What is an international dispute: According to Professor Lawrence, in order to acquire the status of international dispute the requisites must be fulfilled as:
1. The dispute must be between states.
2. The disputes must relate to reasonable well-defined subject matter.
3. The dispute must lead to some action by the aggrieved state.
Kinds of settlement: There are two types of settlement of international disputes such as amicable or peaceful and forcible and coercive.
Amicable or peaceful sources of settlement: Amicable means of settlement of international disputes are as follows:
1. Negotiation: The term negotiation signifies intercourse between states for the purpose of arriving at a settlement of the dispute.
According to Starke, full fledge sovereign states alone are the regular parties to international negotiation.
Such negotiations are carried on either by the heads of the states or by their accredited (recognized, accepted, admitted) agent. There are many international transactions but negotiation is the most important. Negotiation is conducted:
(1) With a view to reaching on agreement.
(2) Conferring, discussing, or bargaining to reach an agreement.
Case: Permanent International Court of Justice in the case of Railway Traffic v Lithuania and Poland, and in the case of North Sea Continental Shelf, emphasized on the obligation of the parties to negotiate and to purge them as for as possible with a view to concluding agreement. The various attempts made by India and Pakistan to settle some of their outstanding differences by exchange of note, such as, Indo-Pak Agreement on Minorities, 1950 and Indo-Pak Water Treaty, 1960.
2. Enquiry: Enquiry is also a method of amicable means of international disputes whereby facts are investigated. It may be noted that it is not an independent method and often used along-with other methods. In case of navigation disputes, enquiry report is sent to UN. The main object of enquiry is to make investigation of the relevant matters so as to establish fact, which may help the ultimate solution of the problem. For example, often Enquiry Commission is appointed in relation to the settlement of boarder disputes. The commission clarifies the facts after making enquiry into the relevant facts, for example, North Sea incident enquiry may be referred as a good example.
3. Good offices: When two states are not able to resolve their disputes, a third state may come forward and tender its good offices for the purpose of conciliation. International organization or some individuals may also offer these offices.
The third state creates such an environment as may be conducive for the settlement of disputes. Some general suggestions may also be put forward but the third party does not take active part in the negotiation. Certain examples can be referred in this regard such as:
(1) Role-played by the Russian Prime Minister Kosigin at Tashkent between India and Pakistan.
(2) Settlement of Shaat-al-Arab River boundary between Iraq and Iran in 1975 through good offices.
(3) United Nations Secretary General offered its good offices in the disputes between Indonesia and Netherlands in 1947.
(4) France offered its good offices to America and North Vietnam to settle their mutual dispute so as to end the Vietnam war.
4. Mediation (reflection, consideration): Mediation is yet another method through which efforts are made to settle international disputes. In the case of mediation third party not only offers its services but also actively participates in the talk to resolve the disputes.
The suggestions of mediators are not binding and parties are free to accept, reject, or modify them according to their own reservations.
Role of American President Roosevelt, as a mediator in the Russia-Japanese War is good example of this sort of peaceful settlement. Also Pakistan offered to America Government to play role of mediator between India and Pakistan to settle Kashmir dispute.
5. Conciliation: The term “conciliation” implies the various methods adopted by a third party to amicably settlement between two or more states. Often matter is referred to a commission or committee, which submits its report and recommends certain measures for the settlement of disputes. These proposals are, however, not binding upon parties. In the words 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.”
Example: The 1965 Convention of the Settlement of investment disputes between states and the national of other states which provides for conciliation commission for the settlement of dispute.
6. Arbitration: This is very important method of resolving international dispute by peaceful means. By arbitration we mean the method through which a dispute referred to certain persons called arbitrators. Their decision is know as award.
The parties to the dispute select these arbitrators. Although they are selected or appointed on the basis of the consent of the parties to a dispute, their decisions or awards are binding upon the parties.
Article 15 of the Hague Convention of 1899, provides, “international arbitrator has for its object the settlement of differences between states by judges of their own choice and on the basis of a respect for law.”
Following examples can be put to clarify the importance of arbitration:
(1) Argentina - Chile Frontier Arbitration.
(2) Runn of Kutch Arbitration.
(3) An important event in the development of settlement of international dispute through arbitration was Albama Claims Arbitration, 1872.
(4) The most important decision or award given by permanent Court of arbitration are:
(i) Mascot - Dhouis Case, 1905.
(ii) North Atlantic Coast Fisheries Case, 1910.
(iii) Savarkar Case, 1911.
7. Judicial settlement: At present International Court of Justice occupies the most important place so far as the settlement of international disputes through judicial process is concerned.
Article 38 of the statute of International Court of Justice enunciates that the function of the Court is to decide in accordance with the International Law, such disputes as are submitted to it and represented by the states. The decisions of International Court of Justice have not binding force except between the parties and in respect of that particular matter.
Following are the good examples of the judicial settlement:
(1) Settlement of I. D. Anglo Iranian Oil Dispute, 1953.
(2) Anglo Norwegian Fisheries Case, 1951.
8. Under the auspices (medium, means, power, instrument) of United Nation Organization: As successor to the League of Nations, the United Nations Organization, created in 1945, has taken over the bulk of the responsibility for adjusting international disputes. One of the fundamental objects of the Organization is the peaceful settlement of differences between states, and by article 2 of the United Nations Charter, Members of the Organization have undertaken to settle their disputes by peaceful means and to refrain from threats of war or the use of force. The General Assembly is given authority, subject to the peace enforcement powers of the Security Council, to recommend measures for the peaceful adjustment of any situation, which is likely to impair general welfare of friendly relations among nations.
Article 38 of the statute of International Court of Justice (ICJ): International conventions are stated in the article 38 of the statute of International Court of Justice, the first and the most important source of International Law.
The term “international conventions”: The term “convention” is used in a general and inclusive sense. It would seem to apply to any treaty, convention, protocol, agreement, and arrangement, regardless of its title or form.
|