UNIT 10 PACIFIC SETTLEMENT OF DISPUTES

Structure
10.1 Introduction
Aims and Objectives
10.2 Meaning and Early Traditions
10.2.1 Early Traditions of Pacifism

10.3 The Hague Conventions

10.4 The United Nations Charter
10.5 Traditional Means
10.5.1 Negotiation
10.5.2 Inquiry
10.5.3 Mediation and Conciliation

10.6 Legal Means

10.6.1 Arbitration
10.6.2 Adjudication

10.7 From Peaceful Settlement to Imposition of Peace

10.8 Summary
10.9 Terminal Questions
Suggested Readings

10.1 INTRODUCTION
Peace, said the famous scientist Albert Einstein, cannot be kept by force; it can only be
achieved by understanding. It is absolutely true that in this conflict-ridden world, peace is
much difficult to achieve. But as eminent people from varied fields have propounded time
and again, peace is a state of mind, a journey, an absolute necessity and a prerequisite
to live without any conflict. While conflicts do threaten to disturb the symmetry, it cannot
be concluded that we have to live with them. While conflicts negatively affect us, there
are numerous options to avoid them or disband them. This is achieved through peace.
While it is much easier to get into conflicts, the will to follow the path of peace needs
strength and courage. There are different ways to achieve peace. Different religions like
Hinduism, Islam, Christianity, Sikhism, Jainism and Buddhism have talked about peace. In
fact peace has been the core of all these religions. Similarly non-violence too finds a place
in these religious scriptures wherein causing harm to any being is prohibited and is
considered as a sin. Peace and non-violence have been the twin pillars on which
Mahatma Gandhi relied heavily to oppose the mighty colonial empire. He is rightly
considered as an apostle of peace. Gandhi also advocated pacifism as one of the best
methods to achieve peace. This Unit deals with the concept of pacifism and its
importance in achieving peace.
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Aims and Objectives

After studying this Unit, you will be able to understand:
 the concept and meaning of pacifism;
 the background history of pacifism;
 the various conventions that worked on pacific settlements; and
 its importance in the contemporary era.

10.2 MEANING AND EARLY TRADITIONS

Meaning of Pacifism
When disputes are not resolved meaningfully and peacefully, they lead to war. The method
of solving the disputes through wars and armed conflicts is not at all a feasible one. The
means for solving disputes amicably is called pacific settlement of disputes. It has
diplomatic and legal options which are laid down in the international law. It is these means
that regulate relations among states and ensure world peace and security.
Pacifism means opposition to violence and war. The term was coined by French Peace
Campaigner Emile Arnaud (1864-1921), a lawyer and writer who founded the International
League for Peace and Freedom in 1861. In 1901, he noted his views and ideas in his
treatise called “Code de la Paix”, broadly outlining the methods and goals of peace
movements. This he called as pacifism through which he insisted on maintaining harmony,
achieving peace through mutual consensus and also through tolerance and non-violence.
The term pacifism was adopted by the peace activists in 1901 at the tenth Universal
Peace Congress in Glasgow. The basic premise of pacifism is that international disputes
could be solved amicably, without military involvement/war or violence. It rejects the use
of physical violence to attain social, economic or political goals by any country against
another. It espouses outright and unconditional rejection of force and violence. To wage
a war is morally wrong and to resort to war for gaining mileage is something that pacifism
does not approve of. The concept of just war has no place at all in pacifism.
While the pacifists generally reject as morally wrong and call for better ways of settling
disputes, there are some sections in it who feel that it is justified to respond opponent’s
force with force. These are called semi-pacifists. Absolute pacifists are those who reject
war and violence in any form; according to them, human life is too valuable to be killed
or harmed.

10.2.1 Early Traditions of Pacifism

Some of the earliest sources of pacifism originate from religious scriptures and influences.
Prominent among them are Jainism and Buddhism. Hinduism condemns violence and
hatred. Islam propagates a way of life so as to enable human being to lead a peaceful
life. Christianity calls for forgiving those who inflict harm. It insists on peace and its
efficacy. It has been recorded that Emperor Asoka, who waged many a battle to expand
his kingdom, became an absolute peace messenger after witnessing the cruel carnage of
Kalinga war. The Seven Military texts of ancient China do not view war as a positive
means to end conflicts. War is viewed as an inauspicious instrument to contain war. Even
during the Roman Empire times, war was rejected by many scholars.
106 Conflicts and Peace : Global Perspectives

In the contemporary history, the Protestant Reformation gave rise to many new sects in
Christianity. The Quakers or Religious Friends of Society and others are foremost among
them. They were the most sincere advocates of pacifism and refused to serve in the
military. A prominent English Quaker was William Penn, who took a stand on anti-
militarist policy. Prominent thinkers who have been influenced by this school of thought
were Jean-Jacques Rousseau, Immanuel Kant and Jeremy Bentham. Many other thinkers
too advocated for peace as the goal of a nation’s interest and that nothing could be
achieved by resort to arms or military actions. The period of Napoleonic wars saw many
informal peace movements and initiatives for peace. The London Peace Society convened
the first International Peace Congress in 1843 in London. One of the most influential
writers of that era was the Russian writer Leo Tolstoy whose ‘The Kingdom of God is
within You’ with its detailed history and advocacy for pacifism made a lasting impression
on many thinkers and writers. Mahatma Gandhi was greatly influenced by Tolstoy’s
writings and frequently corresponded with him regarding his thoughts and ideas. Gandhi
led many non-violent campaigns both in South Africa and India and was greatly influenced
by the writings of Leo Tolstoy, John Ruskin and Thoreau.
The World War-I in the year 1914 aroused amongst the peace groups a strong anti-
militarist feeling. There were consistent efforts by different organisations towards ensuring
disarmament. There were also efforts for the arbitration of disputes and to keep intact the
territorial integrity of the nations involved in the war. The end of the war saw the
emergence of The League of Nations, which in its capacity as an international organisation,
tried its best to ensure disarmament and keep war at bay in the 1920s and 1930s. At
the same time, it failed to keep up the momentum as Germany, Italy and Japan did not
display willingness to adhere to disarmament and this led to the eventual outbreak of
World War II.
With the onset of the World War II, the pacifist and anti-militarist feelings declined among
the nations that were affected by war. Many prominent thinkers and supporters of
pacifism were disturbed by the outbreak of war. They set aside their pacifist ideology to
endorse military action against the Nazism and fascism. Some of the pacifists were
reported to be severely ill-treated and punished in the Nazi Germany. The pacifists in
some nations were not forced to enroll in military during the war time but were asked
to do social and humanitarian service.

10.3 THE HAGUE CONVENTIONS

In 1899, the Russian Czar Nicholas II convened The Hague Peace Conference to discuss
the issues relating to international peace and disarmament. The conference ended with the
adoption of the methods of pacific settlement of disputes like arbitration, good offices and
mediation. It was decided during the proceedings of the convention that a permanent
organisation related to resolving the disputes and making peace settlements was mooted.
Thus came into effect The Permanent Court of Arbitration (PCA) consisting of a panel
of jurists designated by each country acceding to the convention. The rules and regulations
relating to the conducting of arbitration were laid down and a permanent bureau was set
up in The Hague. The PCA was established in 1900 and started functioning from the year
1902. The convention saw the participation of some of the nations from Europe, Asia and
Mexico.
The Convention was held again at The Hague in 1907 known as the second Hague
Peace Conference. This time there was also participation from the Central and South
Pacific Settlement of Disputes 107

American states. The participating nations revised and improved the rules related to the
governing of arbitral proceedings. One of the key suggestions came from the United
States that argued for creating a permanent tribunal composed of judges who were
judicial officers and were not occupied otherwise except for devoting their entire time to
the trial and decisions of international cases by judicial methods. It was also suggested
that the members of the jury should be from different countries so as to bring in the
positive and good points of their respective judicial systems. Though many countries
submitted joint proposals regarding this judicial body, none of them could come to a
consensus. But the draft convention became a major source for establishing the rules and
regulations and drafting of the Statute of the Permanent Court of International Justice
(PCIJ). The Permanent Court thus came into effect with its residence at The Peace
Palace in 1913 and made a significant contribution to the development of international law.
The outbreak of the First World War necessitated the establishment of a world court.
Article 14 of the Covenant of the Nations allowed the League to set up an international
court. An advisory Committee of jurists appointed by the League formulated the working
schedule, criteria for appointing the judges and the draft constitution for a permanent
court. The Statute of the Permanent Court of International Justice (PCIJ) was accepted
on 13th December, 1920 in Geneva.
The Permanent Court of International Justice was closely associated to the League of
Nations. It was created in 1922 after the end of the World War I and was much
applauded and received positive reaction from different sections. In the very first decade
of its operation, many states submitted their disputes to the court. Between 1922 and
1940, the PCIJ dealt with around 27 cases and delivered advisory opinion on 27 cases.
The Court’s mandatory jurisdiction came from three sources:
 The Optional Clause of the League of Nations
 General international conventions and
 Special bipartite international treaties.
Some of the provisions of the Court are as given below:
 Cases could also be submitted directly by states though they were not bound to
submit material unless it fell into those three categories.
 The Court could issue judgments or advisory opinions. While the judgments were
binding, the advisory opinions were not.
 The member states of the League of Nations followed advisory opinions failing which
they feared that not to comply could weaken the moral and legal authority of the
Court and the League.
Unfortunately, the outbreak of Second World War declined the powers of the PCIJ and
it did not deal with judicial business after 4th December, 1939, the day it held its last
sitting.

10.4 THE UNITED NATIONS CHARTER

The Charter of the United Nations was signed on 26th June, 1945 in San Francisco. The
outbreak of the Second World War brought to the fore the necessity of establishment of
a new international organisation whose decisions were binding on its members and which
108 Conflicts and Peace : Global Perspectives

would lead to permanent peace and world order. It came into force on 24th October,
1945. The Statute of the International Court of Justice became an integral part of the
Charter. The purpose of the UN was
1) To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations which
might lead to a breach of the peace;
2) To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace;
3) To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race,
sex, language, or religion; and
4) To be a centre for harmonizing the actions of nations in the attainment of these
common ends (http://www.un.org/en/documents/charter/chapter1 .shtml).
The Chapter VI of the UN Charter specifically underlines the provisions for Pacific
Settlement of Disputes. Articles 33 to 38 underline these provisions which are given as
under (http://www.un.org/en/documents/charter/chapter6.shtml):
Article 33
1) The parties to any dispute, 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 arrangements, or other peaceful means of their own choice.
2) The Security Council shall, when it deems necessary, call upon the parties to settle
their dispute by such means.
Article 34
The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the
continuance of the dispute or situation is likely to endanger the maintenance of international
peace and security.
Article 35
1) Any Member of the United Nations may bring any dispute, or any situation of the
nature referred to in Article 34, to the attention of the Security Council or of the
General Assembly.
2) A state which is not a Member of the United Nations 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.
Pacific Settlement of Disputes 109

3) The proceedings of the General Assembly in respect of matters brought to its

attention under this Article will be subject to the provisions of Articles 11 and 12.
Article 36
1) The Security Council may, at any stage of a dispute of the nature referred to in
Article 33 or of a situation of like nature, recommend appropriate procedures or
methods of adjustment.
2) The Security Council should take into consideration any procedures for the settlement
of the dispute which have already been adopted by the parties.
3) In making recommendations under this Article the Security Council should also take
into consideration that legal disputes should as a general rule be referred by the
parties to the International Court of Justice in accordance with the provisions of the
Statute of the Court.
Article 37
1) Should the parties to a dispute of the nature referred to in Article 33 fail to settle
it by the means indicated in that Article, they shall refer it to the Security Council.
2) If the Security Council deems that the continuance of the dispute is in fact likely to
endanger the maintenance of international peace and security, it shall decide whether
to take action under Article 36 or to recommend such terms of settlement as it may
consider appropriate.
Article 38
Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all
the parties to any dispute so request, make recommendations to the parties with a view
to a pacific settlement of the dispute.
The International Court of Justice (ICJ)
The condensed number of activities of PCIJ led to its natural declining influence. The
outbreak of Second World War had further serious consequences for the PCIJ and it was
felt by the member countries of the PCIJ that there needs to be a new body that would
look after the judicial matters on international concern. In 1943, an Inter-Allied Committee
was formed to examine the matter and the meeting was attended by jurists from 11
countries. On the 10th of February, 1944, a report related to the matter recommended
that
1) The statute of any new international court should be based on that of the Permanent
Court of International Justice.
2) Advisory jurisdiction should be retained in the case of the new court.
3) Acceptance of the jurisdiction of the new court should not be compulsory.
4) The court should have no jurisdiction to deal with essentially political matters.
The draft statute of the ICJ was based on the statute of the PCIJ and was not exactly
a new start. It was decided that the statute should be annexed to the Charter. With the
coming into force of the new court; the PCIJ was naturally and necessarily dissolved. The
ICJ was also based in The Hague. The PCIJ met for one last time in October 1945 and
110 Conflicts and Peace : Global Perspectives

transferred its archives and other documents to the ICJ. The election of the members to
the ICJ took place in 1946 at the first session of the UN General Assembly and Security
Council and thus came into effect.

10.5 TRADITIONAL MEANS

The means of Pacific Settlement of Disputes is divided into two categories – one, the
diplomatic and political means and two, legal-adjudication means. While the diplomatic-
political means seek to reconcile interests, the legal-adjudication means apply international
law and determine the rights. The judgments are not binding in the case of diplomatic-
political means unless the parties reach an agreement upon it; in the case of legal means,
the decision is binding on the parties and cannot be evaded. Following are included in
diplomatic and Political means.

10.5.1 Negotiation
Negotiation, basically a communication process without a third-party intervention, aims at
achieving a joint decision. They are the basic means to any dispute settlement and are
incorporated in all the dispute settlement conventions and treaties. The result of this means
is usually a consensual decision of the parties involved in the dispute. Negotiation is a
process where individuals with shared and opposed interests, work out a settlement in
order to come to a consensual agreement. There are only two choices while negotiating
(a) a win-lose situation wherein one person will win while the other will lose (b) a mutual
problem solving wherein both the individuals or groups will try to maximize a joint
outcome which will result in a win-win situation. The latter approach is opted if the
disputing individuals or groups have a stake in maintaining the ongoing positive relationship
with one another. Communication is to be effective during the course of negotiation as it
involves paying attention to each other and address each other respectfully. Focusing on
interests and not positions is necessary as positions are more conflicted than interests.
One also needs to generate multiple alternatives for resolving the dispute.

10.5.2 Inquiry/Fact-Finding
The aim of Inquiry or fact-finding is to facilitate the solution of disputes that rise basically
from a difference of opinion on ‘facts’ by clarifying of the facts. The parties, who have
not been able to come to an agreement by means of diplomacy, should institute an
International Commission of Enquiry to facilitate a solution of these disputes by elucidating
the facts by means of an impartial conscientious investigation. The fact-finding or inquiry
has been, of late, much applauded for its efficacy and has been appraised. In some cases,
there are even compulsory cases of fact-finding in case of a dispute as enshrined in the
United Nations Convention on the Law of the Non-Navigational uses of International
Watercourses of 1997. Commissions of enquiry have been set up in cases of the collapse
of the illegitimate regimes. The Hague Convention dealt exclusively with the provisions
related to the commissions of enquiry.

10.5.3 Mediation and Conciliation

Mediation is one of the early international agreements as recognised under The 1856
Declaration of Paris that encouraged member states to settle their disputes through
mediation. The Hague Conference of 1907 recognised the right of neutral states to act
as mediators in international disputes and reaffirmed by the League of Nations. Article 33
(1) of the UN Charter has named Mediation as one of the preferred methods of dispute
Pacific Settlement of Disputes 111

settlement. Mediation is a process through which a neutral third person facilitates

integrative negotiation between disputing individuals and groups. Although mediation is
facilitated by a third person, it is a voluntary process where the disputing individuals or
groups work out their own solutions, and make informed decisions to resolve their own
disputes; the mediator does not make decisions for them. Even if the mediator suggests
a solution, it is not binding on the disputing parties. Most mediators however are
professionals who are unknown to the parties. The job of the mediator is to reconcile the
opposing claims and appease the feelings of resentment that may have arisen between the
states.
Another alternative means is the Good Offices which is similar to mediation but is not
specifically mentioned in the Article 33 of the UN Charter. According to Article 2, Part-
II of the Hague Convention of 1907, in case of serious disagreement or dispute, the
Contracting Parties agree to have recourse, as far as the circumstances allow, to the
Good Officer or mediation of one or more friendly powers. The decisions are not binding
on the disputing parties and have only advisory value.
Conciliation differs from mediation only by a few degrees. But it is widely agreed that the
mandate of the conciliator is more limited than the mediator in that the conciliator too
cannot offer solutions to the parties in dispute. The conciliator can only reconcile the
disputing parties towards the resolution of their conflict and does not have the power to
impose solutions. Conciliation is not resorted to frequently; the parties would like to
externalize their responsibility so as to earn credibility from their own citizens. Rather, they
would prefer a binding judgment in order to appear that they have tried their best to
solve the problem. Mediation and conciliation are the most preferred methods of
alternative dispute resolution (ADR). These offer a more constructive and more flexible
solutions to the parties in dispute. Somewhere the ADR brings in some benefits even to
the loser whereas in arbitration and adjudication it comes down to ‘the winner takes it
all’ situation. Since the erring parties too would like to draw some benefits, the ADR
provides them a perfect platform to solve their problems partially.

10.6 LEGAL MEANS

10.6.1 Arbitration
In arbitration, the disputants take their dispute to an impartial third party, who provides
them with a decision to end their conflict. It may take varied forms depending on whether
or not arbitration is freely chosen by the parties and whether or not parties have agreed
to be bound by the arbitrator’s decision. It can be applied to different kinds of
circumstances (public or private arbitration). Arbitration has some of the advantages of
mediation such as privacy and flexibility while on the other there is a prospect of an
authoritative decision. Arbitration hearings can be formal or informal depending on the
nature and seriousness of the dispute. States usually perceive arbitration as a more flexible
process than adjudication because the sovereignty issue is given precedence.

10.6.2 Adjudication
Adjudication refers to a settlement by a court. In civil cases, one party (petitioner) goes
to court to demand something from another (defendant). The court then makes a decision
on the issues in dispute, unless a negotiated settlement occurs first. Here the framework
for considering cases is adversarial, court procedures are highly formal and lawyers are
112 Conflicts and Peace : Global Perspectives

an essential part of this process. Moreover, this is an expensive way of resolving disputes.
In the post-Second World war era, adjudication was resorted to only after the failure of
the negotiations. But since 1989, the reluctance to accept binding adjudication has
decreased. There are obligations to cooperate and with the growing number of problems,
states are obliged to solve their disputes through peaceful means.

10.7 FROM PEACEFUL SETTLEMENT TO IMPOSITION

OF PEACE
The last few decades have seen a surge in the political disputes between states. There
have been even wars – direct and indirect – to fight terrorism, to restore internal peace
of nations, and for control over natural resources. The international bodies and the UN
have not been much effective in containing any crisis or dispute. At the same time, it
cannot be said that efforts for peaceful settlement of disputes have not been made. But
the hurry, with which wars have been waged to achieve the end objective, leaves many
an unanswered questions. Since collective security has been time and again reaffirmed by
the members of the UN, the onus is on this international organisation to maintain
international peace and security. There have been no binding decisions to maintain peace
and often there have been breach of peace, threat to peace and acts of aggression
threatening the sovereignty of the nations. There have been conflicts not only between
sovereign states but also within the states.
In 1992, then Secretary-General of the United Nations, Boutros Boutros Ghali presented
a report on ‘Agenda for Peace’. In this report, it has been stated that from the
establishment of the UN in 1945 to 1992, there have been over 100 conflicts all over
the world; around 20 million people lost their lives due to conflicts; and over 13 peace-
keeping operations have been conducted. The UN could not intervene in most of the
conflicts because the veto was used by the permanent members around 279 times,
displaying the existing division among the members and the world at large.
Further, military interventions decided unilaterally but implemented multilaterally have
become the norm of the day. There have been actions under various names such as
‘humanitarian enforcement’, ‘second generation operation’, and ‘independent multilaterally’
(Bloomfield, 1994). Urquhart states that ‘the actions and mechanisms of the United
Nations – such as good services, conciliation and maintenance of peace – have been
intended to resolve disputes and conflicts between states, and that today, under the
changed conditions, it is expected to act as a world fire brigade or rescue team in
situations such as civil wars within the borders of states or former states, where
protagonists are different kinds of militia and “local masters of wars”. Therefore, it is not
surprising that the old techniques of maintaining peace have not been effective under new
changed circumstances. Preventive Diplomacy, defined as an action that should prevent
arising of disputes, to prevent the existing disputes to escalate into conflicts and to limit
conflicts to spread when they arise, has been reiterated as an effective means but the
Gulf-War of the 1990s and subsequent wars have presented a different picture altogether.
Peace is now being imposed under the changed international circumstances.

10.8 SUMMARY
Peaceful settlement or pacific settlement of disputes presents us an opportunity to maintain
international peace and security by resorting to peaceful methods such as negotiation,
Pacific Settlement of Disputes 113

conciliation, mediation, good offices and so on. The contemporary era, with its unending
woes and escalating tensions, has witnessed only disputes and disturbances that escalated
into conflicts. The alternative dispute resolution methods are not finding much favour
though the costs of wars and military interventions are weighing largely on nations. From
times immemorial, there have been various efforts at conventions and conferences to
promote and maintain peace. The onus is on the states to avoid conflicts, desist from
illegal conducts and establish and strengthen the traditions and customs of maintaining
everlasting peace in the world.

10.9 TERMINAL QUESTIONS

1) Trace the meaning and early traditions of Pacifism.
2) Enlist the contribution of the Hague Conventions in evolving the concept of Pacific
Settlement of Disputes.
3) What are the traditional means of Pacific Settlement of Disputes? Discuss in detail.
4) Write short notes on:
a) International Court of Justice
b) Legal Means of Pacific Settlement of Disputes

SUGGESTED READINGS
1907 The Hague Convention for the Pacific Settlement of International Disputes
(Unofficial Text: www.cil.nus.edu.sg)
Peters, Anne., International Dispute Settlement: A Network of Co-operational Duties,
EJIL, Vol. 14, No. 1, pp. 1-34
Revised General Act for the Pacific Settlement of International Disputes, (Adopted by the
General Assembly at its 199th Plenary Meeting, 28th April, 1949) United Nations, New
York, 1949.
Handbook on the Peaceful Settlement of Disputes between States, United Nations,
New York, 1992.
Obrad Racic., “The United Nations between the Pacific Settlement of Disputes and
Imposition of Peace”, Law and Politics, Vol. 1, No. 4, 2000, pp. 493-508.