Resolution of International Conflicts by Peaceful Means: Are Current Mechanisms for Settling International Disputes Effective?
This Blog is written by Akshara Lagisetty from Amity University, Mumbai. Edited by Ravikiran Shukre.
When we live in a society where the occurrence of disagreements, disputes, conflicts are very common, in the same way the occurrence of dispute between two countries is also common. But when conflict occurs in between two citizens the law governing the citizens solves the conflict, whereas when a conflict arises between countries occurs international law come into picture. United Nations, UN charter upholds the international law which takes care of the relationships between the fellow countries and maintains peace as well.
What Is an International Dispute?
The definition of a dispute was stated – Judgement of the Permanent Court of International Justice Mavrommatis Palestine Concessions Case, 1924
A disagreement over a point of law or fact, a conflict of legal views of interests between two persons.
When we examine the definition it has a wide scope which also indicates conflict of interest being part of the definition.
The disputes can be put into two categories i.e. legal disputes and political disputes. Legal disputes are those which occur when the disputing parties base their separate claims and contentions on grounds recognized by International Law. Political differences are those which contain conflict interest and any differences which doesn’t come under the legal differences.
Now it’s very important to identify which dispute is which one because the mechanisms which are in place to solve the disputes only solve the disputes in the legal sense. The case Nicaragua v. Honduras the court states that the international courts are only concerned and applicable to the cases which has a legal aspect as the international law is only capable of settling legal disputes.
The dispute should always contain a difference of interest and not mere disagreement of interest. Further substantiating the concept, the ICJ in the South West Africa case stated that:
[l]t is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence. Noris it adequate to show that the interests of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other.
Is there any obligation to solve the disputes peacefully? Yes, there is, to the countries which are part and members of the United Nations. In the charter of United Nations article- 2(3) states that
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
Tt is not in any way suggested that the states have to resolve the disputes immediately but to resolve them in a peaceful manner. Though this provision is closely linked to the fact that the countries should not resort to wars and also forbidden to use threat of force.
MECHANISM FOR SETTLING THE INTERNATIONAL DISPUTE:
1. Pacific Means
The main motive of the United Nations is to maintain peace and security for which the UN had provided tools which ensure that the disputes with ease without casing the damage. In Article 33 (1) of the 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 above mentioned solutions will be elaborated below. The above mentioned mechanisms are divided into 2 categories-
• Extra-Judicial Peaceful Means
• Judicial Settlement
2. Extra-judicial Peaceful Means:
Negotiation is one of the simplest and fundamental form of settling a dispute. Basically in negotiation the parties solve their difference of interests by discussion and avoiding further complications and has a view of reaching to a comprise which benefits both the parties. Also negotiation is sometimes used to prevent disputes. The negotiation is conducted and carried by the representative, heads of the states or the diplomatic agents.
Negotiation is successful when the parties have an aim to resolve the dispute between the states and has to make effective attempt to negotiate sort out the dispute. Negotiations also have limitations where the parties cannot always ascertain the facts and the root cause of the dispute which can sometime causes negotiation to fail.
Cases- India and Sri Lanka, 1974
• Good Offices:
When the parties fail to settle the disputes they can to the good offices. The good offices are a method facilitating the negotiation from a third party. The good offices arrange a meeting and resumes the negotiation which came to a halt. The good offices provide a path of communication which directs towards a peaceful settlement. The good offices are appointed when only both the parties agree. The appointment of good offices should be done in good faith and both the parties should have trust in order for them to come out with a successful result. And also the result will all depends upon the attitude of the parties to the disputes.
Though eventually the in the course of the settlement of the dispute the role of the good offices may change and become involved accordingly with the development of the dispute, but they never participate. In terms of the participation the good offices role starts when they arrange the meeting and ends when the they start the negotiation.
The good offices can be appointed by the security council or appointed by the parties, usually generally a prominent citizen of a third country with high political capacity.
Mr. Wilson, Prime Minister of the United Kingdom, offered Good Offices to India and Pakistan, resulting in the parties reaching an agreement to send the Kutch dispute to an Arbitral Tribunal.
The difference between good offices and mediation is that the third party gets involved in the process and gives proposals and such to settle the dispute. The third party actively participates in the discussions, gives suggestions and intervenes in the negotiations and try to find a satisfactory settlement which benefit both the parties. The important aspect of mediation is that the mediator should be impartial and neutral.
The third party is called as mediator, mediator doesn’t have any legal capacity to enforce any solutions rather the mediator has a influential power to bring out a solution. The mediator facilitates the conversation to have effective communication between the parties.
Case- India and Pakistan
Result- Tashkent agreement in 1966
Inquiry is a process which cannot be used by itself, its paired with other processes. Inquiry was first introduced in 1899 Convention for the Pacific Settlement of International Disputes. An incident has occurred on 15th February 1898 where a US battleship Maine which was anchored in Havana harbour was destroyed by an explosion killing around 259 members on-board, this incident is called as Maine incident. When the commissions were sent out to find the facts of the incidents and both of the rival commissions came out with different facts which pointed out the importance of fact finding. The attendees to the Conference finally decided to form an International Commission of Inquiry, and the processes for doing so were outlined in the 1899 Hague Convention.
The parties to the dispute can form commissions to ascertain facts of the dispute and to determine information about the case which helps to settle the dispute justly and fairly. As mentioned earlier inquiry is not used by itself, other processes like negotiation, mediation, make use of inquiry to get a clarity on the facts which is an important aspect of resolution of a dispute. Its function is not only to ascertain facts but also clarifies the standpoint of law and facts of the case. The process of inquiry is quite useful in the cases where scientific and technological aspects are involved in a dispute.
To ensure inquiry is successfully carried out, the commission appointed should be impartial and independent to establish the facts which are in dispute. These recommendations are not legally binding.
There’s only one main difference between inquiry and conciliation which is that the conciliation investigates and ascertains the facts and also prepare a solution based on the facts found which should beneficial and acceptable to both the parties.
“Conciliation is a process of formulating proposals of settlement after an investigation of the facts and an effort to Reconcile opposing contentions, the parties to the dispute being left free to accept or reject the proposals formulated.”
Further there are two types of conciliation – 1. Optional Conciliation & 2. Compulsory Conciliation
Optional conciliation is where the any party to the dispute can refuse to participate in the conciliation process by declining the invitation and there will be no proceedings conducted.
Whereas the compulsory conciliation is where one of the parties of the dispute can institute independent proceedings which are compulsory. The outcome of the conciliation proceedings is not legally binding on the parties.
Upon examining the concept of conciliation we can observe that there are two functions which are carried on: 1. To investigate and elucidate the facts of the case & 2. making solutions which are mutually acceptable to the parties which settle the dispute
In Article 15(1) of the 1949 Revised Geneva General Act for the Pacific Settlement of International Disputes:
The task of the Conciliation Commission shall be to elucidate the questions in dispute, to collect with that object all necessary information by means of enquiry or otherwise, and to endeavour to bring the parties to an agreement. It may, after the case has been examined, inform the parties of the terms of settlement which seem suitable to it, and lay down the period within which they are to make their decision
A successful conciliation proceeding has the following aspects- independence and impartiality of conciliation commission, confidentiality and non-aggravation of the situation.
MECHANISMS OF UNITED NATIONS:
United Nations was formed in the year 1945 as an International organisation which is independent and permanent in nature. The Unites Nations provided a platform for addressing global issues as well as the maintain peace and security. The UN can act as a third party is addressing the international disputes as it is an independent entity. United Nations and its three organs i.e. Security Council, General Assembly, UN Secretary-General play an active role in addressing and resolving the international dispute.
1. Security Council
The Security Council has 15 members and has the main duty to maintain international peace and security. The security council has active role to assess any act of aggression if it sees any threat to peace. This organ of the UN has the power to summon any party to the dispute and settle peacefully settle the dispute. Article 24 para 1 of the United Nations Charter states
‘the primary responsibility for the maintenance of international peace and security’
Procedure for peaceful settlement of international disputes is set out under Chapter VI of the UN Charter. In broad terms, the procedure of the UN Security Council can be divided into three stages: (i) submission of a dispute, (ii) adoption of agenda and discussion and (iii) determination of specific measures.
2. General Assembly
When the security council fails to get the parties to settle, it can ask for the general assembly to take the necessary steps. General Assembly consists of all members of the United Nations. Under article 11(2) empowers the general assembly to get involved in the mattes concerned with maintaining peace between the countries. These matter can have brought by the Members of UN, security council even a non-member of UN under section 35(2) of the UN Charter.
The article 99 of the UN Charter, Secretary General states that the Security council if requires can ask for opinion of the secretary council in the matter concerning the maintenance of peace and security. This power can also be used to settle international disputes.
4. Judicial Settlement:
Arbitration is one of the most important method of settlement of international dispute. Arbitration gives the parties a choice other than the court. In arbitration the parties to the dispute employ a partial third party called as arbitrators who acts in a judicial capacity and the decision taken in these proceedings is called as award. In arbitration the parties determine rules of law to be applied on the dispute.
The parties have agreed in advance that in case of any disputes they will use arbitration to resolve it as well as comply with the award passed. The arbitral award is legally binding unless it is voided by fraud or bribery etc.
Case- Qatar v. Bahrain
• International Court of Justice:
The international court of justice (ICJ) was established in February 1946. It is one of the organ of the United Nations. At present the countries lean towards the solving of their disputes by using negotiations, ICJ has small but very important role in resolving international disputes and maintaining peace. But the role of ICJ is really vital because it has global jurisdiction which gives the power to deal with all the cases between various states, also the ICJ is very independent and away from the influence like political, economic and military which makes it very impartial. The decisions of the ICJ has a major impact on the international law, though the decisions taken by ICJ is only binding to the parties of the dispute but it also impacts the other country’s laws and regulations and dictates their behaviour.
EFFECTIVENESS OF THE PEACEKEEPING MECHANISMS:
All the mechanisms which have been mentioned above are very much effective in peace keeping and security. The proof is in the cases which have been solved in these years otherwise which would have had dire consequences. These mechanisms help the countries to solve the problems with ease before the magnitude of the problem increases and the tension started brewing between the countries.
The mechanisms which are in place help in preventing the violent conflicts like wars and these are also sometimes used to stop the wars. The ultimate aim of these mechanisms is that the civilians are protected and safe. For example, UN Mission in Mali has significantly impacted significantly on the level of violence by providing the tools to solve their problems which allows them not to resort to violent means to solve their issues, and also providing protection and support to people.
These mechanisms also have political influence on the countries. The United Nations also help in establishing rule of law in under developed countries, educate the people, providing vaccinations, and many such humanitarian functions are performed.
The effectiveness of these mechanism also depends upon the countries as well; the attitude of the countries plays a very important role. The countries need to have the aim to resolve a dispute and also be ready to comprise if needed to solve it. The countries and effectiveness of the mechanisms go hand-in-hand.
There’s no doubt that the mechanism is a huge success and very effective in keeping peace and security.
The disputes can arise out of many factors which can be political, economic etc. But there’s some obvious reasons which are causing these disputes one of them is that the world is constantly evolving and its dynamic in nature but the laws which are made are stagnant which creates disputes. Other reason is that the lack of mechanisms in place for an effective interpretation of international law and application of the same.
In the other hand, disputes between the countries are common and I believe because of these disputes the international law has been progressing and keeping up to date with the world. In this time where the world is changing constantly these mechanisms makes a little easy to deal with the disputes and avoid devastating consequences. Surely these mechanisms in reality also have some challenges to successfully implement them but I believe the challenges are better than facing consequences in the absence of the same.
(1) YOSHIFUMI TANAKA, THE PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES, Cambridge University Press 2018.