International Dispute Settlement

MaryEllen O'Connell, MaryEllen O'Connell

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351562478
• Edition: 1
• Topic: Storia
• Subtopic: Storia mondiale

The very purpose of international law is the peaceful settlement of international disputes. Over centuries, states and more recently, organizations have created substantive rules and principles, as well as affiliated procedures, in the pursuit of the peaceful settlement of disputes. This volume of the Library of Essays in International Law focuses on the classic procedures of peaceful settlement: negotiation, good offices, inquiry, conciliation, arbitration, judicial settlement, and agencies for dispute resolution. The introduction provides a unique historic overview, explaining how the procedures first developed and changed over time. Each chapter features a seminal essay that helped create the changes described in the introduction. Being at the center of international law, dispute resolution has always been a core topic of international scholarship, this volume brings together for the first time, the pivotal writing in the field.

Part I
Overview

[1]
An overview of international dispute settlement

by
Richard B. Bilder^*

Article 2, paragraph 3 of the U.N. Charter requires that: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The U.N. General Assembly, in adopting its 1982 Manila Declaration on the Peaceful Settlement of Disputes,¹ emphasized “the need to exert utmost efforts in order to settle any conflicts and disputes between States exclusively by peaceful means” and that “the question of the peaceful settlement of disputes should represent one of the central concerns for States and for the United Nations.” In an age of nuclear weapons, the importance of the principle of peaceful settlement of international disputes is apparent.

Every discipline concerned with international relations and diplomacy necessarily has an important stake in the task of crafting practical and acceptable ways of more effectively dealing with international conflicts and disputes. But international lawyers, as professional specialists in dispute resolution, have a special responsibility and can make a unique contribution in this respect. Consequently, it may be useful to suggest, from a lawyer’s perspective, a framework for thinking about international dispute settlement.

Unfortunately, we do not know as much as we would like to about disputes and dispute settlement, either within or among nations. While sophisticated empirical and theoretical research is beginning to be done concerning dispute processing within domestic societies,² our study of international disputes and the way they are dealt with is less developed, and our knowledge is still to a considerable extent intuitive and anecdotal. Consequently, this overview necessarily includes a number of questions for which we do not yet have satisfactory answers.³

I. What is an International Dispute?

In the Mavromattis case, the Permanent Court of International Justice defined a dispute as “a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.”⁴ More specifically, J.G. Merrills suggests that:

A dispute may be defined as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another. In the broadest sense, an international dispute can be said to exist whenever such a disagreement involves governments, institutions, juristic persons (corporations) or private individuals in different parts of the world. However, the disputes with which the present work is primarily concerned are those in which the parties are two or more of the one hundred and sixty or so sovereign states into which the world is currently divided.⁵

I will use Merrills’ meaning in this article and will generally refer to the nations involved in a particular disagreement as “parties” to the dispute.

The significant elements of the concept of “dispute” are that:

1. The disagreement must be specific. That is, it must have a reasonably well-defined subject-matter, so that one can say what the dispute, at least nominally, is “about.”
2. The disagreement must involve conflicting claims or assertions. That is, one party must actually assert or manifest what it wants or believes itself entitled to with respect to the other, and the other party must manifest its refusal or its conflicting claim. Such a manifestation may he through statements, diplomatic notes, specific actions or otherwise.

Thus, a “dispute” is something more than general attitudes of mutual dislike or hostility. Two nations may have general feelings of antagonism towards each other, yet not have any specific or particular disagreement one can identify as a dispute; conversely, two nations may be on friendly terms, yet have a particular disagreement which can be considered a dispute. Moreover, a “dispute” means something more than a situation in which one nation feels a sense of injury or grievance towards another; until that sense of grievance is formulated into a specific claim or assertion which is resisted by the other, there is no “dispute” between them.

The concept of “dispute” is useful for several reasons. First, it serves to distinguish a disagreement which has reached a level of active assertion and intensity potentially threatening the relations between the parties or the social order more generally, from lower-level and less threatening types of complaints, grievances or disagreements. Second, it serves as a way of indicating that a disagreement has reached a point of sufficient definition and concreteness where the use of certain established methods of dispute resolution may be appropriate. That is, from the perspective of the international legal system, an international dispute can be viewed as a disagreement between or among nations which international dispute-settlement techniques, such as adjudication, may be useful in resolving.⁶ Indeed, the jurisdiction of international judicial institutions, such as the International Court of Justice, typically extends only to cases involving international “disputes.”⁷

II. Do We Need to Settle International Disputes?

Disputes are inevitable in any society; at any moment there are certainly millions of disputes occurring at different levels of social interaction all over the world—within families, between social groups or business enterprises, and among nations. Obviously, each nation pursues its own interests, objectives and values. But when nations coexist and interact in a common social framework, some of these interests, objectives or values may come into conflict. Each will then seek ways of making its own interests prevail.

In this event, the more powerful nation may, of course, seek simply to impose its views or interests on the other party through coercion or force. More typically, however, a nation—particularly if it is less powerful than the other party—will also try to exert moral influence on its opponent by asserting that its claim is justified, legitimate or right. Framing a demand in moral or legal terms probably serves not only as a way of bringing moral pressure on the other party to accede to the demand, but also as a way of mobilizing support for the demand within the nation making it and of appealing for support of the claim by other nations and the inter-national community. Whatever its basis, a feeling that demands or claims must be justified or legitimized by reference to normative principles has become deeply engrained in international (and other types of) social behavior and interaction.

As indicated, disputes are a by-product of energetic social interaction and not in themselves necessarily a “bad thing.”⁸ Certainly, they need not imply a failure or breakdown of social order; indeed, a society without disputes would likely be a static society, without change and development. And, in practice, most disputes do not pose significant social problems and can be left to work themselves out, either (as is usually the case) through informal and routine low-level negotiations between the parties, by fading away over time, or otherwise. Disputes become a social problem only when and to the extent they disrupt, or threaten to disrupt, useful social relations or the more general social order—that is, when they may lead to conflict or when their social costs become excessive.

Thus, every political system must find ways to identify and try to deal with disputes that do pose significant social risks. In most domestic legal orders, complex and sophisticated techniques have been developed for identifying and resolving disputes that are considered to warrant or require public attention or intervention. Typically, either party acting on its own may seek state intervention, or the state under certain circumstances may intervene at its own discretion; and there are few kinds of disputes in which the state cannot if it wishes so intervene. In international society, on the other hand, the discretion of the international community or third parties to intervene in disputes is much more limited. In most cases, third-party or community intervention is considered appropriate or permissible only when both or all parties to the dispute have consented, or where the dispute has escalated to a point threatening general international peace and security.

It is worth noting that there may be some cases where even a significant dispute is best left unresolved. Thus, if any conceivable settlement or even attempt of settlement is likely only to exacerbate the sense of grievance of one or another party and increase tensions, it may be wisest simply to leave the dispute to simmer, hoping that someday, somehow, it will go away. The success of the Antarctic Treaty System, for example, is based largely on the parties’ decision to bypass or “freeze” the very difficult and potentially troublesome issue of disputed claims to territory in Antarctica.

The timing of dispute settlement efforts may also be crucial; such efforts, or the use of a particular technique, may be helpful at one stage of a dispute but not at another. Diplomats and international lawyers need to learn more about when, as well as how, to try to settle international disputes.

III. Do States Have an Obligation to Settle Their Disputes Peacefully?

The prevailing view is that, in the absence of special agreement, states are under no international legal obligation to settle, or even try to settle, their disputes.¹⁰ It is well established in particular that, absent special agreement, they have no obligation to submit their disputes to third parties for impartial settlement.¹¹

However, those states that are parties to the U.N. Charter (which means, in effect, almost all of the world’s nations) have assumed at least certain broad treaty obligations in this respect. Article 1(1) of the Charter provides that the first of the purposes of the United Nations organization shall be:

to maintain international peace and security, and to that end:

... to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

Article 2(3) of the Charter provides:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Article 33 of the Charter provides:

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

It may be noted that, while Article 2(3) establishes an essentially negative obligation—that Member nations not settle disputes by means that might endanger international peace, Article 33 affirmatively requires that Member nations actively seek to settle by peaceful means any dispute the continuance of which is likely to endanger international peace. It is well established that Article 33 does not purport to establish an exclusive list of such peacefu...