Resolution Means

Table of Contents

Peaceful Settlement

The 20th century has seen attempts to create institutions and methods by which States might resolve questions peaceably instead of by confrontation and armed conflicts. The UN General Assembly 1982 Declaration on the Peaceful Settlement of International Disputes builds on the United Nation Charter and General Assembly’s Declaration on Principles of International Law regarding Friendly Relations and Cooperation between States. States generally have an interest in resolving disputes peacefully, and it is usually the pragmatic response.

An international dispute is typically one between States, although not necessarily exclusively between States. The dispute must relate to a particular subject matter rather than a more general political situation. The types of disputes discussed in this section are not policy-type disagreements. They are generally disagreements regarding facts and/or legal rights.

Methods of Resolution

Each State is required to settle its disputes by peaceful means exclusively and in a manner that does not endanger international peace and security and justice. States should seek, in good faith in a spirit of cooperation, an early and equitable settlement of their international disputes by one of the following methods:

negotiation,
mediation,
enquiry,
conciliation,
arbitration,
reference to regional arrangements or agencies or
other peaceful means of their choice, including good offices.

In seeking a settlement, each party shall agree on such peaceful means as may be appropriate to the circumstances and nature of the dispute.

In the event of failure to settle a dispute, parties are to continue to seek a peaceful solution and seek to agree on mutually agreed terms. They are to refrain from action, which may aggravate the position or endanger international peace and security or make it more difficult to have a peaceful resolution of the matter.

Negotiation

Negotiation is the most common method of dealing with international disputes. Parties retain control of the dispute without involving third parties. Negotiation may still have a role where disputes have escalated significantly and may still be appropriate to manage and minimise the effects of disputes.

The fact that negotiations are ongoing does not preclude the reference to international courts and arbitration. Negotiations may continue in parallel, even in respect of references to the International Court of Justice. As with domestic litigation, negotiation may settle cases before the courts.

Parties may bind themselves under a treaty to negotiate solutions to disputes. There is no agreement to agree as such, but there is an obligation to negotiate in good faith where it applies. Many agreements and treaties require parties to consult and negotiate in relation to certain matters.

Mediation

Mediation involves the settlement of a dispute or an attempt to settle a dispute with the assistance of a third party. Mediation requires the consent of both parties.

Mediation should be contrasted with where a third party who seeks to open a channel of communication through so-called good offices. A mediator is more active in the process and should seek to advance ideas and proposals for a solution. See, generally, the sections on mediation in the private context.

It is fundamental to mediation that it cannot be compulsory. If parties are unwilling to negotiate, then they should not accept mediation. Indeed, it would be somewhat contradictory to do so.

The mediation may seek to frame a solution that both parties may accept. A mediator may act as a conduit at the outset of particularly difficult disputes where the parties’ relationship has been significantly impaired.

Enquiry

An enquiry may be an appropriate method of dispute settlement where there are disputes as to fact. An enquiry may be an element of other forms of dispute resolution. Exceptionally, an enquiry may arise internationally where it is necessary to establish the facts of what happened. This may have consequences in terms of compensation etc.

Enquiries may be appropriate where an incident has potential consequences happened, and it is necessary to establish the facts. Another form of enquiry is one in terms of international responsibility.

Conciliation

Conciliation is a method of settlement of international disputes by which a commission or other body is established by the parties either on a permanent or occasional basis, to deal with disputes. It may afford parties assistance with a view to a settlement such assistance as may be required. It may proceed to an impartial examination of the matter in dispute and attempts to define the terms of a settlement.

Conciliation goes beyond mediation in it that it formalises the role of the conciliator. The conciliator seeks to find such terms which are potentially acceptable to the parties. It is not binding on them in contrast to arbitration.

Commissions are frequently established which seek to adopt the techniques of conciliation. A conciliator may undertake an enquiry as to the facts and identify the relevant consequences and make recommendations that might be jointly mutually agreed upon.

Conciliation is commonly established on an ad hoc basis to deal with a specific dispute. Agreements may require a reference of future disputes to conciliation. Requirements for reference to conciliation may be incorporated into international conventions and treaties.

Arbitration

In contrast to the above methods, there exist a number of legally binding methods in the sense of having international law consequences. In the case of arbitration, the parties themselves refer matters to a Tribunal to determine a dispute or a series of disputes. As in private arbitration, the reference may be in an agreement which s in place before the dispute arises or may be established after the dispute has arisen.

It is fundamental to arbitration that the decision is left to a body, which the parties agree in principle that they can trust. Several territorial and maritime boundary disputes have been determined by arbitration.

Provisions on arbitration are commonly found in international conventions, both multilateral and bilateral. Arbitration is a feature of the Law of the Sea Convention.

Arbitration may arise in a different context, between a State and nationals or businesses/corporations of a third party State. In this case, the authority may be based on agreements rather than an international treaty. Such arbitrations have been set up to deal with the consequences of particular events, where for example, private property was expropriated.

The decision in arbitration is binding but there is no stand-alone mechanism for enforcement. There may be no method by which the decision can be required to be put into effect other than by way of general international obligations. Decisions of arbitration bodies are not usually disregarded. Nonetheless, states may do so in some cases.

Judicial Settlement

Judicial settlement involves reference to a judicial tribunal which pronounces a legally binding decision. There are a number of international courts with jurisdiction on specialised matters. The International Court of Justice at the Hague has general jurisdiction in international matters. See generally the separate chapter.

A number of the regional bodies have very significant jurisdiction. The most prominent is the Court of Justice of the European Union, which is the stand-alone judicial arm of the European Union and Community.

The jurisdiction of the International Court of Justice is ultimately dependent on consent. Disputes may relate to matters of facts or matters of international law. Resort may be had to the court only by States. Judges are broadly representative of the main national groupings and main legal systems of the world. The judges do not however represent their states and sit independently.

State parties may request the courts to decide cases on the basis of fairness and discretion rather than on the basis of international law. However, this is rarely used. A more structured specific basis on which the court may decide may be used and pre-agreed.

A judgment of the court is binding on the states involved. There is no appeal. It is ultimately a political matter for a state to comply with the terms of judgment.

Specialised Courts & Bodies

There are many specialised courts internationally. The European Court of Human Rights at Strasburg and the Inter-American Court in San Jose deal with human rights matters.

The European Court of Human Rights is a very prominent court which rules on a constant basis on a wide range of human rights type issues. Most cases are brought by individuals against states. Cases may arise between States.

The Law of the Sea Convention established an International Tribunal for the Law of the Sea and a Seabed Disputes Chamber. The advantage of a specialised tribunal is its expertise in the law in question and its ability to develop a distinct body of precedent and decision.

The Word Trade Organisation has a system of dispute resolution in relation to trade agreements. It uses a combination of mediation, conciliation and arbitration. Disputes may be referred to panels made up of experts, equivalent to arbitrators. There is an appeal body which may review the decisions of the panel. Where a dispute is not resolved by agreement, the States may establish a panel. States undertake to use the relevant procedures exclusively.

Trade disputes may be very complex and involve a range of issues. They may be politically sensitive and the WTO acts in both a diplomatic and legal manner.

Regional Bodies

There is a range of other international legal organisations which have competence and roles in dispute resolution. Regional bodies such as the Organization of African Unity, the Organization of American States, the African Union, NATO, European Union are prominent. References are encouraged in the Manila Declaration building on the UN Charter.

Regional organisation provides structured settings in which states interact. They may even devolve jurisdiction and sovereignty to States as is the case in the European Union in particular. The European Union has its own self-executing systems of law in which the disputes are resolved precisely under principles of law that are made by the European Council and Parliament.

United Nations

The purpose of the United Nations is to maintain international peace and security; develop friendly relations and achieve international cooperation in economic, social, cultural and humanitarian matters; promote human rights and be a centre for harmonising actions of States towards these goals.

The General Assembly of the United Nations and the Security Council may make recommendations to resolve disputes. They may go further and bring diplomatic pressure to bear. On occasion, the UN has established particular bodies for particular purposes. States may agree to do so and may use existing machinery and conventions under the auspices of the UN. Disputes may be referred to organs of the United Nations.

The United Nations have sought to enhance its role in the area of preventative, diplomacy, peacekeeping, peace-making and peace-building following conflicts. It frequently makes frequent use of regional organisations when peacekeeping forces are required. Peacekeeping forces may be supplied alone or in conjunction with regional organisations.

Security Council

The UN has a role in settling international disputes peacefully in accordance with its Charter. The Security Council is given a key function in this regard.

The Council may make recommendations with a view to the settlement of any dispute at party’s request. It may investigate disputes or threatening situations. It has, power in relation to disputes, whose continuation might jeopardize international peace and security.

A party should first seek to resolve matters by negotiation or other peaceful means of their choice. They are to make every effort to achieve a peaceful settlement of local disputes. However, the Security Council may recommend appropriate procedures at any time.

The Security Council has the power to impose sanctions as a means of coercive means to resolve disputes and situations which might lead to a breach of international peace.