This article is written by Vinay Kumar Palreddy, a student from Symbiosis Law School, Hyderabad. In this article, he describes the coercive methods available to the states to settle an international dispute and the pacific mechanisms which act as an alternative for coercive methods with special reference to the United Nations bodies.
Table of Contents
Introduction
For most of the countries in today’s world, sovereignty is a constitutional element which is of paramount importance. It imbibes in itself the power of the State to rule its own affairs by having immunity from any external interference, either directly or indirectly. This is a defined mechanism of any given nation to protect their interests on whose pillars the future of such a nation is dependent upon. But in modern history, especially in the contemporary world, there are a lot of instances where the sovereignty of a nation was at stake which usually starts with a spark causing international disputes.
Herein, it is significant to understand that international dispute doesn’t always violate the sovereignty of nations but all the instances where sovereignty is violated start with an international dispute. This is because of the reason that there are two types of measures available for the states to solve an international dispute i.e peaceful measures and coercive measures wherein the second type has the chance of leading to a sovereignty disruption. In the light of importance being given to international disputes, this article majorly deals with the dispute settlement mechanisms available to the states with significance being given to the coercive methods of dispute resolution and the alternative measures provided by the United Nations to avoid usage of coercive methods.
The concept of coercion
The coercion in resolving disputes involves non-peaceful methods undertaken by the parties for resolving the issues. It involves the force of numerous kinds which might be direct or indirect in nature. With respect to international disputes, when a dispute arises, the countries involved in will seek to proceed with the peaceful or pacific measures. These usually involve negotiation, mediation by third parties, inquiries, good offices, etc. All these peaceful measures are generally governed by the rules and regulations laid down by the United Nations through various schemes. If they turn out to be non-functional and if the dispute between the parties escalates to such an extent where it is insoluble in amicable ways, one or both the parties might initiate coercive measures against each other. These coercive measures are divided into two types:
Coercive measures short of war
These are the methods which are preceding the war and are usually used immediately after the peaceful attempts are failed. They are the non-violent methods that involve those techniques which have the potential to create pressure upon a country to function in a particular way which will be in adherence to the desired results of the country using these methods i.e coercing the State. These techniques change the attitude of the coerced country towards the dispute either because of the international diaspora’s compulsion or because of reason to protect their own economic, cultural, and social interests. These measures are Retorsion, Reprisals including Embargo as well as Pacific Blockade and Intervention.
Coercive methods through war
This is the method that is used after the failure to settle the dispute with other non-violent coercive measures. This is the trump card used by the coercing State against the coercive State where even the coercive state usually retaliates in the same manner. War involves violence to a great extent and harms the economic, societal, and legal establishments in all the countries involved in wars. Hence, this is an extreme step that is rarely taken by the countries in order to settle their disputes. Even war can be executed in two ways i.e Limited War and Total War.
Limited War is fought based on certain terms and conditions where all the resources are not allocated to the war itself. As per the interpretation given by John Garnett who is a founder of Modern Strategic Studies, Limited War is a conflict that has the potential to become full or Total War. Some of the examples of Limited War are the Korean War and the Vietnam War.
On the other hand, Total War is a violent retaliation undertaken by both the parties where all the resources are allocated to the wartime and no terms and conditions are present to restrict or govern the violence. One of the examples of Total Wars is the World Wars.
International dispute
An international dispute is a conflict between two or more countries with respect to a territorial, legal or political issue. The definition of a ‘dispute’ is given in the Mavrommatis case by PCIJ as a specific disagreement on a fact, law, or interests between persons. With respect to the dispute between countries which is known as an international dispute, the dispute involves the governments, institutions, and territories of those respective countries where they attempt to save their interests. The conflict might also be regarding natural resources, ethnicity, religion, treaties, immigration, etc. If an international dispute is not properly dealt with peaceful or pacific mechanisms, it will lead to mass violence like wars, criminal actions, terrorism, etc.
We also need to understand that international disputes are not only referred to the conflicts between the states but also to the conflicts between non-state actors like de facto regimes, national liberation wings, international organizations, etc. Usually, governments do not get involved in such disputes but still, there exists an obligation upon the parties to settle their conflicts by peaceful recourses.
UN Charter
The United Nations Charter came into force from October 1945 which also imbibed the Statute of the International Court of Justice. This Charter is governed by the United Nations and aims at maintaining peace across the world. With regard to the international disputes, Article 2(3) of the UN Charter mandates all the member States to solve their conflicts by rendering to peaceful mechanisms that will uphold peace, security, and justice. Moreover, Article 33 of the Charter enumerates certain peaceful means by which the parties to an international dispute must preferably settle their conflicts. They are negotiation, mediation, conciliation, inquiry, arbitration, etc. It also places an obligation over the Security Council to involve in settling an international dispute when it deems necessary. This also makes clear that the UN Organs must involve when international security and peace is endangered.
Herein, the significance must also be given to the fact that the responsibility to raise the issue in Security Council or General Assembly is not only rested upon the parties to a dispute but also to all the third parties that have the right to bring in such issues. In a similar way, all the non-state actors which are protected by the ban on applying force like de-facto regimes and national liberation wings. This responsibility also continues even after the initiation of violent and coercive measures in settling a particular conflict.
The measures of settlement
When an international dispute arises, certain mechanisms are available to the parties of that dispute aimed at settlement of the conflict. These methods are again divided into two types i.e amicable Methods and coercive Methods. On one hand, amicable methods mostly function on the norms laid down by the United Nations. On the other hand, coercive methods are mostly prohibited by the same organization as they have the potential to threaten peace and security across the globe. They can be enumerated as:
A) Amicable methods
The amicable or peaceful methods of settlements rendered for settling international disputes are divided into diplomatic, judicial, and extra-judicial methods. Generally, they are divided based on their evident characteristics such as the institution carrying out the resolution mechanism, the abidingness of the decision resulting out of such mechanism, parties involved, etc.
- Negotiation: This mechanism is given due importance in the course of settling international disputes after the UN Charter has come into force. In the context of international disputes, it is resourced by the disputant states themselves without any third party or country involvement. It is usually undertaken by the political representatives or diplomats of both or all the parties to a dispute. Negotiation is utilized and is an agreed dispute resolution mechanism across the globe that comes with certain advantages. One such significant advantage is the flexibility of the mechanism. This flexibility can be with respect to the dispute as well as the mutually agreed settlement. As far as dispute-flexibility is concerned, the negotiation is functional in solving the conflicts which are of political, technical, legal, or territorial in nature. As far as the outcome-flexibility is concerned, the result coming out of a negotiation is usually agreed by both the parties. Hence, there is an unlikely chance to have a dispute over the resolution. The Manual of the UN Legal Office provides a detailed procedure for undertaking negotiation.
- Mediation and Good offices: The Mediation as a dispute resolution involves a third party’s function to suggest certain possible solutions to the parties. A third party actively conducts dialogue or negotiation between the disputant parties which is usually based on the compromise norm rather than the strictures of the law. The mediators involved are from the good offices of the disputant parties. The UN Legal Manual gives importance to the Good Offices and suggests that it can act as a substitute for mediation.
- Inquiry and Fact-Finding: This is not a legally binding mechanism where both the parties establish an impartial commission to find the assertions or facts by a thorough inquiry of legal and factual circumstances. This method places an obligation upon the commission to pave a way to find the legal recourses and treaties which are infringed because of the conflict and facilitates the parties to settle by suggesting viable remedies. This mechanism would be very functional if it is utilized along with the other dispute resolution mechanisms such as mediation, negotiation, etc in order to yield the correct results. This observation is based on the fact that the Inquiry helps in clarifying the facts which are of paramount importance in dispute resolution.
- Conciliation: This is a dispute resolving mechanism which is a combined result of mediation and inquiry. The conciliation process starts with referring the dispute to a commission which essentially has two duties to conduct. The first duty is ascertaining the facts and the second duty is to come up with possible solutions to the dispute. Here, the parties are free to agree or deny the suggested solutions as the recommendations of the commission are not binding in nature. Unilateral adoption of the recommendations is also allowed in conciliation. The commission involved herein might be temporary or permanent in nature.
- Judicial Settlement: It is a form of settlement mechanism where an international tribunal adjudicates between the States by taking international law as its operational principles. An international tribunal has both the institution and jurisdiction of international nature. These institutions include the International Court of Justice, the European Court of Justice, ITLOS, etc. Among these, ICJ is the most prestigious organization as it is constituted by the Statute of ICJ by the United Nations as well as its pompous jurisdiction being spread across all the countries which are members of the UN. The judges of ICJ are impartial as they are appointed by the UN and parties have no say even with regards to the rules and regulations governing such settlement. This is a strange characteristic when compared to other peaceful settlement mechanisms that are enumerated above.
B) Coercive methods
When an international dispute is not settled by undertaking the aforementioned amicable mechanisms which essentially means that the relation between the states is already deteriorated, the parties to such a dispute undertake certain forceful mechanisms to prove their point or the subject matter in the dispute. As already said earlier, coercive methods involve the force of certain kinds. These methods are again divided into coercive methods short of war and coercive methods through war. They are enumerated and described as:
- Retorsion: This term essentially signifies the retaliatory acts of a party which are undertaken upon the commission of a particular act by another party. This is based on the principle of ‘tit for tat’. But these retaliatory acts must be in consonance with the international law and close to the prior acts of another State. At times, it shows an unfriendly gesture in the international community. However, retorsion is an accepted practice as numerous Conventions provide to take retaliatory acts in case a Member State does not follow their norms such as economic non-cooperation, trade restrictions, etc. For instance, retorsion is a frequently used tactic between India and Pakistan which is usually carried out by suspension of diplomats.
- Reprisals: Thomas J. Lawrence describes reprisals as the method of placing pressure over the other State which is using violence in their approach but are falling short of war. Reprisal is a wide method that involves all the coercive mechanisms which are utilized for getting redress. Though certain kinds of reprisal are usually illegal, they are justified under particular circumstances. These circumstances arise only when another State had undertaken certain illegal acts prior to reprisal. This form of coercive mechanism is different from retorsion in a way that retorsion disallows commission of illegal activities whereas reprisal consists of illegal activities at times. Reprisals are again divided into certain types such as positive, negative, general, and special.
Herein, the significance must also be given to the fact that reprisal is validated by international law only if the notion behind it is to settle or suppress the dispute. Moreover, there must be a prior violation of international law by another party. In a contrary scenario, the reprisal will be deemed as illegal.
As the United Nations came into force in 1945, the peaceful settlement and non-usage of force in settling disputes have become paramount important to the member states. Article 2 Para 4 of the UN Charter has curtailed the usage of force in the course of the settlement. Hence, in the current scenario, reprisals are used very rarely as it amounts to breaching the lawful order established by international law.
- Embargo: This is a form of the coercive method used by the countries where the ships or cargo is detained by disputant countries. The term ‘Embargo’ originated from ‘embarger’ meaning thereby ‘to arrest’. In the scenario at hand, the ships or likewise material of a country are detained by itself or by the other disputant country to create an economic spur between each other. When a country boycotts its own ships from entering another disputant country, it is called a Civic or Pacific Embargo. This usually happens when the country which is detaining its own vessels possesses something meant for trade and is necessary for the other disputant nation. This usually creates an economic loss for the other country. On the other hand, When one country detains vessels of another disputant country, it is known as Hostile Embargo. In this scenario, the coerced country (the country whose ships are detained) is indirectly pressurized to arrive at a settlement by the coercing country.
On one hand, this form of coercion can be undertaken in the individual role of a country and is also allowed by the United Nations. But the only bar is not to disturb international peace and security. On the other hand, the collective embargo by various countries can also be imposed under the authority of the United Nations. This usually happens when a Member State acts against the norms and principles of the UN which are enforced through various conventions, regulations, etc.
- Pacific Blockade: Pacific Blockade is a coercive mechanism where the coastline of a particular country is blocked by another one by utilizing warships or other equipment with an aim to stop trade with that particular country. This is usually used for the purpose of showcasing a political or economic dominance over that country. Any acts in furtherance of a pacific blockade must be informed by the coercing country. However, a pacific blockade is being treated as an illegal means since the inception of the United Nations. On the other hand, the collective blockade is allowed by the prior permission being taken from the Security council. One of the earliest examples of the collective blockade is the Netherlands blockade in the year of 1833 where the British and French forces blockaded the Netherlands until the Treaty of Belgium Revolution of 1831 was effectuated properly. The recent instance is the Iraq blockade in 1990.
- Intervention: Professor Oppenheim defines Intervention as the dictatorial intervention by a third party State in the affairs of both or one disputant State to change the course of things. The interference of the third parties determines the communication between both the disputant parties which is a threat to their internal affairs. As far as the major instance of intervention is concerned, in 1895, WARSAW Pact members intervened in the Czechoslovakian affairs, and Russia, France, and Britain interfered with Japan to relinquish parts of China.
Intervention is categorically divided into three types by Professor Winfield. They are:
i) Internal intervention: If the interference is made by a State into the disputant sections located in another state, such kind of interference is called Internal intervention.
ii)External intervention: This is a type of intervention where a third party joins any side of the disputant parties in order to oppose another. For instance, Italy joined the side of Germany to oppose the U.K in the Second World War though it doesn’t have any role in the dispute.
iii) Punitive intervention: It is a form of redress or reprisal undertaken by the third party against a disputant party. For instance, if a State participates in a pacific blockade against a disputant state because of the reason that it has breached a convention or treaty to which it is a signatory.
- War: After all the peaceful mechanisms and the coercive methods short of war are utilized in settlement of a dispute, certain circumstances turn out to be in such nature that countries consider the option of going to war. These circumstances require the use of violent force for arriving at a solution. Even this mechanism is divided into two types based on the intensity and the violence involved. They are:
- Limited War: In this type of war, both sides are governed by certain limitations and regulations and they participate with mutual consent. If the aims of the parties are achieved during the war, it automatically stops the war, and relationships are normalized. The objective of limited war is to achieve a limited goal which is in contrast to the total obliteration. When equilibrium is possible, the international community regularises a limited war by laying down restrictions.
- Total War: Total War is a brutal war fought by both countries without any norms or regulations governing it. It violently annihilates the parties to such an extent that it takes decades together to recover from the effects of the war. This kind of war is exceptionally implemented only in certain cases where the relations of States which are parties to the dispute are totally irremediable. Some of the instances of total war are 1945 US bombings on Japan’s Hiroshima and Nagasaki. Moreover, there is a dire transformation in warfare modes with the rise of technology in contemporary times.
Initiatives undertaken by United Nations Security Council
The United Nations places a responsibility upon itself to settle international disputes in a peaceful manner. This is evident in the United Nations Charter adopted in 1945. Chapter VI of the Charter describes the system of the pacific settlement of disputes. The major concern must be given to Article 33 of the Charter which compels the disputant parties to undertake the peaceful means in order to settle their conflict. In case this compulsion doesn’t work, the Security Council comes into the picture. Article 24 (1) of the UN Charter confers the fundamental authority upon the Security Council to deal with the unsettled international dispute. Article 11(3) prescribes the ways in which such authority can be exercised as operating upon its own discretion, invitation by member State, UN General Assembly, or by a disputant party. This institution follows three methods in solving a dispute between countries. Firstly, as per Article 33(2) of the UN Charter, the Security Council calls upon both or all the disputant parties and attempts to bring them at a settlement through pacific modes of settlement enumerated in Article 33(1). Secondly, as per Article 36(1), recommendations to follow appropriate methods of the settlement will be made to the parties. Article 37(2) determines the third and final course where the Security Council suggests some of the relevant terms of the settlement. While these courses of action are being undertaken by the Security Council to maintain peace and security, the UN General Assembly is not precluded from operating in the same path and it can do so by following appropriate norms.
The Security Council’s duty is not only stated in Chapter VI of the Charter but also in Chapter VII which ascertains those circumstances where enforcement must be used and in Chapter VIII which governs Council’s role in regional arrangements.
Initiatives undertaken by United Nations General Assembly
The UN General Assembly (henceforth referred to as UNGA) also plays a major role in settling international disputes in a peaceful manner. Article 35 of the UN Charter confers the responsibility to bring any dispute before UNGA upon the Security Council, any UN member State, or any of the disputant parties. After a dispute or issue is brought before it, the General Assembly suggests certain methods and procedures of settlement or adjustment as per Articles 11, 12, and 14 of the UN Charter. These suggestions are mostly governed by the resolutions made by the UNGA with respect to the pacific mechanisms in settling a dispute.
The first of such resolutions is with regards to the inquiry or fact-finding i.e resolution 46/59, which was adopted by UNGA in 1991. This contains the detailed procedure to be followed as per the phases of inquiry. Secondly, the General Assembly adopted resolution 50/50 in 1995 which governs the conciliation proceedings. It majorly consists of the model rules of the UN specifically dealing with the conciliation in settlement of international disputes. Thirdly, as far as negotiations are concerned, UNGA adopted resolution 53/101 in 1998 with the name of ‘Principle and Guidelines for International Negotiations’. The primary focus of this resolution is to guide States to act in good faith while undertaking negotiations so that the proper results will be yielded.
Arbitration
Arbitration is an alternative dispute resolution mechanism that is governed by an agreement entered into by the disputant parties even before the dispute had arisen. The resolution flowing out of arbitration is binding in nature because in arbitration, independent parties act as arbitrators in a private judicial manner. The decision or the resolution resulting from arbitration is known as an award. In arbitration, the disputant parties choose an impartial person or authority to settle the dispute by conferring jurisdiction through an agreement. Hence, it seems to be an effective form of an alternative mechanism to the litigation with a lot of advantages involved in it. From a historical perspective, commerce, and labour were the major areas where arbitration was employed to solve disputes between the independent parties as well as the authorities including States.
This is an effective form of pacific tool which can be used in settlement of international disputes. The Hague Peace Conference of 1899 is a milestone in the history of arbitration as an international dispute settlement mechanism. This conference led to the establishment of the Permanent Court of Arbitration (PCA) in the Peace Palace in The Hague. The PCA has competence over all the international disputes which have an agreement to refer the dispute to the arbitration. The institution also has a list of arbitrators who are elevated by the member states of the Hague Convention and the disputant parties can choose the arbitrators. Moreover, ‘Arbitration’ was interpreted by the Hague Convention in light of international disputes as a settlement mechanism of conflicts between States which is determined by the judges of their choice who decide based on legal principles. As international law is evolving day by day, arbitration is being given much more importance as a peaceful settlement mechanism. Moreover, as arbitration imbibes diplomatic and judicial procedures which are considered as paramount principles in relationships between all countries, it is considered as a more acceptable and valid form of peaceful settlement method.
Conclusion
In light of all the aforementioned coercive methods, it is quite clear that they are rarely used in solving the isolated international disputes. Only in those circumstances where the disputes seem to be longstanding and irremediable, the parties take the recourse of coercive methods. Among these methods, disputant States go to war only in the rarest of rare cases. Moreover, as the UN constantly attempts to avoid coercive methods by giving significance to the peaceful mechanisms, the element of coercion in settlement mechanisms has become even more isolated in nature. Hence, in all the cases, the disputant parties must undertake the pacific mechanisms to solve their disputes to preserve universal peace and security.
References
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