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parties, the inviolability or the integrity of the territory or the sovereignty or political independence of any party in the treaty area or of any other state or territory to which the provisions of paragraph 1 of this Article from time to time apply is threatened in any way other than by armed attack or is affected or threatened by any fact or situation which might endanger the peace of the area, the parties shall consult immediately in order to agree on the measures which would be taken for the common defense." Article 5: "The parties hereby establish a Council, on which each of them shall be represented, to consider matters concerning the implementation of this treaty. The Council shall provide for consultation with regard to military and any other planning as the situation obtaining in the treaty area may from time to time require. The Council shall be so organized as to be able to meet at any time” (Disarmament and Seourity, pp. 611 ff.); and in the Treaties for Mutual Defense Assistance concluded on the basis of the Mutual Defense Assistance Act of 1949 (Public Law 329, 81st Congress; 63 Stat. 714). For instance, Article VI, paragraph 1, of the Mutual Defense Assistance Agreement between the United States of America and France, signed at Washington on 27 January 1950 (Department of State Publication 3769), stipulates: “The two Governments will, upon the request of either of them, consult regarding any matter relating to the application of this Agreement or to operations or arrangements carried out pursuant to this Agreement.” Similar provisions are contained in other Mutual Defense Assistance Agreements.
Consultation as a means for the preservation of peace has played an important part in the Pan-American movement. The Inter-American Conference for the Maintenance of Peace, Buenos Aires, 1936, recommended : “The procedure of mutual consultation in order to find means of peaceful cooperation in the event of war or threat of war between American countries," and recognized “that every act susceptible of disturbing the peace of America affects each and every one of the American Nations and justifies the initiation of the procedure of consultation.” At the Eighth International Conference of American States, Lima, 1938, these states declared : “That in case the peace, security or territorial integrity of any American republic is threatened by acts of any nature that may impair them, they proclaim their common concern and their determination to make effective their solidarity, coordinating their respective sovereign will by means of the procedure of consultation, using the measures which in each case the circumstances may make advisable." Declaration Fourth of the Act of Chapultepec, 8 March 1945, reads as follows: "That in case that acts of aggression occur or there may be reasons to believe that an aggression is being prepared by any other State against the integrity or inviolability of the territory, or against the sovereignty or political independence of an American State, the states signatory to this declaration will consult amongst themselves in order to agree upon measures they think it may be advisable to take.” The Inter-American Treaty of Reciprocal Assistance, Rio de Janeiro, 2 September 1947, to which the United States of America is a contracting party, stipulates: "Art. 7. In the case of the conflict between two or more American States, without prejudice to the right of self-defense in conformity with Article 51 of the Charter of the United Nations, the High Contracting Parties, meeting in consultation shall call upon the contending States to suspend hostilities and restore matters to the status quo ante bellum, and shall take in addition all other measures necessary to re-establish or maintain inter-American peace and security and for the solution of the conflict by peaceful means. The rejection of the pacifying action will be considered in the determination of the aggressor and in the application of the measures which the consultative meeting may agree upon. Art. 8. For the purposes of this Treaty, the measures on which the Organ of
Consultation may agree will comprise one or more of the following: recall of chiefs of diplomatic missions ; breaking of diplomatic relations; breaking of consular relations; partial or complete interruption of economic relations or of rail, sea, air, postal, telegraphic, telephonic, and radio-telephonic or radio-telegraphic communications; and use of armed force. Art 9. In addition to other acts which the Organ of Consultation may characterize as aggression, the following shall be considered as such: a. Unprovoked armed attack by a State against the territory, the people, or the land, sea or air forces of another State; 7. Invasion, by the armed forces of a State, or the territory of any American State, through the trespassing of boundaries demarcated in accordance with a treaty, judicial decision, or arbitral award, or, in the absence of frontiers thus demarcated, invasion affecting a region which is under the effective jurisdiction of another State. Art. 10. None of the provisions of this Treaty shall be construed as impairing the rights and obligations of the High Contracting Parties under the Charter of the United Nations. Art. 11. The consultations to which this Treaty refers shall be carried out by means of the meetings of the Ministers of Foreign Affairs of the American Republics which have ratified the Treaty, or in the manner or by the Organ which in the future may be agreed upon. Art. 12. The Governing Board of the Pan American Union may act provisionally as an organ of consultation until the meeting of the Organ of Consultation referred to in the preceding Article takes place. Art. 13. The consultations shall be initiated at the request addressed to the Governing Board of the Pan American Union by any of the Signatory States which has ratified the Treaty. Art. 14. In the voting referred to in this Treaty only the representatives of the Signatory States which have ratified this Treaty may take part. Art. 15. The Governing Board of the Pan American Union shall act in all matters concerning this Treaty as an organ of liaison among the Signatory States which have ratified this Treaty and between these States and the United Nations. Art. 16. The decisions of the Governing Board of the PanAmerican Union referred to in Articles 13 and 15 above shall be taken by an absolute majority of the members entitled to vote. Art. 17. The Organ of Consultation shall take its decisions by a vote of two-thirds of the Signatory States which have ratified the Treaty. Art. 18. In the case of a situation or dispute between American States, the parties directly interested shall be excluded from the voting referred to in the two preceding Articles. Art. 19. To constitute a quorum in all the meetings referred to in the previous Articles, it shall be necessary that the number of States represented, shall be at least equal to the number of votes necessary for the taking of the decision. Art. 20. Decisions which require the application of the measures specified in Article 8 shall be binding upon all the Signatory States which have ratified this Treaty, with the sole exception that no State shall be required to use armed force without its consent. Art. 21. The measures agreed upon by the Organ of Consultation shall be executed through the procedures and agencies now existing or those which may in the future be established.”
The Charter of the Organization of American States, Bogota, March 30-May 2, 1948, contains the following provisions : "Chapter XI: The Meeting of Consultation of Ministers of Foreign Affairs. Art. 39. The Meeting of Consultation of Ministers of Foreign Affairs shall be held in order to consider problems of an urgent nature and of common interest to the American States, and to serve as the Organ of Consultation. Art. 40. Any Member State may request that a Meeting of Consultation be called. The request shall be addressed to the Council of the Organization, which shall decide by an absolute majority whether a meeting should be held. Art 41. The program and regulations of the Meeting of Consultation shall be prepared by the Council of the Organization and sub
mitted to the Member States for consideration. Art. 42. If, for exceptional reasons, a Minister of Foreign Affairs is unable to attend the meeting, he shall be represented by a special delegate. Art 43. In case of an armed attack within the territory of an American State or within the region of security delimited by treaties in force, a Meeting of Consultation shall be held without delay. Such Meeting shall be called immediately by the Chairman of the Council of the Organization, who shall at the same time call a meeting of the Council itself. Art. 44. An Advisory Defence Committee shall be established to advise the Organ of Consultation on problems of military cooperation that may arise in connection with the application of existing special treaties on collective security. Art. 45. The Advisory Defence Committee shall be composed of the highest military authorities of the American States participating in the Meeting of Consultation. Under exceptional circumstances the Governments may appoint substitutes. Each State shall be entitled to one vote. Art. 46. The Advisory Defence Committee shall be convoked under the same conditions as the Organ of Consultation, when the latter deals with matters relating to defence against aggression. Art. 47. The Committee shall also meet when the Conference or the Meeting of Consultation or the Governments, by a two-thirds majority of the Member States, assign to it technical studies or reports on specific subjects.”
An obligation of consultation is imposed upon the contracting parties by the Treaty of Economic, Social and Cultural Collaboration and Collective SelfDefense, signed at Brussels on 17 March 1948 by Belgium, France, Luxembourg, the Netherlands and the British Empire, which contains the following provisions : “Art. 1. Convinced of the close community of their interests and of the necessity of uniting in order to promote the economic recovery of Europe, the High Contracting Parties will so organize and coordinate their economic activities as to produce the best possible results, by the elimination of conflict in their economic policies, the coordination of production and the development of commercial exchanges.—The cooperation provided for in the preceding paragraph, which will be effected through the Consultative Council referred to in Article 7 as well as through other bodies, shall not involve any duplication of, or prejudice to, the work of other economic organizations in which the High Contracting Parties are or may be represented but shall on the contrary assist the work of those organizations. Art. 2. The High Contracting Parties will make every effort in common, both by direct consultation and in specialized agencies, to promote the attainment of a higher standard of living by their peoples and to develop on corresponding lines the social and other related services of their countries. The High Contracting Parties will consult with the object of achieving the earliest possible application of recommendations of immediate practical interest relating to social matters, adopted with their approval in the specialized agencies. They will endeavour to conclude as soon as possible conventions with each other in the sphere of social security." "Art. 7. For the purpose of consulting together on all the questions dealt with in the present Treaty, the High Contracting Parties will create a Consultative Council, which shall be so organized as to be able to exercise its functions continuously. The Council shall meet at such times as it shall deem fit. At the request of any of the High Contracting Parties, the Council shall be immediately convened in order to permit the High Contracting Parties to consult with regard to any situation which may constitute a threat to peace, in whatever area this threat should arise, with regard to the attitude to be adopted and the steps to be taken in case of a renewal by Germany of an aggressive policy; or with regard to any situation constituting a danger to economic stability."
Other treaties concluded for the purpose of economic and cultural cooperation, also contain the obligation of consultation. An example is the Agreement establishing the South Pacific Commission concluded by Australia, France, the Netherlands, New Zealand, United Kingdom and the United States, Canberra, on 6 February 1947 for cooperation in promoting the economic and social welfare advancement of the peoples of the non-self-governing territories in the South Pacific region administered by them. According to Article IV: “The Commission shall be a consultative and advisory body to the participating Governments in matters affecting the economic and social development of the non-self-governing territories within the scope of the Commission and the welfare and advancement of their peoples.”
11. London Naval Conference: Speeches and Press Statements by Members of the American Delegation, January 20-April 29, 1930 (Department of State Publication, Conference Series, No. 3), p. 35.
12. New York Times, 28 March 1930.
14. John Bassett Moore, “An Appeal to Reason," Foreign Affairs, Vol. 11 (July 1933), pp. 571-2.
(bb) The peaceful settlement of international disputes.
An international dispute exists if one state claims that another state should behave in a certain way, and the latter rejects the claim of the former.
Disputes between states, just as disputes between human beings, may be settled peacefully either by agreement of the parties to the disputė or by the decision of an agency which is binding upon the parties.
The agreement may be brought about through direct negotiation by the states, parties to the dispute, or through the friendly intervention of a third state or some third states. This friendly intervention is called good offices or mediation. The purpose of both procedures is to bring about an agreement of the parties to the dispute. Some writers speak of mediation, in contradistinction to good offices, if one or more third states try to bring about an agreement of the parties to the dispute on the basis of concrete proposals made by the mediator. In both cases the suggestions made to the parties to the dispute are not binding
If a dispute arises from a difference of opinion on points of fact it may be submitted to an international commission of inquiry established by a special agreement between the parties to the dispute. The function of the commission of inquiry is restricted to a statement of facts. The parties to the dispute may or may not accept this statement.
If the commission is competent not only to ascertain disputed facts but also to make recommendations for the settlement of the dispute, one speaks of conciliation. The commission of conciliation may be
composed as follows: each party to the dispute appoints one or an equal number of members and, by agreement, these members appoint a chairman. The commission may adopt its decision by majority vote, but settlement of the dispute is brought about only if the parties accept the recommendations of the commission, which implies that they have come to an agreement.
Within a more or less universal security organization the function of conciliation is conferred by the constituent treaty upon a central agency of the organization composed of representatives of all, or only of some, of the members of the organization. The party to a concrete dispute, which is not a member of the agency, may be authorized to send a representative to participate in the discussion of the case. The representatives of the parties may or may not be entitled to participate in the decision.
The function of the agency has the character of conciliation if its decisions constitute only recommendations which are not legally binding upon the parties. If its decisions are binding upon the parties, the function has a quasi-judicial character and differs from that of a tribunal insofar as its members are not, as in the case of a tribunal, independent judges but representatives of the governments by which they are appointed and hence bound by instruction given to them by their governments.
The constituent treaty of an international security organization may impose upon its members the obligation to submit their disputeseven disputes with non-members—to the conciliation procedure provided for by the treaty. This means that if one party to a dispute submits a case to the competent organ the other party is obliged to recognize the jurisdiction of this organ. In other terms: the constituent treaty may establish compulsory jurisdiction of a special organ for the pacific settlement of disputes by conciliation. If the conciliation procedure does not lead to an agreement among the parties and hence to a settlement of the dispute, the constituent treaty may leave it to the parties to submit the case to an arbitral tribunal established by their agreement or to an international tribunal established by the constituent treaty itself as a judicial organ of the security organization organized as a permanent court. The parties to the dispute may even be obliged to submit their disputes to the tribunal if the conciliation procedure fails; or they may be obliged to submit only certain disputes, normally so-called legal disputes, to the judicial procedure either in case of the failure of a conciliation procedure or without such a procedure being necessary at all.
The judicial organ of the security organization, its permanent court, may be composed of members elected by the assembly or by