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Home » HUMAN RIGHTS & INTERNATIONAL LAW » International Law » Amicable (Peaceful) modes of settlement of International disputes

Amicable (Peaceful) modes of settlement of International disputes

1. 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.

2. 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:

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

(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 International Court of Justice (ICJ)

(1) 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.

Examples :

Here are some examples of Negotiation

      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)

      c) Inda and Sri-Lanka Settled their Boundry dispute through Negotiation. (1974)

      d) Australia and Newsland Settled their disputes by Neotiation (1965)

(2) 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

counseling 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.

    

Example : 

        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.

  

(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

(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

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Compulsive / Coercive modes of settlement of International disputes

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Home » International Law » Compulsive / Coercive modes of settlement of International disputes

Compulsive / Coercive modes of settlement of International disputes

               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).

   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.

Compulsive / Coercive modes 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

(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. 

See also 

Amicable (Peaceful) modes of settlement of International disputes

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

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Amicable (Peaceful) modes of settlement of International disputes

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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:

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

(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 International Court of Justice (ICJ)

(1) 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.

Examples :

Here are some examples of Negotiation

      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)

      c) Inda and Sri-Lanka Settled their Boundry dispute through Negotiation. (1974)

      d) Australia and Newsland Settled their disputes by Neotiation (1965)

(2) 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

counseling 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.

    

Example : 

        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.

  

(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

(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

(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
General Principles of Interpretation of International Treaties

Previous
Compulsive / Coercive modes of settlement of International disputes

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iPleaders

Settlement of disputes in International Law

 Diva Rai

2 years ago

Image source - https://bit.ly/2KH57D5

This article is written by Anam Khan from Hidayatullah National Law University. The article
discusses the methods that are used at international level to settle disputes.

Table of Contents

 Introduction
 Legal and Political Disputes
  Amicable Means (Pacific Means)
 Extra-Judicial Peaceful Means

o Negotiation

 Good offices and Mediation

o MEDIATION

o GOOD OFFICES
 Conciliation
 Inquiry
 By the United Nations

o General Assembly

 Manila Declaration

 Declaration on Prevention and Removal of dispute

 Fact-finding Activities
 Hand-book on the peaceful settlement of disputes
o  2. Security Council
 Judicial Settlement

o Arbitration

o International Court of Justice

 Compulsive or coercive means

o Retortion

o Reprisals
o Embargo
o Pacific Blockade
o Intervention
 Conclusion

Introduction
This article is concerned with the various ways through which disputes are resolved in the
international framework. There are binding as well as non-binding procedures available within
the international order for the peaceful resolution of disputes and conflicts. Basically the
techniques of conflict management fall into two categories- diplomatic procedures and
adjudication. This article also talks about the landmark case of Kulbhushan Jadav, the peaceful
settlement of the Farakka Barrage gunfire issue, the role of International court of Justice and the
Naulilaa case. These cases along with other examples have been added for a better understanding
of the topic.

Legal and Political Disputes

In order to understand the process of settlement of disputes in the International substructure,
there is a prima facie need to understand the meaning of ‘disputes.’ The dispute has a wide range
of interpretation and hence it becomes to give a precise definition of the same. In a rudimentary
stage, it means a disagreement between two persons, on either a point of law or fact. The
prerequisite of having a dispute is that the parties involved must show opposing views.

There are two grounds on which a disagreement can arise between two parties; political or legal.
The distinction between the two is purely subjective. It is primarily the attitude of the states that
decide whether a dispute is a legal or a political one. Owing to the involvement of the states, it
becomes difficult to distinguish the two. For a dispute to be regarded as a legal one, States must
desire to settle it on the basis of law, or else it becomes a political dispute.

However, the distinction between the two becomes extremely important because the procedure
for settlement of disputes as laid down in International Law deals only with the legal disputes.
In Nicaragua v. Honduras, a case concerning Border and Transborder Armed Action, the court
clearly stated that it is only concerned with the legal aspects of disputes. If a case so arises
involving both political and legal aspects, the court cannot concern itself merely with the
political aspect. In an advisory opinion given in the Legality of the Threat or Use of Nuclear
Weapons that the presence of a political aspect along with the legal aspect does not deprive the
case of its a legal question. However, when a question arises whether the disputes of the State are
legal or not, then such a question is solved in accordance with Article 36, para 6 of the Statue,
that says the matter shall be settled by the decision of the court. Therefore in International Law
‘dispute’ must be taken in a restricted sense as it does not concern all forms of disputes but only
legal disputes. In International Law, there have been two methods devised for settling legal
disputes- amicable or pacific means of settlement, and coercive or compulsive means of
settlement.

             Click Above

Amicable Means (Pacific Means)

Historically International Law has been regarded as an international community to ensure the
establishment and preservation of global peace and security. The basic objective of the creation
of the League of Nations, 1919 and the United Nations 1945 has been the maintenance of
international peace and security. Various multilateral treaties have been concluded that aim for
the peaceful settlement of disputes. One of the most important ones is the Hague Convention,
1899 for the Peaceful Settlement of disputes. Article 2 para 3 of the UN Charter provides that all
international disputes must be settled by the member by peaceful means while maintaining
international peace, security, and ensuring justice is not endangered. The Charter under Article
33, Para 1enumerates a number of means for the peaceful settlement of disputes. Negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies are
among the few choices they have. The various peaceful methods of settlement can be broadly
divided into two categories- extra-judicial and judicial method of settlement.

Extra-Judicial Peaceful Means

In the extra-judicial settlement, a dispute is settled by means of an agreement between the
disputant parties. This method is also known as the political means or diplomatic measures. 

Negotiation
This is regarded as the oldest and the simplest form of settling disputes. When the disputant
parties settle the dispute themselves by discussion or by adjusting the disagreement, the process
is called a negotiation. The dictionary meaning of negotiation defines it as a discussion aimed at
reaching an agreement. Hence in a case of disagreement, the method of negotiation can be used
to reach a state of peaceful agreement. This process of negotiation may be carried out by the
Heads of the State, or by their representatives or by diplomatic agents. But the success of this
method depends largely upon the degree of acceptability of claims of one party by the other.
However, it has certain weaknesses too. On various occasions, it has been seen that it becomes
difficult to come to a consensus.

Another striking fact is that when the disputant States are unequal, the ‘small state’ has to abide
by the decisions of the ‘big state’. India and Sri Lanka had settled their boundary dispute in the
year 1974 by the negotiation method. In 1976, India and Pakistan settled their pending boundary
disputes in the Simla Conference through the negotiation method. The Farraka Barrage gunfire
issue, between India and Bangladesh, was also settled with this method.

Good offices and Mediation

Mediation and Good offices come into picture when parties are not willing to go for the
negotiation method or they fail to reach a state of settlement through a healthy negotiation. A
third person assists them in resolving their legal matters. Such a third person may either be
appointed by the parties themselves or by the Security Council. There have been many instances
where the appointment has been made by the Security Council. McNaughton in 1949, in 1950
Dixon, in 1951 Graham, in 1957 Jarring were a few. It is also important to note that the third
party is under no obligation to accept such appointments. The good offices by Robert Menzie-
the PM of Australia- were rejected by India for the settlement of the Kashmir issue. The views of
the third party acquire the character of ‘advice’ and they by no means have a binding force.
There are two ways of settling a dispute by the third party: mediation and good offices.

MEDIATION
The third-party involved is known as the mediator. The mediator is always expected to be just
and impartial. In the process of mediation, the mediator participates in the discussion, gives his
views and suggestions in resolving the dispute. The mediator is usually known to settle the
disputes as he may even help in signing the treaty embodying the settlement that is reached. 

A famous example of mediation is when the Soviet Premier Kosygin settled the dispute between
India and Pakistan by signing the Tashkent Agreement in 1966. 
GOOD OFFICES
Where in mediation, the mediator is required to be present in the process, Good offices is
basically the act through which the third party either arranges for a meeting between the
disputant parties or he acts, in ways through which a peaceful settlement can be reached. It is
important to note here that the third party is not directly involved in this process. When the
parties have failed to come to terms through negotiation, it is the third party that provides for
their good offices for the peaceful settlement of disputes. Once the disputant parties are brought
under one roof the third party has no active role to play. Although Para 1 of Article 33 does not
refer to good offices as a means of settlement of dispute but it may not be read in an exhaustive
manner. 

The Prime Minister of the United Kingdom, James Harold Wilson, had lent his good offices to
India and Pakistan to reach an agreement in reference to the Kutch issue. In 1947, there was a
dispute between the Republic of Indonesia and the Netherlands, wherein the Security Council
rendered its good offices. 

Conciliation
The process where a Commission or a Committee is appointed and the dispute is referred to them
and it is required by them to find out about the facts and then to write a report for the settlement
of the dispute, is called conciliation. Here an effort is made for a peaceful compromise, to sign an
agreement but important to note that the proposals made by the commission are never binding on
the parties to the dispute. This method is unique in its own way and completely differs from
mediation, inquiry or arbitration. Here, proposals are made for the settlement after finding facts
about the dispute but in mediation, the third party is part of the meetings with the parties in
dispute. Also, it is not for the mediator to ascertain facts about the case, like in conciliation.

Such commissions or committees that provide for conciliation may either be permanent or ad hoc
in nature. The idea of the Conciliation Commission was born in 1899 and 1907 Hague
Conventions for the Pacific Settlement of Disputes. Several treaties after the end of the First
World War were made through the Conciliation Commission. The General Assembly
under Article 10 and 14 and the Security Council under Article 34 has the power to appoint a
commission to settle disputes.

Among the various treaties that have been signed through the Conciliation Commission the most
important ones are:

 Pacific Settlement (1948)

 Pact of Bogota (1948)
 The Vienna Convention on Protection of the Ozone layer 

Earlier the Secretary-General was required to present the list of persons nominated by the
member states for the inclusion in the panel for conciliation. The States, however, did not show
an encouraging or positive. So, at present, the process of conciliation is mainly utilized by the
States. In 1952, the Belgo-Danish Commission and the 1956 Greco-Italian Conciliation
Commission were the key examples of the appointment of a conciliation commission for the
settlement of disputes with reference to International Law.
                               Click Above

Inquiry
One of the most common obstacles that prevent the successful settlement of disputes in
International Law is the ascertainment of the facts, as it has been observed for the years that
different views are put forward by the disputant parties. A majority of International disputes get
stuck because of the unwillingness and inability of the parties to agree to the facts.

The dictionary meaning of the term ‘inquiry’ suggests that it is an act of asking for information.
Similarly, for the settlement of disputes in International Law, a Commission is to be appointed,
consisting of honest and impartial investigators, so that they can verify the facts of the issue. The
sole function of the Commission is known to be theascertainment of issues. This procedure for
the settlement of international disputes was born at the Hague Conference 1899. It was said that
the States who were not willing to end their disputes by agreement might use the process of
inquiry. 

It consisted of a ‘special agreement’ between the parties in dispute. The ‘special agreement’ was
truly special as it enjoyed a wide range of powers, ranging from examination of the facts, mode
of investigation and examination, the time frame for the formation of a Commission, the place
where the Commission will sit, the language that is to be used. And the extent of the powers of
the Commission. Article 11 states that Hague was chosen to be the place where the Commission
would sit if the ‘special agreement’ chose to remain silent on the place of the meeting. 

Towards the end of the First World War, the trend for settling International disputes was seen to
shift to the process of Conciliation. States chose to invoke Conciliation rather than to sit for
inquiry. In 1967, a United Nations Register of Experts was established by the General Assembly.
Its function was primarily fact-finding, wherein the names of the persons whose services could
be used by the States were mentioned in accordance with the fact-finding for the agreement
required for the peaceful settlement of the dispute.

By the United Nations

Peaceful means of settlement of disputes is one of the principles of the United Nations provided
under para 3 of Article 2 of the Charter. The General Assembly and Security Council are the two
organs of the United Nations that have been empowered to discharge functions regarding the
same.

1. General Assembly
Despite the fact that the Assembly has not been empowered to settle the disputes using any
specific means, it holds a wide range of powers to discuss the same under Article 11 para 2 and
may make recommendations under Article 14 to the parties in dispute which may help them to
arrive at peaceful and friendly conclusions. Thus, in simpler words, it can be said that the
Assembly holds the ‘general’ power for the peaceful settlement of international disputes.

There have been various instances where the Assembly has suggested for the peaceful settlement
of disputes. In 1974, the Assembly called upon the Member States to make full use and seek
improved implementation provided for in the Charter of the United Nations for the exclusively
peaceful settlement of any dispute or any situation.

Manila Declaration
In 1982, the Committee successfully drafted a declaration that was to be adopted by the
assembly. The same declaration was known as the Manila Declaration. The declaration
mentioned that the States shall seek any peaceful way of settlement of a dispute in good faith and
a spirit of cooperation. It also mentioned that the States had absolute liberty to make full use of
the United Nations.

Declaration on Prevention and Removal of dispute

This declaration was drafted by the special committee, which was said to threaten International
Peace and Security. This declaration is said to have been approved by the Assembly in the same
year. Some of the important provisions of the declaration are as follows:

1. Foreign Ministers level meetings to be held sometimes by the Security Council.

2. The appointment of a Secretary-General as a rapporteur in a specific dispute must be
considered by the Council.
3. Fact-finding or good offices should happen at an early stage. 
4. In order to prevent a dispute, the Secretary-General must consider approaching the
States concerned. 

This declaration is said to be the first instrument that deals with the prevention of international
disputes and promotes international peace, harmony, and security. 

Fact-finding Activities
In 1990 the Special Committee was asked to give priority to the impending questions on
maintaining international peace and security. For this purpose, the fact-finding activities were to
be primarily considered. In 1991, a declaration on the fact-finding committee was adopted by the
General Assembly. It had a major role in strengthening the role of the United Nations in the
maintenance of international peace and security and also to promote the settlement of disputes
through peaceful means. The fact-finding mission was either taken by the Security Council, the
Assembly, and the Secretary-General. Secretary-general was expected to use the find finding
activities at an early stage for an easier and more peaceful contribution in matters of dispute. 

He was required to prepare a list of the experts in various fields who could carry out the fact-
finding activities.

Hand-book on the peaceful settlement of disputes

 Again with the help of Special Committee’s recommendations to the Secretary-General to
prepare a hand-book on peaceful settlement of disputes and also to provide special powers,
functions, and duties to the Assembly, the Council, and the Secretary. An elaborate draft
handbook is said to have been drafted by 1992.

 2. Security Council

Chapter VI of the Charter provides the various modes by which the Council settles the disputes
peacefully. 
Judicial Settlement
Judicial settlement is the process of solving a dispute by the ‘international tribunal’ in
accordance with the rules set by the International Law. Here it is important to understand the
expression ‘international tribunal.’ A tribunal acquires an international status because of its
jurisdiction. At the present day, the International Court of Justice, although not the only tribunal
but it is indeed the most important tribunal around the globe. There are ad hoc tribunals and
mixed commission also. It is important to note that the International Tribunal is different from
the Municipal Tribunal. As the name suggests, International Tribunal applies International Law
and similarly Municipal Laws are applied by Municipal Tribunal.To what extent can
International Laws be applied by the Municipal tribunal depends entirely on the relationship
between the fields of law. Arbitration and settlement of disputes by International Law have
become two very important modes of settlement of disputes today. 

Arbitration
Arbitration is the process of using the help, advice and recommendation of a third party called
arbitrator to settle disputes. The International Law Commission defines it as ‘a procedure for the
settlement of disputes between states by a binding award on the basis of law and as a result of a
voluntarily accepted undertaking’. Owing to its tendency to blend civil law procedure and
common law procedure, International arbitration is sometimes also referred to as a hybrid form
of international dispute resolution. The International Court of Justice in the case of Qatar v.
Bahrain, stated that the word arbitration for the purpose of international law, usually refers to
‘the settlement of disputes between states by judges of their own choice’.  

An agreement was concluded between India and Pakistan to refer the Kutch dispute to an arbitral
tribunal. Consent of the parties is also obtained before a dispute comes into existence. There are
four main characteristics of arbitration:

1. A tribunal is constructed to hear a particular case only and its composition is also
majorly determined by the parties to the dispute.
2. An arbitral tribunal does not determine its own jurisdiction but has to decide the
dispute as submitted by the parties.
3. It is required to make its award with reference to the rules adopted for that purpose or
by rules which are otherwise binding.
4. The parties are known to have control over the procedure to be followed.

The best-known rules of arbitration include those of the International Chamber of Commerce
(“ICC”), the London Court of International Arbitration (“LCIA”), the International Centre for
Dispute Resolution of the American Arbitration Association (“ICDR”), and the rules of the
Singapore International Arbitration Centre (“SIAC”) and the Hong Kong International
Arbitration Centre (“HKIAC”). Although the award in the Kutch case was vehemently criticised
on the ground that it has political overtones, it was accepted by India. 

International Court of Justice

The headquarters of the International Court of Justice is situated in Hague, Netherlands. It was
founded on 26th June, 1945 San Francisco. Originally the purpose of Article 34, para 1 was to
exclude individuals from bringing claims against States before the Permanent Court of Justice.
However a proposal was made in 1929 to the Committee of jurists that Article 34 must be
amended. However, presently although they still do not have access to the Court in contentious
cases they can seek advisory opinion.

The Permanent Court of International Justice is known to be the predecessor of the ICJ. Which
means before the creation of the International Court of Justice, disputes of the parties were to be
settled by the Permanent Court of International Justice. Its jurisdiction depends entirely on the
willingness of the parties involved. This along with arbitration is commonly known as the
judicial way of settling a dispute. Consent of the parties is a prerequisite for the cases to be heard
in the ICJ. While the judges of the court are appointed by the General Assembly and the Security
Council of the United Nations, the arbitrators are appointed by the parties themselves. There are
three ways by which the International Court of Justice resolves the cases are that brought before
it:

1. Parties can settle their dispute by themselves and cases can be withdrawn by the state
or the court can give the verdict.
2. International Court of Justice uses International Laws are it’s guiding light.
3. Writing by experts is also referred to. 

ICJ’s primary function is known to be resolving disputes between sovereign states. Only States
can be parties to the dispute that is brought before it. The International Court of Justice has
recently decided the Kulbhushan Jadav case. India and Pakistan were the parties to the dispute in
this case. Jadhav was a retired Indian Navy Officer and was sentenced to death by the Pakistani
Military Court. The charges that were pressed against him were of terrorism and espionage. In a
major win for India, after a 4 year long battle from being arrested on 3rd March, 2016, he finally
sought relief after the suspension orders of his hanging were delivered by ICJ in 2019.

                                       Click Above

Compulsive or coercive means

The meaning of the words, compulsive and coercive itself suggests that these are non-peaceful
means of settling a dispute. This method may sometimes also involve force and pressure to
resolve the issue raised. Force in this method does not indicate to the extent of armed forces but
methods that are short of war.

Retortion
Retortion is based on the principle of tit for tat and is also a synonym for retaliation or to say it is
the technical term. It is an act done by one state in a manner similar to what was done earlier by
another state. Such acts done by the States are not illegal but are permitted under International
Law. It is an effective tool of law enforcement although the method of implementation may seem
unfriendly. There are numerous cases where retortion has been used as a means to settle disputes.
The classic example for a better understanding is if citizens are treated unfairly in another State,
the former may also make similar rigorous rules in respect of citizens of the latter state. The very
purpose of retortion is retaliation. It is employed not to secure redress. The legitimate use of
retortion has been affected to a large extent by the UN Charter. In retortion those actions cannot
be legitimately taken which are likely to endanger international peace and security, such if taken
are treated as illegal. 

Reprisals
If the problem is not solved by Retorsion the States have the right to resort to Reprisal. In
retaliation, the state can initiate such a proceeding where the problem may be resolved. However,
reprisal is one such method that can only be resorted against a State when it has indulged in some
illegal or inappropriate activity. The method and process of reprisals were clearly defined in the
Naulilaa case, (Germany v. Portugal). 

For example, Israel has resorted to reprisal many times against Lebanon. It has bombarded those
regions of Lebanon where Arab terrorists attacked the territories of Israel. The members of the
UN cannot indulge in reprisals of such a type which endangers international peace and security.
It is commonly accepted that Reprisal becomes justified and legal when the other country has
committed an international tort or violates the norms of International law. In the provocative
action and reprisal, there must be an adequate proportion that is in proportion to the violation, the
damage should be caused. The reprisal is valid only when demand for reparation was made and
this was not fulfilled.

Embargo
Embargo is of Spanish origin. It is also a kind of Reprisal. Ordinarily it means detention. But in
International it has a technical meaning of detention of ships in port. If the ship belongs to a State
which has committed an international tort or has committed some other international wrong and
is available in the territorial waters of the State against which tort or wrong has been committed
then such vessels can be restrained from traveling through that area as a matter of right by the
other State. The purpose of such an embargo is to compel another state to settle the dispute. In
reprisals also vessels of one state may be detained by another state. If the vessel is detainted for
the purpose of seeking redressal, embargo is deemed as a form of reprisal. But if the detention is
for any other purpose then it is not regarded as reprisals. Embargo may be applied individually or
collectively under the authority of the United Nations. Maintaining international peace and
security still remains the most important prerequisite. 

Pacific Blockade
A pacific blockade is a blockade used for the purpose of bringing pressure exercised by a great
power to bear on a weaker state without actual action. When the coast of a state is blocked by
another state for the process of preventing ingress of vessels of all nations by use of warships and
other means in order to exercise economic and political pressure on that state, the act is
specifically called a blockade. Requirements for a pacific blockade are similar to those that are
needed for a normal blockade during a wartime. It has been regarded as an aggressive means for
the settlement of international disputes because it consists in temporary suspension of commerce
of the offending state by closing of access to the coasts. The numerous cases of blockade that
have occured during the nineteenth century have established the admissibility of pacific blockade
for the settlement of political as well as legal international differences. At present while blockade
is illegal when it is applied by the state individually, collective blockade applied under the
authority of the security council to settle the dispute is lawful. 
Intervention
Intervention by state in the affairs of another state is a recourse to the settlement of disputes. It is
important to note that after the establishment of the United Nations a state has been substantially
prevented from taking compulsive actions to settle international disputes. Any measure that is
likely to threaten or endanger international peace and security has become illegal. Thus, the
compulsive measures are lawful as long as they are able to maintain international peace.
Intervention is therefore regarded as unlawful and is not justified.

Conclusion
In a nutshell, it is important to understand that in the long march of man from cave to computer
and his journey from age of stones to the modern world, the central idea has always been that of
order and security. Efforts and attempts have always been made so that any form of chaos is
minimised and peace is promoted. Law has proved itself to be that element which binds the
members of the society. It is fair to say that international law has always considered its
fundamental purpose to be the maintenance of peace. Peaceful as well as compulsive means are
used under International Law for the peaceful settlement of disputes. This article includes recent
cases and other examples for a detailed understanding.

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Categories: Guest Posts

Tags: arbitration, By the United Nations, Compulsive or coercive means, Declaration on Prevention

and Removal of dispute, Fact-finding Activities, Hand-book on the peaceful settlement of
disputes, Inquiry, International Court of Justice, Manila Declaration, negotiation, Pacific Means

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