27/04/2018 Amicable (Peaceful) and coercive modes of settlement of International disputes - SRD Law Notes

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Home » International Law » Amicable (Peaceful) and coercive modes of settlement of International disputes

Amicable (Peaceful) and coercive modes of settlement of International disputes

1. Introduction:

The main Purpose of United Nations shall be to maintain peace and Security and to take effect and collective
measure for the suppression of breaches of the peace. In order to achieve this purpose, the United Nations
Organization shall prevent or remove the threat to the peace, breach of the peace or acts of aggression by taking
effective collective measures. Article 2 para 3 of the United Nations Charter provides that all members shall settle their
international disputes by peaceful means in such a manner that international peace, security, and Justice are not
endangered.

2. Definition of International Dispute :

There is no universally acceptable' precise and perfect definition of International Dispute. In a wide sense,
International dispute means a "disagreement on a point of law or fact a conflict of legal views or of interest between the
States." This disagreement between the parties may arise either on legal(justifiable) or political grounds (non-
justifiable).

Legal Differences: According to Prof. Oppenheim, legal differences are those in which the parties to the dispute base
their respective claims and contentions on grounds recognized by International Law

Political Differences: All other differences are usually referred to as political disputes or as conflicts of Interests.
Political or legal differences depends more or less upon the attitude of the States.it is, therefore, difficult to
distinguish the dispute from legal to political.

3. Settlement of International Dispute

As above mentioned the Dispute may be political (non-justifiable) or legal (justifiable). There are various modes of
settlement of the political and legal differences between the nations. Such differences may be resolved either by
amicable means or by Compulsive means short of war.

A) Amicable or Peaceful Means: SUBJECTS

The various amicable means of settling disputes may be enumerated as follows : Accountancy for Lawyer

Administration of justice
(1) Negotiation (2)Good Offices (3) Mediation (4) International Commission of Inquiry (5) Conciliation (6) Arbitration (7)
Machinery of the United Nations Organization - i) General Assembly ii) Security Council. (8) Judicial Settlement through Banking Law
International Court of Justice (ICJ)
Civil Procedure Code
(1) Negotiation :
Company Law

When disputant States settle their disputes themselves by discussion or by adjusting their differences, the Comparative Law
procedure is called Negotiation. Negotiation may be carried on by their Heads of the States or by their accredited
Constitutional Law
representatives or by diplomatic agents. It is the simplest form of settlement of disputes. It helps the disputant State
Parties to bring about necessary change by mutual consent. The success of negotiation depends largely upon the Cyber Law
degree of acceptability of claims of one party by other and the spirit of accommodation which the negotiations are
conducted. Negotiations has certain weakness also, On many occasions it becomes difficult for the disputant State to Family Law
ascertain the precise facts of the dispute.Moreover, when the parties are unequal it is likely that the small power may be Hindu Family Law
subjected to the will of big power.
Hindu Law
Examples :
Human Rights

Here are some examples of Negotiation Insurance Law

International Law
a) India and Pakistan Settled their outstanding differences in the Shimla Conference (1976).
b) India and Bangladesh Settled Farraka Barrage (gunfire) Issue through Negotiation. (1977) Jurisprudence
c) Inda and Sri-Lanka Settled their Boundry dispute through Negotiation. (1974)
Labour Law

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d) Australia and Newsland Settled their disputes by Neotiation (1965)
Law of Arbitration and Conciliation

Law of Conflict
(2) Good Offices :
Law of Contracts
When the Parties refuse to negotiate, or when they fail to Negotiation, they may take the assistance of a third Law of Crime
party. 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. To settle the Kashmir dispute between India and Pakistan the Security Council had appointed Law of Evidence
McNaughton in 1949, Mr. Dixon in the year 1950, Graham in the year 1951 and Jarring in the year 1957 as
Law of Tort
representative of United Nations.
The term "Good Offices" connotes the bringing about the conflicting parties together and the counseling of Legal History
advice or the suggesting of a settlement without participating in the negotiation. Such suggestions or advices may be
Muslim Law
disregarded by a party to a dispute without any compunction or breach of the law.
Professional Ethics
Example :
Property Law
The Prime Minister of United Kingdom, Mr. Wilson provided his good offices to India and Pakistan which resulted in
Public Interest Litigation
the parties to reach an agreement to refer Kutch issue to an Arbitral Tribunal.
In the year 1949, the Security Council rendered good offices in the dispute between the Netherland Government Transfer of property
and Republic Indonesia.

(3) Mediation :

Mediation is the conducting of negotiation between the disputing States through the agency of the third party. In
simple words, when the third party participates in the discussion along with the disputant States and also gives its own
proposals or suggestions in resolving the dispute, it is called as Mediation. The Mediation presupposes the active
participation of the third State in Negotiations, but the mediator's suggestions have no binding force and the parties are
free to accept or reject or modify them.

Article 34 and 35 of the Charter also provide for

collective mediation on the part of United Nations whenever there is a situation which might lead to international
friction.

Examples:

Soviet Union President Kosygin mediated in the Dispute between India and Pakistan which resulted in the conclusion
of Tashkant agreement in 1966.

(See..... Distinction between Good Offices and Mediation )

(4) International Commission of Inquiry:

An inquiry is also a method which is often resorted to for the settlement of disputes. It may be noted that it
is not an independent method and is often applied along-with other methods. The main objective of the inquiry is to
make an investigation of the relevant matters so as to establish facts which may hold the ultimate solution of the
problem. For example, often inquiry Commissions are appointed in relation to the settlement of border disputes. The
commission clarifies the facts after making inquiry into the relevant facts.
The first convention of the Hague Conference of 1899 suggested the establishment of the
international commission of inquiry for the international disputes involving neither honor nor vital interests and relating
to points of fact with a view to elucidating the facts and dispelling ignorance that ultimately leads to hostilities. The
conference provided that such Commission might be constituted by special agreement between the parties, the
members of such Commissions being appointed in accordance with the scheme laid down in Article 32 of the Convention
for the appointment of the members of Arbitral Tribunals.

Examples :

The North Sea Incident Inquiry, the Tavignano, Camouna Gaulois Inquiry and the Tubantia are instances of such
Commissions of Enquiry

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(5) Conciliation:

When a dispute is referred to a Commission of persons to investigate the basis of dispute and to make a report
containing proposals for settlement after finding out the facts, this process is known as conciliation. Such proposals have
no binding force on the parties to the dispute.
According to Hudson, "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."
The term implies various methods adopted by the third party to amicably settle the dispute between two or more
States. It involves the formulation of proposals for settlement after an investigation of the facts. The dispute may be
referred to a Commission for the favor of proposals to the parties for the settlement.

(6) Arbitration :

Arbitration is the most important method of settling International difference (disputes) by amicable means.
According to Lawrence, " Its value resides in its judicial or quasi-judicial character. It signifies the reference of the
dispute to an individual, or small groups of individuals, to whom the parties state their respective cases, and whose
decision they are in honour bound to obey, and in fact have always obeyed, the only instance to the contrary being due
to the fact that the arbitrator had exceeded his powers... When a dispute is submitted to arbitration, the matter takes
on the semblance of a trial before a Court ". States are however under no obligation to submit their dispute to
arbitration unless they have bound themselves beforehand by a Treaty. But once they have referred the matter to
arbitration, they disregard to the award means a breach of promise and the award is final, unless it is vitiated by fraud,
collusion and the like, or the arbitrator, as pointed out above, has exceeded his powers.

Examples:

The settlement of the dispute by arbitration in Alabama of Claims between the United States and Great Britain
went a long way in emphasizing the importance of arbitration as a means of settlement of the dispute.

(7) Machinery of the United Nations Organization -

According to Article 2 para, 3 of the United Nations General Assembly and the Security Council have been
empowered to discharge certain functions in this regard.

i) General Assembly: General assembly may make a recommendation after the discussion to the disputant parties
under Article 14 of The United Nations Charter. Thus the assembly has a general power for the peaceful settlement of
the dispute. The general assembly has been insisting from time to time, to the disputant parties to settle their disputes
peacefully.

ii) Security Council: Under Article 24 para 1 of the United Nations Charter, maintenance of International Peace and
Security is the responsibility of Security Council. Charter provides various modes by which the council settles the dispute
which is likely to endanger international peace and security. Security Council can take the following Action to settle
disputes.

(a) Investigation of the Disputes

(b) recommendation for appropriate procedure or methods of adjustment

(c) recommendation for the terms of the settlement

B) Compulsive / Coercive means of settlement of International disputes

The Compulsive or Coercive means for the settlement of the dispute are non-peaceful methods. Such methods
involve a pressure or a force on a State to Settle dispute. However, the use of compulsive/ coercive measures does not
mean the use of armed forces in all the cases. Following are some of those measures.

(1) Complaints :

Before proceeding to discuss compulsive means, it will be desirable to advert to another amicable means of
settling disputes employed in course of hostilities by commanders of Forces, who often lodge complaints with each other
in respect of acts of illegitimate warfare committed by members of their forces. Such acts may either be abuses of the
flag or truce, violations of the Geneva Convention or the Like. Such complaints are sent to the enemy under the
protection of the flag of truce, and it becomes the duty of the enemy to investigate such complaints and punish the
offenders if the complaints be justified.

(2) Retorsion

The word retorsion means retaliation. It is base, to the certain extent, on the principle of tit for tat. But the
affected State can take only those means or measures as retorsion which are otherwise permitted under International
Law. For example, in retorsion diplomatic relations may be ended. privileges of diplomatic agents may be withdrawn and
economic facilities may be stopped.

The purpose of Retorsion is to take retaliation but those actions cannot legitimately be taken which are likely to
endanger international peace and security. Such actions if taken shall be illegal

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(3) Reprisals:

The term reprisal is a wide one and covers all coercive measures adopted by a State for the purpose of obtaining
redress. It is different from retorsion in this respect that it may consist acts which are otherwise illegal but are validated
under particular circumstances (i.e in view of a prior illegal act by the other State); whereas in the case of restoration
there can be no legal objection to the retaliatory measures as they are only unfriendly acts within the competence of the
aggrieved State.
Lawrence defines reprisals as the mode of putting stress upon an offering state which are of a violent nature,
though they fall short of actual war. He divides reprisals into positive, negative, special and general.
It is generally believed that the right of reprisal can be validly used only when the other State has committed
an International crime or violation any rule of International Law. Moreover, the Reprisal will be justified only when its
object is to settle the International disputes. otherwise, it (Reprisal) will be treated illegal. so it can say that -

a) Reprisals are illegal unless they are based on a previous act contrary to International Law.

b) There must be certain proportion between the offense and reprisal,

c) Reprisal can be justified only when the force is used for necessary.

(4) Other sub divisions of reprisals

Two important subdivision of Reprisals are Hostile Embargo and Pacific Blockade.

(a) Hostile Embargo :

Hostile embargo means the provisional seizure or detention of the merchant's ships or property of the offending
State in the ports of the State that seeks redress.

(b) Pacific Blockade :

Specific blockade consists of the temporary suspension of the commerce of an offending or recalcitrant State by
the closing of access to its coats, or some particular part of its coats, but without recourse to other hostile measures,
save in so far as may be necessary to enforce the restriction.

(See... Short Note on... Specific Blockade )

(7) Intervention :

It is another compulsive means of settling disputes between States short of war. According to Professor Oppenheim,
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.

Profesor Winfield has Classified intervention in three categories :

1. Internal Intervention
2. External Intervention
3. Punitive Intervention

(8) War

When a dispute between a State is not settled even by coercive/ compulsive mean, they may resort to war. War is
an ultimate means of Settling International Disputes. By resorting a war a State seek to impose their will on each other.

Next Previous
General Principles of Interpretation of International Treaties Compulsive / Coercive modes of settlement of International disputes

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