The purpose is to provide a general survey of the practice among States of
the peaceful settlement of international disputes. There are variety of
instruments for peaceful settlement, including negotiation, commissions of
inquiry, Mediation, Conciliation and Good Offices. Care is taken to indicate the
quantitative significance of the inter-State arbitration in relation to the use
of standing international tribunals, such as the International Court of
Historically, International Law has been regarded by the international community
as a means to ensure the establishment and preservation of world peace and
security. The maintenance of international peace and security has always been
the major purpose of the International Law.
It was the basic objective behind
the creation of the League of Nations in 1919 and the United Nations in 1945.
Since the direct cause of war and violence is always a dispute between States,
it is therefore in the interest of peace and security that disputes should be
settled. Methods and procedures for the peaceful (pacific) settlement of
disputes have been made available in the International Law. States have
concluded a great number of multilateral treaties aiming at the peaceful
settlement of their disputes and differences.
The most important 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. Furthermore, there are regional 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.
In addition to such general treaties on dispute settlement, there are many
bilateral and multilateral agreements which include specific clauses related to
The Charter of the United Nations devotes Chapter VI to the
methods and procedures for the pacific settlement of disputes. Paragraph 1 of
Article 33 of the Charter states the methods for the pacific settlement of
disputes as the following: negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, and resort to regional agencies or
arrangements. This paragraph obliges States parties to any dispute, the
continuance of which is likely to endanger the maintenance of international
peace and security, to seek a solution by any of the listed methods or other
peaceful means of their own choice.
The methods of peaceful settlement of
disputes fall into three categories: diplomatic, adjudicative, and institutional
methods. Diplomatic methods involve attempts to settle disputes either by the
parties themselves or with the help of other entities. Adjudicative methods
involve the settlement of disputes by tribunals, either judicial or arbitral.
Institutional methods involve the resort to either the United Nations or
regional organizations for settlement of disputes (Collier. 1999).
Diplomatic Methods of Dispute Settlement
Diplomatic methods of dispute settlement are negotiation, enquiry, mediation,
conciliation, and good offices.
Negotiation is a method by which people settle differences. It is a process by
which compromise or agreement is reached while avoiding argument and dispute.
In any disagreement, individuals understandably aim to achieve the best possible
outcome for their position (or perhaps an organization they represent). However,
the principles of fairness, seeking mutual benefit and maintaining a
relationship are the keys to a successful outcome.
Specific forms of negotiation are used in many situations: international
affairs, the legal system, government, industrial disputes or domestic
relationships as examples. However, general negotiation skills can be learned
and applied in a wide range of activities.
Negotiation skills can be of great
benefit in resolving any differences that arise between you and others.
Negotiation is a flexible means of peaceful settlement of disputes in several
respects. It can be applied to all kinds of disputes, whether political, legal
or technical. Because, unlike the other means listed in Article 33 of the
Charter, it involves only the States parties to the dispute, those States can
monitor all the phases of the process from its initiation to its conclusion and
conduct it in the way they deem most appropriate.
Another characteristic of
negotiation highlighted by the Manila Declaration is effectiveness. Suffice it
to say in this connection that in the reality of international life,
negotiation, as one of the means of peaceful settlement of disputes, is most
often resorted to by States for solving contentious issues and that, while it is
not always successful, it does solve the majority of disputes (Gross, S,. 1988).
Negotiation is a dialogue between two or more people or parties intended to
reach a beneficial outcome. This beneficial outcome can be for all of the
parties involved, or just for one or some of them. It is aimed to resolve points
of difference, to gain advantage for an individual or collective, or to craft
outcomes to satisfy various interests (Buettner, R,2006).
It is often
conducted by putting forward a position and making small concessions to achieve
an agreement. The degree to which the negotiating parties trust each other to
implement the negotiated solution is a major factor in determining whether
negotiations are successful. Negotiation is not a zero-sum game; if there is no
cooperation, the negotiation will fail. Everyone negotiates every day, often
without even considering it a negotiation.
Negotiation occurs in business,
sales, non-profit organizations, government branches, legal proceedings, among
nations, and in personal situations such as marriage, divorce, parenting, etc.
The study of the subject is called negotiation theory. Professional negotiators
are often specialized, such as union negotiators, leverage buyout negotiators,
peace negotiator, or hostage negotiators. They may also work under other titles,
such as diplomats, legislators, or brokers (Fisher, R,. 1984).
One of the common obstacles preventing the successful settlement of a dispute by
negotiation is the difficulty of ascertaining the facts which have given rise to
the differences between the disputants. Most international disputes involve an
inability or unwillingness of the parties to agree on points of facts. Herein
lays the significance of the procedure of inquiry as a means of pacific
settlement of disputes.
Many bilateral agreements have been concluded under
which fact-finding commissions have been set up for the task of reporting to the
parties concerned on the disputed facts. In addition, the procedure of inquiry
has found expression in treaties for the pacific settlement of disputes. The
two Hague Conventions of 1899 and 1907 established commissions of inquiry as
formal institutions for the pacific settlement of international disputes.
provided a permanent panel of names from which the parties could select the
commissioners. The task of a commission of inquiry was to facilitate the
solution of disputes by elucidating the facts by means of an impartial and
The report of a commission was to be limited to
fact-finding and was not expected to include any proposal for the settlement of
the dispute in question. With the establishment of the League of Nations, the
means of inquiry took on a new significance. Inquiry and conciliation were
viewed as integral parts of a single process for bringing about a pacific
settlement to a dispute. It is in the light of this background that the Charter
of the United Nations specifically lists.
as one of the methods of pacific settlement of international
disputes. Enquiry as a separate method of dispute settlement has fallen out of
favour. It has been used as part of other methods of dispute settlement. Its
purpose is to produce an impartial finding of disputed facts and thus to prepare
the way for settlement of dispute by other peaceful methods. The parties are
not obliged to accept the findings of the enquiry; however, they always do
The utilization of enquiry has been evident in the practice of
international organizations, such as the United Nations and its specialized
agencies. Enquiry has been used as part of other methods of dispute settlement
in the context of general fact-finding ( Goodrich,L . 1955).
Use of an independent, impartial, and respected third party (called the
conciliator or mediator) in settlement of a dispute, instead of opting for
arbitration or litigation. Unlike an arbitrator, a mediator has no legal power
to force acceptance of his or her decision but relies on persuasion to reach an
agreement. Also called conciliation. Mediation is a dynamic, structured,
interactive process where a neutral third party assists disputing parties in
resolving conflict through the use of specialized communication and negotiation
techniques. All participants in mediation are encouraged to actively participate
in the process.
Mediation is a party-cantered
process in that it is focused
primarily upon the needs, rights, and interests of the parties. The mediator
uses a wide variety of techniques to guide the process in a constructive
direction and to help the parties find their optimal solution. A mediator is
facilitative in that s/he manages the interaction between parties and
facilitates open communication. Mediation is also evaluative in that the
mediator analyses issues and relevant norms while refraining from providing
prescriptive advice to the parties.
Mediation, as used in law, is a form of
(alternative dispute resolution) (ADR), a way of resolving disputes between two
or more with concrete effects. Typically, a third party, the mediator assists
the parties to a settlement. Disputants may mediate disputes in a variety of
domains, such as commercial, legal, diplomatic, workplace, community and family
matters. The term mediation
broadly refers to any instance in which a third
party helps others reach agreement. More specifically, mediation has a
structure, timetable and dynamics that ordinary negotiation lacks. The process
is private and confidential, possibly enforced by law.
typically voluntary. The mediator acts as a neutral third party and facilitates
rather than directs the process. Mediation is becoming a more peaceful and
internationally accepted solution in order to end conflict. Mediation can be
used to resolve disputes of any magnitude.
Mediators use various techniques to
open, or improve, between disputants, aiming to help the parties reach an
agreement. Much depends on the mediator's skill and training. As the practice
gained popularity, training programs, certifications and licensing followed,
producing trained, professional mediators committed to the discipline.
The benefits of mediation include:
- Cost: While a mediator may charge a fee comparable to that of an
attorney, the mediation process generally takes much less time than moving a
case through standard legal channels. While a case in the hands of a lawyer
or a court may take months or years to resolve, mediation usually achieves a
resolution in a matter of hours. Taking less time means expending less money
on hourly fees and costs.
- Confidentiality: While court hearings are public, mediation remains
strictly confidential. No one but the parties to the dispute and the
mediator or mediators know what happened. Confidentiality in mediation has
such importance that in most cases the legal system cannot force a mediator
to testify in court as to the content or progress of mediation. Many
mediators destroy their notes taken during a mediation once that mediation
has finished. The only exceptions to such strict confidentiality usually
involve child abuse or actual or threatened criminal acts.
- Control: Mediation increases the control the parties have over the
resolution. In a court case, the parties obtain a resolution, but control
resides with the judge or jury. Often, a judge or jury cannot legally
provide solutions that emerge in mediation. Thus, mediation is more likely
to produce a result that is mutually agreeable for the parties.
- Compliance: Because the result is attained by the parties working
together and is mutually agreeable, compliance with the mediated agreement
is usually high. This further reduces costs, because the parties do not have
to employ an attorney to force compliance with the agreement. The mediated
agreement is, however, fully enforceable in a court of law.
- Mutuality: Parties to mediation are typically ready to work mutually
toward a resolution. In most circumstances the mere fact that parties are
willing to mediate means that they are ready to move their position. The
parties thus are more amenable to understanding the other party's side and
work on underlying issues to the dispute. This has the added benefit of
often preserving the relationship the parties had before the dispute.
- Support: Mediators are trained in working with difficult situations. The
mediator acts as a neutral facilitator and guides the parties through the
process. The mediator helps the parties think outside of the box for possible
solutions to the dispute, broadening the range of possible solutions
Is a process of settling a dispute by referring it to a specially constituted
organ whose task is to elucidate the facts and suggest proposals for a
settlement to the parties concerned. However, the proposals of conciliation,
like the proposals of mediators, have no binding force on the parties who are
free to accept or reject them. As in the case of mediation, conciliators may
meet with the parties either jointly or separately.
The procedures of
conciliation are generally instituted by the parties who agree to refer their
dispute to an already established organ, commission or a single conciliator,
which is set up on a permanent basis or ad hoc basis; third parties cannot take
the initiative on their own. The conciliators are appointed by the parties to a
dispute. They can be appointed on the basis of their official functions or as
individuals in their personal capacity. Conciliation is described by some as a
combination of enquiry and mediation. The conciliator investigates the facts of
the dispute and suggests the terms of the settlement.
But conciliation differs
from enquiry in that the main objective of the latter is the elucidation of the
facts in order to enable the parties through their own accord to settle their
dispute; whereas the main objective of conciliation is to propose a solution to
a dispute and to win the acceptance of the parties to such solution. Also,
conciliation differs from mediation in that it is more formal and less flexible
than mediation; if a mediator’s proposal is not accepted, he can present new
proposals, whereas a conciliator usually present a single report.
parties to a dispute reach the point of not being able to solve it by
negotiation, or the point where they have broken off diplomatic relations, but
they are convinced that a settlement is important to them, the utilization of
the technique of good offices may be helpful. Good offices may be utilized only
with the agreement or the consent of both disputants.
A third party attempts to
bring the disputants together in order to make it possible for them to find an
appropriate settlement to their differences through their negotiations. In
this regard, the function of the third party is to act as a go-between,
transmitting messages and suggestions in an effort to create or restore a
suitable atmosphere for the parties to agree to negotiate or resume
When the negotiations start, the functions of the good offices
come to an end. The procedure of good offices, in contrast to mediation, has a
limited function which is simply bringing the disputants together. In
mediation, the mediator takes an active part in the negotiations between the
disputants and may even suggest terms of settlement to the disputants (Malcolom,
S,. 2008) .
Method of good offices:
Consists of various kinds of action aiming to encourage negotiations between the
parties to a dispute. Also, in contrast to the case of mediation or
conciliation, the proffered of good offices does not meet with the disputants
jointly but separately with each of them. Seldom, if ever, the proffered
attends joint meetings between the parties to a dispute.
Normally, the role of
the proffered of good offices terminates when the parties agree to negotiate, or
to resume negotiation. However, the proffered may be invited by the parties to
be present during the negotiations. As in case of mediation, an offer of good
offices may be rejected by either or both parties to a dispute.
The use of
mediation, conciliation, and good offices has a long history. These methods
have been the subject of many bilateral and multilateral treaties. However,
with the establishment of the League of Nations, permanent organs were set up to
perform the functions of these methods of pacific settlement of disputes. In
this context, the Charter of the United Nations lists in Article 33(1) mediation
and conciliation, but not good offices, as methods of pacific settlement
available to the parties to any dispute.
Notably, in the practice of the United Nations, the terms mediation
and good offices
used with considerable looseness, flexibility and little regard to the
distinctions which exist between them.
Mediation and conciliation have both
advantages and disadvantages as compared to other methods of dispute
settlement. They are more flexible than arbitration or judicial settlement.
They leave more room for the wishes of the disputants and the initiatives of the
third party. The disputants remain in control of the outcome.
proceedings can be conducted in secret. However, there are disadvantages to
mediation and conciliation. Their proceedings cannot be started and be
effective without the consent, cooperation, and goodwill of the disputants. The
proposed settlement is no more than a recommendation with any binding force upon
the disputants (Malcolom,S,.a 2008).
Adjudicative Methods of Dispute Settlement
The major disadvantage of the diplomatic methods of dispute settlement is that
the parties to them are under no legal obligation to accept the proposals of
settlement suggested to them. Thus, the adjudicative methods of dispute
settlement are preferable because they provide the issuance of binding
decisions, rather than mere recommendations as in cases of diplomatic methods.
It is this binding force of the decisions rendered at the end of the
adjudicative methods that distinguishes these methods from other methods of
Adjudicative methods of dispute settlement consist of two
types of procedures, arbitration
and judicial settlement
. Arbitration and
judicial settlement are two methods involve the determination of differences
between States through legal decisions of tribunals. Whereas in case of
judicial settlement the decision is made by an established court, permanent
(such as the International Court of Justice) or ad hoc, in case of arbitration
it is made by a single arbitrator or arbitral tribunal.
characteristic of these two methods is that a judicial decision or an award is
binding on the parties and must be carried out in good faith. It is not until
the establishment of the League of Nations that the terms arbitration
became distinguished. Under the Covenant of the
League judicial settlement
meant settlement by the Permanent Court of Justice (PCIJ),
whereas arbitration meant settlement by other tribunals. This same
distinction is carried over by the Charter of the United Nations, but with the
International Court of Justice (ICJ) substituting for the Permanent Court of
International Justice (PCIJ).
Arbitration is a process used by agreement of the parties to resolve disputes.
In arbitration, disputes are resolved, with binding effect, by a person or
persons acting in a judicial manner in private, rather than by a national court
of law that would have jurisdiction but for the agreement of the parties to
exclude it. The decision of the arbitral tribunal is usually called an award (Halsbury’s
Laws of England 2008).
The submission of a dispute to an unbiased third person designated by the
parties to the controversy, who agree in advance to comply with the award a
decision to be issued after a hearing at which both parties have an opportunity
to be heard.
Arbitration is a well-established and widely used means to end disputes. It is
one of several kinds of Alternative Dispute Resolution, which provide parties to
a controversy with a choice other than litigation. Unlike litigation,
arbitration takes place out of court: the two sides select an impartial third
party, known as an arbitrator; agree in advance to comply with the arbitrator's
award; and then participate in a hearing at which both sides can present
evidence and testimony. The arbitrator's decision is usually final, and courts
rarely re-examine it.
Traditionally, labour and commerce were the two largest areas of arbitration.
However, since the mid-1970s, the technique has seen great expansion. Some
states have mandated arbitration for certain disputes such as auto insurance
claims, and court decisions have broadened into areas such as Securities,
antitrust, and even employment discrimination. International business issues are
also frequently resolved using arbitration.
Arbitration was defined in the 1899 Hague Convention for the Pacific Settlement
of Disputes as the settlement of differences between states by judges of their
choice and on the basis of respect for law ( The 1899 Hague Convention ) this
same definition was repeated in the 1907 Hague Convention( The 1907 Hague
Convention ). The procedures of arbitration grew to some extent out of the
processes of diplomatic settlement and represented an advance towards a
developed international legal order. Arbitration is considered the most
effective and equitable means of dispute settlement.
It combines elements of
both diplomatic and judicial procedures. However, it is much more flexible than
judicial settlement. It gives the parties to a dispute the choices to appoint
the arbitrators, to designate the seat of the tribunal, and to specify the
procedures to be followed and the law to be applied by the tribunal. Moreover,
the arbitration proceedings can be kept confidential.
Arbitration cannot be initiated without the agreement of the parties to a
dispute. An agreement of arbitration may be concluded for settling a particular
dispute, or a series of disputes that have arisen between the parties. It may
be in the form of a general treaty of arbitration.
The usual pattern in arbitration agreement as regards the appointment of
arbitrators is that each of the two parties has to appoint one arbitrator or
more, and the appointed arbitrators have to appoint the arbitrator, who is known
as an umpire
Usually, the arbitral tribunal consists of three arbitrators, who can decide by
majority vote. The parties may agree to refer their dispute to a single
arbitrator, who may be a foreign head of a State or government, or a
Judicial settlement is a settlement of dispute between States by an
international tribunal in accordance with the rules of International Law. The
international character of the tribunal is in both its organization and its
jurisdiction. International tribunals include permanent tribunals, such as the
International Court of Justice (ICJ), the International Tribunal for the law of
the Sea (ITLOS), the European Court of Justice, the European Court of Human
Rights and the Inter-American Court of Human rights, and include ad hoc
tribunals, such as the United Nations Tribunal in Libya. The ICJ is the most
important international tribunal, because of its both prestige and
jurisdiction. It is the principal judicial organ of the United Nations.
members of the United Nations are ipso facto parties to the Statute of the
Court. The judges of the ICJ are appointed by the United Nations, not by the
parties to a dispute. The ICJ has to apply the rules and principles of
International Law, which are enumerated in Article 38 of the Statute of the
Court; the parties have no choice in specifying the rules to be applied by the
Court. The jurisdiction of the Court includes all disputes between States
concerning the interpretation of a treaty, any question of International Law,
and the existence of any fact constituting breach of international obligations,
and the nature or extent of the reparation to be made for the breach of an
The Charter of the United Nations refers to arbitration
and judicial settlement
in Article 33(1) as two methods among
other methods of pacific settlement that States are encouraged to utilize in
seeking a solution to their international disputes.
It is also provides in
Article 36(3) a guidance to the Security Council requiring it to take into
consideration that legal disputes should as a general rule be referred by the
parties to the International Court of Justice
. Despite this provision, the
Charter does not impose on members of the United Nations the obligation to
submit any dispute, even legal one, to the Court.
Moreover, the Charter provides that nothing in it shall prevent Members of the United Nations from
entrusting the solution of their differences to other tribunals by virtue of
agreements already in existence or which may be concluded in the future.
Institutional Methods of Dispute Settlement
Institutional methods of dispute settlement involve the resort to international
organizations for settlement of international disputes. These methods have come
into existence with the creation of the international organizations. The most
eminent organizations, which provide mechanisms for settling dispute between
their member States, are the United Nations and the regional organizations, such
as the European Union, the Organization of American States, the Arab league and
the African Union.
Peaceful Settlement of Dispute by the United Nations
The Settlement of international disputes is one of the most important roles of
the United Nations. The Charter of the United Nations stipulates that it is the
task of the United Nations to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement
of international disputes or situations which might lead to a breach of the
peace. To this end, the Charter provides a system for the pacific settlement or
adjustment of international disputes or situations under which the wide
competence of the United Nations in this matter is established, and the
corresponding obligations of the members of the United Nations are imposed.
This system is delineated mainly in Chapter VI of the Charter. Chapter VI of the
Charter contains the United Nations mechanism for the pacific settlement of
disputes. Article 33 obliges the parties to a dispute, the continuance of which
is likely to endanger the maintenance of international peace and security, to
settle such a dispute by any of the enumerated peaceful means therein, or by any
peaceful means of their choice.
When the parties fail to observe their
obligations or their efforts are not successful, the United Nations will
intervene to consider the dispute and give its recommendations on the matters.
The Security Council is given the primary responsibility in this regard (UN
charter art. 24(1)).
It is entitled to intervene either on its own initiative,
upon invitation of any member of the United Nations, upon invitation by the
General Assembly, or upon a complaint of a party to a dispute ( UN charter
The Security Council may follow three courses of action:
- First, it may call upon the parties to a dispute to settle their dispute
by any of the peaceful means listed in Article 33 (UN charter art. 33 (2)).
- Second, it may
recommend to the parties appropriate procedures or method of settlement (UN
charter art. 36(1)).
- Third, it may recommend terms of settlement, as it may consider
appropriate (UN charter art. 37(2).).
Although under the Charter the
Security Council is given the primary role for maintaining international peace
and security, the General assembly is not excluded from doing so. Under
Articles 11, 12 and 14, the General Assembly may discuss and make
recommendations for procedures or methods of adjustment, or for terms of
settlement, with regard to any dispute or situation brought before it. The
disputes or situations may be brought before the General Assembly by the
Security Council, any member of the United Nations, or any State party to such
dispute (UN charter art. 35.).
Peaceful Settlement of Dispute by Regional Organizations:
Article 33(1) of the Charter of the United Nations requires the parties to any
dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, to seek, first of all, a solution by any of
the peaceful methods enumerated therein. Among these enumerated methods is the
resort to regional arrangements or agencies
. Article 52 of the Charter
recognizes the right of the members of the United Nations to establish regional
arrangements or agencies for dealing with such matters related to the
maintenance of international peace and security
Paragraph 2 of this Article requires the member States that are members of
regional arrangements or agencies to make every effort to achieve pacific
settlement of local disputes through such regional arrangements or by such
regional agencies before referring them to the Security Council. It seems that
the obligation imposed upon the member States by Article 52(2) is consistent
with their obligation under Article 33(1). However, paragraph 1 of Article 52
imposes two explicit limitations with regard to the utilization of regional
arrangements and agencies.
First, it requires that the matters dealt with must be appropriate for regional
Second, it requires that the arrangements or agencies and their activities are
consistent with the Purposes and Principles of the United Nations. Moreover, a
third explicit limitation is imposed by Article 54 which requires that the
Security Council should at all times be kept fully informed of activities
undertaken or in contemplation under regional arrangements or by regional
agencies for the maintenance of international peace and security
No similar explicit limitations are imposed with regard to the utilization of
other procedures for pacific settlement. Article 52 is not only confined to
legitimizing regional arrangements or agencies and imposing an obligation upon
the member States, but goes beyond such legitimization and obligation by pacing
a duty on the Security Council itself.
Paragraph 3 of this Article requires the Security Council to encourage the
development of pacific settlement of local disputes through such regional
arrangements or by such regional agencies either on the initiative of the states
concerned or by reference from the Security Council
. This provision is in
harmony with the general approach of the Charter related to the pacific
settlement of disputes which requires the parties themselves to seek a solution
to their dispute by any peaceful means of their own choice, and that the Council
should give every opportunity to the parties to do so.
If the parties have referred their local dispute to the Security Council before
making any effort to achieve a settlement through the regional arrangements or
agencies, then the Council is under a duty to remind them of their obligation,
or to refer such dispute at its own initiative to such arrangements or agencies
(Malcolom, S, B2008).
The main question is of course: how should one choose the suitable means of
settlement? Before trying to answer that question, it is perhaps worthwhile to
underline certain observations. International law imposes an obligation to
settle disputes by peaceful means, but unless the parties have agreed otherwise,
there is no obligation to resort to a specific mechanism. States can choose
between diplomatic and judicial means.
The first ones include a whole gamut of procedures, with the differences among
them not always clear-cut. What characterizes all the diplomatic means is the
lack of binding effect of the report which may be prepared at the end of the
process, and the possibility to take into consideration all the relevant
circumstances .Diplomatic means are by their nature friendlier and less
adversarial than adjudication.
Although the submission to arbitration or a court of law is optional, once the
tribunal has made its decision that decision is binding and has to be
implemented. Arbitration is more flexible and can better be adapted to the
wishes of the States parties to the dispute, in particular with regard to the
choice of the arbitrators and the rules to be applied.
Proceedings at the International Court are certainly more rigid, international
law has to be applied, and the procedure foreseen by the Statute and the Rules
of Procedure has to be followed, but with the possibility to opt for
adjudication by a chamber, the parties can exercise some influence on the
designation of the judges that are to deal with the case.
History shows that most cases of dispute resolution involved negotiations,
mediation or arbitration, but nowadays the list of cases on the agenda of The
Hague Court is also quite impressive. Clearly, the peaceful settlement of
international disputes is an important ideal that many international diplomats,
lawyers and commentators aim for. In particular, international lawyers hope that
IL can and should be used as an important means for resolving disputes, and not
political, economic and/or military power. The use of the latter in particular
is often viewed as a failure of international law, which indicates that this in
some ways this Topic is the opposite of the last Topic.
However, while in a perfect world the use of law would be the means of resolving
disputes, we know that in reality it is political and economic factors that so
often take precedence. Nonetheless, law, and in particular, international law,
can play a significant role in some disputes. Thus, while we need to be
realistic in acknowledging the limited role law plays in many disputes, at the
same time we should never underestimate and we should be an advocate in favour
of the powerful potential of law.
Of the means of settlement listed in Art. 33 the first four are no judicial or
methods: negotiation, inquiry, mediation, and conciliation.
That is, they are methods and procedures that involve the parties to the
dispute, either alone (negotiation) or with some third party participation
(inquiry, mediation, conciliation).
However, none of the methods resemble judicial settlement, in that these methods
are not based on the application by an arbitrator, court or tribunal of existing
law to facts found by the arbitrator or court. The outcome of these diplomatic
methods is not binding on the disputant states.
Written By: Mohit Choudhary (Student)
, KR Mangalam University, Haryana