The Concept of Dispute Settlement in Public International Law:
Modern attempts to preserve inter-state peaceful relations are reflected in three twentieth century international instruments: the 1919 Covenant of the League of Nations, the 1941 Atlantic Charter, and the 1945 Charter of the United Nations. Inter-states relations could be marred by conflicts in opinion or interest resulting to dispute. In Public International Law, dispute can arise between one or more states and could be defined as a conflict of claim or rights. However, a dispute’ is defined by the Permanent Court of International Justice in the Mavrommatis case of 1924 as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons .
Besides, Helmut Steinberger argues that the above definitions are not broad enough and suggest that international dispute is where the existence of rights or obligations arising from customary international law, general principles of law and treaties, their interpretation and application or the quest for changing existing law, may be the main elements of the definition . Nevertheless, international disputes could be said to be those disputes in which the rival claims are based on international law.
The evolution of methods of dispute settlement in the international community resulted in prohibition of use of force in dispute settlement through recognized States’ practice, various treaty instruments, and codified in Charter of The United Nations Article 1(1) thereof:
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
And it was further emphasised in Charter of The United Nations Article 2(4) thereof:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations
The link between the principle of peaceful settlement of disputes and other specific principles of international law are enunciated in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, and the Manila Declaration (1982) as follows: Principle of non-use of force in international relations, Principle of non-intervention in external or internal affairs of States, Principle of sovereign equality of states, Principle of Justice and international law, Good faith in international relations.
Nevertheless, it could be argued that the Charter of the United Nations Article 51 thereof, which provides for self-defence if armed attack occurs, provide for anticipatory action. It is submitted that an attack as a form of defence negates obligation not to use force in dispute settlement. However, International Court of Justice (ICJ) on several occasions, has held that Article 2(4) United Nations Charter reflect general international law, and prohibits use of force and threat of force. It follows that peaceful settlement of dispute is the permissible mechanism for resolution of disputes between States.
Dispute between States manifests in wrongful acts of States. There is an internationally wrongful act of a State when conduct consisting of an action or omission is: (a) attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.
Furthermore, long term security and peace would not be possible without effective procedure for disputes settlement. The bases for assessing contravention of public international law are provided in the Statute of International Court of Justice (ICJ) Article 38 thereof:
a. International Conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. International Custom, as evidence of a general practice accepted as law; c. The General Principles of Law Recognized by Civilized Nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
However, dispute settlement in Public International Law depends on consent of the parties to the dispute. Though conventional norms which through States practice acquired customary norms statute does not require specific consent from every State to become applicable to States in Public International Law. Nevertheless, States consider themselves to be masters of the rules governing inter-states relations and therefore, are less willing to leave the interpretation and application of the rules to devices beyond their control . Hence, various methods of disputes settlement are developed.
States’ conduct which contravene the ICJ Statute Article 38 would likely result to dispute. Apart from the methods of disputes settlement provided in Charter of the United Nations Article 33, ICJ and Tribunals established as means of settling dispute also serve the purpose of preventing disputes and conflicts through adjudication and opinion on issues referred to them. It follows that there are rules: rule of law, which States are obliged to adhere to, in the interest of maintaining peace and security in international community.
In view of the complex nature of public international law, the following criteria are pertinent to choice of method seen as more suitable for a dispute settlement: Universal v Regional mechanism. Judicial method through International Court of Justice (ICJ) may be most suitable for cases with universal application such as border disputes, where interpretations of treaties with colonial powers are in issue. Tribunal may be more suitable for regional matters such as trans-border security or custom duty disputes between neighbouring countries. Perhaps, regional organisations such as European Union, African Union, and others, are in better position to understand and resolve disputed issues within their jurisdiction.
Jurisdiction is also an important consideration when choosing Adjudication method of dispute settlement. A State may prefer to submit to a jurisdiction in which it feels it could get fair hearing than a jurisdiction where it feels that the court or tribunal may be influenced by superpower with conflicting interest. Furthermore, legal effect of findings which depends on whether the result will be binding or recommendatory would likely encourage some states to opt for diplomatic methods of settlement.
Other important considerations are: Consent of the Parties: this will be necessary for negotiation to begin and to draw terms of the dispute settlement. Permanent v ad-hoc mechanisms - this will depend on the parties’ interest to exercise a decisive influence on the composition of the relevant organ as well as on the procedure itself .
Basically the nature of the dispute also influences the choice of method of its resolution. Terror related disputes where a State allows its territory to be used to attack another State may be resolved through mediation, Good Office and negotiation. Negotiation plays important role in getting the parties to state their claim or complaints and to begin discussions on the resolution of their disputes. Where dispute of facts are involved, inquiry may be suited in investigating the issues in dispute. Where dispute of law are involved adjudication and judicial settlement may be chosen. Dispute of political nature such as mistreatment of citizens of one State by another States or nationalisation of properties of one State by another State may be settled by negotiation method.
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The Concept of Dispute Settlement in Public International Law: