Mechanism of International

Disputes Settlement
BY: SHRUTI SINGH
  In the international law, there are two grounds on which a
disagreement can arise between two parties.
 They are political or legal.
 The distinction is purely subjective.
 Such distinction is important as the procedure for settlement of

Nature of a disputes as laid down in International Law deals only with the
legal disputes.
dispute  The International Law ‘dispute’ must be taken in a restricted
sense and not concern all forms of disputes but only legal
disputes.
 In International Law, there have been two methods devised for
settling legal disputes- amicable or pacific means of settlement,
and coercive or compulsive means of settlement
  In Nicaragua v. Honduras, a case concerning Border and
Transborder Armed Action, the court clearly stated that it is
only concerned with the legal aspects of disputes. If a case so
arises involving both political and legal aspects, the court
cannot concern itself merely with the political aspect.
 In an advisory opinion given in the
Legality of the Threat or Use of Nuclear Weapons that the
Conti. presence of a political aspect along with the legal aspect does
not deprive the case of its a legal question. However, when a
question arises whether the disputes of the State are legal or
not, then such a question is solved in accordance with Article
36, para 6 of the Statute, that says the matter shall be settled by
the decision of the court.
  According to Philippe Sands and Pierre Klein,
 Divided into two categories

Amicable/pacific 1. Diplomatic means, in which the parties keep control over

the settlement such as negotiation, consultation, mediation,
Means conciliation or inquiry –
2. Legal means, in which the settlement is legally binding for
the parties – such as arbitration and judicial mechanisms.
  The Hague Convention, 1899 and 1907 for the Peaceful Settlement of
disputes,
 Article 2 para 3 of the UN Charter provides that

Amicable/  all international disputes must be settled by the member by peaceful

pacific Means means while maintaining international peace, security, and ensuring
justice is not endangered.
 The UN Charter under Article 33, Para 1
  Divided into two Judicial and Extra-Judicial Peaceful Means
 In the judicial settlement, a dispute is settled by means
referring the case to adjudication also known as legal means.
 In the extra-judicial settlement, a dispute is settled by means of
an agreement between the disputant parties.
 This method is also known as the political means or diplomatic
Pacific Means measures.

of Settlement  Judicial settlement is the process of solving a dispute by the

‘international tribunal’ in accordance with the rules set by the
International Law. A tribunal acquires an international status
because of its jurisdiction.
 Arbitration and settlement of disputes by International Law
have become two very important modes of settlement of
disputes today.
  Article 33
 “1. The parties to any dispute, the continuance of which is
Chapter VI — likely to endanger the maintenance of international peace and
security, shall, first of all, seek a solution by negotiation,
Pacific Settlement enquiry, mediation, conciliation, arbitration, judicial settlement,
of Disputes 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 dispute by such means.
  Negotiation: This is regarded as the oldest and the simplest
form of settling disputes. When the disputant parties settle the
dispute themselves by discussion or by adjusting the

Modes of disagreement, the process is called a negotiation.

 Good office: It come into picture when parties are not willing
Peaceful to go for the negotiation method or they fail to reach a state of

settlement settlement through a healthy negotiation. A third person assists

them in resolving their legal matters. Such a third person may
either be appointed by the parties themselves or by the Security
Council.
  MEDIATION The third-party involved is known as the
mediator. The mediator is always expected to be just and
impartial. In the process of mediation, the mediator participates
in the discussion, gives his views and suggestions in resolving
the dispute. The mediator is usually known to settle the

Modes of disputes as he may even help in signing the treaty embodying

the settlement that is reached.
Peaceful  Conciliation The process where a Commission or a Committee
settlement is appointed and the dispute to find out about the facts and then
to write a report for the settlement of the dispute, is called
conciliation. An effort is made for a peaceful compromise, to
sign an agreement but important to note that the proposals
made by the commission are never binding on the parties to the
dispute.
  Inquiry
 The term ‘inquiry’ suggests that it is an act of asking for
information. Similarly, for the settlement of disputes in
International Law, a Commission is to be appointed, consisting
Modes of of honest and impartial investigators, so that they can verify the
facts of the issue.
Peaceful  The sole function of the Commission is known to be the
settlement ascertainment of issues. This procedure for the settlement of
international disputes was born at the Hague Conference 1899.
 It was said that the States who were not willing to end their
disputes by agreement might use the process of inquiry
  Arbitration is the process of using the help, advice and recommendation of a
Judicial
third partySettlement
called arbitrator to settle disputes. The International Law
Commission defines it as ‘a procedure for the settlement of disputes between
states by a binding award on the basis of law and as a result of a voluntarily
accepted undertaking’. The International Court of Justice in the case of Qatar v.
Bahrain, stated that the word arbitration for the purpose of international law,
usually refers to ‘the settlement of disputes between states by judges of their
own choice’.

Arbitration  An agreement was concluded between India and Pakistan to refer the Kutch
dispute to an arbitral tribunal. Consent of the parties is also obtained before a
dispute comes into existence. There are four main characteristics of arbitration:
 The best-known rules of arbitration include those of the International Chamber
of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”),
the International Centre for Dispute Resolution of the American Arbitration
Association (“ICDR”), and the rules of the Singapore International Arbitration
Centre (“SIAC”) and the Hong Kong International Arbitration Centre
(“HKIAC”). Although the award in the Kutch case was vehemently criticised on
the ground that it has political overtones, it was accepted by India.
  “The Security Council may investigate any dispute, or any

Article 34 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.”
  1. Any Member of the United Nations may bring any dispute,
or situation referred to in Article 34, to the attention of the
Security Council or of the General Assembly.
 2. A Non-Member of the United Nations may bring to the
attention of the Security Council or of the General Assembly
Article 35 any dispute to which it is a Party if it accepts in advance, for
the purposes of the dispute, the obligations of pacific
settlement provided in the present Charter.
 3. The proceedings of the General Assembly in respect of
matters brought to its attention under this Article will be subject
to the provisions of Articles 11 and 12.”
  1. The Security Council may at any stage of a dispute (Art 33)
recommend appropriate procedures or methods of adjustment
by taking into consideration any procedures for the settlement
of the dispute which have already been adopted by the parties.

Article 36  3. The Security Council should also take into consideration that
legal disputes should as a general rule be referred by the parties
to the International Court of Justice in accordance with the
provisions of the Statute of the Court.”
  1. Should the parties to a dispute of the nature referred to in
Article 33 fail to settle it by the means indicated in that Article,
they shall refer it to the Security Council.
 2. If the Security Council deems that the continuance of the

Article 37 dispute is in fact likely to endanger the maintenance of

international peace and security, it shall decide whether to take
action under Article 36 or to recommend such terms of
settlement as it may consider appropriate.”
  The compulsive and coercive itself suggests that these are non-
peaceful means of settling a dispute.
Compulsive or  This method sometimes involve force and pressure to resolve
coercive means the issue raised.
 Force does not indicate to the extent of armed forces.
  Retortion
 Reprisals

Compulsive or  Embargo

coercive means  Pacific Blockade

 Intervention