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PEACEFUL MEANS OF DISPUTE SETTLEMENT IN INTERNATIONAL LAW

INTRODUCTION

International disputes have become an infamous phenomenon of recent times. They need to settled through some means. Wars were seen as the only way back then, when there was no consciousness of an international community and law, co-existence and universal rights. But the aftermath of wars , the adverse effects on the nation’s economy, resources and population compelled to adopt a sober approach towards disputes and to avoid wars. The League of Nations, established after the Great War was one such sincere effort but in vain. It failed in avoiding the Second World War. This however didn’t shake the determination of people detesting war and advancing global peace.

PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

International law enlists negotiations , good offices, mediation among a range of means of dispute resolution. A catalogue for the same is provided in the UN Charter: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice.”[1]

NEGOTIATION

A majority of international disputes are said to be settled by negotiations. In some cases, negotiations may be the only means of settlement Thus, negotiation can be regarded as a basic means of resolving an issue. If a treaty mentions an obligation to negotiate, then the contracting parties are obliged to act according to the negotiation clause of the treaty. Where there is no such obligation laid by the treaty there is no there is no general duty to attempt to settle the dispute.

GOOD OFFICES

In good offices, a third party takes efforts to solve the problem between the disputing parties by providing them a channel of communication. The third party could be a single state or a group of States, or a non-State factors like international institutions and independent individuals. Switzerland has played a significant role in good offices due to its neutrality. France exercised good offices in Vietnam War to facilitate peace between US and Vietnam.

MEDIATION

The third party actively participates in the dispute settlement procedure through mediation. It insists to come upon a mutually acceptable solution by giving its suggestions to the disputing states. The UN has acknowledged the usefulness of mediation.[2] World Bank had an active role as a mediator in Indus water dispute between India and Pakistan. After nine years of negotiation, on 19th September 1960, Indus Water Treaty was signed by India and Pakistan as well as the World Bank because it had accepted the responsibility of implementing the treaty.

INQUIRY

It has been observed that international disputes often arise from disagreements over the issues of fact. The disputing parties hold their version of story as true and factual. In such a case, an objective assessment of points of fact by a third party can significantly contribute to reduce the risk of escalation of dispute This arrangement is called inquiry or fact finding. On 15th September 1898, US battleship Maine, at anchor in Havana harbour, was destructed by an explosion. 259 of her officers and crew were killed in the disaster.[3] The inquiry commissions set up by Spain and US reached different conclusions with regards to facts. The issue of unbiased fact finding received serious attention. A Convention was called in Hague and the delegates of the Convention agreed to establish International Commission of Inquiry. An inquiry commission may be instituted by an international organization or under one person appointed for the purpose of inquiry. The Inquiry must be conducted by mutual consent of the parties to a dispute in an ad hoc manner. The outcome of inquiry is not binding upon parties in dispute.

CONCILIATION

Conciliation aims not only to undertake objective investigation but also provide a solution that can be agreed by parties in dispute. Like inquiry , it is carried out by a commission which is composed of independent and impartial individuals. The final report is issued in the form of non-binding recommendations to the disputing parties. In 1947, Franco – Siamese Conciliation was formed for frontier disputes. East African Community Conciliation by Dr Victor Umbreint regarding the distribution of assets of former East African Community was set in 1977.

OTHER PEACEFUL MEANS

The methods suggested in Article 33(1) of the Charter is not a sequence of means that must be followed to settle international matters. Instead, any of the given means can be undertaken to resolve the issue. Other than the ways described briefly above, the disputing parties or an international agency taking charge of settling the matter may adopt any other peaceful means they agree upon. These measures include judicial proceeding, arbitration, consultation, conference, referring the dispute to a political or non-judicial body, etc.

EFFECTIVENESS OF PEACEFUL DISPUTE SETTLEMENT IN PRESENT ERA

UN was established in 1945 after the Second World War. The whole idea was to maintain peace. The concept of peace at international level means avoiding armament, using nuclear weapons, waging wars against other countries. To maintain this peace, certain measures were suggested. They have been effective to an extent to avoid a global war. But despite everything appearing to be smooth through amicable methods of resolution, there have been instances where the world saw a divide on the basis of ideologies. Cold War is a good example. The issue of India and Pakistan especially with respect to Kashmir has been still unresolved even after trying all peaceful means. Similarly, India’s conflict with China continues regarding the geographical area and boundary. In certain countries, the peacekeeping mission of UN did more loss than good.

CONCLUSION

All the methods are characterized by four interlinked elements: its consent based nature, non-hierarchy, flexibility and evolutionary nature. However there are certain drawbacks of peaceful settlements needed to be considered and solved. The fundamental problem is the lack of compulsory jurisdiction. Also none of the method is a necessary but based on the choice of contending parties. The efficiency of these methods is questionable too. Data related to this can be found in official publications of international organizations, and digests by individuals authors. However, even such collections lack a more detailed assessment of the international expo experience in peaceful settlement of disputes. But, reliance on State sovereignty, reluctance in resorting to judicial solution, non-binding nature of the derived solutions, etc. are enough reasons to doubt the efficacy of peaceful international dispute settlement system practised in the modern era.

Author(s) Name: Abdul Basit M. A. Kudalkar (Mumbai University)

References:

[1] Charter of the United Nations, 1945, art. 33(1)

[2] Yoshifumi Tanaka, The Peaceful Settlement of International Disputes (Cambridge University Press 2018)

[3] J G Merrill, International Dispute Settlement (4th Edition, Cambridge University Press 2005)