Settlement of International Disputes

Introduction
- International Law has been regarded by the international community as a means to ensure world peace
and security
- This forms the basis of the creation of the League of Nations in 1919 and the UN in 1945
- Since the direct cause of war an violence is always a dispute between states, it is in the best interest of
peace and security that the disputes be settled peacefully
- Accordingly, international Law provides various mechanisms for the peaceful (pacific) settlement of
disputes

Approaches for the Pacific Settlement of Disputes According to Paragraph 1 Article 33 of the UN Charter:
(Graph)

1. Judicial settlement
2. Negotiation
3. Enquiry
4. Mediation
5. Conciliation
6. Arbitration
7. Regional agencies or Arrangements

Methods of Peaceful Settlement of Dispute:

(Graph)

1. Diplomatic Methods: Involves the settlement of disputes either by the parties themselves or with
the help of other entities
2. Adjudicative Methods: legal settlement of disputes by tribunals, either judicial or arbitral
3. Institutive Methods: (international organisations) Resort to either the UN or regional organisations
for the settlement of disputes

A) Diplomatic Methods
1) Negotiation

- Oldest, most common and simplest method of settling international disputes

- Given top priority in the settlement of disputes by Article 33(1) of the UN Charter
- Primarily consists of discussions between the concerned parties with a view to understand the opposing
views and opinions and reconcile the differences
- Considered to be one of the most satisfactory means of pacific settlement of disputes since it is
voluntary in nature and the parties directly engage in the process
- However, does not always succeed in solving issue at hand
- Thus, third party may intervene with the intention of helping concerned parties reach a solution
- This is where other pacific means of solving a dispute come into play

2) Enquiry (fact finding commissions)

- One of the major reasons why conflicting parties are unable to reach a peaceful settlement by
negotiation is the inability of the parties to agree on points of facts
- This gives rise to enquiry as a means of pacific settlement of disputes
- Many bilateral agreements have been concluded owing to the efforts of the fact-finding commissions
- The two Hague Conventions of 1899 and 1907 established commissions of enquiry as formal institutions
for the pacific settlement of international disputes
- The task of a commission of enquiry was to facilitate the solution of disputes by elucidating facts through
means of an impartial and conscientious investigation
- However, the purpose of the commission was just to report facts;
- It could not propose solutions
- The UN charter specifically lists enquiry as one of the methods of pacific settlement of Intntl Disputes
- Enquiry, however, has lost its importance as a means of settling disputes
- Since the purpose of enquiry is the merely fact-finding, it is used to complement other methods

3) Mediation

- Mediation is a process through which a third party intervenes to assist conflicting parties to reach PSOD
- Mediator actively participates in the settlement and proposes concrete solutions for the settlement of a
dispute
- However, proposals are not binding on parties who are free to accept/reject proposals given by
mediator

4) Conciliation

- Process of settling a dispute by referring it to a specifically constituted organ whose task is to elucidate
the facts and suggest proposals for the settlement of a dispute
- However, proposals not binding, same as mediators
- Moreover, conciliators cant intervene on their own; they are appointed by the parties to a dispute
- Conciliation is described by some as a combination of Enquiry + Mediation, however, it differs from both
o Enquiry= only fact finding; Conciliation= proposal of concrete solutions
o More formal and less flexible than Mediation; if mediators proposal not accepted, they can
propose new solutions whereas a conciliator usually presents a single report

5) Good Offices

- Unable to solve dispute by negotiation or have severed their diplomatic ties but are convinced a
settlement is necessary, utilisation of the technique of good offices may come in handy
- Third party attempts to bring the disputant together by transmitting messages and suggestions in an
effort to create an atmosphere conducive to resuming negotiations
- Different from mediation in that the major function here is to being the parties together, not proposal of
solutions

B) Adjudicative methods of dispute settlement

- major disadvantage of diplomatic methods of dispute settlement is that their decision are not binding on
conflicting parties
- therefore, adjudicative methods are preferred because of binding decisions
- two types:
o Arbitration
o Judicial settlement
- Both methods involve the determination of differences between the parties through legal decisions of
tribunals
- In case of judicial settlement, the decision is made by a court that could either be permanent such as ICJ
or ad-hoc
- In case of arbitration, the decision is made by a single arbitral tribunal
- Whatever method is used, the decisions are binding on the parties to a dispute
- In the UN Charter, judicial settlement refers to the settlement by the ICJ whereas arbitration refers to
the settlement by other tribunals
- Arbitration is considered to be an extremely effective means of dispute settlement since it combines the
elements of both diplomatic and judicial procedures
- Judicial settlement is a settlement of dispute by an international tribunal in accordance with the rules of
international Law
- Such international tribunals include permanent tribunals such as the
o ICJ,
o The ITLOS (International Tribunal for the Law of Sea),
o ad-hoc tribunals such as the UN tribunal in Libya, etc
- Article 33(1) of the UN charter refers to “arbitration” and “judicial settlement” as two methods that
states are encouraged to adopt while seeking a resolution to a dispute

C) Institutional Methods of Dispute Settlement

- Involves resorting to international organisations for the settlement of international disputes
- Most pertinent examples of such organisations are the UN and regional organisations such as the EU

1) Peaceful settlement of dispute by the UN

- UN charter stipulates that it is the task of the UN to bring about peaceful settlement of international
disputes in accordance with rules of justice and I Law
- If parties fail to observe their obligations, the UN will intervene and give its recommendations on the
matter
- The UNSC is entitled to intervene on its own, on the invitation of any member of the UN, the General
Assembly or the complaint of a party to a dispute
- UNSC may follow 3 courses of actions
1. May call upon parties to a dispute to settle it using any of the peaceful means listed in Article
33(1)
2. May recommend the appropriate methods for settlement
3. May recommend the terms of settlement as it considers appropriate

2) Peaceful Settlement of a Dispute by Regional Organisations

- Article 52 recognises the right of the members of the UN to establish regional arrangements or agencies
for the resolution of disputes that may endanger world peace and security
- Paragraph 1 of Article 52 imposes two explicit limitations
1. It requires that the matter be dealt with must be appropriate for regional action
2. Requires that the activities of agencies must be consistent with the principles and purposes
of the UN
- Article 54 imposes another limitation
1. UNSC must be kept fully informed of the activities of the agencies
- Paragraph 3 of Article 52 goes as far as requiring the UNSC to encourage the development of pacific
settlement of disputes through regional arrangements for maintain international peace and security