20 Peaceful settlement of disputes Disputes among states arise as a result of: A. claims B. counter claims Of matter of fact, law and policy Settlement of disputes is of importance as it is the linchpin to operation of other principles

20.1 This has been come central with the establishment of the UN. UN charter Article 2 (4) and requires sates to settle their disputes in peaceful manner and means. Methods of peaceful resolution of conflicts. Article 33 (1) of the UN Charter- negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies arrangement, other peaceful means of their choice

20.2 Thus methods to be chosen may be, diplomatic, legal and dispute settlement. Multilateral agreements exist to ensure the peaceful settlement of conflicts Hague Convention for the Pacific settlement of international disputes, 1964 Protocol of the Commission of Mediation and Arbitration of OAU and 1993 OAU Mechanism for Conflict Prevention, Management and Resolution.

20.3 There exists a trend in which most of the agreements including regional ones has been not ratified by some states especially if they provide for compulsory binding adjudication of legal disputes hence have remained weak. Even if states agree to be part to agreements this does not mean they will actually use it in a given case or abide by the decision since there is lack of enforcement mechanism of international court and tribunal.

20.4 Diplomatic Methods a)Negotiation It is the duty of the state to enter into negotiation. According to Article 2 (3) UN Charter and from duty listed in the Friendly Relations Declaration of 1970 to select such means as may be appropriate to the circumstances and the nature of the dispute.

20.5 Negotiation has its shortfalls since there is no neutral party for impartiality’s sake. Normally it’s the first process in solving a conflict. In the North Sea Continental shelf case, parties to a dispute maybe even under obligation “to conduct themselves that the negotiations are meaningful”.

20.6 Article 283 of the 1982 Lao of the Sea Convention aims at keeping the disputing parties in contact and requires them to exchange views at any stage of the dispute and eventually to implement the final solution. It is not a good way of settling international disputes- there is no impartial machinery for resolving disputed questions of fact.

20.7 Normally, it’s the first step in the resolution of a conflict b) Good offices and Mediation 1. Use of third states, international organisations or eminent individual.

Switzerland with its permanent neutrality has often acted as a protecting power in times of war or peace such as representing the United States in Cuba. 3. Mediator is more active and takes part in negotiation and may even suggest terms of settlement to disputing states. 4. In BEAGLE CHANNEL ARBITRATION, ILM 17, both sides accepted Cardinal Antonio Samore as a mediator upon proposal by the Pope.

In the dispute between Iran and US in which they were not speaking to one another, Algeria played a critical role leading to the re-establishment of Iran-US claims Tribunal in the Hague. 6. Examples of successful mediation by states usually are by great powers; German at Berlin Congress; the USSR in 1966 in conflict between India and Pakistan; the US in the Arab Israeli conflict in the 1978 Camp David peace negotiations between between Israel and the PLO.

Mediation has its drawback- ‘the go between wears out a thousand sandals.’ 8. Great powers have more chances of success due to their resources and weight but at times follow their own interest.

20.11 c) Fact-finding and enquiry 1.Establishing the facts of law 2.The 1907 Hague Convention describes the task of a commissioner of enquiry as to ‘facilitate a solution by means of an impartial and contentious investigation’ 3.Partsch concludes: the theory that genuine inquiries (restricted to fact-finding) do not meet with the reluctance of states to allow interference with their sovereignty to the same extent as enquiries combined with elements of conciliation has not been confined by international practice during the last 8 years.

20.12 d) Conciliation 1. Institut de droit international in 1961 defined it as “a method for the settlement of international disputes of any nature according to which a commission set up by parties, either on a permanent basis or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of disputes and attempts to define the terms of a settlement susceptible of being accepted by them or of affording the parties with a view to its settlement such aid as they may have requested.”

Can be traced back to the Bryan Treaties 1913/14- these treaties avoided the honour and vital interests clauses of earlier arbitration treaties and made allowance for the sensitivity of states by giving the permanent commissions to be established only the power to make them binding decisions.

Conciliations between states, third parties cannot take initiative on their own and are appointed on the agreement of concerned parties. 4. Conciliators can be appointed on the basis of their function e.g heads of states or Secretary General of the UN. 5. Most conciliators were performed with commissions composed of several members but single conciliators exist e.g in the distribution of assets of former East African Community in Mostly used when the dispute is a minor one. In 70 years of modern history of conciliation, less than 20 cases have been heard.

Value is still attached to it as evidenced by the 1990 UN Draft Rules on Conciliation of Disputes between states and the 1992 CSCE Convention on Conciliation and Arbitration.

20.16 Legal Methods a)Adjudication (ICJ) [dealt separately] b)Arbitration 1.Concerned with the arbitration involving states under International law and disregards the area of international commercial arbitration between private parties 2.It is more flexible than adjudication a)Gives the parties more choices regarding seat of tribunal b)The appointment and selection of arbitrators and the arbitrators agree on the third arbitrator “umpire” problem!

The Permanent Court of Arbitration (PCA) which was set up by the Hague for the Pacific Settlement of International Disputes in 1899, sponsored only 20 arbitrations between since then it has been overshadowed by the Permanent Court of International Justice (PCIJ) and the ICJ and has heard few cases.

The name ‘court’ is misleading as the party may nominate 4 persons to serve on panel. 6. The matter becomes complicated if the arbitration involves a state and foreign individual or company- often termed arbitration.

The International Centre for Settlement of Investment Disputes (ICSIID) in Washington under the auspices of World Bank handles such issues 8. This has provided solution to developing countries as they host a great deal of private investors.

2020 c) Settlements of Disputes under Law of The Sea Convention 1.Came into force in Flexible- part XV states retain their basic freedom to select the method of a given case. 3.Can choose other mechanisms 4.The courts and tribunals are competent with the regard to all law of the sea matters submitted under the convention 5.Decisions are binding as between the parties and at their request they can be based on equity rather than law.

No provision exist for enforcement. c) The acceptance of international adjudication by the sates cannot exactly be described as enthusiastic. 1. States may be reluctant to go to the ICJ because they prefer other tribunals that are smaller (cheaper and more expedient) or specialised and offer more chance of control to outcome.

Mostly states are cynical to appear before the ICJ- because of distrust which state feel. 4. They believe that judicial decisions are often unpredictable- because of dissenting opinion. 5. Courts are feared to be too conservative especially relating to customary rule.

States view that bringing judicial proceedings against another state is sometimes regarded as an unfriendly act. 7. Litigation is very expensive and time consuming

20.24 z. What should be done 1.States must define categories of cases they don’t want the court’s jurisdiction. 2.Care should be taken when selecting judges.