Via ADR to World Peace
Resolving International disputes using Mediation
During the cold war era, states used military power, strategic alliances to tackle international disputes. There were some instances of negations also but mostly for maintaining nuclear equilibrium (like in the case of the Cuban missile crisis). In today's world mediation has gained enormous importance. The practice of Mediation developed in Ancient Greece, and then the Roman civilization recognized mediation. Mediation can be at the domestic as well as international levels. Many countries have adopted provisions for resolving their disputes through a more peaceful strategy. In the 2016 UNGA, the Secretary-General submitted a report at the 72nd session of the United Nations highlighting activities supporting mediation as a serene mechanism for settlement of disputes, conflict prevention and resolution. Justice Deepak Misra in an event where he was inaugurating an ADR Centre gave the example of Gandhi and Lincoln (who both were lawyers) that they advised people to settle instead of litigation.
Mediation – importance and advantages
Mediation is a method of non-binding dispute resolution involving a third party who tries to help the conflicting parties reach a mutual ground. Mediation is fundamental in today's society. The clarity that mediation brings is not often present in judicial hearings. Mediation is a time and cost-effective measure to get one right enforced and the two conflicting parties can also avoid bitter rivalry. Without the arduous rules of procedure and evidence, the process of mediation provides peaceful and flexible adjustment of terms and conditions. There are some crucial factors that play a key function in enhancing the role of mediation in the dispute resolution process.
Mediator’s role: Individuals, states, regional organizations, or international organizations can play the role of mediators. The mediator should not be partial. The principal mediator, the UN has earnestly participated in dispute resolution in Rwanda, Bosnia, Cambodia, Afghanistan, Afghanistan etc.
Mediation strategy: Proper communication can be a key to conflict resolution. This was seen in the Israel-PLO agreement in Oslo where Norway played a key role. It also involves framing protocols, highlighting coming ground and suggesting procedures. It was seen in the Bougainville conflict in 1995 which was mediated by New Zealand.
Conduct of the parties: The parties in the conflict must be willing and to choose meditation. It is a complex process; it faces hurdles when they lack clear leadership. Parties must be transparent with the norms.
International conflict and ADR
Traditionally, the term 'international conflict' refers to a conflict between several nations or their people and organisations. International disputes may concern security, independence, ethnicity, territory. Border disputes have been a major reason for international conflicts since the beginning of time (Ukraine-Russia crisis, in which the Russia-Ukraine border is the bone of contention). Border disputes may arise because of several factors like occupancy, infiltration, trafficking, smuggling etc.
If not war, what will solve the dispute? Article 33 of the UN charter says, that the parties to the conflict which can endanger international peace, shall seek a resolution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement or peaceful means of their choice. Principal institutions established by the UN for peaceful settlements are the International Court of justice, the Permanent court of arbitration and the International Criminal court. Many other centres of dispute resolution have come along. There are centres like the Arbitration and Mediation Centre (AMC), American Arbitration Association (AAA), London Court of International Arbitration (LCIA.
Cases where mediation solved International disputes
1. INDIA-PAKISTAN, Soviet Mediation at Tashkent, 1966: Indo-Pak conflict originated following the partition of the subcontinent. Kashmir has always been a point of conflict between India and Pakistan. After the India-Pakistan war of 1965, the USSR offered to act as a mediator. At a tripartite summit in Tashkent, the parties agreed to go back to the status quo ante. By playing a neutral role, USSR preserved close ties with India and aroused Pakistan’s interest in improving relations with the Soviet Union.
2. IRAN-IRAQ, Algerian Mediation, 1975: Various factors almost ignited a war between the two in 1975. Boundary issue, Iraq’s support for the opposition in Iran, Iran’s patronage to Kurdish separatists of Iraq, ideological antagonism over socialist(USSR-oriented) vs conservative(US-oriented) inclination of Iraq and Iran respectively and the new dimension, the competition over the Persian Gulf after Britain’s retreat were the points of conflict. In 1975, the UN, Egypt, Algeria played the role of mediators. Their role brought the two parties to a cluster of pragmatic arrangements, where Iran accepted to withdraw their support to Kurds and Iraq accepted the Thalweg boundary in Shatt-al Arab.
3. ECUADOR-PERU, Acta De Brasilia Agreement, 1998: Ecuador and Peru were engaged in several armed conflicts in the 2oth century as a part of Ecuadorian–Peruvian territorial dispute. The last war was the Cenepa War in 1995. In 1998, in order to create peace , the United States, Brazil, Chile and Argentina acted as mediators. This ended a territorial dispute between Ecuador and Peru.
Whether we look at the pre -world war era or at the contemporary society, nation states are still the same contemplating power politics using various methods. Change in geo-politics have been witnessed but we have just went from physical battles to a bitter cold war in which leaders play and masses suffer, we can see the Ukraine-Russia conflict. This dispute was not demanding shelling and invasion; this could have been solved through diplomacy.
Now, if the countries use the mediation process and other ADR mechanisms then, we can avoid such adversarial situations. Small countries which are continuously threatened by the bigshots of the modern world can take help from these mechanisms. If international arbitration is more structured and gritty, we never know, the much awaited ‘world peace’ will not be far.
Author: Advocate Reena Singh, Former Additional Advocate General of Uttar Pradesh in Supreme court