October 27, 2021

Compulsive Means of Settlement of International Dispute: Retortion, Reprisals, Embargo, Pacific Blockade, and Intervention

International law

Introduction

Conflicts are related to foreign affairs inextricably. These conflicts are largely no longer solely between states, but also other groups, such as international organisations and other non-state entities, and jointly between them. The Charter of the United Nations (UN) plays an important role in this sense, especially with regard to conflicts between nations. International dispute means a disagreement on a point of law or fact a conflict of legal views or of interest between the States.” This dispute can arise on legal or political grounds between the parties. Non-peaceful measures are the compulsive or coercive way of resolving an international conflict. These tactics require coercion or intimidation on a conflict to be settled by a nation. However, the use of compulsive/coercive interventions in such situations does not entail the use of the armed services. It’s not really possible to describe the term ‘dispute’ exactly. In a general context, it can mean “a disagreement between two parties on a point of law or fact, a clash of legal opinions or interests.” In order to decide whether a dispute occurs, it must be shown that one party’s argument is rejected by the other. If an international conflict persists, though, is a matter for impartial assessment.

International Disputes

The fundamental resolution of the United Nations is to preserve world peace and stability and to take steps such that violations of peace can be avoided. Towards this effect, the UN will take preventive steps to eliminate violations or violations of peace and acts of violence. The Charter of the United Nations has provided for the resolution of international disputes amongst nations by negotiated means, and that these settlements should not threaten international stability and justice. Through different perspectives, disputes can be deemed to be international or transnational. Mentioning only a handful is important for present purposes. For instance, because of the diversity of the nationalities of the parties to the dispute, a dispute can be defined as international. Namely, there are at least three separate types of diplomatic conflicts with respect to personalities alone.[1]

  1. Disputes between States represent the first dimension of international disputes specifically regulated by international law, but this does not exclude domestic law or the relevant laws of international private law from being applicable.
  2. Disputes amongst individuals or private organizations of various nationalities, including matters relating to the applicable law and the preference of authority, dispute laws, or to the rules of international private law.
  3. Disputes among States and citizens of other States, such as, but not limited to, investment disputes which represent third-dimensional international disputes and are usually ruled by bilateral arrangements governed by general international law or by particular standards of private international law or by differences of laws governed by national law.[2]

Judicial arbitration is the ‘international tribunal’ method of settling a dispute in compliance with the laws laid down in International Law. Multiple international dispute settlement methods exist that could be said to be an option for international litigation or judicial settlement. Among these alternative ways of dispute settlement, Article 33 of the Charter of the United Nations states a method by, “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other means of their own choice”.[3]


The International Court of Justice, albeit not the sole tribunal, is actually the most important court in the world today. It is understood that the key role of the ICJ is to settle conflicts between sovereign states. Only states will be the party to the case before them. Recently, The International Court of Justice passed the judgement on the case of Jadhav (India vs Pakistan)[4]. The disputants in this case were India and Pakistan. Jadhav was a former Indian Navy soldier, and the Pakistani Military Court sentenced him to death. Terrorism and spying were the allegations that were levied against him. After a four-year long fight to be arrested on 3 March 2016, he eventually found relief in a big victory for India after the detention orders for his hanging were issued by the ICJ in 2019.  

Compulsive / Coercive modes of settlement of International disputes

The sense of the terms themselves, compulsive and coercive, indicates that both are non-peaceful ways of resolving a conflict. Often, this approach can also require force and effort to address the problem posed. In this strategy, force does not reflect the extent of the fighting forces, but tactics that are short of a battle.[5]

Retorsion:

Retorsion in the international arena is the practical term that describes retaliation against a derogatory act of a state. To a certain degree, it is based on the concept of tit for tat. If an act is committed by a state identical to that performed by another state before, it is called Retorsion. The object of retribution is to retaliate.

The actions committed by a state in retorsion are not unconstitutional. The aim of Retorsion is to retaliate, but it is not possible to justifiably take those actions that are likely to jeopardize international peace and security. Such measures are illegal if they are taken. They are, in other words, permitted under International Law. It is, that being said, an unsympathetic act and could be an effective law enforcement tool in certain circumstances. In practise, this is recognised when international treaties sometimes provide employment of an unfriendly act in response to the violation of an agreement.[6] There are several situations in which retortion has been used as a form of dispute settlement. If people are handled poorly in another Jurisdiction, the classic example of a better understanding is that the former should then make equal rigorous laws with regard to the citizens of the latter State. The whole aim of retortion is retaliation. It is not used for securing redress. To a broad range, the permissible use of revenge has been influenced by the UN Charter. In retribution, such acts which are liable to jeopardise international peace and stability, is regarded as unlawful, cannot be legally taken.[7]


A State may, for instance, raise tariff rates against States that boycott or discriminate against a particular nation’s goods. Such a retorsion move can be referred to as retribution in kind. In some circumstances, in certain instances, retorsion is not restricted to retaliation in kind, a State may conduct a lawful but downright rude act. The most relevant clause that regulates and restricts the use of retribution is Article 2(3)[4] of the UN Charter. While revenge in some circumstances is constitutionally appropriate, the Charter forbids its use in circumstances where global peace and stability can be jeopardised. In other words, an act of aggression does not contravene the possibility of establishing a situation that would have a detrimental effect on international peace and security.[8]

One of the instances of the Retorsion occurred in December 1992, when India announced persona non grata to two Pakistani High Commission officials, Pakistan also ejected and named persona non grata to three Indian officials. Pakistan’s actions can be referred to as “Retorsion”. In 1992, Pakistan declared a persona non-grata by an Indian High Commission official while raising concerns about the operations of the Indian official who violated the Vienna Convention, previously on the same day, after being caught with sensitive defence files by the Delhi Police, India had declared a Pakistan High Commission staff member a persona non grata for espionage operations.[9] Hence another act of retorsion by Pakistan.

Reprisals:
If Retorsion does not address the problem, the States have the right to return to Reprisal. The state will launch such a case in retribution, where the matter will be settled. Reprisal, however, is one such tool and can only be used against a State if it has participated in an immoral or improper practise. It’s a head that encompasses all sorts of vigorous steps that a state normally takes. It is also the definition of revenge but hangs over an eye for an eye’s values. In relation to the current situation, traditionally, reprisals were more associated with the seizing of property and individuals, where it typically means compulsive actions used by one state against the other to resolve a conflict resulting from the latter’s unjustified or unlawful behaviour.[10]

The primary aim of the reprisals is to induce the criminal state to avoid the wrongdoing, or to prosecute it, or both. Where a conflict has arisen as a result of an unjustified or unconstitutional act by a State, the other State may, in order to resolve the dispute, take some coercive action against that State. Although a state is entitled to take reprisal action, it needs to satisfy certain legal requirements[11] set out in the Naulilaa Case, (Germany v. Portugal)[12]. The biggest difference that can be made between retorsion and reprisals is that, while being an unfriendly act, retorsion will also constitute a legal act, typically taking action in the sense of a foreign military conflict. As years progressed, the principles of non-use of force and peaceful settlement of disputes could be said to have become part of jus cogens generality under international law. The UN General Assembly announced in 1970 that states had a responsibility to avoid acts of reprisal including the use of weapons.[13]

Acts taken as reprisals are unconstitutional and are taken by a State for the purpose of seeking punishment in an extraordinary way. A regime puts the rules into its own hands in reprisals. For instance, Israel has repeatedly resorted to reprisals against Lebanon. It bombed those areas of Lebanon where Israel’s territories were targeted by Arab terrorists. It is not necessary for UN members to engage in reprisals of such a nature as to threaten international peace and security. It is generally accepted if the other nation has perpetrated a foreign tort or violates the rules of international law, the reprisal appears justified and legitimate. There must be an appropriate proportion of the offensive conduct and reprisal, which is in relation to the violation; the harm should be incurred. The reprisal is only applicable where the appeal for reparation has been made and this has not been fulfilled.[14]

Embargo:

Embargos are a means of reprisal that acts primarily as an instrument of economic aggression that can be used to satisfy different political goals, such as showing determination, transmitting a political message, compelling reform in the actions of other nations, discouraging other states’ unwanted practises. Normally, it means detention. Yet internationally, the technical sense of the entail’s detention of ships in port. If a ship belongs to a State which has violated an international tort or has committed any other international misconduct and is accessible in the territorial waters of the State against which tort or misconduct has been committed, the other State may, as a matter of law, prohibit such vessels from travelling through that area.[15]

A State which extends the embargo in favour of its own ships or in respect of the ships of other States. It is recognised as a ‘civil’ or ‘pacific’ embargo whenever a state restricts the application of the embargo to its own vessels. Such activity shall be initiated in compliance with an order provided by the authority of the State with a view to limiting or interrupting or ending its commercial and economic links with another country. The intention is to bring the other state under financial or economic stress.[16]

The ships of one state could also be seized by another state in reprisals. If for the intent of pursuing relief, a vessel is seized, the embargo is considered a form of reprisal. Although if the imprisonment is for some other reason, it is not deemed to be repressive. The embargo can, under the jurisdiction of the United Nations, be implemented individually or jointly. When a state applies an embargo, international stability and stability should not be jeopardised. It will become illegal if it is done so. For example, in 1992, when the United States made a significant effort to ensure adherence with the embargo against Cuba, the Air Force of Cuba placed in motion an act of revenge for the sinking of an American passenger plane.

Pacific Blockade:

If a nation blocks the coast of another state in order to prohibit the entry of vessels from all nations by the usage of warships and other instruments to exert economic and political leverage on that state, the action is specifically referred to as a blockade. The conditions for a peaceful blockade are equivalent to those required during wartime for a regular blockade. A pacific blockade is a barrier used without actual intervention to put pressure imposed by a great power to bear on a weakened state.[17] This profoundly hampered the trade and other economic operations of the blockaded state, thereby imposing sanctions on the blockaded state to resolve the dispute. The key conditions are that the blockade must be proclaimed and announced and also that it must be effective. There was a conflict of opinion among jurists as to the legitimacy of international law, but with the formation of the United Nations, the implementation of a peaceful blockade became unconstitutional in view of the danger to peace and stability. Nevertheless, used under the jurisdiction of the Security Council, joint blockades are not unlawful. Once it is enforced independently by a state, it is illegal.

Intervention:

Another compulsive way of resolving conflicts between states outside of conflict is intervention. According to Professor Oppenheim, it is the autocratic intervention by a State in the activities of another State for the purpose of preserving or changing the real status of events. This is further divided into three classes, i.e., Internal, External, and Punitive Interference by Professor Winfield.[18] It is necessary to remember that a state has been significantly discouraged from taking compulsive steps to address foreign conflicts since the creation of the United Nations.

Any step likely to jeopardise or endanger international stability and safety is prohibited. Compulsive measures are also legal as long as they are in a position to protect world stability. Accordingly, interference is viewed as illegal and is not permissible.[19] UNSC authorization is seen as a compulsory step before any form of interference by one Country in the affairs of another. In practicality, it’s not always followed, including the US interventions in Iraq (1991,2002), in Pakistan (2011) to attack Osama Bin Laden, and during the Kosovo War by NATO. This poses an important concern as to whether States are acting on the grounds of terrorist acts and whether, in the future, such interventions could be deemed legal. Humanitarianism, the preventing/stopping of civil war, the prevention of environmental atrocities, the removal of established regimes or any related situation which may pose a danger to international peace and security may be the key motives for collective intervention. [20]


Conclusion

Peace will not be established in the world until governments are not willing to settle conflicts as independent bodies from their people. As the size of a dispute between states is several times greater than that of a dispute between individuals, the outcome of its settlement is, therefore, several times greater than that of a dispute between individuals being settled. International security and prosperity are a necessity for the growth of civilization as a whole. States can use coercive tactics to obtain immediate relief, but this does not generally translate into a permanent and lasting peace.[21]

The countries of the world are all in legal agreement at any moment in time, except during a full-scale war. Criminal activities need to be stopped without hesitation, whether large or small. Any violation of the rights of another State or States by another State could therefore automatically cause their use or use of reprisals. International law provides the duty to resolve conflicts by diplomatic means, but there is no duty to return to a particular process unless the participants have decided otherwise. Attempts and initiatives have often been made in order to mitigate some form of confusion and foster stability. The rule has shown itself to be the factor that connects society’s leaders.

It is reasonable to assume that international law has always considered preserving peace to be its central objective. To date, different methods have been undertaken in order to ensure permanent harmony but these approaches in themselves pose many challenges and also have failed at establishing a political and economic balance among the Countries of the world. By nature, diplomatic means are friendlier and less hostile than adjudication.[22] But States may resolve the issue at hand by using force or unfriendly actions against other nations to accomplish their objectives, but they often end up generating an invisible problem of residual animosity. And because of that, all rational and compulsive means are used for peaceful resolution of conflicts under international law.


[1] Sucharitkul, Sompong. “A Choice of Means of Dispute Settlement in International Practice: Thailand’s Experience.” Asia Pacific Law Review, vol. 17, no. Special on Mediation, 2009, p. 139-150. HeinOnline.

[2] Ibid.

[3] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI

[4] Jadhav (India vs Pakistan), ICGJ 515 (ICJ 2017)

[5] Rai, Diva. “Settlement of Disputes in International Law.” IPleaders, 29 Apr. 2020, blog.ipleaders.in/settlement-of-disputes-in-international-law/#Compulsive_or_coercive_means.

[6] Singh, Harshdeep. “Settlement of Disputes – International Law – Legal Bites.” Legal Bites – Law And Beyond, 30 May 2020, www.legalbites.in/settlement-of-disputes/#compulsive.

[7] Rai, supra.

[8] Dhar, Samarth. “Settlement of International Disputes Using Coercive Means.” Legal Service India – Law, Lawyers and Legal Resources, n.d, www.legalserviceindia.com/legal/article-2516-settlement-of-international-disputes-using-coercive-means.html. 

[9] Ibid.

[10] Ibid.

[11] Singh, supra.

[12] The Naulilaa Case, 8 Trib. Arb. Mixtes at 422-25.

[13] Dhar, Supra.

[14] Rai, supra.

[15] Rai, supra.

[16] Singh, supra.

[17] Rai, supra.

[18] Singh, supra.

[19] Rai, supra.

[20] Dhar, Supra.

[21] Dhar, Supra.

[22] Hamza, Abdualla Mohamed, and Miomir Todorovic. “Peaceful settlement of disputes.” Global Journal of Commerce & Management Perspective, Global Institute for Research & Education (2017).


Author Details: Roudro Mukhopadhyay [Student, OP Jindal Global Law School]

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