Modes of peaceful settlement of dispute in International law

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Introduction

Previously war was the only and the ultimate way to settle any dispute. War leads to many casualties, life loss, damages, and material disadvantages. The losing side of the war has to suffer more harm and casualties.

Therefore the losing side had to finally agree to the will of the victorious state. The dispute is resolved by agreeing to the conditions that are laid by the winning state. The losing state had to agree to all the conditions and decisions.

Herewith an agreement was also signed or a treaty was enacted explicitly stating the new rules and regulations that are set by the winning state and have to be abided by the losing one. The signing of the agreement was due to coercion or undue influence and was not in lieu of free will.

Wars were permitted; therefore most of the disputes were resolved by wars. And later a peace treaty was signed under coercion and violence. But contemporarily it is an obligation on all the states to resolve their disputes through peaceful means and without the use of force finally leading to war.

Let us first understand the concept of International Dispute-

It is a conflict arising between two or more States at the international level. The conflict can be related to facts or laws or similar interests. There can be a dispute between the states over certain facts. It is a quite common reason for dispute that the opposing parties do not settle for the same facts and it becomes the main reason for a dispute.

Secondly, all the countries do not follow the same laws and thereby can act in a way that is unlawful according to the laws of another state.

Thirdly, more than one state having an interest in the same object can lead to disputes among them. A dispute between two or more States is known as an international dispute because it will have legal obligations, and consequences and will be binding over other states in the international sphere.

With the development of international laws, the origin of the League of Nations, the United Nations, and other peace-promoting organizations, it is sufficiently clear that disputes between countries should be resolved through peaceful modes of settlement.

Some of the legislations that guarantee peaceful settlement of the dispute at the international level are[1]

  1. Article 1, paragraph 1, UN Charter- It describes the purpose of the united nation. It states that the main purpose of the United Nation is to ensure world peace and security.
  2. Article 2, paragraph 3, UN Charter- The members should focus on the prevention of the use of force, threat, or other coercive methods to settle any dispute.
  3. Article 33, paragraph 1, UN Charter- It lays down the peaceful or Pacific means for the settlement of an international dispute in case a conflict arises between the states.
  4. 1970 General Assembly’s Declaration on Principles of International law concerning friendly relations- It states that disputes should be resolved without hampering security and justice.

All these legislations and organizations only aim at the peaceful settlement of conflicts, which will embrace peace, security, and justice for all.

Modes of peaceful settlement

If a dispute arises between two or more States, it can be resolved harmlessly and harmoniously. The modes of peaceful settlement at the international level have been mentioned in Article 33 of Chapter VI of the United Nations Charter Act 1945. These are also known as pacific means. By using these means for the settlement of the dispute, the states will be able to maintain world peace. The modes have been discussed below-

Negotiation

When two or more States are in a state of conflict or having a dispute, and then the best way to resolve this dispute is to have a negotiation. The dispute can be related to a matter of fact or the matter of law. Negotiation is the simplest, oldest, and one of the most widely used ways of settlement. It is a safety mechanism to resolve a dispute.

The disputing parties are directly involved in the settlement of a dispute. The parties directly discuss and try to reach an outcome, thus resolving the dispute peacefully without the use of force.

Negotiation can take place at different levels be it at the administrative levels, through agencies and experts, diplomats, or at foreign affairs ministries. Although the most common and used channel is through the foreign affairs ministries.

The drawback of this method can be observed when the parties involved in a dispute are unequal and the party with more power has an upper hand during the negotiation. Moreover, sometimes negotiation fails to reach a decision and resolve the dispute.

Example- The boundary dispute of India with its neighboring States was resolved through this method only. India’s boundary dispute with Sri Lanka and with Pakistani 1974 was resolved through the method of negotiation.

Good offices and mediation

These methods include the involvement of a third party. Apart from the disputing parties, another third party comes into the picture and tries to help the disputing parties and resolving their dispute. The third party which comes to resolve the dispute can be a state, an international organization, a cluster of States, any international organization, or even an individual.

The third party does not take control over the whole situation and does not lay down provisions for resolving the dispute, rather it provides room for the disputing parties to conclude by themselves.

The third party just acts as a contact person who brings both parties together for resolving the dispute. The final decision and the provisions are decided by the disputing parties themselves.

In the good office method, the third party is referred to as a good office. The third party only influences the disputing parties to enter into a negotiating arrangement. Thereby the role of the third party in this method is passive.

In mediation, on the other hand, the third party plays an active role in the process of negotiation. Although it does not lay down the provisions for either party.

These two methods of peaceful settlement of dispute are also present in the Hague Convention of 1899 and 1907. It states that the signatories to the treaty can offer good offices and mediation for the settlement of disputes arising between the member countries. This act will be considered a friendly act by the parties in dispute.

Example– President Roosevelt from the U.S. helped in resolving the war between Russia and Japan known as “The Russo-Japanese War”, by acting as a good office. He ended the 1.5 years long dispute in 1906. The war ended by signing The Treaty of Portsmouth. For his efforts, President Roosevelt receives the Nobel peace prize in 1906.

Conciliation

In this method, a committee or a commission is set up. And the matter is referred to this particular commission or comment for resolution. Further, it’s the role of the committee to analyze the facts and circumstances around the case and come up with a resolution to the case. They provide certain guidelines and standards for the disputing parties.

However, the parties are not bound to follow the guidelines, standards, or resolutions provided by the commission.

Conciliation as a method for resolving disputes was widely used during world wars. Many treaties were signed that explicitly stated that conciliation was to be used as a method for the peaceful settlement of a dispute.

But was unsuccessful and has not been that widely used as other modes have been. Their methodology includes clarifying the facts, producing guidelines, and trying to stimulate negotiation between the parties.

The conciliation method has also been mentioned in the General Act on Pacific Settlement of International Dispute 1928. Under this act, the conciliation method has been suggested to be used along with techniques of inquiry and mediation.

The commissions established under this act constituted 5 members. One member from each of the disputing parties and three members have to be appointed from a third neutral state through an agreement. The committee was supposed to deliver its decisions or guidelines (if not agreed upon by the disputing parties) within 6 months. The procedure was not to be taken in public and was a channel for dispute resolution informally and quickly.

Example- In the Iceland-Norway dispute over the continental shelf delimitation. [2] The portion of the continental shelf in proximity to the coastal boundary of the country is considered to be the extension of land and the country has jurisdiction over that area.

But the adjacent States usually rays objections regarding overlapping boundaries over the continental shelf. Similar was the dispute between Iceland and Norway. To resolve this dispute a commission was established.

After analyzing the situation, the commission proposed to resolve this problem by forming a joint development zone. This shows the neutral, negotiating, and flexible nature of the conciliation method for resolving an international dispute.

Inquiry

Most disputes at the international level or any other level occur due to the non-settlement of disputing parties over similar facts. The facts presented by each of the parties are different from one another and thus it becomes important to first resolve the dispute over facts. After the facts are reached a consensus, later the provisions or guidelines can be advised to reach a solution.

When there is an international dispute arises between two states or parties, the method of inquiry can be used to settle the dispute. Inquiry is prominently used when there is a dispute of facts.

Under this method, a neutral third party is appointed, whose role is to look into the facts of the dispute and resolve the discrepancy in the facts of disputes. The impartial body investigates the facts and tries to bring the disputing parties to an agreement concerning the facts of the matter.

The appointed commission should consist of neutral, fair-minded, and honest people. This would ensure a fair examination of the facts wherein the dispute lies. The process of examination of facts is known as the ascertainment of issues.

This method was first established at the Hague Conference in 1899. This came in as an alternative to other peaceful means of settlement like negotiation or any other agreement. The final facts reiterated after examination by the commission are not binding on either of the disputing parties.

One of its drawbacks is that its range of control is restricted to the point where the facts become undisputed. Once the disputing parties agree on the facts, the role of this method comes to an end along with the committee established under it.

Example- The Dogger Bank Incident of 1904[3]

In 1904, During the Russo-Japanese war, Russia sent its armed ships in the form of reinforcement after losing several wars with Japan. The route chosen by the Russian-armed ship was through the Suez Canal.

The Russians were devastated and threatened by the probability of the Japanese attacking their ship. On the night of 21st October, a fishing fleet known as the gamecock fleet was fishing in the Dogger Bank area. At the same time, the Russian ships as reinforcement were going through the same area toward Japan.

As the British fleet saw the Russian Ship, they immediately sent a signal of being harmless. Russian under the threat of Japan misinterpreted the signal and attacks the British fleet. Many British crew members died as a result of the attack.

In this incident, there was a dispute in the fact that whether the Japanese army was present in the British ship (as claimed by the Russians) or not. This Dispute was peacefully settled by the method of inquiry. This stopped another big war between Russia and Britain.

The matter was finally settled with Russian losing the dispute and paying a sum of 66,000 pounds to the British.

Arbitration

It is one of the quasi-judicial ways of settling an international dispute. This method also includes the intervention of a third party. This method comes into play when the disputing parties agree to go along with the third party.

The extra condition which is complimentary in arbitration is that the disputing parties will have to agree to whatever decision the arbitrator or the third party comes up with. Restrictions have also been laid on the arbitrator to function well within its jurisdiction and not exceed his power. The binding nature of the arbitration method is the differentiating factor from the other methods that we have read till now.

Arbitration has been stated in article 15 of the Hague convention in 1899.  And it has been restated in article 37 of the Hague convention act 1907. It states that arbitration is a method through which the disputing states try to resolve the dispute between them through a judge which will be mutually decided by the parties to the dispute. [4]

The arbitration can be done by a single individual as an arbitrator or a council of arbitrators can be elected. In the case of a council, an equal number of members will be elected for the council by each side of the disputing party and the chairman will also be nominated and this case.

Example- Trail Smelter Case, 1935

In 1935, a company based in Trail (Canada), while continuing its business of smelting was releasing a huge amount of sulfur dioxide. The trail was only a few kilometers from the US border. Therefore, the clouds of Sulphur dioxide went into Washington in the U.S. and this was causing huge environmental problems over there. There also existed a future risk of acid rain for the U.S.

The laws of both states were not fully applicable. Thus, they decided to go to the arbitration Council. The council gave a decision in favor of the U.S. and stated that our laws as well as international law favored the U.S. side. Therefore, Canada had to agree to the decision made by the arbitration Council.

Judicial settlement

In case of dispute among the States in an international sphere, the states can refer their matter to the judicial forums. ICJ i.e. International Court of Justice is the principal judicial organ of the United Nations, where the matter can be taken for judicial settlement.

It has two kinds of jurisdiction:

  1. Advisory jurisdiction- under this jurisdiction of the ICJ, it can only give advisory judgments. The judgment will not be binding on the disputing states. It will analyze the dispute, examine the laws applicable and then finally give its decision.

The decision is only advisory and it is the discretion of the states to accept or ignore the decision given by ICJ. In literal terms, the ICJ gives its opinion.

  1. Binding or Contentious jurisdiction- Under this, the court’s decision will be final and will have to be abided by the disputing states.

The disputing states must determine if they want to engage in advisory jurisdiction or binding jurisdiction.

A dispute can be brought to the International Court of Justice only if both states agree to it. Thereby it guarantees the independence of States. If any of the parties are not agreeing for the matter to be taken in ICJ, then its decision is respected and ICJ is not approached.

Apart from ICJ, there are many other forums or platforms where the settlement of an international dispute can take place in a judicially peaceful manner like the International criminal court (ICC).

Example- Eastern Carelia Case

League of Nations was constituted after the First World War to bring peace and settlement. At that time USSR was not a party to the League of Nations.

Another country had a dispute with USSR. The other country argued that the dispute must be resolved in the League of Nations, but USSR was of the opposing view and did not want the involvement of the USSR.

Therefore, it was held that the case won’t be resolved at the League of Nations as one of the parties i.e., USSR was not consenting to the same.

A brief on non-pacific modes of settlement

These are also known as compulsive means for settling an international dispute. These are non-peaceful methods. [5] This includes the use of pressure or force on the opposing state to win a dispute. The modes of non-peaceful settlement of dispute are-

Complaints

If there is a violation of any international law by a country that is negatively affecting another country, the country being affected can directly complain to the authorized person (of the country violating any international law).

Thereafter the authorized person can stop the acts causing a violation if he finds the complaint reasonable. In this method, there was the use of pressure by one state over the other.

Retorsion

If there is a violation of any treaty or any law and it causes minimal effect upon another state. In this case, the victim state can take corresponding actions against the culprit state. The actions to be taken can include the dissolution of treaties and agreements, breaking diplomatic relations, closing down the embassy of that particular state, etc.

Reprisal

These are acts that are illegal in normal circumstances. But these acts become legal and are not punishable if acted against a particular state because of the prior action of that particular state. These are the reaction and responses to the illegal actions taken by the other state. These illegal acts become legal because they are considered to be taken in self-defense.

Hostile embargo

It is also a kind of reprisal. An embargo means restrictions on trade with a particular state. Thereby hostile Embargo means a total ban on trade even by the use of illegal means. It may include confiscating the ships and fleets of a particular state. This would finally slow down the economy of that state. And the state would kneel to the dispute.

Blockade

In case of a dispute, if a state confines or restricts and covers the boundary of another state, then the state is applying blockade to finish the dispute. Nobody is allowed to enter or exit the country until the dispute is resolved.

Intervention

In this case, a third party enters into the dispute voluntarily and in an uninvited way. The third party enters into the dispute to resolve the dispute with the help of his army. Undoubtedly the third party enters into the dispute to gain his benefit.

War

The final and cruelest way to end any dispute at the international level is to conduct a war. If the above-stated un-peaceful means are not able to resolve a dispute, countries are more likely to enter into a war. War should be avoided to the greatest extent possible due to the casualties and damage it produces.

Conclusion

The conflicts between two or more States are termed international disputes. The reason behind the conflict can be several and are enumerable. Still, the conflicts can be categorized into three large categories i.e., the dispute of fact, the dispute of law, and the dispute over similar interests.

Once these conflicts come into existence, the subsequent step should be to identify a solution for it and resolve the conflict. Earlier the most viable and prominent way of resolving a dispute was to engage in war. Whoever won the war, settled the dispute in his favor. But due to the un-peaceful repercussion of the war, a more peaceful and non-violent approach was to be adopted.

By the end of World War 1, many peace-spreading organizations were established. One of them was The League of Nations which was succeeded by the present peace-making body The United Nations. The main aim of the UN was the prosperity of peace and security in the world. Thereby the are many provisions in the Charter of the UN which ensure the maintenance of world peace.

World peace will be maintained only if international disputes are settled through the Pacific and peaceful means rather than violent approaches.

Many peaceful approaches to the settlement of international disputes have been laid down. Some of these include the intervention by a third party. Third-party intervention becomes important because the world is politically and democratically so connected that the consequences of an international dispute will be faced by every state.

Therefore, to maintain a healthy environment in the international sphere, peaceful settlement of conflicts and dispute is important.

 

References:

[1] United Nations Charter, 1945

[2] Malcolm N. Shaw, International Law 1024 (Akash Press, New Delhi, India, 6th edn., 2013)

[3] Malcolm N. Shaw, International Law 1020 (Akash Press, New Delhi, India, 6th edn., 2013)

[4] Malcolm N. Shaw, International Law 1049 (Akash Press, New Delhi, India, 6th edn., 2013)

[5] Settlement of International Disputes using Coercive means, available at:

https://www.legalserviceindia.com/legal/article-2516-settlement-of-international-disputes-using-coercive-means.html (Visited on November 8, 2022)


This article has been authored by Kshitij Sharma, a student at NorthCap University.

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