Peaceful Settlement of disputes in International Law:
The peaceful settlement of disputes and conflict prevention are closely interconnected. Conflict prevention takes the peaceful settlement of disputes one step further by attempting to address both the immediate and the deeper causes of conflict.
Contemporary approaches to conflict prevention also emphasize the linkages between peaceful societies and the promotion of inclusive governance and equitable development, a salient theme at the September 2015 UN World Summit, which mobilized a universal consensus around the ambitious Agenda 2030 for Sustainable Development.
Since the early 1950s, a considerable body of literature has emerged around the concept and practice of the peaceful settlement of disputes, particularly in the UN context. While most of this literature is legalistic tending to concentrate on the elaboration of Article 33 and its modalities there now also exists a substantial pool of case studies examining the practical application of these techniques.
Since 1990, analysis and advocacy of conflict prevention have effectively burgeoned, as successive Secretaries, and Generals have seized upon the removal of the Cold War yoke to adopt a more activist approach to conflict prevention.
Article 33:
Article 33 intends and scope catalogs various methods to be employed by states to settle disputes pacifically. 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, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Measures for the peaceful settlement of disputes:
Negotiation:
The tool of negotiation enjoys a special place among the pacific measures listed in Article 33 not least because negotiations are a universally accepted method of dispute resolution and possess several advantages. One important feature is flexibility: negotiations can be applied to political, legal, or technical conflicts.
Moreover, since only the concerned states are involved, negotiation empowers the parties themselves to steer the process and shape its outcome to deliver a mutually acceptable settlement. A key disadvantage of negotiation is its inherent basis in the compromise between the parties, a drawback that often leads to the imposition of a solution by the stronger over the weaker party.
The UN Legal Office manual provides a step-by-step guide to the different types of negotiation, as well as the phases, methods, and outcomes of each.
Inquiry or Fact-Finding:
Two parties to a dispute may initiate a commission of inquiry or fact-finding to establish the basic information about the case, to see if the claimed infraction was indeed committed, to ascertain what obligations or treaties may have been violated, and to suggest remedies or actions to be undertaken by the parties.
These findings and recommendations are not legally binding, and the parties ultimately decide what action to take. A commission of inquiry may usefully be 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 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.
Mediation and Good Offices:
Mediation refers to the offer by a third party of its good offices to the parties to a dispute in the interest of seeking a resolution and preventing an escalation of the conflict. The third-party mediator may be an individual, a state or group of states, or an international or regional organization.
The function of the mediator is to encourage the parties to undertake or resume negotiations. The mediator may also proffer proposals to help the parties identify a mutually acceptable outcome. These good offices may be offered by the mediator, or solicited by one or both conflicting parties.
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Although Article 33 does not specifically use the term in its list of measures, ‘good offices’ is listed in the UN Legal Office manual, as well as in other studies of dispute settlement, as a distinct method. However, the manual also notes that ‘mediation’ and ‘good offices’ can substitute for each other.
Conciliation:
Conciliation combines fact-finding and mediation. A conciliation commission functions not only to engage in inquiry to set out clearly the facts of the case but also to act as a mediator, to propose solutions mutually acceptable to the disputing parties. Such commissions may be 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 of disputes for compulsory conciliation.
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.
Arbitration:
The most concrete achievement of the 1899 Hague Peace Conference was the 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 to submit disputes to arbitration, and thereby commit to respect in good faith the outcome, which is binding. The PCA, which is always accessible, has competence in all arbitration cases submitted to it by the agreement of the parties involved. The PCA provides a list of arbitrators, appointed by state parties to the Hague Convention, from which parties submitting a dispute to arbitration can choose.
International Tribunals:
The term ‘international tribunals’ refers to the International Court of Justice and other courts with international jurisdiction. Depending on the definition employed, there are currently between seventeen and forty international courts and tribunals.
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Normally, the decisions of an international tribunal are definitive and cannot be appealed see, for example, Article 60 of the Statute of the ICJ. The advantage of permanent international tribunals over arbitral courts is that they are better situated than an ad hoc tribunal to become seized of a matter since they already exist.
Normally, cases brought to the ICJ cover, the interpretation and application of treaties; sovereignty over territory and border disputes; maritime borders, and other matters related to the law of the sea.
Other Peaceful Means:
Notwithstanding the extensive menu of measures listed in Article 33, the last item ‘other peaceful means’ effectively lifts any bar on options for action by the parties to a dispute. The UN’s dispute settlement manual describes three categories of measures;
The first category includes entirely original measures, such as consultations and conferences, or the referral of a dispute to a political organ or non-judicial organ of an international organization;
The second category features those cases in which states have adopted the methods named in Article 33, including, for example, when parties agree in advance that the report of a conciliation commission will be binding rather than non-binding;
The third category contains instances in which a single organ employs two or more of the listed measures, such as when a treaty may provide for the progressive application of a range of methods.
This Article is written by Mahnoor Balooch, who is a student of BS International Relations at the National University of Modern Languages, Islamabad. She is interested in International Law, Diplomacy and Foreign Affairs.
