SETTLEMENT OF INTERNATIONAL DISPUTES

Author: Yashvee Singhal, 2nd year, BBA LLB (H), Amity Law School, Amity University Rajasthan.
The article has been written by the author while pursuing the internship programme with us.

CONCEPT OF INTERNATIONAL DISPUTE

As such, there is no universally defined definition which defines international disputes. However, we can say that “it is a point of disagreement among the nations on some point of law or the facts which are violating the legal views or legal opinions or interest between the sovereign nations.” There are basically two bases on which the conflict among the nations can arise which are as follow:-

  • LEGAL DIFFERENCES
  •  POLITICAL DIFFERENCES

● Legal Differences are the justifiable grounds which mean that the parties involved in the disputes are calming their rights on the basis of the grounds which are being mentioned or being recognized by International Law.

● Whereas Political Differences are conflict of interest or political disputes. Basically both the disputes arise on the basis of the attitude of the nations towards dealing with a problem. Therefore those who have “political“ nature should be resolved and dealt with by political organs and one who is having “legal” nature should be dissolved through various judicial approaches.

In the case of Nicaragua vs. Honduras [1] the court held that “the court is only concerned with the cases involving with a legal dispute, in the sense of a dispute capable of being settled by the application of principles and rules of international law.” There are two ways for the settlement of these disputes:-

AMICABLE MEANS

Amicable ways mean a way of settlement of legal disputes by the use of peaceful methods. This is also being recognized in Article 2 of the UN Charter[2] provides that all members must settle their disputes through peaceful means. Even the UN Charter does not define any particular way in which disputes need to be resolved; the parties are free to choose as per their convenience the dispute settlement mechanism. However, Article 33, UN Charter[3] provides a number of alternatives to choose to resolve the disputes. But with the passage of the time, this method has gained the status of customary law through various precedents like the declared by ICJ in the case related to Military and Para-Military actives in and against Nicaragua.[4] Various ways are:-

  • Negotiation:– This is a way of settlement of disputes by solving it by themselves i.e. by the conflicting states which are called settlement of disputes by negotiation. It is this the disputant states negotiate with each other to come to a point of conclusion. These negotiations are being taken by the political representatives of the disputant states without the involvement of any third or non-relevant country so as to avoid the chances of the wars.
  • Good Offices:- In this, the initiative of the settlement of disputes is done by a third party i.e. the act or arrangement to solve the disputes among the disputant states to negotiate is taken by the third party. This third party just basically renders a way to solve the disputes by a peaceful settlement and doesn’t give any suggestions or take part in the meetings to be held among the disputant parties. Hence, their role finishes when the dispute is being resolved among the states.
  • Mediation:- This is a way which is opposite of Good Offices. In this, the third party takes participation in the discussion and gives its suggestions so as to settle the dispute. Shortly saying, in this the third party takes part in the meetings of the negotiations and dialogues held between the nations so as to come to a conclusion. In this, it’s the duty of the mediator to consider how much the compromise can be done among the nations rather than to encourage adherence to the letter of law.
  • Inquiry:- actually this is a process to take into the account the facts of a dispute by the establishment of a commission of the investigators, their function is to bring in light to those facts which are the root cause of the disputes and to investigate the question of the law and mix the question of fact and law.
  • Conciliation:- in this, the commission is established to which the dispute is referred. The function of the commission is to investigate into the matter and prepare a report containing various proposals for settlement of the dispute which are not binding on the disputant parties.
  • Arbitration:- Here the matter or the dispute among the nations is being referred to a body of persons or tribunal for a legal decision on the behalf of the free content of the disputant parties. In the case of Qatar vs. Bahrain, the ICJ stated the arbitration as, “the settlement of differences between the states by judges of their own choice, and on the basis of respect for the law.”[5] International law recognizes a court for arbitration known as the Permanent Court of Arbitration.
  • Judicial Settlement:- here the disputes among the nations are resolved by applying the provisions of the law by taking the matter into the International Court of Justice. Here the consent of both the parties is required to take a matter to the court. ICJ gave the decisions as per the principles of the International Law and its procedure is governed by a statute known as the Statute of International Court of Justice and this way is a very important mode to settle international disputes.
  • Security Council and General Assembly:- These are the principal organs of the UN which are vested with the wide powers under paragraph 2 article 11, article 14 and article 24 paragraph 1 of UN Charter[6] to settle an international dispute in a peaceful way. It has the power to discuss and provide better means for the peaceful settlement of disputes.
COMPULSIVE MEANS

Compulsive means a way to use the pressure or force on the states to settle the disputes; here the use of force doesn’t mean the use of armed forces in all the cases. This is the opposite of amicable means. This is a way just predecessor to war, or short of war. It includes various ways which are as follows:-

  • Retrosion:- It’s another name is retaliation. It is based upon the philosophy “tit for tat”. When an act is done by a nation to another nation which is being done earlier by another nation is called retorsion. Means if the citizens of a state are given unfair treatment in another state to obtain a passport through the rigorous process then the former state may also take the same step in respect to the citizens of the later state. This is not considered illegal.
  • Reprisals:- In this, the purpose of the state is securing redress. Here the main motive behind the state is to discontinue the wrongdoing or to pursue it, or both. It arises as a result of illegal actions of a state then the later state may take coercive measure against the former one however taking into consideration the lawful conditions mentioned in the Naulilaa Incident case.[7] However this method is prohibited in Article 2 of the UN Charter and even in Article 33 of Geneva Conventions, but this method is used by a state in a very exceptional case to get justice.
  • Embargo:- In this, the dispute is settled by the detention of the vessels in its national domain of another state so as to have limited the order or interrupt or terminate the trade relations with another state so as to exert economic pressure on the other state so that dispute can be resolved, however, this should not go against the international peace and security, if it does so, then would be termed as illegal.
  • Pacific Blockade:- Here the coast of a state is blocked by the other state so as to exercise the economic and political pressure on another state by preventing ingress and egress of vessels of all the nations by the use of warships. However, it has now become illegal as it violates the provisions of the general assembly[8] and at the same time threatens peace and security.
  • Intervention:- It is a dictatorial interference by a state in matters of the other state so as to settle the dispute for maintaining or altering the actual conditions of thongs. It is basically of three types namely- Internal Intervention, External Intervention, Punitive Intervention.

WHICH METHOD SHOULD BE PREFERRED?

While solving any international dispute, the method which should be used depends upon the circumstances. However, one should try to go for amicable means of dispute settlement. This is because as compared others method, amicable method firstly helps to achieve the object of the UN mentioned under Article 1 of the UN charter i.e. “to bring peace at the international level”. Secondly, an amicable method provides flexibility like conciliation and negotiation which are informal processes, thereby it is flexible. It is also less time consuming and facilitates in maintaining a healthy relationship between the disputing parties. Thirdly, this method intends to overcome the chances of war and violence, which if not happened may lead to the destruction of life and property.

This method believes to solve the disputes on the merits of political, diplomatic and judicial bases. But sometimes we need to go for compulsive means of settlement of disputes. Therefore, in order to maintain international peace, we should go for amicable settlement of disputes.

EXAMPLES

The Shimla Agreement was signed between India and Pakistan on 2 July 1972 in Shimla, the capital city of the Indian state of Himachal Pradesh. The agreement was the result of the resolve of both the countries to “put an end to the conflict and confrontation that have hitherto marred their relations”. It conceived the steps to be taken for further normalization of mutual relations and it also laid down the principles that should govern their future relations. Here both countries had settled their differences by peaceful means through bilateral negotiations, an example of amicable means of dispute settlement.

Another example was the Mediation of Soviet Premier Kosygin in the dispute between India and Pakistan which resulted in the conclusion of the Tashkent Agreement in 1966.

In the case of Qatar v. Brahmin[9], a dispute concerning sovereignty over certain islands and shoals, including the delimitation of a maritime boundary was issued upon which Qatar and Bahrain sought to resolve for 20 years. During this period of time, letters were exchanged and acknowledged by both parties, heads of state, however, anything resulted in, as a result, a case was filed in the International Court of Justice by Qatar in the year of 1991, whose (ICJ) judgement was accepted by both parties thereby resolving the disputes through amicable means of settlement of the dispute.

CONCLUSION

Peace is an ultimate objective of the globe which all the nations try to achieve. However, this peace cannot be achieved until the disputes among the nations or states are solved considering the state them as separate entities aside from the individual citizens. The magnitude required to solve the disputes among the states is much larger than the magnitude required solving among the individuals. The state should solve the disputes among themselves in such a way that it does not hamper the international peace and security. Therefore, they should try to use almost amicable means, they should use compulsive means in every extraordinary situation. The main thing is to achieve peace.


REFERENCES:

[1] I.C.J. Reports 2007, p. 659

[2] Article 2, UN Charter

[3] Para 1 Article 33, UN Charter, It states that “the parties to any disputes…shall…seek a solution by negotiations, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

[4] ICJ Reports 1986 p.14 at p.145

[5] [1994] ICJ Rep 112 (Official Citation) ICGJ 81 (ICJ 1994)

[6] paragraph 2 article 11, article 14 and article 24 paragraph 1, UN Charter

[7] Naulilaa Arbitration (Portugal v Germany)

[8] Para 3 of Article 3 resolution adopted by General Assembly

[9] supra note.6.


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