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Peaceful Means of Dispute Settlement

The peaceful resolution of international disputes constitutes a continuous, uninterrupted process based on international law, in which states participate as equal entities in rights. Forced to prevent the occurrence of any international situation or dispute, states have the duty, according to the 1982 Declaration, to resort only to peaceful means of settlement for disputes between them, having the right to freely decide and choose, on the basis of their joint agreement, those peaceful means that are considered convenient, timely and appropriate for a peaceful settlement.

The universality of this obligation in contemporary international law has contributed, together with the principle of non-return to force, to essential changes in the content and purpose of this right, in the sense of accentuating and amplifying its function to promote and maintain international peace and security.

Introduction
Disputes are inextricably linked to international relations. Increasingly these disputes are no longer just primarily between states but also between states and other parties like international organizations and other non-state actors, and between these actors mutually. In this context the Charter of the United Nations (UN) plays a major role, in particular, regarding disputes between states. Article 2(3) of the UN Charter states that all Member States have to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. This view was again confirmed in 1982 in a resolution (Res. 37/10) of the UN General Assembly, the so-called Manila Declaration on the Peaceful Settlement of International Disputes.

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, enquiry, mediation, conciliation, arbitration, and judicial settlement. Notwithstanding the free choice of means the Manila Declaration underlines the legal obligation of parties to find a peaceful solution to their dispute and refrain from action that might aggravate the situation.

The methods and procedures of dispute settlement for states also largely apply to non-state actors. These various forms of peaceful dispute settlement are the subject of this general research guide. In addition, there are research guides available on International (Commercial) Arbitration, the Permanent Court of Arbitration, and the International Court of Justice. Information and resources on disputes concerning foreign investment and investment arbitration can be found in the research guide on Foreign Direct Investment.

The Concept of International Disputes

Definitions of the Concept

There is up to now, no treaty rule defining what an international dispute is. The Black’s Law Dictionary circumscribes disputes as a conflict or controversy, especially one that has given rise to a particular law suit (Garner, 1999, as cited in Schreur, 2008, p.1).

In the Mavromattes case, the PCLJ defined a dispute as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons (Bilder, 1986, P.3). In its advisory opinion on the interpretation of peace treaties between Bulgaria, Hungary and Roman in which two sides held clearly opposite views concerning the questions of performance or non-performance of certain treaty obligations (Schreuer, 2008, P.2). Merrills (1998, as cited in Builder, 1986) makes the definitions clearer and more specific.

According to him, a dispute may be defined as specific disagreement concerning a matter of fact, a law or policy in which a claim refusal, counter claim or denial by another. Schreuer (2008) notes that the existence of a dispute pre-supposes a certain degree of communication between the parties. The matter must have been taken up with the other party which must have opposed the claimant’s position, if only indirectly.

An international dispute can be said to exist whenever such a disagreement involves governments, institutions, jurist person or corporations or private individuals in different parts of the world., More specifically today’s definition of an international dispute is that of a dispute in which at least one party is a state or an international organization, the other(s) being another state, an international organization, a natural or a legal person from a different state.

The disagreement must be specific. This means that it must have a reasonably defined subject matter, so that one can say, at least nominally, what the dispute is about. In addition, the disagreement must involve conflicting claims or assertions. This means that one party must assert or manifest what it wants or believes it is entitled to with respect to the other party, which the other party has to manifest its refusal or its conflicting claims. This manifestation may be through statements, diplomatic notes, specific actions or otherwise (Bilder, 1986).

A dispute is, therefore, something more than general attitudes of dislikes or hostility. Two nations may have general feelings of antagonism against each other and yet not have any specific or particular disagreement one may identify as a dispute; conversely, two nations may be at friendly terms, yet have a particular disagreement which can be considered a dispute.

Means Of Settlement Of Disputes

Negotiation

Negotiation is the oldest, most common, and the simplest methods of settling international disputes. It is recognized by the great majority of treaties of pacific settlement as the first step towards the settlement of international disputes. Most of the treaties make a failure to settle a dispute by negotiation a condition precedent to compulsory arbitration or judicial settlement. It is, therefore, not surprising that negotiation comes first in the list of means of pacific settlement of disputes stipulated in Article 33(1) of the Charter of the United Nations.

Negotiation consists of discussions between the concerned parties with a view to understand the opposing positions and opinions and reconcile the differences. It is very suited to the clarification and elucidation of the opposing contentions. It is the most satisfactory means to settle disputes since it is a voluntary bilateral and self-help means; the parties are directly engaged in the process; intervention by any third party in the process is not necessary.

Negotiations, however, do not always succeed in reaching solutions to disputes or differences between the parties. Thus, third parties interventions are needed to help the parties in reaching a settlement to their disputes and differences; here comes the importance of the other diplomatic methods of dispute settlement.

B. Enquiry
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. They 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 conscientious investigation. 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 enquiry 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 accept them.

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.

C. Mediation, Conciliation and Good Offices

Mediation, conciliation and good offices are three methods of peaceful settlement of disputes by which third parties seek to assist the parties to a dispute in reaching a settlement. All involve the intervention of a supposedly disinterested individual, State, commission, or organization to help the parties. When the parties are unwilling to negotiate, or fail to negotiate effectively, assistance by a third party through its mediation, conciliation, or good offices may be necessary to help in procuring a settlement. This assistance may be requested by one or both of the parties, or it may be voluntarily offered by a third party.

Although there is no distinction in the general features of mediation, conciliation, and good offices, a theoretical and practical distinction can be made among them according to the degree of third party participation, and the extent to which the disputants are obliged to accept the outcomes of the procedures.

Mediation is a process through which an outside party (third party) endeavours to bring the disputants together and assists them in reaching a settlement. The third party offers his assistance to the parties to a dispute. The consent of the disputants is not necessarily required initially, but no mediation proceedings can be commenced without their consent. The mediator actively and directly participates in the settlement itself.

He does not content himself with making negotiations possible and undisturbed. He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute. However, his proposals represent nothing more than recommendations. They have no binding force on either disputant. The parties to a dispute are free to accept or reject his proposals.

Conciliation 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.

When the 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 negotiation.

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. 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, conciliation, and good offices have been 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. Their 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.

Section 2: 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 dispute settlement.

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. The major 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 and judicial settlement 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 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; this same definition was repeated in 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 distinguished individual.

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. All 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, 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 international obligation.

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.

Section 3: 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.

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. 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(1). Second, it may recommend to the parties appropriate procedures or method of settlement. Third, it may recommend terms of settlement, as it may consider appropriate.

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.

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 action.
  • 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.

Declaration and Resolutions of the General Assembly

The principle of the peaceful settlement of disputes has been reaffirmed in a matter of General Assembly resolution, including resolutions 2627 (XXV) of 24 October, 1970, 2734 (XXV) of 16th December, 1970 and 40/9 of 8th November, 1985. It is dealt comprehensively in the Declaration on Principles of International Law concerning Friendly Relations and cooperation among states in accordance with the charter of the United Nations (resolution 2625 XXV, annex), in the section entitled The principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, as well as in the Marile Declaration on the Peaceful Settlement of International Disputes (resolution 37/10, annex), in the Declaration on the Prevention and Removal of Disputes and situations which may threaten international peace and security and on the Role of the United Nations in this field (resolution 43/51, annex) and in the Declaration on Fact Finding by the United nations in the Field of maintenance of International Peace and Security (resolution 46/59, annex).

Corollary and Related

The principle of the peaceful settlement of international disputes is linked to various other principles of international law. Under the Declaration on Friendly Relations, the principles dealt with in the Declaration – namely 1. the principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations; the principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security are not endeavoured; the principle concerning the duty not to intervene in matters within the domestic jurisdiction of any state, in accordance with the charter, the duty of states to cooperate with one another in accordance with the charter; the principles of equal rights and self-determination of people; the principle of foreign equality of states; and the principle that states shall fulfil in good faith the obligations assumed by them in accordance with the charter, the duty of states to cooperate with one another in accordance with the charter; the principles of equal rights and self-determination of peoples; the principle of that states shall fulfil in good faith the obligations assumed y them in accordance with the charter are interrelated in their interpretation and application and each principle should be construed in the context of other principles.

The Final Act of the conference on security and cooperation in Europe, adopted at Helsinki on 1st August, 1975 states that all the principles set forth in the Declaration on principles considering relations between participating states i.e. sovereign equality, respect for the rights inherent in sovereignty; refraining from the threat or list of fore; inviolability of frontiers; territorial integrity of states; peaceful settlements by disputes; non interventions in internal affairs; respect for human rights and fundamental freedom, including the freedom of thought, conscience, religion or belief; equal rights and self-determination of people; cooperation among states; and fulfilment in good faith of obligations under international law are of primary significance and accordingly they will be equally and unreservedly applied, each of them being interpreted taking into account the others.

The links between the principle of the peaceful settlement of disputes and other specific principles of international law are highlighted both in the friendly relations declaration and in the Manila Declaration, as follows:
  1. The principle of non-use of force in international relations.
  2. The principles of non-intervention in the internal affairs or external affairs of states.
  3. Principles of equal rights and self-determination of people.
  4. Principles of the sovereign equality of states.
  5. Principles of international law concerning the sovereignty, independence and territorial integrity of states.
  6. Good faith in international relations.
  7. Principles of justice and international law.

Free Choice of Means
This is laid down in Article 33 para 1 of the charter of the United Nations and reiterated in the fifth paragraph of the relevant section of the Friendly Relations Declaration and in section 1, paras 3 and 10, of the manila Declaration. Both the Friendly Relations and the Manila Declaration make it clear that recourse to, or acceptance of a settlement procedure freely agreed to with regard to existing or future disputes shall not be regarded as incompatible with the sovereign equality of states.

The means listed in Article 33 of the charter are:

  • Negotiation;
  • Mediation;
  • Conciliation;
  • Arbitration;
  • Judicial settlement;
  • Report to regional arrangements or agencies;
  • Other peaceful means of the parties, own choice.

Under the Friendly Relations Declarations and the Manila Declaration it is for the parties to agree on such peaceful means as may be appropriate to the circumstances and the nature of their disputes.

Conclusion
Briefly speaking, International Law intends to overcome the chances of war and violence, and believe to solve the disputes on the merits of political, diplomatic and judicial bases. To avoid the chances of breaking out of wars it provides certain measures and means. Among which above are the amicable means to settle the disputes. But international law also recognizes certain coercive or compulsive means to settle the disputes in extra-ordinary cases where the International peace and security has been endangered.

Written By: Bijender Rathi (Student), Kr Mangalam University, Haryana

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