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Topic 9 Question 1
The first diplomatic method to settle international disputes is via negotiations. Negotiations are one of the simplest and most utilised form of dispute settlement for international disputes and it consists of discussions between the interested parties to reconcile divergent opinions, or at least understanding the different positions maintained. Furthermore, negotiations are often used as a precursor to other settlement procedures as the parties can decide amongst themselves how best to resolve their differences. In certain circumstances there may exist a duty to enter into negotiations and an example of this can be seen in Article 283(1) of the Convention on the Law of the Sea which provides that the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. Moreover, Where the obligation to negotiate arises, it would also imply an obligation to pursue such negotiations as far as possible and this was seen in the North Sea continental shelf cases where it was said that the obligation does not merely require the parties to go through a formal process but rather to conduct themselves in a way that the negotiations are meaningful. The court further emphasised this point in the German External Debts case which stated that although an obligation to negotiate did not necessarily imply an obligation to reach an agreement, ‘it does imply that serious efforts towards that end will be made’.  the Legality of the Threat or Use of Nuclear Weapons also showed that the legal import of the obligation goes beyond that of a mere obligation of conduct but instead the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all it aspects.Negotiations are one of the most satisfactory means to resolve disputes since the parties are so directly engaged but they do depend on a certain degree of mutual goodwill, flexibility and sensitivity.

The second diplomatic method comes in the form of good offices and mediation which involves the use of a third party, whether an individual, a state or an international organisation, to encourage the contending parties to come to a settlement. Although the line between good offices and mediation is blurry, good offices are where a third party attempts to influence the opposing sides to enter into negotiations, whereas media- tion implies the active participation in the negotiating process of the third party itself. Examples of good offices can be seen in the role played by the US President in 1906 in concluding the Russian– Japanese War, or the function performed by the USSR in assisting in the peaceful settlement of the India–Pakistan dispute in 1965. A mediator on the other hand, can be seen in the  US Secretary of State in the Middle East in 1973 where he has an active and vital function to perform in seeking to persuade the disputing parties into accepting what are often his own proposals. Furthermore The UN Secretary-General can sometimes play an important role in this form of dispute settlement and an example of this was provided in the situation relating to Afghanistan in 1988 where the Geneva Agreements of that year specifically noted that a representative of the Secretary-General would lend his good offices to the parties. In addition, The Hague Conventions of 1899 and 1907 also laid down many of the rules governing these two processes with the Conventions laying a duty upon the parties to a serious dispute to resort to good offices or mediation as far as circumstances allow, before having recourse to arms.

The next mechanism that can be used is inquiry. Inquires are used where there is a difference of opinion on factual matters between parties, in which then a commission of inquiry will be conducted by reputable observers to determine precisely the facts in contention. This was first introduced in the 1899 Hague Conference as an alternative to arbitration. Inquiries were most notably used in the Dogger Bank incident, where it contributed to a peaceful settlement after Russian ships fired on British fishing boats believing that they were hostile Japanese torpedoes. Despite its support for this procedure, this mechanism was rarely used in practice. In fact, the inquiry was used in few cases only: Dogger Bank in 1904, Tavignano case in 1912, Tiger case in 1918, Tubantia case in 1922 and Red Crusader in 1961. It should be noted that all these cases were used a long time ago, and in current times, international organisations tend to use more ad-hoc fact finding techniques as opposed to inquiries. This mechanism also has its limitations. Rather than being an exclusive mechanism for dispute settlement, it is more often used as a part or an addition to some of the other mechanisms. This mechanism can only be successful for dispute settlement only if the cause of disagreement is related to facts as the commission does not resolve the question of legality. Parties must also be motivated to accept the reality that their own version of the events may be incorrect. The finding of the inquiry has non-binding nature, except in a situation where the parties has previously agreed to the contrary.

The final mechanism is known as conciliation. It involves a third-party investigation of the basis of the dispute and the submission of a report which contains suggestions for a settlement. Although somewhat similar to inquiries, the duties of the commission of conciliation are not limited only to clarifying the questions of fact. Moreover, conciliation can be very similar to mediation, because the conciliator can act as a mediator in convincing the parties to accept certain solution. Conciliation can be provided for in treaties. This is seen in the 1969 Vienna Convention on the Law of Treaties, and the 1982 Convention on the Law of the Sea, just to name a few. Commissions of conciliation can also be established outside of treaties, like the Conciliation Commission for Palestine under General Assembly resolution 194(iii). Despite its advantages of being flexible and the fact that it may stimulate negotiations between the parties by clarifying facts and discussing proposals, conciliation is not often used. A rare example of its mechanism is in the territorial dispute between Guatemala and Belize in 2002, and the boundary dispute between Finland and Norway in 1980. With that, the best mechanism will now be explained.

The mechanism we propose is the best is negotiation. This is because of the flexibility and autonomy it retains compared to the other mechanism, since no third parties are involved. This also means that negotiation is more time efficient as a third party in other mechanisms would need to be familiar with the subject matter of the dispute and to be available during the process. It is also potentially the cheapest mechanism since no third party is involved, but this will depend on whether negotiations will lead to a successful resolution or not. However, regardless of whether an agreement could be reached, we submit that negotiations act as the first step to peaceful resolution as it can act as a precursor to other settlement procedures as the parties can decide amongst themselves how best to resolve their differences.

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Topic 9: SETTLEMENT OF INTERNATIONAL DISPUTES

QUESTIONS

1. What are the diplomatic methods used for peaceful settlement of an international dispute? Which method do you think is the most effective?

2. How effective is arbitration as a form of dispute settlement?

3. What is the jurisdiction of the ICJ?

Topic 10: USE OF FORCE

QUESTIONS

1. What does the UN Charter say about the use of force by one state against another?

2. When can one state act in self-defence?

3. Livchester is a state. Last week, a group of unknown men went into the territory of Livchester and carried out a series of attacks on various government agencies’ buildings. Many lives were lost in these attacks. A group of terrorists claimed responsibility for those attacks. Livchester believed that the terrorist group is based in the state of Manerpool. The leaders of Manerpool however refuse to give cooperation to Livchester. Livchester decides to launch an armed attack against Manerpool.

Discuss the legality of the attack if it takes place.

4. When can humanitarian intervention be carried out?

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The general rule in Article 2(4) is that Livchester should refrain from the use of force against Manerpool.

Students should discuss then the possibility of using Article 51 – can Livchester be said to be acting in self-defense? Pre-emptive self-defense?

The criteria laid down in Caroline's case.

The issue of proportionality should be brought up in this discussion.

Conclusion.

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Examples of humanitarian intervention (through use of force)

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Examples of humanitarian intervention (through use of force)

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a.      Operation Provide Comfort (US) / Operation Haven (UK)

Initiated by the US and headed by the UK in Iraq from 1991-to 1996 due to the Gulf War (where Kuwait was occupied and invaded by the Iraqi Army)

ii. The purpose of this intervention was to protect Kurdish refugees who were fleeing their homes in northern Iraq during the aftermath of the Gulf War

iii. The interveners entered the war zone and cleared the area of any threats in order to assist the Kurdish refugees to return to their homes safely.

b.      United Nations Assistance Mission for Rwanda (UNAMIR)

Established by the UN Security Council Resolution 872 during the Rwandan Civil War in 1993-1994. (Note: The war occurred between the Hutu and Tutsi population. It involved the Rwandan Armed Forces (the government) and the rebels (Rwandan Patriotic Front))

ii. The UNAMIR was infamously known for its failure to provide adequate support to minimise the number of casualties in the genocide during the Rwandan Civil War, which involved the death of approximately 800,000 - 1.000,000 people.

c. 2011 Military intervention in Libya

Led by NATO pursuant to the 1973 UN Security Council Resolution which was adopted in response to the Libyan Civil War (2011) (Note: The civil war had occurred due to a rebellion against Muammar Gaddafi’s government which sought to oust him out of government). ii. The resolution had, inter alia, demanded the establishment of an immediate ceasefire and the end of all violence against citizens and authorized all necessary means to protect the Libyan civilians.