63 Finally and against the backdrop of the fact that the principles of International Law regarding friendly relations and co-operations among states is regarded as an elaboration of the Charter provisions, we deem it necessary to reproduce the principles as formulated by the 1966 Special Committee and agreed by the U.N. General Assembly. They are as follows:
1. Every state shall settle its international disputes with other states by peaceful means in such manner that international peace and security and justice are not endangered.
2. States shall accordingly seek early and just settlement of their international disputes by negotiations, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement, the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute.
3. The parties to a dispute have the duty in the event of failure to reach a solution by any one of the above means to continue to seek a settlement of the dispute by other peaceful means agreed upon by them.
4. State parties to an international dispute as well as other states shall refrain from any action which may aggravate the situation so as to endanger the maintenance of international peace and security and shall act in accordance with the purposes and principles of the United Nations.
64 lines prescribed by the institutions and values of the community.59 Thus, in all civilized societies across the world, there is growing resort to the peaceful settlement of disputes, which has in turn engendered an enormous amount of peaceful and non-violent settlement of disputes taking place at various levels and in many communities all over the world.
A wide range of non-violent and peaceful methods of settling disputes avail the international community. These methods are available at the individual, family, group, community and international levels. Pacific methods of settling disputes exist in two broad categories. The first which is proactive embodies methods that aim to prevent the occurrence of dispute in the first instance. These will include the use and establishment of diplomatic missions and consular offices, signing of Treaties wherein the respective duties, rights and privileges of parties are set out in clear terms vis-à-vis a particular subject matter, the institution of peer review mechanisms, etc. the second category is reactive and deals with responses to conflictive situations. It is this second category that will form the fulcrum of the discussion under this section.
Peaceful resolution of international disputes has evolved into Customary International Law given the preponderance of state practice espousing the ideals of peaceful co-existence among comity of nations. It remains unarguable that the idea of peaceful resolution of international disputes has assumed the nature of an erga ommes obligation60 when considered against the backdrop of the volume of Treaties that make provision for pacific resolution of inter-state disputes and the limitations on the use of force by states in their international relations. In contemporary times, the U.N. has been at the vanguard of the principle of non-use of force by states in their respective inter-state intercourse. A’priori, provisions have been
59 Shedrack Gaya Best, ―The Methods of Conflict Resolution and Transformation‖ in Shedrack Gaya Best (ed.) Introduction to Peace and Conflict Studies in West Africa, (Ibadan: Spectrum Books, 2006) p. 93.
60 Ie, An obligation owed to all members of the international community. See also footnote 54 supra.
65 made in the U.N. Charter for various dispute resolution methods. In this wise, Article 33(1) of the U.N. Charter provides thus:
The above enumerations admit of three broad categorizations, to wit:
(a) Diplomatic (encompasses methods like negotiations, good offices, mediation, inquiry and conciliation).
(b) Arbitration and judicial
(c) Organizational (ie, regional efforts).
We shall now make a detailed inquest into the above starting with the methods contained in the diplomatic category.
3.4.1 Negotiation:
Black‘s Law Dictionary defines negotiation as a consensual bargaining process in which the parties attempt to reach agreement on a dispute or potentially disputed matter.61 Mial et al, defined it as the process whereby the parties within the conflict seek to settle or resolve their conflicts.62 It is a structured process of dialogue between conflicting parties about issues in which their opinions differ.63 Miller sees it as communication usually governed by
61 Bryan A Garner (ed). Black’s Law Dictionary, (St. Paul Minesota: Thomson & West, 1999) p. 1064.
62 Mial et al, Contemporary Conflict Resolution: The Prevention, Management And Transformation Of Deadly Conflicts, (Cambridge: Polity Press, 1999) p. 21.
63 Shedrack Gaya Best, op. cit. p. 105.
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 solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice.
66 established procedures between representatives of parties involved in a conflict or dispute.64 Negotiation usually involves complete autonomy of the parties involved without the intervention of third parties. It is the first and most universally accepted means of dispute resolution as its usage cut across legal systems whether international or municipal. It involves basically of discussions between the disputing parties with a view to reconciling divergent opinions or at least understanding the different positions maintained. Its usage is based on the realization by both parties that they have a problem whose solution can only be had by their ability to talk to each other. It is normally the precursor to other peaceful settlement procedures. Communication is very critical to the negotiating process as it can only take place when there is communication between the disputing parties. Where a dispute has escalated and communication is threatened or has stopped, negotiation becomes very difficult. Consequently, negotiation ordinarily takes place during the early stages of the dispute or conflict during which communication between the parties is possible, existent and good or at the de-escalation point when the communication has been restored, through the help of third parties. A’priori, it does not involve any third party even though it may be brought about by such a third party through the use of good offices. Negotiations need not be done directly by the parties involved themselves. Thus, it may be done through regular officials of the government like the ministers or ambassadors or through specially designated ad hoc officials.
There is a convergence of opinions among writers as to the efficacy of the use of negotiation in the resolution of international disputes.65 In certain circumstance, there may exist a duty to
64 Christopher A Miller, A Glossary of Terms and Concepts In Peace and Conflict Studies, (Geneva:
University For Peace, 2003) p. 25.
65 M Akehurst, A Modern Introduction to International Law, (London: George Allen & Unwin Ltd, 1971) p. 290. Umozurike, op. cit. p. 185; Ian Brownlie, ―The Peaceful Settlement of International Dispute‖
available at http://chinesevil.oxfordjournals.org accessed on 17/12/2012.
67 negotiate arising out of particular bilateral or multilateral agreements.66 Where there is an obligation to negotiate, there is an implied duty to conduct a meaningful negotiation with the view to arriving at an agreement and not merely to go through a formal process of negotiation.67
A recent example of a negotiated settlement related to the NATO bombing campaign against Yugoslavia in 1999, during which NATO aircraft bombed the Chinese Embassy in Belgrade on May 7, 1999 killing three Chinese nationals and wounding approximately twenty others, in what American officials described as a tragic mistake. American and Chinese officials entered into negotiation as to remedial action for the loss of both human and material resources. Consequently, on 30th July, 1999, the United States agreed to pay China the sum of four and a half million dollars for the families of those killed or injured. On 16th December, 1999, agreement was also reached by both United States and Chinese officials as to the compensation for damages to the diplomatic properties of both states which for the Chinese arose from the NATO bombing of their embassy in Belgrade and for the United States, the damage to their diplomatic and consular properties in China by Chinese demonstrators.
There are two types of negotiation, to wit: