A brief write up on International laws and international dispute resolution by our experts giving the broad ideas on various types of international laws and their implementation and the dispute resolution mechanism.
Law to be applied by the International Courts for deciding the international disputes:
- International Conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
- International customs, as evidence of a general practice accepted as law;
- The general principles of law recognized by civilized nations;
- Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Jurisdiction – The jurisdiction of the court may be classified as follows:
- Voluntary- The court has a jurisdiction in regard to all cases which parties refer to it voluntarily by special or ad hoc agreements and all matters which are specially provided for in the Charter of the U.N. or in treaties and conventions in force.
- Optional Compulsory Jurisdiction– The States parties to the present statute may at any time declare that they 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 concerning :
- the interpretation of treaty ;
- any question of International Law ;
- the existence of any fact which, if established, would constitute a breach of an international obligation;
- the nature or extent of the reparation to be made for the breach of an international obligation.
This clause, however, has been accepted by the States with wide reservations. United Kingdom, for example, has excluded the jurisdiction of the Court in disputes which by International Law fall exclusively within the Jurisdiction of the United Kingdom. India has followed the British pattern. United States has accepted the ‘Optional clause’ with far-reaching reservations. The reservation excludes the jurisdiction of the Court in disputes with regard to matters which are essentially within the domestic jurisdiction of the United States as determined by U.S.A.
- Advisory Jurisdiction– Articles 65 to 68 deal with the Advisory jurisdiction of the Court. The Court may give an advisory opinion on any legal question at the request of the General Assembly or the Security Council. Other organs of the U.N. and specialized agencies, with the authorization of the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities. Thus the U.N. may seek advisory opinions before legal issues are crystallized into claims. But, as observed by the I.C.J. in the Peace Treaties case, the Court’s opinion is only of an advisory character, as such it has no binding force. No State can prevent the giving of an advisory opinion which the U.N. considers to be desirable in order to obtain enlightenment as to its future course of action.
The court has accepted the position that the parties to a dispute may ask the court by their agreement to declare the principles of international law so as to enable them to make a treaty about the matter on the basis of those principles. Accordingly, the court declared certain principles in a reference by Tunisia and Libya for determination of the common continental shelf.
Remedies Against Criminal Act of a State under the International laws
Some acts by reason of their gravity, their ruthlessness, and their contempt for human life may be termed as criminal acts, e.g., order of the Government of a State for the whole-sale massacre of aliens resident within its territory. Similarly, the preparation and launching of an aggressive was may be described as a criminal act.
A State, victim of such criminal acts, may use force against the guilty State. The Character of the U.N. contains provisions of a penal nature to deal with crimes of war. It is now a well established rule that an individual who has committed a war crime, may be punished according to International Law by the aggrieved State. The criminal responsibility of the State is in addition to the international criminal liability of the individuals guilty of crimes committed in violation of International Law.
International Institutions and Legal Remedies
An international institution may be an international legal person either by virtue of general International Law or on the basis of treaty provisions. The legal remedies under International Law available in inter-State relations become available, with necessary modifications, to international institution also.
In the advisory opinion concerning reparation for injuries the I.C.J. found unanimously that the United Nations possessed an international personality. Thus U.N. could bring International claims against member or non-member States. Such claims could be brought for direct or indirect injuries to the Organization. By direct injury is means ‘damage caused to the interests of the Organization itself, to its administrative machinery, to its property and assets, and to interests of which it is the guardian’. By indirect injury is meant injury caused to the agents or to persons entitled to protection through the Organization. The I.C.J. observed :
In claiming reparation based on the injury suffered by its agent, the Organization does not represent the agent but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization.
Refusal of Reparation by the Delinquent State
If the delinquent State refuses reparation for the wrong done, the aggrieved State can adopt such means and measures as are necessary to enforce adequate reparation. These measures should be consistent with any existing obligations of pacific settlement.
The aggrieved State must, first, try to secure reparation through peaceful or amicable means. But if the peaceful means fail, the aggrieved State may resort to any of the compulsive methods to enforce reparation. The peaceful means may be :
- Good Offices and Meditation
- Judicial Settlement
- Through the machinery of the U.N.
The compulsive methods to secure reparation may be :
- Pacific Blockade
- Through the machinery of the U.N.
Peaceful means to secure reparation
The aggrieved State must, first, request the delinquent State to perform such acts are necessary for reparation of the wrong done. For this purpose, it must invite the delinquent State to settle the issue of reparation through negotiations or any other amicable or peaceful method of settlement of disputes.
Negotiation is the “term for such intercourse between two or more States as is initiated, and directed, for the purpose of effecting an understanding between them or settling a dispute”. In negotiation, there is exchange of viewpoints between the parties to the dispute and a decision of the dispute on the conference table. The drastic nature of war as the ultimate form of self-help, led at an early date to the creation of a legal obligation to negotiate in advance of an appeal to force.
(2) Good Offices and Mediation
When parties are not inclined to settle their differences by negotiations, or when the negotiations fail, a third State may offer its good offices or mediation for procuring a settlement. In the case of good offices, the third State brings the disputing parties to a conference table but it does not take part in negotiations. In mediation, on the other hand, the third State participates in the negotiations between the disputing parties and tries to help the parties in arriving at some satisfactory solution.
The aggrieved State may request a third State to exercise its good offices and mediation to influence the delinquent State to pay reparation for its unlawful acts. These good offices and mediation should not be regarded by the delinquent State as unfriendly acts because they are merely in the nature of advice and not have any binding force.
Mediation may be by States or it may be by distinguished private individuals or representatives of international institutions. Mediation by private individuals or international institutions may sometimes be more acceptable than mediation by a Government of a State because in the former case there is less fear that the mediator would use the occasion to serve the interests of his own State.
Oppenheim defines conciliation as a “process of settling a dispute by referring it to a Commission of persons whose task it is to elucidate the facts and to make a report containing proposals for a settlement, but which does not have the binding character of an award or judgment.
By a resolution adopted by the Third Assembly of the League of Nations, States were recommended to conclude treaties providing for the establishment of conciliation Commissions. A number of conciliation treaties have been concluded since then. The American Treaty of Pacific Settlement (Pact of Bagota) April 30, 1948, the Treaty of Brussels of March 17, 1948; Locarno Treaties; the General Act (Pacific Settlement of International Disputes), Geneva, 1928 etc., all provide for conciliation procedure. Article 33(1) of the U.N. Charter mentions conciliation as one of the peaceful procedure to be first adopted by the parties to find a solution.
Arbitration means the determination of a difference between States through a legal decision of one or more umpires or of a tribunal, other than the International Court of Justice, chosen by the parties.”
The reference of the dispute to arbitration is within the discretion of the parties, but once it is referred the parties are legally obliged to respect the ‘award’ given by the arbitrators. If a party refuses to respect the award then the other party may enforce it through such compulsive means as are open to it under International law.
The Hague Convention of 1899 for Pacific Settlement of International Disputes recognized the importance of arbitration as a mode of settlement of international disputes and provided for establishment of a Permanent Court of Arbitration.
‘Arbitration” has several advantages over judicial settlement. Arbitration proceedings can be conducted in private. The procedure is very simple. There is not much expense or waste of time. Moreover, there are certain technical matters which require a court to possess technical knowledge and parties can appoint arbitrators having that knowledge.
If the States are willing to refer their dispute to arbitration they enter into a treaty of arbitration. The treaty provides for the manner of appointment of the arbitrators, the law and procedure to be applied by the arbitrators, the subject-matter of the dispute and any special conditions upon which the parties may agree.
This method came into prominence in international matters with the Jay Treaty of 1974 between Great Britain and United States to resolve certain matters which could not be settled on the negotiation table. This was followed by the Albama Claims Award of 1872 between the same countries. Referring to this, Judge Manly O. Hudson observed:
The success of Albama claims arbitration stimulated a remarkable activity in the field of international arbitration. In the three decades following 1872, arbitral tribunals functioned with considerable success in almost a hundred cases; Great Britain took part in some thirty arbitrations, and the United States in twenty; European States were parties in some sixty, and Latin American states in about fifty cases.
The arbitral tribunals constituted by the Permanent Court of Arbitration have delivered awards in great many important cases including the Pious Fund case of 1802, between the United States and Mexico; the Savarkar case of 1911 between Great Britain and France; Honduras v. Nicargua, (1960) and the Kutch Arbitration Award (1968).
(5) Judicial Settlement
The question, what should be the extent of reparation for an international wrong, may be determined by the International Court of Justice. But the jurisdiction of the I.C.J. is not compulsory. No State can be compelled to litigate against its will. Oppenheim has rightly pointed out that “International society has not yet reached, as national societies have, the point at which any creditor or party injured can summon his debtor before a court without the latter’s consent to go there.
The I.C.J. consists of fifteen judges. Any nine judges constitute the quorum. The judges are elected for nine years, and are re-eligible. One third judges retire every three years. They are elected by the General Assembly and the Security Council. The judges are “elected regardless of their nationality from among persons of high moral character, who possesses the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in International Law. The judges should be so elected as to assure the representation of the main forms of civilization and of the principal legal systems of the world. Judges act in their personal capacity and they are not representatives of the States of which they are the nationals. Article 31 of the Statute, however, lays down that in a case before the court judges of the nationality of each of the parties shall retain their right to sit. If the Court does not include upon the Bench any judge of the nationality of the parties, each of the parties may choose a judge. No two judges of the Court may be the nationals of the same State.
Parties.– Only States may be parties to disputes before the Court. All members of the U.N. are ipso facto parties to the Statute of I.C.J. the Statute being integral part of the Charter of the U.N. A non-member of the U.N. may become a party to the Statute of the I.C.J. on conditions to be determined in each case by the General Assembly on the recommendation of the Security Council. The U.N. and specialized Agencies, not being States, cannot appear as a party, but they may through the General Assembly or the Security Council, request the Court to give an advisory opinion on any legal question arising within the scope of their activities.
International relations between two countries and the mutual activities against each other determine the basics of the International laws. Some of the heads which are important can be enumerated as under:
- REPARATION OF THE WRONG
It is a well established principle of International Law that the State whose rights have been violated has a right to request the delinquent State for the performance of such acts as are necessary for reparation of the wrong done. Thus reparation for the wrong suffered is an important remedy available to the wronged State. The term reparation has been used in Article 36(2) of the Statute of International Court of Judge [I.C.J.] also. The Permanent Court of International Justice in Chorzow Factory case, explained the true meaning of ‘reparation’. The court observed :
“It is a principle of International law that the breach of an engagement involves an obligation to make reparation in an adequate form…… Reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if that is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to International Law.”
As is clear from the above observation of the court, ‘restitution’, and ‘compensation or damages’ are the methods of reparation for the material damage sustained by a State. A third method of reparation appropriate to injuries of a non-material nature is ‘satisfaction’ or a ‘formal apology on the part of the delinquent State’. Thus reparation may consist of ‘restitution,’ ‘compensation or damages’ and ‘satisfaction’.
The wronged State has a right to demand the return of specific articles, property, land etc. wrongfully taken by the delinquent State. Restitution in kind is designed to re-establish the situation which would have existed if the wrongful act or omission had not taken place. In the peace treaties after the Second World War, restitution was granted with respect to the properties removed from the occupied territory of an enemy.
Restitution is the normal form of reparation. It is only when restitution is not possible, that the aggrieved State is indemnified through damages or compensation. Restitution is not possible when there is physical or material impossibility, e.g., where an unlawfully seized vessel has been sunk. Although restitution is the basic form of reparation, in practice very often, monetary compensation has taken its place.
Damages or Compensation
Damages or compensation are to be measured by pecuniary standards. Grotious has pointed out that money is the common measure of valuable things. Theoretically speaking the consequences of the wrongful act of a State may be endless but there must be an end to its liability. Hence in each case it has to be decided to what extent the delinquent State should be held liable. In Chorzow Factory case P.C.I.J. explaining the meaning of reparation observed.
“Resparation must so far as possible, wipe out all the consequences of the illegal act….”. The question, therefore, is whether the obligation to compensate for the damage, resulting not directly from the unlawful act, but also from subsequent events. In the Alabama Arbitration in addition to claiming damages for the loss of captured vessels, United States claimed a number of consequential losses also, e.g., enhanced payments of maritime insurance, the prolongation of the war and the additional cost of suppressing the rebellion and expenses incurred in pursuing the raiders. The arbitral tribunal found Great Britain liable but disallowed the American claims for indirect loss.
The delinquent State would be liable for all the proximate consequences of its wrongful act but not for the remote consequences. In arbitration awards in the case of damage to Portuguese Colonies and Spanish Zone in Morocco the principle laid down in this connection was that “it is necessary to exclude losses which are only connected with the initial act by an unexpected concatenation of exceptional circumstances which could only have occurred with the help of causes which are independent of the author of the act and which he could in no way have foreseen.”
On the basis of this criterion, compensation was allowed to the members of the families of those who lost their lives in the Lusitania, but not to life insurance companies for having had to pay prematurely. The payments made by the life insurance companies depended on pre-existing contracts and not on the acts of Germany which was entirely alien to and ignorant of those contracts.
Compensation implies a complete restitution of the status quo ante. In Chorzow Factory case, the P.C.I.J. observed that in assessing the amount of compensation, loss of profits to be anticipated in the normal development of the undertaking should be taken into account. Only those profits are to be taken into account which would have accrued in the ordinary course of events. Profits which are too remote or speculative are not taken into account in assessing damages. In Chorzow Factory case, the company claimed damages on the following counts :
- that it was no longer able to the same extent as before to carry out experiments,
- that it was unable to perfect the process of manufacture,
- that it was unable to make new discoveries and influence the market.
The P.C.I.J. held the damage on these counts as too remote. No compensation was, therefore, allowed on these counts.
Interest.– Further, amount of interest on the reasonable rate should able be taken into account while calculating damages. In the Wimbledon case the P.C.I.J., observed that taking into account ‘the financial situation of the world’ the conditions prevailing for public loans, 6% interest was fair. Oppenheim point out : “It is the general principle of international tribunals to award interest, at rates which very according to the prevailing circumstances, from the date when a debt or other liquidated demand became due, or when the injury complained of occurred, or from the date of the judgement or award.”
Punitive Damages.– An interesting question may arise whether punitive damages can be awarded against the delinquent State. It has been said that the fundamental concept of damages is reparation for a loss suffered and that there cannot be superimposing of penalty in addition to full compensation’. Parties do not intend to invest the arbitral tribunals with a repressive power. Even I.C.J., has not been given this power. The International Court of Justice is to determine the ‘reparation’ to be made for the breach of an international obligation. Reparation does not include repression. But the practice of States and Tribunals indicates that in some cases reparation in the nature of penalty has been awarded, for example, the decision of the Council of the League of December, 1925, awarding to Bulgaria the payment of ten million levas by Greece in addition to compensation for damage to movable property.
Satisfaction is a form of reparation which is awarded to compensate for the moral injury or the non-material damage to the personality of the State. In addition to pecuniary damages, the delinquent State may be required to express official regrets and apologies. The expression ‘official regrets’ and ‘apologies’ is a reparation in the nature of ‘satisfaction’ to the aggrieved State. Again, the judicial declaration of the fact that the act committed by the delinquent State was unlawful, is itself considered to be a serious sanction. Such declaration is a ‘satisfaction’ to the aggrieved State. Again, the judicial declaration of the fact that the act committed by the delinquent State was unlawful, is itself considered to be a serious sanction. Such declaration is a ‘satisfaction’ for the aggrieved State. In Corfu Channel case the International Court of Justice observed that –
to ensure respect for International Law, of which it is the organ, the Court must declare that the action of the British navy constituted a violation of Albanian sovereignty. The declaration is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satisfaction.
Claim by a State for Reparation for Violation of Rights of its Nationals
Private person whose rights have been violated by a foreign State cannot put their claims before an international tribunal in their own capacity. But States have a right under International Law to protect the life, liberty, property and honour of their nationals living abroad. So whenever the rights of nationals of a State are violated by some unlawful act of another State, it has a right to demand reparation from the delinquent State. It should be noted that in such cases, the State does not act merely as the legal representative of the individual, but asserts its own rights. Thus the reparation which it claims has the same international character as any other reparation due from one State to another. The P.C.I.J., in Mavrommatis Palestine Coocessions (Jurisdiction) case observed :
It is an elementary principle of International Law that a State is entitled to protect its subjects when injured by acts contrary to International Law committed by another State, from whom they have been unable to obtain satisfaction through ordinary channels. By taking up the case of one of its subjects and by reverting to diplomatic action or International judicial proceedings on his behalf, a State is in reality asserting its own rights, its right to ensure, in the person of its subjects respect for the rules of International Law ……. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is the sole claimant.
Further, as Oppenheim points out : “From the time of the occurrence of the injury until the making of award the claim must continuously and without interruption have belonged to a person or to a series of persons (a) having the nationality of the State by whom it is put forward, and (b) not having the nationality of the State against whom it is put forward.” The principle of ‘nationality of claims’ has been stated by the P.C.I.J., in the following words :
The right is necessarily limited to intervention on behalf of its own nationals, because in the absence of a special agreement, it is bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection
Measures of Reparation in private claims
The reparation granted to a wronged State for the violation of the rights of its nationals is closely related to the loss suffered by those nationals. The P.C.I.J., in Chorzow Factory case observed :
Rights or interests of an individual the violation of which causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical with that which will be suffered by a State; it can afford a commitment scale for the calculation of the reparation due to the State.
Exhaustion of Local Remedies
It is a well recognised rule of International Law that an international tribunal will not entertain a claim put forward by a State on behalf of an alien on account of alleged denial of justice unless the person in question has exhausted the legal remedies available to him in the State concerned. The underlying principle of this rule is that the respondent State must be given the opportunity before it is made internationally responsible, of doing justice its own way. So long as there has been a final pronouncement on the part of the highest competent authority within the State, it cannot be said that justice has been definitely denied and that a valid international claim has arisen. The International Court of Justice in the Interhandel case observed :
Before resort may be had to an international court in such a situation, it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system.
If the rule of ‘exhaustion of local remedies’ is not followed the alien would become a privileged individual for whom the local law and local tribunals would not exist. He could introduce the political influence of his parent State on the slightest difficulty arising with another government.
Situations when ‘Exhaustion of Local Remedies’ Rule will not be applicable
Oppenheim points out that ‘local remedies’ rule will not be applicable’ to a claim “if it is clearly established that, in the circumstances of the case, an appeal to a higher municipal authority would have had no effect, for instance, when the supreme judicial tribunal is under the control of the executive organ whose acts are the subject-matter of complaint or when the decision complained of has been given in pursuance of an unambiguous municipal enactment with the result that there is no likelihood of a higher tribunal reversing the decision or awarding compensation, or, as a rule, when the injury to the alien is the result of an act of the government as such.”
Thus the rule will not apply when the existing remedies are ‘obviously futile’ or ‘manifestly ineffective’. This rule will not apply if there is a danger of such unreasonable delay in the dispensation of the remedy that it becomes ineffective. Justice delayed is justice denied.
The Calvo Clause
The Government of a State, while entering into a contract with an alien, may insert a clause known as Calvo Clause, whereby alien agrees that “doubts and controversies that may arise on account of this contract shall be decided by the competent tribunals of the State in conformity with its law, and shall not give rise to any foreign diplomatic intervention or international reclamation.” Thus, under this clause, an alien agrees that disputes shall be disposed of by the local tribunals and he renounces any claim upon his home State for its protection.
An objection has been raised against ‘Calvo Clause’ because under such clauses an individual renounces the right which International Law confers not upon him, but upon his home State, of protecting him against treatment which contravenes the rules of International Law. But in actual practice, Arbitral Tribunals have constantly upheld the validity of the Calvo Clause. The validity of the clause was upheld in the Ofinoco Steamship Co’s case between United States and Venezuels, where the clause protected the State against responsibility for losses caused by discrimination in permitting navigation facilities and also by acquisition of vessels during a revolution, though subsequently on a reference by the United States of the disputes to the permanent Court of Arbitration it was held that the rejection of the claims was not justified. A subsequent decision goes to this extent that if by virtue of the Calvo clause, a foreign contracting party is confined to local remedial only and if the national forums are denying or delaying remedies, he can seek the aid of the Home Government and the latter can demand the application of international law.
Enforcement of foreign Judgements
Under Article 94 of the Charter, each member of the U.N. has undertaken to comply with the decision of the I.C.J. in any case to which it is a party.
If any party fails to comply with the decision, the other party may have recourse to the Security Council, which may make recommendations or decide upon measures to be taken to give effect to the judgement.
If the Security Council fails to decide upon measures to be taken to give effect to the judgement due to veto obstacle, the aggrieved State may resort to self-help and cooperation of third States. But as Schachter has pointed out the traditional method of resorting to self-help can now be utilised only within the limits specified by Articles 2(3) and (4) of the Charter regarding the use of force. The assets of the respondent in the plaintiff’s territory may be seized in satisfaction. The U.K. explored this possibility in connection with the Corfu Channel Case, but found that no Albanian assets were available for seizure.
Enforcement may be obtained with the co-operation of third States. In 1951, France, U.K., U.S. agreed to give the U.K. priority over other claimants in regard to monetary gold belonging to Albania found in Germany to obtain satisfaction of the Corfu Channel Judgement.
(6) Through the machinery of the U.N.
The aggrieved State whose rights have violated by the delinquent State may utilise the machinery of the U.N., for the reparation of the damage through peaceful means.
Responsibility for the pacific settlement of disputes rests on the Security Council, the General Assembly and the signatories of the Charter themselves.
Responsibility of Signatories of the Charter
Members of the U.N. are obligated first of all to seek the settlement of disputes, the continuance of which is likely to endanger maintenance of international peace and security by the traditional means of peaceful settlement e.g., negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement resort to regional agencies or other peaceful means of their own choice. The Security Council can also call upon the parties to settle their disputes by such means.
Responsibility of the Security Council
The Security Council may also investigate any such dispute or situation in order to determine whether they are likely to endanger the maintenance of international peace and security.
Under Article 36 of the Charter, the Security Council may, at any stage of such dispute or situation, recommend appropriate procedures or methods of adjustments.
Under Article 37, parties to the dispute and the Security Council have further obligations. If the parties fail to settle the disputes themselves, they must refer it to the Security Council. This obligation applies only to a dispute “likely to endanger international peace and security”. Whether the dispute is, in fact, so dangerous and whether the means of settlement have failed, is determined by the Council. If the Security Council determines these questions in the affirmative, it is obligated either (I) to recommend further procedures or methods of settlement, or (ii) to recommend “such terms of settlement as it may consider appropriate”.
Article 38 allows the Security Council, should all the parties to any dispute (not necessarily dispute endangering international peace and security) so request “to make recommendations with a view to a pacific settlement of the dispute”.
Responsibility of the General Assembly
Under Article 35(I) a dispute or situation likely to endanger maintenance of international peace and security may be referred either to the Security Council or to the General Assembly.
Although Chapter VI of the U.N. Charter specifically provides the way in which the Security Council is to proceed with serious disputes, no similar language has been used for the General Assembly. Since the Security Council was supposed to play a major role in the pacific settlement of disputes, there is, in fact, very little indication of what is expected of the General Assembly. No limitation has been placed upon the type of dispute which can come before it. Under Article 10, the General Assembly can discuss any question within the scope of the Charter. Under Article 14, the Assembly is empowered to “recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations. The Assembly has adopted flexible attitude regarding the nature of the questions it will consider and the character of its recommendations.
Non-members and the Pacific Settlement of Disputes
Article 35(2) provides that “A State which is not a member of the U.N. may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter”.
This provision is consistent with the principle of the Charter contained in Article 2(6), which lays down that “the Organisation shall ensure that States which are not members of the United National act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace, and security”.
Compulsive Methods to Secure Reparation
Oppenheim points out that, “compulsive means of settlement of differences are measures containing a certain amount of compulsion taken by a State for the purpose of making another State consent to such settlement of a difference as is required by the former”.
Following are the compulsive means for settlement of differences :
Retorsion consists in retaliation for unfriendly, discourteous or inequitable acts of another State by the acts of similar kind, for example, revocation of diplomatic relations, withdrawal of fiscal and tariff concessions etc.
The question when the use of retorsion would be justified depends upon the facts and circumstances of each case as “unfriendliness” cannot be precisely defined.
The value of retorsion is that a State inclined to commit a wrong against another is often prevented by the fear of retaliation. Fenwick points out that retorsion is still within the law, since it does not involve use of force prohibited by the Charter. The acts which provoke retaliation are of so many different kinds that it is not possible to say what acts in retaliation would be within the permissible range. All that is clear is that retaliation need not be of the same kind.
“Reprisals are such injurious and otherwise international illegal acts of one compelling the latter to consent to a satisfactory settlement of a difference created by its own international delinquency”.
Reprisals, in contradistinction to retorsion, are measures which are otherwise unlawful, but may be taken exceptionally when one State violates the rights of another State. The sole purpose of reprisals is to force the delingquent State to abide by law. In the Naulila incident, the special Arbitral Tribunal Ceremany-Portugal, made it clear that in order that reprisals may be called ligitimate :
- there must have been an illegal act on the part of the other State,
- they must be preceeded by a request for redress of the wrong, and
- the measures adopted must not be excessive – They must be in proportion to the wrong done. Only that much of force should be used as is necessary to get reparation. In 1850, K. blockaded Greek Coast and captured Greek Vessels as reprisals against Greece. Earlier, in 1847, Greek mobs had plundered the house of a British national living on Greek territory. It was held that there was no proportion between wrong done and reprisals.
An act of reprisal may be performed against anything and every thing that belongs to the delinquent State or its citizens. Thus ships sailing under its flag may be seized, treaties concluded with it may be suspended, goods belonging to it or its citizens may be seized and the like. There is a special kind of reprisal, named ’embargo’, i.e. the ships of the delinquent State may be prevented from leaving the ports of the injured State, for the purpose of compelling the delinquent State to make reparation for the wrong done.
It should also be noted that acts of reprisals may be performed by only such State organs as armed forces or administrative officials etc. They are not to be performed by the private individuals.
Briefly points out “the changes in the law concerning recourse to force have, of course, severely curtailed the kinds of reprisals which may lawfully be taken today”. Reprisals are permitted today, provided they do not amount to the use of force. But armed reprisals may be taken in self-defence against an armed attack.
The U.N. Charter doe have certain effects upon reprisals. Para 4 of Article 2 requires member states to refrain from threats or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of U.N.O. In addition to this, the U.N. declaration on principles of International Law expressly declares that States have a duty to refrain from acts of reprisal involving the use of force. Thus under the U.N. scheme reprisals can be used lawfully only for defensive purposes.
- Pacific Blockade
When blockade is resorted to in peace time it is known as pacific blockade. In blockade, there is the blocking by men of war, of the approach to the entire or a part of the coast belonging to the delinquent State, for the purpose of preventing ingress and egress of vessels or aircraft of the delinquent State. The object of pacific blockade is to put a ban on maritime transport of delinquent State and thus to compel it to settle the difference with the aggrieved State. Since 1827, when British, French and Russian ships blockaded the coast of Greece during her fight for independence against Turkey, pacific blockade has developed as a measure distinct from blockade in time of war.
The pacific blockade must be effective i.e. backed by sufficient force and it must have been notified in advance. The blockading State can seize those ships of the blockaded State that attempt to break the blockade. But such ship; must be returned to the delinquent State, when blockade comes to an end.
In view of the prohibition contained in Article 2(4) of the U.N. Charter, pacific blockade is now obsolete institution of International Law. It can no longer be lawfully resorted to unless it is set up to a prior blockade by another State or another comparable act of force.
Blockade has generally been used by powerful states having naval forces against weaker states. Past record shows that this has been resorted to attain objects like compliance with treaties, to prevent war or war like activities. In 1886 it was resorted to disarm Greek troops which assembled near the frontier with Turkey. It is observed in Starke.
From this standpoint the pacific blockade may be regarded as a recognised collective procedure for facilitating the settlement of differences between the states. Indeed, the blockade is specially mentioned in Article 42 of the U.N. Charter as one of the operations which the Security Council may initiate in order to maintain or restore international peace or security.
Of the recent illustrations one is the blockade or quarantine of Cuba by the U.S. in 1962 to prevent the supply of certain weapons and equivalent to Cuba. Another is the U.K. action is 1982 around the Falkland Islands declaring certain area as a Total Exclusion Zone (TEZ).
“Intervention is dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things”. Thus intervention is dictatorial interference by a State or group of States in the internal or external affairs of another State by way of the use of force. International Law protects the international personality and territorial or personal supremacy of a State, and therefore intervention, as a rule is forbidden by International Law.
A State may intervene in the affairs of another State in order to settle a dispute to its advantage. The second kind of intervention may be when a third State interferes in a dispute between two other States in order to impose its terms of settlement. In exceptional circumstances classical International Law recognised intervention backed by armed forces as permissible by law.
Those exceptional circumstances as pointed out by Oppenheim are;
- “A State may intervene in the external affairs of its protectorate.”
- “If an external affair of a State is at the same time by right an affair of another State, latter has a right to intervene in case the former deals with that affair unilaterally”.
- “If a State which is restricted by an international treaty in its external independence or its territorial or personal supremacy does not comply with the restrictions concerned, the other party or parties have a right to intervene.”
- If a State violates universally recognised rules of International law, other States have a right to intervene.”
- “A State that has guaranteed by treaty the form of government of another State, or the reign of a certain dynasty over the same, has a right to intervene in case of a change in the form of government or of the dynasty.”
- A State may intervene in the affairs of another State for the purpose of protecting life, security, honour or property of its citizens living abroad.
- Intervention may be on the ground of humanity.
- Intervention may be for the purpose of self-preservation.
- Intervention may be in the interest of the balance of power.
Some of the noteworthy examples of intervention are : The Caroline case, (1841) intervention to stop a ship carrying arms and men passing through U.S. territory for aiding rebilition against the British Colony of Canada which was held to be not justified; Corfu Channel case, (1949) Britain removing mines laid by Albania in the territorial waters to ensure safe passage of British ships; Russian Intervention in Hungary of 1956 by sending troops for suppressing local revolt allegedly on request, but the U.N. finding was that the intervention was not justified; Intervention of U.K. France and Israel in Egypt in 1956, to prevent nationalization of the Suez canal which was held to be violative of U.N. Charter. The ultimate settlement gave Egypt the right to collect revenue from canal users but the canal would remain free from international politics and open to international shipping; Takeover of Goa, (1961) for liberating the land from portuguese occupation; American Intervention in Cuba, (1962) the United States Blockaded Cuba on the ground of self preservation; Vietnam, military intervention by United States under the plea of individual and collective self-defence; Cambodia, and intervention similar to that in Vietnam; Partial Occupation of Falkland Islands by Argentine, 1982.
In Contemporary law, however, intervention backed by force of arms is prohibited without any exception. Under the U.N. Charter force has been totally outlawed. The U.N. General Assembly has decided the law in the following words:
“No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are condemned.”
- Through the Machinery of the U.N. – There are two situations when the use of force is permitted by the Charter:-
- Use of force by the U.N. through the Security Council under Chapter VII of the Charter.
- Use of force in exercise of the right of individual or collective self-defence.
- Use of force by the U.N. – Chapter VII of the U.N. Charter deals with collective measurers and the enforcement action. Article 39 empowers the Security Council to determine the existence of any threat to the peace, breach of the peace or act of aggression. If the Security Council makes such a determination, it must then decide whether it is necessary to recommend the use of sanction in order to maintain or restore international peace and security. Before making such a recommendation, the Council may call upon the parties concerned to comply with such provisional measures, as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measurers.
The terms ‘threat to the peace’, ‘breach of the peace’ and ‘act of aggression’ are vague. They have not been purposely defined by the Chapter. It was felt that any attempt to define all possible acts of aggression was impossible and would only permit loopholes through which disturbers of peace could march.
Articles 41 and 42 provides for the sanctions which the Security Council may employ in order to maintain international peace and security. Article 41 provides for measurers not involving the use of armed force e.g. interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and severance of diplomatic relations. If the measurers under Article 41 are inadequate, the council may take such action by air, sea or land forces as may be necessary to maintain international peace and security. Such action may include demonstration, blockade and other military operations.
Article 43 calls upon all member of the U.N. to make available to the Security Council, on its call and in accordance with special agreements armed forces, other assistance and facilities etc.
Military sanctions are to be employed under the supervision of the Security Council. This supervisory function, by Article 47 is to be entrusted to the Military Staff Committee, a subsidiary organ of the Security Council.
However, both Articles 43 and 47 have been inoperative. The negotiations called for in Article 43 never took place and the Military Staff Committee ceased to function beyond 1948 after failing to reach agreement on the military requirements of the U.N.
Decisions of the Security Council under Chapter VII are binding upon all members. Article 25 of the Charter provides :
The members of the U.N. agree to accept and carry out the decisions of the Security Council in accordance with the present charter.
However, due to lack of co-operation among great powers the Security Council did not function as was intended. The failure of the Security Council to function as planned, threw the General Assembly into an unintended prominence. It also led members to seek protection outside the U.N. in regional organisation like NATO etc.
As early as 1947 it was realised by the member States that the Security Council is paralysed due to veto hurdle and it seemed natural to bring to the vetoless Assembly issues like the Greek question or the Korean independence question.
In 1950, the General Assembly passed ‘Uniting for Peace’ Resolution. This resolution carried the Assembly into a field which the Charter had reserved for the Council. But it has been argued and accepted by the members of the General Assembly which passed the ‘Uniting For Peace’ Resolution that the Assembly under the broad powers contained in Article 10 can take appropriate enforcement action in case the Security Council failed to take action due to veto hurdle. The I.C.J. has also indirectly confirmed the validity of ‘Uniting For Peace’ Resolution in handing down its advisory Opinion on the question of U.N. expenses for Peace-Keeping Operations in 1962.
The resolution authorizes the Assembly to act in place of the Council when the Council has failed its primary responsibility in a case where there appears to be a threat to the peace, breach of the peace or act of aggression. The Assembly can ‘recommend’ the collective measures. The use of armed forces can be recommended only in case of breach of the peace or act of aggression and not in the case of a mere threat to the peace. The resolution provides that the Assembly can meet in special emergency session within 24 hours if so requested by a majority of U.N. members or by the affirmative vote of any nine members of the Security Council. A Peace Observation Commission was established to observe and report on the situation in any area where there exists international tension the continuance of which is likely to endanger international peace and security. Further, a Collective Measurers Committee was established to recommend what collective measures, including the use of armed force, be taken to maintain international peace and security. The resolution recommended that each member of the U.N. should prepare itself so that in case of necessity it can make the armed force available.
- Use of force in exercise of the right of Individual or collective self-defense- The law of self-defence now finds expression in Article 51 of the U.N. Charter. It provides:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the U.N., until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of the right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take any any time such action as it deems necessary in order to maintain or restore international peace and security.
It is said that the Charter has not restricted the right of self-defence only to cases where there is armed attack. The Charter guarantees the inherent right of self-defence. The Charter merely clarifies the legal position under Article 51 with respect to self-defence when an armed attack occurs. Self-defence thus continues to remain a lawful means of protecting certain essential rights, and not only the right to be free from an armed attack. The second interpretation is that the Charter modified the customary right of self-defence. In view of limitation contained in Article 2(4) and Article 51 of the Charter, a State may act in individual self-defence only if an armed attack occurs against it.
The members have a right to collective self-defence also. Several states have entered into such treaties which play an important role because of the collective security system of the UN has its own limitations. Some of the important and well known such treaties are Warsaw Treaty of 1955, North Atlantic Treaty of 1949.