Dr. Catherine MacKenzie
Member of Faculty of Law and Director of studies of Homerton College – University of Cambridge

Abstract:

This paper explores the guarantee of international peace and security provided by the United Nations and analyses the role of the Security Council in the resolution of international disputes. This is particularly relevant to Kuwait as in 2018, Kuwait became chair of the Security Council and so exercised a pivotal role in the drafting of Security Council resolutions. This paper argues that notwithstanding the use of force by some nations, international law has a critical role to play in the resolution of international disputes and that the Security Council is well served by its rotating system of leadership.
International law developed from the 17th century onwards as a system of ordering international relations, and articulating the rights and claims of states, without supra-national institutions of any kind. The Treaty of Westphalia envisaged a system of collective security for resolving disputes but it did not involve any new institutions and was never operative (see Treaty of Münster, 24 October 1648, Arts 123-124, 319 CTS 1, 354). The ultimate way in which international disputes were settled, if diplomacy failed, was by war, which Grotius compared to a lawsuit. In the 19th century an informal “Concert of Europe” operated in which the major powers exercised strong influence over major disputes, but again this was never embodied in any institutional form.
The development of public international arbitration in the modern period is usually said to date from the Jay Treaty of 1794: see A Stuyt, A Survey of International Arbitrations 1794-1989 (1990). In fact arbitration of “inter-communal” disputes was common in ancient Greece and there are modern examples before 1794. But considerable impetus was given to the idea of inter-state arbitration as a result of the Alabama Arbitration (Great Britain v USA) (1872) Moore, 1 Int Arb 495. The first standing arbitral body was the Permanent Court of Arbitration (1900), established as a result of the First Hague Peace Conference in 1899. The spectacular failure of the Concert of Europe to prevent the Great War led to the establishment of the first general political international organisation seeking to resolve international disputes and to keep the peace, the League of Nations (1919-1946), and the first standing international court, the Permanent Court of International Justice (1922-1946).After World War II the United Nations replaced the League of Nations in the former role, the International Court of Justice replaced the PCIJ in the latter. The period since 1945 has seen a proliferation of dispute settlement procedures and mechanisms. Some of these have not been used at all (e.g. OSCE) or only to a limited extent (e.g. ITLOS). Others have been or are being heavily used: e.g. the European human rights mechanisms, the WTO DSB, the Optional Protocol procedure under the ICCPR; the Inter-American human rights system; more recently ICSID arbitration, NAFTA arbitration. Note that most of these (with the exception of the WTO) are “mixed” procedures of one kind or another.
More recent developments have allowed individuals to be incorporated into international dispute settlement in cases where they are directly concerned or affected, at least to some degree. Briefly, they include:
• in the field of commercial disputes, allowing individuals access to mixed arbitration (Iran-US Claims Tribunal, ICSID), or extending international systems of recognition of enforcement of private arbitration to mixed cases (e.g. under the 1958 New York Convention);
• in the field of human rights, progressively allowing individuals standing to challenge state action, including action of their state of nationality;
• alternatives to diplomatic protection which do not involve judicial remedies (national claims commissions; UN Compensation Commission).
Despite these developments, it remains a question whether private individuals litigating at the international level do so as equals defending their own rights or as delegates of their States of nationality. There has been a gradual recognition that individual states may have a form of “public interest” standing in relation to certain fundamental obligations, though the modalities and extent of any such standing are still poorly articulated. This paper seeks to contribute to international law on guarantees by articulating the UN’s guarantees of international peace and security in the light of the unique current position of the GCC states.

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