MEDIATION IN INTERNATIONAL DISPUTE RESOLUTION
Role of Mediation in International Disputes Resolution
Author: Hans Rathi
“Peace is not the absence of dispute but an ability to cope with it”
The quote was stated by the Father of the Nation Mahatma Gandhi. The statement perfectly explains how the world should possess the ability to cope with conflict for attaining peace. International Dispute Resolution is in general terms referred to as the resolution of conflicts involving two or more countries by a third party (any country or organization) acting as a mediator. In this article, we will discuss the topic of International Dispute Resolution by first understanding its fundamentals and then proceeding to its characteristics.
What is International Dispute?- Role of Mediation in International Disputes Resolution
International dispute refers to any disagreement between two nations on a point of law or fact, any conflict of legal views, or any conflict of interests between both of them. The dispute between the countries can occur on any ground, be it either legal or political ground.
In major cases, a dispute occurs between two countries over a conflict for a piece of land that is claimed by both of them. International Disputes are very much in need of attention to be given because, in the past, such types of disputes have caused a lot of destruction to all types of living beings in the world and majorly to the human race. If left unchecked, international disputes have resulted in genocides, terrorism, criminal activities, etc. in the name of claiming rights.
In the past era, globalization was not at such a high level where one country could get affected because of the conflict going on between the other two countries. However, in the present times, it is not the same case.
Every country is heavily dependent on other countries of the world for various needs and gets greatly affected by any conflict which goes between any two countries.
The best example of this would be the ongoing war between Russia and Ukraine which caused gas prices and electric items prices to rise drastically in India because of the reduction of imports from the countries. Not only India but other countries were also got affected by the conflict between Russia and Ukraine.
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Types of International Disputes- Role of Mediation in International Disputes Resolution
International Disputes can mainly be classified into two types based on the roots of the dispute. The two types are:
-Legal Disputes; and
-Political Disputes.
Legal Disputes cover situations where the conflict arises upon any question of law or question of fact related to the law resulting in a clash of legal views and opinions of both sides.
On the other hand, political disputes involve that kind of disputes where the clash arises from any religious, ethnic, cultural, or territorial issue. All of the international disputes that happened or going on in the world are either one of these or are a mixture of both of them.
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Mechanisms for Resolution of International Disputes- Role of Mediation in International Disputes Resolution
There are a number of mechanisms for solving international disputes either by force or by peace. As the world is developing towards a better future, it is necessary that we should forfeit the use of force and move to choose peaceful settlement mechanisms for international disputes.
There are different ways of settling an international dispute and a few of them are arbitration, conciliation, arrangements, inquiry, negotiation and mediation.
While settling any international dispute, there are a lot of things to be considered before choosing the mechanism for its resolution. These things involve the consent of the parties along with the nature of the subject matter. Different types of disputes have different needs for resolution and every mechanism has its own benefits. However, among these techniques, mediation appears to be the best option for the settlement of a dispute because it is the most cost-effective and can give the desired outcome.
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Who governs International Disputes?- Role of Mediation in International Disputes Resolution
International Disputes are governed by the International Court of Justice which is the main judicial organ of the United Nations regarding disputes between two countries.
The court was founded in 1946 to deal with disputes arising at international levels and was termed the world court. The International Court of Justice settles up disputes by different mechanisms such as referring the parties to arbitration, making some negotiations, etc. However, as we will further discuss in the article, mediation seems to be the best technique for the resolution of International Disputes because it does not require the interference of the International Court of Justice and any country can act as a mediator and settle the dispute between the countries.
What does International Dispute Mediation Mean?- Role of Mediation in International Disputes Resolution
International Dispute Mediation refers to the technique wherein any third impartial country or organization acts as a mediator to settle the conflict between two countries. This settlement is done by the third party in a peaceful manner without resorting to force and without invoking any legal authority.
The concept of mediation has gained momentum in the present century but was known for several past centuries. Mediation is beneficial in cases where the parties need to maintain a friendly relationship after the dispute which is desired by most dispute-involved countries. Mediation also involves a short span of time which reduces cost and time which the disputing countries can utilise for some better action.
Mediation requires the consent of the parties to begin and also it never forces any of the parties to accept its terms. Mediation resolves the dispute by assisting the parties in finding amicable settlement options.
The last best thing about mediation is that it helps in keeping information private at the International level during the settlement of an international dispute.
It helps the parties to the dispute in protecting their affairs from others as it maintains confidentiality between the parties. This helps in keeping confidential information safe from unethical parties through media who may misuse it for any wrongful gains.
The role of International Mediators in resolving International Disputes- Role of Mediation in International Disputes Resolution
To understand the role of international mediators in the resolution of international disputes, we will first understand the phases of the process of mediation. A mediation process generally happens in about three phases.
In the beginning phase, the mediator along with the parties lays the ground rules for the process and then both parties present their demands and perspectives.
Coming to the second stage, where the mediator and both parties discuss the problem deeply and try to solve up the same.
The last and third closing stage is where the parties decide on a solution for the problem, and consent to the same and the same is prepared in a written form containing the results of the mediation.
Moving to the international level of disputes, the countries or organizations acting as the mediators also perform these steps as a mediator between two countries. The role of the mediator also extends to improving communication between the disputing countries to avoid any misunderstanding and also using preventive diplomacy strategy to prevent the conflict from arising anymore leading to a loss for all.
One more role for an international mediator is to decide procedural strategy wherein the mediator decides the venue of any meetings after taking parties into consideration, way of proceedings, etc.
Mediation governing bodies for International Disputes- Role of Mediation in International Disputes Resolution
In the present era, war has become complex because of modern weapons and strategies and due to this, the process of mediating peace has also become very difficult and complex. As international disputes occur at a larger level and the jurisdiction of its settlement lies within the United Nations or any other country willing to act as a mediator between the two countries.
The United Nations has a lot of aid for mediation. Many International Institutions such as the International Chamber of Commerce (ICC), Internation Centre for Dispute Resolution (ICDR), etc also provide mediation services to solve any dispute at the international level.
Statutory Provisions Supporting Mediation- Role of Mediation in International Disputes Resolution
The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) provides the global framework for mediation and supports its continued growth in a new international treaty. It is stated in Article 2 and Article 33 of the United Nations Charter that countries should solve their disputes through peaceful means.
Also, In 2002 “Model Law on International Commercial Conciliation” was made to make more effective laws and rules for the mediator as well.
Case Studies- Role of Mediation in International Disputes Resolution
Mediation Between Peru and Ecuador
The shared borders of Peru and Ecuador caused a lot of conflict between the two countries. This conflict got converted into a 10-day war which came to an end with the signing of Rio-de-Janeiro. This protocol was intended to resolve the ongoing dispute between the countries.
The settlement was made after long discussions, negotiations and arrangements which were performed with the help of the United Nations- the third party acting as the mediator. Thus, mediation helped to solve this international dispute in a peaceful manner.
Mediation Between Burkina Maso and Fali
There was already a conflict ongoing between the countries due to border issues. However, the situation escalated when explosions and armed conflicts increased leading to the start of the Christmas War which had taken a lot of lives.
The situation came to peace when both countries agreed to sign a peace agreement which was decided as a solution after a due long process of mediation supported by the West African Mediation Political Group acting as a mediator between the two disputing countries.
Mediation Between Russia and Ukraine
The ongoing territorial dispute between Russia and Ukraine got converted into a war when Ukraine decided to join an alliance with the NATO countries. The war then became disastrous and cost a lot of lives and infrastructure. India because of its good relations with both parties acted as a mediator and helped to settle the conflict. However, no permanent settlement has been devised but the conflict is now settled a bit after the mediation between the two disputing countries.
The success of Mediation- Role of Mediation in International Disputes Resolution
The mediation process does not, always, guarantees any success in the settlement of the dispute. There have been situations wherein the countries in the disputes have denied mediation or were expressing opposite views on alternative dispute resolution mechanisms.
Also, in some cases, the third party denies acting as a mediator between any two countries just because of its own reasons. These situations also happen many a time such as when the United States at the time of the election of Donald Trump refused to act as a mediator between India and China and when china refused to involve any third party stating that it will be able to resolve the dispute through dialogue with the other country.
Hence, Mediation does not guarantee success but tries to achieve it in the best possible way.
Challenges Faced by Mediation- Role of Mediation in International Disputes Resolution
Although, Mediation is known for the advantages or benefits it offers and is being continuously pursued by countries for solving international disputes. However, the process of mediation also possesses many obstacles and hurdles which the mediator and the countries in the dispute have to overcome to achieve the settlement of the dispute.
In many cases, the issue of the dispute is the state’s political and ideological interests which makes the mediator face difficulty in making parties agree to each other’s terms. Also, since the mediation process takes place without invoking any authority of law, the process lacks adjudication and the mediator and the parties suffer to make everyone participate in the process effectively.
Measures to promote Mediation as the mechanism in International Dispute- Role of Mediation in International Disputes Resolution
The mediation process is becoming very complex due to the increasing number of disputes arising in the world. The mediator carries the responsibility of making the process effective on its shoulders and faces a lot of difficulty in the same.
Thus, a proper adjudication must be added to mediation so that every party does effectively participate in the Mediation and make the desired outcomes. Also, the countries should promote mediation at the regional and national levels so that they are motivated at the international level to pursue mediation too. Mediation results in success when the parties are well-informed, patient, and balanced in their approaches.
The United Nations has enhanced on the technical aspects of mediation by making the United Nations Ceasefire Mediation and Management Course, De-escalation and Coordination Committee, Special Envoy, and Mediation Support Unit.
Conclusion-Role of Mediation in International Disputes Resolution
Today, countries are no longer isolated from each other and are largely dependent on each other. Hence, disputes between any two will affect the whole world. The countries should understand the same and should come in front and resolve the disputes by acting as mediators.
Also, countries should focus and invest more in alternative dispute-resolution mechanisms so that disputes can be solved through a peaceful process without any use of force. Thus, Mediation appears as the best mechanism for the resolution of International Disputes in a cost and time-effective way.
Therefore, every country should support mediation and participate effectively in the same to resolve any ongoing dispute at the international level. Also, international organizations should enforce mediation in all disputes, rather be it military or maritime and border-refugee disputes.
