Sie sind auf Seite 1von 10

PACIFIC AND COERISIVE MEANS OF

DISPUTE RESOLUTION

NAME: FAISAL HASSAN


CLASS: B.A.LLB (SELF- FINANCE)
YEAR: 2ND YEAR
SEMESTER: 4TH SEMESTER
ROLL NUMBER: 13

1
INTRODUCTION

Disputes are inextricably linked to international relations. Increasingly these disputes are no
longer just primarily between states but also between states and other parties like international
organizations and other non-state actors, and between these actors mutually. In this context,
the Charter of the United Nations (UN) plays a major role, in particular, regarding disputes
between states. Article 2(3) of the UN Charter States that all Member States have to settle their
international disputes by peaceful means in such a manner that international peace and security,
and justice are not endangered. This view was again confirmed in 1982 in a resolution (Res.
37/10) of the UN General Assembly, the so-called Manila Declaration on the Peaceful
Settlement of International Disputes.
The expression ‘dispute’ cannot be precisely defined. In a wide sense, it may mean ‘a
disagreement on a point of law or fact, a conflict of legal views or of interests between two
persons.’ In order to establish whether a dispute exists, it must be shown the claim of one party
is opposed by the other. However, whether there exists an international dispute is a matter for
objective determination.

2
AMICABLE MEANS (PACIFIC MEANS)

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 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. Notwithstanding the free choice of means, 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 methods and procedure
of dispute settlement for states also largely apply to non-state actors.
The Charter under article 33, Para 1 enumerates a number of peaceful means for the settlement
of disputes. The expression ‘other peaceful means of their own choice’ denotes that the various
means stipulated in the above Article are not exhaustive.
Presently, the duty of a State to settle the dispute peacefully has become the customary rule of
International Law and has gained the status of customary law, as ICJ declared this in the case
concerning Military and Para Military activities in and against Nicaragua.1 Peaceful settlement
of disputes is also a State Duty.

These methods involve the use of peaceful mechanism devoid of use of force and violence. In
general terms, they may be classified into two categories: (a) Diplomatic and Political; and
(b) Judicial.

1. Diplomatic and Political methods do not use force and violence and final judgments
arrived through these mechanisms may not be binding upon the parties concerned.
Hence, they are called non-binding. :

(i) Good offices

(ii) Mediation

(iii) Inquiry

(iv) Conciliation

(v) By United Nations General Assembly

a) United Nation Security Council


b) Arbitration
c) International Court of Justice

2. Judicial methods are also peaceful. But the only difference between diplomatic and
these methods is of its binding nature. The decisions arrived through these methods
are binding on the

1 ICJ Reports 1986 p. 14 at p.145

3
disputed parties. Hence, these procedures are described as decisional and binding
the Two judicial methods are:

(i) Arbitration

(ii) Adjudication2

NEGOTIATION

When disputant States settle their disputes themselves by discussion or by adjusting their
differences, the procedure is called Negotiation. Negotiation may be carried on by their
Heads of the States or by their accredited 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
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 ascertain the precise facts of the dispute.
Moreover, when the parties are unequal it is likely that the small power may be subjected to
the will of big power.

U.S ATTACK ON IRAQI INTELLIGENCE HEADQUATERS (1993)

In the early evening hours of Saturday, 26 June 1993, the United States launched a missile
attack on Iraq. Twenty-Three Tomahawk sea-to-ground missiles were fired from two US
warships, the USS Chancellorsville and the USS Peterson, located in the Persian Gulf and the
Red Sea respectively.3
Sixteen of those launched hit their desired military target, the Military Intelligence
Headquarters, situated just outside the Iraqi capital of Baghdad. A further four missiles fell
within the compound of the intelligence service complex.
Conflicting reports put the death toll at between six and eight civilians, with 20 injured, when
the remaining three missile warheads went astray.4
The Venezuelan Embassy was also reported to have been damaged. The use of force by a
state against the territorial integrity of another state in prohibited under Article 2, para 4 of
the U.N. Chatter.

2 adopted by ICJ
3
Fourteen Tomahawk cruise missiles were launched from the USS Peterson and the remaining
nine from the USS Chancellorsville: Evans, “Clinton Opts for Tomahawk”. The Times (London),
28 June 1993, p.3.

4
Keesing's Record of World Events (1993), Vol. 39, no.6. p.39531.

4
GOOD OFFICES

When the Parties refuse to negotiate, or when they fail to Negotiation, they may take the
assistance of a third 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 McNaughton in 1949,
Mr. Dixon in the year 1950, Graham in the year 1951 and Jarring in the year 1957 as
representative of United Nations.
The term "Good Offices" connotes the bringing about the conflicting parties
together and the counselling of advice or the suggesting of a settlement without participating
in the negotiation. Such suggestions or advices may be disregarded by a party to a dispute
without any compunction or breach of the law e.g. The Prime Minister of United Kingdom,
Mr. Wilson provided his good offices to India and Pakistan which resulted in 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 and Republic Indonesia.

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.
e.g. Soviet Union President Kosygin mediated in the Dispute between India and Pakistan
which resulted 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.

CONCILIATION:

Conciliation means the reference of a dispute to a commission or committee to make a report


with proposals for settlement. Conciliation is the process of ending a disagreement. It
recommends solutions. Mediation is commonly performed by an individual while
conciliation is performed by a committee.

INQUIRY:

The main objective of commission of inquiry is to make investigation of relevant matters so


as to establish facts. It is sometimes calls 'fact-finding'.
Inquiry differs from conciliation in the fact that the object of inquiry is not to make any
specific proposals for settling international disputes but it is just to investigate and establish
facts.

5
BY UNITED NATIONS GENERAL ASSEMBLY:

Although the Assembly has not been empowered to settle the disputes by any specific means,
it may discuss a dispute under Article 11 para 2 and may make recommendations to the
disputant parties under Article 14 of the Charter for the measures which they may take for the
peaceful adjustment of any situation, which it deems would likely to impair the general welfare
of friendly relations among nations. Recommendations may be made by the Assembly after a
discussion which may take place when the matter is brought before it by any member of the
United Nations, or by the Security Council, or by a non-member of the United Nations. Thus,
the Assembly has a ‘general’ power for the peaceful settlement of disputes.

1. UNITED NATIONS SECURITY COUNCIL

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

2. 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

6
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.

NAULILAA INCIDENT

Germans enter then-Portuguese colony of Angola to negotiate the transportation of


supplies. Argument ensues and the Germans are shot. Three Germans were mistakenly killed
in Naulila on the border of the Angola (in a manner that did not violate international
law . Germany carried out a military raid on Naulilaa destroying property in retaliation.
Though German military action did not rise to the level of war! it was directed at no less than
five distinct posts. The German action was not preceded by any attempt to negotiate a
peaceful resolution of the impending conflict. The German government characterised its
military action as a reprisal! apparently for crimes perpetrated against its officials and citizens
on Portuguese territory. A claim for compensation was brought by Portugal. The tribunal
emphasised that before reprisals could be legally undertaken! a number of conditions had to
be satisfied. There had to be a previous act by the other party that violated
international law. Reprisals had to be preceded by an unsatisfied demand for
reparation or compliance with the violated international law. There must be
proportionality between the offence and reprisal.


3. INTERNATIONAL COURT OF JUSTICE (ICJ)

The court differs from arbitration on many grounds. Firstly, that it is a permanent court and is
governed by a statute. Secondly, the judges are not appointed by the parties, unlike arbitrators.
Thirdly, Court being a permanent court performs a number of functions which arbitrations do
not perform, like receiving documents for filing and recording. Fourthly, the court performs all
these functions. Fourthly, the court is open to all states. While all members of 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. Fifthly, the court applies rules under Article 38 of the
statute, unlike arbitration, where parties determine rules of law to be applied on the disputes.

7
COMPULSIVE OR COERCIVE MEANS

Compulsive or coercive means for the settlement for the settlement of disputes are non-
peaceful methods. Such measures involve a pressure or force on a State to settle the dispute.
However, the use of compulsive measures does not mean the use of armed forces in all the
cases.5 Normally, they include the measures which are just predecessor to war, or short of war.
There are five kinds of compulsive means present in todays contemporise world:

(i) Retorsion

(ii) Reprisals

(iii)Embargo

(iv) Pacific blockade

(v) Intervention

RETORSION

Retorsion is relation by a state against Retorsion discourteous or inequitable acts of another


state such retaliation. Retorsion may take the form of severance of diplomatic relations,
withdrawal of tariff concessions or cancellation of diplomatic privileges or threat of rise in
taxes on the exports as Japan, in 1904, threatened Russia to raise taxes on Russian imports
because Russian pushed back some of the Japanese fisheries ships. India imposed certain
disabilities on South-Africans living in India in 1961 and recalled her High Commissioner.6

REPRISALS

Reprisals are the measures of aid adopted by states for obtaining redress from another state.
The form of reprisals is boycott of the goods, seizure the property and to hijack the citizens.
According to International Law Retorsion is a legal act while reprisal s an illegal act. It is
justified only when the-subject state gives no satisfaction for one. There are numerous
instances of states taking action in the nature of reprisal. For instance, when king Alder was
murdered, Yugoslavia expelled all the Hungarians from its territory in 1935. The most
disreputable case of reprisal was the occupation of Corfu (Greece) in 1923 by Turkey.
According to the U.N Charter
1.No any member state should threat the territorial integrity and political freedom of a
state

5H. O. Agarwal page number. 543


6http://www.studylecturenotes.com/international-relations/forcible-coercive-settlement-
of-international-disputes

8
2.The use of force should be avoided.
3.All those acts are illegal, which involve as the military.
4.Reprisals, which are applied against a criminal state can be applied against its
citizens.

EMBARGO

It is another type of coercive method used by the states to retaliate the action of belligerent
state. If a state violates international law or commits some international crime, then the
affected nation uses the tactics of embargo. Through this strategy, the nation tries to prohibit
the shipment of all goods or certain goods to a particular country or a group of countries.
7
However, this obstruction of ships can be done only in the area of territorial waters. It is
because beyond this jurisdiction high seas have been considered as an area for the use of
humanity at large. This can be imposed both by unofficial or official manner, i.e. this may be
initiated by private groups or public sentiments or by governments. Similarly, it can be
utilised in both partial and full manner. Thus, in a limited sense, the restriction of economic
and like activities by the state against any other state can create problems for the nations
which violate international law. However, this kind of restrictions cannot be utilised beyond
the sovereign jurisdiction area of the state applying embargo.

PACIFIC BLOCKADE

According to the Article-42 of the U.N. Charter, pacific blockade is a source of maintaining
International Peace and security.
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’

INTERVENTION

Intervention is dictatorial interference in the affairs of another state or of a third state in the
dispute of the two parties. A third state interferes in the affairs, having powers over the
disputed parties. Such an interference. Intervention has three categories:
(i) Internal intervention
(ii) External intervention
(iii)Punitive intervention

7 Hyde, International law Chiefly as Interpreted and Applied by the United States’, Vol. II

9
CONCLUSION

Peace cannot be established in the world unless states as separate entities from their citizens
are not inclined to solve the disputes. As the magnitude of a dispute between the states is
multiple times larger than that of the dispute between individuals, the result of its resolution is
also multiple times larger than that of resolution of a dispute between individuals. Hence,
individual states must resolve to solve all the disputes, by using amicable means. This is
inevitable for the peace of the world, when a number of complexities, both legal and factual,
increase the number of disputes too.
When all of these means fail and there is no way out then the war comes. The war is to be the
last resort for settling disputes.

10