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Public International Law Project


On

The Mode of Settlement of International Disputes


and its Various Types
Submitted to:

Mr. Mohammad Atif Khan


Faculty, Public International Law
By:

Abhinav Surollia

Roll no. 07

Section C

Semester IV, B.A. LLB(Hons.)

Submitted on:

February 18, 2015

Hidayatullah National Law University


Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)
ii

Declaration:
I, Abhinav Surollia, of Semester IV, Section C, declare that this project submitted to
H.N.L.U., Raipur is an original work done by me under the able guidance of Mr.
Mohammad Atif Khan, Faculty of Public International Law. The work is a bona fide
creation done by me. Due references in terms of footnotes have been duly given
wherever necessary.

Abhinav Surollia

Roll No. 07
iii

Acknowledgements:
I feel elated to work on the project “The Mode of Settlement of International Dispute
and its Various Types”. The practical realisation of the project has obligated the
assistance of many persons. Firstly I express my deepest gratitude towards Mr.
Mohammad Atif Khan, Faculty of Public International Law, to provide me with the
opportunity to work on this project. His able guidance and supervision were of extreme
help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing
extensive database resources in the library and for the internet facilities provided by the
University.

Some printing errors might have crept in which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Abhinav Surollia

Roll No. 07

Section C, Semester IV
iv

Contents:
1. Declaration ii
2. Acknowledgments iii
3. Abbreviations & Acronyms v
4. Introduction vi
4.1. Objectives viii
4.2.Methodology viii
4.3.Questions viii
4.4.Hypothesis viii
4.5.Mode of Citation viii
4.6.Chapterisation ix
4.7.Scope of Study ix
5. Peaceful Means of Settlement 1
5.1. Extra Judicial Means of Settlement
5.2. Judicial Means of Settlement 5
6. Compulsive Means of Settlement 7
7. Conclusion 10
8. Bibliography 11
v

Abbreviations & Acronyms:


1. & And
2. Art. Article
3. Ed. Edition
4. Eg. Exempli Gratia
5. Etc. Et Cetra
6. Feb. February
7. ICJ International Court of Justice
8. Para Paragraph
9. V. Versus
vi

Introduction:
The word ‘dispute’ as defined by the Oxford Dictionary means a disagreement or
argument.1 It may thus mean a disagreement on a point of law or fact, a conflict of
legal views or of interest between two persons. The existence of dispute essentially
necessitates that the claim of one party is opposed by the other.2 A disagreement
between the parties may arise either on legal or political grounds. According to
Oppenheim, “legal disputes are those in which the parties to the dispute base their
respective claims and contentions on grounds recognized by international law.”3 Apart
from this all other disputes are referred to as political disputes. It is submitted that this
distinction of dispute between political and legal disputes is purely subjective. Whether
a dispute is legal or political depends upon the attitude of states towards that dispute. If
the states desire that a dispute should be settled on the basis of law, the dispute is
regarded as legal otherwise it becomes a political dispute.

The distinction between legal and political dispute is important because in International
Law, the procedure for settlement of disputes had been laid down for only legal
disputes. In Nicaragua v. Honduras4 the ICJ held that the Court is only concerned with
cases involving a legal dispute, in the sense of a dispute capable of being settled by the
application of principles and rules of International Law. International law provides the
procedure for settlement of those disputes which occurs when a party presents to
another a specific claim based upon an alleged breach of the law and the latter rejects
it. Also it is important to know that para 2 of Art. 36 of the Statute of ICJ use the term
‘legal disputes’ in relation to the compulsory jurisdiction of the Court. It may be
because the judicial procedure provided by the ICJ may not be appropriate for the
settlement of political disputes.

1
Oxford Dictionaries, http://www.oxforddictionaries.com/definition/english/dispute (Accessed Feb. 1, 2015)
2
Ethiopia v. South Africa, ICJ Reports 1962 p. 328.
3
L.Oppenheim, International Law
4
ICJ Reports 1988 p. 91.
vii

Legal disputes may be settled in two ways, amicable or pacific means of dispute
settlement and compulsive or coercive means of the settlement. The following flow
chart will provide a quick look to these two means of dispute settlement.

Settlement of Disputes

Amicable Means Compulsive Means

Extra Judicial Means Judicial Means 1. Retortion


1. Negotiation 1. Arbitration 2. Reprisals
2. Good Offices & Mediation 2. ICJ 3. Embargo
3. Conciliation 4. Pacific Blockade
4. Enquiry 5. Intervention
5. By the United Nations

Thus the above chart provides a quick look on the two modes of the settlement of
international disputes and their various types. Each of which will be dealt with in this
project report in various sections to follow with more focus to the amicable means or
the pacific means of the settlement of disputes.
viii

Research Methodology:
Objectives:
The objective of this project is:
1. To study the mode of settlement of international disputes & its various types.

Methodology:

This research project is descriptive in nature. Accumulation of the information on the topic includes
wide use of primary sources such as cases as well as secondary sources like books, articles etc. The
matter from these sources have been compiled and analysed to understand the concept.

Websites and dictionary have also been referred to understand things in a better way.

Questions:

This project aims to answer questions such as what are the various modes of settlement
of an international dispute and what are its various types such as negotiation,
arbitration etc. It further tries to answer that when these modes and their various types
can apply to a dispute.

Hypothesis:

Settlement of international disputes may be either through peaceful, amicable or pacific


means or on the other hand may be through forcible means. In the present century the
meaning of the both the concepts have changed. The peaceful settlement of disputes
may take place either between the parties to a dispute or through intervention of a third
party. The forcible settlement of disputes was more popular in the past and prior to the
start of twentieth century the states would prefer to seek settlement of their disputes
through military measures.

Mode of Citation:

This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and
bibliography.
ix

Chapterisation:

The project broadly has been divided into 4 chapters. Chapter 1 comprises of the
introduction to the topic along with the research methodology that has been adopted in
this project. Chapter 2 comprises of the Peaceful mode of settlement of international
disputes and its various types such as negotiation, mediation, arbitration and so on.
Chapter 3 covers up the coercive mode of settlement and includes its types such as
retaliation etc. Chapter 4 is the conclusion of the project which sums up this project.

Scope of Study:

Due to time constraint this project aims to cover the various modes of settlement of
international dispute in a nutshell. This project does not cover in detail each mode. The
various types of settlement have been dealt in brief giving mention to each and all. The
project report is descriptive and thus it does not analyse that which mode of settlement
is better.
1

Pacific Means of Settlement:


The United Nations in its Charter has recognized peaceful settlement of disputes as one
of the principles of the United Nations. Para 3 of Art. 2 lays down that all members
shall settle their industrial disputes by peaceful means. Further under Art. 33 para 1 the
Charter provides a number of peaceful means for the settlement of disputes such as
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement or resort to
any other peaceful means of their own choice, or resort to judicial settlement. Thus
each of the pacific or amicable means of settlement can be studied under in different
heads.

The various peaceful means for the settlement of disputes can for convenience of study
be divided broadly into two categories. First being the extra judicial modes of
settlement or diplomatic procedures as can be called in which the disputes are settled
by means of an agreement between the disputant states. Second category comprises of
the judicial settlement which is a legal process consisting of settlement according to
international law by an impartial third party, (generally court) the outcome of which is
mostly binding upon the parties in dispute.

1. Extra Judicial Peaceful Means:

a) Negotiation:

Negotiation is a communication between the disputant parties without any third party
involvement which is directed to achieve a joint decision by the disputant parties. In
North Sea Continental Shelf Case it was observed by the Court that negotiations are
still the basic means of dispute settlement5. They figure in almost all general dispute
settlement and in all settlement causes incorporated in treaties. Negotiation tries to
produce a consensual solution to the dispute. Negotiations draw their legitimacy from
the consent of the parties but often are tainted by power disparities as a big country can
dictate it terms to a small country.

5
ICJ Reports (1969) 3 p.47.
2

Negotiation is the simplest form of settling the disputes. It helps the disputant parties to
bring about the needed change by mutual consent. The success of negotiation as a
means to settle disputes depends largely upon the degree of acceptability of claims of
one party by the other and the spirit of accommodation with which the negotiations are
conducted. ICJ in North Sea Continental Shelf Case held that the disputant parties are
under an obligation to enter into negotiations with a view to arrive at a solution and not
merely to go through a formal process of negotiation as sort of prior condition… the
parties are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon position
without contemplating any modification of it.6

b) Good Offices & Mediation:

Mediation and good offices are diplomatic methods of dispute settlement involving
third parties. The third party can be a single state or a group of states, an individual, an
organ of a universal or regional international organisation, or a joint body.

The good offices method is where the third party offers ‘good offices’ to the
conflicting states to facilitate dialogue and assist states towards peaceful settlement of
the dispute. The third party offering good offices must be acceptable to all the parties.
Once the negotiations have started, the functions of good offices are usually considered
to be completed.

Mediation involves more active third party participation in the negotiations. The
mediator conducts the negotiations between contending parties on the basis of
proposals made by the mediator aimed at a mutually acceptable compromise solution.7
Mediation may be set in motion either upon the initiative of a third party whose offer to
mediate is accepted by the parties to the dispute, or initiated by the parties to the
dispute themselves agreeing to mediation. The mediator’s role can involve
communication, clarification of issues, drafting of proposals, identifying areas of

6
ICJ Reports (1969) 3 p.47.

7
Ian Brownlie, The Wang Tieya Lecture in Public International Law: The Peaceful Settlement of International
Disputes, 8 Chinese Journal of International Law 267, 271 (2009).
3

agreement between parties, and elaboration of provisional arrangements to minimise


contentious and propose alternate solutions.

c) Conciliation:

Conciliation can be defined as an intervention to resolve an international dispute by a


body without political authority that has the trust of the parties involved and is
responsible for examining all aspects of the dispute and proposing a solution that is not
binding for the Parties.8

It is therefore crucial that the conciliation body have the trust of the Parties. Without
this trust, its involvement will be in vain. In addition, because it is responsible for
examining all aspects of the dispute, it must identify the facts of the case. It can take
into account not only applicable rules of law but also all non legal aspects of the case.
Its proposals can be based in whole or in part on the law. However, legal
considerations may only be secondary and may even be absent altogether. Moreover,
because the Parties are not bound to implement the body’s solution, they are free to
reject its proposals. The freedom of states remains unfettered.

For the conciliation body’s dispute resolution proposal to be successful, its underlying
reasoning arrived at by an in depth examination of all aspects of the case must be
sufficiently persuasive to convince the Parties that it is a good solution to their dispute
and lead them to resolve their issues accordingly.

Conciliation is therefore somewhat similar to arbitration in that the conciliation body


does not have the a priori political authority to influence the Parties or exert political
pressure on them in order to settle the dispute. The conciliation body must also be
neutral and impartial, failing which it would be impossible to earn the Parties’ trust.
Therefore, Conciliation tries to individualize the optimal solution and direct parties
towards a satisfactory common agreement.

8
Ivan Bernier and Nathalie Latulippe, Conciliation as a Dispute Resolution Method in the Cultural Sector, (Feb. 2,
2015),
http://www.diversite-culturelle.qc.ca/fileadmin/documents/pdf/document_reflexion_eng.pdf.
4

d) Inquiry:

One of the common obstacles preventing the successful settlement of a dispute by


negotiation is the difficulty of ascertaining the facts which have given rise to the
differences between the disputants. Most international disputes involve an inability or
unwillingness of the parties to agree on points of facts. Herein lays the significance of
the procedure of inquiry as a means of pacific settlement of disputes.

Many bilateral agreements have been concluded under which fact-finding commissions
have been set up for the task of reporting to the parties concerned on the disputed facts.
In addition, the procedure of inquiry has found expression in treaties for the pacific
settlement of disputes. The two Hague Conventions of 1899 and 1907 established
commissions of inquiry as formal institutions for the pacific settlement of international
disputes. They provided a permanent panel of names from which the parties could
select the commissioners. The task of a commission of inquiry was to facilitate the
solution of disputes by elucidating the facts by means of an impartial and conscientious
investigation. The report of a commission was to be limited to fact-finding and was not
expected to include any proposal for the settlement of the dispute in question.

With the establishment of the League of Nations, the means of inquiry took on a new
significance. Inquiry and conciliation were viewed as integral parts of a single process
for bringing about a pacific settlement to a dispute.9 It is in the light of this background
that the Charter of the United Nations specifically lists “enquiry” as one of the methods
of pacific settlement of international disputes. Enquiry as a separate method of dispute
settlement has fallen out of favor. It has been used as part of other methods of dispute
settlement. Its purpose is to produce an impartial finding of disputed facts and thus to
prepare the way for settlement of dispute by other peaceful methods. The parties are
not obliged to accept the findings of the enquiry; however, they always do accept them.

The utilization of enquiry has been evident in the practice of international


organizations, such as the United Nations and its specialized agencies.

9
L. Goodrich and A. Simons, The United Nations and the Maintenance of International Peace and Security, p. 173
(1955).
5

2. Judicial Settlement:

a) Arbitration:

International arbitration is the process of resolving disputes between or among


transnational parties through the use of one or more arbitrators rather than through the
courts. It requires the agreement of the parties, which is usually given via an arbitration
clause that is inserted into the contract or business agreement. The decision is usually
binding. In Qatar v Bahrain, a case concerning Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, the ICJ stated that arbitration usually refers to
the settlement of disputes between the states by judges of their own choice, and on the
basis of respect for law. The consent of parties is necessary to refer a dispute to
arbitration.

Arbitration is today most commonly used for the resolution of commercial disputes,
particularly in the context of international commercial transactions (International
Commercial Arbitration). It is also used in some countries to resolve other types of
disputes, such as labour disputes, consumer disputes, and for the resolution of certain
disputes between states and between investors and states.

As the number of international disputes mushrooms, so too does the use of arbitration
to resolve them. There are essentially two kinds of arbitration, ad hoc and institutional.
An institutional arbitration is one that is entrusted to one of the major arbitration
institutions to handle, while an ad hoc one is conducted independently without such an
organization and according to the rules specified by the parties and their attorneys.

One reason for the growth of arbitration is that there are now many arbitral bodies, and
parties can select one that is best suited to their needs. Some organizations welcome
any type of dispute. In contrast, there are organizations that specialize in particular
types of disputes, such as those involving investments (e.g. ICSID) or that focus on a
particular topic, such as intellectual property disputes (e.g. WIPO Arbitration and
Mediation Center) etc.
6

b) International Court of Justice (ICJ):

After the dissolution of the Permanent Court of International Justice which was
created in 1922, the ICJ was established in June 1945 by the Charter of the United
Nations and began work in April 1946, although this status does not give it priority as a
forum of dispute settlement and the Court’s jurisdiction is based on the consent of all
parties to each dispute.10 The Court’s general mandate is to settle, in accordance with
international law, legal disputes submitted to it by states (contentious disputes) and to
give advisory opinions on legal questions referred to it by authorised United Nations
organs and specialised agencies (advisory proceedings).

The ICJ and arbitration are the two judicial modes for the settlement of disputes at
present. The ICJ and arbitration are similar to each other in the sense that consent of
the parties is essential before a case us heard by the Court or by a Tribunal. Further the
judgement of the Court and the award of the tribunal are binding on the parties. But
there are few differences between these two. Firstly, the ICJ is a permanent court and is
governed by a Statue whereas the Permanent Court of Arbitration is neither a Court nor
it is permanent in nature. Secondly, the arbitrator is appointed to settle the disputes by
the parties themselves but the judges of the ICJ are elected by the General Assembly
and the Security Council of the United Nations.

When deciding cases, the Court applies international law as summarised in Article 38
of the ICJ Statute, which provides that in arriving at its decisions the Court shall apply
international conventions, international custom, and the "general principles of law
recognized by civilized nations". It may also refer to academic writing (the teachings of
the most highly qualified publicists of the various nations) and previous judicial
decisions to help interpret the law, although the Court is not formally bound by its
previous decisions under the doctrine of stare decisis. Article 59 makes clear that the
common law notion of precedent or stare decisis does not apply to the decisions of the
ICJ. The Court's decision binds only the parties to that particular controversy. Under
38(1)(d), however, the Court may consider its own previous decisions.

10
Birnie, Boyle and Redgwell C, International Law and the Environment, Oxford Publication, 250.
7

Compulsive Means of Settlement:


a) Retortion/ Retaliation:

Retaliation is used by a nation state or group of states when they are victims of a legal
unfriendly act of another state. This method must respect prior established rules, such
as reciprocity or proportionality, i.e. the act of retaliation must have the same subject or
the same size as the original damage made. This type of “interaction” is without
prejudice to international law, as long as it doesn’t degenerate into inhumane treatment
of individuals or any kind of illegal action. Thus, a state cannot decide to act illegally
against a foreign ambassador on its territory, because his counterpart had received the
same mistreatment (other examples can be the destruction of private property or
arbitrary sentencing to death of prisoners of war or convicted foreigners). The
punishment of such acts is governed by international law, and if a member commits
any offense of this kind, in response to similar action by another state, both states are
legally responsible for their actions.

b) Reprisals:
Oppenheim defines reprisals as, “Reprisals are such injurious and otherwise illegal acts
of one State against another as are exceptionally permitted for the purpose of
compelling the latter to consent to a satisfactory settlement of a difference created by
its own international delinquency.”11

The major difference between reprisal and retortion is that while in retortion only that
action can be taken which is permitted under the international law and depends upon
the direction and will of the States but in reprisal such actions can also be taken which
may otherwise be illegal but are allowed as reprisal in certain special circumstances.
After the creation of the United Nations, the principles of non use of force and of
peaceful settlement of disputes have generally become a part of jus cogens, and
therefore, the use of force in reprisals has been prohibited.

11
L. Oppenheim, International Law, Vol. II, Ed. 7th, 136.
8

c) Embargo:

Embargo in international law means detention of ships in port. An embargo is a


government prohibition against the export or import of all or certain products to a
particular country for economic or political reasons. Historically, embargoes and
blockades have been used to advance the interests of various European nation states,
particularly in the area of international trade during the ascendancy of those states
under absolute monarchies. In the nineteenth century, with the rise of various shades of
political liberalism, embargoes have been justified increasingly as retribution for the
infringement of contracts or obligations under international law. And, in the present
day, they have been justified as a means of discouraging the systematic violation by
some nations of the civil and human rights of their own nationals. The purpose of such
embargo is to compel another State to settle the dispute.

Embargo may be used by a State, individually or collectively under the authority of the
United Nations. A State should not endanger international peace and security when it
applies embargo on another state otherwise it would render the embargo illegal.

d) Pacific Blockade:

Pacific Blockade means blockade during peace time. A blockade is when the coast of a
state is blocked by another state for the purpose of preventing coming and going of sea
vessels of all nations by using warships and other means in order to exercise economic
and political pressure on that state to compel that state to settle the disputes between
the two states. The requirements of a pacific blockade are similar to a blockade. The
blockade should be declared and notified and the blockade must be effective.

Blockade has been regarded as one of the coercive means of the settlement of disputes
as it consists in temporary suspension of commerce of the offending State by closing
off access to its coasts.
9

e) Intervention:

The interference of one state in the affairs of another state is termed as intervention.
This violates the principle of State sovereignty that every state is free to manage its
affairs internally as well as externally. Oppenheim defines it as, “a forcible or
dictatorial interference by a State in the affairs of another State calculated to impose
certain conduct or consequences on that other State.”12

Intervention may be directed against a single state or factions within it, or it may
involve interference with the interactions among a group of states. It may take the form
of military action or economic or political pressures. These pressures force states to act
in a manner prescribed or foreordained by the intervening state. Alternatively, the
intervening state may use its own agents to carry out the policies that it desires. States
yield because they fear military coercion or nonmilitary punitive actions or because
they cannot stop the intervening state's agents or activities.

12
L. Oppenheim, International Law, Vol. I, Ed. 9, 430, (1992).
10

Conclusion:
The most common and desirable solution for stopping a conflict to expand into a crisis
is the peaceful settlement of disputes, fundamental principle of the international law,
governed by The Charter of the United Nations. Preferable would be to intervene in the
most proximal point of acknowledging the existence of a dispute, because the
settlement can still occur under conditions of mutual respect and parties can still agree
on finding a “win-win” solution. The distal point in this scale of solving disputes
peacefully, with no imminent danger of violent demonstrations, is the transition from
unstable peace in conflicts. From that point onwards, negotiations are slightly rigid, the
parties no longer trust each other and soon peaceful settlement is to be entrusted to a
third party that can guarantee impartiality.

The settlement could be either physically seeking the ownership of the disputed subject
matter like a piece of the land, a water source, mines or quarries or through a treaty
imposed by the victorious power in a war of conquest. The situation changed with the
development of weapons of greater efficiency and power in the twentieth century. The
development of weapons of war ended in the form of World War I and II. The
destruction caused by the First and second world wars brought the comity of nations to
the forming of an international organization, the United Nations.

The methods of peaceful settlement of international disputes may include negotiation,


good‐offices, inquiry, medication, conciliation, arbitration, judicial settlement. The
methods of forcible settlement of international disputes may include retortion, reprisal,
embargo, pacific blockade, intervention and war. The charter of the United Nations has
entirely changed the earlier concepts of these forcible means of international disputes
settlement. The charter of the United Nations has put restrictions and narrowed down
the concept of each and every method of use of force for conflict resolution. Thus the
hypothesis that was taken in the project is proved to be right.
11

Bibliography:
Books:

1. Malcolm N. Shaw, International Law (6th Ed. Cambridge University Press,


2008).
2. Dr. H.O. Agarwal, International Law & Human Rights (20th Ed. Central Law
Publications 2014).
3. Dr. S.K. Kapoor, International Law & Human Rights (18th Ed. Central Law
Agency 2011).

Articles:

1. Ivan Bernier and Nathalie Latulippe, Conciliation as a Dispute Resolution


Method in the Cultural Sector, (Feb. 2, 2015),
http://www.diversiteculturelle.qc.ca/fileadmin/documents/pdf/document_reflexi
on_eng.pdf.
2. Ian Brownlie, The Peaceful Settlement of International Disputes in Practice,
Vol. 7 Issue 2, Pace Int. Law Rev. (1995).
3. Anne Peters, International Dispute Settlement: A Network of Cooperation
Duties, EJIL (2003).

Web Sources:

1. Oxford Dictionaries,
http://www.oxforddictionaries.com/definition/english/dispute (Accessed Feb. 1,
2015).
2. Dispute Settlement, Peace Palace Library,
http://www.peacepalacelibrary.nl/research-guides/settlement-of-international-
disputes/international-dispute-settlement/ (Accessed Feb 1, 2015).