We cannot define the word ‘dispute’. But we can say that dispute is an argument about a fact or law, a quarrel of legal opinions or profits between two persons. 2 An argument can be arising between the parties on various grounds like political, legal, etc. 3 A dispute is legal or political and is wholly dependent on the state’s approach. When the dispute is solved through the law then the dispute is considered a legal dispute. But the dispute turns political when the result of the dispute is opposed to the states. So, we can say that differentiating the dispute from legal to political is very hard. International Law has given procedures for resolving disputes only for legal disputes, not for political disputes. There must be a difference between legal and political disputes. When there is an argument between two states regarding if a specific dispute is legal or not then the settlement of the dispute is done by the Court’s decision. 4 There are two ways to settle a legal dispute that is with the help of pacific or compulsive means.
Amicable Means (PACIFIC MEANS)
The Charter of the United Nations has accepted an amicable resolution of a dispute is the United Nations principle. These peaceful means for the resolution of disputes have been given under United Nations Charter Article 33. 5 The peaceful means are ‘negotiation’, ‘inquiry’, ‘mediation’, ‘conciliation’, ‘arbitration’, ‘judicial settlement’, or any other means, etc., with the help of all these means parties can settle their disputes. Every State has to settle disputes without losing the peace and security and justice of the nations.
The amicable method for dispute settlements is classified into; Extra-Judicial Settlement and Judicial Settlement. When a dispute is resolved with the help of an understanding between the opponent states then it is ‘extra-judicial settlement’, which is also known as ‘political or diplomatic procedures. The legal process where the settlement is done as per the International Law with the help of a third neutral party then it is known as ‘Judicial Settlement’ and the result of this settlement is binding on both disputant states. The following are the procedures for the peaceful settlement of disputes:
Extra-Judicial Peaceful Means
a) Negotiation or Agreement:
When opponent states resolve their dispute through a conference or modify their difference by themselves then it is known as ‘Negotiation’. Negotiation assists the opponent party to conduct the required change by mutual consent. This is a simple form of peaceful settlement of the dispute. The success of negotiation depends upon the degree of admissibility of the claims of one party by the other party. But sometimes it becomes very difficult for the disputant party to identify the exact and correct facts which are responsible for raising a dispute. The boundary dispute between India and Sri Lanka has been settled in 1974. The outstanding differences between India and Pakistan have been settled at the ‘Simla Conference.’
b) Mediation Good Offices :
The third-party that is ‘Mediator’ gives a piece of advice to solve the dispute after entering into a discussion with the disputant states. The ‘parties’ or the ‘Security Council’ appoints the mediator. The mediator can be a state or a person. In 1966, ‘Tashkent Agreement was made to solve the argument between India and Pakistan with the mediation of ‘Soviet Premier Kosygin’. 6 On the other hand, in good offices, the meeting of the disputant parties has been arranged by a third party to settle the dispute by negotiation to reach a peaceful solution. But the third party does not participate and gives its suggestions to the parties as in the matter of mediation. The third-party offer its good offices when the parties fail to negotiate. when they have failed to negotiate. The ‘UK Prime Minister’ gives his good offices to the parties of India and Pakistan which resulted in the parties agreeing to an ‘Arbitral Tribunal’ for the
Conciliation is different from mediation, inquiry, and arbitration. The committee or commission investigates the basis of the dispute when the dispute is referred to them. After investigation and finding out the facts the committee or commission make a report which includes suggestion or proposal for the settlement. E.g., ‘American Treaty of Pacific Settlement of 1948’, ‘Pact of Bogota 1948’, ‘European Convention on Peaceful Settlement of Disputes 1957’.
During the inquiry process, the commission which includes neutral investigators appointed to determine the facts of the disputes. The Commission discovers the facts from the legal point of view, which is helpful to explain the question of facts or question of law, or both. States who do not want to submit and solve their disputes in an agreement using diplomacy.
e) Through United Nations:
i) General Assembly:
In 1974, an Ad hoc Committee was established by the ‘General Assembly to review the charter of the UN. In the following year, the Assembly decided to restart the Ad hoc Committee as a Special Committee on the Charter of the UN to strengthen the role of the organization.
ii) Security Council:
‘Security Council’ resolves the disputes between the party peacefully with the help of various modes given in the ‘UN Charter.
Judicial Settlement is a procedure where a dispute is resolved by the ‘International Tribunal’ as per the regulations of International Law. The judicial settlement includes United Nations Tribunal for Libya, the Arbitral Commission on the property, etc.
A dispute is submitted to the tribunal for the legal decision of resolution of a dispute by the disputant parties. But the parties; consent is necessary for the arbitration. The consent can be acquired before or after the dispute has been arising between the parties. The special agreement where consent has been conveyed is known as ‘compromise’. The appointment of arbitrators is done by the disputant parties or the procedure given in an arbitration agreement.
Tribunal consists of a single or several arbitrators. Currently, it has 5 or 7 members. If disputant parties fail to appoint an arbitrator, then the same can be appointed by the Head of the International Court, Secretary-General of the UN as per the provisions in the treaties.
b) International Court of Justice:
The International Court of Justice was founded on 26th June 1945 and its headquarters is situated in Hague, Netherlands. Its main function is to clear up disputes between States and disputant parties can be only states. Kulbhushan Jadhav Case (India and Pakistan). 7 The ‘Permanent Court’ used to decide the disputes of the States before the foundation of the International Court of Justice. The ‘permanent court power is dependent solely upon the disputed parties consent.
In a nutshell, the Pacific methods for the resolution of disputes give the advantage to keep and continue peace and security of the states by using various dispute settlement means mentioned above. This settlement means avoiding the chances of war and violence. But we should keep in our mind that unless the nations and the citizens of the nations are not ready to throw away the conflict then international peace would not be established.
1 ‘Peaceful Means of Dispute Settlement, ( Mohit Choudhary)
2 ‘Peaceful Means of Dispute Settlement, ( Mohit Choudhary)
3 ‘ The Mode of Settlement of International Disputes and its various types, (Pankaj Sharma)
4 ‘Settlement of Disputes in International Law’, (Harsh deep Singh, 22nd April 22)https://www.legalbites.in/settlement-of-disputes/?infinitescroll=1