THE ROLE OF UNITED NATIONS AND REGIONAL ORGANIZATIONS IN RESOLVING DISPUTES IN INTERNATIONAL LAW: A CASE STUDY OF CONGO

THE ROLE OF UNITED NATIONS AND REGIONAL ORGANIZATIONS IN RESOLVING DISPUTES IN INTERNATIONAL LAW: A CASE STUDY OF CONGO

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CHAPTER ONE

GENERAL INTRODUCTION

1.1       Background to the Study

 The international political climate is currently fraught with unresolved inter-state and intra-state disputes that emanate often from mere suspicion, mistrust, political and economic rivalry as well as competition over territory. Disputes, if not carefully monitored and resolved peacefully, they may, (as they have) lead to armed conflicts –conflicts that would bring (as they have done so) devastating effects not only to the disputants but also to the international community. To this end, the desire for the maintenance of international peace and security has always been at the heart of the international community. States have concluded a number of multilateral treaties ranging from 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the second Hague Peace Conference in 1907 aimed at peaceful settlement of their disputes and difference[1]. This was also the basic objective behind the creation of the League of Nations in 1919 and the United Nations (UN) in 1945. Since its inception, the UN has taken responsibility for maintaining world peace and security. Drafters of UN Charter envisioned an organisation in the entire spectrum of conflict management and resolution, from preventive measures to ad-hoc responds to crisis, to longtime stabilisation of conflict areas with view of saving the succeeding generations from the scourge of war which has on two separate occasions brought untold sorrow to mankind[2]. To this end, the Charter obliges the parties to any dispute capable of endangering international peace and security to settle such dispute either through negotiations, enquiry, mediation, conciliation, good office or adjudication or any peaceful means of their choice. Or resort should be had to regional arrangements or agencies. When this is not successful, the UN is permitted to intervene to consider the dispute and make recommendations[3].

 However, the end of cold war presented both opportunities and challenges for the international community. Opportunities in the sense that UN found itself freer to act than at any time in its history; challenges in the sense that the end of cold war has ushered in a regime of armed conflicts at intra- state level largely because people‟s expectations for an improved and egalitarian  society have not materialised. Consequently, ethnic and nationalist forces whose expectations were not met began to challenge state authority and old imperial boundaries. In fact, sub-national group demands for empowerment, autonomy and even independence took a violent dimension in the struggle for self-determination[4]. This has for instance resulted in the collapse of state institutions in Somalia, a coup in Haiti, and civil wars in Bosnia, Cambodia, Salvador, Guatemala, DR Congo, and Angola among other countries. Sequel to this development therefore, it became necessary for the UN to draw support from regional organizations in the maintenance of international peace and security. This was predicated partly on the assumption that the parties understand the security challenges of their respective regions better and partly as a form of burden sharing[5]. Therefore, while the UN primary responsibility still remains that of maintenance of internationalpeace and security, the regional agencies are only expected to lighten the burden of the UN by rendering services toward the attainment of regional and subsequently to international peace and security in a manner consistent with the purpose and principles of the UN Charter[6]

 In Africa, given that the state of peace and security on the continent has remained a pre-occupying phenomenon, certain regional organisations have since become directly involved in conflict resolution in their regions. For instance, the African (AU), the Economic

Community of West African States (ECOWAS), the Southern African Development Community (SADC), the Intergovernmental Authority on Development (IGAD) have played increasing role of late in resolving regional conflicts in various regions in the continent. However, while these organisations have made remarkable impact in certain places, their efforts in other places have not yielded a resounding success. For instance, the Southern African Development Community (SADC) may be said to have achieved a relative success in the settlement of disputes that resulted in millions of casualties in the 1990s in Angola, the same may not be said of SADC in places like Somalia and Democratic Republic of Congo.  In fact, in DR Congo since 1996 up till now, a regional war has ravaged almost the entire country. What has started as an internal crisis for a troubled Central African state could not be effectively resolved by the SADC consequently, turning some parts of the country into a theatre of war, resulting in negative security and socio-economic condition. Beyond the deaths and displacements caused directly by this war, it has also cause deterioration of health level for the entire state[7]. This development has raised a big question as to the effectiveness of the UN regional organisation in bringing about a peaceful settlement of disputes in this

African Sub-region.

1.2       Statement of Problem

 The quest for the maintenance of the international peace and security has always been at the heart of the United Nations. Although, Article 24 in Chapter V of the UN Charter[8] clearly vests the responsibilities for the maintenance of international peace and security in the Security Council, the Charter in Article 33 provides a role for regional organisations in the maintenance of peace and security in their respective regions. However, the achievement of this objective may not be as simple as it appears on the face of it. In the first place, there may be problem when a settlement is effected bya political organ like the UN Security Council because there may be a likelihood of personal interest or there may not be a common interest among the members of this political organ to bring about the resolution of international dispute or to respond promptly to such dispute in the interest of the states parties concerned. For instance, while conflicts like Iraq inversion of Kuwait may evoke prompt responses, can others which are less consequential or less clear-cut attract the same responses? Again, there may be a problem of absence of due process as regards the way decisions in matters affecting the legal interests of states should be taken as this can give rise to unnecessary tension in international relations and consequently endanger international peace and security.

 Secondly, the United Nations Charter has obliged the parties to any dispute endangering international peace and security to settle such dispute peacefully but, there no obligation under the Charter to settle disputes. One may therefore ask whether the absence of this obligation will not constitute a gap in the international law system which may remain a source of tension from time to time thereby threatening international peace and security as state parties may not be willing to take their dispute to a court for diplomatic political reasons (as in the case of Argentine and United Kingdom‟s claim to the Falklands). Further still, how do we determine which conflict may likely endanger international peace and security. It is imperative to set out the parameters for the sake of sovereignty and the division at the UN Security Council as this has often led to late or non intervention international dispute.  

 Thirdly, the Charter permits UN to intervene and consider the dispute and make recommendations where the parties failed to reach an agreement. While the strengthening role of the UN Security Council may be viewed as a positive development, will it not also produce resentment if is perceived by the state parties particularly in developing countries as an imposition from the major powers? Furthermore, the Charter obliges states parties to settle any dispute endangering international peace and security through any of the means provided within the Charter. What then becomes the position where a dispute only threatens to endanger international peace and security? Will it not be easier and better in terms of consequences to regulate a dispute at the level of threat than when it has become a full blown armed conflict? 

 Again, peaceful methods of international dispute settlements have been increasingly accepted as the preferred way of resolving dispute. However, despite the increased utilization of these methods in resolving conflicts and other forms of hostilities, studies show that only 50 percent of all peaceful settlements last beyond five years[9]. While in certain situation, settlement of disputes through these means has not recorded a resounding success. This has raised a big question as to the effectiveness of these methods. This research will strive to address all these issues.

1.3        Objective of the Research 

 The objective of this research is to examine the United Nations approach to peaceful settlement of African regional dispute with particular reference to Angola and the Democratic Republic of Congo.The concern is simply to look at the effectiveness of the UN through its regional agencies in Africa, in terms of their success in the peaceful resolution of regional disputes in the continent. To this end, the research using Congo as a case study examines the process of peaceful settlement of disputes in Africa since the end of cold war, particularly in terms of their compatibility with the United Charter and in terms of their effectiveness. 

1.4       Scope of the Research

 This research is restricted to the examination of the United Nations peaceful settlement of African regional disputes with reference to Congo DRC. Hence, the work will be limited to examining relevant articles of the United Nations Charter particularly as it relates to peaceful settlement of disputes, as well as other relevant literatures on the subject of this research. Though territorial, the research is confined to Congo DRC, reference may still be made to other regions or state for guidance where necessary.

1.5       Research Methodology  

 Doctrinal research method is adopted for this research. Therefore, the research is library oriented, using statutes, books, internet materials, news papers, and relevant journals from both foreign and indigenous authors. 

 The research equally utilises the decisions of some UN Arbitration Tribunal as well as the decisions of International Court Justice. These materials would provide the basis for examining the methods of peaceful settlement of regional and international disputes under the

UN Charter.

1.6       Significance of the Research 

 This study is relevant, it provide additional information for understanding how most international disputes arose and degenerate into violent stage due to poor management. The states and the world at large also stands to benefit from this work in that regional and international peace which this work set out to achieve will no doubt guarantee sound international relations and consequently save the succeeding generations from the scourge of war which has on two separate occasions brought untold sorrow to mankind. This work is equally beneficial because it will provide additional reference material for students, researchers, diplomats and the general public.

1.7       Literature Review

 A lot has been written regarding peaceful settlement of international disputes from different perspectives. While some focused on the meaning and importance of peaceful settlement of international disputes, others are simply concerned with the methods of settling such disputes. However, in spite of the contributions made by scholars on this topic, there still exist some issue that merit consideration.  For instance, Brownlie[10] explained peaceful settlement as a phrase which covers a considerable variety of processes and outcome such as settlement according to law resulting from judicial decision or arbitration, negotiation involving states and political compromise, and multilateral settlement implemented with the lawful authority of the international community. He stated further that the standard type of settlement is based on the genuine consent of the parties to the dispute and involves the application of the law, and in case of purely factual issues, the application of judicial standard of assessment of evidence. The learned author further mentioned legal and political dispute as the two main classification of international dispute. Though this work has no doubt provided a conceptual basis for understanding the meaning and the classification of the methods of peaceful settlement of international dispute, it has however failed to provide the basis for distinguishing between legal and political dispute.  

 Ortino[11]enumerated the methods of peaceful settlement to include negotiation, good office, mediation, inquiry, conciliation, arbitration and judicial settlement. He traced the history of these methods of disputes settlement to the World War I and II, and maintained that the rationale behind the development of these strategies was to save the succeeding generation from experiencing further wars. The learned author stated further that these methods have been undergoing numerous changes, resulting in numerous applications which have proved useful in the practical implementation and resolutions of international dispute. He maintained further that in recent times, particular attention has given to all these forms of dispute resolution, starting from the International Court of Justice (ICJ), the United Nations and its role, peace keeping missions, the role of well known regional organisations like the

E.U, AU, NATO, among others. While this may still be relevant, it has however not shown why these forms of dispute settlement, particularly the ICJ, the United Nations and the regional organizations have in certain instances not recorded a resounding success.

 Hampson[12]emphasized the role of the international community and the adoption of power sharing strategies as key to successful resolution of international dispute. He argued that international peace and security can be achieved only when the international community has taken the responsibility of facilitating the settlement and implementation of peace agreements. He stated further that the more involved the international community is in the settlement of international dispute, the higher the probability for a successful negotiated settlement. However, while this position may be valid and workable in certain situations, the learned author did not take into consideration the significance of the consent of the parties to the dispute in bringing about settlement as in many instances the resolution of international disputes has witness setback due to the absence of the consent of the parties to the dispute. The work did not also clarify what role the international community should play in ensuring stability during the implementation of the peace agreement particularly in Africa. 

 Stedman in his work titled the “Spoilers Problems in Peace Process[13]” examines what he called the “types of groups fighting in the civil war”. He stated that by correctly identifying and attending to the spoilers of peace process and the means by which the international community may meaningfully intervene in international dispute, the international organizations can successfully manage a peace process. In the same vein, Kumar[14]claims that in order to settle international dispute peacefully, the international community must engage the local political community and thoroughly understand the political landscape. He stated further that the international community should work within the framework of the political environment of the post-conflict state to develop processes by which needs are addressed and institutions developed. While these works shed light on the conditions for the advancement of peace process, they seem to leaves out the reactions of the faction leaders to those very conditions and how they impede or advance the implementation of a peace agreement.

 Licklider[15],  (Hartzell and Rothchild[16]) contended that though negotiated settlement have been accepted as preferred way of resolving disputes, only 50 percent of all disputes settled through these methods last beyond five years while in others, settlements have been shown to keep the peace for only three and a half years. Dorina[17] argues further that this timeframe suggests that warring parties cannot successfully implement the peace agreement. These literatures have no doubt provided a basis for appreciating the weaknesses inherent in negotiated settlement, but they have however not explained the underlying factors responsible for such weaknesses. 

 Anand[18] also wrote on   peaceful settlement of international dispute, he argued that the best way to settle international dispute is through an impartial third parties as according to him, the permanent Court of Arbitration and the International Court of Justice are woefully deficient. He contended further that the UN has over the years created numerous tribunals without a structured relationship or hierarchy between them thereby in certain instances resulting in conflicts of jurisdiction. The writer however fails to examine some of the causes of international disputes and the settlement mechanisms. Some of which if adequately researched into, they would have provided information regarding the reasons behind the relative strength and weaknesses of the system.

 Prof. Umozurike[19] writing under the topic Collective Security stated that the United Nations Security Council (UNSC) has not been very successful at the use of force to restore or maintain international peace and security for many reasons. In first place, Article 41 of the UN Charter envisages that plans for the use of force shall be made with the assistance of military staff committee consisting of the chiefs of staff of the permanent member or their representative. This committee has not been established because of differences among the permanent members over the size, contributions, and locations. Secondly, the UNSC has not been able to effectively fulfill its mandate when conflict arose sink its decisions on those matters demand the concurring votes of the permanent members. Each of them enjoys the veto power and they are prone to cast a negative vote when the decision would affect their interest directly or indirectly. While this is correct and has considerably affected the role of UN in maintenance of peace, the author did not make reference to any conflict or dispute as a good example. The present writer, using Congo crisis examines the impact of the exercise of veto power by the permanent members of the UNSC on maintenance of international peace and security.

 Taiwo[20], argued that in order for the UNSC to command worldwide respect and legitimacy, it should be democratized and expanded by bringing on board the representative of those regional blocs which have no representation. He equally submitted that because of the phenomenal increase in the membership of the UN it is no longer tenable in the 21st century to have only five permanent members at the UNSC. While this writer agrees that democratization of UNSC is imperative, it cannot in itself be the solution to problem of UNSC when it is required to act swiftly to deal with threat to international peace and security.

 Prof. Ladan[21], writing on the topic peacekeeping: concept and practice analyse the role of United Nations, some regional and sub regional organizations like the African Union

(AU) Economic Community of West African States, ECOWAS and the South African Development Community (SADC) in pacific settlement of disputes. He concluded that these bodies have not been able to prevent wars in Africa and suggested that new institutions have to be put in place to tackle political tension on the continent of Africa. While, this may be correct, the author failed to analyse why the UN peacekeeping efforts and that of the regional organizations have failed. This writer examines the role of these organizations in settlement of disputes, and analyse why their effort have not recorded the desired objectives.

 Okeke[22], while writing under a rather very ambitions title “the Theory and Practice of International in Nigeria, did not make any reference to pacific settlement of international disputes, the role of United Nations and regional organization. This is curious because the author wrote on the Nigerian Civil War. This is a big lacuna because conflict particularly civil wars, are common phenomenon in the African continent and most of these states are member of UN and other regional organs. Thus, this work is significant as it attempt to examine the role of UN and regional organization in the settlement of dispute in international law using

Congo conflict as a case study.

1.8        Organisational layout 

 This work is made up of five chapters.  Chapter one gives a general introduction to the work and further outlines the statements of the problem, the objective of the research, the scope, methodology, significance of the study, literature review and organisational layout.  

 Chapter two focuses on peaceful settlement of international disputes under the UN Charter. It examines both the diplomatic methods of international disputes settlement which include negotiations, enquiry, mediation, conciliation and good office, as well as the adjudicative and institutional methods of disputes resolution.

 Chapter three and four examine the UN settlement of regional disputes in Africa with particular reference on Congo DRC. The chapters highlight the background to the conflicts in the Congo. Chapter four further examines the challenges in the various peacekeeping missions in resolving the conflict and Chapter five is the concluding

chapter.Itsummarizesthework, highlightssomemajor findings and makes recommendations


[1] Collier, J. and Lowe, v. The Settlement of Disputes in International Law, Cambridge (1999) @ www. https://sitesgoogle.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-disputes, accessed on 5th June, 2013 at 9.00pm.

[2] Osmancavusoglu, E. “Challenges to United Nation Peacekeeping Operation in the Post-Cold War Era “ Journal of International Affairs, (1999-2000) VOL. 4 p.4

[3] Article 1 (1) & 33 (1) United Nation Charter, 1945.

[4] Gambari, I. A.  The Challenges of Peace-Keeping and Peace-Making in Africa: The  Role of the United Nations and Nigeria‟s Contributions (2000)  @www.nigerianworld.com/feature/article/peace-keepinghtml

[5] Essuman, J. A. Regional Conflict Resolution Mechanisms :A Comparative Analysis of Two African Security Complexes, African Journal of Political Science and International Relations (2009) Vol.3 p.409-422  available @ www.academicjournal.org/ajpsir

[6] Michael, W. D. & Nicholas, S. “Making War and Building Peace: United Nations Operations” @www.press.princeton.edu/chapters/s8196.html,  

[7] Ibid.

[8] Article 24, United Nations Charter, 1945.

[9] Hartzell, H., Rothchild, H., Donald, L. “Ethnic Groups in Conflict”, University of California Press: Berkeley, CA.  (2001). p.195


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