Means of Settlement of International Disputes Under Human Rights Law

 

Synopsis

 

1. Introduction
2. Meaning
3. Means of Settlement
4. Amicable Means

• Negotiation
• Good Offices
• Mediation
• Conciliation
• International Commission of Enquiry
• By United Nations

1. Coercive Means

• Retorsion
• Reprisal
• Embargo
• Pacific Blockade
• Intervention
• War

4. War and UN Charter
5. Conclusion

Introduction

The basic purpose of United Nations is to maintain peace and security internationally and shall take measures so that breach of peace could be suppressed. For achievement of this purpose, UN shall take preventive measures to remove threat or breach of peace and acts of aggression. It has been provided in the UN Charter that the international disputes between the members shall be settled by peaceful means and such settlement shall not endanger International peace, security and justice.

Meaning of International Dispute

When the states disagree on a point of law or fact or there is a conflict of legal views or interest between them, it will give rise to International Dispute. Oppenheim defines legal differences as the differences on which parties base their claims and contentions on the grounds which are recognized by International Law.

The nature of the dispute i.e. legal or political depends upon attitude of States. When a question arises as to whether a dispute is legal or political, it would be settled by the International Court of Justice under Article 36 Para 6 of ICJ Statute.

 

Means of Settlement-

Legal disputes between the states can be settled through two means:

• Amicable Means of Settlement: Amicable means, also known as peaceful means of settlement are recognized principles of UN Charter as Article 2 of the charter provides that all members must settle their disputes through peaceful means. These means are as follows:

 

 

1. Negotiation: When the parties to a dispute settle disputes by discussion or adjustment of their differences by the Head of the States or their diplomatic representatives, the procedure is called negotiation. The General Assembly have laid down certain guidelines in regard to settlement through negotiation:

• It should be conducted in good faith.
• States must consider importance of negotiation.
• The purpose of negotiation shall be in accordance to International Law.
• States must follow framework agreed by parties mutually for negotiation.
• Maintaining constructive atmosphere during negotiation.
• Facilitation of conclusion of negotiation by being focused on the main objectives.
• States must continue to work for solutions which can be accepted by both the parties.

 

1. Good Offices: The appointment of a third party to settle differences between the parties is knows as settlement through good offices as the third party arranges a meeting between the parties for them to settles their disputes. The third party appointed merely offers its good offices to the disputant parties after which the third party does not have to perform any duties. For Example, the Security Council has appointed McNaughton, Mr. Dixon, Graham and Jarring in 1949, 1950, 1951 and 1957 respectively for settlement of dispute between India and Pakistan.

 

 

1. Mediation: In Mediation, the disputant parties along with the third party discuss and propose suggestions for resolution of disputes. Such third party is known as mediator and he shall be impartial and neutral. The mediator also has power to sign a treaty which embodies such settlement. Ex: In 1966, the President of Soviet Union, Kosygin, was the mediator in the dispute between India and Pakistan which led to an agreement between the parties i.e. Tashkant Agreement.

 

1. Conciliation: A group of persons are commissioned to investigate the basis of dispute and propose suggestions for resolving the dispute between the parties. Settlement of disputes through such process is known as Conciliation. The dispute is referred to the group of persons for finding out the facts and suggesting terms for resolution of dispute. Conciliation is different from Arbitration as the parties in conciliation can disregard the proposals of commission whereas in arbitration, the award is binding upon the parties to the dispute.

 

1. International Commission of Enquiry: The purpose of commissioning an enquiry is to investigate the matters between the parties and resort the dispute in accordance with the results of enquiry. The enquiry is not an independent method and are applied with other methods. The major purpose of holding an enquiry is to find the facts which will lead to the solutions of the problem arisen between the parties. The Enquiry Commission is generally appointed for solving border disputes between states.

 

1. By United Nations: As per Article 2 Para 3 of the UN Charter, General Assembly and Security Council are empowered to settle disputes between the parties:
2. General Assembly: According to Article 14 of the Charter, the General Assembly has the power to discuss the dispute with the disputant parties and make recommendation for a peaceful settlement of disputes. General Assembly can maintain International Peace and Security by initiating discussions, making recommendations and taking collective measures.
3. Security Council: As per Article 24, Para 1 of the UN Charter, Security Council has a primary responsibility of maintaining international peace and security. The Security Council can settle the disputes by calling upon parties to settle the dispute amicably, investigating the dispute, recommending procedures for adjustment and terms of settlement.

 

• Coercive Means of Settlement: The coercive means, also known as compulsive means involves force on the state to settle disputes, which are:

 

1. Retorsion: Retorsion means retaliation. If a state behaves discourteously with other state, the affected state has a right to settle dispute through retorsion. Provided such means shall be approved under International Law. The principle applicable in this means is that of “tit for tat.” But it shall not effect international peace and security.

 

1. Reprisals: In Reprisal, the affected state can forfeit the property and arrest the citizens of the offended state. The basic purpose of reprisal is to force the offending state to stop the wrong doing. The right to reprisal is used in the cases where state commits an International crime or violates International Law rules. Therefore, reprisals are not legal unless they are based on an act that is against International Law and it can be justified if the force is used because it is necessary.

 

1. Embargo: Embargo is also a compulsive means of settlement in which the affected state becomes entitled to obstruct transportation of ships within its territory, of the states which has violated International Law.

 

1. Pacific Blockade: Pacific Blockade involves cutting ingression and egression which means the ships are not allowed to go out or come in. If any state is not ready to settle an international dispute, then all the other states will blockade their ports and trade and commerce would become impossible for such state. This method can be used by the states that have strong naval forces.

 

1. Intervention: This method of resolving disputes is considered as a drastic means as it involves compelling a state to settle the international dispute. Oppenheim has defined Intervention as “a dictatorial interference by a state in the affair of another state for maintaining or altering the actual condition of things.” The grounds for Intervention include self-defense, treaty enforcement, balancing power, humanitarian issues, prevention of illegal intervention, intervention in civil war, protection of person and property, collective intervention and maintaining International Law.

 

1. War: War is said to be an ultimate means of settling international disputes. A war is the last resort to settle disputes between states through which states impose their will on each other. The war is said to be started as and when it is declared by any of the states to the dispute. International Law doesn’t recognize war as an illegal means of settlement but prevents its happening through various provisions covered under UN Charter. Therefore, it is implied by the provisions of the UN Charter that resort to war for settlement of disputes is forbidden and prohibition on use of force is now a part of International Law.

 

War and UN Charter

The UN Charter prevents the happening of the war to such an extent that the Preamble of the Charter states that “We the peoples of United Nations determined to save succeeding generations from the scourges of war.” The UN Charter has provided the following provisions in order to fulfill the basic purpose of its existence i.e. maintaining international peace and security which becomes inevitable looking at the following provisions:

• Article 2 Para 4 provides that members shall not use force against the territorial integrity or political independence of any state in a manner which is inconsistent with the UN Charter.
• Article 2 Para 3 says that the settlement of the disputes between states shall be done by peaceful means.
• Article 39 lay down that it is the duty of Security Council to determine that there is a threat to peace, breach of peace or any act of aggression has been done and must recommend and decide measures to maintain peace and security in accordance with Article 41 and 42 of the Charter.

The decisions taken by the Security Council are binding on the member states of the United Nations as they agree to accept and carry the decisions of Security Council according to the provisions of UN Charter.

Conclusion

From the above discussion on settlement of International disputes, we have gathered a knowledge that disputes between states on point of law or fact, conflict of legal views or interest between the states are known as International Disputes. The International Law provides various amicable and coercive means and methods for settlement of these disputes. The UN charter do not specifically prohibits war but has indirectly provided many provisions relating to not using force for settlement so that the generations can be saved from the scourges of war which our previous generations have suffered.