Introduction
The jurisprudence of the Permanent Court of International Justice defines the notion of international dispute as "a disagreement on a matter of law or fact, a conflict of legal opinions or interests between states". In international documents, such as the O.N.U. Charter, we also find the notion of a situation, representing a state of affairs that could lead to international friction or bring about a dispute.
In order to find ourselves in the scenario of a dispute, the accumulation of several elements is necessary, namely: a state or several states manifesting claims or opinions that are divergent regarding an issue that represents an element of conflict in the relations between them, an opposition from the state to which the views or claims in question are addressed and a rejection of its views or claims by the complaining state 1. The principle of peaceful settlement of disputes between states and the international law procedures for its realization have experienced a long and complex evolution from a historical stand point. The process of peaceful settlement of international disputes encompasses legal as well as moral, religious and international political aspects.
1. The historical evolution of peaceful means of settlement for political and religious differences between states
The peaceful resolution of conflicts is a desire comparable in age to the use of force and actions specific to war to settle problems between states. From the point of view of the methods used since ancient times to resolve conflicts, although they have experienced various refinements and developments during the evolution of humanity2 and relations between states, we do not find fundamental differences compared to those used today. However, the year 1928 represents a reference year in the evolution of the principle of peaceful settlement of international disputes as it marks the adoption of the Briand-Kellogg Pact 3, which recorded the condemnation of war and the renunciation of its use as an instrument to fulfill the national policy. Moreover, the Pact also records the commitment of the parties to settle international disputes only by peaceful means. It is important to note that, until the adoption of the Pact, war was considered to be the main tool of achieving the foreign policy of states. War was naturally used to resolve international issues, being accepted as such by international law4.
The concept of finding a peaceful solution to the issue at hand has its origins in ancient Greece. The ancient Greeks used the institution of arbitration in situations where disputes arose regarding the demarcation of borders and exits to the sea, those regarding commercial relations, privileges granted in ports or even in order to resolve conflicts of political nature.
In the Middle Ages, the most common methods of resolution used were mediation, arbitration and conciliation. The mediation process was based on the application of the judicium parium principle. However, the use of peaceful means of resolving disputes was only a recommendation, as it emerges from the works of the classics of international law, for example Hugo Grotius or Gentilis.
Another reference point in the history of the peaceful settlement of disputes is marked by the Westphalian peace process of 1648. This moment records the use of a multilateral framework of treaties for the first time in history. Conducting negotiations in a multilateral framework developed as a result of the organization of international conferences and, later, through the appearance of the first international organizations in the interwar period.
A consequence of the development of the international society is represented by the emergence of the need for states to create conventional norms to regulate the peaceful settlement of disputes on an interstate level. Thus, the 18th and 19th centuries mark the appearance of many international conventions and agreements that regulate this field.
The Hague Peace Conferences of 1899 and 1907 represent an important contribution to the promotion of the concept of peaceful settlement of disputes. For the purpose of "peace, disarmament and arbitration", the conferences succeeded in codifying the peaceful settlement procedures of that time, namely good offices, mediation, international inquiry and international arbitration5. However, the conventions resulting from these conferences contained only recommendations, thus it was left to the discretion of the states to settle disputes peacefully or to use non-peaceful means.
Until the end of the First World War, we cannot discuss the existence of any norm of international law that would establish the obligation of states to settle disputes peacefully, war remaining the main instrument of instilling the states' policy.
The idea of prohibiting war as a means of expressing sovereignty in conflictual relations first appeared in the Covenant of the League of Nations, signed at Versailles in 1919. Although the main purpose of the Covenant was to maintain peace, it is important to note that it did not prohibit entirely resorting to war as a tool for achieving foreign policy, the preamble of the act specifying that the signatories accept only "certain obligations" not to resort to war. Later, the League of Nations contributed to the development of the peaceful settlement of disputes by institutionalizing international justice and by giving the Council powers in this field. Moreover, by creating the Permanent Court of International Justice, the League of Nations has made a notable contribution to the development of international arbitration and conciliation.
The Locarno Treaties, from 1925, between Germany, Belgium, Italy, Great Britain and France established the obligation of the parties to use conciliation in order to resolve any differences between them. These, although later developed by the conclusion of four other arbitration treaties between Germany and France, Belgium, Poland and Czechoslovakia, did not show much value, being denounced by the German state in 1935.
The General Agreement for the Peaceful Settlement of International Disputes of the Assembly of the League of Nations of September 1928 was revised and adopted by the UN General Assembly, through Resolution 268/III of April 1949, thus regulating the possibility of combining the faculty to refer to the International Court of Justice with other mechanisms such as international arbitration or conciliation. Moreover, the O.N.U. Charter itself enshrines the principle of peaceful settlement of international disputes as an international obligation of states and, at the same time, as a principle of public international law 6.
Political-diplomatic means can be considered as belonging to the oldest arsenal of dispute resolution procedures. The purpose of these tools is to crystallize the views of the parties in such a way as to contribute to finding a mutually acceptable solution. It is interesting that, in international practice, we are often in the position of qualifying with difficulty the diplomatic instrument used, for example the similarity between the characters of mediation and conciliation or the imperceptible transition from good offices to mediation. This very characteristic increases the degree of attractiveness for states in choosing political-diplomatic means in persute of conflict resolution. It is fundamental to note that these tools prove effective only in situations where both parties agree to participate in the proceedings in good faith.
A general classification of these instruments can be given by the participation or lack of participation of a third party in the procedure for the peaceful settlement of an international situation. Thus, the instrument that does not involve the participation of a third party is negotiation, and the means in which the presence of a third party is necessary are good offices, mediation and conciliation. Along with these categories, the international investigation is also added, having an auxiliary role and being able to be used whenever the situation requires additional clarifications. Thus, with the exception of negotiations, an essential factor in international relations, the most used tools are good offices and mediation.
Negotiation, as a means of peaceful settlement, is a complex notion that reveals multiple dimensions with a closer analysis of the term. It represents a process intended to take place within the limits conferred by public international law and is intended to ensure the ideal environment for avoiding potential disputes or of settling existing ones. Negotiations can take ad hoc or permanent forms, institutional, bilateral or multilateral forms.
Direct diplomatic negotiations between states will be conducted by the ministries of foreign affairs of the states concerned, by the heads of government or, in more special cases, by the heads of state themselves. As for negotiations between international organizations, they will be carried out by their highest officials: presidents, directors or general secretaries. International practice shows that "all means of peaceful settlement are initiated through negotiations and often also concluded through negotiations."
In contrast to the jurisdictional means of settling disputes, in the case of negotiations we cannot discuss strict rules of procedure, the parties involved being the only ones in a position to decide all the details of the negotiation. Despite the lack of procedural rules, the parties that take part in the negotiation must respect the fundamental principles of international law, among which we mention: the prohibition of the use of force, the obligation to resolve the conflict without putting international peace and security at risk, the sovereign equality of states and prohibition of interference in internal affairs. In the situation where the direct negotiations do not reach any result or as a result of the aggravation of the dispute, the existence of a third party has a fundamental role in restoring the dialogue between the parties in order to de-escalate the conflict and in finding compromise solutions to settle the dispute. Third party intervention in the settlement of an international dispute can take the form of good offices, mediation or conciliation.
Good offices can be defined as the approach taken by a third party - state or international organization - on its own initiative or at the request of the parties, to determine the litigating states to resolve it through diplomatic negotiations. Another definition of good offices is any interposition of a third party in conflictual relations between states, where direct negotiations between the parties are impossible due to the existence of political or legal obstacles.
The object of good offices is to prevent the appearance of conflicts between states or to resolve disputes that have already arisen, these include a series of activities with the purpose of facilitating contact between the parties in conflict and ensuring a favorable framework for the conduct of negotiations. This tool of peaceful settlement for international disputes can take either written or oral form, the choice of one or the other is made taking into account the particularities of each individual situation. The written method, materialized through the use of diplomatic notes, telegrams, letters, etc., has the advantage of keeping the whole process in an authentic form. On the other hand, the oral form also has some advantages. For example, the third party can adapt according to each situation encountered, the replies and objections received, thus creating the advantage of flexibility regarding the removal of potential difficulties that may arise.
It is fundamental that the third party demonstrates objectivity, discretion, prudence and, above all, impartiality, the latter being an obligation imposed by international law. Moreover, although it aims to facilitate the start of negotiations, the third party will not be present at the negotiations, nor will it offer solutions related to the settlement of the dispute.
In international practice, good offices are sometimes confused with mediation, other times differentiated. The main difference with mediation is that, once negotiations begin or are resumed, the role of the third party is fulfilled and ends there. Obviously, the third party who goes beyond its duties and proposes means to reach a compromise, turns into a mediator.
In settling a dispute, mediation implies active participation of a third party in the negotiations, the third party offering solutions or bringing proposals with the purpose of resolving the conflict and its role ends after reaching a result. Thus, we can affirm without reservation that mediation represents a more complex version of good offices. The mediator can be a state, an international organization or even a mere person. We believe that an important point to make is that the third party's proposals are not binding to the parties involved in the conflict.
Mediation fulfills several functions, including: ensuring good offices and facilitating communication between the parties, de-escalating situations and creating a favorable atmosphere for negotiations, encouraging the parties to realistically assess the situation, offering satisfaction to all parties involved in the conflict.
From a procedural point of view, mediation is characterized by full adaptability regarding the circumstances of the conflict as it is intertwined with direct negotiations between the parties in dispute. However, this tool will be effective not only as a result of the acceptance by all parties of this peaceful means of settlement, but also through the acceptance of a mediator and his ideas. If the parties feel that they are not well understood, that the third party does not show sympathy, that he is totally on the side of one of the parties, or that he is more interested in his own interests than those of the conflicting parties, the mediation is certain to be unsuccessful.
If mediation is a natural extension of negotiations, conciliation places the intervention of the third party in a formal, legal position and institutionalizes it in a manner comparable to investigation or even arbitration.
International conciliation can be defined as a procedure of examining an international dispute, by a commission pre-established by a bilateral or multilateral treaty or established ad hoc, composed of people appointed or accepted by the parties in dispute, with the aim of facilitating the reconciliation of the parties. The body that carries out the conciliation, having no political or judicial authority, but enjoying the trust of the parties in dispute, following the impartial examination of all aspects related to the conflict, will formulate solutions with the value of proposals that the parties can accept or reject.
Enshrining conciliation in international treaties came later than mediation and good offices. Having common features with both mediation and jurisdictional means, we can say that this instrument represents the link between political-diplomatic means and jurisdictional means.
Characteristic for the international conciliation is the combining of the formal nature of the procedure for setting up a permanent or ad hoc commission, with the issuance of a non-binding solution. Thus, although the commission offers solutions, as in the case of judicial means of peaceful resolution, their non-binding character and the mechanism of mutual concessions concretely distinguishes conciliation from judicial means.
The tasks of the conciliation commission are stipulated in the Revised General Act on the Peaceful Settlement of International Disputes, of 1949. Thus, the conciliation commission must represent the resolution of the issues in dispute, the collection of the necessary information by way of investigation or any other way and the factor leading to reconciliation of the parties. It must, after examining the case, inform the parties of the terms it deems most suitable for the settlement of the dispute and fix a period of time in which the parties must reach a decision.
Regardless of the form in which the third party's intervention in an international dispute takes place in (good offices, mediation, conciliation, arbitral or judicial court), before the start of the settlement procedure, the international investigation can be used.
The concept of international investigation is based on the idea that, in order to resolve an international dispute amicably, it is essential to know the exact, complete and correct facts that generated that conflict. Considering the auxiliary character, it can be stated that the international investigation represents a traditional, customary investigative tool, and not a proper means of peaceful settlement of disputes between states.
The international investigation can be defined as an adjacent procedure, preceding the proper means of peaceful settlement of international situations, with the role of elucidating some factually controversial issues, which form the object of a conflict including religious, carried out by a commission constituted by the litigant parties. The results of that investigation are recorded in a report that will be forwarded to the parties, who have the option to take it into account or not for the resolution of the conflict in question.
All the instruments detailed in this subchapter are available to states when conflicts of an international scope arise. Given that the settlement of disputes by peaceful means is an obligation of international actors, they must use any suitable political and diplomatic means to extinguish conflicts, regardless of their nature or the phase in which they are.