June 13, 2021

Settlement of Disputes under United Nations Organisations

International law

Introduction

The UN Charter Article 2, paragraph 3 requires that: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice aren’t endangered. The UN General Assembly, in adopting its 1982 Manila Declaration on the Peaceful Settlement of Disputes, stressed the requirement to exert utmost efforts to settle any conflicts and disputes between States completely by peaceful means and that ”the question of the peaceful settlement of disputes ought to represent one of the issues for States and the United Nations”.

Settlement of International Disputes

Pacific settlement of the dispute

Chapter VI of the UN Charter, entitled Pacific Settlement of Disputes establishes additional obligations of the parties and numerois dispute settlement powers of the Security Council.

  • Article 35, any state may bring any dispute to the attention of the Security Council or the General Assembly.
  • Article 36, the SC may, at any stage of a dispute the continuance of that is probably going to endanger the maintenance of international peace or security, recommend appropriate procedures or strategies of adjustments; in doing therefore, the SC ought to take into thought that legal disputes ought to be as a general rule be referred by the parties to the International Court of Justice.
  • Article 37 provides that, ought to the parties to a dispute of nature bought up to in Article 33 fail to settle it by the means indicated in Article 33, they shall refer it to SC that, if it deems that the continuance of the dispute is, in fact, doubtless to endanger the maintenance of international peace and security, shall decide whether or not to take action under Article 36 or to recommend such terms of settlement because it could consider appropriate.
  • Article 38 provides that, Without prejudice to the provisions of Article 33 to 37, the Security Council could, if all the parties to any dispute therefore request, make recommendations to the parties with a view to a pacific settlement of the dispute.

The links between the principle of the peaceful settlement of disputes and alternative specific principles of international law are highlighted each within the friendly relations declaration and within the Manila Declaration, as follows:

  • The principle of non-use of force in international relations.
  • The principles of non-intervention in the internal affairs or external affairs of states.
  • Principles of equal rights and self-determination of people.
  • Principles of the sovereign equality of states.
  • Principles of international law concerning the sovereignty, independence, and territorial integrity of states.
  • Good faith in international relations.
  • Principles of justice and international law.

The means that listed in Article 33 of the charter are:

Negotiation:

The settlement of the international disputes by the mortal states themselves by negotiation is claimed to be the settlement of the disputes by negotiation. In alternative words, once there a dispute arises between two or more states then to avoid the probabilities of war or violence they tend to negotiate for the matters to be settled. The negotiation is to be taken by the political representatives of the disputant countries, while not involving any third or non-concerned country.

Good-offices:

The act or arrangements taken by a third party to bring disputant parties for negotiation or to settle a dispute between them by any peaceful means that is claimed to be Good-offices. Within the case of Good-offices, the third simply renders services to bring the disputant parties to peace full means that of settlement of disputes. Here the third party doesn’t provide any suggestions or participate within the conferences as to be held between the disputant parties. Shortly speaking, just in case of good offices whenever the parties to dispute return to peace full of the settlement of dispute the duty of the third party finishes.

Mediation:

The act of collaborating and within the discussions and giving suggestions to settle a dispute between 2 parties by a third party is claimed to Mediation. In alternative words, mediation is that the method to settle a dispute wherever any third party actively takes part within the sessions of dialogues or negotiations held between the disputant party to resolve the dispute. Within the case of mediation, the mediator ought to consider the matter of compromise between the parties instead of encourage the strict letter of the law.

Inquiry:

The process to determine the facts of disputes by a commission of imperial investigators is claimed to the inquiry. This mean is meant to search out the queries of law and mixed questions of law and reality concerned in a dispute. The only function of the commission is to bring in light those facts, which are the root cause for the alleged dispute, and to analyse the question of law and mixed questions of law and fact.

Conciliation:

The process of referring a dispute to a commission; to search out facts and prepare a report containing proposals for the settlement of that dispute, is named conciliation. In case of conciliation, the commission is to require 2 tasks:

  1. It shall ascertain the facts of the dispute
  2. It shall prepare a report which shall reveal that the possible measures to settle the dispute.

However, the proposals prepared by the commission don’t have any binding force upon the parties. The parties can also disagree with the proposals.

Arbitration:

The process of referring the dispute; by the mutual consent of the parties to a body of persons or a tribunal for a legal decision is named arbitration. The essential element of arbitration is the consent of disputant parties to the dispute. In alternative words, the referring of the dispute to a Court of Arbitration relies on the sweet-well of the parties. International law acknowledges a court for arbitration referred to as the Permanent Court of Arbitration. However in fact, it’s neither permanent nor a court.

Judicial Settlement:

The process of subsiding a dispute; by the International Tribunal in the light of the provisions of International Law, is claimed to be Judicial Settlement. For Judicial Settlement there’s a judicial organ in international law, referred to as the International Court of Justice. Both the award given by the arbitration tribunal and decision given by the International Court of Justice comes within the ambit of Judicial Settlement. Like in arbitration, just in case of referring the dispute to the International Court of Justice the consent of both the parties are necessary to tend. International Court of Justice shall take its proceeding in the light of the rules of International law, and its procedure is ruled by the statute referred to as the Statute of the International Court of Justice. International Court of Justice plays a very necessary rule in the settlement of international disputes.

Security Council:

A dispute is also settled by a principal organ of the United Nations, referred to as the Security Council. The Council consists of fifteen members. 5 members are permanent whereas the remaining 10 members are non-permanent members. Huge powers are entrusted to the Council for the settlement of the disputes, which tend to endanger world security and peace. There are many measures to be taken by the Council for the settlement of the disputes.

General Assembly:

One of the principal organ of the United Nations is General Assembly. The Assembly has no specific means that to settle the dispute, rather it’s general powers to settle the international dispute. It’s the ability to discuss and to recommend better means for the peaceful settlement of the disputes.

Compulsive or Coercive Means

Compulsive or coercive suggests that for the settlement of disputes by non-peaceful methods. Such measures involve force or pressure on a State to settle the dispute. However, the use of compulsive measures doesn’t mean the use of armed forces in all cases. Normally, they include the measures that are just predecessor to war, or short of war.

Retorsion:

Retorsion is the technical term for retaliation. It’s based mostly, on the principle of tit for tat. When an act is done by a State similar to that done earlier by another state, it’s known as Retorsion.

The purpose of Retorsion is to take retaliation. The acts which are done by a State in Retorsion aren’t illegal. In alternative words, they’re permitted under International Law. However, it’s an unfriendly act and in given circumstances, it’s going to be an effective tool of law enforcement.

This is acknowledged in practice when international conventions usually offer for the employment of an unfriendly act as a reaction to the breach of obligation. The cases wherever Retorsion are employed as a method to settle the disputes may be numerous. For example, if the citizens of a State are given unfair treatment in another State through rigorous passport laws, the previous may also make similar rigorous rules in respect of the citizens of the latter State.

One of the cases of the Retorsion took place in December 1992, when 2 Pakistani High Commission officials were declared persona non grata by India, Pakistan also expelled 3 Indian officials and declared them persona non grata. The action of Pakistan are often termed as Retorsion.

Reprisals:

The term reprisals includes the employment of any powerful measures by a State to secure redress. Thus, the main purpose of the reprisals is to compel the delinquent State to discontinue the wrongdoing, or to pursue it, or both. If a dispute has arisen due to an unjustified or illegal act of a State, the opposite state could take any powerful measure against that State to settle the dispute. Formerly, Reprisals were restricted solely to the seizure of the property or persons, but later, it enclosed other methods moreover like bombardments, the occupation of territories of a State, seizure of ships, freezing of assets of its citizens and taking any kind of property belonging to it.

Thus, it’s going to be applied not solely to the state however against the citizens of that State as well.

While a state is at liberty to require action of reprisal, however it’s to fulfil some lawful conditions laid down within the Naulilaa Incident case.

After the creation of the United Nations, the principles of non-use of force and peaceful settlement of disputes have usually become a part of jus cogens, and therefore the use of force in reprisals has been prohibited (Article 2 para 4 of the Charter). Also, article 33 of the Geneva Convention forbids reprisals against persons protected therein.

Embargo:

The term Embargo is of Spanish origin. Ordinarily, it suggests that detention, however in International Law, it has the technical that means of detention of ships in port. Hyde defines embargo because the detention among the national domain of ships or alternative property otherwise possible to find their way to foreign territory. The embargo may be applied by a State in respect of its vessels or to the vessels of alternative States. Once a state confines the operation of the embargo to its vessels, it’s known as a civil or pacific embargo. Such an operation is initiated by an order issued by State authorities to limit or interrupt or terminate its trade and economic relations with another state. The aim is to exert monetary or economic pressure on the opposite state.

When ships of alternative states are detained which as committed a breach of an Internal Law, the embargo is alleged to be hostile. The aim of such an embargo is to compel another state to settle the dispute. Such an embargo is a variety of reprisals.

Embargo nowadays is also applied by a State, individually, or collectively, under the Authority of the United Nations. If an embargo is applied by a state, it shouldn’t endanger international peace and security. If it will thus, it’d become illegal. The collective embargo is also applied under the authority of the Security Council against a delinquent State.

Pacific Blockade:

When the coast of a state is blocked by another state to prevent ingress or egress of vessels of all nations by the use of warships and other suggests that to exercise economic and political pressure on that State, the act is called blockade. When applied during peacetime, it’s called the pacific blockade. The essential needs are that the blockade should be declared and notified; the blockade should be effective.

As to the validity of the pacific blockade, in international law, there was a distinction of opinion among jurists, however once the creation of the United Nations, application of the pacific blockade has become illegal as a result it threatens security and peace.

Collective blockades, once applied under the authority of the Security Council aren’t illegal. It had been applied against Iraq in 1990.

Intervention:

It is another compulsive suggests that of settling disputes between states, short of war. According to Professor Oppenheim, it’s the dictatorial interference by a State within the affairs of another State to keep up or alter the particular condition of things. Professor Winfield has classified intervention in 3 categories:

  1. Internal
  2. External
  3. Punitive Intervention.

Conclusion

Peace cannot be established within the world unless states as separate entities from their citizens don’t seem to be inclined to unravel the disputes. Because the magnitude of a dispute between the states is multiple times larger than that of the dispute between individuals, the result of its resolution is additionally multiple times larger than that of the resolution of a dispute between people. Hence, individual states should resolve to unravel all the disputes, by using amicable suggests that. This can be inevitable for the peace of the world, when several complexities, each legal and factual, increase the number of disputes too.

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