A second significant flaw with the Court's approach to the object and purpose of the Geneva Agreement, in my view, is that it gives inadequate consideration to the second sentence of Article IV (2). That sentence provides:
"If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted." (Emphasis added.)
This provision requires the Secretary-General to continue choosing from the means of settlement listed in Article 33 until one of two possible outcomes is reached: either (1) the controversy between the Parties is resolved, or (2) all the means of peaceful settlement contemplated in Article 33 have been exhausted. So, Article IV (2) contains no presumption that the controversy between the Parties will definitively be resolved.
"the possibility existed that... an issue of such vital importance... as the determination of the means of dispute settlement, would have left the hands of the two directly interested Parties, to be decided by an international institution chosen by them, or failing that, by the Secretary-General of the United Nations"11.
The Court also cites, in paragraph 77, a statement made before the Venezuelan National Congress on 17 March 1966 by the then-Minister for Foreign Affairs of Venezuela, Mr. Ignacio Iribarren Borges on the occasion of the Geneva Agreement's ratification. The Minister is quoted as stating that "[t]he only role entrusted to the Secretary-General of the United Nations [was] to indicate to the parties the means of peaceful settlement of disputes... provided in Article 33"13.
Secondly, the Court suggests in paragraph 114 that Article IV (2)'s reference to the decision of the Secretary-General would be deprived of effet utile if that decision were subject to the further consent by the Parties for its implementation. However, this argument does not account for the possibility that the Secretary-General could have a non-binding role in the dispute settlement process, akin to that of a conciliator. While it is true that the Secretary-General's role only comes into play when the Parties have otherwise failed to agree on a means of settlement, this does not mean that his intervention in a non-legally binding capacity would necessarily be unhelpful. Article 33 of the United Nations Charter makes clear that negotiation is a form of dispute settlement separate from conciliation or mediation, indicating that there is distinct value to the latter procedures even if the third party in question is not empowered to issue binding decisions.
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