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
In the Mavromattes case, the PCIJ defined a dispute as 'a disagreement on a
point of law or fact, a conflict of legal views or interests between two
persons'' (Greece v U.K), J.G. Merrills suggests that:
A dispute may be defined as a specific disagreement concerning a matter of fact,
law, or policy in which a claim or assertion of one party is met with refusal,
counterclaim, or denial by another. In the broadest sense, an international
dispute can be said to exist whenever such a disagreement involves governments,
institutions, juristic persons (corporations), or private individuals in
different parts of the World. However, the disputes with which the present work
is primarily concerned are those in which the parties are two or more of the
hundred and sixty or so sovereign states into which the world is currently
Article 2(3) of the UN Charter provides:
All Members shall settle their international disputes by peaceful means in such
a manner that international peace and security, and justice, are not endangered.
Article 33 of the UN Charter provides:
- The parties to any dispute, the continuance of which is likely to
endanger their maintenance of international peace and security, shall, first
of all, seek a solution by negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
- The Security Council shall, when it deems necessary, call upon the
parties to settle their disputes by such means.
Pacific settlement of the dispute
Chapter VI (Articles 33-37) of the UN Charter, entitled Pacific Settlement of
establishes further obligations of the parties and various dispute
settlement powers of the Security Council. Under Article 35, any state may bring
any dispute to the attention of the Security Council or the General Assembly.
Under Article 36, the SC may, at any stage of a dispute the continuance of which
is likely to endanger the maintenance of international peace or security,
recommend appropriate procedures or methods of adjustments; in doing so, the SC
should take into consideration that legal disputes should be as a general rule
be referred by the parties to the International Court of Justice.
37 provides that, should the parties to a dispute of nature referred to in
Article 33 fail to settle it by the means indicated in Article 33, they shall
refer it to SC which, if it deems that the continuance of the dispute is, in
fact, likely to endanger the maintenance of international peace and security,
shall decide whether to take action under Article 36 or to recommend such terms
of settlement as it may consider appropriate.
Article 38 provides that:
Without prejudice to the provisions of Article 33 to 37, the Security Council
may, if all the parties to any dispute so 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
other specific principles of international law are highlighted both in the
friendly relations declaration and in 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 listed in Article 33 of the charter are:
- Negotiation: – The settlement of the international disputes by the
disputant states themselves by negotiation is said to be the settlement of
the disputes by negotiation. In other words, when there a dispute arises
between two or more states then to avoid the chances 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, without
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 is said to be Good-offices. In the case of Good-offices, the
third merely renders services to bring the disputant parties to peace full
means of settlement of disputes. Here the third party does not give any
suggestions or take part in the meetings as to be held between the disputant
parties. Shortly speaking, in case of good offices whenever the parties to
dispute come to peace full of the settlement of dispute the duty of the
third party finishes.
- Mediation: – The act of participating and in the discussions and giving
suggestions to settle a dispute between two parties by a third party is said
to Mediation. In other words, mediation is the method to settle a dispute
where any third party actively takes part in the sessions of dialogues or
negotiations held between the disputant party to resolve the dispute. In the
case of mediation, the mediator should consider the matter of compromise
between the parties rather than encourage the strict letter of the law.
- Inquiry: – The process to ascertain the facts of disputes by a
commission of imperial investigators is said to the inquiry. This mean is
intended to find out the questions of law and mixed questions of law and
fact involved 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 investigate the question of law and mixed questions of law and fact.
- Conciliation: – The process of referring a dispute to a commission; to
find out facts and prepare a report containing proposals for the settlement
of that dispute, is called conciliation. In case of conciliation, the
commission is to take two tasks, at first, it shall ascertain the facts of
the dispute and secondly, it shall prepare a report which shall reveal that
the possible measures to settle the dispute. But the proposals prepared by
the commission have no binding force upon the parties. The parties can
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 called arbitration. The essential ingredient of arbitration is
the consent of disputant parties to the dispute. In other words, the
referring of the dispute to a Court of Arbitration is dependent on the
sweet-well of the parties. International law recognizes a court for
arbitration known as the Permanent Court of Arbitration. But in fact, it is
neither permanent nor a court.
- Judicial Settlement: – The process of settling a dispute; by the
International Tribunal in the light of the provisions of International Law,
is said to be Judicial Settlement. For Judicial Settlement there is a
judicial organ in international law, known as the International Court of
Justice. Both the award given by the arbitration tribunal and decision given
by the International Court of Justice comes in the ambit of Judicial
Settlement. Like in arbitration, in case of referring the dispute to the
International Court of Justice the consent of both the parties are necessary
to be given. International Court of Justice shall take its proceeding in the
light of the rules of International law, and its procedure is governed by
the statute known as the Statute of the International Court of Justice.
International Court of Justice plays a very important rule in the settlement
of international disputes.
- Security Council: – A dispute may be settled by a principal organ of the
United Nations, known as the Security Council. The Council consists of
fifteen members. Five members are permanent while the remaining ten members
are non-permanent members. Wide powers have been entrusted to the Council
for the settlement of the disputes, which tend to endanger world peace and
security. There are several measures to be taken by the Council for the
settlement of the disputes.
- General Assembly: – General Assembly is another principal organ of the
United Nations. The Assembly has no specific means to settle the dispute,
rather it has general powers to settle the international dispute. It has the
power to discuss and to suggest better means for the peaceful settlement of
Compulsive or Coercive Means
Compulsive or coercive means for the settlement of disputes are non-peaceful
methods. Such measures involve pressure or force on a State to settle the
dispute. However, the use of compulsive measures does not mean the use of armed
forces in all cases. Normally, they include the measures which are just
predecessor to war, or short of war.
Retorsion is the technical term for retaliation. It is based, to some extent,
on the principle of tit for tat. When an act is done by a State similar to that
done earlier by another state, it is called Retorsion.
The purpose of Retorsion
is to take retaliation. The acts which are done by a State in Retorsion are not
illegal. In other words, they are permitted under International Law. However, it
is an unfriendly act and in given circumstances, it may be an effective tool of
This is acknowledged in practice when international conventions
sometimes provide for the employment of an unfriendly act as a reaction to the
breach of obligation. The cases where Retorsion are employed as a means to
settle the disputes may be numerous. For instance, if the citizens of a State
are given unfair treatment in another State through rigorous passport
regulations, the former 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 two
Pakistani High Commission officials were declared persona non grata by India,
Pakistan also expelled three Indian officials and declared them persona non
grata. The action of Pakistan can be termed as Retorsion
The term reprisals
includes the employment of any coercive 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 other
state may take any coercive measure against that State to settle the dispute.
Formerly, Reprisals were restricted only to the seizure of the property or
persons, but later, it included other methods as well such as 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 may be
applied not only to the state but against the citizens of that State as well.
While a state is at liberty to take action of reprisal, but it has to meet some
lawful conditions laid down in the Naulilaa Incident case.
After the creation of the United Nations, the principles of non-use of force and
peaceful settlement of disputes have generally 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.
Actions taken in reprisals are illegal and are taken exceptionally, by a State
to obtain justice. In reprisals, a State takes law into its own hands.
The term Embargo
is of Spanish origin. Ordinarily, it means detention, but in
International Law, it has the technical 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 vessels or to the vessels of
other States. When a state confines the operation of the embargo to its vessels,
it is known as a civil
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 purpose is to exert
financial or economic pressure on the other state.
When ships of other states are detained which as committed a breach of an
Internal Law, the embargo is said to be hostile
. The purpose of such an
embargo is to compel another state to settle 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 endanger international peace and security. If it does so, it would
become illegal. The collective embargo may be applied under the authority of the
Security Council against a delinquent State.
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 means to
exercise economic and political pressure on that State, the act is called
blockade. When applied during peacetime, it is known as the pacific blockade
The essential requirements are that the blockade should be declared and
notified; the blockade must be effective.
As to the validity of the pacific blockade, in international law, there was a
difference of opinion among jurists, but after the creation of the United
Nations, application of the pacific blockade has become illegal because it
threatens peace and security.
Collective blockades, when applied under the authority of the Security Council
are not illegal. It was applied against Iraq in 1990.
It is another compulsive means of settling disputes between states, short of
war. According to Professor Oppenheim, it is the dictatorial interference by a
State in the affairs of another State to maintain or alter the actual condition
of things. Professor Winfield has classified intervention in three categories,
i.e. Internal, External and Punitive Intervention.
Peace cannot be established in the world unless states as separate entities from
their citizens are not inclined to solve the disputes. As 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 also multiple times larger
than that of the resolution of a dispute between individuals. Hence, individual
states must resolve to solve all the disputes, by using amicable means. This is
inevitable for the peace of the world, when several complexities, both legal and
factual, increase the number of disputes too.
- H.O Agrawal, International Law & Human Rights, (22nd ed.) Central Law
- Christian Tams, The settlement of International Dispute, University of
- Malcolm N. Shaw, International Law, 5th Edition, Cambridge University