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Setllement Of International Disputes By Peaceful Means Under International Law

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Introduction

In society, it is normal for a falling out to occur between individuals at any one time. Things are never always smooth and the same applies to States as well. However, when this happens, great care is needed when resolving the arising disputes. The methods of resolving these disputes need to be peaceful ones so as to ensure that International security, peace and justice as provided for in the United Nations Charter.

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This piece seeks to reveal the ways in which International Law has promoted peaceful settlement of International disputes and also point out a few shortcomings with special mention of how this is a requirement under Customary International Law.

Use of Force

Currently, as per the existing United Nations system the use of force is prohibited. This is reflected in the United Nations Charter and echoed in the 1970 Declaration on Principles of International Law concerning Friendly relations where States are called to refrain from the threat or use of force against the territorial integrity or political independence of any State in their International Relations. More than that, they all act in any manner that is inconsistent with the purposes of the United Nations. States are further required to settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. Just like any other rule however, there are exceptions. In as much as States are prohibited from using force there are instances that have been deemed to be permissible for them to implore the use of force.

The first exception is when force is used as self-defence. In other words as a means of self-preservation. The reasoning behind this is to ensure that states do not have to patiently submit to violations done on them by other States; giving them an option to act repulsively. The catch here however, is that States are the ones that chose what amounts to a situation that calls for the use of force. Eventually, it becomes a go to reason whenever States are questions on their acts of force and in the long run the whole matter of peaceful settlement(without force) of disputes becomes undermined as there is no way in which force will achieve peace.

The second exception is when there is express authority granted by the United Nations Security Council but all in a bid to maintain International peace and security. This is as read in article 42 and 44 of the UN Charter. The Council may, in some cases, authorize the utilization of military force by a coalition of member states or by a regional organization or arrangement. This can however only be carried out as a last resort when all possible peaceful means of settling a dispute have been exhausted, or after a threat to the peace, a breach of the peace or an act of aggression have been determined to exist.

Ways International disputes are resolved

The main aim of International Law is to maintain peace and this is done by two main techniques; the diplomatic procedure approach and the adjudication approach (by arbitration or judicial settlement[

Diplomatic procedure

Diplomatic methods entails use of amiable ways to solve disputes. These ways are often through dialogue between the concerned parties and sometimes the inclusion of third parties to assist in bringing about neutrality.

Negotiation

Negotiation usually involves discussions between the concerned parties. The purpose of this is to ensure that the both parties understand where each of them is coming from so as to better reconcile their differences. The fact that the parties are involved directly makes it an amicable means.

Good offices and Mediation

The employment of the procedures of good offices and mediation involves the use of a third party, whether an individual or individuals, a state or group of states or an international organisation, to encourage the contending parties to come to a settlement. Unlike the techniques of arbitration and adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its termination by themselves. Provisions for settling the dispute are not prescribed. Technically, good offices are involved where a third party attempts to influence the opposing sides to enter into negotiations, whereas mediation implies the active participation in the negotiating process of the third party itself.

Conciliation

Conciliation combines both the elements of mediation and inquiry. Here, 3rd party investigations are of the disputes are carried out. Afterwards, suggested settlement decisions are submitted as reports. Thereafter the parties choose whether to comply or not; usually the reports are mere proposals and thus not binding.

Inquiry

In this situation, a commission of inquiry is set up consisting of reputable observers. They are then required to ascertain any facts in contention. The UN for instance can set up these commissions. An example would be the Commission of Inquiry on Burundi that was established through a resolution of the Human Rights Council.

Adjudication

Adjudication has been defined to mean “to settle in the exercise of judicial authority; to determine finally”. When it comes to adjudication, the main difference between arbitration and judicial settlement in international affairs seems to be that whereas International arbitration has for its object the settlement of differences between states by judges of their choice, in real judicial settlement the parties in controversy submit their disputes to a permanent court or to judges who are not selected by them.

Arbitration

Accepted as ‘the settlement of differences between states by judges of their own choice and on the basis of respect for law’. This became the accepted definition of arbitration in international law. Where diplomatic methods had failed, arbitration was considered the most equitable and effective mode of settling disputes. A case example is the Belgium/Netherlands: Iron Rhine arbitration.

It involved the arbitration between Belgium and the Netherlands concerning a historical railway built in 1879, known as the ‘Iron Rhine’, that runs from Belgium to Germany, via Dutch territory. The railway was used intermittently for over a century, but had fallen into disuse by 1991. During the 1990s the Netherlands created several nature reserves on the path of the old railway. In 1998 Belgium sought to reactivate the railway on the basis of its treaty rights. The two states attempted to negotiate the terms of any reactivation project. They were unsuccessful, and, in 2003, agreed that the matter be submitted to arbitration at the Permanect Court of Arbitration.

The tribunal of five arbitrators (including one Dutch and one Belgian arbitrator) determined that Belgium’s reactivation plans were restricted by Netherlands environmental law, but that such restrictions could not be so burdensome as to deny Belgium’s right of transit nor render it unreasonably difficult. Accordingly, the Netherlands was entitled to impose a requirement to build under— and over ground tunnels.

Judicial settlement

The Statute of the International Court of Justice Article 36 provides that the court shall have compulsory jurisdiction to deal with matters under all the four classes of disputes that are described as legal disputes.

The UN and Peacekeeping

The United Nations has indeed cut itself some slack when it comes to maintenance of International peace. This has been through the organization of peace keeping missions in areas where it is deemed necessary. The United Nations has, since the year 1948, seen to it that there are Peace Co-operations put in place. This was necessitated by the happenings of World War II where there was a colossal loss of human life. To ensure that there would be no recurrence of this, under the United Nations Charter, the Security Council was set up and given the primary responsibility of maintenance of international peace and security. So far, there have been 14 peacekeeping missions in the world so far out of which half of those have been in Africa. These missions have not all been successful, that is true, but it would be unfair not to recognize the success stories of some of these peacekeeping missions.

The missions to Cambodia, Angola and Mozambique are among the notable success stories. Also ongoing are missions in South Sudan, Central Africa Republic and Mali.

The United Nations has also managed to partner with regional organizations such as the African Union which has assisted in peacekeeping. Furthermore, the UN looks to ensure that Africa is represented among nations that have veto power in the United Nations Security Council. This aims at giving Africa a voice too as the representatives have never had a permanent seat at the Security Council. As many people would expect, the peacekeepers are meant to use amicable and diplomatic means of maintaining peace wherever they are deployed. However, in some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security. This is more so when the lives of the peacekeepers are threatened.

The issue of State sovereignty has remained an issue the UN grapples with. For the UN, the fact that most States are sovereign already limits the capacity in which they can act and the extent to which it can get involved in the matters of a State. The UN cannot overstep hence sometimes there is really not much help it can give. Its ‘hands’ become tied.

Customary International Law; Obligation to maintain peace, security and justice by the International Community

There are certain rules of customary international law which are considered so vital that they cannot be contracted out of by individual states – such peremptory rules are dubbed jus cogens norms. Running parallel to jus cogens norms are what are called obligations erga omnes. Obligations erga omnes are obligations considered so vital and important within the international system (usually in the form of jus cogens norms) that any state (whether directly affected or not) may sue another state in order to compel the obligation to be met. The ICJ in the Nicaragua case confirmed that the restriction on use of force was a recognized normative regime in customary international law before the Charter.

15 April 2020

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