International Law
Dr. Jyoti
Assistant Professor in
Department of Political Science
Means of Dispute Settlement in International
Law
• Article 2 para 3 of the United Nations Charter
provides that all members shall settle their
international disputes by peaceful means in
such a manner that international peace,
security, and Justice are not endangered.
Meaning and Definition of Disputes
There is no universally acceptable' precise and perfect definition of International
Dispute. In a broad sense, International dispute means a "disagreement on a point of law
or fact a conflict of legal views or of interest between the States." This disagreement
between the parties may arise either on legal(justifiable) or political grounds (non-
justifiable).
Legal Differences: According to Prof. Oppenheim, legal differences are those in which the
parties to the dispute base their respective claims and contentions on grounds recognized
by International Law. ( क़ानूनी मतभेद तब पैदा होते हैं जब देशों के बीच में किसी प्रकार का कोई दावा होता है जो किसी भूमि को लेकर या फिर किसी
और आधार पर भी हो सकता है.)
Political Differences: All other differences are usually referred to as political disputes or as
conflicts of Interests. ( राजनितिक मतभेद हितो के टकराव को लेकर हो सकते हैं जैसे शक्ति को ले कर संघर्ष. परन्तु इन
राजनितिक टकरावो का आधार भूमि पर दावा, व्यापर में मतभेद, शक्ति असंतुलन आदि भी हो सकता है.)
Political or legal differences depends more or less upon the attitude of the
States.it is, therefore, difficult to distinguish the dispute from legal to political.
Amicable or Peaceful Means:
• (1) Negotiation
• (2)Good Offices
• (3) Mediation
• (4) International Commission of Inquiry
• (5) Conciliation
• (6) Arbitration
• (7) Machinery of the United Nations Organization - i) General
Assembly ii) Security Council.
Negotiation
• When disputant States settle their disputes themselves by discussion or by
adjusting their differences, the procedure is called Negotiation. Negotiation
may be carried on by their Heads of the States or by their accredited
representatives or by diplomatic agents. It is the simplest form of settlement of
disputes. It helps the disputant State Parties to bring about necessary change
by mutual consent. The success of negotiation depends largely upon the
degree of acceptability of claims of one party by other and the spirit of
cooperation. But when the parties are unequal it is likely that the small power
may be subjected to the will of big power. Examples: a) India and Pakistan
Settled their outstanding differences in the Shimla Conference (1976).
b) India and Bangladesh Settled Farraka Barrage (gunfire) Issue through
Negotiation. (1977)
Good Offices
• When the Parties refuse to negotiate, or when
they fail to Negotiation, they may take the assistance of
a third party. The third party may be appointed by the
parties themselves or by the security council. The third
party may be a State or an Individual. To settle the
Kashmir dispute between India and Pakistan the Security
Council had appointed McNaughton in 1949, Mr. Dixon
in the year 1950, Graham in the year 1951 and Jarring in
the year 1957 as representative of United Nations.
Mediation
• Mediation is the conducting of negotiation between the
disputing States through the agency of the third party. In simple
words, when the third party participates in the discussion along
with the disputant States and also gives its own proposals or
suggestions in resolving the dispute, it is called as Mediation.
The Mediation presupposes the active participation of the third
State in Negotiations, but the mediator's suggestions have no
binding force and the parties are free to accept or reject or
modify them. For example, Soviet Union President Kosygin
mediated in the Dispute between India and Pakistan which
resulted in the conclusion of Tashkant agreement in 1966.
International Commission of Inquiry:
• An inquiry is also a method which is often resorted to for the
settlement of disputes. It may be noted that it is not an
independent method and is often applied along-with other
methods. The main objective of the inquiry is to make an
investigation of the relevant matters so as to establish facts
which may hold the ultimate solution of the problem. For
example, often inquiry Commissions are appointed in relation
to the settlement of border disputes. The commission clarifies
the facts after making inquiry into the relevant facts.
Conciliation (सुलह या समाधान करना)
When a dispute is referred to a Commission of persons to investigate the
basis of dispute and to make a report containing proposals for settlement
after finding out the facts, this process is known as conciliation. Such
proposals have no binding force on the parties to the dispute.
According to Hudson, "Conciliation is a process of formulating
proposals of settlement after an investigation of the facts and an effort to
Reconcile opposing contentions, the parties to the dispute being left free
to accept or reject the proposals formulated."
The term implies various methods adopted by the third party to
amicably settle the dispute between two or more States. It involves the
formulation of proposals for settlement after an investigation of the facts.
The dispute may be referred to a Commission for the favor of proposals to
the parties for the settlement.
Arbitration (पञ्च फै सला )
• Arbitration is the most important method of settling International
difference (disputes) by amicable means. According to Lawrence, "
Its value resides in its judicial or quasi-judicial character. When a
dispute is submitted to arbitration, the matter takes on the
semblance of a trial before a Court ". States are however under no
obligation to submit their dispute to arbitration unless they have
bound themselves beforehand by a Treaty. But once they have
referred the matter to arbitration, they disregard to the award
means a breach of promise and the award is final, unless it is
vitiated by fraud, collusion and the like, or the arbitrator, as
pointed out above, has exceeded his powers.
UN in Dispute settlement
• According to Article 2 para, 3 of the United Nations General Assembly and the Security
Council have been empowered to discharge certain functions in this regard.
i) General Assembly: General assembly may make a recommendation after the discussion
to the disputant parties under Article 14 of The United Nations Charter. Thus the assembly has
a general power for the peaceful settlement of the dispute. The general assembly has been
insisting from time to time, to the disputant parties to settle their disputes peacefully.
ii) Security Council: Under Article 24 para 1 of the United Nations Charter, maintenance of
International Peace and Security is the responsibility of Security Council. Charter provides
various modes by which the council settles the dispute which is likely to endanger international
peace and security. Security Council can take the following Action to settle disputes.
(a) Investigation of the Disputes
(b) recommendation for appropriate procedure or methods of adjustment
(c) recommendation for the terms of the settlement
Compulsive means of settlement of International disputes
( Retorsion )
• The word retorsion means retaliation. It is base, to the certain
extent, on the principle of tit for tat. But the affected State can
take only those means or measures as retorsion which are
otherwise permitted under International Law. For example, in
retorsion diplomatic relations may be ended. privileges of
diplomatic agents may be withdrawn and economic facilities
may be stopped.
The purpose of Retorsion is to take retaliation but those
actions cannot legitimately be taken which are likely to
endanger international peace and security. Such actions if
taken shall be illegal
Reprisal
• The term reprisal is a wide one and covers all coercive measures adopted by a State
for the purpose of obtaining redress. Lawrence defines reprisals as the mode of
putting stress upon an offering state which are of a violent nature, though they fall
short of actual war. He divides reprisals into positive, negative, special and general.
•
It is generally believed that the right of reprisal can be validly used only
when the other State has committed an International crime or violation any rule of
International Law. Moreover, the Reprisal will be justified only when its object is to
settle the International disputes. otherwise, it (Reprisal) will be treated illegal. so it
can say that -
a) Reprisals are illegal unless they are based on a previous act contrary to
International Law.
b) There must be certain proportion between the offense and reprisal,
c) Reprisal can be justified only when the force is used for necessary.
Embargo and Blockade
• Embargo means the provisional seizure or detention
of the merchant's ships or property of the offending
State in the ports of the State that seeks redress.
• Specific blockade consists of the temporary
suspension of the commerce of an offending or
recalcitrant State by the closing of access to its coats,
or some particular part of its coats, but without
recourse to other hostile measures, save in so far as
may be necessary to enforce the restriction.
Intervention and War
• Intervention is another compulsive means of settling disputes between States
short of war. According to Professor Oppenheim, it is the dictatorial interference by
a State in the affairs of another State for the purpose of maintaining or altering the
actual condition of things.
Profesor Winfield has Classified intervention in three categories :
1. Internal Intervention
2. External Intervention
3. Punitive (दण्डात्मक) Intervention
• War-- When a dispute between a State is not settled even by coercive/ compulsive
mean, they may resort to war. War is an ultimate means of Settling International
Disputes. By resorting a war a State seek to impose their will on each other.
