The Settlement of Disputes by Peaceful Means

1. The Settlement of Disputes by Peaceful Means • Diplomatic methods of dispute settlement • International institutions and dispute settlement • Binding methods of disputes settlement

2. The Convention on the Law of the Sea and the Settlement of Disputes • Part XV of the United Nations Convention on the Law of the Sea requires that States Parties to the Convention settle any dispute between them concerning the interpretation or application of the Convention by peaceful means in accordance with article 2, para. 3, of the Charter of the United Nations and shall seek a solution by the means indicated in article 33, para. 1, of the Charter. Where, however, no settlement has been reached, article 286 of the Convention stipulates that the dispute be submitted at the request of any party to the dispute to a court or tribunal having jurisdiction in this regard. Article 287 of the Convention defines those courts or tribunals as: • (a) The International Tribunal for the Law of the Sea (established in accordance with Annex VI of the Convention) including the Seabed Disputes Chamber; • (b) The International Court of Justice; • (c) An arbitral tribunal constituted in accordance with Annex VII of the Convention; • (d) A special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. • Legal framework within the United Nations Convention on the Law of the Sea: • Procedures for settling seabed-related disputes (see Part XI, section 5, articles 186-191, and Part XV) ; Non-binding procedures (see Arts.279-285 and Annex V); Compulsory procedures entailing binding decisions (see Art. 287, Annexes VI, VII and VIII)

3. Diplomatic methods of dispute settlement • Negotiation • Good offices and mediation • Inquiry • Conciliation

4. Negotiation • Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy various interests of two people/parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise. • Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the subject is called negotiation theory. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats, legislators or brokers.

5. It consists basically of discussions between the interested parties with a view to reconciling divergent opinions, or at least understanding the different positions maintained. It does not involve any third party, at least at that stage, and so differs from the other forms of dispute management. In addition to being an extremely active method of settlement itself, negotiation is normally the precursor to other settlement procedures as the parties decide amongst themselves how best to resolve their differences. • Negotiations are the most satisfactory means to resolve disputes since the parties are so directly engaged. • In certain circumstances there may exist a duty to enter into negotiations arising out of particular bilateral or multilateral agreements. • United Nations Convention on the Law of the Sea (1982) • Article 283 Obligation to exchange views • 1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. • Where there is an obligation to negotiate, this would imply also an obligation to pursue such negotiations as far as possible with a view to concluding agreements.

6. The Court held in the North Sea Continental Shelf cases that: • the parties are under an obligation to enter into negotiations 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 position without contemplating any modification of it. • Summary of the Judgment: • The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. • The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding  that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. • The Court held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them. • The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed to do.

8. The Court in the German External Debts case emphasised that although an agreement to negotiate did not necessarily imply an obligation to reach an agreement, ‘it does imply that serious efforts towards that end will be made’. • Arbitral Tribunal for the Agreement on German External Debt • In Switzerland v Federal Republic of Germany, the Arbitral Tribunal for the Agreement on German External Debt clarified the scope of debts falling under the London Debt Agreement (LDA). • London Agreement on German External Debts, also known as the London Debt Agreement, was a debt relief treaty between the Federal Republic of Germany on one part and on Belgium, Canada, Ceylon, Denmark, the French Republic, Greece, Iran, Ireland, Italy, Liechtenstein, Luxembourg, Norway, Pakistan, Spain, Sweden, Switzerland, the Union of South Africa, the United Kingdom of Great Britain and Northern Ireland, the United States of America, and Yugoslavia and others. The negotiations lasted from February 27 - August 8, 1953. • The London Debt Agreement covers a number of different types of debt from before and after the second World War. Some of them arose directly out of the efforts to finance the reparations system, while others reflect extensive lending, mostly by U.S. investors, to German firms and governments. In the London Agreement, the German government under Chancellor Konrad Adenauer undertook to repay the external debts incurred by German government between 1919-1945.[

9. In the Lac Lanoux arbitration, it was stated that ‘consultations and negotiations between the two states must be genuine, must comply with the rules of good faith and must not be mere formalities’ • Lac Lanoux Case • The Lac Lanoux arbitration case involving France and Spain shows how the process of prior consultation and negotiation has been interpreted by an international arbitral tribunal, not only as a treaty stipulation, but more generally as a principle of customary law. • The Lac Lanoux negotiations began in 1917. The case was put to arbitration in 1956. • Lake Lanoux is located on the French side of the Pyrenees mountain chain. It is fed by many streams rising in France and running only in the French territory. However, its waters also run into the headwaters of the river Carol which, some 25 kilometres from the lake, do cross the Spanish frontier at Puigcerda, having previously fed the Canal of Puigcerda, which is the private property of that town. After some 6 kilometres in Spanish territory, the Carol joins the Segre, which ultimately flows into the Ebro. The frontier between France and Spain was fixed by the Treaty of Bayonne, 1866 and an additional Act thereto, whereby regulations were made for the joint use of the water resources. • Spain alleged that certain plans proposed by France would adversely affect Spanish rights and interests contrary to the Treaty, and could only be undertaken with prior consent of both Parties.

10. In the light of the agreement between the two countries (treaty of Bayonne, 1866, and Additional Act), the tribunal found that the conflicting interests aroused by the industrial use of international rivers must be reconciled by mutual concessions embodied in the agreements which needed to be interpreted. In the present case, the Tribunal was of the opinion that “the French scheme complied with the obligations of Article 11....In carrying out without prior agreement between the two Governments, works for the utilization of the waters of Lake Lanoux...and brought to the notice of the representatives of Spain...., the French Government was not committing a breach of the provisions of the Treaty of Bayonne...or of the Additional Act”. • The Tribunal said that, because the question before it related uniquely to a treaty of 1866, the tribunal would apply the treaty if it was clear. But if interpretation was necessary, the tribunal would turn to international law, allowing it in this case to take account of the “spirit” of the Pyrennées treaties and “des règles du droit international commun”, and also consider certain rules of customary international law in order to proceed to the interpretation of the Treaty and the Act. • CommentaryThe tribunal discussed the applicable law because the Parties (France and Spain) disagreed on this issue of international rights and obligations of States sharing common natural resources such as water. Consultations and negotiation in good faith are necessary not only as a mere formality, but as an attempt to conclude an agreement for the prevention of conflicts.

12. Good offices and mediation • Unlike the techniques of arbitration and adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its termination by themselves. Provisions for settling the dispute are not prescribed. • Technically, good offices are involved where a third party attempts to influence the opposing sides to enter into negotiations, whereas mediation implies the active participation in the negotiating process of the third party itself. In fact, the dividing line between the two approaches is often difficult to maintain as they tend to merge into one another, depending upon the circumstances. • Examples: • US President (1906): in concluding the Russian–Japanese War • the USSR (1965): the peaceful settlement of the India–Pakistan dispute • France (early 1970s): encouraging US–North Vietnamese negotiations to begin in Paris • Mediator • US Secretary of State in the Middle East in 1973–4, has an active and vital function to perform in seeking to cajole the disputing parties into accepting what are often his own proposals.

13. UN Good Offices • The UN Secretary General uses what is termed his "good offices" (generally meaning his prestige and the weight of the world community he represents) when he meets with world leaders, either publicly or privately, in an effort to prevent international disputes from developing, escalating, or spreading. • For example, in 1998 Kofi Annan negotiated a settlement of the dispute between Iraq and the U.S. over arms inspections in Iraq. He used the prestige of his office and the threat of UN Security Council action if no agreement was reached to force Saddam Hussein to allow continuation of UN inspections. Earlier examples include U Thant's assistance during the Cuban Missile Crisis, and Javier Perez de Cuellar's mediation of the Soviet withdrawal from Afghanistan. • The Secretary-General may also assign senior staff members to act as his special representative, performing the same functions. For example, Brian Urquhart represented the Secretary General's office for many years, proving "good offices" in the Congo, the Middle East, Cyprus, and Namibia.

15. Inquiry • Conciliation • Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. • The process of conciliation involves a third-party investigation of the basis of the dispute and the submission of a report embodying suggestions for a settlement. As such it involves elements of both inquiry and mediation, and in fact the process of conciliation emerged from treaties providing for permanent inquiry commissions. Conciliation reports are only proposals and as such do not constitute binding decisions.65 They are thus different from arbitration awards.

16. International institutions and dispute settlement • Regional Organisations • Chapter VIII of the United Nations Charter deals with regional arrangements. It authorizes regional organizations (such as NATO) and even requires attempts to resolve disputes through such agencies (if available) prior to intervention by the UN Security Council. However, Article 53 provides that "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." • Chapter VIII makes reference to enemy states, which were powers such as Japan and Germany that remained enemies of the UN signatories at the time of the promulgation of the UN Charter (in the closing months of World War II in mid-1945). There have been proposals to remove these references, but none have come to fruition. Chapter VIII is analogous to Article 21 of the Covenant of the League of the Nations, which provides, "Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe Doctrine, for securing the maintenance of peace."

17. Article 52 • 1. 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. • 3. 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.

18. Article 53 • 1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. • 2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter. • Article 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.

19. The African Union (Organisation of African Unity) • The Organisation of American States • The Arab League • Europe • International organisations and facilities of limited competence

20. Binding methods of dispute settlement • Arbitration • Promoting peaceful settlement of disputes remains one of the most important and most difficult objectives of the international legal order. Though it is complex in nature, Article 33 of the Charter of the United Nations lists arbitration among the methods of peaceful settlement. A number of interpretations of this method in literature is discernible since some decades. Arbitration is seen as an “equitable means of settlement of legal disputes by the application of legal rules, principles and techniques”. • Arbitration as a means of settlement of disputes offers considerable flexibility as to the legal status of the Parties and the legal techniques used. • The development of the inter-State arbitration is often taken as one gauge of the efficacy of the rule of law in the international legal system. Where notification confirms the existence of a conflict of interests, or where affected states request it, consultation and negotiation are required. • International arbitration was held to be the most effective and equitable manner of dispute settlement, where diplomacy had failed.

21. Permanent Court of Arbitration was established. It is not really a court since it is not composed of a fixed body of judges. It consists of a panel of persons, nominated by the contracting states (each one nominating a maximum of four), comprising individuals ‘of known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of an arbitrator’. Where contracting states wish to go to arbitration, they are entitled to choose the members of the tribunal from the panel. Thus, it is in essence machinery facilitating the establishment of arbitral tribunals. • Between 1900 and 1932 some twenty disputes went through the PCA procedure, but from that point the numbers began to fall drastically. However, more recently the PCA has started to play an increasingly important role, so much so that an element of ‘institutionalisation’ of arbitration has been detected by some writers. • Arbitration tribunals may be composed in different ways. There may be a single arbitrator or a collegiate body. In the latter case, each party will appoint an equal number of arbitrators with the chairman or umpire being appointed by either the parties or the arbitrators already nominated. • In many cases, a head of state will be suggested as a single arbitrator and he will then nominate an expert or experts in the field of international law or other relevant disciplines to act for him.

22. States are not obliged to submit a dispute to the procedure of arbitration, in the absence of their consent. This consent may be expressed in arbitration treaties, in which the contracting states agree to submit certain kinds of disputes that may arise between them to arbitration, or in specific provisions of general treaties, which provide for disputes with regard to the treaty itself to be submitted to arbitration, although the number of treaties dealing primarily with the peaceful settlement of disputes has declined since 1945. • Consent to the reference of a dispute to arbitration with regard to matters that have already arisen is usually expressed by means of a compromis, or special agreement, and the terms in which it is couched are of extreme importance. This is because the jurisdiction of the tribunal is defined in relation to the provisions of the treaty or compromis, whichever happens to be the relevant document in the particular case. However, in general, the tribunal may determine its competence in interpreting the compromis and other documents concerned in the case. • The law to be applied in arbitration proceedings is international law, but the parties may agree upon certain principles to be taken into account by the tribunal and specify this in the compromis. In this case, the tribunal must apply the rules specified.

23. Agreements sometimes specify that the decisions should be reached in accordance with ‘law and equity’ and this means that the general principles of justice common to legal systems should be taken into account as well as the provisions of international law. Such general principles may also be considered where there are no specific rules covering the situation under discussion. • Once an arbitral award has been made, it is final and binding upon the parties, but in certain circumstances the award itself may be regarded as a nullity. • It is sometimes argued that invalidity of the compromis is a ground of nullity, while the corruption of a member of the tribunal or a serious departure from a fundamental rule of procedure are further possibilities as grounds of nullity. • Arbitration may be the appropriate mechanism to utilise as between states and international institutions, since only states may appear before the ICJ in contentious proceedings. The establishment of arbitral tribunals has often been undertaken in order to deal relatively quietly and cheaply with a series of problems within certain categories. • Like arbitration, judicial settlement is a binding method of dispute settlement, but by means of an established and permanent body. There are a number of international and regional courts deciding disputes between subjects of international law, in accordance with the rules and principles of international law. However, by far the most important, both by prestige and jurisdiction, is the International Court of Justice.

24. Sudan‘s border dispute over Abyei (Jul 30th 2009 ) • Do they agree? Yes, no, and sort of • A ruling from The Hague pleases the north and vexes the south • OFFICIALS in Sudan’s government in Khartoum could hardly believe their luck when, on July 22nd, the Permanent Court of Arbitration in The Hague ruled on the fate of the disputed Abyei state, which sits astride the oil-soaked border between Arab northern Sudan and the ethnically African (and largely Christian) south Sudan. Surprisingly, the court reversed an earlier commission’s ruling and redrew Abyei’s borders, snipping out the lucrative Heglig and Bamboo oilfields (see map) and giving them to the north.

25. The ownership of these oilfields has soured relations between the north and south Sudanese ever since a peace accord was signed between them in 2005, ending a civil war that had raged on and off for nearly half a century at a cost of some 2m lives. So tense had the situation in Abyei become that last year much of its capital was burned to the ground in fighting between militias from the two sides. Now, however, the north seems to have got what it wanted by law rather than by force. • The head of President Omar al-Bashir’s National Congress Party delegation in The Hague, Dirdeiry Muhammad Ahmed, said it was a “great achievement” that ownership of the oil had been settled “without conflict”. However, perhaps intoxicated by victory, he then stirred a bit of animosity by suggesting that the government in Khartoum would stop paying half of the oil revenue from Heglig and Bamboo to the south, as it must do under the 2005 peace deal. As South Sudan’s government relies on oil for almost all of its revenue, these comments were bound to provoke. Other northerners were more conciliatory. In any case, the north’s true position will become clearer after a technical committee of north and south begins work on the border’s final demarcation. • At least the court ruling pleased the Ngok-Dinka people. When the south votes in the 2011 referendum, Abyei state will exercise a special dispensation (which is nothing to do with the ruling at The Hague) letting it choose whether to stay in a federal Sudan or to secede with the south. As the state is now smaller within its new boundary, the Ngok-Dinka is the dominant tribe in it—so their vote will probably ensure that Abyei goes to the south.