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Settlement of International Disputes using Coercive means

The current World order as we know it today has not existed forever, in today's day and age States are considered as equals (at least on paper). However, for the longest time, the interests of States revolved around struggle for power and territory, where one State could just decide to annex another at any given moment. Security was equated with threats to a countrys border and Nations sought arms to resolve potential conflicts that may arise.

In this age, Military security was given the highest importance. Notions surrounding security have however evolved over time to move away from the State-centric approach of merely achieving military security to a more co-operative and collective form of security.

This collective form of security came into picture with the realization that the interests of both States as well as individuals need to be addressed simultaneously as most concerns that people face today are related to issues in daily lives as opposed to a world ending invasion by a neighboring country.

The Human Development Report of 1994[1] gives a detailed explanation of this new form of human security (as opposed to merely territorial security) that would rely on an equitable sharing of global resources, inter-dependency between nations and fruitful correspondence between various nations.

Despite these changes in world order, the various new facets of security, the equality and interdependence between states, conflicts in the international arena cannot be completely eliminated. This is where the need for new and evolved mechanisms and strategies aimed towards resolution of conflicts can be seen. The current mechanisms/methods can be broadly divided into two categories, namely:
  1. Pacific Settlement
  2. Coercive Methods
For the purposes of this paper points of contention will revolve around the above-mentioned Coercive Methods.

Part 1 - The Concept of Coercion

In establishing the International Court of Justice, the United Nations hold before a war-stricken world the beacons of Justice and Law and offer the possibilities of substituting orderly judicial processes for the vicissitudes of war and the reign of brutal force[2] With the establishment of the ICJ by the UN, it became clear that the international community as a whole was against the use of violence as a means of settling disputes.

When a conflict arises in the international arena, the first step that countries are required to take revolve around the Methods of Pacific Settlement involving use of peaceful mechanisms as dictated by Articles of the UN Charter(example- Article 2) as opposed to force and violence which may be used as an extreme measure. Peaceful methods may be further divided into Political and Diplomatic (non- binding) such as Negotiation, Good Offices, Mediation or Judicial (binding) such as Arbitration and Adjudication (before ICJ).

When these aforementioned methods fail States may be forced to adopt coercive methods. Contrary to popular belief such methods do not always involve the use of violence or an armed response.

Even coercive methods can be sub-classified into two categories:
  1. Coercive Methods (Predecessor of War): When peaceful attempts at resolving disputes end in failure and the desired result is not achieved, States turn to coercive but non-violent methods. These methods revolve around State mechanics and are aimed at creating a sort of psychological compulsion/pressure to settle disputes. These methods are just short of declaring war and include; (a) retorsion; (b) reprisals (including embargos and blockades); and (c) intervention.

  2. Coercive Methods (through War): when all else fails, the final resort aimed at settlement of the dispute can involve organised application of force in the form of war. Such wars may be fought with an agreement on certain terms of reference and restraint as per the international standards (Limited War) or take a destructive form with no boundaries and limitations (Total War).

Part 2-Coercive Methods (Predecessor of War)

These methods form a complex strategy of retaliation and as the name suggests involve unfriendly acts towards the states in dispute. Some common methods employed include expulsion of diplomats, suspension of treaties, denial of recognition etc.

Retorsion

The technical term used to describe retaliation against a discourteous act of a state is referred to as Retorsion in the international arena. Such acts done by a State in lieu of a similar act committed earlier by another State are considered permissible in the scheme of international law.

An act of Retorsion is not illegal, however the measures followed must be allowed under law. This can be gathered from the practice of providing for the use/employment of unfriendly acts in reaction to a breach of obligations in certain international conventions. The cases where retorsion may be used to settle disputes are numerous.[3]

For example, a State may increase tariffs rates against States which are boycotting or discriminating against products of a specific nation. Such an action under retorsion may be termed as retaliation in kind. In certain cases, a State may commit a legal but discourteous/unfriendly/unfair act in these cases retorsion is not limited to retaliation in kind.

Article 2(3)[4] of the UN Charter is the most important provision that governs and limits the use of retorsion. Even though retorsion is legally permissible in certain scenarios the Charter prevents its use in situations where international peace and security may be endangered. In other words, an Act of retorsion must not be in contravention to the prospect of creating a situation which may have a negative impact on the peace and security in the international system.

One case among many of retorsion occurred in 1999 when Pakistan declared an Indian High Commission official as persona non-grata while expressing concern over the activities of the Indian official that were in violation of the Vienna Convention, earlier on the same day India had declared a Pakistan High Commission staffer as persona-non-grata for espionage activities after he was caught by Delhi Police with sensitive defence documents.[5] Here the act on part of Pakistan can be termed as an act of retorsion. In laymans term this may be called a tit for tat situation (the principle behind retorsion).

Reprisals

Reprisals is a head that covers all kinds of forceful measures that are generally undertaken by a State. It is also a concept of retaliation, but hovers over the principles of an eye for an eye. Historically reprisals were concerned more with the seizure of property and persons, as opposed to the current scenario where it usually connotes compulsive measures used by one state against the other in order to settle a dispute arising from an unjustified or unlawful conduct of the latter.

The main distinction that can be drawn between retorsion and reprisals is that retorsion despite being an unfriendly act would still constitute a lawful act, reprisals are usually measures taken in the context of an international armed conflict. Thus, by virtue of the circumstances under which such acts (of reprisal) are committed, they are in principle unlawful.[6]


Even if there may be certain situations wherein reprisals may be considered legal, their use is highly restricted and the following principles regarding their use have been enunciated in various international cases.
  1. the principle whereby they must be a last resort in attempts to impose compliance by the adversary with legal standards (which entails, among other things, that they may be exercised only after a prior warning has been given which has failed to bring about the discontinuance of the adversarys crimes);
     
  2. the obligation to take special precautions before implementing them (they may be taken only after a decision to this effect has been made at the highest political or military level; in other words, they may not be decided by local commanders);
     
  3. the principle of proportionality (which entails not only that the reprisals must not be excessive compared to the precedent unlawful act of warfare, but also that they must stop as soon as that unlawful act has been discontinued) and;
     
  4. elementary considerations of humanity.[7]

With the progression of years, the principles of not using force and of peaceful settlement of disputes can have been said to have become part of jus cogens under international law as a generality. In 1970 the General Assembly of the UN declared that ‘States have a duty to refrain from acts of reprisal involving the use of force.[8]

Even use of forces under Article 51[9] is limited in the sense that unless peaceful means were adopted before resorting to force then such a use of force would be considered illegal. The only time Reprisals may be considered justified are if the other State has violated international law or have been a party to an international crime. Objective of the Reprisal cannot be revenge, they must be just and satisfactory in order to bring the dispute to an end.

Reprisals are usually operationalised by adopting strategies such as:

  1. Embargos: Embargos are a type of reprisal that function mainly as a tool of economic warfare that may be used to fulfill various political agendas, such as demonstrating resolve, sending a political message, compelling change in another nations behaviour, deter undesired activities of other States.

    Such a situation can be seen in 1992 when United States had put in considerable effort to ensure compliance with the embargos against Cuba, put in place as a retaliatory act for the drowning of an American passenger plane by the Air Force of Cuba.[10] Since the end of the Cold War, strategic embargoes have been imposed against Libya, Iraq, and North Korea.[11]

    When a state commits an international crime or violates international law, Embargos are used to prohibit all shipments of products and goods to a certain country or to a number of countries as a group. Embargos at present can be imposed by the UN collectively, States, or even individual private groups seeking redressal. As we have seen as a thumb rule, Embargos same as Reprisals must not disrupt international peace and security as in such a case, they would cease to be legal actions.

  2. Pacific Blockades:
    This measure was formulated from the common practice (during times of war) of blockade of an opposing States ports. In times of peace these blockades that prevent ‘ingress of ships (usually merchant) from other states and ‘egress of ships from the blockaded State. This hampers trade and other economic activities of the blockaded State to a great extent thereby exerting pressure on the said nation to settle the dispute[12]. In the present-day unilateral blockades by States are not favored by the United Nations and has become an extinct/obsolete measure. However, Article 42 of the UN Charter justifies it as a collective measure.

Certain essential requirements regarding Pacific Blockades can be listed as follows:

  1. Ships under a foreign flag can enter freely notwithstanding the blockade;
  2. The pacific blockade must be officially declared and notified, and maintained by a sufficient force;
  3. The ships of the blockaded power which do not respect such a blockade may be sequestered. When the blockade has ceased, they must be restored to their owners, with their cargoes[13]
Advantages of Blockades include the fact that it is non-violent in nature and provides blockading States with more options as compared to other similar methods. One such example of a Collective Blockade being employed was against Iraq by the Security Council in the year 1990.[14]

Intervention
Traditionally the principles[15] of non-intervention are propounded and followed to a great degree in the International arena. These principles were developed in order to protect the and ensure that every States sovereignty, territorial integrity, and political independence are protected.[16] The ICJ in the Corfu Channel case[17] and Nicaragua case[18] have explained and supported these principles while holding that:
The principle of non-Intervention is part and parcel of customary international law and is a Jus Cogen.[19]

thereby making non- intervention an extremely important norm to be followed under International Law. This however does not mean that there are no exceptions whatsoever to this rule. Most significantly we have two exceptions being Collective Intervention under Chapter VII (Articles 39-50) in cases of threat to peace, acts of violence/aggression and in a second situation involving Self Defence by a State (Article 51).

For UN (Collective Action), it is paramount that all provisions of Chapter VII are adhered to strictly and there must be some justification in order to prove the necessity of such Intervention. To achieve this purpose the UNSC may direct organisations (ex; NATO) or a select number of States to initiate action.

The main grounds for collective intervention may be humanitarian in nature, to prevent/stop civil war, to prevent atrocities against the environment, to eliminate existing governments (Bush Doctrine[20]) or any like situation that may pose a threat to international peace and security.[21]

In cases of unilateral intervention by a State while practicing the ‘inherent right of self-defence certain criterions and conditions laid down in the Caroline Case[22] and (commonly referred to as the) Caroline Test (necessity and proportionality) must be fulfilled if such action is to be seen as lawful.

Authorisation from the UNSC is seen as a mandatory step before any kind of intervention by one State into the affairs of another. In practicality this is not always followed such as the interventions by the U.S in Iraq (1991,2002), in Pakistan (2011) to attack Osama Bin Laden as well as by NATO during the Kosovo Conflict. This raises an important question regarding States intervening (even pre-emptively) on basis of terrorist activities, and whether such interventions may be seen as legitimate in the coming future.[23]

Collective Security is also a measure taken by the UN as a collective exercise under the UN Flag and Army, such a measure is treated as a last resort and before the use of force UN must try to exercise other measures (such as interruption of economic, communication and diplomatic activities).

Part 3 - Coercive Methods (through War)

Certain situation requires a brutal use of force in order to achieve the required solution to a dispute, on the basis of the extent, methods used and intensity of the War it may be classified into two categories;

Limited War
In cases of Limited war both parties observe massive restrains and by tacit agreement only engage in warfare till the time their objectives are met. If balance can be restored and normal relations between the parties after political negotiations, made necessary due to the war can be re-established, such a situation theoretically marks the end of the War.

The purposes of war in these cases revolve around achieving a limited goal as opposed to complete victory or annihilation of the other party. The International system lays down certain references and restrains which need to be followed if there is any hope of maintaining equilibrium among States.

Total War
This kind of war is mainly theoretical in nature and has not been put into practice barring certain exceptional cases (such as bombing of Hiroshima and Nagasaki by the US on August 6 and 9, 1945, respectively). With the advent of technology and its use in warfare including WMDs (weapons of mass destruction) in the form of biological, chemical and nuclear weapons has drastically changed how a war may be fought.

Such wars have the capacity to cripple any State in a matter of hours and threaten to alter international relations between States in such a way so as to render them dysfunctional permanently without any hope of achieving equilibrium in the Internal system as a whole (a future theoretical example may be World War III).

Conclusion
Stability and Peace at the international level is a pre-requisite for development of the society as a whole. Temporary relief may be achieved by States using Coercive methods, but this does not necessarily translate into lasting and durable peace.

Till date various mechanisms have been attempted in order to ensure lasting peace (setup of International Organisations, disarmament, arms control, conventions on War, etc) however these methods in themselves raise certain problems and have failed at creating a political and economic equilibrium among the Nations of the world.
States using force or unfriendly acts against other nations in order to achieve their goals may solve the problem at hand but also ends in creating an unseen problem of residual hostility.

What needs to be addressed is the root of these conflicts (be it economic, cultural, political or environmental), these concerns of various Nations can never be solved using aggressive means but can only be addressed through peaceful means of cooperation between States.

A New World Order must be established/envisioned which is devoid of hegemony and power politics. States can no longer compete and fight for power in pursuit of individualistic national interest. Practically some steps that may be taken include non-proliferation of WMDs, democratisation of the UN and efforts towards sustainable development.

Power centres of the world need to come together along with the rest of the States both powerful and weak, rich and poor in order to achieve a world that is devoid of war-like tendencies. Such a system would need to abandon the use of Coercive methods in order to ensure that a peaceful World Order can be established.

End-Notes:
  1. Human Development Report 1994 | READ Online (UN iLibrary, 2020) accessed 5 May 2020.
  2. Report of the Rapporteur of Committee IV-1, UN Con, on Inter. Org. 913, vol 13 (1945)
  3. Retorsion, Thomas Giegerich, Oxford Public International Law, 2011
  4. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered
  5. Pakistan Declares Indian Official Persona Non Grata After New Delhi Expels Mehmood Akhtar (India Today, 2020)accessed 5 May 2020.
  6. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. Commentary Of 2016
  7. Kupre Trial Judgment, 2000, para. 535, Martić Trial Judgment, 2007, paras 466-468. See also; Naulilaa Incident case.
  8. Declaration On Principles Of International Law Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations, (Un.org, 2020) accessed 5 May 2020.
  9. Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security
  10. Embargo | International Law (Encyclopedia Britannica, 2020) accessed 5 May 2020
  11. Ibid
  12. The Legality of the Pacific Blockade. I, Albert H. Washburn (1921)
  13. Annuaire de LInstitut de Droit International (1887-88) 9, declaration by Institute of International Law, held at The Hague in 1875
  14. The United States naval blockade of Iraq, Mark E. Rosen LCDR, U.S. Navy (1991) International Journal of Public Administration, 14:6, 1149-1208
  15. Article 2(4) and Article 2(7) of the United Nations (UN) Charter
  16. Oppenheims International Law. Intervention, 1, 430-449 Jennings, S. R., Watts, S. A. (1996).
  17. [1949] ICJ Rep 35
  18. [1986] ICJ Rep 108

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