PEACEFUL SETTLEMENT

OF
DISPUTES
• Historically, International Law has been regarded by the international community
as a means to ensure the establishment and preservation of world peace and
security. The maintenance of international peace and security has always been
the major purpose of the International Law. It was the basic objective behind the
creation of the League of Nations in 1919 and the United Nations in 1945.
• Since the direct cause of war and violence is always a dispute between States, it is
therefore in the interest of peace and security that disputes should be
settled. Methods and procedures for the peaceful (pacific) settlement of disputes
have been made available in the International Law.
• The Charter of the United Nations devotes Chapter VI to the methods and
procedures for the pacific settlement of disputes. Paragraph 1 of Article 33 of the
Charter states the methods for the pacific settlement of disputes as the
following: negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, and resort to regional agencies or arrangements.
• The methods of peaceful settlement of disputes fall into two categories:
Diplomatic, Adjudicative methods. Diplomatic methods involve attempts to
settle disputes either by the parties themselves or with the help of other
entities. Adjudicative methods involve the settlement of disputes by tribunals,
either judicial or arbitral. Institutional methods involve the resort to either the
United Nations or regional organizations for settlement of disputes.
Diplomatic Methods of Dispute Settlement

• Diplomatic methods of dispute settlement are negotiation, enquiry, mediation,

Negotiation
• Negotiation consists of discussions between the concerned parties with a view to
understand the opposing positions and opinions and reconcile the differences. It is very
suited to the clarification and elucidation of the opposing contentions. It is the most
satisfactory means to settle disputes since it is a voluntary bilateral and self-help means;
the parties are directly engaged in the process; intervention by any third party in the
process is not necessary.
• Negotiations, however, do not always succeed in reaching solutions to disputes or
differences between the parties. Thus, third parties interventions are needed to help
the parties in reaching a settlement to their disputes and differences; here comes the
importance of the other diplomatic methods of dispute settlement
Enquiry
• One of the common obstacles preventing the successful settlement of a dispute by
negotiation is the difficulty of ascertaining the facts which have given rise to the
differences between the disputants. Most international disputes involve an
inability or unwillingness of the parties to agree on points of facts. Herein lays the
significance of the procedure of inquiry as a means of pacific settlement of
disputes.
• Many bilateral agreements have been concluded under which fact-finding
commissions have been set up for the task of reporting to the parties concerned
on the disputed facts. In addition, the procedure of inquiry has found expression
in treaties for the pacific settlement of disputes.
• Enquiry as a separate method of dispute settlement has fallen out of favour. It has
been used as part of other methods of dispute settlement. Its purpose is to
produce an impartial finding of disputed facts and thus to prepare the way for
settlement of dispute by other peaceful methods. The parties are not obliged to
accept the findings of the enquiry; however, they always do accept them.
• The utilization of enquiry has been evident in the practice of international
organizations, such as the United Nations and its specialized agencies. Enquiry has
been used as part of other methods of dispute settlement in the context of
general fact-finding.
Mediation, Conciliation and Good Offices
• Mediation, conciliation and good offices are three methods of
peaceful settlement of disputes by which third parties seek to
assist the parties to a dispute in reaching a settlement. All involve
the intervention of a supposedly disinterested individual, State,
commission, or organization to help the parties. When the parties
are unwilling to negotiate, or fail to negotiate effectively,
assistance by a third party through its mediation, conciliation, or
good offices may be necessary to help in procuring a
settlement. This assistance may be requested by one or both of
the parties, or it may be voluntarily offered by a third party.
MEDIATION
• Mediation is a process through which an outside party (third party) endeavours to bring the
disputants together and assists them in reaching a settlement. The third party offers his
assistance to the parties to a dispute. The consent of the disputants is not necessarily required
initially, but no mediation proceedings can be commenced without their consent. The
mediator actively and directly participates in the settlement itself. He does not content himself
with making negotiations possible and undisturbed. He is expected to offer concrete proposals
for a solution and a settlement of substantive issues related to a dispute. However, his
proposals represent nothing more than recommendations. They have no binding force on
either disputant. The parties to a dispute are free to accept or reject his proposals.
Good Offices
• When the parties to a dispute reach the point of not being able to solve it by negotiation, or
the point where they have broken off diplomatic relations, but they are convinced that a
settlement is important to them, the utilization of the technique of good offices may be
helpful. Good offices may be utilized only with the agreement or the consent of both
disputants. A third party attempts to bring the disputants together in order to make it possible
for them to find an appropriate settlement to their differences through their negotiations. In
this regard, the function of the third party is to act as a go-between, transmitting messages and
suggestions in an effort to create or restore a suitable atmosphere for the parties to agree to
negotiate or resume negotiation. When the negotiations start, the functions of the good
offices come to an end.
CONCILIATION
• Conciliation is a process of settling a dispute by referring it to a specially constituted organ
whose task is to elucidate the facts and suggest proposals for a settlement to the parties
concerned. However, the proposals of conciliation, like the proposals of mediators, have no
binding force on the parties who are free to accept or reject them. As in the case of mediation,
conciliators may meet with the parties either jointly or separately. The procedures of
conciliation are generally instituted by the parties who agree to refer their dispute to an
already established organ, commission or a single conciliator, which is set up on a permanent
basis or ad hoc basis; third parties cannot take the initiative on their own. The conciliators are
appointed by the parties to a dispute. They can be appointed on the basis of their official
functions or as individuals in their personal capacity.
• The conciliator investigates the facts of the dispute and suggests the terms of the
settlement. But conciliation differs from enquiry in that the main objective of the latter is the
elucidation of the facts in order to enable the parties through their own accord to settle their
dispute; whereas the main objective of conciliation is to propose a solution to a dispute and to
win the acceptance of the parties to such solution. Also, conciliation differs from mediation in
that it is more formal and less flexible than mediation; if a mediator’s proposal is not accepted,
he can present new proposals, whereas a conciliator usually present a single report.
Adjudicative Methods of Dispute Settlement
• Adjudicative methods of dispute settlement consist of two types of procedures, “arbitration” and
“judicial settlement”. Arbitration and judicial settlement are two methods involve the
determination of differences between States through legal decisions of tribunals. Whereas in case
of judicial settlement the decision is made by an established court, permanent (such as the
International Court of Justice) or ad hoc, in case of arbitration it is made by a single arbitrator or
arbitral tribunal. The major characteristic of these two methods is that a judicial decision or an
award is binding on the parties and must be carried out in good faith.
JUDICIAL SETTLEMENT
• Judicial settlement is a settlement of dispute between States by an international tribunal in
accordance with the rules of International Law. The international character of the tribunal is in both
its organization and its jurisdiction. International tribunals include permanent tribunals, such as the
International Court of Justice (ICJ), the International Tribunal for the law of the Sea (ITLOS), the
European Court of Justice, the European Court of Human Rights and the Inter-American Court of
Human rights, and include ad hoc tribunals, such as the United Nations Tribunal in Libya.
• The ICJ is the most important international tribunal, because of its both prestige and
jurisdiction. It is the principal judicial organ of the United Nations. All members of the United
Nations are ipso facto parties to the Statute of the Court. The judges of the ICJ are appointed by the
United Nations, not by the parties to a dispute.
Arbitration
• Arbitration was defined in the 1899 Hague Convention for the Pacific Settlement of
Disputes as “the settlement of differences between states by judges of their choice and
on the basis of respect for law”; Arbitration is considered the most effective and
equitable means of dispute settlement. It combines elements of both diplomatic and
judicial procedures. However, it is much more flexible than judicial settlement. It gives
the parties to a dispute the choices to appoint the arbitrators, to designate the seat of
the tribunal, and to specify the procedures to be followed and the law to be applied by
the tribunal. Moreover, the arbitration proceedings can be kept confidential.
• Arbitration cannot be initiated without the agreement of the parties to a dispute. An
agreement of arbitration may be concluded for settling a particular dispute, or a series
of disputes that have arisen between the parties
• The usual pattern in arbitration agreement as regards the appointment of arbitrators is
that each of the two parties has to appoint one arbitrator or more, and the appointed
arbitrators have to appoint the arbitrator, who is known as an “umpire”. Usually, the
arbitral tribunal consists of three arbitrators, who can decide by majority vote. The
parties may agree to refer their dispute to a single arbitrator, who may be a foreign
head of a State or government, or a distinguished individual.