Peaceful Settlement of Disputes in International Law

What is Peaceful Settlement of Disputes in International Law

Pacific settlement of international disputes is a fundamental principle of international law of a significant character. It is developed on Principles of International Law concerning Friendly Relations and Co-operation among States[1] and formulated per se in the UN Charter[2]. The origins of the principle of international law can be traced back to the very first Hague Peace Conference in 1899[3] that created a Convention for the Pacific Settlement of International Disputes. The second Hague Peace Conference in 1907, produced an added Convention for the Pacific Settlement of International Disputes. The obligation of the states to settle their disputes by peaceful means achieved the significance when the use of force was prohibited and formulated in Article 2.4 of the Charter of United Nations.[4]

The Black’s Law Dictionary defines disputes as a conflict or controversy, especially one that has given rise to a particular law suit.[5]

In simpler words, international dispute is the one where at least one party is a State and the other being another State, an international organization, a natural or a legal person from a different state. It exists whenever a disagreement involves government, jurist persons, institutions, corporations or private individuals in distinctive parts of the world.

The peaceful settlement of international disputes is an uninterrupted and continuous method based on international law. Where the States join as equal units in rights. According to the 1982 Declaration, the States have the duty to resort to only peaceful means of settlement in case of dispute. Disputes are intricately linked to international relations. These disputes are not just among states any longer, but also between the states and international organizations or other non-state actors.

The UN Charter plays a key role concerning disputes among states. The Charter of the United Nations states that all member states must resolve their international disputes by peaceful means in a way that international security, peace and justice are not imperiled.[6] This viewpoint was confirmed in the Manila Declaration on the Peaceful Settlement of Disputes in the 1982 resolution[7] of the UN General Assembly.

Article 2 para 3 of the UN Charter provides that all international disputes must be settled by the member by peaceful means while maintaining international peace, security, and ensuring justice is not endangered.

In the case of Military and Paramilitary Activities in and against Nicaragua[8], the ICJ stated the principle that the disputed parties should seek a solution by pacific methods is complementary to the principles of an unreasonable nature.

However, the UN Charter does not describe the way or means of settling the disputes, the parties are free to choose their dispute resolution mechanism. Based on this principle, Article 33 of the UN Charter proposes a list of pacific means for dispute resolution, including arbitration, negotiation, mediation, conciliation, enquiry, judicial settlement and resort to regional provisions. According to Article 37.1 of the UN Charter, if the parties fail to resolve their disputes, they fall under the obligation to refer the dispute matter to the Security Council. The Manila declaration underlines the legal obligation of the member states to achieve a peaceful resolution to their dispute, despite of the free choice of means, and abstain from actions that might worsen the condition. The demand for mediation has increased rapidly in the last two decades, hence, the UN Secretary- General has referred mediation as the most promising dispute settlement mechanism.[9]

Mechanisms of Peaceful Settlement of Disputes in International Law

Negotiation

Negotiation is the oldest, simplest and most common methods of resolving international disputes. The dictionary defines negotiation as a discussion aimed at reaching an agreement. It is a recognized method by a great majority of treaties. It consists of discussions between the disputed parties with a view of understanding the opponent’s position and opinions and resolve the discrepancies. Since it is a bilateral and voluntary, it is considered the most satisfactory means of settling disputes. The concerned parties are directly engaged in the process and thus no intervention by any third party is necessary. However, negotiations do not always succeed as it has been seen that it becomes difficult to reach a consensus. Also, when the disputed states are unequal, the smaller one has to accept the decisions of the bigger one.

For instance, Indian and Sri Lanka had settled their boundary dispute by means of negotiation in the year 1974. The Farraka Barrage gunfire issue between India and Bangladesh, was also resolved using this method.

Good Offices

A third friend state try to resolve the dispute between two states. Where in mediation, the mediator is required to be present in the process, good offices is basically where the third party suggests settlement without participating in the discussion or process. The third party may be a state, an individual or an international organization. There are no specific rules of procedure of International Law to carry out good offices. Although Article 33(para 1) does not explicitly refer to good offices as a means of settlement, but it may not be read in an exhaustive manner.

For Example, the Shaat-Al-Arab River boundary dispute between Iran and Iraq was settled through the good offices of the President of Algeria in the year 1975.

Mediation

The mediator is the third party involved in the act of mediation. The mediator is expected to be just, fair and unbiased. He participates in the discussion, provides his opinion and suggestion in resolving the matter. In a case of mediation, the third party can participate in the negotiation process on the request of the disputed parties or by own will. The mediator may also facilitate the signing of the treaty expressing the settlement.

In 1966, the Soviet Premier Kosygin resolved the dispute between India and Pakistan by signing the Tashkent Agreement. Sir Owen Dixoti was appointed as a mediator by the UN on the India and Pakistan issue of Kashmir.

Conciliation

Conciliation is a process of settling disputes where the reference of the disputes is made to a committee or commission. Where such committee makes proposals to the parties for settlement of dispute. However, these proposals are not of binding nature thus, the parties are free to accept or reject them. Conciliation procedures are instituted by parties who agree to refer their dispute to an established organ, body, board, commission or a single arbitrator.

Such commissions or bodies may either be of permanent or ad hoc nature. The idea of Conciliation Commission originated in 1899 and 1907 Hague Conventions for the Pacific Settlement of Disputes.

Under Articles 10 and 14 the General Assembly has the power to appoint a commission to settle disputes. Similarly, the Security Council under Article 34 is vested with same power.

the most important ones among the various treaties signed through the Conciliation Commission are:

• Pacific Settlement (1948)
• Pact of Bogota (1948)
• The Vienna Convention on Protection of the Ozone layer 

The disadvantage to the diplomatic methods of dispute settlement is that the parties are under no legal obligation to agree to the proposals suggested or to accept them. That’s when the adjudicative methods of dispute settlement come in the picture. These methods are preferable because they provide binding decisions unlike mere recommendations in cases of diplomatic methods. The binding force of the decisions of the adjudicative methods distinguishes them from other methods of dispute resolution.

Adjudicative methods of dispute settlement consist of two types of procedures, arbitration and judicial settlement. These two methods involve the resolution of discrepancies amongst states through legal decisions of the tribunals. Whereas in case of judicial settlement the decision is made by an established court, permanent or ad hoc like the International Court of Justice.

Arbitration

In case of Arbitration, the decision is made by a single arbitrator or arbitral tribunal. The key characteristic of this method is that the award is binding on the parties and must be carried out in good faith. Arbitration has been defined by the Hague Convention for the Pacific Settlement of Disputes in 1899, as the settlement of disputes between states by the Judges of their choice with the respect for law. this method is considered as the most effective means of dispute resolution as it consists of both diplomatic and judicial aspects. United Nations Convention on the Recognition of Foreign Arbitral Awards imposes arbitral awards given in any disputed state, irrespective of the nationalities of the parties to the dispute.

The best-known rules of arbitration include those of the London Court of International Arbitration, International Chamber of Commerce, Singapore International Arbitration Centre, the International Centre for Dispute Resolution of the American Arbitration Association, and the Hong Kong International Arbitration Centre.

Types Of Disputes in International Law

There are two grounds on which a disagreement can arise between two parties: political or legal. The distinction between the two is purely subjective. It is primarily the attitude of the states that decide whether a dispute is a legal or a political one. Owing to the involvement of the states, it becomes difficult to distinguish the two. For a dispute to be regarded as a legal one, States must desire to settle it on the basis of law, or else it becomes a political dispute.

The disagreement between two states can arise on political or legal grounds. The distinction between the two is subjective. The attitude of the state distinguishes it into legal or political.  States must wish to settle the legal dispute on the basis of law or else it turns into a political dispute. however, the procedure for settlement of disputes as laid down in the international law deals only with the legal disputes. In the case of Nicaragua v. Honduras, which concerned the Border and Transborder Armed Action, the court stated that it is concerned only with the legal aspects of the dispute.

If there is any case involving both legal and political aspects, the court cannot itself with the political aspects of such case. Therefore, dispute has a very restricted meaning in the International Law as it does not involve all forms of disputes but only the legal one.  In International Law, there are two methods formulated for settling legal disputes- amicable or pacific means of settlement, and coercive or compulsive means of settlement.

Conclusion

International law has been considered as an international community that ensures the preservation of global peace and security. The very basic objective of the formation of the League of Nations, 1919 and the United Nations 1945 has been the maintenance of international peace and security.

International law intends to overcome the chances of war and violence. It believes in solving the dispute through amicable and pacific means on the merits of diplomatic, judicial and political bases. To avoid the chances of war, it provides for certain measures and means of resolving the disputes arising among the states. However, it recognizes the coercive and compulsive means of settling disputes in certain extra ordinary cases that threaten the international peace and security.

[1]  2625 (XXV), “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” [available at: http://www.un-documents.net/a25r2625.htm] 

[2] Article 2, 3 UN Charter 1945

[3] Peace Conference at the Hague 1899: General Report of the United States Commission [available at: https://avalon.law.yale.edu/19th_century/hag99-04.asp]

[4] Article 2.3; Article 33 UN Charter 1945

[5] Garner, 1999, as cited in Schreur, 2008, p.1

[6] Article 2(3) of the UN Charter 1945

[7] A/RES/37/10, Manila Declaration on the Peaceful Settlement of Disputes.

[8] Rec. 1986, p. 145, par. 290

[9] UN SG Report on Enhancing Mediation and its Support Activities, S/2009/189, p. 3 [available at: https://peacemaker.un.org/sites/peacemaker.un.org/files/SGReport_EnhancingMediation_S2009189%28english%29.pdf]

Author Details: Pragati Gupta (Alliance University)