December 2, 2020

Settlement of International Dispute Under UNO With Special Reference to Compulsive Means

INTRODUCTION

International Law has been contemplated by the international community as a mode to establish the foundation and conservation of world peace and security. The preservation of international peace and security has always been the vital grounds of the International Law. It was the fundamental intention behind the formation of the League of Nations in 1919 and the United Nations in 1945. The most paramount treaties are the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations. Moreover, there are zonal agreements, such as the 1948 American Treaty on Pacific Settlement, the 1957 European Convention for the Peaceful Settlement of Disputes, and the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization of African Unity. Further to such general treaties on dispute settlement, there are many bilateral and multilateral agreements which comprises specific clauses related to dispute settlement[1].

ARTICLE 2, PARAGRAPH 3 OF THE UN CHARTER REQUIRES THAT:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. The UN General Assembly, in adopting its 1982 Manila Declaration on the Peaceful Settlement of Disputes, emphasized the need to exert utmost efforts to settle any conflicts and disputes between States exclusively by peaceful means” and that” the question of the peaceful settlement of disputes should represent one of the concerns for States and the United Nations”. In the age of nuclear weapons, the importance of the principle of peaceful settlement of international disputes is apparent[2].

As the UN Charter does not prescribe in which way or by what means disputes need to be resolved, the parties are free to choose their dispute settlement mechanism. In the framework of international peace and security Article 33 of the UN Charter provides a number of alternatives to choose from in resolving disputes, e.g., negotiation, inquiry, mediation, conciliation, arbitration and judicial settlement. The Draft Declaration of the Rights and Duties of States under Article 8 provided that every state has the duty to settle its disputes with other States by peaceful means in such a manner that international peace and security, and justice are not endangered. The peaceful means may be further divided broadly into two categories:

Extra-Judicial Modes of Settlement (‘Diplomatic’ or ‘Political’ means) includes Negotiations, Good offices, Mediation, Conciliation, Inquiry, By United Nations General Assembly, By United National Security Council.

Judicial settlement includes Arbitration and International Court of Justice (ICJ)[3].

COMPULSIVE OR CORECIVE MEANS

Compulsive or coercive means for the settlement of disputes are non-peaceful or barbarous methods. Such methods include a compulsion or exertion on a State to liquidate the discourse. However, the implementation of compulsive methods does not amount to the usage of armament in all the instances. Generally, they comprise the methods which are just precursors to war or combat[4].

(a) RETORSION:

‘Retorsion’ is the applied term for retaliation. It is grounded, to some extent, on the proposition of ‘tit for tat’. When an action is execution by a State akin to that done previously by another state, is termed Retorsion. The objective of Retorsion is to yield retaliation. The undertakings by a State in Retorsion are not unlawful; in other way round, they are authorized under International Law. However, it is a misanthropic act and in given situations, it may be an efficacious instrument of legal imposition. This is admitted in application when international conventions sometimes furnish for the employment of a hostile action as a response to the violation of obligation. The cases where Retorsion are implemented as a means to settle the disputes may be plenty. For example, if the citizens of a State are given unjust ministrations in another State through meticulous passport regulations, the former may also make same rigorous orders in respect of the citizens of the latter State[5].

One of the cases of the Retorsion took place in December 1992, when two Pakistani High Commission officials were proclaimed persona non grata by India, Pakistan also debarred three Indian officials and announced them persona non grata. The action of Pakistan can be termed as ‘Retorsion’.

(b) REPRISALS:

The word ‘reprisals’ constitutes the implementation of any intimidating measures by a State for the impetus of fastening restitution. Thus, the major objective of the reprisals is to urge the inadvertant State to terminate the malpractice, or to trace it, or both. If a dispute has come to light due to a groundless or unlawful act of a State, the other state may undertake any coercive method against that State to disolve the dispute. Hitherto, Reprisals were confined only to the annexation of the property or persons, but later, it incorporated other measures as well such as strafing, 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 may be implied not only to the state but against the residents of that State as well.

While a state is at freedom to take action of reprisal, but it has to encounter some legal conditions laid down in Naulilaa Incident (Portugal v. F.R.G) case.

After the creation of the United Nations, the principles of non-usage of force and of peaceful settlement of disputes have generally become a part of jus cogens, and therefore the usage of force in reprisals has been prohibited (Article 2 para 4 of the Charter). Also, article 33 of Geneva Convention forbids reprisals against persons protected therein[6].

Actions taken in reprisals are unlawful and are taken remarkably, by a State for the objective of procuring justice. In reprisals, a State takes law into its own hands.

(c) EMBARGO:

The term ‘Embargo’ is originated from Spain. Primarily, it means detention, but in International Law, it has the practical meaning of detention of ships in port. Hyde defines embargo as the detention within the national domain of ships or other property otherwise likely to find their way to foreign territory. The embargo may be applied by a State in respect of its own vessels or to the vessels of other States. When a state restricts the administration of the embargo to its own vessels, it is known as a ‘civil’ or ‘pacific’ embargo. Such an operation is commenced in complaince with an order issued by State authorities in order to curb or interrupt or terminate its trade and economic relations with another state. The objective is to expend financial or economic pressure on the other state.

When ships of other states are impeded which as perpetrated a violation of an International Law, the embargo is said to be ‘hostile’. The objective of such an embargo is to impel another state to disolve the dispute. Such an embargo is a form of reprisals.

Embargo at present may be applied by a State, individually, or collectively, under the Authority of the United Nations. If an embargo is applied by a state, it should not jeopardize international peace and security. If it does so, it would become unlawful. The collective embargo may be applied under the authority of the Security Council against a delinquent State[7].

(d) PACIFIC BLOCKADE:

When the coastline of a state is occluded by another state for the intention of intercepting entrance or departure of vessels of all nations by the use of warships and other means in order to exert economic and political compulsion on that State, the action is called blockade. When implied during peacetime, it is known as ‘pacific blockade’. The necessaries are that the blockade should be proclaimed and apprised; the blockade must be effectual[8].

As to the sustainability of the pacific blockade, in international law, there was a clash of opinion among jurists, but after the formation of the United Nations, application of pacific blockade has become unlawful in light of the fact that it menaces peace and security. It violates paragraph (c) of Article 3 of Resolution adopted by the General Assembly which laid down the Definition of Aggression.

Collective blockades, when applied under the authority of Security Council are not unlawful. It was applied against Iraq in 1990[9].

(e) INTERVENTION:

It is another compelling procedure of disolving disputes between states, short of war. According to Professor Oppenheim, it is the autocratic interference by a State in the affairs of another State for the intention of preserving or changing the real condition of things. Professor Winfield has classified intervention in three categories, i.e. Internal, External and Punitive Intervention[10].

CONCLUSION

Peace cannot be entrenched in the world until states as separate entities from their citizens are not predisposed to liquidate the disputes. As the gravity of a dispute between the states is multiple folds greater than that of the dispute between individuals, the result of its resolution is also multiple times larger than that of resolution of a dispute between individuals. Hence, individual states must settle to fathom all the disputes, by using harmonious or cooperative means. This is inexorable for the peace of the world, when plenty inticacies, both legal and factual, increase the fold of disputes too.

[1] Peaceful Settlement of Disputes, https://www.longdom.org/
[2] Settlement of International Dispute, Adityapuhumi, https://www.legalservicesindia.com/

[3] Settlement of Disputes, Harshdeep Singh, https://www.legalbites.in/

[4] https://www.egankosh.ac.in/

[5] Handbook on Settlement of Disputes, https://www.legal.un.org/

[6] Settlement of Disputes – United Nations, https://www.un.org/

[7] https://www.coursehero.com/

[8] Settlement of International Disputes, https://www.lawnn.com/

[9] https://www.grin.com/

[10] Ibid

Author Details: Vasundhara Dhar (Birla Global University)

The views of the author are personal only. (if any)

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