brightowusugyasi.files.wordpress.com€¦ · Web viewBright Owusu Gyasi – President/Founder of...

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


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


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


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].


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].


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


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


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


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


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].


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


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


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


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].


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).


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].


brightowusugyasi.files.wordpress.com€¦ · Web viewBright Owusu Gyasi – President/Founder of...

Documents

Transcript of brightowusugyasi.files.wordpress.com€¦ · Web viewBright Owusu Gyasi – President/Founder of...