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MODES OF DISPUTE RESOLUTION UNDER INTERNATIONAL LAW

To understand the process of settlement of dispute in the international substructure, there is

sprima facie need to understand the meaning of “disputes”. The dispute has wide range of
interpretation and hence it become to give precise definition of the same. It means disagreement
two states arising from claim and counter claims concerning a matter of fact, law and policy are
an inevitable part of international relations and frequently led to armed conflict.
Generally, there are two grounds on which disagreement can arise between two parties: Legal or
Political. The distinction between two is purely subjective. It is primarily attitude of state that
decide whether dispute is legal one or political one. Owning to the involvement of state, it
become difficult to distinguish between two. For a dispute to be regarded as legal one state must
desire it to solve on basis of law. However, the distinction between two become extremely
essential because the procedure laid down in international law is only legal dispute. In Nicaragua
v. Honduras, a case concerning boarder and trans-border Armed conflict, the court clearly stated
that it is only concerned with legal aspect of dispute. If a case so arising involve both the legal
and political aspect, in advisory opinion given in legality of the threat or use of nuclear weapons
that the presence of political aspect will not ignore question of law.
In International law ‘dispute’ must be taken in restricted sense as it does not concern all forms of
disputes but only legal disputes. In international law there are two have been two methods
devised for settling legal disputes
• Amicable or pacific means of settlement,
• Coercive or compulsive means of settlement.

AMICABLE OR PACIFIC MEANS OF SETTLEMENT:

The idea of pacific means of settlement of dispute of peaceful settlement of dispute developed in
international law during its ‘classic’ period when there was no general prohibition on the use of
force. One of the most important HAGUE CONVENTION 1899 for the peaceful settlement of
dispute. The UN prohibit the use of force in Article 2(4) and require all member states to resolve
dispute in peaceful way such as peace, security and justice is not endangered. However, the
concrete obligation from this provision is controversial and there is no agreement on term
‘international dispute’. Chapter 4 of UN charter is completely devoted for this purpose, but as
stated in Article 33(1), it is limited to certain type of disputes, namely those ‘the continuance of
which is likely to endanger the maintenance of international peace security’.
Article 33(1) of UN Charter gives a list of usual methods of the peaceful settlement of disputes
between states in international law:

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Negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional

agencies or arrangements, or other peaceful means of their choice.1

These methods can be categorized into:

1. Diplomatic means of dispute settlement,
Diplomatic means include negotiation, meditation, conciliation, good offices, and inquiry.
2 Judicial means of dispute settlement, and
Judicial means are arbitration and adjudication leading to a legally binding third party decision.
3 Dispute settlement procedures among member states of international organization.
These are settled by UN and regional agreement.
I will focus on diplomatic and judicial means for settlement of dispute.

DIPLOMATIC MEANS OF DISPUTE SETTLEMENT:

Negotiation:
This is regarded as the simplest form of settling disputes, where the concerned parties settle the
dispute themselves by discussion or by adjusting the disagreement, the process is called
negotiation. International law is not different its main aim is to resolve dispute by negotiations.
A duty of concerning state is to settle their disputes peacefully according to Article 2(3) of UN
charter amd from the duty listed in the Friendly Relation Declaration of 1970 to select such
‘means as may be appropriate to the circumstances and nature of the dispute’.
As noted by ICJ in the North Sea Continental Shelf cases the party to the dispute may even e
under the obligation so to conduct themselves under the That negotiation is meaningful2.Specific
obligation may arise under Article 283 of the 1982 Law of the sea convention which aims to
dispute parties remain in contact and exchange views till final decision.3
But negotiation is not always a good method of settling dispute. Neutral third parties seldom take
part in negotiation; those means there is no impartial machinery for resolving the disputed
questions of fact. Another striking fact is that when the disputed states are unequal the ‘small
state’ has to abide by the decision of ‘big states’. In 1976, India and Pakistan have settled their
pending boundary disputes in Simla Conference through the negotiation method.

1
See C Tomuschat, Article 33, in Simma CUNAC, 97-106.
2
ICJ Rep. 1969, 3, at 47.
3
Ibid.

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GOOD OFFICES AND MEDIATION:

When third party assist in solving dispute between concerned states to reach agreement. There
have been many instances where third party is appointed by themselves or by security council eg.
appointment made by security council in 1949 McNaughton, in 1950 Dixon, in1951 Graham
were a few. It is to be noted that third party is in no obligation to accept such appointment. The
good offices by Robert Menzies-the PM of Australia were rejected by India for settlement of the
Kashmir issue. The view of third party includes the character of ‘advice’ and they by no means
have a binding force.
This can do by either mediation or good offices.
MEDIATION:
The third party involve is known as the mediator. The mediator is always expected to be just and
impartial. In the process of mediation, the mediator participates in the discussion, gives his views
and suggestions in resolving the dispute. The mediator is usually known to settle the disputes as
he may even help in signing the treaty embodying the settlement that is reached.
In the dispute between Argentina and Chile over the implementation of the Beagle Channel
award4, both sides accepted the Cardinal Antonio Samore as a mediator, upon the proposal by
pope. Examples of successful mediator involve dispute between India and Pakistan on the waters
of the Indus basin between 1951 and 1961 the World Bank mediated successfully by granting
financial aid.
GOOD OFFICES:
Good offices is basically through which the third party either arrange for the meeting between
the conflicting parties or act in a manner through which a peaceful settlement can be reached. In
mediation third party is directly involve while in good offices third part is not directly involve
when parties failed to come to any result after negotiation then third party provides good offices
for settlement of dispute. Although Para 1 Article 33 does not refer to good offices as a mean of
settlement of dispute, but it may not be read in an exhaustive manner.
The Prime Minister of the United Kingdom, James Harold Wilson, had lent his good offices to
India and Pakistan to reach an agreement in reference to the Kutch issue. In 1947, there was a
dispute between the Republic of Indonesia and the Netherlands, wherein the Security Council
rendered its good offices.
CONCILIATION:
The Institute de droit international in 1961 defined conciliation as follows:
A method for the settlement of international disputes of any nature according to which a
Commission set up by the Parties, either on the permanent basis or an ad hoc basis to deal with a
dispute, proceeds to the impartial examination of the dispute and attempt to define the terms of a

4
Beagle Channel Arbitration, ILM 17(1978), 623.

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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.5
The definition is generally accurate, but fails, however, to recognize that sole conciliators may
also be appointed, although this is not the rule in practice.
Conciliation is a process where a commission or a committee is appointed, and dispute is
referred to them to find out facts and write a report for the settlement of dispute. This method is
totally different from previous one as proposals are made after finding of facts in dispute.
The idea of conciliation commission was born in 1899 and 1907 Hague convention for the
pacific settlement of disputes. Several treaties were made after the World War two were made
through Conciliation Commission’s General Assembly under Article 10 and 14 and security
Council under Article 34 has power to appoint a commission to settle dispute.
Treaties signed by Conciliation Commission some most important one are.
• Pacific settlement (1948)
• Pact of Bogota (1948)
• The Vienna Convention on protection of the Ozone layer

FACT FINDING OR INQUIRY:

It is an method for establishing facts in international law can be used for various purpose,
including the decision making of international organization. To carry out an inquire the main aim
is to find out impartial facts in a good way, thus, to prepare a peaceful way of settlement of
dispute. The task of establishing the facts may also be combined with their legal evaluation and
that of making recommendations for settlement of dispute.
In 1904, the Russian Baltic fleet, on is way to a Pacific o engage in war with Japan, fired upon
British fishing vessels operating around the Dogar Bank in the North Sea, alleging that it has
been provoked by Japanese submarine. The parties appoint a Commission of inquiry composed
of senior naval officers from Great Britain, Russia, the United State, France and Australia with
ask not only to find responsibility but also who is in default under the jurisdiction of both parties.
On the basis of report of the commission, Britain withdraw its insistence on the punishment of
Russian Admiral and Russia agreed to pay in compensation.

JUDICIAL MEANS OF DESPUTE SETTLEMENT:

It includes the methods that are binding upon both conflicting parties, both also require consent
of the parties. Adjudication is performed by permanent courts judge are already selected,
procedure is fixed and law which is to be applied is pre-determined.

5
Article OF the Regulation on the procedure of international conciliation, Ann. IDI 49-11(1961)

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ADJUDICATION:
Adjudication is legal ruling or judgement, usually final, but can also refer to the process of
settling a legal case or claim through the court or justice system, such as a decree in the
bankruptcy process between the defendant and the other parties. Adjudication hearings are
similar to arbitration hearing process. The result of the process is a judgment and court decision
that is legally binding. This legal process differs from others evidence seeking court cases. The
International Court of Justice is most important one.
THE INTERNATIONAL COURT OF JUSTICE:
The constituent treaty of the PCIJ was signed in 1920 and come into force in 19216.The is chosen
not by the parties to the disputes but is elected by League of Nation. The has double function to
settle disputes submitted by the states in accordance with international law and secondly to give
advisory opinions referred to it by international organs and agencies duly authorized to do so.
There are three ways by which the ICJ resolves the case are bought before it:
1. Parties can settle their dispute by themselves, and cases can be withdrawn by the state or
the court can give the verdict.
2. ICJ uses International Law are it’s guiding light.
3. Writing by experts is also referred to.

ARBITRATION:
Arbitration is the process of using the help, advice and recommendation of third party called
arbitrator to settle dispute. In International law arbitration involve states and disregards the area
of International commercial arbitration between private parties7.
The ICJ in the case of Qatar v. Bahrain, stated that the word arbitration for the purpose of
international law, usually refers to the settlement of disputes between states by judges of their
own choice.
An agreement was concluded between India and Pakistan to refer the Kutch dispute to an arbitral
tribunal. There are four main characteristics of arbitration:
1. A tribunal is constructed to hear a particular case only.
2. An arbitral tribunal does not its own jurisdiction but has to decide the dispute as
submitted by the parties.
3. It is required to make its award with reference to the rules adopted for that purpose.
4. The parties are known to have control over the procedure to be followed.

6
Akehurst’s book ,ch 2, pg 24-5
7
With regards to the advantages of international arbitration in commercial disputes,see A.Redfern/M.Hunter, Law

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CONCLUSION:
In nutshell, international law always struggled to achieve its main objective was maintenance of
peace. Both diplomatic and judicial means for settlement of dispute has same purposes except of
difference of circumstances. The central idea has always been that of order and security. Efforts
and attempts have always been made so that any form of chaos is minimized, and peace is
promoted. Law has proved itself to be that element which binds the members of the society. It is
fair to say that international law has always considered its fundamental purpose to be that
element which binds the members of the society. Peaceful as well as compulsive means are used
under International Law for the peaceful settlement of dispute.

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