SETTLEMENT OF INTERNATIONAL DISPUTES Shristi Khandelwal BASICS OF LAW Thu, Nov 05, 2020, at ,10:22 AM “The world is now too small for anything but for brotherhood” CONCEPT The Black’s Law Dictionary circumscribes “disputes” as a “conflict or controversy, especially one that has given rise to a particular lawsuit”. A dispute may be defined as specific disagreement concerning a matter of fact, a law or policy in which a claim refusal, counter-claim or denial by another. An international dispute can be said to exist whenever such a disagreement involves governments, institutions, jurist person or corporations or private individuals in different parts of the world. The international dispute is a dispute in which at least one party is a state or an international organization, the other(s) being another state, an international organization, a natural or a legal person from a different state. Here the disagreement must be specific having a reasonably defined subject matter and involve conflicting claims and assertions. MEANS FOR SETTLEMENT OF INTERNATIONAL DISPUTES As the UN Charter does not prescribe in which way or by what means disputes need to be resolved, the parties are free to choose their dispute settlement mechanism. In the framework of international peace and security Article 33, Para 1 of the UN Charter provides a number of alternatives to choose from in resolving disputes, e.g., negotiation, inquiry, mediation, conciliation, arbitration and judicial settlement. Also, the Manila Declaration underlines the legal obligation of parties to find a peaceful solution to their dispute and refrain from action that might aggravate the situation. The following principles were laid down as follows: The principle of non-use of force in international relations. The principles of non-intervention in the internal affairs or external affairs of states Principles of equal rights and self-determination of people. Principles of the sovereign equality of states Principles of international law concerning the sovereignty, independence and territorial integrity of states Good faith in international relations. Principles of justice and international law. EXTRA JUDICIAL MODES OF SETTLEMENT Negotiation: The settlement of the international disputes by the disputant states themselves by negotiation is said to be a settlement of the disputes by negotiation. In other words, when there a dispute arises between two or more states then to avoid the chances of war or violence they tend to conduct negotiation for the matters to be settled. The negotiation is to be taken by the political representatives of the disputant countries, without involving any third or non-concerned country. There are many instances where negotiation has been used to solve the dispute. Like, in 1976, India and Pakistan settled their outstanding differences in the Shimla Conference, and in 1974, India and Sri Lanka settled their boundary disputes by negotiation. Good Offices: When the parties are not inclined to settle their dispute by negotiation, or when they fail to settle their dispute by negotiation, they may take the assistance of a third party in resolving their differences. The third-party may be appointed by the parties themselves or by the Security Council. The third-party may be a state or an individual – usually an eminent citizen of a third state (whether in a private capacity or by virtue of high political office in that State). For instance, McNaughton in 1949, Dixon in 1950, Graham in 1951 and Jarring in 1957 were appointed by the Security Council as the United Nations’ representatives to settle the Kashmir dispute between India and Pakistan. The General Assembly of the United Nations may also do so under article 14 of the Charter. Mediation: The act of participating and in the discussions and giving suggestions to settle a dispute between two parties by a third party is said to Mediation. In other words, mediation is the method to settle a dispute where any third party actively takes part in the sessions of dialogues or negotiations held between disputant parties to resolve the dispute. In the case of mediation, the mediator should consider the matter of compromise between the parties rather encourage the strict letter of the law. Mediation of Soviet Premier Kosygin in the dispute between India and Pakistan which resulted in the conclusion of the Tashkent Agreement in 1966 is an example of mediation. Conciliation: The process of referring a dispute to a commission; for the purpose of finding out facts and to prepare a report containing proposals for the settlement of that dispute, is called conciliation. In case of conciliation, the commission is to take two tasks, at first, it shall ascertain the facts of the dispute and secondly, it shall prepare a report which shall reveal that the possible measures to settle the dispute. But the proposals prepared by the commission have no binding force upon the parties. The parties can disagree with the proposals. The General Assembly under Articles 10 and 14 and the Security Council under Article 24 may appoint a Commission to conciliate a dispute. Belgo-Danish Conciliation Commission of 1952, is one instance of appointment of conciliation commission for the settlement of the dispute. Inquiry: When a commission is appointed, consisting of impartial investigators, for ascertaining the facts of the disputes, the process is called an inquiry. The function of the commission is confined not only to the ascertainment of the fact. However, it is done from the judicial point of view, and it also clarifies the question of law or a mixed question of law and facts. It differs from conciliation in the sense, that in the latter suggestions are also given primarily, but in the former, only the ascertainment of facts is done. Dogger Bank Incident was the first case wherein the procedure of inquiry was invoked, but after the First World War, states preferred conciliation over the commission of inquiry. General Assembly: General Assembly is another principal organ of the United Nations. The Assembly has no specific means to settle the dispute, rather it has general powers to settle the international dispute. It has the power to discuss and to suggest better means for the peaceful settlement of the disputes. Security Council: A dispute may be settled by a principal organ of the United Nations, known as the Security Council. The Council consists of fifteen members. Five members are permanent while the remaining ten members are non-permanent members. Wide powers have been entrusted to the Council for the settlement of the disputes, which tend to endanger world peace and security. There is a number of measures to be taken by the Council for the settlement of the disputes. JUDICIAL MODES OF SETTLEMENT When a dispute is settled by the ‘international tribunal’ in accordance with the rules of International law, the process is called judicial settlement. At present, the International Court of Justice is the most important international tribunal. Arbitration: The process of referring the dispute; by the mutual consent of the parties to a body of persons or to a tribunal for a legal decision is called arbitration. The essential ingredient of arbitration is the consent of disputant parties to the dispute. In other words, the referring of the dispute to a Court of Arbitration is dependent on the sweet-well of the parties. The Katch dispute between India and Pakistan was solved by referring it to an arbitral tribunal. The award passed was accepted by India. International Court of Justice: It is a permanent court governed by a statute which performs a number of functions and open to all states. While all members of the UN are ipso facto are parties to the Court, non-members of the United Nations may also become a party to it after fulfilment of some conditions. COERCIVE AND COMPULSIVE MEANS Compulsive or coercive means for the settlement of disputes are non-peaceful methods. Such measures involve pressure or force on a State to settle the dispute. Retorsion: Retorsion is the technical term for retaliation. It is based, to some extent, on the principle of tit for tat. When an act is done by a State similar to that done earlier by another state, it is called Retorsion. One of the cases of the Retorsion took place in December 1992, when two Pakistani High Commission officials were declared persona non grata by India, Pakistan also expelled three Indian officials and declared them persona non grata. The action of Pakistan can be termed as ‘Retorsion’. Reprisals: The term ‘reprisals’ includes the employment of any coercive measures by a State for the purpose of securing redress. Thus, the main purpose of the reprisals is to compel the delinquent State to discontinue the wrongdoing, or to pursue it, or both. Embargo: The term ‘Embargo’ is of Spanish origin. Ordinarily, it means detention, but in International Law, it has the technical meaning of detention of ships in port. Hyde defines embargo as “the detention within the national domain of ships or other property otherwise likely to find their way to foreign territory.” Intervention: it is the dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. Pacific Blockade: When the coast of a state is blocked by another state for the purpose of preventing ingress or egress of vessels of all nations by the use of warships and other means in order to exercise economic and political pressure on that State, the act is called blockade. When applied during peacetime, it is known as ‘pacific blockade’. It must be notified and effective.