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Pacific settlement of disputes: Various methods
Barrister Harun ur Rashid
All states have some kind of disputes with their neighbours. Either disputes are related to land borders or sea boundary. In essence disputes are territorial in nature. Many of such disputes arise because of colonial rule. As the colonial masters they left, they also left behind poisoned chalice or sources of friction.
States are obligated to endeavour to resolve their disputes peacefully. In 1945, the founding fathers of the United Nations laid down the methods of peaceful settlement of disputes in Article 33 of the UN Charter. States are at liberty to choose any of the methods enumerated in that Article to resolve disputes peacefully.
Does it apply to all inter-state disputes?
There is a debate whether this principle of peaceful settlement of disputes is applicable to all inter-state disputes or exclusively to an inter-state that is likely to endanger international peace and security. It is argued that certain inter-state disputes are localized and may not threaten international peace and security and therefore do not come within the ambit of Article 33 of the UN Charter. On the other hand, there is an overwhelming view of legal scholars that the principle should be applied to all inter-state disputes.
What are the various methods of peaceful settlement of disputes?
Article 33 of the UN Charter lists six methods of peaceful settlement of disputes:
(f) Judicial Settlement
Let us examine briefly in the following paragraphs the ingredients of each of the methods enumerated above and how do they work between the parties.
Negotiation heads the list of methods in Article 33. It is argued that it is not accidental but deliberate because negotiation opens up a dialogue between the parties and provides the parties withy the first opportunity to know each other's position.
The traditional and often mode of resolving disputes peacefully is through negotiation. Negotiation is essentially a process of bargaining between the two parties in search of a solution of disputes.
Negotiation presumes that at some point of time compromise may be made of each other's first stated position. The basic technique of negotiation is persuasion and in some instances, it is compared to a game, where the ball is always on the move and all efforts are made for the ball not to sit with one side.
Negotiation can be done orally across the table or through written communications. Negotiation is an art and involves inspiring confidence and trust in the minds of other party in placing the point of issues that are involved in dispute as fairly as possible. It requires coolness, patience and appreciation of other's views.
Often disputes can be of emotive nature and thus objectivity may be lost in perceiving real issues in a dispute. What the enquiry does is to elucidate the points of difference and agreement to both sides. This method may facilitate the understanding of the issues of disputes.
The Hague Convention of 1899 created this method of settling disputes. Later it was incorporated in the League of Nations. The General Assembly of the UN has over the years sent many fact-finding missions as part of enquiry in the field to determine the issues involved.
The US and Chile in 1992-93 set up an Enquiry Commission to determine the amount of damages to be paid to the US by Chile for allegedly killing two persons in Washington by Chilean intelligence officers and the dispute was settled.
The UN is empowered to call the parties concerned to explain their position on a dispute and may attempt to narrow their differences, reconcile their opposing views and if necessary recommend a just and fair solution.
Mediation is adopted by parties because in some disputes the degree of bilateral relationship reaches a point that direct negotiation is unlikely to resolve disputes.
Mediation is an active involvement of a third party to offer solution to a dispute. A mediator acts as a "middle person" to suggest the terms of settlement to a dispute.
A mediator examines the issues and offers his/her suggestions and ways to settle a dispute. The function of a mediator consists of reconciling the opposing claims and reducing the differences between the parties.
The mediator must have the full confidence and trust on the impartiality of the mediator if any success can be achieved.
In 1978, US President Jimmy Carter mediated between Egypt and Israel and achieved the Camp David Agreement in March 1979. Under the Agreement Egypt recognized diplomatically Israel and in return Israel withdrew its troops from Sinai Peninsula, occupied by Israel in the 1967 war.
Conciliation is a method that combines the characteristics of both enquiry and mediation. While mediation is ordinarily carried out by one person, conciliation is usually conducted by an organization (such as ASEAN or SAARC or NATO) or by a group of States
( Malaysia, Bangladesh and Pakistan were given the task by OIC to broker peace between Iran and Iraq war during the 80s).
The General Assembly of the UN adopted and circulated all member-states Draft Rules For the Conciliation of Disputes in 1990. the rules deal with the initiation of conciliation proceedings and the selection of number of number of conciliators from an organization or of group of states.
Arbitration is a quasi-judicial method of settlement of disputes. Parties agree to select arbitrators to resolve the dispute.
Arbitration has a long history. During the first part of the 19th century, arbitration was popular partly because there was a widespread belief that arbitration is an a form of diplomacy. However modern arbitration takes place where a tribunal, manned by three or five arbitrators, come to a view based on law.
In South Asia, India and Pakistan agreed to arbitration to resolve the land border dispute of Rann of Kutch ( a marshy land between Sind and Rajasthan) in 1968 and agreed to abide by the decision. Other arbitration cases include the Channel Continental Shelf Case between France and Britain (1978) and Taba Arbitration between Egypt and Israel (1988).
Judicial settlement is a decision by a Court. The Court is an independent body and state parties may refer to Courts. The International Court of Justice is an integral part of the UN and the Court, located at the Hague (the Netherlands), decides inter-states disputes. States must agree to refer to the Court for decision. However there is reluctance of states to refer disputes to the Court.
Many cases were decided by the International Court of Justice and the decisions have significant impact on rules of international law.
Some of the important cases are Anglo-Iranian case (1950), Anglo-Norwegian Fisheries case (1951) and North Sea Continental Shelf Case (1969) between Germany and Netherlands and Denmark.
The recourse to methods of pacific settlement of disputes is an important obligation by a member-state of the UN. There should be rule of law in international relations and peaceful settlement of disputes can be achieved by selecting one of the above six methods underscored by the UN Charter.
All member-states are to refrain in their international relations from the threat or use of force against any state and by peaceful settlement of disputes, states strengthen universal peace and order.
The author is Former Bangladesh Ambassador to the UN, Geneva.