International Dispute Resolution Mechanism

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Introduction:

States are under an obligation to settle their international disputes by peaceful means in such a manner that international peace and security are not endangered. However states are reluctant to submit disputes to independent and impartial adjudication and have been cautious about agreeing in advance to the compulsory jurisdiction of an independent arbitration or judicial body.  Following are the methods of peaceful settlement of international disputes.

  1. Negotiations:-

Majority of the inter-state disputes i.e., disagreement on a point of law or fact, a conflict of legal views or of interests etc are settled by direct negotiations.

Negotiation is the primary vehicle for attaining settlement on the international front. It is regarded that peaceful co-existence and conciliation are more important than the characterization of one state as “guilty” and the other as “innocent”.

The obligation to enter into negotiation was endorsed in the North Sea Continental Shelf case, where the ICJ declared that

“……..parties are under an obligation to enter into negotiations with a view to arriving at an agreement…they are under an obligation so to conduct themselves that the negotiations are meaningful which will not be the case when either of them insists upon its own position without any contemplating any modification of it.”

  1. Good offices;-

Good offices take place when a third party brings the disputing states to the negotiating table and suggests a general framework for framing a settlement.

  1. Mediation:-

Mediation involves a third party; mediator. The mediator assumes a more active role then the provider of good offices and may attempt to reconcile the positions and claims of the involved parties.

Examples:-
  1. Mediation by the Work Bank between India and Pakistan on Indus water treaty.
  2. Dispute between Chile and Argentina on Beagle Channel.
  1. Conciliation:-

The task of the Conciliation Commission is to examine the claim of the parties and make proposals for a friendly solution. Even if an agreement or solution is not reached between the parties, the commissions produce its conclusion, observations and recommendations which are not binding on the parties.

  1. Commission of Inquiry:

The primary function of a commission of inquiry is to establish facts pertaining to the dispute. For example, by hearing the parties or visiting the area where breach of international law is said to be occurred. Dispute settlement may also be initiated by international organizations. For example, in 1982, the UNSC formed a fact finding committee on attempted coup in the Seychelles. A commission of inquiry refers to an international tribunal introduced by Hague Convention.

  1. Arbitration:

Definition:

“a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted.”

                                                            International Law Commission.

Arbitration presupposes and depends upon the willingness of the states involved to submit to adjudication and their desire to read an agreement or a settlement.

By article 2 of the statute of international court of Justice, the court shall consist of a body of independent judges from persons of high moral character, possessing the required qualifications in their respective statutes or law knowing persons of recognized competence in International Law. The member of the court shall be elected by UNGA and UNSC from a list of nominated persons by national groups in the permanent court of Arbitration.

A state is not required to submit a dispute to arbitration. Nevertheless, consent is a pre-requisite. Consent can be on Ad hoc basis as in the Canada, France maritime Delimitation case and as in the Guinean-Bissau and Senegal maritime Delimitation case. The identity of the arbitrators, the formation of questions to be submitted to the tribunal, the rules of law to be applied and the time limit within which an award is to be awarded are decided by the states concerned. Such issues are spelt out in a special agreement between the parties, known as compromises.

The functioning of the permanent court, therefore, presupposes that the states not only how a desire to read a settlement but they read the agreement on the issues which are the content of the compromise.

  1. International court of Justice:

ICJ has been established by the charter of the United Nation as the principle judicial organ of the UN. However, ICJ exercises jurisdiction only in respect of civil claims. Further, a state must agree to the jurisdiction of ICJ, before the Court can adjudicate on the matter.

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