to other disputes in which
legal questions may be isolated for decision according to law, even if the
dispute as a whole must be classed as non-justiciable. It should be recog-
nized in this regard that adjudication need not prevent the losing party
from changing his claim from one as to what the law is, to a claim as to
what the law ought to be. In some cases, however, once certain legal ques-
tions are settled through adjudication, it may be possible to reach an
agreed settlement for the remainder of the dispute.

With regard to disputes that the parties regard as non-justiciable
in their entirety, it may be necessary to establish entirely new procedures
capable of introducing the element of compulsory third-party settlement
into even these areas.