Submitted by Rohini Kamble
I] INTRODUCTIONThe objective of International Law has always been to develop means and methods through which the disputes among the nations may be resolved peacefully on the basis of justice. Article 2 para 3 of the UN charter provides that all members shall settle their International disputes by peaceful means, in such a manner that the International peace, security and justice are not endangered. The method of settlement of dispute is divided in two main categories;
(A) Pacific means of settlement of dispute
(B) Compulsive or coercive means of settlement of dispute
(A) PACIFIC MEANS OF SETTLEMENT
(1) ARBITRATION : In this case, the matter is referred to an arbitrator and the decision given is known as 'award' which is binding upon the parties. These arbitrators are appointed on the basis of consent of the parties to the dispute. There are various events which help in the development of settlement of International disputes through arbitration, one of which is Jay Treaty of 1794 Between England and America. Another important event in this case was Alabama Claims Arbitration, 1872. In this particular case, America had claimed compensation from Britain on the grounds that it had violated the laws of Neutrality. The award passed was in favor of America and held Britain liable to pay compensation. The Hudson remarked, "Arbitration is essentially a consensual procedure, States cannot be compelled to arbitrate unless they agree to do so either generally or in advance or ad hoc in regard to a specific dispute. Their consent even governs the nature of tribunal established."
(2) NEGOTIATIONS : Yet another means for settlement of international disputes is Negotiations. When the disputant States settle their disputes by discussion or adjusting their differences, the procedure is called as Negotiations. It is one of the simplest forms of settlement of dispute which helps the disputant States to bring the necessary change by mutual consent. If at all Negotiation fails then other methods such as good offices, mediations etc may be used along with negotiations. In 1976, India and Pakistan settled their outstanding differences in the Simla Conference. In 1974, India and Sri Lanka settled their boundary dispute by negotiations. In 1977, India and Bangladesh settled the Farraka Barrage (gunfire) issue through negotiations. These are some of the examples, wherein the matter has been solved by negotiations. Following are the guidelines to States, laid down by the General Assembly realizing the importance of negotiations and by adopting a resolution on 8th Dec. 1998.
(i) Negotiation should be conducted in a good faith. (ii) States should take due account of importance of engaging in negotiation
(iii) The purpose and object of all negotiations must be fully compatible with the principles and norms of International Law.
(iv) States should adhere to the mutually agreed framework for conducting negotiations.
(v) States should endeavor to maintain a constructive atmosphere during negotiations.
(3) GOOD OFFICES : When there is problem between two States resolving certain matter then a third State may offer its good offices for the same. These offices may be offered by International Organizations or some individuals which create such an environment which is conducive for the settlement of dispute. In certain cases the third party may be appointed by the parties themselves or the Security Council. For instance to settle the Kashmir dispute between India and Pakistan, the Supreme Court had appointed McNaughton in 1949, Mr. Dixon in 1950, Grahan in 1951 and Jarring in 1957 as representative of U.N. The main function of third party is to offer its good offices in order to bring the parties together when they fail to negotiate. The third party neither participates in the meeting nor gives its suggestions to the parties. The P.M. of U.K, Mr. Wilson provided his good offices to India and Pakistan which resulted to reach an agreement to refer Kutch issue on an arbitral tribunal.
(4) MEDIATION : Unlike good offices the third party in mediation not only offers its services but also actively participates in the talks to resolve the dispute. Therefore, the process in which the third party participates in the discussion along with the disputant State and also gives its proposals or suggestions in resolving the dispute is called as 'Mediation'. The mediator should be neutral and impartial. Soviet Union President Kosygin mediated in the dispute between India and Pakistan which resulted in the conclusion of Tashkent agreement in 1966.
(5) CONCILIATION : According to Judge Hudson, conciliation is, "a process of formal proposals of settlement after an investigation of the facts and an effort to re conciliate to accept or reject proposals formulated." The provisions for a Conciliation Committee has been made by Hague Conventions of 1899 and 1904. Another example is the 1965 Convention on the settlement of Investment Disputes between States and the Nations of other States which provide for Conciliation Commission for the settlement of disputes.
(6) ENQUIRY : Enquiry is not an independent method and is often applied along with other methods. The main function of Enquiry is to investigate the relevant matter in order to establish facts which may hold the ultimate solutions of the problems. For instance, often an Enquiry Commissions are appointed in relation to settlement of border disputes. The Commission clarifies the facts after making enquiry into the relevant facts.
B] COMPULSIVE OR COERCIVE MEANSCoercive means of settlement of disputes are not peaceful means as it involves a pressure or force on a State. If the States are unable to settle the matters by peaceful means then they resort to coercive means of settlement of disputes. They are as follows.
(1) RETORSION : 'Retorsion' means retaliation. This method is based on the principle, tit for tat. If a state behaves with another state in a discourteous manner then the affected State may resort to retorsion a right conferred by International Law. The affected State can use only those means of retorsion which are permitted by International Law. For example : Ending the diplomatic relations, withdrawing the diplomatic agents or stopping the economic facilities.
(2) REPRISAL : According to Starke 'Reprisal' includes coercive means adopted by one State against another for the purpose of settling some disputes brought about by the latter's illegal or unjustified action. One of the main purposes of reprisal is to compel the delinquent State to discontinue the wrong doing. In the case of Nautillaa Incident, the tribunal held that the right of reprisal is subject to the following restriction.
(a) Reprisal are illegal unless they are based upon a previous action contrary to International Law.
(b) There must be certain proportion between the offense and the reprisal as a necessary condition for the legitimacy of the latter.
(c) Reprisal are ligitimate only when they have been preceded by an unsuccessful demand of redress. In fact, the employment of force is justified only when it is necessary.
(3) EMBARGO : Embargo is a kind of Reprisal. If a State violates any International Law or commits some International Crime affecting other States, then the transportation of its ships which are within the territory of the affected State are blocked.
(4) PACIFIC BLOCKADE : Pacific Blockade means the ingress and egress of the ports of the States are blockaded. Therefore, the ships of other states may not reach those ports and the ships of the blockaded state may not go out of the ports. Subsequently, an obstacle is created in a trade and commerce so that the State is compelled to settle its disputes. A recent example of peaceful blockade is that of the blockade of Cuba by America, 1962. America blockaded the ports of Cuba because America contended that Russia was going to supply some nuclear weapons to be stationed at Cuba and which might prove detrimental for the security of America and which was the violation of Havana Convention by Cuba. Starke points out that the Cuban blockade is different form old blockades permitted under International Law.
Submitted by Rohini Kamble