Diplomatic Means of Settlement

Negotiation

Negotiation is the most fundamental and widely used method for the peaceful settlement of international disputes. It involves a direct dialogue and discussion between the concerned states with the objective of reaching a mutually acceptable solution. It is a flexible and confidential process, entirely managed by the disputing parties themselves without the involvement of a third party.

The obligation to settle disputes peacefully is a cornerstone of international law, enshrined in Article 2(3) of the UN Charter, and negotiation is the primary means to achieve this. Article 33 of the UN Charter lists negotiation as the first recommended step for resolving disputes that are likely to endanger the maintenance of international peace and security.

Key Features:

Directness: It is a bilateral or multilateral process exclusively involving the parties to the dispute.
Flexibility: The parties control the entire process—the agenda, procedure, pace, and the final outcome. They can address not just the legal aspects but also the underlying political, economic, or historical issues.
Confidentiality: Negotiations can be conducted privately, away from public scrutiny, which can make it easier for states to make concessions without losing face.
Prerequisite: Many international treaties, including the UN Convention on the Law of the Sea (UNCLOS), require states to attempt negotiation before resorting to more formal, third-party settlement procedures like arbitration or judicial settlement.

Example 1. The Shimla Agreement of 1972 between India and Pakistan is a classic example of negotiation. Following the 1971 war, the leaders of the two countries met directly to negotiate a framework for peace and resolve their differences through bilateral talks.

Inquiry

Inquiry, also known as fact-finding, is a method used when a dispute arises from a disagreement over a point of fact. The primary and sole purpose of an inquiry is to produce an impartial and clear finding of the disputed facts. It is based on the idea that once the facts are objectively established, the disagreement may resolve itself or become easier to settle through other means.

The procedure was formalized in the Hague Conventions for the Pacific Settlement of International Disputes of 1899 and 1907. Typically, the parties agree to set up an international Commission of Inquiry.

Key Features:

Fact-Oriented: The commission's mandate is strictly limited to investigating and reporting on the facts. It does not propose any solution or make any recommendations on the substance of the dispute.
Impartial Third Party: The commission is composed of neutral and independent individuals agreed upon by the parties.
Non-Binding Outcome: The report of the Commission of Inquiry clarifies the factual situation but is not legally binding on the parties. The parties are free to decide what legal or political consequences to draw from the established facts.

Example 2. The Dogger Bank Incident (1904). During the Russo-Japanese War, Russian warships mistakenly fired on British fishing trawlers in the North Sea (Dogger Bank), believing them to be Japanese torpedo boats. The incident caused a major diplomatic crisis between Britain and Russia. A Commission of Inquiry was established, which investigated the facts and concluded that the fishermen were not at fault and no torpedo boats had been present. The report, by clarifying the facts, paved the way for Russia to apologize and pay compensation to Britain, thus averting a potential war.

Mediation

Mediation involves the active participation of a third party (a state, a group of states, an international organization like the UN, or an eminent individual) who assists the disputing parties in reaching a settlement. The mediator goes beyond simply facilitating communication; they take an active role in the substance of the negotiations.

Key Features:

Active Third-Party Role: The mediator's main function is to reconcile the opposing claims and to appease the feelings of resentment which may have arisen between the states. They actively propose terms of settlement.
Proposals are Non-Binding: The mediator's suggestions are merely recommendations. They have no binding force, and the parties to the dispute are free to accept, reject, or modify them.
Facilitation and Substance: A mediator may meet with the parties separately or jointly, acting as a go-between and offering creative solutions that the parties themselves might not have considered.

Example 3. The Camp David Accords (1978) are a landmark example of successful mediation. U.S. President Jimmy Carter acted as a mediator between Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin. Through thirteen days of intense negotiations at Camp David, President Carter actively proposed solutions and bridged gaps, leading to a historic peace treaty between Egypt and Israel.

Conciliation

Conciliation is a more formal and structured method of dispute settlement that combines elements of both inquiry and mediation. It involves referring a dispute to a commission or a committee, known as a Conciliation Commission, whose task is to elucidate the facts and make a formal report containing proposals for a settlement.

Key Features:

Formal and Institutionalized: Unlike mediation, which can be very informal, conciliation operates through a pre-established or ad hoc commission with specific rules of procedure.
Dual Function: The conciliation commission first investigates the factual and legal aspects of the dispute (like an inquiry) and then, on that basis, draws up formal proposals for a settlement (like a mediator).
Non-Binding Proposals: As with other diplomatic means, the report and the proposals of the conciliation commission are not legally binding. They are recommendations that the parties are free to accept or reject.
Treaty-Based: Conciliation is a procedure frequently provided for in modern treaties as a mandatory or optional step in their dispute settlement clauses. For example, the Vienna Convention on the Law of Treaties and UNCLOS both provide for conciliation procedures.

Good Offices

Good Offices represents the most minimal form of third-party involvement in a dispute. It occurs when a third party, which can be a state, an organization, or an individual, endeavors to bring the disputing parties together so that they can begin or resume direct negotiations.

Key Features:

Limited Role: The role of the third party is strictly limited to acting as a neutral and discreet channel of communication. They do not get involved in the substance of the dispute or the negotiations themselves.
Ending the Role: Once the parties have been brought to the negotiating table and direct talks have commenced, the function of good offices is considered complete.
When it is Useful: This method is particularly valuable when diplomatic relations between the disputing states are severed, and they are unwilling or unable to communicate directly.

Example 4. The initial efforts of the Soviet Union in 1965 to end the conflict between India and Pakistan can be seen as an exercise of good offices. The Soviet Premier offered a neutral venue (Tashkent) and facilitated the meeting between the leaders of India and Pakistan, enabling them to start negotiations that eventually led to the Tashkent Declaration of 1966. The role later evolved into mediation during the talks.

Good Offices, Mediation, Conciliation and Arbitration

The various methods of dispute settlement can be placed on a spectrum based on the degree of third-party involvement and the nature of the outcome. The table below provides a comparative overview of the diplomatic means and contrasts them with arbitration, which is a judicial method.

Method	Third-Party Involvement	Role of Third Party	Nature of Outcome
Negotiation	None	N/A (Direct talks between parties)	Mutually agreed solution
Good Offices	Minimal	Acts only as a channel of communication to bring parties together. Does not participate in negotiations.	Non-binding
Inquiry	Formal Commission	Impartially investigates and establishes the facts of the dispute. Does not propose solutions.	Report on facts is non-binding
Mediation	Active	Facilitates talks and actively proposes terms of settlement.	Proposals are non-binding
Conciliation	Highly structured Commission	Formally investigates facts and law, then drafts and proposes a solution in a final report.	Proposals are non-binding
Arbitration (Judicial Method)	Formal Tribunal	Acts like a court. Hears arguments, applies international law, and renders a final decision.	Legally Binding Award

The key distinction lies between diplomatic means (Negotiation, Good Offices, Inquiry, Mediation, Conciliation), which aim to facilitate a mutually agreeable solution and produce non-binding outcomes, and judicial means (Arbitration and Judicial Settlement), which result in a legally binding decision imposed on the parties based on law.

Judicial Means of Settlement

International Courts and Tribunals

Judicial means of settlement refer to methods where a dispute is submitted to a permanent or ad hoc international court or tribunal for a legally binding decision based on the rules of international law. Unlike diplomatic means, which aim for a politically acceptable solution, judicial means provide a definitive legal resolution. The cornerstone of this process is the principle of consent; no state can be compelled to appear before an international court without its consent.

International Court of Justice (ICJ)

The International Court of Justice (ICJ), located at the Peace Palace in The Hague, Netherlands, is the principal judicial organ of the United Nations. It is often referred to as the "World Court."

Composition: The Court is composed of 15 judges elected for nine-year terms by the UN General Assembly and the Security Council. They are chosen to represent the main forms of civilization and principal legal systems of the world.
Function: Its primary role is to settle legal disputes submitted to it by States in accordance with international law. It can only deal with disputes between states; it has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations, or any other private entity.

Example 1. The Kulbhushan Jadhav case (India v. Pakistan). India instituted proceedings against Pakistan at the ICJ, alleging that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations by denying India consular access to Mr. Jadhav, an Indian national sentenced to death in Pakistan. The ICJ found in India's favour, ruling that Pakistan had breached its obligations and must undertake an "effective review and reconsideration" of the conviction and sentence.

International Criminal Court (ICC)

The International Criminal Court (ICC), also located in The Hague, is a permanent international court established by the Rome Statute (1998). It is fundamentally different from the ICJ.

Function: The ICC investigates and prosecutes individuals (not states) for the most serious crimes of international concern: genocide, crimes against humanity, war crimes, and the crime of aggression.
Jurisdiction: It is a court of last resort, operating on the principle of complementarity. It will only act if a state is genuinely unwilling or unable to carry out the investigation or prosecution itself.
India's Position: India has not signed or ratified the Rome Statute and is therefore not a member of the ICC. India's concerns include issues of state sovereignty, the potential for political misuse of the Court's powers, and the role given to the UN Security Council.

International Tribunal for the Law of the Sea (ITLOS)

The International Tribunal for the Law of the Sea (ITLOS) is an independent judicial body established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It is based in Hamburg, Germany.

Function: ITLOS has jurisdiction over any dispute concerning the interpretation or application of UNCLOS. This includes disputes related to maritime boundaries, navigation rights, protection of the marine environment, and the rights and duties of states in their various maritime zones.

Example 2. The Enrica Lexie case (Italy v. India). This dispute concerned the 2012 incident involving the killing of two Indian fishermen by Italian marines aboard a commercial vessel. After years of domestic legal proceedings in India, the case was submitted to an arbitral tribunal constituted under UNCLOS. While not decided directly by the full ITLOS, the case highlights the type of law-of-the-sea disputes handled under the UNCLOS framework. ITLOS did, however, issue a preliminary order in the case regarding provisional measures.

Ad hoc Tribunals (e.g., Iran-US Claims Tribunal)

An ad hoc tribunal is a temporary judicial body created for a specific purpose, usually to deal with a particular set of claims or disputes arising from a specific situation or conflict. Unlike permanent courts, they cease to exist once their mandate is fulfilled.

Iran-United States Claims Tribunal: This is one of the most significant ad hoc tribunals. It was established in 1981 by the Algiers Accords to resolve the claims of US nationals against Iran and Iranian nationals against the US, arising out of the Iranian hostage crisis. It has dealt with thousands of cases and continues to function from The Hague.
Others: Other examples include the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR), though these were criminal tribunals for individuals. In the context of state-to-state disputes, ad hoc arbitration tribunals are more common.

Arbitration

International Arbitration is a process where states in a dispute agree to submit their case to a neutral third-party arbitrator or a panel of arbitrators (an arbitral tribunal) for a binding decision, known as an "award." Arbitration offers more flexibility than litigation before a permanent court like the ICJ, as the parties have significant control over the process.

Key features that distinguish arbitration from judicial settlement:

Parties choose their own arbitrators.
Parties can decide on the rules of procedure to be followed.
Parties can choose the applicable law (e.g., international law, or principles of equity).
The proceedings are often confidential.

Ad hoc arbitration

In ad hoc arbitration, the parties themselves create the entire framework for the arbitration from scratch for a single, specific dispute. They must agree on the selection of arbitrators, the rules of procedure, the seat of arbitration, and the language. It offers maximum flexibility but can be complex and time-consuming to set up if the parties are not cooperative.

Example 3. The Rann of Kutch Arbitration (1968) between India and Pakistan. Following a military conflict over the disputed border in the Rann of Kutch, the two countries agreed to refer the dispute to an ad hoc arbitral tribunal. The tribunal, with one arbitrator nominated by India, one by Pakistan, and a chairman chosen by the UN Secretary-General, delivered a binding award that demarcated the boundary, which both countries accepted.

Institutional arbitration

In institutional arbitration, the process is administered by a permanent arbitral institution. This institution provides a pre-established set of rules, a framework for appointing arbitrators, and administrative support, making the process smoother and more predictable.

The most prominent such institution for state-level disputes is the Permanent Court of Arbitration (PCA), established in 1899 and also located at the Peace Palace in The Hague.

Role of the PCA: Despite its name, the PCA is not a court in the traditional sense. It is an international organization that facilitates arbitration and other forms of dispute resolution. It maintains a roster of potential arbitrators and a set of procedural rules that parties can use. It acts as a registry and provides administrative and logistical support for arbitral tribunals.

Example 4. The South China Sea Arbitration (Philippines v. China). The Philippines initiated this landmark case against China under the dispute settlement provisions of UNCLOS. Although China refused to participate, an arbitral tribunal was constituted with the administrative support of the PCA. The tribunal's 2016 award clarified the rights and entitlements of the parties in the South China Sea, ruling largely in favour of the Philippines.

Jurisdiction of ICJ: Contentious and Advisory

The competence of the International Court of Justice to hear cases and give opinions is divided into two distinct categories: its jurisdiction to decide disputes (contentious jurisdiction) and its jurisdiction to give advisory opinions (advisory jurisdiction).

Contentious Jurisdiction

This is the Court's primary function: to settle legal disputes between states. The entire basis of the ICJ's contentious jurisdiction is the consent of the states involved. The Court cannot decide a dispute unless all states party to it have accepted its jurisdiction. States can express their consent in several ways:

Special Agreement (Compromis): Two or more states with an existing dispute can conclude a special agreement to submit that specific dispute to the Court for a decision. This is the most straightforward expression of consent.
Jurisdictional Clause in a Treaty (Compromissory Clause): Many treaties contain a clause stating that any future dispute between the parties concerning the interpretation or application of that treaty shall be referred to the ICJ. This is consent given in advance. India used such a clause in the Optional Protocol to the Vienna Convention on Consular Relations to bring the Kulbhushan Jadhav case against Pakistan.
Optional Clause Declaration (Article 36(2) of the ICJ Statute): This is the most comprehensive form of consent. States may declare that they recognize the Court's jurisdiction as compulsory, without the need for a special agreement, in relation to any other state that accepts the same obligation. However, these declarations are often subject to reservations. India has made such a declaration but with several reservations, including excluding disputes with Commonwealth countries, disputes regarding armed conflicts or hostilities, and disputes relating to its territorial sovereignty.

The judgment delivered by the Court in a contentious case is final and legally binding on the parties involved.

Advisory Jurisdiction

The ICJ also has the power to give advisory opinions on any legal question. This function is not for settling disputes but for clarifying points of international law for the United Nations and its agencies.

Who can request an opinion? Only authorized international organizations can request an advisory opinion. The UN General Assembly and the Security Council can request an opinion on any legal question. Other UN organs and specialized agencies can also be authorized to request opinions on legal questions arising within the scope of their activities.
Binding Force: Advisory opinions are, by their nature, not legally binding. However, they carry great legal weight and moral authority. They are highly influential in the interpretation and development of international law and are often followed by states and international organizations.

Example 5. The Legality of the Threat or Use of Nuclear Weapons (1996). The UN General Assembly requested an advisory opinion from the ICJ on whether the threat or use of nuclear weapons is permitted under international law. The Court's highly anticipated opinion concluded that while there is no specific prohibition, their use would generally be contrary to the principles of international humanitarian law. It also stated that it could not definitively conclude whether their use would be lawful or unlawful in an extreme circumstance of self-defence in which the very survival of a state was at stake.