1. Herman, G., De Adviesprocedure van Artikel 96 van het Handvest der Verenigde Naties in het Bijzonder Bezien als Geschillenprocedure 158 (thesis, 1965).Google Scholar

2. “Only law can be the basis of good relations. The law alone can perpetuate good attitudes, prevent or satisfactorily solve disputes. Injustice, violence and anarchy lead to ruin, because there are germs of destruction in anything that is not according to the law.” de Lange, H.J., Oorlog en Arbitrage 2 (thesis, 1912).Google Scholar

3. This is in accordance with the US arms control policy: “US arms control policy is implemented through US Government (USG) participation in various bilateral and multilateral talks aimed at achieving new agreements and implementing existing agreements. The resulting major arms control discussions and associated issues can be broadly categorized as follows: Nuclear and Space Talks (NST), which are composed of Strategic Arms Reduction Talks (START) and the Defense and Space Talks (DST); Nuclear Testing Talks (NTT); Nuclear Nonproliferation Talks; chemical weapons (CW); confidence-and security building measures (CSBM); Conventional Stability Talks (CST); and, verification and compliance, including Anti-Ballistic Missile (ABM) and Intermediate-Range Nuclear Forces (INF) Treaty implementation.” Fiscal Year 1990 Arms Control Impact Statements, Statements Submitted to the Congress by the President, Mar. 1989, at 3.

4. London Declaration on a Transformed North Atlantic Alliance of 6 July 1990, 1990 Survival 469–472.

5. SC Res. 661 (1990) of Aug. 2, 1990; SC Res. 665 (1990) of Aug. 25, 1990. Regarding the Iraq question a total of 12 resolutions were adopted, which finally culminated in SC Res. 678 (1990) of Nov. 31, 1990, which allows the use of ‘full’ force if Iraq does not comply with all the previous resolutions before Jan.15, 1991: “to use all necessary means to uphold and implement SC Res. 660 and all subsequent relevant Resolutions and to restore international peace and security in the area.”

6. Treaty on Conventional Armed Forces in Europe of November 19, 1990.

7. Charter of Paris for a New Europe, November 21 1990.

8. On the difference between legal and non-legal norms see Bothe, M., Legal and Non-Legal Norms – A Meaningful Distinction in International Relations, 11 Netherlands Yearbook of International Law 65–96 (1980).Google Scholar On the nature of the CSCE Final Act see van Dijk, P., The Final Act of Helsinki – Basis for a Pan-European System, 11 Netherlands Yearbook of International Law 106–110 (1980). Both authors convincingly make clear that the distinction between legal and non-legal obligations is less absolute than the distinction suggests (Bothe at 86–89; Van Dijk at 118,120). Regarding the Final Act Van Dijk rightly remarks that “a commitment does not have to be legally binding in order to have binding force; the distinction between legal and non-legal binding force resides in the legal consequences attached to the binding force” (Van Dijk at 110).Google Scholar

9. See van Hoof, G.J.H. & de Vey Mestdagh, K., Mechanisms of International Supervision, in: P. van Dijk et al. (ed.) Supervisory Mechanisms in International Economic Organisations 3–45 (1984).Google Scholar

10. B.V.A. Röling advanced the thesis that what international society needed was adistinct category within international law called “the law of weapons” or “law of arms control and arms reduction”. For this new section of international law norms would have to be developed whereby the national freedom to possess arms would be restricted to those functions which may legitimately be exercised (i.e. (collective) self defence).Later Röling refers to this jus constituendum as containing the norms for a “New International Military Order”. See, his introduction to my Militaire Veiligheid door Afschrikking, Verdediging en het Geweldverbod in het Handvest van de Verenigde Naties, at xxviii-xxix (1980). See also, Röling, B.V.A., Armaments and Disarmament: the Aspect of Security in: D. Krieger (ed.), Disarmament and Development 142 et seq (1981)Google Scholar; Röling, B.V.A., The Concept of Security and the Function of National Armed Power in: A. Cassese (ed.). The Current Legal Regulation of the Use of Force 313–316(1986). See also my review of Dinstein's War, Aggression and Self-Defence in 2 LJIL 279 (1989).Google Scholar

11. Disputes regarding the interpretation of a treaty; questions of international law; the existence of any fact, which, when established, would constitute a breach of an international obligation; the extent and nature of the reparation to be made for such breach (See Statute International Court of Justice, Art. 36).

12. J.H.W. Verzijl, VIII International Law in Historical Perspective 18, quoted by P.H. Kooijmans, International Arbitration in Historical Perspective: Past and Present, in: A.H.A. Soons (ed.), International Arbitration: Past and Prospects 28 (1990). Verzijl further distinguishes between legal disputes (lrdquo;inter-state controversies in which the parties are divided on an issue of international law […]”) and nonlegal disputes (“disputes which originate in a collision of interests and which do not lend themselves to a juridical decision”). Id. at 27–28.

13. P.H. Kooijmans, supra note 12 at 30.

14. Id..

15. In order to achieve the principal aim of the UN, i.e. to secure international peace and security, one can distinguish two approaches. (1)With regard to conflicts that may endanger the maintenance of international peace and security, parties have a primary obligation to seek a peaceful settlement (Art. 33(1) Charter).Hereby use can be made of the organs of the UN such as the Security Council (SC), the General Assembly (GA) or the International Court of Justice (ICJ). But there are also other means like negotiation, enquiry, mediation, conciliation, arbitration or resort to regional agencies or arrangements. The involvement of the SC is limited to making recommendations and providing facilities. The pacific settlement of disputes is dealt with in Chapter VI of the Charter. (2)If the SC has decided that there is in fact a threat to the peace or an act of aggression its power reaches further. In that case it can take the measures it deems necessary to maintain or restore international peace and security. It may even use military force. Chapter VII of the Charter deals with actions with respect to threats to the peace, breaches of the peace, and acts of aggression.It could be argued that this second category is centred around the principle of Art. 2(4) of the Charter, whereas Chapter VI is concerned rather with Art. 2(3) of the Charter. Cases of the second category are quite often conflicts when armed force is already being used, either in an ongoing conflict, or in an attack/defence situation. Until the recent adoption of the sequence of SC resolutions concerning the Iraqi question, generally one was confronted with the inability of the SC to take effective measures, including the use of force. As long as no such decision has been taken, the right of self-defence ex An. 51 of the Charter plays a role.

16. Bothe rightly observes that, although as a matter of principle non-legal obligations cannot be the basis of a decision of a court of law, in practice this distinction is less rigid, for, “under international law, the parties to a dispute before a court, and especially an arbitral tribunal have considerable freedom to determine the law to be applied by the judges. If a court is permitted to decide ex aequo el bono, non-legal obligations may well become particularly relevant.”. M. Bothe, supra note 8, at 87.

17. Compare national supervision, where as a rule, a master organization is superimposed on the subjects of the law. “By way of typology the make-up of this master-organisation can be described as follows: a democratically elected legislator, a politically responsible executive branch of government and an independent judicial power, whose judgements can be enforced, if necessary, by coercive measures imposed by the States”. P. van Dijk, supra note 9, at 9.

18. M. Kaasik, Le Contrōle en Droit International (1933), quoted by G.J.H. van Hoof & K. de Vey Mestdagh, supra note 9, at 7.

19. Audretsch, H.A.H,Supervisory Mechanisnts Within lnternational Economic Organizations for Reviewing State Behaviour; Their Importance Within GATT, in: Restructuring the International Economic Order:Indonesian and Dutch Perspectives 222 (1989).Google Scholar

20. “Within a legal context review consists of the judging of behaviour for its conformity to a rule of law […] In the case of a positive decision, international supervision has reached its goal with the completion of the review function.” Van Dijk, supra note 9, at 11.

21. “Nevertheless, correction may also be of a preventive character, when Sates conform to rules of international law as a result of the mere existence or threat of correction mechanisms.” Id..

22. Id. at 23.

23. “Legislative measures are quite often very vague and abstract. In many cases they contain only very broad directives with respect to the subject-matter which is to be regulated. These directives need to be elaborated into more specific norms before they can be applied in practice. With regard to review, too, this elaboration is necessary, because review and, therefore, also correction might be impossible if the norm which has to be used as a standard is too abstract and vague […] In general it is the elaboration of already existing norms which are not specific enough to be applied in practice. Therefore, the creative function often consists of interpretation. As such, it sometimes coincides with the review function. It is not always easy to draw a clear dividing line between the creative function and the review function: elements of the former are interwoven within the latter. However, the creative function can go further than what can still be considered interpretation. In such cases it amounts to an elaboration of the purposes of the organsation and/or the principles underlying the legal order concerned. In this sense the creative function can be said to contribute to the realisation of the legal order.” Id. at 12–14.

24. “At the outset. States exercised supervision over each other through the intermediary of their diplomatic organs. This so-called diplomatic or inter-Sate supervision has all the characteristics and disadvantages of a subjective form of supervision: its exercise may contain a high degree of partiality and arbitrariness and its effectiveness is usually dependent upon the strength of the supervising party in relation to that of the party over whom supervision is exercised.” Id., at 8.

25. Audretsch, supra note 19, at 223.

26. V. Kunzendorff, Verification in Conventional Arms Control, IISS Adelphi Paper 245, at 3 (1989).Also: “Agreement on verification provisions is thus an essential condition for the conclusion of any arms-control agreement. This was demonstrated in the INF ratification debate in the US Congress; and it may be recalled that the lack of consensus between West and East over verification matters was one of the reasons why no formal agreement could be reached in the 15 years of negotiations in Vienna on Mutual and Balanced Force Reductions (MBFR)”. Id. at 3.

27. Id. at 7.

28. Document of the Stockholm Conference on confidence- and security-building measures and disarmament in Europe convened in accordance with the relevant provisions of the concluding document of the Madrid meeting of the Conference on Security and Cooperation in Europe, Stockholm Sept. 19,1986, in:A. Bloed (ed.), From Helsinki to Vienna: Basic Documents of the Helsinki Process 161–179 (1990).

29. Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of their Intermediate-Range and Shorter-Range Missiles of Dec. 8, 1987.

30. Stockholm Document, see A. Bloed, supra note 28, at 171.

31. Id., Rule 71, at 172.

32. V. Kunzendorff, supra note 26, at 5. Cf. Art. XI, INF Treaty: “ 1. For the purpose of ensuring verification of compliance with the provisions of this Treaty, each Party shall have the right to conduct on-site inspections. The parties shall implement on-site inspections in accordance with this Article, the Protocol on Inspection and the Protocol on Elimination.[…]” See also, Art. XII, INF Treaty: “For the purpose of ensuring verification of compliance with the provisions of this Treaty, each Party shall use national technical means of verification at its disposal in a manner consistent with generally recognized principles of international law. 2. Neither Party shall: (a) interfere with national technical means of verification of the other Party operating in accordance with paragraph 1 of this Article; or (b) use concealment measures which impede verification by national technical means of verification carried out in accordance with paragraph 1 of this Article.[…]” (Italics mine, EM)

33. V. Kunzendorff, see note 32.

34. In order to ensure verification of compliance the CFE-1 treaty deals in great detail with notification and exchange of information and with inspections. Art. XIII and the Protocol on Information Exchange deal with notification and exchange on information. Art. XIV and the Protocol on Inspection (27 pages long!) deal with inspections and Art. XV with inspection via NTM's.

35. In Art. XVIII of the CFE treaty the parties agree to continue the CFE negotiations under the same mandate (“…shall continue the negotiations on conventional armed forces with the same Mandate and with the goal of building on this Treaty” (Para. 1) and to seek to concluded it no later than the Helsinki follow-up meeting in 1992.

36. V. Kunzendorff, supra note 26. at 4.

37. Mandate for Negotiation on Conventional Armed Forces in Europe (The Vienna Mandate) of 10 January 1989, 1989 Survival 275.

38. Brussels March 17,1948. Since the protocols of 1954 the Brussels Treaty Organisation has become known as the Western European Union. Protocol No. III on the Control of Armaments of Oct. 23, 1954 cites armaments that are not to be manufactured by West-Germany like atomic, biological and chemical weapons, and armaments to be controlled. In Protocol No. IV the Agency of Western European Union for the Control of Armaments (ACA) of Oct. 23, 1954 is established. Its task is: “(a) to satisfy itself that the undertakings set out in Protocol No. III not to manufacture certain types of armaments mentioned in Annexes II and III to that Protocol are being observed; (b) to control, in accordance with Part III of the present Protocol, the level of stocks of armaments of the types mentioned in Annex IV to Protocol No. III held by each member of Western European Union on the mainland of Europe. This control shall extend to production and imports to the extent required to make the control of stocks effective.” Furthermore, the Agency shall: “(a) scrutinise statistical and budgetary information supplied by members of Western European Union and by the NATO authorities; (b) undertake on the mainland of Europe test checks, visits and inspections at production plants, depots and forces […]; (c) report to the Council. See also, V. Kunzendorff,supra note 26, at 16–17: “Controls concerning chemical weapons, including the non-production control in the Federal Republic of Germany are still maintained (the Agency was never in practice required to control nuclear or biological weapons). All other controls ceased at the end of 1985.

39. “We further propose that the CSCE Summit in Paris [Nov. 1990, EM] decide how the CSCE can be institutionalised to provide a forum for wider political dialogue in a more united Europe. We recommend that the CSCE establish […] a CSCE Centre for the Prevention of Conflict that might serve as a forum for exchanges of military information, discussion of unusual military activities, and the conciliation of disputes involving CSCE member states […]”, London Declaration on a Transformed North Atlantic Alliance of July 6, 1990, see supra note 4, at 472.

40. Maresca, J.J., To Helsinki, The Conference on Security and Co-operation in Europe 1973–1975 at 4 (1985).Google Scholar

41. Kovrig, B., “European Security” in East West Relations: the History of a Diplomatic Encounter, in: R. Spencer (ed.), Canada and the Conference on Security and Co-operation in Europe 9 (1984).Google Scholar

42. ABM Treaty, Art. 13: “ 1. To promote the objectives and implementation of the provisions of this Treaty, the Parties shall establish promptly a Standing Consultative Commission, within the framework of which they will (a) consider questions concerning compliance with the obligations assumed and related situations which may be considered ambiguous.”

43. INF Treaty, Art. XIII: “ 1. To promote the objectives and implementation of the provisions of this Treaty, the Parties hereby establish the Special Verification Commission. The Parties agree that, if either Party so requests, they shall meet within the framework of the special Verification Commission to: (a)resolve questions relating to compliance with the obligations assumed; and (b) agree upon such measures as may be necessary to improve the viability and effectiveness of this Treaty.”

44. Under the CFE-1 treaty there is a Joint Consultative Group (Art. XVI) within the framework of which the state parties shall “(A) address questions relating to compliance with or possible circumvention of the provisions of this Treaty; (B) seek to resolve ambiguities and differences of interpretation that may become apparent in the way this Treaty is implemented; (C) consider and, if possible, agree on measures to enhance the viability and effectiveness of this Treaty […]” The Joint Consultative Group shall take decisions or make recommendations by consensus (Para. 4) of all 22 state parties!

45. See H.J. de Lange, supra note 2, at 4 et seq..

46. Already in the SS “Wimbledon” Case (1923 P.C.I.J. (Ser. A) No. 1, at 25) arguments of this kind by states were discarded by the PCU:“… the right of entering into international engagements is an attribute of State sovereignty”.

47. P. van Dijk, supra note 8, at 120.

48. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G. A. Res. 2625 (XXV), of Oct. 24, 1970, Principle 2: The principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security are not endangered.

49. Conferentie over Veiligheid en Samenwerking in Europa, Ministerie van Buitenlandse Zaken (Netherlands Ministry of Foreign Affairs), No. 115, at 108 (1976).

50. A. Bloed, A European System of Peaceful Settlement of Disputes, to be published in Polish Yearbook of International Law (1990).

51. “Justiziable Streitigkeiten sind dem im vorliegenden Verlrag vorgesehenen Standigen Schiedsgericht […] nichtjusliziable Streitigkeiten der im vorliegenden Vertrag vorgesehen Standigen Untersuchungs-, Vermitllungs-und Vergleichskommission […] in unterbreiten” (Art. 4). See H.Jacobson (et al), Sicherheit und Zusammenarbeit in Europa, Analyse und Dokumentation 1973–1978, at 722 (1978).

52. A. Bloed, supra note 50.

53. Id..

54. Interesting and promising is the very explicit reference in the Paris Charter of Nov. 21, 1990 to the Valetta meeting on peaceful settlement of disputes and to mandatory third party involvement: “[W]e will not only seek effective ways of preventing, through political means, conflicts which may yet emerge, but also define, in conformity with international law, appropriate mechanisms for the peaceful resolution of any disputes which may arise. Accordingly, we undertake to seek new forms of co-operation in this area, in particular a range of methods for the peaceful settlement of disputes, including mandatory third-party involvement. We stress that full use should be made in this context of the opportunity of the Meeting on the Peaceful Settlement of Disputes which will be convened in Valetta at the beginning of 1991” (p. 11).

55. “In order to ensure the progressive implementation of this commitment, including, as a first step, the mandatory involvement of a third party in the settlement of certain categories of disputes, they decide to convene a Meeting ofExperts in Valleta from 15Jan.to8Feb. 1991 to establish a list of such categories and the related procedures and mechanisms. This list would be subject to subsequent gradual extension.The Meeting will also consider the possibility of establishing mechanisms for arriving at binding third party decisions. The next CSCE Follow-up Meeting will assess the progress achieved at the Meeting of Experts.” See A. Bloed, supra note 28, at 185.

56. See supra note 37.

57. A. Bloed, who proposes a system of peaceful settlement of disputes that takes as a starting point the present system of supervision of the human dimension of the CSCE process (CDH), also seems to be of the opinion that such a system would only apply to less sensitive issues in other areas.

58. Bloed, A., Institutional aspects of the Helsinki process after the follow-up meeting of Vienna, 36 NILR 342 (1989).CrossRefGoogle Scholar

59. Id. at 353.

60. Id..

61. A. Bloed, supra note 50.

62. When students discovered that there was indeed a precedent, he consoled them by saying that “finding the precedent did not destroy their idea; in fact it strengthened their discovery by providing additional, historical foundation for it”. L.B. Sohn, International Arbitration in Historical Perspective: Past and Present, in: A.H.A. Soons (ed.), supra note 12, at 9. An extensive historical study on the different modes of settlement of international disputes is his: Settlement of Disputes Relating to the Interpretation and Application of Treaties, 150 Hague Recueil 195–294 (1976–11). In this context it needs mentioning that present day circumstances make it worthwhile to reconsider some aspects of his and Grenville Clark's World Peace Through World Law (1964). In this study a mix of modes for the settlement of disputes is offered.

63. According to Art. 287 of the Convention a state shall be free to choose between the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, or a special arbitral tribunal. See O.A. Adede, The system for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987). Regarding the delicate nature of reaching this compromise he remarks: “The substantive parts of the Convention were the result of delicate compromises, which were pain stakingly negotiated in a spirit of give a little - get a little. Thus, the competing rights and obligations of the parties to the new Convention so carefully balanced in the substantive provisions of the Convention would easily disintegrate through unilateral interpretations of the treaty itself in the case of a dispute” (p. 241).

64. The Convention on the settlement of Investment Disputes between States and nationals of Other States opened up for signature on Mar. 18, 1965.

65. It seems unlikely that such system of verification could be realized by the Conflict Prevention Centre (CPC) as established by the Paris Charter, and also mentioned in the NATO declaration of July 6, 1990, since the CPC appears more an agency meant to facilitate the smooth operation of certain arrangements entered into, than an agency able to produce the necessary neutral facts. It is also unclear what its task could be in relation to the effective settlement of disputes along the lines described here. “l.The Conflict Prevention Centre (CPC) will assist the Council in reducing the risk of conflict. The Centre's functions and structure are described below. 2. During its initial stage of operations the Centre's role will consist in giving support to the implementation of CSBM's such as: -mechanism for consultation and co-operation as regards unusual military activities; -annual exchange of military information; -communications network; -annual implementation assessment meetings; -co-operation as regards hazardous incidents of a military nature. 3. The Centre might assume other functions and the above tasks are without prejudice to any additional tasks concerning a procedure for the conciliation of disputes as well as broader tasks relating to dispute settlement, which may be assigned to it in the future by the Council of Foreign Ministers.” Supplementary Document to Give Effect to Certain Provisions Contained in the Paris Charter for a New Europe, at 4.

66. Given the close relationship between verification and dispute settlement, this gives an additional argument for the choice of dispute settlement in the context of the PCA (The Hague).

67. Northedge, F.S. & Donelan, M.D., International Disputes: the Political Aspects 278 (1971).Google Scholar

68. Id. at 283.

69. See Henkin, L., How Nations Behave, Law and Foreign Policy 187 (1979).Google Scholar

70. See, e.g., Art. 28 of the Geneva General Act for the Pacific Settlement of International Disputes of 1928, as revised in 1949, G.A. Res. 268 (III) of April 28,1949. This article provides that when there exists no rule of international law applicable to the dispute, the arbitral tribunal shall decide ex aequo et bono.

71. Leweler, J.K., International Commercial Arbitration as a Model for Resolving Treaty Disputes, 1989 New York University Journal of International Law and Politics 382.Google Scholar

72. Id. at 400.

73. Id. at 401.

74. Id..

75. For an ‘update’ of the PCA the European Convention for the Peaceful Settlement of Disputes (Council of Europe, Strasbourg, Apr. 29,1957) may be useful. In this Convention there is reference to Parts HI and IV of the 1907 Hague Convention. This Convention not only deals with arbitration and conciliation, but also with judicial settlement 76.

76. Convention for the Pacific Settlement of International Disputes, The Hague, Oct. 18, 1907.

77. The PCA has as its seat The Hague. In reality this is an international bureau serving as the registry for the PCA, which is in charge of the archives and conducts the administrative business. At this bureau there is a list with names of potential arbitrators.

78. The three main areas, or baskets, where the CSCE process is operative are: political and security issues(I); questions of economic cooperation, of science and technology and of the environment (II) and humanitarian questions (III). (The fourth basket concerns the follow up to the Conference.) The peaceful settlement of disputes falls under the first basket. The linkage of all these baskets is a very important feature of the CSCE process. This means that in principle the progress in one area is linked to the progress in the other two CSCE areas or baskets. See A. Bloed, supra note 26, at 9.

79. Art. 37, Hague Convention: “Recourse to arbitration implies an engagement to submit in good faith to the award”. Art. 39, European Convention for the Peaceful Settlement of Disputes: “1. Each of the High Contracting Parties shall comply with the decision of the ICJ or the award of the Arbitral Tribunal in any dispute to which it is a party. 2. If one of the parties to a dispute fails to cany out its obligations under a decision of the ICJ or an award of the arbitral Tribunal, the other party to the dispute may appeal to the Committee of Ministers of the Council of Europe. Should it deem necessary, the latter, acting by a two thirds majority of the representatives entitled to sit on the Committee, may make recommendations with a view to ensuring compliance with the said decision or award.”