Diplomatic Methods of Dispute Settlement:
Diplomatic dispute resolution methods include negotiation, enquiry, mediation, conciliation and good office.
A. Negotiation: 7
” Negotiation ” is the oldest, most common and the simplest international dispute settlement method. The vast majority of peaceful settlement treaties recognize this as the first step towards settling international disputes. Most treaties make the failure to resolve a dispute through negotiations a prerequisite for mandatory arbitration or judicial settlement. It is therefore not unreasonable to assume that negotiations are the first in the list of means of pacific dispute settlement provided for in Article 33(1) of the United Nations Charter.
Negotiation involves dialogues between the parties concerned in order to understand and reconcile the differences between the opposing positions and opinions. It is very suitable for clarifying and clarifying the opposing arguments. It is the most reasonable way to resolve disputes, as it is a voluntary bilateral and self – help tool; the parties are directly involved in the process; no third-party intervention in the process is required.
Negotiations do not always manage to resolve disputes or differences between the parties. Third parties must therefore intervene to help the parties to settle their disputes and differences; here comes the usefulness of other diplomatic dispute settlement methods.
B. Enquiry: 8
One of the common problems preventing the successful settlement of a dispute through negotiations is the difficulty of finding out the facts that have led to the differences between the parties involved. Most global disputes involve the fact that the parties are unable or unwilling to agree on facts. This lays down the importance of the investigation procedure as a means of resolving disputes in a peaceful manner.
Many bilateral agreements were concluded with the aim of setting up fact – finding commissions to report the facts to the parties concerned. In addition, the investigation procedure has been expressed in the treaties for the peaceful settlement of disputes.
The two Hague Conventions of 1899 and 1907 set up commissions of inquiry as formal institutions for the peaceful settlement of international disputes. 9 They offered a perpetual panel of names from which the parties were able to select the commissioners. The objective of a committee of inquiry was to expedite the resolution of disputes through an unbiased and empathetic inquiry. The Commission’s report was restricted to evidence gathering and was not expected to contain any proposal to resolve the dispute in question.
When the League of Nations was formed, the means of inquiry gained new meaning. Investigation and negotiation have been seen as an integral part of a single dispute resolution process 10. The United Nations Charter explicitly lists ” investigation ” as one of the techniques of peacefully resolving international disputes.
Investigation as a distinct method of settling disputes has fallen out of favor. It was used as part of other dispute resolution methods. Its purpose is to produce an unbiased discovery of controversial facts and thus to prepare the way for dispute settlement by other peaceful methods. The parties are not required to accept the results of the inquiry, but always accept them.
The use of the investigation was obvious in international organizations such as the UN and its specialized agencies. The investigation was used in the context of general evidence gathering as part of other dispute resolution techniques.
C. Mediation, Conciliation and Good Offices: 11
Mediation, conciliation and good office are three ways of settling disputes in a peaceful manner through which third parties seek to assist the parties in reaching a settlement. All involve the intervention of an allegedly disinterested person, State, commission or organization. If the parties are reluctant to negotiate or fail to negotiate effectively, support from a third party through mediation, conciliation or good offices may be required to assist in the settlement process. This support may be requested by either party or by a third party voluntarily.
Even though there is no dichotomy in the general attributes of mediation, conciliation and good office, a theoretical and practical comparison can be made between them based on the degree of participation by a third party and the extent to which the disputants are meant to support the results of the proceedings.
Mediation is a mechanism by which an external party (third party) tries to bring the disputants together and help them to reach a solution. The third party offers help to the parties involved in a dispute. Initially, the approval of the disputants is not considered necessary, but without their consent, no mediation procedure can be initiated. The mediator takes part actively and directly in the treaty itself. He does not content himself with enabling and pleasing negotiations. It is anticipated that it will offer concrete proposals to address and resolve substantive dispute-related issues. His recommendations, however, represent nothing but suggestions. They have no enforceable strength on either controversial person. The parties to a dispute can accept or reject his recommendations.
Conciliation is a mechanism for resolving a dispute by reference to a specially formed body whose task is to clarify the facts and propose to the relevant parties’ proposals for a settlement. Besides, the conciliation proposals, like the mediators ‘ proposals, have no legal binding on those parties that are free to accept or reject them. As with mediation, conciliators can meet either collaboratively or individually with the parties. The conciliation protocols are usually established by the parties who agree to refer their dispute to an already established body, commission or a single conciliator permanently or ad hoc; third parties cannot take the lead on their own. Conciliators are nominated to a dispute by the parties. You can be nominated on the basis of your official duties or as persons in your potential.
Some describe conciliation as a mixture of investigation and mediation. The conciliator examines the facts of the dispute and proposes the settlement conditions. However, the conciliation varies from the investigation in that the main objective of the latter is to clarify the facts so that the parties can resolve their dispute by their own means; whereas the ultimate goal of the conciliation is to suggest a solution to a dispute and to win the recognition of the parties to that solution. Conciliation also varies from mediation in that it is more formal and less agile than mediation; if the proposal of a mediator is not accepted, new proposals can be submitted, whereas a conciliator usually submits one report.
If the parties to a dispute are unable to resolve it through negotiations or when they have broken diplomatic relations, but are convinced that a settlement is important to them, the use of the technique of good offices can be useful. Good offices may only be used with the pact or consent of both parties. A third party is trying to bring the disputants together so that they can find a suitable solution to their disparities through their negotiations. In this respect, the objective of the third party is to act as an intermediary, to transmit messages and suggestions in order to create or reestablish an appropriate atmosphere for the parties to negotiate or continue talks. When negotiations begin, the good offices ‘ functions come to an end. In contrast to mediation, the procedure of good offices has a limited function, which merely brings the disputants together. The mediator plays an active role in the negotiations between the disputants in mediation and can even suggest terms of settlement to the disputants. The good office method consists of different types of action designed to encourage negotiations between the parties to a dispute. Furthermore, contrary to the case of mediation or conciliation, the offeror of good offices does not meet the disputants together but separately. The applicant rarely attends joint meetings between the parties to a dispute, if ever. The role of a good office provider usually ends when the parties agree to negotiate or resume negotiations. The offeror may, however, be invited by the parties to attend the negotiations. As in the case of mediation, either or both parties to a dispute can reject an offer of good offices.
Use of mediation, good offices and conciliation has a long track record. They were the subject of many bilateral and multilateral treaties. When the League of Nations was formed, however, perpetual organs were established to fulfill the functions of these methods of pacific dispute settlement. In this context, the United Nations Charter lists mediation and conciliation in Article 33(1), but not good offices, as methods of peaceful settlement available to the parties to any disagreement. Notably, the terms ” mediation, ” ” conciliation ” and ” good offices ” were used in the practice of the United Nations with considerable lightness, flexibility and little regard for the differences between them.
Mediation and conciliation have advantages and disadvantages in comparison with other dispute resolution methods. They are more flexible than judicial arbitration. They leave more room for the wishes of the contestants and for the third party ‘s initiatives. The controversial parties remain in control of the outcome. Their procedures can be secretly conducted. Nevertheless, mediation and conciliation are disadvantaged. Their procedure cannot be launched and be effective without the consent, cooperation and goodwill of the parties concerned. The proposed settlement is nothing more than an advice for the disputants with any binding force.
Adjudicative Methods of Dispute Settlement: 12
The main disadvantage of diplomatic dispute settlement methods is that the parties have no legal obligation to accept the suggested settlement proposals. Consequently, adjudicative dispute settlement methods are preferable because they give rise to binding decisions rather than merely recommendations as in the case of diplomatic methods. It is this binding force of the decisions that distinguish these methods from other dispute settlement methods at the end of the adjudicative methods.
Dispute settlement methods consist of two types of procedures,’ arbitration’ and ‘ judicial settlement. ‘ Arbitration and judicial settlement are two methods by which differences between states are determined through court decisions. Whereas in the particular case of judicial settlement the decision is made by an accepted court, perpetual (such as the International Court of Justice) or ad hoc, it is made by a single arbitrator or arbitral tribunal in the case of arbitration. The main feature of these two methods is that a judgment or award is binding on the parties and must be made in good faith.
It was only when the League of Nations was formed that the terms ‘ arbitration’ and ‘ judicial settlement ‘ were distinguished. Under the League Covenant,’ judicial settlement ‘ meant settlement by the Permanent Court of Justice (PCIJ), while ‘ arbitration’ meant agreement by other courts. The Charter of the United Nations also recognizes this distinction, but the International Court of Justice (ICJ) replaces the Permanent Court of International Justice (PCIJ).
In the 1899 Hague Convention on the Pacific Settlement of Disputes, arbitration was defined as ” the settlement of differences between States by judges of their choice on the basis of respect for the law;”13 This same concept was refuted in the Hague Convention of 1907. 14 Arbitration procedures grew to a certain extent out of diplomatic settlement mechanisms and portrayed an advance towards an international legal order developed.
Arbitration is regarded as the most efficient and equitable means for settling disputes. It combines both diplomatic and judicial elements. It is, however, much more flexible than court settlement It gives the parties to a dispute the choice of appointing the arbitrators, designating the court’s seat and clarifying the protocols to be followed and the law to be applied by the court. In addition, the arbitration process may be kept confidential.
Without the agreement of the parties to a dispute, arbitration cannot be initiated. An arbitration agreement may be concluded to settle a particular dispute or a series of disputes between the parties. It may be in the form of a general arbitration treaty.
The general thought in the arbitration treaty as far as the appointment of arbitrators is concerned is that each of the two parties must appoint one or more arbitrators and the appointed arbitrators must appoint the arbitrator, who is known as an “umpire”. The arbitral tribunal is usually made up of three arbitrators who can decide by majority voting. The parties may concur to refer their dispute to a single arbitrator who might be a foreign head or a distinguished individual.
Judicial settlement is a settlement by an international tribunal between States in accordance with international law rules. The court’s international character lies both in its organization and in its jurisdiction. International tribunals include perpetual courts such as the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights and include ad hoc tribunals, such as the United Nations Tribunal in Libya.
Due to its prestige and jurisdiction, the ICJ is the most important international tribunal. It is the United Nations ‘ principal judicial body. All UN members are parties to the Statute of the Court, ipso facto. ICJ judges are appointed by the UN, not the parties to a dispute. The ICJ must apply the international law rules and principles set out in Article 38 of the Statute of the Court; the parties have no choice in specifying the rules to be applied by the Court. The jurisdiction of the Court shall include all disputes between States concerning the interpretation of a Treaty, any question of international law, the existence of any fact constituting infringement of international obligations and the nature or scope of the reparation to be made in respect of the infringement of international obligations.
The United Nations Charter refers in Article 33(1) to ” arbitration ” and ” judicial settlement ” as two methods, among other methods of peaceful settlement, which States are encouraged to use in seeking a solution to their international disputes. IN addition, Article 36(3) provides guidance to the Security Council that it should ” take into account that legal disputes should, as a general rule, be referred to the International Court of Justice by the parties. ” Despite this provision, the Charter does not impose an obligation on members of the United Nations to refer any dispute to the Court, including a legal one. Furthermore, the Charter states that nothing in it ” shall prevent Members of the United Nations from entrusting the solution of their differences to other courts by means of agreements already in place or which may be concluded in the future”15.