PEACEFUL SETTLEMENT OF

DISPUTES

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PEACEFUL SETTLEMENT OF
DISPUTES

 A.2(3) - All Members shall settle their international disputes by peaceful

means in such a manner that international peace and security, and
justice, are not endangered.
 A.33 of the UN Charter - The parties to any dispute, the continuance of
which is likely to endanger the maintenance of international peace and
security, shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their
own choice.
 A.33.2 - The Security Council shall, when it deems necessary, call upon
the parties to settle their dispute by such means.

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PEACEFUL
SETTLEMENT
 A.34 - The Security Council may investigate any dispute, or any
situation which might lead to international friction or give rise to a
dispute, in order to determine whether the continuance of the
dispute or situation is likely to endanger the maintenance of
international peace and security.
 A.35 - Any Member of the United Nations may bring any dispute,
or any situation of the nature referred to in Article 34, to the
attention of the Security Council or of the General Assembly.
 A.36 - The Security Council may, at any stage of a dispute of the
nature referred to in Article 33 or of a situation of like nature,
recommend appropriate procedures or methods of adjustment.

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PACIFIC SETTLEMENT

 A.37 - Should the parties to a dispute of the nature referred to in Article 33

fail to settle it by the means indicated in that Article, they shall refer it to
the Security Council.
 A.37.2 - If the Security Council deems that the continuance of the dispute is
in fact likely to endanger the maintenance of international peace and
security, it shall decide whether to take action under Article 36 or to
recommend such terms of settlement as it may consider appropriate.
 A.38 - Without prejudice to the provisions of Articles 33 to 37, the Security
Council may, if all the parties to any dispute so request, make
recommendations to the parties with a view to a pacific settlement of the
dispute.

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UN

 1970 – declaration on Principles of International Law Concerning

Friendly Relations and Co-operation among States.
 States shall accordingly seek early and just settlement of their
international disputes by negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements or other peaceful means of their choice.

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UN

 Recalling its resolutions 34/102 of 14 December 1979, 35/160 of

15 December 1980 and 36/110 of 10 December 1981,
 GA. Res.37/10 of 1982 - …They shall live together in peace with
one another as good neighbours and strive for the adoption of
meaningful measures for strengthening international peace and
security.

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DIPLOMATIC MEANS

 Settlement of disputes through discussions and negotiations.

 North Sea Continental shelf Case – ICJ Reports 1969
 ‘the parties are under an obligation to enter into negotiation with a
view to arriving at an agreement, and not merely to go through a
formal process of negotiation as a sort of prior condition ….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 positions without
contemplating any modification of it.’

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NEGOTIATIONS

 Lac Lanoux Arbitration – ‘consultations and negotiations

between the two states must be genuine, must comply with the
rules of food faith and must not be mere formalities.
 A.vi of NPT - Each of the Parties to the Treaty undertakes to
pursue negotiations in good faith on effective measures relating
to cessation of the nuclear arms race at an early date and to
nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.

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MEDIATION

 Good offices and mediation.

 Mediation is an activity in which a neutral third party, the mediator, assists two or
more parties in order to help them achieve an agreement on a matter of common
interest.
 The common aspects of mediation are:
 a difference of positions between the respective parties
 a genuine desire on the part of the parties to find a positive solution to the dispute
and to accept a discussion about respective interests and objectives
 the intention of achieving a positive result through the help of an independent,
neutral third-party not connected with any of the involved parties
 the intention of achieving a steady result, preferably a long-lasting agreement
between the parties
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ARBITRATION

 Informal procedure
 Negotiation, informal procedure, good offices, mediation as
informal methods of settling disputes.
 The Hague Conventions for the Pacific Settlement of International
Disputes 1899 and 1907.
 Modern arbitration starts by Jay Treaty of 1794 between US and
GB.
 Principles of justice and equity.

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PC OF ARBITRATION

 1900-1932 Permanent Court of Arbitration was the popular

Institution of Arbitration dealt with 20 cases.
 1953 – International Law Commission adopted draft Convention on
Arbitral Procedure.
 In Sharjah/Dubai Boundary Case the Tribunal found that these
Model Rules as a part of customary international law.

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JUDICIAL
SETTLEMENTS

 More Institutionalized.
 ICJ and a number of Tribunals set up on adhoc basis
 permanent systems like WTO dispute settlement system.
 International Tribunal for the Law of the Sea.
 PCICJ & ICJ


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USE OF FORCE BY STATES

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19 TH
CENTURY

 War was considered as a last resort to dispute settlement in Europe.

 The General Treaty for the Renunciation of War, 1928.
 Popularly known as Kellogg-Briand Pact
 A.1 condemns the war for resolution of disputes.
 A.II – non use of force rather peaceful means of dispute settlement.
 Reservation of the obligations of the League Covenant.
 Ratified by 63 countries and still in force.

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INTERNATIONAL
TRIBUNALS

 Nuremberg and Tokyo Tribunals

 China - Soviet Union hostilities in 1929
 Conflict between china and Japan – 1931
 Soviet Action against Finland – 1939
 1945 – UN Charter

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PREEMPTIVE ACTIONS

 A.55 -Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs
against a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and
security.
 Measures taken by Members in the exercise of this right of self-
defence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
international peace and security.

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SELF DEFENCE

 Right to self defence in customary law

 Caroline case
 Self preservation
 Iraqi attack in Kuwait in 2001
 SC Res. 661(1990)
 US attack on Iraq in 2003
 US placed justification under the UN SC Res. UN Doc.S/2003/251.

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REGIONAL
ARRANGEMENTS
 A.52 - Nothing in the present Charter precludes the existence of
regional arrangements or agencies for dealing with such matters
relating to the maintenance of international peace and security as
are appropriate for regional action
 provided that such arrangements or agencies and their activities are
consistent with the Purposes and Principles of the United Nations.
 2. The Members of the United Nations entering into such
arrangements or constituting such agencies shall make every effort
to achieve pacific settlement of local disputes through such regional
arrangements or by such regional agencies before referring them to
the Security Council.

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REGIONAL
ARRANGEMENTS

 The Security Council shall encourage the development of pacific

settlement of local disputes through such regional arrangements
or by such regional agencies either on the initiative of the states
concerned or by reference from the Security Council.
 4. This Article in no way impairs the application of Articles 34 and
35.
 A.54 - The Security Council shall at all times be kept fully informed
of activities undertaken or in contemplation under regional
arrangements or by regional agencies for the maintenance of
international peace and security.

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CONDITIONS

 Nicaragua Case – 1. the victim state should declare it status as

victim and request for assistance.
 2. the wrongful act complained of must constitute an ‘armed
attack.’

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AGGRESSION

 1974 – GA Resolution –
 A.1 – Aggression is the use of armed force by a state against the
sovereignty, territorial integrity or political independence of
another state or in any other manner inconsistent with the
Charter of the UN.
 A.2 - the first use of force in contravention of the Charter shall be
prima facie evidence of an act of aggression.
 A.3 – military occupation

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 Blockade of ports or coasts of a state by the armed forces.

 Attack in land, air or marine fleets of another state.

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REFUGEE LAW

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DEFINITION

 1951 – Convention on Status of Refugees

 ‘As a result of events occurring before 1 January 1951 and owing to well
founded fear of being persecuted for reason of race, religion, nationality,
membership of a particular social group or political opinion,
 is outside the country of his nationality and is unable or,
 owing to such fear, is unwilling to avail himself of the protection of that
country;
 or who, not having a nationality and being outside the country of his
former habitual residence a s a result of such events, is unable or, owing to
such fear, is unwilling to return to it.

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CONDITIONS

 1. Left their country of nationality or the place of habitual residence.

 2. he must be genuinely at risk
 3. the claimant must be fled due to the prospect of persecution, risk
of serious harm.
 4. the risk faced by the claimant must have some nexus to her race,
religion, nationality, membership in a particular social group or
political opinion.
 5. there must be a genuine need for and legitimate claim to
protection.

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1967 PROTOCOL

 Status of refugees
 OAU Convention and the Cartagena Declaration.
 1992 – Arab Convention used ‘refugee’ as well as ‘displaced’
persons.
 Convention on Stateless Persons, 1954 – stateless person as a
‘person who is not considered a s a national by any state under the
operation of its law.
 Convention on Reduction of Statelessness 1961 came into force in
1975.

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CASES

 R. V. Secretary of State for the Home Department, [1987] 1 All

E.R. 940 (H.L.).
 Sri Lankan Tamil people seeking asylum in Britain.
 The HL considered the sole question was the proper basis for the
determination of a ‘well founded fear of persecution.’
 CA – conditions – actual fear – good reason for fear – fear could
be judged objectively.
 HL – held that the genuine fear of persecution could not suffice.

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ASYLUM

 3500 years old practice

 Mahabharata also speaks of the sacred duty of refusing to
surrender a fugitive or a refugee to the enemy. (Nagendra singh,
1973).
 A.14 of UDHR provides that ‘everyone has the right to seek’ but not
granted asylum.’
 Temporary protection

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THANK YOU

RGSOIPL, IIT Kharagpur

KDR/IIT KGP/RGSOIPL/-2008