Settlement Of International Disputes Using Coercive Means

The existing world order as we know it today has not existed forever, States of today’s day and age are considered equal (at least on paper). For the longest time, however, the interests of States revolved around the struggle for power and territory, where at any given moment one State could simply decide to annex another. Security was equated with threats to a border country and nations were seeking arms to resolve potential conflicts that might arise.

Military protection has been given utmost importance in this era. However, notions of security have evolved over time to move away from the state-centred approach of achieving mere military security to a more cooperative and collective form of security.

This collective form of security came into the picture with the realization that the interests of both states as well as individuals need to be addressed simultaneously as the majority of concerns faced by people today are related to issues in daily life as opposed to a neighbouring country ending a world invasion.

The 1994 Human Development Report provides a thorough description of this new form of human security (as opposed to merely territorial security) which would rely on a fair sharing of global resources, interdependence among nations, and fruitful communication between different nations.

Notwithstanding these changes in the world order, the various new facets of security, equality, and interdependence between states, international conflicts cannot be completely eliminated. This is where one can see the need for new and evolved mechanisms and strategies to resolve conflicts. The present mechanisms / methods can be divided broadly into two categories, namely:

1. Pacific Settlement
2. Coercive Methods

The Concept of Coercion

In establishing the International Court of Justice, the United Nations holds the beacons of justice and law before a war-torn world and offers the possibilities of replacing orderly judicial proceedings with the vicissitudes of war and the reign of brutal force With the establishment of the ICJ by the United Nations, it became clear that the international community as a whole opposed the use of violence,

When a dispute occurs in the international arena, the first step that countries will take revolves around Pacific Negotiation Strategies requiring the use of diplomatic processes as defined by UN Charter Articles (e.g. Article 2) as opposed to coercion and aggression that can be used as an drastic measure. Furthermore, cooperative methods can be divided into political and diplomatic (non-binding) methods such as negotiation, good offices, mediation or judicial (binding), such as arbitration and adjudication (before the ICJ).

Upon failure of these methods, States may be forced to adopt coercive methods. Contrary to common opinion, the use of weapons or an armed response does not necessarily require these methods.

Coercive methods can be sub-classified into two categories:

1. Coercive Methods (Predecessor of War): States turn to coercive but non-violent methods when peaceful attempts to resolve disputes end in failure and the desired result is not achieved. Such approaches revolve around state dynamics and seek to create a kind of psychological compulsion / pressure for disputes to be resolved. Such strategies fall short of declaring war, which include: (a) retorsion; (b) reprisals (including embargos which blockades); and (c) interference.
2. Coercive Measures (through War): when all else fails, the final resort to resolve the conflict can entail coordinated use of force in the form of war. These wars may be waged with an international standard (Limited War) compromise on certain terms of reference and restriction or take a destructive form without limits and restrictions (Total War).

A. Coercive Methods (Predecessor of War)

These methods form a complex retaliation strategy and, as the name suggests, involve unfriendly acts against the States at issue. Some common methods used include expelling ambassadors, suspending treaties, refusing recognition etc.

1. Retorsion

The technical term used to describe retaliation in the international arena against a State’s discourteous act is referred to as Retorsion. Such acts carried out by a State in lieu of a similar act committed earlier by another State are considered admissible in the international law scheme.

An act of Retorsion is not illegal, but the measures followed must be permitted by law. This can be gathered from the practice of providing in some international conventions for the use / employment of unfriendly acts in reaction to a breach of obligations. There are numerous instances where retorsion can be used to settle disputes.

For example, a State can raise tariff rates against States that boycott or discriminate against a particular nation’s goods. Such an action under retorsion could be called in-kind retaliation. In some cases, a State may commit a legal but discourteous / unfriendly / unfair act in such cases retorsion is not limited to retaliation in nature.

Article 2(3)[4] of the UN Charter constitutes the most important provision governing and limiting the use of retorsion. Although retorsion in certain scenarios is legally permissible, the Charter prevents its use in situations where international peace and security may be in danger. In other words, a retorsion act must not contravene the possibility of creating a situation that could have a negative effect on the international system’s peace and stability.

One of many cases of retaliation occurred in 1999 when Pakistan declared an Indian High Commission official as a persona non-grata while expressing concern about the activities of the Indian official in violation of the Vienna Convention. Earlier that day, after being caught by Delhi P, India declared a Pakistan High Commission staff member as a persona-non-grata for spying. It can be called, in the layman word, a tit for tat situation (the idea behind retorsion).

• Reprisals

Reprisals is a head that encompasses all kinds of forceful measures that a State usually takes. It’s also a retaliatory concept, but it hovers over the eye-for-eye principles. Historically, reprisals have been more concerned with the seizure of property and persons than with the current scenario, where they usually connote compulsive measures used by one state against another to settle a dispute arising out of the latter’s unjustified or unlawful conduct.

The main distinction that can be drawn between retorsion and reprisals is that retorsion would still constitute a lawful act despite being an unfriendly act, reprisals are normally measures taken in the context of an international armed conflict. Thus, in principle, they are unlawful because of the circumstances under which such acts (of reprisal) are committed.

Even if there may be certain situations where reprisals may be considered legal, their use is highly restricted, and in various international cases the following principles regarding their use have been set out.

1. The principle according to which they must be a last resort in attempts to impose the adversary’s compliance with legal standards (which entails, inter alia, that they may be exercised only after a prior warning has been given which has failed to bring about the suspension of the crimes committed against the adversary);
2. The obligation to take special precautions before implementing them (only after a decision in this regard has been taken at the highest political or military level; in other words, local commanders may not decide on them);
3. The principle of proportionality (which requires not only that the reprisals should not be excessive compared with the previous unlawful act of war, but also that they should be stopped as soon as that unlawful act is discontinued) and;
4. elementary considerations of humanity.

With the progress of years, it may have been said that the principles of non-use of force and of peaceful settlement of disputes have become part of jus cogens as a generality under international law. In 1970 the UN General Assembly declared that States had a duty to refrain from repressive acts involving the use of force.

Even the use of forces pursuant to Article 51 is restricted in the sense that any use of force will be considered unlawful unless nonviolent means were followed before resorting to force. The only way Reprisals can be deemed justified is if the other State has violated international law or was a party to an international crime. The purpose of the Reprisal cannot be revenge, they must be just and satisfactory to put an end to the dispute.

Reprisals are usually operationalised by adopting strategies such as:

1. Embargos

Embargos are a type of reprisal that functions primarily as an economic warfare tool that can be used to fulfil different political agendas, such as demonstrating determination, sending a political message, compelling behaviour change in other nations, deterring unwanted activities of other states. Such a situation can be seen in 1992, when the United States had made considerable efforts to ensure compliance with the embargos on Cuba, put in place by the Air Force of Cuba as a retaliatory act to drown an American passenger plane. Since the end of the Cold War, strategic embargoes have been imposed on Libya, Iraq and North Korea.

When a state commits an international crime or violates international law, Embargos is used to prohibit all shipments of goods and goods to a given country or as a group to a number of countries. Currently, embargos may be jointly levied by the UN, by states or even by individual private groups seeking redress. As we saw it as a thumb rule, Embargos as well as Reprisals could not interfere with international peace and stability because they will cease to be legitimate acts in such a situation.

1. Pacific Blockades

This measure was formulated from the common practice (during wartime) of blockade of the ports of an opponent state. In times of peace, these blockades preventing ships (usually merchants) from other states from entering, and ships from the blockaded state. This greatly hampers the blocked State’s trade and other economic activities while exerting pressure on the said nation to resolve the dispute. The United Nations is not favoured in present-day unilateral blockades by States and has become an extinct / obsolete tool. However, it is justified by Article 42 of the UN Charter as a collective measure.

B. Coercive Methods (through War)

Some situation requires a brutal use of force in order to achieve the necessary solution to a dispute, it can be classified into two categories based on the extent, methods employed and intensity of the War;

Limited War

In Limited War situations, all sides follow major limitations and only participate in combat by mutual consent before their objectives are achieved. When equilibrium can be restored and normal relationships between the parties after diplomatic talks can be restored due to the war, such a situation marks the end of the war technically.

War purposes in these cases revolve around achieving a limited goal, as opposed to the other party complete victory or annihilation. The international system sets out certain references and restrictions that must be followed if there is any hope of maintaining equilibrium between States.

Total War

This type of war is mainly theoretical in nature and has not been implemented with the exception of certain exceptional cases (such as the US bombing of Hiroshima and Nagasaki on 6 and 9 August 1945, respectively). With the advent of technology and its use in warfare including WMDs (weapons of mass destruction) in the form of biological, chemical and nuclear weapons, the way in which a war can be fought has changed drastically.

Such wars are capable of crippling any State in a matter of hours and threatening to alter international relations between States in such a way as to make them permanently dysfunctional without any hope of achieving equilibrium in the internal system as a whole (the future theoretical example might be World War III).

Conclusion

Global stability and prosperity is a pre-requisite for the growth of the world as a whole. States can achieve temporary relief using Coercive means, but this doesn’t automatically translate into permanent and sustainable peace.

Today, various mechanisms have been tried to ensure lasting peace (establishment of international organizations, disarmament, arms control, war conventions, etc.) but these methods raise certain problems in themselves and have failed to create a political and economic equilibrium among the world’s nations.

States using force or unfriendly acts against other nations to achieve their goals can solve the problem at hand but also ends up creating an unseen residual hostility problem.

What needs to be addressed is the origin of these disputes (economically, culturally, politically or environmentally), these problems of various nations can never be resolved by violent means but can only be addressed by means of mutual cooperation between States.

A New World Order which is devoid of hegemony and power politics must be established / envisioned. States, in pursuit of individualistic national interest, can no longer compete and fight for power. Practically some of the steps that can be taken include non-proliferation of WMDs, democratisation of the UN, and sustainable development initiatives.

The world’s power centres need to unite with the rest of the nations, both strong and weak, rich and poor, to create a world without warlike tendencies. Such a framework will need to abandon the use of Coercive means to ensure the creation of a stable World Order.

By

Amit Nagar,

Student Reporter, INBA