Dispute Settlement in International Law

Before the 20th century, States had a natural right called “resort to war” and were able to wage
a war against other States as part of their foreign policy. However, this phenomenon gradually has
changed. International law, especially after World War II, is formulated on a very fundamental
principle: Protection and maintenance of international peace and security. Besides, there
are other principles relating to this principle such as international cooperation in solving problems,
peaceful co-existence, developing friendly relations, respect to sovereign rights of other states and so on.
In light of fundamental principles of international law, the international community has developed political and territorial limits to States, immunities from the jurisdiction of States, international responsibility for breaches of international law and the principles and methods governing the peaceful settlement of disputes between States over the years. Today, dispute settlement mechanism in international law is one of the substantial tools for the protection and maintenance of international peace and security. For this reason, it has developed and institutionalized by international legal instruments, international and regional organizations.

A dispute as described by the Permanent Court of International Justice (PCIJ) in the Mavrommatis Case, is a disagreement on a point of law or fact, a conflict of legal views or interests between two persons. Moreover, when the dispute has become a dispute between States, it enters the domain of international law, and it is known as an international dispute.

According to the Covenant of League of Nations, there were three elements of international disputes:
• the interpretation of a treaty,
• any question of international law, and
• a breach of any international obligation
(Article 13/2).

In Article 36/2 of the Statute the elements of the international dispute are defined as:
“All legal disputes concerning:
a. the interpretation of a treaty;
b. any questions of international law;
c. a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.”

Dispute settlement mechanism had two characteristics such as non-peaceful and peaceful. Till the beginning of 20th century, resort to war was a natural right of States for settlement of their disputes. Peaceful settlement of disputes was an option for States as an alternative to war. During
this period, States engaged in resolving their disputes through bilateral or ad hoc mechanisms.
For instance, diplomatic negotiations were one of them (Boss, 343; 2013). Later peaceful resolution of disputes gained more acceptance by States even though resort to war had not been prohibited yet. To illustrate, in the 1899 and 1907 Hague Convention for the Pacific Settlement of International Disputes, signatory powers agreed to do their best efforts to use pacific dispute settlement mechanism for their disputes. Starting from the enactment of the Covenant of the League of Nations, to the Charter of the United Nations, use of force is gradually prohibited (Pellet, 203: 2012). Peaceful settlement of disputes is not an optional choice of States anymore, it has become
a general international rule in international law. Today, States have an international obligation to
seek a resolution to their dispute which has the potential to endanger international peace and
security. However, they should settle their disputes peacefully and cooperate in dispute settlement
(Peters, 2003: 9).

States are free to choose which dispute settlement method they want to use to resolve their disputes. Therefore, States can resolve their dispute by any means they agreed on as long as
the method is peaceful. The methods of dispute settlement mechanism in international law
includes judicial mechanisms (courts, tribunals, arbitral panels), and other quasi-judicial, legal or
extra-legal mechanisms (committees, inspection panels, ombudsmen, etc.).

There are a number of methods of dispute settlement mechanism in international law includes judicial mechanisms (courts, tribunals, arbitral panels), and other quasi-judicial, legal or extra-legal mechanisms (committees, inspection panels, ombudsmen, etc.). There is no hierarchy between any methods of dispute settlement as well as between tribunals or courts. This is why, there is no appealing system in international law.

Sometimes a dispute settlement method can be a pre-condition of another dispute settlement method. For instance, dispute settlement mechanism of space law envisions establishment of a claims commission for the compensation of damages caused by a space object. However, parties should start negotiations and seek a resolution through negotiations in the first place, before establishing a claims commission.

States have concluded several multilateral instruments regarding dispute settlement in international law since the end of the 19th century. The 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes are the initial instruments for dispute resolution.

States have concluded several multilateral instruments regarding dispute settlement in international law since the end of the 19th century. The 1899 and 1907 Hague Conventions for the Pacific settlement of International Disputes are the initial instruments for dispute resolution. The 1899 Hague Convention for the Pacific Settlement of International Disputes provisioned the elements of peaceful settlement of disputes and established the Permanent Court of Arbitration. Later, the 1907 Hague Convention for the Pacific Settlement of International Disputes has improved the former 1989 Hague Convention and replaced it. According to these two foundational Conventions, States agree,
• to obviate to recourse to use of force in their relations as much as possible, and
• to make their best efforts to ensure the pacific settlement for their disputes.
Good offices, mediation, inquiry and arbitration are the dispute settlement mechanisms involved in
these Conventions.

After World War I, the first attempt was the establishment of an international organization to
promote international co-operation and to achieve international peace and security. Within this scope, the League of Nations (LN) was established by the Covenant of the League of Nations. 

The duty of the Council concerning dispute settlement was regulated in Article 11 of the Covenant of the LN. Accordingly,
• The League shall take action in the declaration of any war or threat of war,

• The Secretary-General, or any member state of the LN can bring the issue before the Council,

• Any other situation which may affect international peace or good understanding between states can also be brought before the Council.

The UN Charter encourages States to settle their disputes through peaceful methods. As for peaceful settlement of disputes, Chapter VI of the UN provides a guide to States regarding the
methods to be used. In addition to the Chapter VI of the UN Charter, UN General Assembly
endorsed the peaceful settlement of disputes in the 1975 Declaration on Principles of International
Law Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations and in the 1982 Manila Declaration on the Peaceful Settlement of International Disputes.
The instruments underline the importance of protection of international peace and security based
on freedom, equality, justice and respect for human rights and peaceful co-existence. Both instruments highlight the following similar principles regarding dispute settlement:
• Principle of non-use of force in international relations;
• Principle of non-intervention in the international or external affair of states;
• Principle of equal rights and selfdetermination of peoples;
• Principle of sovereign equality of states;
• Principle to act in accordance with international law regarding the sovereignty of states, independence and territorial integrity of states;
• Good faith in international relations;
• Principles of justice and International Law.

In Chapter VI Article 33/1, some methods for the resolution of disputes are addressed such as Negotiation, Inquiry, Mediation, Conciliation, Arbitration, Judicial Settlement or any other
peaceful means that parties agreed on. However, dispute settlement methods are not limited to
the methods mentioned in this Article 33/1. These methods are the most common methods used for
the settlement of disputes (Biehler, 2008: 297; Merills, 2005). Among these settlement methods,
negotiation, inquiry, mediation, conciliation are diplomatic dispute settlement methods, whereas
arbitration and judicial settlement are adjudicative methods (Hamza and Todorovic, 2017: 11).

TheGeneral Assembly adopted a resolution entitled “Principles and Guidelines for International Negotiations” in 1999 (A/RES/53/101). Thus, the General Assembly designated principles and guidelines for international negotiations between States.
According to the Resolution, the principles for international negotiation are:
• Sovereign equality of all States;
• Duty to not to intervene in matters within the domestic jurisdiction of any State;
• Duty to fulfill their obligations under international law in good faith;
• Duty to refrain from the threat or use of force against the territorial integrity or political independence of any State;
• Any agreement conducted under the threat or use of force is void;
• Duty to cooperate with one another in order to maintain international peace and security;
 • Settlement of disputes by peaceful means not to endanger international peace,
security, and justice.

The guidelines for the international negotiation under the mentioned principles are:
• Conduct of negotiations in good faith;
• Taking into consideration the states whose vital interests are directly affected by the subject matter of international negotiation;
• The purpose and the object of negotiations must be compatible with international law, including the UN Charter;
• Adherence to the mutually agreed framework for negotiations;
• Maintain a constructive atmosphere during the negotiations and refrain from undermining the negotiation process;
• Remain focused on the objectives of the negotiations for the conclusion of negotiations;
• Make efforts to continue the negotiations to reach a mutually acceptable and just solution for the dispute.

Negotiations may not help to resolve the issues between States. In that case a third party may offer
its good offices to prevent increasing tension between States regarding the dispute. This does not mean that parties should negotiate their disputes before good offices. The third party which offer good office may be a State, Group of States, an international or regional organization and so on. The method aims to provide communication between parties and facilitate the efforts of dispute
settlement (Handbook, 33: 1992). Mediation refers to direct negations in front of a neutral mediator. The functions of the mediator are to invite parties to negotiate the dispute and to assist parties to a settlement. Mediator has an active role among the dispute parties; s/he may propose a
solution that is mutually acceptable by the parties and forward the proposals of each party to the
other. However, s/he does not have a legal power to force the parties to reach an agreement. It is up to the dispute parties to resolve the issue at the end of the mediation period (Merrills, 2005: 28-29). In international law the 1899 and 1907 Hague Conventions encouraged States to recourse good offices and mediation in the case of serious disagreement or dispute in order to protect international peace and security. In these documents good offices and mediation are provided as interchangeable instruments. However, in some international treaties, mediation is also listed as a
separate method. The UN is a concrete example for the utilization of good offices and mediation as dispute settlement mechanism. Especially the Security Council and the General Assembly highlights the vital role of mediation as means of peaceful dispute settlement. In this connection, UN system the Secretary General has an active part for good offices and mediation as a third party. In some cases, the Security Council or the General Assembly has requested to appoint representatives or other individuals to help the Council or the Assembly for the resolution of the situation.

For the implementation of the fact finding method, the General Assembly adopted the “Declaration
on Fact-finding by the UN in the Field of the Maintenance of International Peace and Security”
in 1991 (A/RES/46/59). In the Declaration on Fact-finding, the Assembly underlines the fact that
the UN organs are experienced, have the expertise in the field of fact-finding, and are available to
fulfill the needs of states on the ground. In the declaration, the fact-finding method is described as “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation.” According to the Declaration:
• Relevant organs of the UN should make an effort to have all of the information on the relevant facts;
• Fact-finding should be comprehensive, objective, impartial and timely;
• If necessary information cannot be gained by the use of information methods of the UN, the relevant organ should consider sending a fact-finding mission; and
• The sending of a fact-finding commission requires the prior consent of the relevant state.

Conciliation is another third-party settlement consisting of inquiry and meditation. It is more formal than the mediation. Besides the process is stricter as well. In the process, the dispute is referred to
an established organ, and the conciliator is appointed by the parties. Usually it is composed of three or five conciliators, and one of them is chosen by both parties. In order to perform conciliation, conciliators shall form a commission. The commission adopts its own procedure (Handbook, 49: 1992). Conciliation helps disputing parties to understand each other’s case through investigation
and evaluation all of aspects of the dispute. The duty of the conciliators is to define the facts and
recommend the solution to settle the dispute. Conciliators prepare a report including the recommendation for the solution. In principle, the conciliation report is not binding. However,
parties of the dispute may agree the otherwise, or a treaty in force between the parties may create
a compulsory and binding conciliation method (Aust, 2005: 434).
Conciliation is developed through bilateral treaties enacted at the beginning of the 20th century. In 1922, the LN adopted a resolution which encourages the utilization of conciliation as a dispute settlement mechanism. The UN also sees conciliation as a method which can help to seek an early and equitable settlement of international disputes. This approach is reflected in 1970 Declaration of Friendly Relations and 1982 Manila Declaration. Later, the procedure has been evaluated by the UN General Assembly and the resolution A/RES/50/50 has been adopted in 1996. In the resolution entitled “United NationsModel Rules for the Conciliation of Disputes between States”, initiation of the conciliation proceedings, number and appointment of the conciliators, the principle of reaching an amicable settlement of dispute, procedures and powers of the commission, conclusion of the conciliation proceedings, confidentiality, obligation not to cause an adverse effect on the conciliation, preservation of the legal position of the parties and costs are drawn by the UN General Assembly.

ICC is established by the Rome Statute in 2002. It is based on ad hoc Tribunals for the crimes committed in former Yugoslavia and Rwanda which are established in the 90s. The Court is an independent judicial body having co-operation with the UN according to the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. It has jurisdiction over international crimes such as genocide, crimes against humanity, war crimes and the crimes of aggression. The Court can start investigation in three ways. A member State can refer a situation in its territory, the UN Security Council can refer a situation before the Court and the persecutor of the Court can start an investigation into a member State with his/her own initiative (Schabas, 2011: 1 – 16).

The ICJ has two main functions. On the one hand, it is a body to resolve legal disputes between
States, on the other hand it may also give advisory opinions on the legal questions requested by the UN organs and specialized agencies.

A State may accept the jurisdiction of the ICJ in four ways:
• A special agreement between dispute parties (compromis),
• Acceptance of jurisdiction provisioned in treaties,
• Declaration of recognizing the jurisdiction of the ICJ,
• Forum prorogatum.