INTRODUCTION

Article 2, paragraph 3 of the UN Charter requires that: All Members shall settle their
international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered. The UN General Assembly, in adopting its 1982
Mania Declaration on the Peaceful Settlement of Disputes,1 focussed on the need to exert
utmost efforts in order to settle any conflicts and disputes between the States exclusively by
peaceful means and that the question of peaceful settlement of disputes should represent
one of the central concerns for States and for United Nations. In an age of nuclear weapons,
the importance of the principle of peaceful settlement of international dispute is apparent.

1
1

DISPUTE: MEANING
The Permanent Court of International Justice in the Mavromattis case, has defined a dispute
as "a disagreement on a point of law or fact, a conflict of legal views or interests between
two persons."2
More specifically, J.G. Merrills suggests that: A dispute may be defined as a specific
disagreement concerning a matter of fact, law or policy in which a claim or assertion of one
party is met with refusal, counter-claim or denial by another. In the broadest sense, an
international dispute can be said to exist whenever such a disagreement involves
governments, institutions, juristic persons (corporations) or private individuals in different
parts of the world. However, the disputes with which the present work is primarily
concerned are those in which the parties are two or more of the one hundred and sixty or so
sovereign states into which the world is currently divided.3
The significant elements of the concept of "dispute" are that:
1. The disagreement must be specific. That is, it must have a reasonably well-defined
subject-matter, so that one can say what the dispute, at least nominally, is "about."
2. The disagreement must involve conflicting claims or assertions. That is, one party must
actually assert or manifest what it wants or believes itself entitled to with respect to the
other, and the other party must manifest its refusal or its conflicting claim. Such a
manifestation may be through statements, diplomatic notes, specific actions or otherwise.
A dispute is thus more than mere difference of opinions between the states. Two nations may
have general feelings of antagonism towards each other, yet not have any specific or
particular disagreement one can identify as a dispute; conversely, two nations may be on
friendly terms, yet have a particular disagreement which can be considered a dispute.
Moreover, a "dispute" means something more than a situation in which one nation feels a
sense of injury or grievance towards another; until that sense of grievance is formulated into

2 Mavromattis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. ser. A No. 2, at 11(Judgment of Aug. 13).

3 J.G. MERRILLS, INTERNATIONAL DISPUTE SETTLEMENT (1984)(hereinafter cited as

"MERRILLS"); INTERNATIONAL DISPUTES: THE LEGAL ASPECTS, A Report
of a Study Group of David Davies Memorial Institute (H. Waldock ed. 1972)

a specific claim or assertion which is resisted by the other, there is no "dispute" between
them.

RELEVANCE OF THE CONCEPT OF DISPUTE

Understanding of the concept of dispute is essential in the international dispute resolution
through peaceful means. It serves to distinguish a disagreement which has reached a level of
active assertion and intensity potentially threatening the relations between the parties or the
social order more generally, from lower level and less threatening types of complaints,
grievances or disagreements. Also it serves as a way of indicating that a disagreement has
reached a point of sufficient definition and concreteness where the use of certain established
methods of dispute resolution may be appropriate. Thus from the international legal
perspective, an international dispute can be considered as a disagreement among nations,
which international dispute resolution techniques can be useful in resolving. In fact, the
jurisdiction of International Court of Justice extends only to the settlement of International
Disputes.4
NEED FOR SETTLEMENT OF DISPUTES
Disputes are inevitable in any society; at any moment there are millions of disputes
occurring at different level of social interaction all over the world- within families, between
social groups or business enterprises, and among nations. But when we co-exist together and
interact in so many spheres, then some interests of nations may come in conflict with each
other during the course of this interaction.
It is obvious that every nation will put its own interests above anothers. This could also take
shape as a situation where a powerful nation tries to take advantage of its dominance and
press for its demands on the weak nation through coercive means. To tackle with such
situations, there has been a need for an independent dispute settlement institution and first
Permanent Court of International Justice and later International Court of Justice has been
instrumental in settling the disputes between nations and parties over the years.

4 Before resorting to an international remedy, the injured state is obliged to prove the existence of an
international dispute'. . .") In some cases, an international tribunal has rejected a claim on the ground that the
claimant did not establish the existence of a dispute. See, e.g., Electricity Company of Sofia (Belgium v.
Bulgaria) 1939 P.C.I.J., Ser. A/B, No. 77, at 64, 83 (Judgment of April 14).

METHODS OF DISPUTE RESOLUTION

Peaceful mechanisms for settlement of international disputes are imperative for the smooth
co-existence of nations. Some of them are discussed here in brief:
I.

Diplomatic Means
1. Exchange of Information and Communication
Sometimes the timely exchange of information or communication can help reduce a
conflict of interests which could lead to a dispute. This is true in particular with
regard to activities that may have trans boundary effects, for instance in matters
related to the prevention of pollution and the use of international watercourses. The
exchange of information can be voluntary, but in many cases it has been established
as an obligation.5
The idea is that early knowledge of an emergency can help the potentially affected
States to prevent or reduce the damage. The extra harm caused by the holding back
of information has been amply demonstrated by the Chernobyl nuclear disaster.6
2. Consultation

'When a government anticipates that a decision or a proposed course of action

may harm another state, discussions with the affected party can provide a way of
heading off a dispute by creating an opportunity for adjustment and
accommodation.7 Consultation can be either voluntary or obligatory. It is
obligatory if the states have committed to it in advance.

5 the 1997 Convention on Watercourses imposes an obligation to exchange information

on planned measures (Articles 11-19).
6 Background on Chernobyl Nuclear Power Plant Accident. Available at
http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/chernobyl-bg.html

7 lG. Merrills, International Dispute Settlement, second edition (Cambridge, 1991), p. 3.

5

3. Negotiations
The most natural and commonly used way to settle a dispute is by negotiations.
Moreover, even when ultimately the parties may have to resort to another means to
settle their dispute, they will usually first try to solve it by direct negotiations.
Negotiations may be optional or obligatory. The duty to negotiate may even have its
basis in customary international law, for instance, the obligation to negotiate on the
delimitation of the continental shelf between States with opposite or adjacent
coasts.8
4. Mediation
A mediator participates actively in the negotiations between the parties, he helps
each of them to understand the strong and weak points of its own case while
clarifying the attitude of the other party, he serves as a go-between, he can improve
the atmosphere, and he advances his own proposals for a solution. He can also
transmit discreetly the proposals of one party to the other one/so His participation in
the process makes it politically easier for the parties to make the necessary
concessions in order to reach a compromise.

5. Conciliation
This mechanism, developed since the 1920s, involves the attempt by a
formal, institutionalized impartial commission to investigate the dispute
and to suggest possible ways to settle it. Usually the commission asks the
parties to indicate their response to its proposals within a certain time. If
the proposals are accepted, the commission drafts a proces-verbal, namely,
a kind of an agreement, which reports the fact that conciliation has taken
place and sets out the terms of the settlement.9

8 Article 83, 1982 U.N. Convention on the Law of the Sea.

9 J.-P. Cot., international Conciliation. (London, 1972)
6

II.

Judicial means
1. Arbitration
'International arbitration has for its object the settlement of disputes between

States by judges of their own choice and on the basis of respect for law.
Recourse to arbitration implies an engagement to submit in good faith to the
award'.10
It is not uncommon for a party which is dissatisfied with an arbitral award to try
to challenge it.11 According to the 1958 U.N. Model Rules, the validity ofan
award may be challenged on the following grounds:
a) That the tribunal has exceeded its power;
b) That there was corruption on the part of a member of the tribunal;
c) That there has been a failure to state the reasons for the award or a serious
departure from a fundamental rule of procedure:
d) That the undertaking to arbitrate or the compromis is a nullity.12
2. Settlement by the International Court of Justice

The International Court of Justice (ICJ) was established in 1945 as the

successor to the Permanent Court of International Justice. Located in the
Hague in Holland, the ICJ is one of the six principal organs of the United
Nations, standing alongside the General Assembly and the Security
Council. In addition to ruling on disputes between states, the court can be
called upon by U.N.s organs and specialized agencies to offer opinions on
legal issues. Only States may apply to and appear before the Court. The
10 Articles 15 and 37 respectively of the 1899 and 1907 Hague Conventions for the
Pacific Settlement of international Disputes

11 Thus Argentina rejected the award in the 1977 Beagle Channel case, 17 International
Legal Materials, (1978), p. 738.

12 Yearbook of the International Law Commission, 1958, vol. II, p. 83

7

Member States of the U.N. (at present numbering 193) are so entitled. The
court can rule on a case if two or more conflicting states jointly ask it to do
so, or if states have signed a treaty stipulating in advance that they agree to
accept the jurisdiction of the court should a dispute arise.
The Court has 15 judges, elected for nine years by the U.N. Security Council and the
General Assembly. At the end of his term, a judge is eligible for re-election. The judges
should represent the main legal systems of the world. When 'engaged on the business ofthe
Court', the judges enjoy diplomatic privileges and immunities.13
There are also unilateral "Declarations Recognizing the Jurisdiction of the Court as
Compulsory," whereby countries agree to accept the ICJ's decisions in relation to claims
from other states that have accepted the same obligation. Finally, a State can also invite
another State to voluntarily accept to come to the ICJ (forum prorogatum).
Of great importance is the question under what circumstances does the Court have the
power to adjudicate. In principle, the consent of the parties is needed. This consent is given
in one of three ways:
1. The parties can decide, by a special agreement, to submit a specific dispute to the
Court.14 Similarly, if one party applies unilaterally to the Court and the second party
participates in the proceedings or communicates to the Court that it accepts the latter's
jurisdiction,15 this may constitute agreement to jurisdiction. However, the second
mentioned procedure is rather rare. Usually States prefer to negotiate on the exact
question to be submitted to the Court. Thus, for instance, the 1989 ELSI case16 between
Italy and the U.S. was submitted to the Court by a special agreement.
2. Certain treaties include a compromissory clause under which disputes about the
application or interpretation of the treaty or of certain parts of it should be submitted to
13 Article 19, Statute of ICJ.
14 Article 36, Statute of ICJ.
15 The 1948 Corfu Channel case, I.C.J. Reports 1947-48, p. 15 (This is the judgment that
dealt with the preliminary objections).

16 I.C.J. Reports 1989, p. 15.

8

the Court. Among the examples can be mentioned, 1971 Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation, and the 1969 Vienna
Convention on the Law of Treaties.
3. A State may, by unilateral declaration, 'recognize as compulsory ipso facto and without
special agreement, in relation to any other State accepting the same obligation, the
jurisdiction of the Court in all legal disputes...'17 This optional acceptance of the compulsory
jurisdiction of the Court is based on strict reciprocity. The acceptance may be unconditional
or subject to reservations. The principle of reciprocity is so far-reaching, that a State may
rely on the reservations made by the other party to the dispute, even if the first State itself
had not made such a reservation. This extreme reciprocity was solidified in the 1957
Norwegian Loans case between France and Norway.18 Other States have also used this
'automatic' or 'peremptory' reservation. Its validity was recognized in the 1957 Norwegian
Loans case.19

17 Article 36(2), Statute of ICJ.

18 l.C.J. Reports 1957, p. 9.
19 Supra note 18.
9