Settlements of International Disputes

SETTLEMENTS OF INTERNATIONAL DISPUTES

CHAPTER 1

1.0 PRINCIPLES OF PEACEFUL SETTLEMENT OF DISPUTES BETWEEN STATES

Article 2, paragraph 3 of the UN Charter requires that:’’ All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. The UN General Assembly, in adopting its 1982 Manila Declaration on the Peaceful Settlement of Disputes, emphasized the need to exert utmost efforts in order to settlement any conflicts and disputes between States exclusively by peaceful means’’ and that’’ the question of the peaceful settlement of disputes should represent one of the concerns for States and for the United Nations’’. In age of nuclear weapons, the importance of the principle of peaceful settlement of international disputes is apparent.

1.1 WHAT IS AN INTERNATIONAL DISPUTE?

In the Mavromattes case, the PCIJ defined a dispute as ‘’a disagreement on a point of law or fact, a conflict of legal views or interests between two persons’’ (Greece v U.K), J.G. Merrills suggests that:

A dispute may be defined as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter claim or denial by another. In the broadest sense, an international dispute can be said to exist whenever such a disagreement involves governments, institutions, juristic persons (corporation) or private individuals in different parts of the World. However, the disputes with which the present work is primarily concerned are those in which the parties are two or more of the hundred and sixty or so sovereign states into which the world is currently divided.

The significant elements of the concept of ‘’dispute’’ is that:

1) The disagreement must be specific. That is, it must have a reasonably well defined subject matter, so that one can say what the dispute, at least nominally, is ‘’about’’.
2) The disagreement must involve conflicting claims or assertions. That is, one party must actually assert or manifest what it wants or believes itself entitled to with respect to the other, and the other party must manifest its refusal or its conflicting claim. Such a manifestation may be through statements, diplomatic notes, specific actions or otherwise.

Thus, a dispute is something more than general attitudes of mutual dislike or hostility. Two nations may have general feelings of antagonism towards each other, yet not have any specific or particular disagreement one identify as a dispute; conversely, two nations may be on friendly terms, yet have a particular disagreement which can be considered a dispute.

The concept of ‘’ dispute’’ is useful for several reasons. First, it serves to distinguish a disagreement which has reached a level of active assertion and intensity potentially threatening the relations between the parties or the social order more generally, from lower level and less threatening types of complaints, grievances or disagreements. Secondly, it serves as a way of indicating that a disagreement has reached a point of sufficient definitions and concreteness where the use of certain established methods of dispute resolution may be appropriate. That is, from the perspective of the international legal system, an international dispute can be viewed as disagreement between or among nations which international dispute settlement techniques, such as adjudication, may be useful in resolving. Indeed, the jurisdiction of international judicial institutions, such as the International Court of Justice, typically extends only cases only cases involving international ‘’disputes’’.

1.2 DO WE NEED TO SETTLE INTERNATIONAL DISPUTES?

Disputes are inevitable in any society; and more powerful nations may seek simply to impose its view or interests on the other party through coercion or force. A weaker nation may also try to exert moral influence on its opponent that its claim is justified, legitimate or right. This seeks to mobilize support for the demand within the nation making it and of appealing for support of the claim by other nations and the international community and bringing moral pressure.

Disputes are a by-product of energetic social interaction and not in themselves necessarily a ‘’bad thing’’. Disputes that don’t pose a big threat can be left to work themselves out, either through informal and routine level negotiations between parties by fading away over time, or otherwise.

Thus, every political system must find ways to identify and try to deal with disputes that do pose significant social risks. Typically, either party acting on its own may seek state intervention, or the state under certain circumstances may intervene at its own discretion. In most cases, third party or community intervention is considered appropriate or permissible only when both or all parties to the disputes have consented, or where the dispute has escalated to a point threatening general international peace and security.

There are some cases where even a significant dispute is best left unresolved if it is likely to exacerbate the sense or grievance of one or another party and increase tensions, it may be wisest simply to leave the dispute to simmer, hoping that someday, somehow, it will go away. The success of the Antarctic Treaty System, for example, it is based largely on the parties’ decision to bypass or ‘’freeze’’ the very difficult and potentially troublesome issue of dispute claims to territory in Antarctica (Rebuilder, 1981).

The timing of dispute settlement efforts may be also crucial; such efforts, or use of a particular technique, may be helpful at one stage of a dispute but not at another. Diplomats and international lawyers need to learn more about when, as well as how, to try to settlement international disputes.

1.3 DO STATES HAVE AN OBLIGATION TO SETTLE THEIR DISPUTES PEACEFULLY?

The prevailing view is that, in the absence of special agreement, states are under no international legal obligations to settle, or even try to settle, their disputes. It is well established in particular that, absent special agreement, they have no obligation to submit their disputes to third parties for impartial settlement.

However, those states that are parties to the UN Charter (which means, in effect, almost all of the world’s nations) have assumed at least certain broad treaty obligations in this respect. Article 1(1) of the Charter provides that the first of the purposes of the United Nations organization shall be:

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.

Article 2(3) of the Charter provides:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Article 33 of the Charter provides:

1. The parties to any dispute, the continuance of which is likely to endanger their maintenance of international peace and security, shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.

It may be noted that, while Article 2(3) establishes an essentially negative obligation- that Member nations not settle disputes by means that might endanger international peace, Article 33 affirmatively requires that Member nations actively seek to settle by peaceful means any dispute the continuance of which is likely to endanger international peace. It is well established that Article 33 does not purport to establish in an exclusive list of such peaceful means or any particular order in which they should be used.

Chapter VI (Articles 33-37) of the Charter, entitled ‘’ Pacific Settlement of Disputes’’ establishes further obligations of the parties and various dispute settlement powers of the Security Council. Under Article 35, any state may bring any dispute to the attention of the Security Council or the General Assembly. Under Article 36, the SC may, at any stage of a dispute the continuance of which is likely to endanger the maintenance of international peace or security, recommend appropriate procedures or methods of adjustments; in doing so, the SC should take into consideration that legal disputes should be as a general rule be referred by the parties to the International Court of Justice. Article 37 provides that, should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in Article 33, they shall refer it to SC which, if it deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. Article 38 provides that:

Without prejudice to the provisions of Article 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to pacific settlement of the dispute.

Other articles of the Charter authorize the General Assembly and Secretary General to make recommendations or take certain action with respect to disputes, and encourage the development of pacific settlement through regional agreements.

It apparent that the UN Charter establishes international obligations of the parties and interventory powers of the organization principally with respect to a particular category of disputes- those whose continuance ‘’ is likely to endanger the maintenance of international peace and security’’. It is less clear whether Member nations are also under an obligation to seek to settle all disputes- even those which are not likely to threaten international peace and security.

The obligation that any settlement of disputes must be accompanied peacefully is, of course, buttressed by the prohibition on the use of force contained in Article 2(4) of the Charter and by the authority of the Security Council under Chapter VII of the Charter to intervene when it determines that any situation or dispute involves a threat to peace, breach of peace, or act of aggression.

Article 34 expressly authorizes the Council to investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

In brief, it is open to nations to enter international agreements which each other which includes ‘’compromissory clauses’’ or other obligations to settle their disputes peacefully, and a great member of such agreements are in effect. Frequently, such agreements will not only include general obligations of peaceful settlement, but will require, recommend, or provide procedures for the use of specific dispute settlement techniques, such as negotiation, conciliation, arbitration or adjudication.

1.4 WHAT KINDS OF DISPUTES ARE THERE?

Disputes can be roughly classified in several ways:

1) Subject matter- as to: territorial claims, jurisdiction, diplomatic protection, treaty obligations, the law of the sea, etc. it may involve a particular subject matter such as taxation, taking of property, fishing rights, interference with aircrafts, pollution and so on.
2) Character of the dispute, that is, the facts of what happened; what the law is; what the law should be; and the terms of some particular arrangement or allocation such as quotas under a commodity agreement or fisheries agreement; who should decide any of the above questions, and what by what procedures.
3) The nature of the relations between or among the parties.
4) Importance of the dispute to the parties in terms of its national interests.
5) Effect of the dispute on other nations or the international community.
6) Presumed appropriateness of judicial settlement. That is, some disputes have inherent characteristics that make them either particularly appropriate or inappropriate for the use of adjudication as dispute settlement techniques.

Hence, at least in theory, all international disputes seem to be ‘’ justifiable’’. In deed as Professor Schachter points out, the International Court has never yet rejected a case on the ground that it involved non-legal issues or that it could more appropriately be resolved by a political organ of the United Nations.

1.5 DO DISPUTES FOLLOW A TYPICAL PATTERN?

1) How do international dispute arise? What particular kinds of situations or international relationships tend to breed disputes? What causes some experiences or differences, but not others, to be perceived as grievances, and what is the process by which such grievances become gradually articulated into claims and then disputes? Presumably, a nation must (1) perceive itself to be injured; (2) decide some other nation is responsible;(3) form a sense of entitlement to some kind of redress; and (4) formulate a specific claim which is rejected by other nations.
2) What happens after a dispute crisis? Are there typical strategies and patterns of claim and response which each nation party to a dispute is likely to pursue? What leads nations to try one kind of technique rather than another in their effort to prevail or to resolve the dispute? What do they invoke norms to try to legitimate their positions? Are the parties’ perceptions of the dispute likely to be transformed during the period of negotiations or attempted settlement, and if so, in ways more likely to help or hurt chances of settlement? What is the effect of internal public opinion or pressure groups on the flexibility of government officials in compromising or settling disputes? Are the strategies which nations ought to pursue in dispute situations, either in their own or the broader international community interests? Do particular nations, or a particular group of nations, tend to evolve special dispute management systems- that is, a unique set of practices, procedures, techniques and institutions to deal with particular quarrels?
3) What is the effect of third parties in dispute resolution process? Under what circumstances are third parties likely to become involved in the dispute either as an audience , as supporters of one or the other party, as interveners, or simply as neutral helpers in seeking resolution of the dispute?
4) What is the range of outcomes for different kinds of disputes? Who is likely to come out ahead and why? What happens after the dispute is settled, with respect to both the problem that was the particular subject of the dispute and the more general relations of the parties? What are the precedential effects of different kinds of outcomes? Are there certain kinds of settlements likely to encourage similar claims by other grievants against a party that has made concessions or similarly situated other states? Do they tend to lead to similar settlements in similar or analogous disputes? Do they tend to lead to efforts by the other parties or other states to avoid similar kinds of disputes in the future?

CHAPTER 2 SOURCES OF LAW FOR INTERNATIONAL DISPUTE SETTLEMENT

2.1 Charter of the United Nations

This charter provides in its chapter 1 (Purposes and Principles) that the purposes of the UN are … To maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the place, and for the suppression of acts of aggression or other breaches of the peace, and to bring about 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 peace”.

The charter also provides in the same chapter that the organization and its members, in pursuit of the purposes stated in article 1, shall act in accordance with, amongst others, the following principles: “All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not entangled. It furthermore, in chapter VI (Pacific Settlement of disputes) states that:-

“The parties to any dispute, the continuance of which is likely to enlarge the maintenance of international peace and security, shall first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice” (Article 33, para 1).

2.2 Declaration and Resolutions of the General Assembly

The principle of the peaceful settlement of disputes has been reaffirmed in a matter of General Assembly resolution, including resolutions 2627 (XXV) of 24 October, 1970, 2734 (XXV) of 16th December, 1970 and 40/9 of 8th November, 1985. It is dealt comprehensively in the Declaration on Principles of International Law concerning Friendly Relations and cooperation among states in accordance with the charter of the United Nations (resolution 2625 XXV, annex), in the section entitled “The principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered”, as well as in the Marile Declaration on the Peaceful Settlement of International Disputes (resolution 37/10, annex), in the Declaration on the Prevention and Removal of Disputes and situations which may threaten international peace and security and on the Role of the United Nations in this field (resolution 43/51, annex) and in the Declaration on Fact Finding by the United nations in the Field of maintenance of International Peace and Security (resolution 46/59, annex).

2.3 Corollary and Related

The principle of the peaceful settlement of international disputes is linked to various other principles of international law. Under the Declaration on Friendly Relations, the principles dealt with in the Declaration – namely 1. the principle that states shall refrain in their international relations from the threat or use of fore against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations; the principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security are not endeavored; the principle concerning the duty not to intervene in matters within the domestic jurisdiction of any state, in accordance with the charter, the duty of states to cooperate with one another in accordance with the charter; the principles of equal rights and self-determination of people; the principle of foreign equality of states; and the principle that states shall fulfill in good faith the obligations assumed by them in accordance with the charter, the duty of states to cooperate with one another in accordance with the charter; the principles of equal rights and self-determination of peoples; the principle of that states shall fulfill in good faith the obligations assumed y them in accordance with the charter are interrelated in their interpretation and application and each principle should be construed in the context of other principles.

The Final Act of the conference on security and cooperation in Europe, adopted at Helsinki on 1st August, 1975 states that all the principles set forth in the Declaration on principles considering relations between participating states i.e. sovereign equality, respect for the rights inherent in sovereignty; refraining from the threat or list of fore; inviolability of frontiers; territorial integrity of states; peaceful settlements by disputes; non interventions in internal affairs; respect for human rights and fundamental freedom, including the freedom of thought, conscience, religion or belief; equal rights and self-determination of people; cooperation among states; and fulfillment in good faith of obligations under international law are of primary significance and accordingly they will be equally and unreservedly applied, each of them being interpreted taking into account the others.

The links between the principle of the peaceful settlement of disputes and other specific principles of international law are highlighted both in the friendly relations declaration and in the Manila Declaration, as follows:-

1. The principle of non-use of force in international relations.
2. The principles of non-intervention in the internal affairs or external affairs of states.
3. Principles of equal rights and self-determination of people.
4. Principles of the sovereign equality of states.
5. Principles of international law concerning the sovereignty, independence and territorial integrity of states.
6. Good faith in international relations.
7. Principles of justice and international law.

2.4 Free Choice of Means

This is laid down in Article 33 para 1 of the charter of the United Nations and reiterated in the fifth paragraph of the relevant section of the Friendly Relations Declaration and in section 1, paras 3 and 10, of the manila Declaration. Both the Friendly Relations and the Manila Declaration make it clear that recourse to, or acceptance of a settlement procedure freely agreed to with regard to existing or future disputes shall not be regarded as incompatible with the sovereign equality of states.

The means listed in Article 33 of the charter are:-

- Negotiation;
- Mediation;
- Conciliation;
- Arbitration;
- Judicial settlement;
- Report to regional arrangements or agencies;
- Other peaceful means of the parties, own choice.

Under the Friendly Relations Declarations and the Manila Declaration it is for the parties to agree on such peaceful means as may be appropriate to the circumstances and the nature of their disputes.

CHAPTER 3 THE CONCEPT OF INTERNATIONAL DISPUTES

3.1 Definitions of the Concept

There is up to now, no treaty rule defining what an international dispute is. The Black’s Law Dictionary circumscribes “disputes” as a “conflict or controversy, especially one that has given rise to a particular law suit” (Garner, 1999, as cited in Schreur, 2008, p.1). In the Mavromattes case, the PCLJ defined a dispute as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons (Bilder, 1986, P.3). In its advisory opinion on the interpretation of peace treaties between Bulgaria, Hungary and Roman in which two sides held clearly opposite views concerning the questions of performance or non-performance of certain treaty obligations” (Schreuer, 2008, P.2). Merrills (1998, as cited in Builder, 1986) makes the definitions clearer and more specific. According to him, a dispute may be defined as specific disagreement concerning a matter of fact, a law or policy in which a claim refusal, counter claim or denial by another. Schreuer (2008) notes that the existence of a dispute pre-supposes a certain degree of communication between the parties. The matter must have been taken up with the other party which must have opposed the claimant’s position, if only indirectly.

An international dispute can be said to exist whenever such a disagreement involves governments, institutions, jurist person or corporations or private individuals in different parts of the world., More specifically today’s definition of an international dispute is that of a dispute in which at least one party is a state or an international organization, the other(s) being another state, an international organization, a natural or a legal person from a different state.

The disagreement must be specific. This means that it must have a reasonably defined subject matter, so that one can say, at least nominally, what the dispute is about. In addition, the disagreement must involve conflicting claims or assertions. This means that one party must assert or manifest what it wants or believes it is entitled to with respect to the other party, which the other party has to manifest its refusal or its conflicting claims. This manifestation may be through statements, diplomatic notes, specific actions or otherwise (Bilder, 1986).

A dispute is, therefore, something more than general attitudes of dislikes or hostility. Two nations may have general feelings of antagonism against each other and yet not have any specific or particular disagreement one may identify as a dispute; conversely, two nations may be at friendly terms, yet have a particular disagreement which can be considered a dispute.

[...]