Main Issues
Given that the majority of disputes are resolved through negotiation in practice, negotiation can be considered as the fundamental means for settling international disputes. Hence it seems appropriate to commence our examination with negotiation. Good offices and mediation may be said to be an adjunct to negotiation since these means aim to facilitate dispute settlement through negotiation between the parties in dispute. Accordingly, it is necessary to examine these means of dispute settlement in connection with negotiation. In this regard, it is important to note that negotiation and legal means of international dispute settlement, namely international adjudication, are not mutually exclusive but complementary. Thus particular attention must be paid to interaction between negotiation and international adjudication. This chapter will focus particularly on the following issues:
(i) Why should negotiation be examined in international law?
(ii) What are the principal features and functions of negotiation in the field of international dispute settlement?
(iii) What is the interrelationship between negotiation and international adjudication?
(iv) If an international dispute cannot be settled through negotiation, what is the next step to be taken?
(v) What is the role of good offices and mediation and what are their limitations?
INTRODUCTION
It is generally recognised that the majority of international disputes are settled by negotiations. In some cases, negotiations may be the only and final means of settling international disputes. Therefore, it would be no exaggeration to say that negotiation is the fundamental means of international dispute settlement. In reality, however, it is not infrequent that direct negotiation encounters serious difficulties or even deadlock due to the adamant attitude of parties in dispute. In this case, involvement of a third party may be needed with a view to making concessions or breaking stalemate in negotiations.
The degree of involvement of the third party varies on a case-by-case basis. Where the involvement of the third party is limited to providing an additional channel of communication, such an intermediary is considered to be offering ‘good offices’. Where a third party takes a more active role by making proposals, such an act is called ‘mediation’. Good offices can be said to be a modest mode of assistance by a third party, whilst mediation is an active mode of intervention by the third party.
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