Faculty of Philosophy International Relations- Conflict Resolution

Peaceful settlement of disputes in International law

Professor: Bekim Kadriu

Student: Olgica Stefanovska

Skopje, 2013

Contents

1. Introduction. 3 2. Role Played by Different Means of Dispute Resolution. 3 3. Means of settlement . 5 3.1Negotiations. 5 3.2 Inquiry 6 3.3 Mediation 8 3.4 Conciliation . 8 3.5 Arbitration .. 9 3.6 Judicial settlement . 10

Introduction There is nothing more tormenting like the existence of some misunderstanding between people, governments, or even societies. The existence of these disparities may hasten prejudice, which might eventually affect negatively on the economy of the two parties. Any given idea aimed in solving a dispute in a peaceful manner is something, which has been welcomed by nations over the past years. These measures of dispute resolution have been brought about by the existence of the World Wars I and II, and the wars taught the world a lesson that there should never be war in the world again. The results of any given war or prejudice among different societies can be detrimental if not addressed. There have been a number of classical forms that have been applied in the peaceful settlement of disputes. The major strategies in dispute resolution include negotiation, having good official-talks, mediation talks, inquiry from experts, guidance and conciliation, arbitration and the use of judicial settlement systems when there is an interstates dispute. These subjects have been treated as crucial for dispute resolution and their development is something that is historical and has been undergoing numerous evolutions, bringing numerous applications, which have proved useful in the practical implementation and resolution of international disputes. Particular, much attention has to be paid to all forms of dispute resolution methods starting from the International Court of Justice, ICJ, the United Nations and its role, peacekeeping missions and operations, the role of the well known regional organizations like the OAS, OAU, NATO, Council of Europe, among others. There have also been new forms that have emerged in Settlement of International Disputes as provided in Article 33 of the United Nations Charter. Role Played by Different Means of Dispute Resolution The United Nations Charter, Article 33 gives guidelines useful in addressing any given interstate conflicts or disputes. From the Charter, the entire people comprising the United Nations have been determined in saving the succeeding people and generations from any form of war or disparity, as the first and second world wars brought the greatest torment to man. The aim for this Charter by the United Nations was a fundamental affirmation of basic human rights, in the restoration of worth and dignity of the human. A person bring equal rights between men and women, bring about understanding between nations, whether large or small, and also come up with proper establishments in which respect and justice
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would be part of the obligations in the development of treaties and through the application of international laws. This would be useful in bringing the necessary sanity between nations and societies. This will be useful in maintaining, and promoting social progression and thereby bringing better living standards and freedom to life human life at large. Chapter VI of the Charter specifies the Peaceful Settlement of Disputes among nations and different parties. In Article 33, two parties in any form of dispute, and the continuance of that dispute will most likely endanger and threaten the maintenance of the existing international security and peace. Therefore, it would be necessary for these two parties to first seek for an immediate solution to the problem through inquiry, negotiation, mediation, arbitration, conciliation, judicial settlement, then they can also resort to some regional arrangements or agencies, or eventually look for other peaceful means that are of own choice while at the very time are applicable and effective. The Security Council of the United Nations will have to call upon all the parties at disparity to come together and settle their disputes through the application of the above stated means. Therefore, coming into good terms and signing a treaty so that the disparity may never have to occur any other time in the future. The above procedures are what the United Nations Charter advocates for in interstate dispute resolution. The aim is to come up with a long lasting solution to the existing dispute so that it may never occur again in the future. These disputes are quite harmful to peaceful co-existence between societies, states and even nations. If these disputes are not addressed in an ethical manner, they will continue to harm the existing relationships day after day, and thereafter bringing adverse effects that may eventually result in poor economic establishment within the two states or societies. There are also some legal guidelines and procedures that have been applied in the resolution of interstate dispute. There have been the setting of International courts and Tribunals and have been flourishing over the past few years. There have been proliferations of new bodies that have been strengthening the already existing ones to bring proper legal explanations during the time of disputes. These tribunals and courts have been presenting a dimensional legalization procedure. Instead of having, disputes resolved through bargains, the states have the mandate to delegate the task by integrating a third-party player in order to apply the legal principles. These principles have stated two legal procedures in dispute
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resolution. There can either be transnational and interstate dispute resolution. The major differences between the two applications in these dispute resolution processes are on the legal formalities. The two have different implication on the politics behind the process of dispute resolution. Looking at the interstate conflict resolution, it is very consistent in that it will be in accordance with public law which gives the rules and practices that govern any interstate relationships. The legal procedures with interstate resolution take place between the two states, and are referred as the unitary actors. Any state is deemed to be a subject of the international law, and thus they must have controlled access to legal proceedings during any conflict resolution ideology. These states are therefore required to come up with proper implementation of the international courts or tribunals. Therefore, intestate conflict resolution sees the two states acting as gatekeepers to the legal international processes, thus practicing these requirements at the domestic level. There have been disputes that have been existence between different states in the world over the last few years. As we have said earlier, most of these disputes and conflict will result from the existence of ideological differences occurring from some areas of interests.

Means of settlement Negotiations The Manila Declaration on the Peaceful Settlement of International Disputes highlights flexibility as one of the characteristics of direct negotiations as a means of peaceful settlement of disputes. Negotiation is a flexible means of peaceful settlement of disputes in several respects. It can be applied to all kinds of disputes, whether political, legal or technical. Because, unlike the other means listed in Article 33 of the Charter, it involves only the States parties to the dispute, those States can monitor all the phases of the process from its initiation to its conclusion and conduct it in the way they deem most appropriate.

Another characteristic of negotiation highlighted by the Manila Declaration is effectiveness. Suffice it to say in this connection that in the reality of international life, negotiation, as one of the means of peaceful settlement of disputes, is most often resorted to by States for

solving contentious issues and that, while it is not always successful, it does solve the majority of disputes.

Normally, the negotiating process starts as the result of one State perceiving the existence of a dispute and inviting another State to enter into negotiations for its settlement. The start of the negotiating process is conditional upon the acceptance by the other State of such an invitation. It may occur that a State invited to enter into negotiations has valid reasons to believe that there is no dispute to negotiate and that there is, therefore, no basis for the opening of negotiations. It may also occur that a State, while agreeing to enter into negotiations, subjects the opening of negotiations to conditions unacceptable to the first State. The discretion of States with respect to the initiation of the negotiating process is, however, subject to certain limitations.

Inquiry In an international dispute involving in particular a difference of opinion on points of fact, the States concerned may agree to initiate an inquiry to investigate a disputed issue of fact, as well as other aspects of the dispute, to determine any violations of relevant treaties or other international commitments alleged by the parties and to suggest appropriate remedies and adjustments. Inquiry may also be resorted to when parties to a dispute agree on some other means of settlement (arbitration, conciliation, regional arrangements, etc.) and there arises a need for collecting all necessary information in order to ascertain or elucidate the facts giving rise to the dispute.

Inquiry as a means of settlement of disputes has been provided for in a number of bilateral and multilateral treaties, including the Covenant of the League of Nations, the Charter of the United Nations and the constituent instruments of certain specialized agencies and other international organizations within the United Nations system, and in various instruments by the regional bodies.

Inquiry may be set in motion by mutual consent of the States concerned on an ad hoc basis, relying upon a treaty in force between them, creating a general obligation to settle disputes
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by peaceful means. It may also be initiated in accordance with the terms of an applicable treaty, specifically establishing inquiry as the mode of handling a category of disputes and indicating how the process may be initiated, including its method of work.

Composition and other institutional aspects

Although reference has been made in the preceding paragraphs to inquiry mainly in the form of various commissions to be composed of a specified number of individuals, thus constituting a third-party procedure, there are certain important exceptions to that view which may now be pointed out in connection with the institutional aspects of the procedure. First, it should be noted that an inquiry must not necessarily be conducted by a group of people constituting a commission or a panel. An inquiry may indeed be undertaken by one person alone. Thus the States concerned may agree to approach, for example, the Secretary-General of the United Nations or the chief administrative officer of any of the specialized agencies or of bodies within the United Nations system to appoint a special representative or a mission to carry out an inquiry on the difficulties which have arisen between such States or to investigate the events giving rise to a complaint by one State against another, with the view to bringing about an amicable solution." Both the General Assembly and the Security Council are equally free to ask the Secretary-General of the United Nations to appoint a special representative to undertake an inquiry in connection with issues falling under their responsibilities and competence and have done so on several occasions. Secondly, it should be observed that an inquiry need not always be in the nature of a thirdparty procedure (the appointment of either a commission or an individual to undertake an independent investigation on behalf of the parties to the dispute). In some cases, especially those involving frontier disputes, provisions have been made for an inquiry to be conducted directly between the local frontier officials of the States parties to such a dispute without involving a third party. This practice of eliminating the third-party element in an inquiry procedure exists in a number of bilateral treaties.

Mediation Mediation is a method of peaceful settlement of an international dispute where a third party intervenes to reconcile the claims of the contending parties and to advance his own proposals aimed at a mutually acceptable compromise solution. Thus, mediation as a method of peaceful settlement is more than an adjunct to negotiations. As can be seen, for example, in the practice of the United Nations, it has emerged to become a distinctive method for facilitating a dialogue between parties to an international dispute, aimed at scaling down hostilities and tensions and for achieving, through a political process controlled by the parties, an amicable solution of an international dispute. A very important, perhaps crucial feature of mediation is that it facilitates for the disputing parties recourse to a peaceful approach to the dispute. Mediation can be resorted to for the purposes of reducing the tension which may have developed in the course of an international dispute, thereby performing a preventive function the importance of which should not be overlooked.

Mediation is usually resorted to purely on an ad hoc basis, although it may be carried out in accordance with the provisions of an applicable treaty between the parties to the dispute. Components of the mediation technique, depending on the nature of the dispute, include the communication function, clarification of issues, drafting of proposals, search for areas of agreement between parties, elaboration of provisional arrangements to circumvent or minimize issues on which the parties remain divided as well as alternate solutions, etc., with the primary goal of an early and fundamental resolution of a dispute. It is important to demonstrate to the parties to a dispute that the prospective mediator understands their respective positions, is not biased against any of them and has the necessary skills to perform the function of mediator in the particular dispute.

Conciliation Parties to an international dispute may agree to submit it to a peaceful settlement procedure which would, on the one hand, provide them with a better understanding of each other's case by undertaking objective investigation and evaluation of all aspects of the dispute and, on the otherhand, provide them with an informal third-party machinery for the negotiation and non-judicial appraisal of each other's legal and other claims, including the
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opportunity for defining the terms for a solution susceptible of being accepted by them. They would thus submit the dispute to conciliation, the peaceful settlement procedure which combines the elements of both inquiry and mediation.

The conciliation procedure, as envisaged under some of the above treaties, is also linked to negotiations by provisions specifically requiring failure of negotiations or consultations to be a precondition for initiating conciliation. There is also a series of treaties which specifically provide that, before a dispute may be submitted to any of the adjudicatory procedures (arbitration or judicial settlement by pre-established international courts), the parties to the dispute may first submit it to conciliation.In this context, conciliation is stipulated as a condition precedent to the judicial procedures, thus establishing the link between conciliation on the one hand and arbitration and judicial procedures on the other. An exception to such a link may, however, be noted in a treaty where it was equally specified that the parties to a dispute "may agree to submit it to an arbitration without prior recourse to the procedure of conciliation" .

A conciliation procedure may be set in motion in two ways: either by mutual consent of the States parties to an international dispute, on an ad hoc basis, relying upon a treaty in force between them and creating an obligation to settle such dispute by peaceful means; or in accordance with the terms of an applicable treaty which either specifies the details of how an ad hoc conciliation may be constituted thereunder or establishes a permanent conciliation commission within the treaty itself.

Arbitration

Arbitration and judicial settlement are similar in that respect, the two methods of settlement are nevertheless structurally different from each other. Arbitration, in general, is constituted by mutual consent of the States parties to a specific dispute where such parties retain considerable control over the process through the power of appointing arbitrators of their own choice. By contrast, judicial settlement relies upon pre-constituted international courts or tribunals, the composition of which is not to the same extent subject to control by the parties to the dispute.
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Apart from the 1899 and 1907 Hague Conventions, arbitration, as a means of peaceful settlement of disputes between States, is provided in a number of multilateral treaties of global or regional character and also in a number of bilateral treaties. Arbitration has thus emerged as one of the third-party procedures most frequently chosen for settling, for example, territorial and boundary disputes, disputes concerning interpretation of bilateral or multilateral treaties, and those relating to claims of violation of international law. It may be observed in this connection that both the 1899 and the 1907 Hague Conventions established the Permanent Court of Arbitration to facilitate the settlement of disputes which diplomacy had failed to settle, while the American Treaty on Pacific Settlement (Pact of BogotA) of 30 April 1948 provided that States parties might, if they so agree, submit to arbitration "differences of any kind, whether judicial or not".

There are, however, types of disputes which States have excluded from arbitration constituted under a particular treaty, such as disputes arising from facts or events which occurred prior to the treaty establishing the arbitral procedure in question, disputes relating to questions which are within the exclusive jurisdiction of a State, disputes which concern the territorial integrity of a State, disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it in the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by another peaceful procedure.

The outcome of an arbitration is an award which is binding upon the parties to the dispute. Invariably, in all the compromis, parties to the dispute further stipulate that they undertake to abide by the decision of the arbitral tribunal in question.

Judicial settlement

The first international court of a world-wide scale was the Permanent Court of International Justice, which was created by the Covenant of the League of Nations in 1922. It was
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succeeded by the International Court of Justice, established in 1946 as a principal organ of the United Nations. Under Article 36 of its Statute, the International Court of Justice has general jurisdiction in "all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." Another international institution for judicial settlement is the International Tribunal for the Law of the Sea, provided for under the 1982 United Nations Convention on the Law of the Sea, with jurisdiction over law of the sea disputes.

Both judicial settlement and arbitration make recourse to an independent judicial body to obtain binding decisions, as pointed out in the previous section. Arbitral tribunals, however, are essentially of an ad hoc nature, and are composed of judges selected on the basis of parity by the parties to a dispute who also determine the procedural rules and the law applicable to the case concerned. International courts and tribunals, by contrast, are preconstituted inasmuch as they are permanent judicial organs whose composition, jurisdictional competence and procedural rules are predetermined by their constitutive treaties. Furthermore, judicial settlement may be distinguished from arbitration in that the decisions of international courts and tribunals are, as a rule, not appealable.

The outcomes of contentious proceedings involving international disputes are decisions which are final and binding on the parties. In a majority of cases, the judgements are those requiring performance, but as has been done in some of the judgments of the International Court of Justice, a court may be requested to render declaratory judgements in which the court determines the guiding legal principles to be followed in dealing with a particular dispute, without giving a definitive decision on the dispute, or establishes that the violation of the principle of international law in question has no practical remedy. The judgements pertaining to interim proceedings, such as those for provisional measures of protection, preliminary rulings or objections, and intervention by a third-party State, are also binding upon the parties.

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