Pacific Means of settlement of international disputes

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CONTENTS

INTRODUCTION

PACIFIC MEANS OF SETTLEMENT OF INTERNATIONAL

DISPUTES

NEGOTIATION

ARBITRATION

MEDIATION AND GOOD OFFICES

CONCILIATION

INQUIRY

UN PROCEDURES

CONCLUSION


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INTRODUCTION

INTERNATIONAL DISPUTES AND SETTLEMENT AN OVERVIEW

An international or territorial dispute is a disagreement over the rights of two or more states

with regard to control of a given piece of land. International disputes find their roots in a

number of issues including natural resources, ethnic or religious demography, and even

ambiguous treaties. When left unchecked, international disputes have caused criminal

actions, terrorism, wars, and even genocideall in the name of reasserting rights over

territory. The UN Charter in no way allows states to use force to annex territory from any

other state: All Members 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.

Arbitration can be made an appropriate international dispute settlement mechanism for

international disputes when arbitration agreements are carefully drafted. Arbitration is

especially valuable in contract disputes between a private company located in a Western

nation and a government agency or government-controlled company in a developing state as

well as in the framework of East-West trade agreements. Parties to international contracts

often favour arbitration because compared to litigation they believe it is inexpensive, rapid,informal, generative of consensus, and a means of minimizing or avoiding the need for

lawyers. These advantages are partially attainable through the careful structuring of the

arbitration agreement, but without the proper agreement they can prove illusory. International

dispute settlement is a relatively new field of academic study that increasingly combines

private and public international law and raises enduring issues of global importance.1

International dispute settlement is concerned with the techniques and institutions which are

used to solve international disputes between States and/or international organizations.

International disputes can be solved either by use of force (coercion) or by peaceful

settlement. Techniques used for peaceful settlement of international disputes are negotiation,

inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or

arrangements, or other peaceful means of their own choice (Art. 33, UN Charter). 2

1

http://www.globalsecurity.org/military/world/war/disputes.htm, last accessed on June 25, 2014.2http://www.peacepalacelibrary.nl/research-guides/settlement-of-international-disputes/international-

dispute-settlement/, last accessed on June 25, 2014.


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In a general way, international law provides the practical rounding out of the principles of

peaceful co-existence. International law provides the criteria for the identification of States

and organizations of States, and of the nationality of individuals and legal entities.

International law provides the definition of the political and territorial limits and the

jurisdiction of States, and also their immunities from jurisdiction. International law also

provides the basis of the civil responsibility of States for breaches of international law,

together with the appropriate remedies. And lastly international law provides the principles

and modalities governing the peaceful settlement of disputes between States.3

A dispute can be defined as a disagreement on a point of law or fact, a conflict of legal views

or of interests between two States. Disputes relate to an alleged breach of one or

more legal duties. They may also relate to a question of attribution of title to territory, tomaritime zones, to movables or to parts of the cultural heritage of a State.

Peace is very much the heart of the purposes and principles of the United Nations Charter

which provides that "All Members shall settle their international disputes by peaceful

means."4Indeed, the U.N. Charter obliges Parties to, first of all, "seek a pacific settlement of

disputes."5Still, war is an unfortunate realityand, as such, is a subject for international law.6

The U.N. Charter does not shy away from the sad reality of war. In fact, the Charter

envisages a state of armed conflict by recognizing the right of self-defence in the event of an

armed attack.7The obligation to seek peaceful solutions, however, is supplemented by the

duty of all States to promote a complete and general disarmament.8

3http://chinesejil.oxfordjournals.org/content/8/2/267.full, last accessed on June 25, 2014.

4U.N.CHARTER, art. 2, Para 3.

5U.N.CHARTER, art. 33.

6

Aldrich, New Life for the Laws of War, 75 AM. J. INT'L L. 764 (1981)7U.N. CHARTER, art. 51.

8Art. 15, The Economic Rights and Duties of States, U.N. General Assembly Resolution 3281, 29 Sess. (1974).


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PACIFIC MEANS OF SETTLEMENT OF INTERNATIONAL DISPUTES

Once the principle of the obligation to seek a peaceful settlement of disputes is established, it

becomes necessary to look to the procedures of international law which implement this

principle. The principle of pacific settlement of disputes is not an isolated concept in

international law. The monotony and uniformity in formulation of the principle contrasts with

the wide variety of the nature and effect of the proposed procedures. Peaceful settlement of

disputes is intimately supported, supplemented, and reinforced by nations in terms of friendly

relations, good neighbourliness, good will, and cooperation.9The raison d'etre of diplomacy

and diplomatic relations regards negotiations as the first and most important means of

peaceful settlement of disputes.

NEGOTIATION

Negotiation is undoubtedly the oldest means of dispute settlement. In their dissenting

opinions in Mavrommatis, Judges Moore and Pessa referred to it as, respectively, the legal

and orderly administrative process by which governments, in the exercise of their

unquestionable powers, conduct their relations one with another and discuss, adjust and

settle, their differences and as debate or discussion between the representatives of rivalinterests, discussion during which each puts forward his arguments and contests those of his

opponent.Like consultation within the context of the World Trade Organizations dispute

settlement system, negotiation allows the parties to a dispute to exchange information, assess

their respective cases, and attempt to reach a mutually agreed upon understanding.

Negotiation serves to focus disagreements and make disputes more concrete, with a view to

settlement. Negotiation...is a diplomatic procedure whereby representatives of states

engage in discussing matters...between them...to clarify and reconcile their divergent

positions and resolve the dispute.10

9

I. POP., VOISINAGE ET BON VOISINAGE EN DROIT INTERNATIONAL (1980).10 Boleslaw A. Boczek, International Law: A Dictionary 379 (Scarecrow Press, Dictionaries of International Law,

No. 2, 2005)


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ARBITRATION

Arbitration is the most common judicial means of settlement of international disputes.

According to the International Law Commission, international arbitration is a procedure for

the settlement of disputes between States by a binding award on the basis of law and as the

result of an undertaking voluntarily accepted. Some of the characteristics of Arbitration are

as follows

it is voluntary;

it is binding on the parties;

the parties can agree on what law is to be applied (however, often International Law is

used as most international arbitration is concerned with issues of International Law,

but it does not have to be);

The arbitrator(s), which can be a single person, a number of persons, or a

Commission/Tribunal, is/are chosen by the parties.

The permanent machinery for the establishment of an international arbitration court was

founded under the Hague Conventions for the Pacific Settlement of International Disputes

1899 & 1907, but this machinery has only been used 28 times, and only four times since

1945.

The terms of arbitration are agreed on in advance either through an ad hocagreement or a

treaty. The parties agree to the jurisdiction of the arbitrators, the method of selecting the

arbitrators, a definition of the dispute, the procedure to be followed, and sometimes the

applicable law.

Recent examples of international arbitration are:

the Beagle Channel Arbitration between Chile & Argentina;

the Anglo-French Continental Shelf case;

the Rainbow Warrior case between France and New Zealand (the then UN Secretary-

General was the arbitrator);

the Taba dispute between Israel & Egypt;

Iran-US Claims Tribunal;

the very important Island of Palmas case (Topic 8) - note that this is one area (issues

regarding sovereignty over Territory) where international arbitration has made some

very important contributions to International Law;


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the agreement between Libya and the international community to establish a Scottish

court in the Netherlands to try the two Libyan suspects;

International commercial arbitration between a state and an international corporation,

using various arbitration treaties and international arbitration institutions (see the

Redfern & Hunter extract)

MEDIATION AND GOOD OFFICES11

The next type of procedure is mediation, which is the first of a series of modes of third-party

settlement. Good offices is a similar mechanism. There is no standard definition of mediation

but it is nonetheless normally distinguished from conciliation. In principle, mediation

involves the direct conduct of negotiations on the basis of proposals made by the mediator.

Modern practice contains an important example of an effective mediation.

These procedures involve the participation of a neutral third party, whether an individual, a

group of persons, or a state or international organisation through their representatives or

senior officials. The thirdpartys role, which is dependent on the consent of the disputants, is

to encourage states to reach an agreed compromise or settlement of their dispute. Terms of

settlement may be proposed by the mediator, or a third partys role may be limited tobringing the contending parties together to negotiate directly (this is known as good offices).

Whatever form the process takes, any settlement will result from negotiation and agreement

of the parties themselves, perhaps assisted by the third party; but it will not be a binding

decision issued by that party on the basis of its findings of fact and legal rulings (as in judicial

settlements).

Mediation is commonly provided for in various multilateral treaties for the peaceful

settlement of disputes. The United Nations and, in particular, the Secretary-General, have

often either recommended or performed mediation or good offices, for example in Cyprus

from 1984 onwards.The UN Secretary-General and his counterparts in regional organisations

are often engaged in mediation, such as periodically in the Kashmir dispute between India

and Pakistan; the Cyprus question involving the two governments on Cyprus itself and

11

http://chinesejil.oxfordjournals.org/content/8/2/267.full &http://www.users.on.net/~roehr/notes/old/International%20Law/SG/law00521to10sg06.pdf, last accessed on

June 25, 2014.


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Greece and Turkey. Another example was the Falkland/Malvinas Islands dispute following

the Argentine invasion in 1982 and before UK forces recaptured possession of the islands.

The Pope or his representative sometimes mediates, and did so successfully in the aftermath

of the Beagle Channel Arbitration between Argentina and Chile, when Argentina refused to

implement the award and armed conflict seemed imminent. Eventually mediation succeeded

and Chile accepted the settlement promoted by the Popesrepresentative, under which Chile

gave up its rights in South Atlantic waters around the disputed islands but was confirmed in

its sovereignty over the islands themselves.

CONCILIATION12

The essence of conciliation is the impartial examination of a dispute by a third party, either

appointed ad hoc or a standing conciliation body or panel set up by treaty, with a view to

recommending terms of settlement to the parties. It is not a procedure based on law, and

recommendations do not have to respect parties legal rights. The parties are not obliged to

accept the recommendations. Conciliation is often a private procedure, and the report and

recommendations are confidential to the parties. It is a middle ground between inquiry (which

does not produce concrete proposals) and arbitration (which does produce a binding ruling).

Questions of law may well arise in any international dispute, and many conciliation

commissions have included lawyers as well as diplomats and persons with relevant expertise

such as geologists, geographers, fisheries experts and environmental scientists. There are

extensive provisions for conciliation of a range of disputes that may arise under the Law of

the Sea Convention 1982, which is now in force. Mechanisms for conciliation are also

established under The Hague Conventions for the Pacific Settlement of International Disputes

1899 & 1907 and the General Act on the Pacific Settlement of International Disputes 1928.

A fairly recent example of successful resort to conciliation is the Jan Maven Island case in

1981. Title to the island was disputed between Norway and Iceland, the issues being over the

continental shelf and fishing rights. The two states agreed to the establishment of a

conciliation commission that made certain recommendations and the two governments

accepted these. Norways title to the island was upheld in the commissions Report.

12http://www.users.on.net/~roehr/notes/old/International%20Law/SG/law00521to10sg06.pdf, last accessed

on June 25, 2014.


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INQUIRY

A device which has proved useful on some occasions is the Commission of Inquiry. This

institution originated in the Hague Conventions of 1899 and 1907. Its specific purpose is to

elucidate the facts behind a dispute in order to facilitate a settlement. It does not involve the

application of rules of law. The purpose of the Commissions of Inquiry is provisional and

political. The device is linked to the idea that the resort to an inquiry provides a cooling off

period and reduces the risk of counter-measures or breaches of the peace. Moreover, the

Report on the facts de facto facilitates the settlement of the dispute. Recent examples of

Commissions of Inquiry concerned the Red Crusader incident between Denmark and the

United Kingdom (1962), and the Letelier and Moffitt case between Chile and the United

States (1992). By way of exception in both these cases, the role of the Commission was notconfined to findings of fact and was essentially judicial.

This method attempts to establish the factual basis for a settlement between states, whereby

the states involved voluntarily refer the dispute to a neutral fact finding person or body.

Although there is no legal obligation for the parties to accept the findings of the person/body,

this procedure can be invaluable - there is presently no permanent fact finding machinery set

up under International Law.

UN PROCEDURES13

The Charter of United Nations says as under regarding the pacific means of settlement of

international disputes

Article 33

1.

The parties to any dispute, the continuance of which is likely to endanger themaintenance of international peace and security, shall, first of all, seek a solution by

negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to

regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle

their dispute by such means.

13http://www.un.org/en/documents/charter/chapter6.shtml, last accessed on June 25, 2014.


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Article 34

The Security Council may investigate any dispute, or any situation which might lead to

international friction or give rise to a dispute, in order to determine whether the continuance

of the dispute or situation is likely to endanger the maintenance of international peace and

security.

Article 35

1. Any Member of the United Nations may bring any dispute, or any situation of the

nature referred to in Article 34, to the attention of the Security Council or of the

General Assembly.

2. A state which is not a Member of the United Nations may bring to the attention of the

Security Council or of the General Assembly any dispute to which it is a party if it

accepts in advance, for the purposes of the dispute, the obligations of pacific

settlement provided in the present Charter.

3. The proceedings of the General Assembly in respect of matters brought to its attention

under this Article will be subject to the provisions of Articles 11 and 12.

Article 36

1. The Security Council may, at any stage of a dispute of the nature referred to in Article

33 or of a situation of like nature, recommend appropriate procedures or methods of

adjustment.

2.

The Security Council should take into consideration any procedures for the settlement

of the dispute which have already been adopted by the parties.

3. In making recommendations under this Article the Security Council should also take

into consideration that legal disputes should as a general rule be referred by the parties

to the International Court of Justice in accordance with the provisions of the Statute of

the Court.


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Article 37

1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by

the means indicated in that Article, they shall refer it to the Security Council.

2.

If the Security Council deems that the continuance of the dispute is in fact likely to

endanger the maintenance of international peace and security, it shall decide whether

to take action under Article 36 or to recommend such terms of settlement as it may

consider appropriate.

Article 38

Without prejudice to the provisions of Articles 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.


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CONCLUSION

In coming to my conclusion, I shall look at the more problematical aspects of the process of

adjudication, whether in the International Court or in courts of arbitration. The special

attraction of adjudication is that it is definitive and removes a source of political antagonism

and tension between the parties. The alternative is either negotiation, which involves the

responsible officials in making compromises, or inaction.

In any event, adjudication has

certain inherent limitations. In the first place, the International Court is to a great extent

dependent upon the parties when it comes to matters of fact and the Court is reluctant to ask

questions of the parties. And there is no appeal. Second, the International Court sometimes

operates in legal fields on the margins of normal areas of justiciable issues.

By way of conclusion, it is convenient to present a series of propositions:

First, the system of peaceful settlement of inter-State disputes is a significant part of

the universe of international relations.

Second, the modalities are very varied and adjudication is simply one instrument

forming part of an entire orchestra of modes of peaceful settlement.

Third, in relation to settlement on the basis of law, the practice of arbitration is as

significant as the work of standing tribunals, such as the International Court.

Fourth, the system we have is not attuned to the settlement of purely

political disputes.

Fifth, the International Court has a successful record of the settlement of disputes

concerning territory and delimitation, including maritime delimitation.

And lastly, resort to both the International Court and to ad hoc arbitration constitutes

the general practice of all regions.

The general outcome is ironical, to say the least. In the era of decolonization, in the 1960s,

western pundits expressed portentous concerns about the aptitude of the new States to

participate in what was seen as a western system of international law and dispute settlement.

These concerns were both condescending and unfounded.

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Pacific Means of settlement of international disputes

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