SETTLEMENT OF INTERNATIONAL DISPUTES Rajat Vaishnaw
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SETTLEMENT OF INTERNATIONAL DISPUTES
Rajat Vaishnaw
Historically
International Law has been regarded by the international community as a means to ensure the establishment and preservation of world peace and security.
It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945.
Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled.
Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law.
States have concluded a great number of multilateral treaties aiming at the peaceful settlement of their disputes and differences.
The most important treaties are the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations.
Furthermore, there are regional agreements, such as the
1948 American Treaty on Pacific Settlement
the 1957 European Convention for the Peaceful Settlement of Disputes,
the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization of African Unity.
Article 2(3) UN Charter An Obligation to Settle dispute peacefully.
Article 33 of UN Charter The Parties to any dispute, the continuance of which is
likely to endanger the maintenance 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.
The methods of peaceful settlement of disputes fall into three categories:
Diplomatic
Adjudicative
Institutional Methods
Diplomatic Diplomatic methods involve attempts to settle disputes either by the
parties themselves or with the help of other entities.
Adjudicative Adjudicative methods involve the settlement of disputes by tribunals,
either judicial or arbitral. Institutional Methods Institutional methods involve the resort to either the United Nations or
regional organizations for settlement of disputes.
Diplomatic Methods of Dispute Settlement
1. Negotiation2. Enquiry 3. Mediation4. Conciliation 5. Good Offices
Negotiation
Settlement of disputes by direct discussions or exchange of views through diplomatic representatives
Enquiry Ascertainment of pertinent facts and issues in a
disputeUse of effective fact- finding bodies in accordance of
Art. 33 of the CharterMany bilateral agreements have been concluded
under which fact-finding commissions have been set up for the task of reporting to the parties concerned on the disputed facts.
MediationSettlement of dispute undertaken by a third State,
group of States, an individual, an agency or an international organization
Offers concrete proposals for settlement of substantive questions
Conciliation
A combination of mediation and inquiry Conciliation is a process of settling a dispute by
referring it to a specially constituted organ whose task is to elucidate the facts and suggest proposals for a settlement to the parties concerned.
Good OfficesOffer of a third party to settle international disputeFacilitate efforts towards settlement of dispute and act
as a channel of communication for partiesNormally seeks to encourage the parties to resume
negotiation
Adjudicative Methods of Dispute SettlementArbitrationJudicial Settlement
Arbitration In case of arbitration it is made by a single arbitrator
or arbitral tribunal
Resolution of differences between states through a legal decisions of one or more umpires or of a tribunal chosen by the parties
Judicial SettlementWhereas in case of judicial settlement the decision
is made by an established court, permanent (such as the International Court of Justice) or ad hoc
Submitting a dispute to a pre-constituted international court or tribunal composed of independent judges whose tasks are settle claims on the basis of international law and render decisions which are binding upon the parties
Institutional Methods of Dispute Settlement
Peaceful Settlement of Dispute by the United NationsPeaceful Settlement of Dispute by Regional Organizations
Peaceful Settlement of Dispute by the United Nations
Chapter VI of the Charter contains the United Nations mechanism for the pacific settlement of disputes.
When the parties fail to observe their obligations or their efforts are not successful, the United Nations will intervene to consider the dispute and give its recommendations on the matters.
Peaceful Settlement of Dispute by Regional OrganizationsArticle 52 of the Charter recognizes the right of the
members of the United Nations to establish regional arrangements or agencies “for dealing with such matters related to the maintenance of international peace and security”.
• Regional arrangements– agreements (regional multilateral treaties) under which States of a region undertake to regulate
their relations with respect to the question of the settlement of disputes, without creating thereunder a permanent institution or a regional international organization with international legal personality
• Regional agencies– regional international organizations created by regional multilateral treaties under a permanent
institution with international legal personality to perform broader functions in the field of the maintenance of peace and security, including the settlement of disputes.
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