International Dispute Resolution

Authored By:

Prateeksha Singh, Lloyd Law College

Aakriti Garodia ,Jindal Global Law School


Edited By

Ajal Verma, National Law Institute University Bhopal

International Law has been considered by the international community as a source to confirm the establishment and conservation of world peace and security. The preservation of international peace and security is one of the major purposes of International Law. The practice of addressing international disputes has emerged out of the history of international law itself. The creation of mechanisms for the pacific resolution of disputes was necessarily linked to the development of the law that sought to promote peace.

International relations and international Disputes are co-linked and also give rise to international conflicts. Resolving international disputes between nations is highly complex. The UN Charter plays a vital in the disputes. The principle of peaceful settlement is central to the UN Charter.

According to Article 2(3) of the UN Charter, all the states that are a member of it, have to resolve their disputes peacefully by maintaining international peace, security, and justice.

Article 33 of the UN Charter provides several ways to solve disputes with alternatives like negotiation, mediation, arbitration, inquiry, judicial settlement, etc.

When two or more nations have a dispute, it would be preferable if they were able to resolve the dispute among themselves and arrive at a peaceful solution. The nations can only attain to the conclusion if they want to resolve the dispute with a peaceful solution which promotes peace and security among the nations.

The protruding method for resolving international disputes is the International Commercial Arbitration. Apart from the methods for resolving the disputes, it depends on the nations whether they want to resolve it with peace and by maintaining national security.

The functioning of international law has been influenced by globalization and the methods used to resolve international disputes. International armed conflicts have shifted from being primarily interstate to becoming predominantly intra-State.[1]

International disputes include international litigation, international arbitration, and international negotiation.

International Litigation- It is litigation between different states, between states and international intergovernmental organizations, or between states and some other entities. An entity can give its consent, ad hoc, for a defined conflict. Ad-hoc arbitration includes a procedure where a tribunal conducts an arbitration between the parties, by the proceeding according to the rules the parties agreed upon. The decision to submit a dispute to litigation and decisions about litigation strategies are political decisions. To submit a dispute to litigation is a major foreign policy step. It usually signifies that the diplomatic negotiations have reached a deadlock and that the parties have decided that instead of letting the dispute fume indefinitely, they would settle it by a binding deal depending on the international law and in the application of international judicial techniques.

International Arbitration- International arbitration[2] is the most favored and ideal method of resolving cross-border conflicts. Arbitration is a process used by the contract of the parties to resolve disputes. In arbitration, disputes are resolved with decisions that bind the parties, by a person or persons acting judicially in secrecy, rather than approaching a national court of law that has jurisdiction but for the agreement of the parties to exclude it.

Arbitration is a well-established and extensively used means to resolve disputes. It is one of many kinds of Alternative Dispute Resolution, which provides parties to a controversy with a choice or decision other than litigation.

International negotiation - A mechanism by which an agreement is extended while avoiding arguments and conflicts. If there arises any disagreement, the parties together conclude to achieve the best possible outcome for their disputes.

However, the principles of justice, attaining outcomes that benefit both the nations, and maintaining an international relation are the bases to an effective conclusion. Negotiation is a lithe source of peaceful settlement of disputes and conflicts in several respects. It can be used on all types of disputes, be it political, legal, or technical. As, in contrast to the other methods and mechanisms put in the Article 33 of the G.J.C.M.P. 12 Charter, it is only inclusive of the States parties to the disputes, those States can witness all the sections of the mechanism from its starting to its end and the outcome and conduct it in the way they estimate utmost applicable.

The International Court of Justice, International Court of Arbitration, The Permanent Court of Arbitration are a few leading institutions that promote arbitration and reconciliation among different nations.

The International Court of Justice is a judicial part of the United Nations. It is the most Supreme Court in the world and a successor to the Permanent Court of International Justice. Not only does it settle disputes between states but also gives advisory opinions on different international legal issues referred to it by the UN. Its opinions and rulings serve as sources of international law.

The International Court of Arbitration is one of the world’s leading institutions for the arbitration of international commercial disputes. Named as a court, it primarily exercises “judicial supervision of arbitration proceedings”.[3] Its roles include confirming, appointing, and replacing arbitrators, keeping a close look in the arbitration process to make it efficient and smooth, overseeing emergency proceedings, managing fees among others. This institution has been operating since 1923 and consists of more than 100 arbitrators.

The Permanent Court of Arbitration is an intergovernmental organization that serves as an arbitral tribunal and resolves disputes between its member states, different international organizations, or even private parties. It has a combined membership of over 122 states and is an official United Nations Observer and deals with cases spanning various legal issues ranging from sovereignty to maritime laws. It mainly provides arbitration, conciliation, and fact-finding.

The International Tribunal for the Law of the Sea ('ITLOS') was established by the 1982 United Nations Convention on the Law of the Sea ('UNCLOS') and handles disputes over marine resources and maritime boundaries.

The uncertainty in the law and internet-based methods providing venues for resolution prove to be major concerns. International judicial forums are not well suited to resolve multiparty complex disputes. However, mediation lacks a powerful and authoritative framework for compelling participation and enforcing agreed-upon resolutions. In the ICJ Frontier Dispute case, the governments of Mali and Burkina Faso reached a cease-fire and worked to resolve their underlying disputes through judicial settlement by the ICJ and mediation that involved local stakeholders.[4]

In the Malaysia-Singapore case, the International Tribunal for the Law of the Sea ('ITLOS') had integrated the processes of fact-finding and facilitation into its judicial approach by calling for 'the establishment of a group of independent experts to study the land reclamation issues' and make recommendations. In the Pedra Branca dispute between Malaysia and Singapore, both countries engaged in negotiations before and after referring the case to adjudication before the ICJ. These approaches reform the current judicial network and allow for an increase in coordination between international legal institutions and political institutions.

The UN Charter has served as guidance for the role of international dispute resolution in the 20th century. With globalization presenting many challenges and opportunities, it is time to redefine the paradigm for global peace and security. Now is the time to advance international dispute resolution to meet the complexities of this century.

[1] Abdulla Mohamed Hamza & Miomir Todorovic, PEACEFUL SETTLEMENT OF DISPUTES, G.J.C.M.P., Vol.6(1).

[2] King & Wood Mallesons, Fundamental-An overview on International Arbitration, Lexology (Jul 7, 2020), https://www.lexology.com/library/detail.aspx?g=37392764-3bdf-43d6-917d-4b7a95132e5a.

[3] "The Merchants of Peace - History - About ICC - ICC - International Chamber of Commerce". iccwbo.org. Archived from the original on 11 July 2015. Retrieved 9 July 2015.

[4] Frontier Dispute (Burkina Paso v Mali) (judgment) [ 1986] ICJ 554·

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