LL.B.- II & BA.LL.

B-IV [2017 Pattern] LC 0703 Public International Law

MODULE 11 SETTLEMENT OF DISPUTE

INTRODUCTION

LEGAL AND POLITICAL DISPUTE

MEANS OF SETTLEMENT OF DISPUTE

PACIFIC MEANS

COERCIVE OR COMPULSIVE MEANS

INTRODUCTION

1. International
INTRODUCdispute means in a very broad sense, a misunderstanding, an opposition

betweenION
two or more states that have reached the stage in which the parties have formed claims
or counter-claims, and which constitute an element of disruption of relations between them.
International disputes can be born not only between states, but also between them and
2. INTRODUC
international organizations or only between international organizations.
ION
The Permanent Court of International Justice: "a disagreement on a matter of law or fact,
a contradiction, an opposition of legal or interest-based theses." The UN Charter, in Article 34,
establishes, in this respect, the right of the Security Council to "investigate any dispute or
3. INTRODUC
situationION
that could lead to international friction or could give rise to a dispute in order to

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determine whether the extension of the dispute or the situation could endanger international
peacekeeping and security".

LEGAL AND POLITICAL DISPUTES

One of the most commonly used definitions characterizes ‘political’ or non justiciable
disputes
4. as the cases that involve the vital national interests of the disputants. The resolutions of
INTRODUCION
such disputes between nations would inevitably impinge upon the sovereignty of the states.1
Accordingly, legal questions refer to the disagreements which ‘do not involve the life and future
fate of5.nations, no matter in whose favor a judicial judgment may be rendered’ The Statute of the
INTRODUCION
International Court of Justice.2 Art. 36 defines an international legal dispute as a ‘disagreement
on a question of law or fact, a conflict, a clash of legal views or of interests’ drawing such
distinction between legal and political questions is particularly difficult for international tribunals
6. INTRODUCION
is that all the disagreements between sovereign states essentially arise from the desire to protect
their vital national interests.

Even the cases concerning the territorial and maritime boundary disputes such as the
delimitation of the continental shelf between Nicaragua and Colombia in 2001, albeit highly
technical, would inevitably involve the clash of political interests and the long-term hostility
between the two parties. Hence, if the term ‘political’ is defined as the cases in which the
national interests of the state parties are threatened, none of the contentious cases on the World
Court’s docket would be considered justiciable3

EXTRA-JUDICIAL PACIFIC MEANS

Article 2 of the Charter lays out the principles under which the UN and its members are
required
7. to pursue the aims of Article 1. Article 2 (3) states that ‘all members shall settle their
INTRODUCION
international disputes by peaceful means in such a manner that international peace and security,
and justice, are not endangered. Article 33 (1) catalogs various methods to be employed by states
8. disputes
to settle INTRODUCION
pacifically:

1
K. Oellers-Frahm and N. W¨uhler, Dispute Settlement in Public International Law, New York, 1984, pp. 92
2
Ibid, 9.
p.96INTRODUCION
3
Ibid, p.111

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The parties to any dispute, the continuance of which is likely to endanger 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 own choice.

NEGOTIATION

Negotiation is a simple diplomatic means and one of the oldest and most used in the
10. settlement
peaceful INTROD of disputes between states. This means does not suppose the intervention of a
UCION
third party. The primordial role currently played by diplomatic talks lies in the fact that they
offer, due to their direct nature and the direct contract between the parties involved, additional
possibilities of identifying convergent points of view, allowing the overtaking with patience, tact,
11. INTROD
understanding of all obstacles or difficulties, as well as agreeing solutions acceptable for all
parties.4 Acceptance and use of this means do not automatically resolve the dispute.
interestedUCION
Solutions can be diverse, such as waiving claims, accepting them, engaging in a compromise,
essential to meeting the commitments made by the parties at the end of the negotiations. If the
12.isINTROD
dispute not settled, the parties will have the obligation to resort to other means of settlement,
UCION
but only by peaceful means.

GOOD OFFICES

These consist of the action taken by states parties to a dispute by a third - state or
13. INTRODU
international organization - on their own initiative or at the request of the parties, in order to
persuade CION
disputed states to resolve disputes through diplomatic negotiations. The good offices
are characterized by the fact that the one who offers them does not participate in the negotiations
between the states in question, and its office ceases as soon as the litigants have begun
14. INTRODU
negotiations. Although they are optional, good offices are means to boost and conclude
CION
negotiations. 5
Their features and functions are similar to those of the negotiations, enrolling them
in the same category of diplomatic, informal and non-judicial methods. In terms of purpose, the

15. INTRODU
4
CION
Ibid, p.132
5
J. G. Merrills, International Dispute Settlement, 4th edn, Cambridge, 2005, and Merrills, ‘The Mosaic of
International Dispute Settlement Procedures: Complementary or Contradictory?’, 54 NILR, 2007, p. 361

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good offices only seek to start or resume negotiations, they end when the parties sit at the
negotiating table

MEDIATION

In solving the dispute, mediation means active participation of the third party in the
16. INTRO
negotiations, "can offer advice and proposals to resolve the conflict", the negotiator's action ends
DUCIO
only after a final result has been reached. Mediation is about conducting negotiations, the
substanceN of the dispute, to reach a peaceful and convenient solution for the third parties.
Mediation was defined as "the action of a third party, an international organization or even a
recognized personality, aiming at creating the necessary atmosphere for the negotiation between
17. INTRO
the parties to the dispute and the direct provision of the services of the third party for finding
favourable to the parties".6
solutionsDUCIO
N
INQUIRY OR FACT-FINDING

Two parties to a dispute may initiate a commission of inquiry or fact-finding to establish

19.
18. INTRODUCION
the basic information about the case, to see if the claimed infraction was indeed committed, to
INTRO
ascertainDUCIO
what obligations or treaties may have been violated, and to suggest remedies or actions
to be undertaken
N by the parties. These findings and recommendations are not legally binding, and
ultimately decide what action to take. 7 A commission of inquiry may usefully be
20. INTRODUCION
the parties
employed in parallel with other methods of dispute resolution—for instance, negotiation,
mediation, or conciliation—as factual clarity is an important factor in any dispute resolution
21. INTRODUCION
strategy.

In 1991, the General Assembly adopted resolution 46/59, which contains detailed rules
for fact-finding by organs of the UN, and the UN Legal Office manual explains in detail the
process and phases of inquiry. Notably, such commissions precede the UN, and originated in The
Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907.

6
Ibid, p.132
7
Ibid, p.136

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ARBITRATION
22. INTRODU
The most concrete achievement of the 1899 Hague Peace Conference was the
CION
establishment of the Permanent Court of Arbitration (PCA), located in the Peace Palace in The
Hague. Arbitration represents a ‘qualitative leap’ over the other measures, as it necessitates the
settlement of the dispute in accordance with existing international legal standards. Parties agree
23. INTRODU
to submit disputes to arbitration, and thereby commit to respect in good faith the outcome, which
CION
is binding. 8 The PCA, which is always accessible, has competence in all arbitration cases
submitted to it by agreement of the parties involved. The PCA provides a list of arbitrators,
appointed by states parties to the Hague Convention, from which parties submitting a dispute to
24. INTRODU
arbitration can choose.
CION
CONCILIATION

Conciliation combines fact-finding and mediation. A conciliation commission functions not

only to engage in enquiry to set out clearly the facts of the case—but also to act as a mediator, to
25. INTRODU
propose solutions mutually acceptable to the disputing parties. 9 Such commissions may be
CION
permanent, or temporarily established by parties to a particular dispute. The commission’s
proposals are not binding, but each party has the option of declaring unilaterally that it will adopt
the recommendations. Several international treaties feature provisions for the systematic referral
26. INTRODU
of disputes for compulsory conciliation.10
CION
The 1969 Vienna Convention on the Law of Treaties articulated a procedure for the
submission by states of requests to the UN Secretary-General for the initiation of conciliation.
On 11 December 1995, the General Assembly adopted resolution 50/50, containing the UN
Model Rules for the Conciliation of Disputes between States, which substantiates and clarifies
conciliation procedures.

8
J. Collier and V. Lowe, The Settlement of Disputes in International Law, Cambridge, 1999
9
Ibid, p.43
10
Ibid, p.48

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COERCIVE OR COMPULSIVE MEASURES

RETORTION

Generally the retortion method used by the state is a legal but deliberately an unfriendly
27.
29. INTRODUCION
INTRO
act with a retaliatory or coercive purpose. When a state behaves in a discourteous manner with
DUCIO
another state, the latter has right to retaliate under the international law. But in doing so only the
N
measures allowed under law are permitted.11 Consequently, the general mechanisms applied in
28. INTRODUCION
retaliations are – recall of diplomats, rupture of diplomatic ties, declaring diplomatic staff as non-
persona grata (undesirable person), economic sanctions etc. Action under retortion can be taken
30. INTRO
both in terms of kind and direct or explicit nature. A common form of Retortion consists in
DUCIO
retaliatory increase in tariff rates against states which discriminate against the product of a
N
particular nation.12 That is why it is called retaliation in kind.

But sometimes when a state acts in reply to legal but discourteous, unfriendly, unfair on
inequitable act with an act of similar type, then retortion is not limited to retaliation in kind.
However, the use of retortion is limited by some provisions of the UN Charter. Most important
among them is the provision under article 2(3) of the charter which prevents the use of retortion
if it endangers the international peace and security and justice in the global order. As a result,
even if it is permitted in some cases then also it should not be in contravention to the possibility
of creation of dangers to peace and security in the international system.

REPRISAL

It is another type of coercive method used by the states involving generally all kinds of
forceful
31.measures.
INTRO It is related to the methods adopted by states for securing redress from another
state by taking
DUCIOretaliatory measures. In earlier times, the term has been restricted to the seizure of
property and
N persons, but in contemporary times it connotes coercive measures adopted by one
state against another for the purpose of settling some disputes brought about by the latter’s illegal

32. INTRO
DUCIO
11
Ibid, p.55N
12
United Nations, Handbook on the Peaceful Settlement of Disputes Between States, New York, 1992

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or unjustified conduct.13 Practice of International law has evolved the following principles on the
basis of which this concept can operate

(a) Reprisal is only justified, if at all, where the state against which it is directed has been guilty
of conduct in the nature of an international delinquency.

(b) Reprisal would not be justified if the delinquent state had not been previously requested to
give satisfaction for the wrong done, or if the measures of reprisals were ‘excessive’
proportionally in relation to the injury suffered.

(c) Reprisals are only justified if their purpose is to bring about a satisfactory settlement of a
dispute.

(d) Reprisals should not be resorted to unless and until negotiations for the purpose of securing
redress from the delinquent state fail.

At the outset it must be clear that retaliatory acts between belligerent states in the course of
war are a different matter from reprisals, although they are also termed ‘reprisals’. Therefore
reprisals have always been a controversial matter. 14 However, the basic distinction between
reprisals and retortion is that the former consist of acts which would generally otherwise be quite
illegal, whereas the latter consists of retaliatory conduct to which no legal objection can be taken.
Though, it is agreed that reprisals are based on the use of violent means short of war, yet on the
basis of use of means, these can be divided into four categories: (a) Positive; (b) Negative; (c)
Special; and (d) General.

Positive reprisals are based on the use of primitive laws for retaliation, i.e. law of ‘an eye for
eye’. Negative reprisals are conducted by not using the violent means, rather the methods like
non-payment of debts or non-obligation of treaties are applied. Special reprisals are based on the
methods used during the middle ages.15 They are resorted to for the indemnification of private
individuals for injuries and losses inflicted on them by subjects of other nations. General

13
Ibid, p.76
14
Ibid, p.81
15
Ibid, p.86

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reprisals take place when an aggrieved state performs warlike operations without the intention of
making war.16

Thus, the above-mentioned different types of reprisals are permitted by the orthodox view of
International law where either denial of justice is involved or a situation of international
delinquency exists. To operationalise reprisals numerous strategies can be adopted depending
upon the situations and context of the problems. Generally adopted methods to implement
reprisals are: (i) boycott of goods; (ii) an embargo; (iii) a naval demonstrations; and (iv)
bombardment.17

But the use of these methods is not without any limitations. Both the provisions of UN
Charter as well as the practice of international system placed the following restrictions on the
working of this concept:

(i) Under Article 2(3) of the UN Charter, the member states are restrained to settle their disputes
by peaceful means in such a way as not to ‘endanger’ international peace and security.

(ii) Under Article 2(4) of the UN Charter, the member states are to refrain from the threat or use
of force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the purposes of the UN.

(iii) In practice, the UNSC in 1964, by a majority, condemned reprisals as being ‘incompatible
with the purposes and principles of the UN’.

(iv) On 24 October 1970, the UN General Assembly, while adopting the ‘Declaration on
Principles of International Law concerning Friendly Relations and Cooperation Among States’
declared that: ‘States have a duty to refrain from acts of reprisal involving the use of force.’

Even the uses of force under ‘self defence’ (Article 51) and for ‘collective action’
(Article 33) are limited in terms of: ‘consisted in the threat or the exercise of military force
against another state in such a way as to prejudice its territorial integrity or political
independence would presumably be illegal’; and, the non-use of peaceful means prior to resort to

16
Ibid, p.91
17
Ibid, p.94

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force would be considered illegal. Thus, reprisals are justified if other state has committed an
international crime or violated any international law. It is justified only if its objectives are
justified and satisfactory to settle international disputes.

EMBARGO

It is another type of coercive method used by the states to retaliate the action of
33. INTRO
belligerent state. If a state violates international law or commits some international crime, then
DUCIO
the affected nation uses the tactics of embargo. Through this strategy, the nation tries to prohibit
N of all goods or certain goods to a particular country or a group of countries.
the shipment
However, this obstruction of ships can be done only in the area of territorial waters. It is because
beyond this jurisdiction high seas has been considered as an area for the use of humanity at
large.1834. INTRO
This can be imposed both by unofficial or official manner, i.e. this may be initiated by
DUCIO
private groups or public sentiments or by governments. Similarly it can be utilised in both partial
N
and full manner.

Thus, in a limited sense, the restriction of economic and like activities by the state against
any other state can create problems for the nations which violate international law. However,
this kind of restrictions cannot be utilized beyond the sovereign jurisdiction area of the state
applying embargo.

PACIFIC BLOCKADE

In the time of war, the blockade of a belligerent state’s ports is a very common naval
35. INTRODUCION
operation. The pacific blockade, however, is a measure employed in times of peace. It is
generally designed to coerce the state whose ports are blockaded into complying with a request
for satisfaction by the blockading state.19 Therefore, while applying this ‘ingress’ and ‘egress’ of
36. INTRODUCION
the ports of the states, are blockaded so that ships of other states may not reach those ports.
Simultaneously it is also ensured that ships of blockaded state may not go out of the ports. 20
Therefore, this strategy is used by the state to compel the other side to settle disputes. Here it

18
B. S. Murty, ‘Settlement of Disputes’ in Manual of Public International Law (ed. M. Sørensen), London, 1968, p.
673
19
Ibid, p.693
20
Ibid, p.700

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must also be clarified that while operationalizing it, the blockading state has no right to seize
ships of third states which endeavor to break a pacific blockade.

Consequently, it follows that the third states are not duly bound to respect such a
blockade. The strategy of pacific blockade is not without limitations. Article 2(3) of the UN
Charter prohibits any such action under pacific blockade if it endangers international peace and
security. However, under Article 42 of the UN Charter, it is justified as a collective measure
taken under chapter VII of the UN Charter. Besides, it is advantageous in two more ways; (i) it is
far less violent means of action than war; and (ii) it is also more elastic as compared to other
such methods. But its utility as unilateral measures has been disapproved by the UN. Hence, in
present times it has become an obsolete method.

INTERVENTION

It is another compulsive measure used by the states for the resolution of conflict. It can be
both diplomatic and military-oriented in its application. In principle, there are some provisions of
37. INTRODUC
the UN Charter
ION which prohibit the use of intervention. As under Article 2(4), the unilateral use of
force or threat thereof by states in their international relations is prohibited. Similarly, under
Article 2(7), the UN is not allowed to intervene in the domestic affairs of the states. Even some
resolutions passed by the United Nations, from time to time, do not allow the UN to intervene in
38. INTRODUC
the matters
IONof states. However, this does not mean that intervention is ruled out for all purposes.

Practically speaking, it is allowed both individually and collectively on the basis of the
following two major principles:

(i) Principle of Self Defence: Under this principle, intervention is allowed by an individual state
against the other state.

The right to self-defence is provided under Article 51 of the UN Charter but with
numerous limitations. The limitations like – allowed only in case of arms attack; through UN
system; review by security council; threatening international peace and security; not-available
against non-UN members etc. restricts its operation in a very limited manner.

(ii) Principle of Collective Measures: Besides individualist manner, it is also allowed as

collective activity under the UN system.

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In the name of collective intervention it is permitted on humanitarian ground on the basis

of Articles 1, 55 and 56, because the violation of human rights provides legal obligation upon the
members in respect of human

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