Peaceful Settlement of Disputes: Mediation to Arbitration

Because the use of force is prohibited, states must settle their disputes by peaceful means. International law offers a range of methods, from talks between the parties to binding decisions by courts and tribunals, and leaves the choice largely to the parties. This note covers the Charter framework, each method with examples, the role of the UN, non-forcible coercive measures, and India's practice.

1. The Charter Framework

• Article 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.
• Article 33(1). Parties to a dispute likely to endanger peace shall first 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.
• Free choice of means. No method is compulsory unless the parties have agreed to it; the Manila Declaration, 1982 restated this.
• Meaning of dispute. A disagreement on a point of law or fact, a conflict of legal views or of interests between two persons (Mavrommatis, PCIJ, 1924); the claim of one party must be positively opposed by the other (South West Africa, 1962)

Figure 1: The means listed in Article 33

2. Diplomatic Means

• Negotiation. The most common method; where parties are bound to negotiate, they must do so meaningfully and in good faith (North Sea, 1969), but a duty to negotiate is not a duty to agree (Bolivia v Chile, 2018)
• Good offices. A third party brings the parties together and facilitates communication without proposing terms; the UN Secretary-General often offers good offices.
• Mediation. A third party participates in talks and offers proposals; the Soviet Union's mediation produced the Tashkent Declaration, 1966 between India and Pakistan, and the World Bank's role helped produce the Indus Waters Treaty, 1960.
• Inquiry. An impartial commission establishes disputed facts; the Hague Conventions of 1899 and 1907 provided for commissions of inquiry, first used for the Dogger Bank incident, 1904, when Russian warships fired on British trawlers.
• Conciliation. A commission examines the dispute and proposes non-binding terms; the first compulsory conciliation under UNCLOS, between Timor-Leste and Australia (2016 to 2018), led to a maritime boundary treaty in 2018.

Figure 2: Third party methods compared

3. Legal Means

• Arbitration. Settlement by judges chosen by the parties, on the basis of law, with a binding award; modern arbitration began with the Jay Treaty, 1794 between the UK and the US and gained prestige from the Alabama Claims, 1872.
• Permanent Court of Arbitration. Established by the Hague Convention, 1899 and housed in the Peace Palace, The Hague; it is not a standing court but a registry and a list of arbitrators, and has administered state, investment and mixed disputes, including India's cases on the Indus Waters, the Bay of Bengal and Enrica Lexie.
• Validity of awards. An award is final, but may be challenged for excess of power or serious procedural defects; in Arbitral Award of the King of Spain (1960) and Arbitral Award of 31 July 1989 (1991), the ICJ upheld the awards.
• Judicial settlement. Decision by a standing court, such as the ICJ (Topic 49), ITLOS (Topic 29) or regional courts.
• Rann of Kutch, 1968. India and Pakistan referred the dispute to a tribunal under a 1965 agreement, and India implemented the award (Topic 6)

4. The UN and Regional Bodies

• Security Council, Chapter VI. May call on parties to settle by peaceful means (Article 33(2)), investigate any dispute (Article 34), recommend procedures (Article 36), noting that legal disputes should as a general rule be referred to the ICJ (Article 36(3)), and recommend terms of settlement (Article 37); its Chapter VI recommendations are not binding.
• General Assembly and Secretary-General. The Assembly may discuss and recommend (Articles 11 and 14); the Secretary-General may bring threats to peace to the Council's attention (Article 99) and offers good offices.
• Regional arrangements, Chapter VIII. Members should try to settle local disputes through regional bodies before referring them to the Council (Article 52)

5. Non-Forcible Coercive Measures

Figure 3: Retorsion and reprisal

States may respond to unfriendly acts by retorsion, which is lawful in itself, or to wrongful acts by countermeasures that meet the conditions in the Articles on State Responsibility (Topic 43). Armed reprisals are prohibited by Article 2(4) of the Charter and the Friendly Relations Declaration.

6. India's Practice

• Bilateralism. Under the Simla Agreement, 1972, India and Pakistan resolved to settle their differences by peaceful means through bilateral negotiations or any other peaceful means mutually agreed upon; India relies on this to oppose third party mediation on Kashmir.
• Use of third parties. India has nonetheless accepted arbitration and neutral experts under treaties, as with the Rann of Kutch, the Indus Waters Treaty and the Bay of Bengal.
• ICJ. India's declaration accepting the Court's jurisdiction contains wide reservations, including for disputes with Commonwealth states (Topic 49)

7. Frequently Asked Questions

What is the difference between good offices and mediation?

In good offices, the third party only brings the parties together and facilitates communication. In mediation, it takes an active part in the negotiations and offers its own proposals for settlement.

Is the Permanent Court of Arbitration a court?

No. Despite its name, it has no standing bench. It maintains a list of arbitrators and an international bureau that administers arbitrations, conciliations and inquiries chosen by the parties.

8. Related Topics

• Topic 43: State Responsibility. Countermeasures.
• Topic 49: International Court of Justice. Judicial settlement.
• Topic 51: Collective Security. The Security Council.