This article has been written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this article, the author has explained the various ways through which international disputes can be settled keeping in mind the advancing society. Keeping the rising disputes among states in mind the number of dispute resolution tribunals are also increasing.
With the advancing society, there are agreements between the states and sometimes there are disagreements. Mostly the direct cause of war is a dispute between the states and it should be settled in the interest of security and peace. Some of the international states are mingling in disputes. With the growing demands in the state, there are growing disputes, not only between state and state but also between state and international organizations.
Most international disputes aggravate because of the fact that both the parties to the dispute are unwilling to agree on a point. This unwillingness of the parties disturbs the peace of the people belonging to the concerned state.
Role of International Court of Justice
International Court of Justice plays an important role in settling disputes because of its prestige and jurisdiction and also because it is a principle judicial organ of the United Nations.
United Nations plays an important role in settling disputes among states and organisations. Article 2(3) of the UN charter has codified that all the Member States of the UN have to settle their disputes in a manner which does not endanger peace, security and justice of any state. However, the UN charter does not define the way in which the disputes should be settled therefore the countries are free to decide in whichever way they want to settle their dispute. But still, they are refraining from aggravating the dispute. Dispute settlement charter plays an important role in determining the existence of international law obligation.
Various factors such as globalisation have a reallocated and redistributed the sovereign and economic power at the institutional level which is continuously emerging in developing countries. Sometimes this distribution of power creates false belief in the pretence of sovereignty, which creates hindrance in the proper enforcement of international dispute settlement. This creates primacy of sovereignty of the state over international law. To tackle such problems there are research guidelines available at International (Commercial) Arbitration, Permanent Court of Arbitration and the International Court of Justice. In recent time there is a trend of greater use of international dispute settlement because of the increased diversity and options of alternative dispute settlement. Although this leads to competition among the various alternative disputes settlement mechanism but it ensures that major issues such as global climate challenge is addressed at the international level.
The main purpose of the international dispute settlement is to maintain security and peace at the international level. For the implementation of the desired peace, the methods and procedures are already available in the International Law. There are various alternatives available to settle disputes. These include mediation, arbitration, conciliation, negotiation, judicial settlement and enquiry.
There are two types of International Dispute settlement mechanism based on their binding force, they are:
- Diplomat Method of International Dispute Settlement
- Adjudicative Method of International Dispute Settlement.
Diplomatic method of international dispute settlement
Diplomatic method of international dispute settlement includes negotiation, mediation and enquiry. This method generally does not have binding force on the parties to dispute. The suggestions provided by these are merely recommendations and it is up to the parties whether they want to follow it or not.
Negotiation is one of the simplest forms of settling disputes. Under negotiation concerned parties are required to put forward their point and understand the opinions of the opposition party. By following the procedure generally, parties are able to reconcile the difference. It also considered as a very satisfactory method to resolve depute since this method is voluntarily adopted by both the parties. However, it sometimes happens that both parties do not reach a consensus. It is then parties seek other diplomatic methods to settle the dispute.
In this method of dispute settlement, the facts of the dispute are jotted down through an impartial finding. The facts of the dispute are arranged in such a way as to come up with a solution which is peaceful. The result of the enquiry is not binding on the parties but in most of the cases, they do accept them.
In some cases, parties by themselves could not come to solution so in such cases it becomes essential that they should get assistance from the third party. There are various dispute resolving mechanisms where the party could get assistance from the third party, mediation is one of them. The third member who is assisting to resolve the dispute is a completely disinterested party. This third party could be a state, commission or an organization.
In mediation, a neutral third party provide his assistance to the parties in dispute. Generally, the consent of the disputants is not required but without their consent, the mediation process could not be commenced. The mediator has an active role to play in the settlement. His engagement is not only limited till making negotiation possible, but he is also expected to provide a concrete solution in order to settle the dispute. Although his suggested solution is only a recommendation for the parties, it does not have a binding force. Parties are not under the obligation to follow the suggestion.
Adjudicative Method of International Dispute Settlement
Adjudicative Method of International Dispute Settlement has a binding force on the parties. The suggestions provided by these are not merely recommendations; they oblige parties to obey the suggestions. Because of its binding force, it is considered as a very effective and equitable way to settle the dispute. It is more flexible as compared to judicial settlement in terms of letting the parties decide the arbiters, and designate the seat of the tribunal. Generally, the proceedings of the arbitration are kept confidential.
Judicial separation is also one of the forms of dispute settlement and it is more authoritative in terms of binding force. In this form of dispute settlement, an established court, for instance, the International Court of Justice, make a decision. The decision pronounced by the court is absolutely binding on the parties concerned. It is not merely a recommendation but an obligatory command which must be performed by the parties in good faith. It is a very rigid form to settle dispute since they are resolved by applying the rules of International Law.
With the developing states, the dispute arising are also of varying nature which cannot be settled by one or two dispute settling mechanism. Therefore there are emerging new ways to settle disputes in a peaceful manner. The above mentioned International Dispute Settlement mechanisms are just a few methods to show how disputes can be resolved. There are plenty of other peaceful ways through which disputes can be resolved non-violently. Efficient implementation of these methods can help creating peace all over the world.
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