22. Coercive means of settlement of disputes

16 Mar

Coercive means of settlement of disputes

1. The greater the intensity and extent of a crisis involving two or more States, the more it imposes pressures to anticipate outcomes and give appropriate treatment. A State must be conscious of its responsibility by being willing to take calculated risks which may entail applying a globalized strategy by opening and directing its diplomatic initiatives in accordance with its political and economic interests, and also with the necessary solidarity, to work for negotiated control of the crisis. In the decisive phase of conflict, diplomacy undoubtedly can offer pathways for balance and security, on the condition that the actors are aware of their responsibility and are adequately prepared for the exercise of this function.

2. One of the great challenges of the international community is to achieve by peaceful means, including those of a coercive nature, the effective resolution of conflicts or disputes that could jeopardize peace and security. The range of possibilities of the methods of peaceful settlement includes political, diplomatic and legal means. Public international law and the UN Charter can be utilised in this process which indicate that more than one method (or a combination of methods) can be applied to solve a particular crisis. However, when these methods are exhausted in the search of a peaceful settlement, the possibility of resorting to coercive means is opened.  

3. According to Article 39 of the UN Charter, the Security Council is the body responsible for taking measures to remove threats to or breaches of peace, or to define what is an act of aggression. Articles 41 and 42 provide that agreements can result in Security Council non-military actions, all of which can be defined as coercive.  However, if these actions fail to resolved the peace-threatening dispute or crisis, the Security Council may take other radical measures involving even the use of force. On the other hand, the UN Charter recognises the competence of regional organisations in dispute settlement, and will coordinate with them, as necessary, and will only apply coercive measures with the permission of the respective regional organisation.

4. The methods that have been established as coercive nature through a collective decision include retaliation, order of reparation, closure of territorial borders, boycott, suspension or expulsion from international organisations, and the breaking of diplomatic relations.

5. Retaliation which is a limited reaction of one State against certain harmful conduct of another, may harm the State retaliated against. Even though this is contrary to international law it is justified by the previous violation of that right by the other State. In order to justify the reprisal, the following factors are taken into consideration: a prior unlawful act, the aggressor state’s refusal to repair the proportionality of the damage, and self-defence against any force that might have been used.

6. There are other methods which are considered as forms of retaliation. These are the embargo against ships or aircraft, property and even commodities of the country against which action is taken; cutting off all communication with the outside; and the boycott which is essentially the cancelling of trade and financial relations, but which excludes the trade in goods used for humanitarian and health purposes.

7. Other media also considered coercive is the severance of diplomatic relations and retaliation. The severance of diplomatic relations is enshrined in the UN Charter as a measure of punishment and coercion against States which do not comply with the resolutions and recommendations of the Security Council, in certain circumstances. This indefinite interruption of diplomatic relations may be bilateral or collective. The latter takes place when several or all Member States of an international organisation made the decision to break with a certain State.

8. Retaliation is the act by which the offended State applies, without violating international law, the same measures used against it by the offender. For instance, the raising of tariff rates can be answered with a similar decision. Similarly, the imposition of restrictions on entry visas, the summoning of the Head of the Diplomatic Mission of the offended State to the Foreign Ministry of the offending State, and the declaration of persona non grata of diplomats may be answered by similar retaliatory actions.

 © by Odeen Ishmael

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