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Ms.

Rumi Roy

Assistant Professor

BALLB III-B, 2017

PEACEFUL SETTLEMENT OF DISPUTES:


The goal of promoting peace and security is mentioned in the UN Charter and peaceful
settlement of disputes is also foremost among the means for goal attainment. The means
available for the processes of peaceful settlement both outside and inside the UN are elaborated
in the Charter. Chapter VI of the UN Charter is entitled “Pacific Settlement of Disputes” and
consists of six articles—Articles 33 to 38.

Article 33(1) leaves it to the parties concerned, “to seek a solution by negotiation, mediation,
conciliation, arbitration judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their choice.

The methods and techniques of amicable settlement of disputes specified in the Charter are:

1. Negotiation: It is the most common and the simplest method of pacific settlement of
international disputes and differences. Henry Kissinger defined negotiation as, “a process
of combining conflicting positions into a common position, under a decision rule of
unanimity.” Negotiation is the process by which governments conduct their relations with
one another and discuss, adjust and settle their differences and conflicts. It is a process in
which explicit proposals are put forward fort the purpose of reaching agreements. Usually
the negotiations are carried through oral, face to face, or written communications by the
heads of the State or their accredited agents and ambassadors. It involves direct
discussion between the parties to the dispute with the objective of reaching an agreement.
No outside party is involved in the process. Sometime an international conference may be
called for this purpose where some agreement might be reached. Negotiation requires
willingness to compromise and both sides must make concessions. Two elements that
need to be present in order for a negotiation to happen: common interest, and conflict
over that interest. Negotiation is a process that can be approached in many ways. No
matter what strategy you choose, success lies in how well you prepared. The key to
negotiating a beneficial outcome is the negotiators’ ability to consider all the elements of
the situation carefully and to identify and think through the options. At the same time,
negotiators must be able to keep events in perspective and be as fair and honest as
circumstance allows. Because a common ground or interest has brought the parties to the
negotiating table, a negotiator can benefit by trying to capitalize on this common ground.
By looking at the other side as a partner rather than an opponent and by working together,
negotiators have an opportunity to craft a solution that will be beneficial to both sides.
Indo-Pak negotiation at Shimla 1972 is an outstanding example of this method. The most
successful mediation happened in the Indus water dispute between India and Pakistan.
The World Bank extended its good offices to reach a settlement in 1960. According to the
treaty signed by both the countries, Pakistan got three western rivers the Jhelum, the
Chenab, and the Indus-and India received three eastern rivers- the Ravi, the Beas and the
Sutlej. The equal sharing of rivers made the task of resolving the dispute very simple.
Importantly, the treaty set up a permanent Indus Commission with a Commissioner each
for India and Pakistan. The Commission meets regularly and exchange visits to both the
countries, even during the time of tension and difficulties in India-Pakistan relations.
2. Mediation: According to Hans von Mangoldt, “mediation can be seen as the assistance
provided by a state or international organization, which exercises its political authority a
third party to the dispute in proposing a solution. Mediation can be set in motion by one
of the Parties or even by the mediator him or herself. The latter case seems to be the most
frequent.” Under mediation the third party either at its own initiative or at the request of
the disputant parties assumes responsibility for the settlement of dispute. The mediator
assumes the role of a middleman and tries to reconcile the opposite claims of parties in
disputes. Mediation is a procedure involving the suggestion of terms of settlement by a
third party. Thus the mediator actively participates in the negotiations. However, the
suggestions made by the mediator are not binding on the parties. The mediation process
can be characterized as follows:
a) a non-compulsory procedure in which
b) an impartial or neutral party is invited or accepted by
c) parties to a dispute to help them
d) identify issues of mutual concern and
e) design solutions to these issues
f) which are acceptable to the parties

To maintain his neutrality an effective mediator may not impose his will upon the parties.
Mediators must play a much more active and intrusive role. They must attempt to identify the
Parties’ underlying interests as well as their positions. To do so, they may not only meet with the
Parties jointly but also separately at confidential meetings. This type of proactive mediator
involvement has contributed greatly to the success of some mediation. Mediators have all the
leeway they need to issue a report that may—on occasion—take the law into account. However,
mediators will most often propose a settlement that also takes into account other factors. Such
proposals are not binding: the Parties are not obliged to implement it. Which is why, as
mentioned above, the mediator’s intrinsic qualities are so important. In 1998 the US acted as a
mediator between Britain, Republic of Ireland, and North Ireland to resolve the ticklish Irish
problem.

3. Conciliation: An intervention to resolve an international dispute by a body without


political authority that has the trust of the parties involved and is responsible for
examining all aspects of the dispute and proposing a solution that is not binding for the
Parties. Conciliation is like mediation except for the legal distinction that the third party
is a commission or international body whose aid has been sought in finding a solution
satisfactory to the disputants. It is therefore crucial that the conciliation body have the
trust of the Parties. Without this trust, its involvement will be in vain. In addition,
because it is responsible for examining all aspects of the dispute, it must identify the facts
of the case. It can take into account not only applicable rules of law but also all non-legal
aspects of the case. Its proposals can be based in whole or in part on the law. The
commission investigates the facts of a dispute and on the basis of these facts suggests
some solutions. These suggestions or recommendations are not binding on the disputants.
From their appearance on the world stage after WWI up to the early 1960s, thirteen
conciliation commissions were created. Most of them were for disputes between
European states. A number of observations can be made regarding the use of conciliation
as a dispute resolution method during this period. Unlike arbitration, conciliation does not
seem to have raised prior problems regarding the legality of the dispute or certain aspects
of it because its very nature does not preclude taking factors other than legal ones into
account. In fact, conciliation even makes it possible to settle a dispute through reciprocal
concessions without forcing the Parties to renounce their basic positions. In addition,
even when conciliation is mandatory—i.e., when it can be requested by a single Party—it
is rarely successful in practice if a Party refuses to cooperate with the Conciliation
Commission, because default proceedings are incompatible with the spirit and workings
of the conciliation process. A final observation is that because conciliation was often
followed by arbitration proceedings in case of failure, arbitration commissions tended to
incorporate legal considerations in their reasoning and serve as legal advisor to the
Parties by informing them of their chances of success.In 1904 a commission of Enquiry
was set up with the concurrence of Great Britain and Russia to inquire into the Dogger
Bank incident. Special commissions have been created by the United Nations to attempt
conciliation.
4. Inquiry and fact-finding are procedures specifically designed to produce an impartial
finding of disputed facts by engaging a third-party. The terms ‘inquiry’ and ‘fact finding’
have often been used (sometimes interchangeably) for this type of procedure under which
states refer questions to a panel of experts (commission of inquiry or a fact-finding
commission) for investigation of factual or technical matters after diplomatic
negotiations. Fact-finding under Article 33(3) is the only element of the Convention’s
dispute settlement procedures which does not require every disputing party’s prior
agreement, and may be invoked unilaterally by any of the parties to the Convention at
any time after six months from the commencement of the consultations and negotiations
between parties (provided the parties have not already initiated one of the legal dispute
resolution processes (Arbitration and Adjudication). Article 33(4)-(9) provides for the
establishment of the fact-finding commission which will have three members, one from
each disputing country and one from a third country who will act as chair. The chair must
be agreed upon by both parties. If the parties are unable to agree on a chairman within
three months of the request for the establishment of the Commission, any party concerned
may request the Secretary- General of the United Nations to appoint the chair. These
provisions are intended to avoid the dispute settlement mechanism being frustrated by the
lack of cooperation of one of the parties. Indus Waters Baglihar Dam
Example: In 2000 India proposed building the Baglihar Dam on the Chenab River, which
is one of the major rivers within the Indus River system governed by the 1960 Indus
Waters Treaty between India and Pakistan. Pakistan opposed the dam on the basis that it
did not comply with the requirements of the Treaty. The two parties were unsuccessful in
bilateral negotiations. Part IX of the Treaty deals with differences and disputes, and
provides for ‘differences’ to be referred to a neutral expert. The neutral expert has
extensive quasi-judicial powers, including determination of available waters,
withdrawals, releases, uses, and procedures for providing each party an adequate hearing.
The decision of the expert is binding. In 2005 Pakistan requested that the World Bank
appoint a neutral expert to investigate the facts and settle the difference. The expert in the
Baglihar difference issued a decision in 2007, which both parties accepted. Although
Pakistan was not satisfied with the decision and has recently argued (in front of the
Permanent Court of Arbitration during the Kishenganga Arbitration) that the Baglihar
case has left Pakistan without physical protection against the manipulation of flow on the
Indus system.
5. Arbitration: Arbitration is not one of the dispute settlement methods listed in Article 25
of the Convention. It is described here only to help us better understand the workings of
conciliation proceedings sometimes amicable or peaceful—but always adjudicative—
method of resolution of a dispute by an authority the arbitrators that derives its decisional
power not from a permanent delegation of the state or an international institution, but
from the agreement of both parties (who may be individuals or states). Because
arbitration is prefaced on agreement, the Parties can exert significant influence on the
arbitrator’s scope of authority and sometimes also on arbitration proceedings, which may
nonetheless be at the arbitrator’s discretion. This dispute resolution method also always
results in a decision. In addition, an arbitration ruling is generally based on law, though
the arbitrator may sometimes decide in equity. Moreover, the arbitration ruling is of a
binding nature. In principle, the Parties must implement the arbitration ruling in good
faith. Though arbitration is not a permanently delegated institution of the state or an
international body, in many respects it has much in common with legal rulings and their
related procedures, as the terminology used reflects. In terms of procedure, the Parties are
normally given specific deadlines by which to file their written submissions and “proof”.
“Hearings” to enable the arbitrator to hear both Parties and to provide a forum for
adversarial debate are also held on specific dates. “Witnesses” or “experts” may be called
on to testify.
It is a semi judicial technique of settling a dispute. In addition, the arbitrator acts as a
neutral and impartial judge without any political authority per se. He or she is also rather
passive and does not actively investigate or uncover facts. For example, the arbitrator
does not seek to bring the Parties together, point out the strengths and weaknesses of their
respective positions, or encourage them to consider what would constitute a minimum
acceptable solution to the dispute. The method of arbitration was popular in the past from
the ancient Greeks to the nineteenth and early twentieth centuries. But since 1945 it is not
in use except for the specific areas of trade disputes and investments. The Rann of Kutch
dispute was arbitrated by a three member tribunal set up for this purpose. India
nominated Ales Bebler (a judge of the Constitutional Court of the former Yugoslavia) as
its representative. Pakistan nominated Nasrollah Entezam (an Iranian diplomat). The UN
Secretary General appointed Gunnar Lagergren (a judge of the Swedish Supreme Court)
to be the chairman of the tribunal. The tribunal examined about 10,000 pages documents
and 350 maps. India submitted 250 documents and Pakistan produced 350 documents in
support of their claims. The tribunal had 171 sittings and 'made its decision on 19
February 1968 in Geneva. The decision was taken by a majority of two votes because the
Indian nominee cast a dissenting vote. The tribunal awarded about 900 sq. km territory in
the northern part of the Rann to Pakistan. Although the rest of the disputed territory
remained with India, it was not happy with the tribunal award. India considered it was
more of apolitical verdict than a legal decision. Since the tribunal decision, as per the
commitment and undertaking, could not be questioned, India accepted it with much
reservation. Given this experience, it has never agreed for arbitration of any of its
international dispute with its neighbors.
6. Adjudication or judicial settlement: It is in a sense a kind of arbitration one in which a
permanent court is the arbitral tribunal. States parties to a dispute may seek a solution by
submitting the dispute to a pre-constituted international court or tribunal composed of
independent judges whose tasks are to settle claims on the basis of international law and
render decisions which are binding upon the parties. This method is generally referred to
as judicial settlement, which constitutes one of the means of the peaceful settlement of
international disputes set out in Article 33 of the Charter of the United Nations The most
elaborate permanent court for the judicial settlement of disputes have been of course the
Permanent Court of International Justice which functioned in the inter war period in loose
association with the League of Nations and its successor the United nations. Unlike
Arbitration , the court is subject to no preliminary limitations upon its procedures ,
evidence to be considered or legal principles to be applied, except those mentioned in the
statue by which it was established. Like arbitration, once the parties have agreed to
submit a case to adjudication they are bound to abide by its decision, although adequate
means of enforcement in instances of noncompliance are lacking. A brief analysis of both
the Permanent Court of International Justice and the International Court of Justice
indicates that, of the cases referred to those courts for judicial settlement, many involve
questions of interpretation or application of treaties, or concern specific problems such as
(a) those relating to sovereignty over certain territories and frontier disputes;
(b) those concerning maritime delimitations and other law of the sea disputes
(c) those arising from the law of diplomatic protection of nationals abroad;
(d) those arising from circumstances relating to the use of force;
(e) cases involving enforcement of contracts and violation of certain principles of
customary international law.
Both judicial settlement and arbitration make recourse to an independent judicial body to
obtain binding decisions, as pointed out in the previous section. Arbitral tribunals,
however, are essentially of an ad hoc nature, and are composed of judges selected on the
basis of parity by the parties to a dispute who also determine the procedural rules and the
law applicable to the case concerned. International courts and tribunals, by contrast, are
pre-constituted inasmuch as they are permanent judicial organs whose composition,
jurisdictional competence, and procedural rules are predetermined by their constitutive
treaties. Furthermore, judicial settlement may be distinguished from arbitration in that the
decisions of international courts and tribunals are, as a rule, not appealable. The Statute
of the International Court of Justice provides in its Article 60 that "the judgment [of the
Court] is final and without appeal”. The only exceptions to the rule concern questions of
scope or execution of the judgment, which may be subject to further decisions, though of
the same court. Thus, Article 60 of the ICJ Statute provides further that "in the event of
dispute as to the meaning or scope of the judgment, the Court shall construe it upon the
request of any party.” The degree of finality of decisions of arbitral tribunals, on the other
hand, depends on what is specifically agreed upon in a compromise, which may provide
for the possibility of decisions being subject to an appeal before international courts.
However, to protect their sovereignty, states have been hesitant to accord to international
courts any type of compulsory jurisdiction or to submit appropriate cases to existing
courts.
Example: Kulbhushan Jadhav Case 2017. The International Court of Justice (ICJ),
principal judicial organ of the United Nations, today indicated to the Islamic Republic of
Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan
Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the
Court in the Jadhav Case (India v. Pakistan). In its Order indicating provisional measures,
which was adopted unanimously, the Court also stated that the Government of Pakistan
shall inform it of all measures taken in implementation of that Order. It further decided to
remain seised of the matters which form the subject of the Order until it has rendered its
final judgment