Peaceful settlement of disputes—different modes | Law Optional Notes for UPSC PDF Download

Introduction

Disputes are an inherent aspect of international relations, and today, they involve not only states but also international organizations, non-state actors, and even combinations of these entities. The United Nations (UN) Charter plays a crucial role in addressing disputes, particularly those between states. Article 2(3) of the UN Charter stipulates that all Member States are obligated to resolve their international disputes peacefully, without endangering international peace, security, or justice. This principle was reaffirmed in the UN General Assembly's 1982 resolution, known as the Manila Declaration on the Peaceful Settlement of International Disputes.
The UN Charter, however, does not prescribe specific methods or means for dispute resolution, granting parties the freedom to select their preferred mechanisms. Article 33 of the UN Charter offers a range of alternatives for resolving disputes related to international peace and security, including negotiation, enquiry, mediation, conciliation, arbitration, and judicial settlement. Despite this freedom of choice, the Manila Declaration emphasizes the legal obligation of parties to seek peaceful solutions to their disputes and avoid actions that could worsen the situation.
The methods and procedures for settling disputes among states are also applicable to non-state actors. This research guide explores various peaceful dispute resolution mechanisms in depth. Additionally, there are separate research guides available for International (Commercial) Arbitration, the Permanent Court of Arbitration, and the International Court of Justice. Information and resources related to disputes involving foreign investment and investment arbitration can be found in the research guide on Foreign Direct Investment.

The Concept of International Disputes

Definitions of the Concept

• As of now, there is no official treaty rule that provides a precise definition of what constitutes an international dispute. According to Black's Law Dictionary, disputes are described as conflicts or controversies, especially those leading to legal actions (Garner, 1999, as cited in Schreur, 2008, p.1).
• In the Mavromattes case, the Permanent Court of Legal Justice (PCLJ) defined a dispute as a disagreement concerning a point of law or fact, a clash of legal opinions or interests between two individuals (Bilder, 1986, p.3). In an advisory opinion on the interpretation of peace treaties between Bulgaria, Hungary, and Romania, the two sides held clearly opposing views on questions related to the performance or non-performance of certain treaty obligations (Schreuer, 2008, p.2). Merrills (1998, as cited in Bilder, 1986) offers more precise and specific definitions.
• According to Merrills, a dispute can be defined as a specific disagreement involving matters of fact, law, or policy, which includes a claim, refusal, counterclaim, or denial by another party. Schreuer (2008) observes that the existence of a dispute implies a certain level of communication between the parties. The issue must have been raised with the other party, which must have opposed the claimant's position, even if indirectly.
• An international dispute can be considered to exist whenever such a disagreement involves governments, institutions, legal entities, or private individuals in different parts of the world. More specifically, today's definition of an international dispute is one in which at least one party is a state or an international organization, while the other(s) may be another state, international organization, natural person, or legal entity from a different state.
• The dispute must be specific, meaning it must have a reasonably well-defined subject matter so that one can identify, at least nominally, what the dispute is about. Additionally, the disagreement must involve conflicting claims or assertions. This means that one party must assert or express what it wants or believes it is entitled to in relation to the other party, while the other party must express its refusal or present conflicting claims. This expression may take the form of statements, diplomatic notes, specific actions, or other means (Bilder, 1986).
• Therefore, a dispute goes beyond general attitudes of dislike or hostility. Two nations may hold general feelings of antagonism toward each other without having any specific or identifiable disagreement that can be labeled as a dispute. Conversely, two nations may maintain friendly relations yet have a specific disagreement that qualifies as a dispute.

Means of Settlement of Disputes

Negotiation

• Negotiation stands as the oldest, most widespread, and simplest method for resolving international disputes. It is acknowledged by the majority of peace settlement treaties as the initial step toward resolving international conflicts. In fact, many treaties establish that a failure to resolve a dispute through negotiation is a prerequisite for compulsory arbitration or judicial settlement. Therefore, it is not surprising that negotiation is the foremost means of peaceful dispute settlement outlined in Article 33(1) of the United Nations Charter.
• Negotiation entails discussions among the involved parties aimed at comprehending their differing positions and viewpoints and finding common ground. It is particularly suitable for clarifying and explaining opposing arguments. Negotiation is considered the most desirable way to resolve disputes since it is a voluntary, bilateral, and self-directed process in which the parties directly engage without the need for any third-party intervention.
• Nonetheless, negotiations do not always lead to the resolution of disputes or differences between parties. In such cases, third-party interventions become necessary to assist the parties in finding a resolution to their disputes and differences. This is where other diplomatic methods of dispute settlement become significant.

Enquiry

• One of the common challenges that often hinders the successful resolution of disputes through negotiation is the difficulty in establishing the facts that have led to the differences between the parties involved. Many international disputes revolve around disagreements or unwillingness to agree on factual points. This is where the procedure of inquiry becomes significant as a means of peacefully settling disputes.
• Numerous bilateral agreements have been signed, establishing fact-finding commissions tasked with reporting to the concerned parties on the disputed facts. Additionally, the concept of inquiry has been incorporated into treaties designed for the peaceful resolution of disputes.
• The Hague Conventions of 1899 and 1907, for instance, formalized commissions of inquiry as institutional mechanisms for the peaceful settlement of international disputes. These conventions provided a permanent pool of individuals from which the disputing parties could select commissioners. The primary role of a commission of inquiry was to aid in resolving disputes by impartially and diligently investigating the facts. Their reports were intended to focus solely on fact-finding and were not expected to include proposals for resolving the dispute in question.
• With the establishment of the League of Nations, the significance of the inquiry process evolved. Inquiry and conciliation were seen as interconnected components of a single process aimed at achieving a peaceful resolution to a dispute. It is against this historical backdrop that the United Nations Charter explicitly includes inquiry as one of the methods for peacefully settling international disputes.
• However, as a distinct method of dispute resolution, inquiry has become less prominent. Instead, it has been incorporated into other dispute settlement methods. Its primary purpose is to produce an unbiased determination of disputed facts, thereby paving the way for the resolution of the dispute through other peaceful means. Parties are not obligated to accept the findings of the inquiry, but in practice, they usually do.
• The use of inquiry has been evident in the practices of international organizations such as the United Nations and its specialized agencies, where it has been integrated into other fact-finding processes within the context of dispute resolution.

Mediation, Conciliation, and Good Offices

• Mediation, conciliation, and good offices are three methods of peacefully settling disputes where third parties intervene to assist the disputing parties in reaching a resolution. All of these methods involve the participation of an ostensibly impartial individual, state, commission, or organization to aid the parties. When negotiations between parties are unproductive or not initiated, third-party assistance through mediation, conciliation, or good offices may become necessary to facilitate a settlement. Such assistance can be requested by one or both parties or may be offered voluntarily by a third party.
• While there are no fundamental differences in the general characteristics of mediation, conciliation, and good offices, a theoretical and practical distinction can be made among them based on the level of third-party involvement and the extent to which disputing parties are obligated to accept the outcomes of the procedures.
• Mediation is a process in which an external party (a third party) attempts to bring the disputing parties together and assists them in achieving a settlement. The disputants do not necessarily need to give initial consent, but mediation proceedings cannot begin without their eventual consent. The mediator actively and directly engages in the settlement process.
• The mediator doesn't merely facilitate uninterrupted negotiations; they are expected to provide concrete proposals for resolving substantive issues related to the dispute. However, these proposals are recommendations and do not carry any binding force for the disputing parties. The parties are free to accept or reject the mediator's suggestions.
• Conciliation, on the other hand, involves referring the dispute to a specially constituted body tasked with clarifying the facts and proposing settlement terms to the parties. Similar to mediation, the proposals made by conciliators have no binding effect on the parties, who are free to accept or reject them. Unlike mediation, the conciliation process is typically initiated by the parties themselves, who agree to refer their dispute to an established body or a single conciliator, either permanently or on an ad hoc basis. Third parties cannot initiate this process independently. The conciliators are appointed by the parties, either based on their official roles or as individuals in their personal capacity.
• Conciliation is sometimes described as a combination of inquiry and mediation. Conciliators investigate the facts of the dispute and suggest settlement terms. However, it differs from inquiry in that the primary goal of inquiry is to clarify the facts so that the parties can voluntarily resolve their dispute, while the primary goal of conciliation is to propose a solution and gain the parties' acceptance of that solution. Additionally, conciliation differs from mediation in being more formal and less flexible; while a mediator can present new proposals if their initial ones are rejected, a conciliator typically presents a single report.
• When disputing parties reach a point where they cannot resolve their issues through negotiation or when diplomatic relations have broken down, but they still recognize the importance of reaching a settlement, the technique of good offices may prove useful. Good offices can only be used with the agreement or consent of both parties. A third party aims to bring the disputants together to create an atmosphere conducive to negotiation or the resumption of negotiations.
• Once negotiations begin, the role of good offices ends. Unlike mediation, where the mediator actively participates in the negotiations and may propose settlement terms, the good offices process has a limited function, primarily centered around facilitating communication between the parties. The third party acts as an intermediary, conveying messages and suggestions to help the parties agree to negotiate or resume negotiations.
• The good offices process does not involve joint meetings with the disputants, unlike mediation or conciliation. Typically, the third party offering good offices meets separately with each of the disputing parties and seldom, if ever, attends joint meetings between them. Usually, the role of the third party in good offices ends when the parties agree to negotiate or resume negotiations, although they may be invited to participate in negotiations if requested by the parties.
• It's worth noting that either party or both parties to a dispute can reject an offer of good offices, as in the case of mediation or conciliation.
• Mediation, conciliation, and good offices have a long history and have been the subject of numerous bilateral and multilateral treaties. The League of Nations established permanent bodies to perform the functions of these dispute settlement methods. In this context, the United Nations Charter includes mediation and conciliation (but not good offices) as methods available to parties for the peaceful settlement of disputes in Article 33(1).
• In the practice of the United Nations, the terms mediation, conciliation, and good offices have been used with flexibility, often without strict adherence to their distinctions.
• Mediation and conciliation have advantages and disadvantages compared to other dispute settlement methods. They offer greater flexibility than arbitration or judicial settlement and allow for more involvement from the disputing parties and the third party. The disputants retain control over the outcome, and the proceedings can be conducted in secret. However, these methods require the consent, cooperation, and goodwill of the disputants to be effective. The proposed settlement is only a recommendation and lacks any binding force on the disputants.

Section 2: Adjudicative Methods of Dispute Settlement

• The primary drawback of diplomatic methods for settling disputes is that they do not legally compel parties to accept proposed settlements; these methods offer recommendations rather than binding decisions. In contrast, adjudicative methods of dispute settlement are preferred because they provide legally binding outcomes, distinguishing them from diplomatic methods.
• Adjudicative dispute settlement methods consist of two types: arbitration and judicial settlement. Both methods involve the resolution of differences between states through legal decisions issued by tribunals. In judicial settlement, the decision is made by an established court, which can be either permanent (like the International Court of Justice, ICJ) or ad hoc. In arbitration, the decision is made by a single arbitrator or an arbitral tribunal. The key feature of both methods is that the judicial decision or award is binding on the parties and must be executed in good faith.
• The distinction between arbitration and judicial settlement emerged with the establishment of the League of Nations. Under the League's Covenant, judicial settlement referred to resolution by the Permanent Court of International Justice (PCIJ), while arbitration referred to settlement by other tribunals. This distinction carries over to the United Nations Charter, with the International Court of Justice (ICJ) replacing the PCIJ.
• Arbitration, as defined in the 1899 and 1907 Hague Conventions, involves the resolution of disputes between states by judges chosen by the parties, based on respect for international law. This arbitration process evolved from diplomatic settlement processes, representing progress toward a developed international legal order.
• Arbitration is considered the most effective and equitable dispute settlement method, combining elements of diplomacy and judicial procedures. It offers more flexibility than judicial settlement, allowing parties to select arbitrators, specify the tribunal's location, determine procedures, and choose applicable laws. Arbitration proceedings can also be kept confidential.
• Arbitration cannot proceed without the agreement of the disputing parties, which may take the form of an agreement to settle a specific dispute or a series of disputes, often outlined in a general arbitration treaty.
• Typically, each party in an arbitration agreement appoints one or more arbitrators, who then select an umpire. The arbitral tribunal usually consists of three arbitrators, and decisions are made by majority vote. Parties can also agree to refer their dispute to a single arbitrator, often a distinguished individual or foreign head of state.
• Judicial settlement, on the other hand, involves resolving disputes between states through international tribunals in accordance with international law. These tribunals include permanent ones like the ICJ, the International Tribunal for the Law of the Sea (ITLOS), the European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights, as well as ad hoc tribunals like the United Nations Tribunal in Libya.
• The ICJ, as the principal judicial organ of the United Nations, holds the most prestige and jurisdiction. Its judges are appointed by the United Nations, not the parties involved in a dispute. The ICJ must apply the rules and principles of international law listed in Article 38 of its Statute, and parties have no say in specifying the rules to be applied. The ICJ's jurisdiction covers disputes between states related to treaty interpretation, questions of international law, the existence of facts constituting breaches of international obligations, and the nature or extent of reparations for such breaches.
• The United Nations Charter encourages the use of arbitration and judicial settlement in Article 33(1) as two among several methods for peaceful dispute resolution. Article 36(3) guides the Security Council, suggesting that legal disputes should typically be referred to the ICJ. However, the Charter does not impose an obligation on UN members to submit any dispute, even legal ones, to the ICJ. Additionally, it allows members to entrust the resolution of their differences to other tribunals through existing or future agreements.

Section 3: Institutional Methods of Dispute Settlement

Institutional methods of dispute settlement involve the utilization of international organizations to resolve international disputes. These methods have become relevant with the establishment of international organizations. Prominent organizations that offer mechanisms for settling disputes among their member states include the United Nations and regional organizations such as the European Union, the Organization of American States, the Arab League, and the African Union.

Peaceful Settlement of Disputes by the United Nations:

• Resolving international disputes is a crucial role of the United Nations. The UN Charter states that the United Nations is responsible for achieving the peaceful adjustment or settlement of international disputes or situations that may lead to a breach of peace, in accordance with the principles of justice and international law.
• The Charter establishes a system for the peaceful settlement of international disputes in Chapter VI. Article 33 mandates parties involved in a dispute that could endanger international peace and security to resolve it through any of the peaceful means listed there or through a method of their choosing. When parties fail to fulfill their obligations or their efforts are unsuccessful, the United Nations steps in to examine the dispute and provide recommendations. The primary responsibility for this rests with the Security Council.
• The Security Council can intervene in several ways: on its own initiative, upon the invitation of any UN member, at the request of the General Assembly, or upon a complaint from one of the parties to the dispute. The Security Council may take three courses of action. First, it may call upon the disputing parties to resolve their dispute using one of the peaceful means listed in Article 33(1). Second, it may suggest appropriate procedures or methods for settlement. Third, it may recommend terms of settlement as it deems appropriate.
• While the Charter assigns the primary role of maintaining international peace and security to the Security Council, the General Assembly also has a role to play. Under Articles 11, 12, and 14, the General Assembly can discuss and make recommendations for procedures, methods of adjustment, or terms of settlement regarding any dispute or situation brought before it. Disputes or situations may be brought to the General Assembly by the Security Council, any UN member, or any state party to the dispute.

Peaceful Settlement of Disputes by Regional Organizations:

• Article 33(1) of the UN Charter requires parties to a dispute that could endanger international peace and security to initially seek a solution using the peaceful methods outlined in the Charter. Among these methods is resorting to regional arrangements or agencies.
• Article 52 of the Charter recognizes the right of UN members to establish regional arrangements or agencies for matters related to the maintenance of international peace and security. Paragraph 2 of this article obligates member states that are part of regional arrangements or agencies to make every effort to achieve a peaceful settlement of local disputes through these regional mechanisms before referring them to the Security Council.
• Article 52(2) appears to align with the obligation set forth in Article 33(1). However, paragraph 1 of Article 52 imposes two explicit conditions on the use of regional arrangements and agencies:
  • The matters dealt with must be appropriate for regional action.
  • The arrangements or agencies and their activities must align with the Purposes and Principles of the United Nations.
• Furthermore, Article 54 adds another explicit limitation by requiring the Security Council to be continuously informed of activities undertaken or planned under regional arrangements or by regional agencies for maintaining international peace and security. No similar explicit limitations exist for other peaceful settlement procedures.
• Article 52 not only legitimizes regional arrangements or agencies and imposes obligations on member states but also places a duty on the Security Council. Paragraph 3 of this article requires the Security Council to encourage the development of peaceful settlement of local disputes through regional arrangements or agencies, either upon the initiative of the concerned states or through a referral from the Security Council.
• This provision aligns with the Charter's general approach to dispute settlement, emphasizing that parties should seek peaceful solutions of their own choice and that the Council should facilitate such efforts. If parties refer their local dispute to the Security Council without attempting to achieve a settlement through regional arrangements or agencies, the Council is obliged to remind them of their obligation or, on its own initiative, refer the dispute to these regional mechanisms.

Declaration and Resolutions of the General Assembly

The principle of peacefully resolving disputes has been affirmed through various General Assembly resolutions, including resolutions 2627 (XXV) of October 24, 1970, 2734 (XXV) of December 16, 1970, and 40/9 of November 8, 1985. It is comprehensively addressed in the Declaration on Principles of International Law concerning Friendly Relations and cooperation among states in accordance with the UN Charter (resolution 2625 XXV, annex). This principle is also elaborated in the Manila Declaration on the Peaceful Settlement of International Disputes (resolution 37/10, annex), the Declaration on the Prevention and Removal of Disputes and situations that may threaten international peace and security and on the Role of the United Nations in this field (resolution 43/51, annex), and the Declaration on Fact Finding by the United Nations in the Field of maintenance of International Peace and Security (resolution 46/59, annex).

Corollary and Related Principles

The principle of peacefully settling international disputes is interconnected with various other principles of international law.
These principles are outlined in the Declaration on Friendly Relations:

• States should refrain from using force or threats of force in their international relations.
• States should resolve their disputes peacefully, ensuring international peace and security.
• States should not intervene in the domestic affairs of other states.
• States should cooperate with one another.
• States should recognize equal rights and self-determination of peoples.
• States should respect the sovereignty and equality of other states.
• States should fulfill their obligations in good faith under international law.

These principles are interrelated and should be interpreted and applied in the context of one another. The Final Act of the Conference on Security and Cooperation in Europe, adopted in Helsinki on August 1, 1975, also underscores the importance of these principles and their interconnectedness in international relations.

Links to Other Principles

The principle of peacefully settling disputes is linked to several other specific principles of international law, including:

• The principle of non-use of force in international relations.
• The principles of non-intervention in the internal or external affairs of states.
• Principles related to equal rights and self-determination of peoples.
• Principles regarding the sovereign equality of states.
• Principles concerning the sovereignty, independence, and territorial integrity of states.
• The principle of good faith in international relations.
• Principles of justice and international law.

Free Choice of Means

• International law allows parties in a dispute to freely choose the means by which they seek to settle their dispute. Article 33, paragraph 1 of the UN Charter, as well as sections in the Friendly Relations Declaration and the Manila Declaration, emphasize this free choice of means. The means listed in Article 33 of the Charter include negotiation, mediation, conciliation, arbitration, judicial settlement, reporting to regional arrangements or agencies, and other peaceful means of the parties' choice.
• Under the Friendly Relations Declaration and the Manila Declaration, parties are encouraged to agree on the peaceful means that are most suitable for their specific circumstances and the nature of their disputes.

Conclusion

In summary, international law aims to prevent the outbreak of wars and violence by promoting the resolution of disputes through political, diplomatic, and judicial means. It provides various measures and methods to avoid armed conflicts. Among these are amicable means to settle disputes peacefully. However, in exceptional cases where international peace and security are endangered, international law also recognizes coercive or compulsory means to settle disputes.