THE UNITED NATIONS AS A DISPUTE SETTLEMENT SYSTEM

Indeed, the three main approaches to dis­pute settlement outlined by Ury and his colleagues - power-based, rights-based and interest-based - are all embodied in different parts of the United Nations, as discussed in greater detail elsewhere (Peck, 1991, 1994, 1998).

Of course, other parts of the UN system also help to avoid or resolve disputes by estab­lishing norms, standards and rules to guide the interaction of member states with one another as well as with their own populations. The General Assembly, the Economic and Social Council, the Human Rights Council, the Conference on Disarmament, the World Trade Organization and many other fora offer an opportunity for member states of the organization to dialogue and eventually come to agreement on a whole range of topics which help avoid international disputes and/or set forth rules for helping to resolve them when they do occur. The multilateral negotiations in such fora are often intense as multiple parties with different interests try to agree. These organizations are not ‘talking shops' as is sometimes claimed; their decisions have a profound impact on both inter- and intra-state relations.

Other parts of the UN system also engage in negotiation and mediation in order to carry out their mandates. For example, humanitarian organizations, such as the World Food Programme, the High Commissioner for Refugees, the United Nations Fund for Children and many others have to negotiate humanitarian access in conflict situations in order to deliver humanitarian assistance to those suffering from the conflict.

However, the three parts of the UN which deal most directly with conflict resolution per se are discussed briefly below.

The UN's power-based approach

The Security Council is the UN organ most directly charged by the Charter with the responsibility for maintaining peace and security. Its 15 members³ meet regularly to discuss trouble spots around the world, to receive input and reports from member states, as well as from the UN system, and from regional and non-governmental organizations and to make decisions about what action should be undertaken. Its actions are negotiated among its members, then voted on and announced in the form of Security Council Resolutions which have the force of international law. The Council can also issue letters or Presidential statements, or establish a Security Council Mission to see a situation firsthand and make recommendations directly to the parties. The Council can take action under Chapter VI of the UN Charter with the consent of the member state involved or under Chapter VII in which consent is not required. The Council can also refer the situation to a regional organization under Chapter VIII.

During the Cold War, the Security Council's ability to take action was constrained by the veto power of its permanent members which was used as part of their Cold War struggle. Since then, however, the veto has been used less frequently and informal consultations, especially among the permanent members, have allowed the Council to become much more active. Even so, the Council's actions (and sometimes inaction) are not always welcomed. A large number of members feel that the Council is not representative of the UN's membership as a whole and debate is ongoing about the need for Security Council reform, with numerous formulas proposed. There is also widespread concern that the permanent members of the Council too frequently pursue their own geopolitical interests rather than those of the membership as a whole, resulting in different standards being applied to different situations. The Council's greater use in recent years of Chapter VII measures, such as peace enforce­ment, sanctions or arms embargoes, are also a cause for concern to some.

Moreover, even in cases where the Council has tried to act as a kind of arbiter (rather than as an enforcer, bringing parties to the Council chambers for discussion), parties tend to respond by engaging in adversarial debate rather than problem solving. This mutual recrimination and positional arguing by each side to convince the Council of the ‘rightness' of its case and the ‘wrongness' of the other side tends to further harden positions and inflame the situation. When Council members are forced to declare their sympathies, support for one or both sides can widen the dispute or encourage hostilities. But in spite of these issues, the Security Council's regular monitoring of a large number of conflict situations and actions to try to manage them have undoubtedly had an overall beneficial effect on international peace and security over the years and kept many situations from deteriorating further.

Of all the power-based instruments avail­able to the Council, the most successful has been the use of peacekeeping operations, which were not mentioned in the UN Charter, but were an afterthought proposed by Dag Hammarskjold. Since then, they have become a major instrument for maintaining peace or for restoring peace once a comprehensive peace settlement has been agreed upon by the parties. At the time of this writing, there are 97,924 personnel in the field in 18 peace operations led by the Department of Peacekeeping Operations on four continents (DPKO, 2006).

Peacekeeping missions vary greatly in their mandate, size and structure - ranging from unarmed military observers creating a thin blue line dividing the parties, such as in Cyprus, to large multidimensional peacekeeping forces, such as in Liberia, Sierra Leone or the Democratic Republic of the Congo. In recent years, peacekeeping forces have even been given an executive mandate, where for a limited period, the mission has become the virtual governing body in the country, such as in Cambodia, East Timor and Kosovo.

Some peacekeeping missions are deployed under Chapter VI where peacekeepers are typically lightly armed, and others under Chapter VII where forces are more heavily armed with more robust rules of engage­ment about how and when force can be used. Thus, peacekeeping operations can encompass varying degrees of power, but the mere presence of a peacekeeping mission is a source of both power and influence. The supervision, monitoring and reporting functions of the peacekeeping troops and military observers (whether unarmed, lightly armed or heavily armed); civilian police; human rights monitors; civil or political affairs officers and election monitors all exert a wide range of implicit and explicit positive and negative leverage on the leadership of the conflicting parties, their constituents and on the population at large.

Of course, not all peacekeeping mis­sions have been entirely successful and many lessons have been learned from these situations. However, in others, significant progress has been made (to cite a few exam­ples, Angola, Burundi, Cambodia, Cyprus, the Democratic Republic of the Congo, East Timor, Eastern Slovenia, El Salvador, Ethiopia-Eritrea, Georgia, Guatemala, Haiti, Lebanon, Liberia, Mozambique, Namibia, Sierra Leone and Tajikistan). In recent years, the UN has sought to learn the lessons from the experience of all these missions and to make the necessary reforms within the Department of Peacekeeping Operations to try to ensure that mistakes are not repeated. Nonetheless, the sheer complexity of multidimensional peacekeeping missions which have to operate in an ever-changing conflict environment cannot be underestimated.

The UN's rights-based approaches

Apart from the Security Council, the other UN organ directly charged with the peaceful settlement of disputes is the International Court of Justice (ICJ) located in The Hague.

Thus, the Court has suffered from much the same problem faced by the Security Council. On the whole, member states have been reluctant to relinquish decision-making control to a third party. One hundred and ninty-one states are parties to the Statute of the Court but only 66 of them have accepted the compulsory jurisdiction of the Court and most of those have introduced reservations. Of even greater concern, only one of the five permanent members of the Security Council (the United Kingdom) has currently endorsed the optional clause for compulsory jurisdiction.

Use of the Court has, nonetheless, grown significantly in recent years and it has been successful in resolving disputes, most commonly territorial disputes between neighboring states over land or maritime boundaries; the treatment of nationals; or cases concerning the use of force by one state against another.

The UN's interest-based approach

The Secretary-General and his Representa­tives embody the interest-based approach of the organization. When a preventive diplomacy, peacemaking, peacekeeping or peace-building mission is established, the Secretary-General appoints a Representative of the Secretary-General (also sometimes called Special Representative, Personal Rep­resentative, Envoy or Special Adviser) to head up the new peace mission. The size of preventive diplomacy, peacemaking and peace-building missions is usually quite small, whereas peacekeeping missions can be quite large; but in all cases, the Representative is the person on the ground responsible for the actual negotiation and mediation in situ with the conflicting parties.

In the case of peacemaking (obtaining a peace settlement after a situation has degenerated into armed conflict) or preventive diplomacy (before it reaches that stage), the Representative reports to the Secretary-General through the Department of Political Affairs. The UN has been involved in peacemaking (sometimes called ‘good offices') in a range of situations (e.g. Afghanistan, Angola, Bougainville, Colombia, Cyprus, East Timor, El Salvador, the Former Yugoslavia, Guatemala, Georgia, Haiti, the Iran-Iraq War, Nicaragua, Tajikistan and Western Sahara) with varying degrees of success. As well, the organization sometimes plays a supportive role in situations where peacemaking is undertaken by regional or sub-regional organizations or other third parties (for example, in Burundi, Cambodia, the Democratic Republic of the Congo and Somalia). Even in peacekeeping missions, Representatives are constantly required to use negotiation and mediation to implement the comprehensive peace agreements which have been agreed and to overcome the many obstacles which present themselves during the implementation process. In the latter case, they report to the Secretary-General through the Department of Peacekeeping Operations.

Recently, it has been more widely acknowl­edged that building sustainable peace in a post-conflict situation requires a much longer- term engagement by the UN and peace­building missions, which stay on in a country after the peacekeeping mission has left, have been established. Once again, Representatives of the Secretary-General are appointed to head up these peace-building missions and to negotiate with the parties on the ground, as well as with the donor community and with the UN Country Team to ensure that the situation receives what is needed to secure the right conditions for a sustainable peace. A new Peace-building Commission has now been established, composed of selected member states, with a Peace-building Support Office in the Secretariat to support its work and to ensure that more attention is given to this vital area.