We are familiar with the term ‘Dispute’ as it represents the most basic disagreement or misunderstanding between two parties over a certain topic/point of law/ or opinion. ‘Disputes’ arise in our everyday life and dictate a huge part of our lives as human beings. While Disputes cannot be completely avoided, it is always interesting the way they are settled. In a strict sense, legal disputes arise between two or more parties over a point of law.
Scope of International Disputes
When we talk about ‘International Dispute’, it usually means two or more states (nations) in a disagreement over a point of law. The term has various elements associated with and can have a broader definition of how an individual approaches the topic. In the very famous case between Greece v. United Kingdom (1924) (famously known as ‘Mavrommatis Palestine Concessions’ case) dispute was defined as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.
These disputes could potentially arise mutually between governments, organizations, juristic persons, or bodies of the world. The scope of these disputes, however, is not limited to just law or matters of policy, these disputes could arise due to political, economic, or ideological differences too. But let us focus on the matters of law and policy.
Essentials of an International Dispute
- Every dispute be it international or domestic has a specific point of disagreement. This disagreement could be over law or policy or matters that incidental to it. Thus, there needs to a reasonable apprehension of what the dispute specifically is about.
- While we know that the point of conflict has to be specific, a dispute arises due to indifference between the actors, and just like in any other dispute, disagreements must entail what we call a claim or assertion by one or more parties to a dispute.
Nature of International Dispute
- Legal International Dispute
A dispute could be called a legal Dispute when law or policy is the subject matter of the dispute. Such disputes are settled by the application of laws and intervention from legal institutions. - Political International Dispute
A dispute could be called a political Dispute when it cannot be settled by a mere application of laws. Disputes of a political nature are best settled through political intervention.
While it is true that most disputes would possess’ characteristics to fall into either of the two categories, it is the nature of arguments put forward by the parties involved in the dispute that can distinguish the true nature of the dispute. When the claims of a party to the dispute are not relevant ‘legally’ it would be political. It is necessary to identify the exact nature of the dispute to quickly resolve it through the already established procedures in international law.
Peaceful means of Settlement
So far, we know what a dispute is, its essentials, and its types. Now it is important to understand how and why these disputes are resolved. We shall look into some of the most popular and UN certified Dispute Resolution methods.
The need for Dispute Resolution
Disputes between international actors are different from ‘domestic’ disputes. While domestic disputes cannot challenge world peace and security, international disputes can have huge ramifications on the global peace scenario. It is without a doubt necessary to have a proper dispute resolution mechanism to strengthen international relations and to maintain order on a global scale.
In order to ensure peace is maintained, the UN Charter of 1945 was passed which enshrined the importance of resolving disputes peacefully. The motive was to promote healthy relations between states and international organizations. It is important to note that the mandate of the 1945 UN Charter of ‘International peace’ was hugely influenced by the world wars and other armed disputes that had threatened world peace and hence the importance of maintaining and keeping international peace cannot be emphasized enough.
Obligation towards maintaining peace
While we discussed that in order to keep the peace, disputes need to be settled by international actors, a very important question is that who imposes such a duty on them? Why are these states or organizations under an obligation to resolve these disputes?
Questions like the above can be answered by the UN Charter. Parties/states signatory to the 1945 Charter are under an obligation to ensure peace. Article 1(1) of the Charter states that international actors have an obligation “To maintain international peace and security, and to that end;… to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.
While the Signatories to such international agreements are under the obligation, non-signatory have no such obligation to resort to peaceful means of settlement.
Peaceful Settlement of International Disputes
Article 2(3) of the 1945 UN charter provides for the signatories of the charter to settle their dispute through peaceful means with an emphasis for maintaining international peace, justice and security. Article 33(1) of the Charter further provides for peaceful methods that can be utilized by the signatories to settle disputes. The article provides for negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. A detailed explanation of these dispute settlement methods is provided hereunder.
Negotiation
A peaceful dispute settlement option for states and organizations to employ their diplomacy. Without the need of a third party ‘arbitrator’ negotiation essentially involves the parties establishing communication and sorting out the indifferences between them. A famous example of this is the series of SALT (Strategic Arms Limitation Talks) negotiations between the United States and the Soviet Union between 1972 and 1979.
UN’s Legal Office provides for a guide for such negotiations and furthermore, a resolution passed in 1998 ‘Principles and guidelines for international negotiations‘ was adopted which addressed the forms, processes and outcomes of negotiations.
Enquiry
A commission is set up under Hague Conference of 1899 and 1907 and it presides over the dispute. The sole purpose of the commission is to investigate the facts of the dispute. The commission set up to analyze the facts in the dispute of Libya and Syria is a good example of how exactly a commission works while the commission set up to investigate the assassination of president Burundi on 21 October 1993 is another good example. Another example is the ‘Historical Clarification Commission’ of Guatemala.
Mediation
This process involves a third party overseeing and engaging in a negotiation between the parties to a dispute. It is expected that the third party or the ‘mediator’ would help in an impartial and just way. It is one of the most common forms of peaceful dispute settlement mechanism utilized by states. The mediators could be individuals, organization or other states and are appointed by the UN General Assembly. A good example of this was the involvement of Algeria in a dispute between Iranian students and US embassy in 1981 and famously known as “Algiers Accord”.
Conciliation
Conciliation usually involves a commission being set up to perform two essential functions of fact-finding and preparing a report on its findings to suggest just and peaceful ways to settle the dispute. A successful example of conciliation would be the ‘Jan Mayen Award’ given by the commission formed for the settlement of the dispute between Norway and Iceland in 1981.
Arbitration
A very popular mechanism that is often utilized for commercial and business purposes, arbitration usually involves a tribunal being set up to pass an award that is legally binding on the parties. It is entered into by both the parties through their mutual consent. There are numerous laws and rules governing international arbitration, for example, International Chamber of Commerce rules, London Court of International Arbitration rules, International Centre for Dispute Resolution Rules, Singapore International Arbitration Centre rules, Hong Kong International Arbitration Centre rules and the UNCITRAL rules.
Judicial Settlement
Judicial Settlement involves an international judicial tribunal resolving the dispute between parties with the use of provisions from governing international laws. International Court of Justice (ICJ) is the most widely recognized Judicial tribunal while the European Court of Justice, International Tribunal for the Law of the Sea are other examples of international Tribunal
The distinguishing feature of ICJ from that of a traditional arbitration tribunal is the fact that ICJ hears disputes from sovereign states and not from individuals or organizations. The procedures and operation of ICJ are governed by the Statute known as the Statute of the International Court of Justice. A prime example of the work that ICJ does can be seen in the recent case of India v. Pakistan (Kulbhushan Jadhav case).
Assistance from regional agencies
Assistance from municipal Agencies or organizations in order to help and resolve disputes amicably. The reasons to employ this method could be due to the expertise of the particular agency in the dispute. Article 52 of the UN Charter provides for the member states to contract a regional agency to settle disputes and to maintain peace and security. If the dispute is proven to unsuccessfully settled, the UNSC takes over or the matter is referred to them
Or any other Peaceful Means
Good offices
A procedure similar to mediation jarring a few differences, it consists of a third party, usually a state/organization/individual offering their services to resolve a dispute. The difference is that this third party does not engage in negotiations and their obligations end after the dispute is over.
UN General Assembly
Article 11(2) empower the UNGA to discuss international disputes to make recommendations under Article 14 to the parties of the dispute. But it is to be noted that they are no empowered by any specific provision to or method to actually resolve the dispute.
UN Security Council
A 15-member council decides on matters that threaten world peace and security as per the powers given to it under Article 24(1). It may guide the parties to settle their dispute according to Article 33; it may also recommend the parties to follow any other appropriate measure to resolve the dispute, or it may dictate the terms of the settlement as it considers necessary to ensure the objective of the UN Charter is being fulfilled and this was observed in its involvement in the cold war era. UNSC is also shifted to a more modern activist approach by engaging in humanitarianism and other noble causes.
Secretary-General
Article 99 of the UN Charter provides for the UN Secretary-General to offer their services in the form of a mediator or good offices. The policies that have been adopted by many secretary generals in the past have paved the way for successive secretary generals to enjoy a neutral and politically acceptable role in international disputes.
Or any other means for resolving a dispute peacefully while keeping the spirit of 1945 UN Charter alive.
Conclusion
It is estimated that the UN has spent nearly around $8-$9 billion annually in recent times to maintain peace and for its other humanitarian ventures. Recent conflicts in the Middle East, Africa and anti-terrorist watch has cost the UN a lot. In order to truly resolve or settle these disputes, governments all around the world will have to come to a consensus in order to establish peace and security. Most of these disputes are man-made and can be resolved through a numerous peaceful method, but the problem lies with attitude and nature of man, diplomacy and world peace take a backseat when it comes to ego, belief and self-righteousness. Achieving worldwide peace might seem far fetched but it is always worth working towards something just and equitable for all.
While we discussed different procedures for the settlement of International Disputes, we need to keep in mind that not all international states or actors fall under the purview of the UN Charter of 1945. These are merely voluntary for non-member states. Disputes cannot be solved unless international actors can actually get rid of hostility, distrust and general attitude of indifference towards each other. Since we clarified it at very start of the article that dispute is ‘inevitable’, it is preciously why we have multiple peacekeeping organizations and forces which are governed by International Law which is based on co-operation and promoting peace through diplomacy and other means necessary.
Editor’s Note
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 the resolution of a dispute between individuals.
Hence, individual states must resolve to solve all the disputes, by using amicable means. The ways in which such issues and disputes can be resolved are discussed in this paper, as that is inevitable for the peace of the world. In today’s world, several complexities, both legal and factual, increase the number of disputes too. And therefore, this paper stresses how important it is to deal with such complexities are swiftly and amicably as possible.