Methods to Settle International Disputes

Introduction

Countries in today’s dynamic environment are in constant conflict with each other. Every country wants to gain power and wants to have an upper hand over its opponent which gives rise to the disputes. Thus, measures are needed that can solve these disputes. There can be different types of methods that can solve these disputes. Some solve them peacefully, some use aggression, some use adjudication of disputes.

It is necessary to solve the dispute so that peace among the countries is maintained. Principles of International Law and Treaties are to be followed while solving a dispute. Each country would want to win a dispute however sometimes compromise must be done for the greater good.

International Dispute

The term “Dispute” generally means conflict between two parties which can be in relation to a certain fact or law. The dispute becomes International when the parties involved in the conflict are two or more different countries. It is not necessary that a dispute arise among the countries which are not in good relation with each other. A dispute may even arise between countries which have a good relationship between them.

A dispute may take place between the governments of the two countries, between the organizations of two countries, individuals of different countries etc.

Need to Settle an International Dispute

Countries are under no obligation to settle a dispute. However, to maintain peace and harmony they move towards settling a dispute. A dispute is generally not big enough to start a war, so countries in conflict can settle it by themselves. But in some cases third party intervention is needed to settle the nerves where tension increases. Some disputes are of such nature where we know no solution would come up and discussion of disputes may do more harm than cure, such disputes should be left untouched.

Article 1 Paragraph 1 of the United Nations Charter (UN Charter) tells us that to maintain the international peace and security by removal of threats and acts of aggression, the UN has to use peaceful means and has to comply with the International Law for the settlement of international disputes.

Article 2, Paragraph 3 of the UN Charter tells us that all the members have to settle the disputes by peaceful means in such a way that the peace is not harmed. Paragraph 4 tells us that members should refrain from using any force against the independence and integrity of state.

Reparation of Injuries Suffered in the Service of the United Nations[1]

In this case the question was whether an international organisation has the capacity to bring an international dispute. It was held that an international organisation like the UN can bring in the dispute against a member state who have violated rules of International Law to compensate the victims who have suffered loss due to wrongful act.

Role of General Assembly in Settlement of Disputes

Article 11 of UN Charter Paragraph 1 says that the General Assembly can make recommendations to members and the Security Council to maintain international peace. Paragraph 2 says that any member or non-member or Security Council may bring any question of dispute and peace to the General Assembly and it can make recommendations on the same. Under Paragraph 3 the General Assembly may bring in Attention of the Security Council any dispute which can harm International Peace.

Article 12 Paragraph 1 says that when the Security Council is working on any dispute then the General Assembly cannot recommend on the same. Paragraph 2 says that the Secretary General has to notify the General Assembly about all the disputes taken up by the Security Council and matters ceased to be taken up by them.

Article 14 says that the General Assembly can make recommendations of the measures that can be taken up for peaceful settlement. Article 15 says that the General Assembly receives the reports from the Security Council about the disputes settled by them.

Pacific Settlement of Disputes (Peaceful Settlements)

Article 33 of the UN Charter specifies us the methods that can be used to settle a dispute peacefully. It specifies about

  1. Negotiation- it is one of the most used methods to solve an international dispute peacefully. In this the head of countries in dispute participates together and enters into a conversation so that they can understand each other’s point of conflict. Third party intervention doesn’t take place. Both the parties negotiate in such a way that they can get more benefit out of the settlement. 

However negotiation is very informal and doesn’t have third party intervention due to which many times the conflict doesn’t get solved. These parties do not agree with each other on certain points of conflicts.

In the case of the Civil War in Syria, America and Russia provided International Negotiation to Syria to not to use any chemical weapon. In the North and South Korea conflict as well negotiations were provided, where there was a dispute for Korean Peninsula but the negotiations failed. In Bangladesh Factory Case[2] there was a factory which was set on fire causing loss to workers. Negotiations were held to decide the question of who will pay the compensation. It was decided that each country to which the worker belonged will pay the compensation to their worker only.   

  1. Enquiry- when a conflict takes place between two countries the dispute takes place between them on certain facts. One party alleges a fact to be true whereas the other denies the same. This brings in the role of enquiry who can conduct the investigation about the disputed facts. Various Commissions and Organizations conduct such enquiry and find that which fact is true and which is not.

However the result of enquiry in non- binding upon the parties due to which many times the purpose for which enquiry was conducted fails itself.

  1. Mediation-in this there is an intervention of the third party in resolving the dispute between the parties. The third party with the consent of disputing countries can participate in the dispute and can provide recommendations on the measures that can be taken up by the parties that can solve the dispute. The mediator has to be impartial and he is called up by the parties itself to solve the dispute or can take steps by himself to solve the dispute.

However the suggestions provided by the mediator are not binding upon parties and it is a very informal process due to which parties take it very lightly.

In Thailand-Cambodia Dispute[3] The role was played by Secretary General of UN as the mediator which took place at UN headquarters. There was an active participation of the mediator throughout the discussions which resulted in solving the dispute.

  1. Conciliation-it is like a mixture of mediation and inquiry. Conciliators are appointed who like in the enquiry conduct the investigation on the facts in conflict. Then after the investigation they, like mediators, recommend the parties about the ways they can settle the dispute. Their recommendations are based upon the investigation conducted by them.

However in conciliation as well the suggestions are non-binding. They are more formal as compared to mediation still the result depends upon the will of the parties.

  1. Arbitration-arbitration is more formal than other methods for settlement of dispute. In this the parties can appoint their own arbitrators which are generally odd in number because the decision comes up on the basis of majority vote. The parties have the freedom to choose the procedure to be followed and the decision given is binding upon the parties. It is one of the most successful methods to solve a dispute because it has binding effect and is formal and at the same time it has flexibility according to the convenience of the parties. They can decide the place, language etc. of arbitration.

BALCO v. Kaiser Aluminium[4]

In this case it was observed that in case of International Arbitration the Part 1 of Arbitration and Conciliation Act, 1996 will not apply. The applicability of law has to be decided by the principle of “seat theory”. It helps in deciding the jurisdiction.

  1. Judicial Settlement– this involves the decisions given by the International Court of Justice, International Criminal Court etc. This is way more formal than other methods and decisions are binding upon parties. This method has been discussed in detail below in this article.
  1. Regional Agencies or ArrangementsArticle 52 to 54 of the UN Charter has discussed this method of solving the dispute. This is formed generally to deal with local issues. This has been discussed below in this article.
  1. Other peaceful means– there are many other peaceful means through which the settlement can take place such as by good offices which can be provided by third parties to settle a dispute or a retired judge can be appointed by the parties to decide the case etc.

In the case between Malaysia and Indonesia Dispute [5], Thailand provided the good offices to resolve the dispute. This resulted in solving the dispute by the end of policy ‘Confrontasi’ which was started against Malaysia.

Paragraph 2 of Article 33 specifies that it is the role of the Security Council to call upon the disputing parties to settle their dispute through these methods.

Article 34 specifies that the Security Council has the power to investigate any case that may harm the International Peace. Article 35 Paragraph 1 says that any member can bring in notice of the General Assembly or Security Council any dispute. The same can be done by a non-member as well.

Article 36 specifies that the Security Council has to recommend the measures for settlement of dispute and have to consider that the dispute can also be taken by the International Court of Justice. Under Article 37 it specifies that if the dispute is not settled by the methods recommended above then the members have to specify the same to the Security Council. Then the Security Council can recommend further appropriate methods. Article 38 says that the Security Council recommends for the Pacific Settlement.

Non-Peaceful Methods to Settle Disputes

  1.  Security Council MeasuresArticle 39 specifies that the Security Council can recommend measures given under Article 41 and 42 to settle disputes. This generally involves the measures to be taken up against those countries that endanger peace.

Methods under this are-

  1. Interruptions in RelationsArticle 41specifies this method to settle the dispute. This doesn’t involve the use of the armed forces. This involves severance of the economic relations with the state that do acts of aggression or harm peace. The rail, air, telegraphic, sea etc. communications can be destroyed. Diplomatic Relations can be broken with such state as well.
  1. Intervention of Armed ForcesArticle 42 of UN Charter specifies that if the measures contained in Article 41 are not enough then Security Council use of the armed forces against the state which harms peace. They can use air, land, water forces for the same to restore peace.

Article 43 further casts an obligation upon the other members to provide assistance to the Security Council for the same. Agreements can be formed for this between Security Council and Member States.

Article 45 specifies that in case of urgent armed forces measures, members shall make available their forces to the UN for enforcement actions. The Military Staff Committee is formed to help the Security Council. They are the one who forms all the strategies.

In the incidence between India-Pakistan[6]India did the ‘surgical strike’ against Pakistan where Indian armed forces intervened in Pakistan. It was the result of the attack of the militants in Uri. India claimed no casualties in the strike and killed about 35 to 70 militants in it. 

  1. Retaliation– this measures involves use of force as well. When one country does something to harm the other country then the other country can return the harm done by doing an act similar to nature which was done by the former country. These consist of acts of retortion and revenge.
  1. Counter attack– when one country attacks the other country it declares war. So the other country can counter attack the same and take measures against it. Article 51 of the UN Charter provides for the right of self-defence against the other country declaring war. Along with the self-defence, the country which is being attacked can also strike against the country declaring war.

Legality of the Threat or Use of Nuclear Weapons[7]

In this ICJ gave an opinion that there is no such law formed in the International sphere that tells us about anything in the use of nuclear weapons. However, view is taken that it is prohibited to use the same and can only be used in extreme circumstances of self -defence.

Settlement of Disputes through Regional Agreements

Article 52 Paragraph 1 tells us about the Regional Agreements. These are those kinds of agreements which concern the matter relating to the peace appropriate for regional action. They are in conformity with the UN principles. So these are generally for settlement of local disputes. Paragraph 2 tells that the agencies constituted under this should focus on the settlement of local disputes through pacific settlement of disputes.

The Security Council has the role to promote the formation of these agreements. Article 53 tells us that the Security Council can utilize such agreements for enforcement actions as well and the consent of Council has to be taken for such action.

Settlement of Disputes by International Court of Justice (ICJ)

Article 92 of the UN Charter denotes that the ICJ is one of the most important organs of the UN. Article 2 of the Statute of International Court of Justice specifies that the ICJ consists of independent judges. Article 3 of the Statute of ICJ yells that the Court consists of 15 members, where two judges cannot be nationals of the same country.

Article 36 of the Statute tells about the type of matters and jurisdiction of ICJ. It takes all the matters provided under the UN Charter for it, matters under treaties and conventions.  It can solve the disputes relating to-

  1. Interpretation of Treaty
  2. Question of International Law
  3. Discovery of facts denoting violation of International obligations
  4. Reparation to be made for violating International obligations

Article 38 of the Statute tells about the source of International Law that has to be followed by ICJ. It consists of International Conventions, Customs and General Principle of International Law etc. Article 43 of Statute denotes that the proceeding can take place orally or in written form. The hearing of the Court is public.

Article 94 of UN Charter denotes that each member should comply with the decisions given by ICJ. If any member fails to comply with the same then the Security Council help can be taken by the party in whose favour judgement went. The Council will make use of measures needed for the other party to comply with the judgement.

 This means that the decision by the ICJ is binding upon the parties.

Case Concerning Right of Passage over Indian Territory (Portugal v. India)[8]

In this case India in 1954 failed to provide Portuguese right to passage towards enclaves of Dadra and Nagar Haveli due to which Portuguese failed to exercise their sovereignty over that area.  Court observed that the Portuguese indeed have the right to passage over that area but that was subject to rules and regulations provided by India. Portuguese do not have right to passage for the police and army over there.

Continental Shelf Case[9]

In this case the question in consideration was to find the International law applicable for the delimitation of Continental shelf area of Republic of Tunisia and of Socialist People’s Libyan Jamahiriya. The Court held that the delimitation has to take place by applying the equitable principle. All the facts and circumstances have to be taken into consideration for the same.

Settlement of Dispute by International Criminal Court (ICC)

Article 35 of The Rome Statute of International Criminal Court tells us that Judges elected are full time members. Article 36 of the Statute states that the number of judges are 18 for the Court. Article 40 and 41 of the Statute tells about the independence and impartiality of judges.

Article 5 of the Statute tells us about the kind of disputes taken up this court which are-

  1. Crimes relating to genocide
  2. Crimes against humanity
  3. War crimes
  4. Crimes relating to aggression

So by this we can understand that this Court is formed to the convict individuals who commit these kinds of crimes.

The Prosecutor v. Thomas Lubanga Dyilo[10]

This was the first case in which ICC gave the judgement and convicted Thomas Lubanga Dyilo. He was a military leader and was found guilty of war crimes. He forced children under the age of 15 years to take part in the military force. They were also forced to guard the senior personnel. Lubanga had guilty knowledge and intention and was found beyond reasonable doubt with the evidence produced.

Conclusion

So we can conclude that there are various kinds of methods to settle a dispute. The members of the UN are generally under an obligation to settle a dispute through peaceful means unless certain requirements are fulfilled which allows for non-peaceful methods. Apart from them there are judicial settlement of disputes which involves the role of courts such as ICJ and ICC. Regional Agreements formed are also one of the peaceful methods to settle a dispute.

Questions

Q1. What do you mean by the term “International Dispute”? Why is there a need to settle International Dispute?

Q2. What are the peaceful ways to settle a dispute prescribed by the UN Charter?

Q3. What are the provisions under the UN Charter that denote non-peaceful methods to settle disputes?

Q4. Explain the type of matters dealt by the International Court of Justice?

Q5. What are Regional Agreements?

References

  1. https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-disputes
  2. https://www.legalbites.in/settlement-of-disputes/
  3. https://www.grin.com/document/233214
  4. http://www.legalserviceindia.com/legal/article-2231-settlement-of-international-disputes-an-overview.html
  5. https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1557&context=pubs
  6. https://www.loc.gov/law/foreign-news/article/international-criminal-court-landmark-icc-ruling-finds-congo-militia-leader-guilty/

[1] ICJ Reports 1949,  p.174

[2] 2013

[3] 1960

[4] Civil Appeal No.7019/2005

[5] 1963-66

[6] September 29, 2016

[7] Advisory Opinion, ICJ Reports 1996, p. 226

[8] ICJ Reports 1960, p.6

[9] ICJ Reports 1982, p.17

[10] April 05, 2012, ICC-01/04-01/06-2842

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