Post on 19-Jul-2018
MA GLOBAL AFFAIRS AND DIPLOMACY
''STATES SHALL SEEK EARLY AND JUST SETTLEMENT OF THEIR INTERNATIONAL DISPUTES BY
NEGOTIATION,INQUIRY,MEDIATION,CONCILIATION,ARBITRATION,JUDICIAL SETTLEMENT,RESORT TO REGIONAL AGENCIES OR
ARRANGEMENTS,OR OTHER PEACEFUL MEANS OF THEIR CHOICE'' DISCUSS.
BRIGHT OWUSU GYASI
SRN: 1304177
COURSE TUTOR: MR ABDEL-ILAH BENNIS
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
'Article 33' of the United Nations charter stipulates that, the parties
to any disputes, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all,
seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangement, or other peaceful means of their choice.1
This paper proposes the argument: ''States shall seek early and just settlement of their
international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement resort to regional agencies or arrangements, or other peaceful means of their
choice'.' In the light of this, this essay has been divided into three main sections. The first
section provides an introduction to the background and relevant literature reviews, the
following section discusses the question stated above, which will inform my conclusion.
The UN charter stipulates that, in order to have a save and prosperous generation free from
the trials of war coupled with it associated devastating effects on humanity.2 In the overall
interest of mankind; with the worth and dignity of every nation, whether large or small, rich
or poor, 3 there should be the establishment of orders under which justice and homage for
the commitment emanating from international law can be sustained4 in efforts to enhance
1 Charter of the United Nations, article 33 [online]. (1945). Available from: <http://www.un.org/en/documents/charter/chapter6.shtml>. [Accessed 18.05.2014].2 Charter of the United Nations, and statute of the international court of justice [online]. (1945).
3 Ibid
4 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
social development and improves standards of life.5 Promoting tolerance and coherence,
the unification of ideas to sustaining international harmony and security,6 with the ultimate
goal of preventing the use of armed force for global peace.7 The desire and efforts in
realising these goals gave birth to Article 33 and Article 2(4) in the city of San Francisco in
1945.8
According to the Global Security Organisation, 'International Dispute' is defined as:
The disagreement over the rights of two or more states with regards to control of a given
piece of land9
They assert that international disputes are usually rooted from matters relating to natural
resources, ethnic or religious sections, and possible ambiguous treaties.10 However, the
weakness I found with this explanation is that11 it is limited in scope, it specify land as the
most possible cause of international disputes.12 This to me is limited in scope, since in recent
5 Ibid
6 Ibid
7 Ibid
8 Ibid
9 Global security organisation, [online]. (2011). Available from: <http://www.globalsecurity.org/military/world/war/disputes.htm>. [Accessed 17.05.2014].
10 Ibid11 Ibid
12 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
times the most issues that have brought about international disputes has got more to do
with terrorism, and maritime issue.13
Naqib M, argues that, the term 'International Dispute' far goes beyond mere grievance or
disagreement, and refers to a 'a specific disagreement, between two or more states, 14 which
reaches a point of adequate explanation, where the use of article 33 of the United Nation’s
charter would be used to settle the dispute.15 I agree with the explanation given by Naqib M,
this because it provides an open and in-depth explanation for the concept.16
The international Court of Justice’s definition concurs with the explanation offered by Naqib
M, the ICJ defines 'Dispute' as a disagreement on a point of law or fact.17
Naqib M defines 'Mediation' as:
A confidential facilitated negotiation, substantially controlled by
parties, procedurally controlled by neutral third parties but with no
authority to impose an outcome.18
13 Ibid
14 Dr. Mohammad Naqib Ishan Jan, The Role of Mediation in the Pacific Settlement of International Disputes [online]. (2002).
15 Ibid
16 Ibid
17 The International Court of Justice, cited in, The International Law of Negotiation as a Means of Dispute Settlement [online]. (2000).
18 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
This theory of mediation make use of five key elements: the willingness of the parties to act
in good faith, an impartial third party, the presence of the parties, an appropriate site and
confidentiality.19
Naqib M argues mediation is an affordable means of settling international disputes. 20 I
concur with Naqib M, because mediation provides a less expensive and an affordable means
of settling dispute.21 The diplomatic tool of mediation has been very instrumental in recent
times, providing a platform for two disputed parties to express their views,22 which usually
brings about possible solution to disputes. The means of solution has been favourable to
most parties involved.23 This theory helps to avert possible conflict that could disturb global
peace;24 it comes with relatively cheaper cost, and is fast and efficient approach in
sustaining international peace.25
The Conflict Research Consortium, concurs with Naqib M, and also argues that the nature of
the parties, issues and the mediator determines the success of the mediation.26 I concur
with this assertion because a highly skilled, respected and neutral mediator is likely to
19 Ibid
20 Ibid
21 Ibid
22 Ibid
23 Ibid
24 Ibid
25 Ibid
26 Conflict Research Consortium, University of Colorado, Mediation, [online]. (2005). Available from: <http://www.colorado.edu/conflict/peace/treatment/mediatn.htm>. [Accessed 24.05.2014].
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
achieve success.27 An example is the mediation role that was played by former US president
Jimmy Carter, between the Israel and the Egypt.28 Bercovitch J, argues that, in a study of 78
international disputes, between 1945 and 1986,29 56 of them were mediated
successfully.30Examples of successful international negotiations as outlined by Benni A,
includes: the mediation of Pope John Paul in the Argentina and Chili territorial dispute over
the Beagle channel;31 the mediation by the USSR between India and Pakistan; the 1966
mediation of Algeria that brought an end to the Iranian hostage crises in 1979..32
Benni A, defines 'Negotiation' as a process through which two or more parties attempt to
resolve differences, maximise benefits, defend interest or simply achieve mutually
acceptable agreement'.33 I agree with the explanation given by Benni A, because he provides
a very definite and concise description of the concept.34 Namely, 'Negotiation' is an age long,
common and the cheapest approach in settling international dispute,35 and 'Negotiations'
27 Ibid
28 Ibid
29 Ibid30 Ibid
31 Benni A, The Skills of Effective Negotiations [online]. (2014).
32 Ibid33Ibid
34 Ibid
35 Walid A, Peaceful Settlement of Disputes [online]. (2006). Available from: <https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-disputes>. [Accessed 20.05.2014].
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
has been acknowledged by a greater number of treaties of pacific as the initial approach
towards dispute settlement.36
Barnidge R, concurs with Benni A, and further argues that, 'Negotiation' does not make use
of third party intervention,37 and could be informal in nature, and has the merit of giving
notice to the parties as to the availability. The purview of a dispute and making available the
avenue to settle their disagreement by mutual consent,38 an obligation to negotiate does
not imply an obligation to reach an agreement.39
The 'United States Institute for Peace' argues that, 'Negotiation' is a cardinal tools in
international dispute settlement. It helps in preventing conflict before escalating into
violence,40 Building durable peace, protecting as well as advancing interest, and argue
further that, to be able achieve all this,41 negotiators would have to adopt tactical objectives
including, changing attitudes and behaviours, building relationships.42
36 Ibid
37 Ibid
38 Ibid
39 Ibid
40 United States Institute of Peace [online]. (2010).
41 Ibid
42 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
Christopher W, concur with the United States institute assertion, and also outline the
condition for a successful negotiation,43 which include: the identifiable party who are willing
to negotiate, interdependency, readiness to negotiate, means of influence, agreement on
some issues and interest, as well as the will to settle.44
Merrill's J, asserts that, the magnification and the development of the United Nations, as the
global organization has enhanced in numbers and scope of international organizations,45
with membership from countries or particular region.46 Regional organizations seek to make
available to its members a platform for negotiation and consultation in potential disputed
moments.47 These organizations have been very successful in settling disputes among
members.48 I concur with Merrill's J, on his account because Article 4(e) of the constitutive
act of the African Union (AU) stipulates they will do everything possible to ensure peaceful
resolution of conflicts between member states.49 Similar provision can be found in sister
organization constitutions.50
43Christopher W, NEGOTIATION [online]. (2000).
44 Ibid
45 J,G Merrill's, International Dispute Settlement, Cambridge university press [online]. (2011). Available from: <http://books.google.co.uk/books?id=BB4C3U1AslQC>. [Accessed 19.05.2014].
46 Ibid
47 Ibid
48 Ibid
49 Ibid
50 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
Merrill's J, again argues that, the task undertaken by a particular regional organization is
dependent on the nature of the organization concerned their location, and is how it is
structured.51 The constitutive act of the African Union came into effect on the 26th of May
2001,52 the AU now has its own parliament and seeks to establish its own court of justice
and human rights as well as central bank.53 The Organization of Africa union which has now
been metamorphosed to be the African Union (AU), successfully settled the border dispute
between Algeria and Morocco in 1963. Through the establishment of a commission which
through series of meetings negotiated for the removal of troops, exchange of prisoners and
the revamp of diplomatic ties.54 The AU again successfully settled the post-election dispute
in Kenya in 2007-8, and at the time used the good office of the former Ghanaian president,
John Agyekum Kuffour, who time doubled as the chair of the AU to mediate for peace. 55 The
AU again used the good office of the former South African president, Thabo Mbeki, to
mediate between the two Sudanese States, the outcome of which brought about the
independence of South Sudan on 9th July 2009.56
According to Merrill's J, ‘The Council of Europe’, (founded in 1949), has been responsible for
the discourse of matters of common interest. Again, the conference on security and
51 Ibid
52 Ibid
53 Ibid
54 Ibid
55 Ibid
56 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
cooperation in Europe (CSCE) succeeded in ending the East and West disputes in Europe.57 I
concur with Merrill's J, on these claims because the informal contacts created by the
meetings of these organizations can be advantageous in instances where disputes have
suspended normal diplomatic ties.58 Merrill's further asserts the disputes between Cyprus
involving the United Kingdom and Iceland enjoyed an open line of communication through
informal discussion, because all the 'States' concerned were members of (NATO).59
The Organization of the American States (OAS) founded in 1948 in the Atlantic, has also
been active on dispute resolutions among member states.60 The American treaty on pacific
settlement was completely concerned with dispute settlement and contains intricate
provisions for mediation, inquiry, conciliation, and judicial settlement.61 The (OAS) in 1929
used inquiry and conciliation through the 'Chaco Commission 'set up by (OAS) to settle the
border dispute between Bolivia and Paraguay’.62
Lantham and Watkins defines 'Arbitration' as:
57 Ibid
58 Ibid
59 Ibid
60 Ibid
61 Ibid
62 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
A private form of binding dispute resolution, conducted before an
impartial tribunal, which emanates from the agreement of the
parties but which is regulated and enforced by 'States'.'63
Arbitrators are usually selected by the parties involve.64 And are usually experienced lawyers
and experts in the area which the dispute has arisen.65 Over the past 50 years, arbitration
has been progressively cuddled by the global community,66 with many acknowledging the
significance as an essential means of resolving complex international disputes, primarily on
commercial issues.67
I agree with the argument put up by Lantham and Watkins, for the reason that, it is less
costly and also does not come with procedural technicalities.68 It portrays the referral of
disputes above ordinary laws even though it is not judicial in nature, it is governed by law,
63 Lantham and Watkins, Guide to international arbitration, [online]. (2006). Available from: <http://www.lw.com/thoughtLeadership/guide-to-international-arbitration-2014>. [Accessed 17.05.2014].
64 Ibid
65 Ibid
66 Ibid
67 Ibid
68 AlivaManjari, Arbitration, [online]. (2014). Available from: <http://www.shareyouressays.com/3814/here-is-your-free-sample-essay-on-arbitration>. [Accessed 17.05.2014].
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
and therefore the arbitrators cannot behave arbitrarily towards it.69 It is mostly meritorious
in cases that revolve around question of facts, for example, in the evaluation of damages.70
Makaramba V, concurs with Lantham and Watkins and argues that arbitration is an
alternative dispute settlement instrument, because it is touted as time consuming and less
expensive.71 It also has the ability of making parties involve in a dispute resolve disputes
privately without the interposition of courts.72 This is termed as 'Party Autonomy 'it brings
about 'Arbitral Justice' meaning it is free from the publicity that might characterise normal
litigations before the courts.73
Lantham and Watkins concurs with Makaramba V, and further advances their argument by
saying arbitration is characterise by 'Party Autonomy', which means the parties to
arbitration can shape disagreement resolution process.74 They have the right to selecting the
governing laws, the venue for the arbitration and also arbitrators whom they considered will
be neutral and ensure fair hearing of the issues.75 There are many arbitral institutions
69 Ibid
70 Ibid
71 Justice Robert V. Makaramba, Arbitration as a Mechanism to Speed up Delivery of Justice [online]. (2012). Available from: <http://www.comcourt.go.tz/comcourt/wp-content/uploads/2013/08/Arbitration-Mechanism-of-Alternative-Dispute-Resolution.pdf>. [Accessed 18.05.2014].
72 Ibid
73 Ibid
74 Lantham and Watkins, Guide to international arbitration, [online]. (2006).
75 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
globally, they include, the international court of arbitration, the London court of
international 'Arbitration'.76
Benni A, put forward that, conciliation includes element of mediation and inquiry, and
asserts that conciliation is more formal and flexible than mediation. Conciliation are usually
carried out by commissions made up of several members but 'States' usually prefer single
conciliator.77 The report of conciliations and it recommendations are not obligatory,
nevertheless, there are particular treaties that makes available legal binding on conciliation
reports and recommendations.78
Sheryl M, and Lawrence V, explains Inquiry as 'ascertainment of pertinent fact and issues in
disputes'.79 This include the use of effective fact finding bodies in accordance with Article 33
of the UN charter.80 The principal purpose of inquiry is 'Fact Finding' fact finding are usually
carried out to produce an impartial finding of disputed fact and also to make available an
avenue for settlement.81
According to the UN general assembly, judicial bodies are essential to peaceful settlement
of disputes.82 I concur with the GA on its assertion this is because the peaceful settlement of
disputes become real and attainable when the rule of law in its legal sense is been used at
76 Ibid
77 Benni A, The Skills of Effective Negotiations [online]. (2014).
78 Ibid
79
80 Ibid
81 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
both international and national levels.83 The Myanmar's delegate present at the sixth
general assembly for legal matters, also concurs with this assertion. He argues that,84
through the engagement of judicial bodies as fruitful, and can produce impartial results in
international dispute settlement, citing the peaceful resolution of the maritime dispute
between Myanmar and Bangladesh by the 'International Tribunal for the Law of the Sea'.85
In conclusion, 'States' in their recognition of the significance of the United Nations charter
for the maintenance of international peace and 'Security', through diplomatic tools of
conflict resolutions.86 For the enhancement of friendly relationships, and cooperation's
among 'States' will have to resort to diplomatic tools of conflict resolution to settle their
international disputes in fulfilment of Article 2(4) and Article 33 of the United Nations
charter to ensure global peace and security.87
References
82 General Assembly, Sixty-eighth General Assembly [online]. (GA/L/3457). Available from: <http://www.un.org/News/Press/docs/2013/gal3457.doc.htm>. [Accessed 19.05.2014].
83 Ibid
84 Ibid
85 Ibid
86 United Nations, Resolution adopted by the General Assembly [online]. (1970). Available from: <http://www.un-documents.net/a25r2625.htm>. [Accessed 18.05.2014].
87 Ibid
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
1. Charter of the United Nations, and statute of the international court of justice [online].
(1945).
2. Global security organisation, [online]. (2011). Available from:
<http://www.globalsecurity.org/military/world/war/disputes.htm>. [Accessed 17.05.2014].
3. Dr. Mohammad Naqib Ishan Jan, The Role of Mediation in the Pacific Settlement of
International Disputes [online]. (2002).
4. The International Court of Justice, cited in, The International Law of Negotiation as a
Means of Dispute Settlement [online]. (2000).
5. Mariya Yevsyukova, Conflict Research Consortium, [online]. (1995). Available from:
<http://www.colorado.edu/conflict/peace/example/norw858.htm>. [Accessed 20.05.2014].
6. Walid A, Peaceful Settlement of Disputes [online]. (2006). Available from:
<https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-
settlement-of-disputes>. [Accessed 20.05.2014].
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
7. J, G Merrill's, International Dispute Settlement, Cambridge university press [online].
(2011). Available from: <http://books.google.co.uk/books?id=BB4C3U1AslQC>. [Accessed
19.05.2014].
8. Lantham and Watkins, Guide to international arbitration, [online]. (2006). Available from:
<http://www.lw.com/thoughtLeadership/guide-to-international-arbitration-2014>.
[Accessed 17.05.2014].
9. Aliva Manjari, Arbitration, [online]. (2014). Avalable from:
<http://www.shareyouressays.com/3814/here-is-your-free-sample-essay-on-arbitration>.
[Accessed 17.05.2014].
10. Justice Robert V. Makaramba, Arbitration as a Mechanism to Speed up Delivery of
Justice [online]. (2012).
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
11. Sherryl M, and Lawrence V, Peaceful settlement of Disputes [online]. (2005). Available
from: <http://www.slideshare.net/Ramillav/peaceful-settlement-of-international-disputes>.
[Accessed 17.05.2014].
12. General Assembly, Sixty-eighth General Assembly [online]. (GA/L/3457). Available from:
<http://www.un.org/News/Press/docs/2013/gal3457.doc.htm>. [Accessed 19.05.2014].
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review
Bright Owusu Gyasi – President/Founder of Mama’s Foundation-Centre for Diplomacy/Policy review