Forum Shopping in International Disputes

Aletta Mondré

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781349561148, 9781137466648
• eBook ISBN: 9781137466655
• Topic: Social Sciences
• Subtopic: American Government
• Index: Social Sciences

In a dispute, governments weigh up their options when selecting between various dispute settlement mechanisms. By scrutinising the interaction of institutional design with state interests, this book analyses why particular forums are selected in maritime boundary disputes.

Part I

Theorizing Forum Shopping

1

Forum Shopping in International Disputes

States in the modern world have created a dense network of international regimes, multilateral treaties, and formal international organizations to manage their affairs. All these international institutions provide forums for peaceful cooperation. At the same time, the growing density of institutions increasingly produces an overlap of parallel purposes and sometimes competing competences. For example, international trade is covered by a global regime like the General Agreement on Tariffs and Trade, but also by regional organizations like the Mercosur, by specialized institutions such as the International Coffee Organization, and by minilateral trade agreements. As a result, states have a choice of different forums in which to pursue their interests. Each of these institutions has its own set of rules that place member states under specific obligations.

The greater the density of rules and interactions, the more likely it is that rule violations will occur and more disputes will arise. Disagreements arise from diverging policy interests, rival demands, and incompatible security needs. With regard to dispute resolution, some treaties explicitly include dispute settlement clauses, while others remain silent on the issue. International organizations have established either formal or informal routines for handling differences among member states. Moreover, there is always recourse to ad hoc procedures, both diplomatic ones like seeking the good offices of an eminent person, and judicial ones like setting up an arbitration panel. Diplomatic means of alleviating political tensions are the most common method of dispute settlement in international politics, although judicial means are clearly on the rise. An increasing number of international tribunals provide off-the-shelf dispute resolution in international conflicts. While the increasing number of international institutions is one of the hallmarks of global governance, the relationships among them are not specified. Treaties only rarely provide for order in the event that alternative mechanisms are available for settling disputes. What governs the choice of forum for peaceful conflict resolution? This book investigates forum selection in international disputes.

There is a remarkable lack of knowledge on how states make choices among overlapping forums. One of the dominant theories of international relations – rational institutionalism (originally known by the label neoliberal institutionalism) – centers on the conditions of successful cooperation among states. The theory holds that institutions enable states to mitigate uncertainty and foster stable cooperation. One strand of literature has explored the reasons states establish international institutions (Keohane 1984; Martin 1992).

The question regarding the conditions for maintaining cooperation has also been studied with a special emphasis on the role of international law in influencing state behavior. The proliferation of international courts and quasi-judicial bodies has prompted scholars from the fields of international relations and international law to engage with each other. Long ignored by the international relations mainstream, the potential of international law to be one important governance mechanism in the era of globalization is investigated from various perspectives. A prominent body of research on legalization largely draws on institutionalist thought (Abbott et al. 2000; Goldstein et al. 2000; Guzman 2002), while others draw on rival international relations theories (Brunnée/Toope 2010; Goldsmith/Posner 2005; Onuf 1989; Slaughter 1995).

Part of the debate has moved on to explore the role of third parties in international dispute settlement, focusing attention on the design of international institutions and agreements (Cockerham 2007; Guzman 2005; Koremenos et al. 2001; Raustiala 2005). How third-party forums are designed is assumed to be crucial for states when choosing whether to use or forgo such institutions (Abbott/Snidal 1998; Alter 2006; Gilligan et al. 2010; Helfer/Slaughter 2005; Koremenos 2007; Mitchell/Powell 2011; Posner/Yoo 2005; Smith 2000). These theoretical postulations have spurred empirical research on the connection between institutional set-up and state behavior. Design matters indeed. One finding is that changes in institutional design correspond with changes in use of the procedures (Mondré et al. 2010; Zangl 2008, 2009; Zangl et al. 2012).

Yet these findings cannot account for the empirical fact that states do not always choose the same forum. While some states choose a certain forum to settle a particular type of dispute, other states do not make the same choice, even though the same option is available to them and circumstances are similar. States sometimes consider the assistance of a political third party to be in their best interest; at other times states institute legal proceedings. Even more often, states forgo any third-party involvement at all and attempt bilateral settlement. This book investigates how variations in forum selection can be explained. What drives states to choose one type of forum over others? Do states simply value dispute resolution mechanisms for their effectiveness? Do states actually use international institutions in the manner prescribed in their preambles?

There are no comprehensive theories available that could explain how states choose among the magnitude of available dispute settlement mechanisms. Major theories on international relations offer a starting point from which to derive propositions about the choice of third-party dispute settlement (Simmons 1999: 207–12; Zangl et al. 2012). Since such theories focus on the systemic level, they can only point to rather broad factors. From a systemic perspective, it is extremely difficult to develop assumptions that can explain the choice of one forum over another in a specific dispute. A few authors have advanced single propositions as to why states choose one particular forum, for instance the International Court of Justice (for example, Allee/Huth 2006a). Yet these propositions are isolated and tailored to fit the choice of one forum only, thus are either untested or unfit to explain the choice of any other forum.

An emerging body of literature has addressed forum selection (for example, Hansen et al. 2008; Hensel et al. 2008; Hensel 2001; Shannon 2009; Simmons 2002; Wiegand/Powell 2011). That strand of research has developed separately and appears to have been mainly driven by investigating the settlement attempts of territorial disputes. This book contributes to the budding research program on forum shopping in international relations and supplements previous research. So far these assessments of forum selection are large-n quantitative studies. I offer a new take on this empirical phenomenon, presenting a theory on forum selection.

I argue that states engage in forum shopping and choose the best forum for a given situation. As rational actors, states weigh their options when selecting between bilateral negotiations, a political third party, or judicial means in the search for the forum best suited to their interests. Each of these settlement methods is very different and offers distinct benefits. Yet these differences by themselves cannot fully explain variation in state usage because the set-up is the same for every disputant. Different actors also choose different forums because their interests differ. Investigation of forum selection needs to take into account the rationale that drives a disputant to prefer a particular settlement method over other options. I develop a theory that ties institutional design to the interests of a disputing party. The principal argument is that the overarching concern of a government combined with a forum’s characteristics explains the specific choice in a given dispute.

Dispute settlement forums

States involved in a dispute enjoy ultimate discretion regarding what method to use for peaceful dispute settlement. The literature lists negotiation, consultation, good offices, mediation, inquiry, conciliation, arbitration, and judicial settlement to resolve disputes (Bercovitch et al. 2009; Merrills 1998; United Nations 1992). This list reflects the wording of Art. 33 of the Charter of the United Nations and is also found in international documents, such as the Manila Declaration on the Peaceful Settlement of Disputes. Some of these methods are more formal than others, some require the assistance of different types of third parties, and some are far from regulated.

However, international law requires states to choose among peaceful means. In an attempt to curtail the scourge of war, states have created legal rules to limit warfare. The endeavor culminated in the United Nations (UN) system. From the late 19th century onwards, states have successively regulated the use of force in international treaties until eventually the resort to arms was banned. Thus states have used international law as a commitment device to maintain peaceful relations among themselves. Making this self-binding obligation work requires instruments and institutions to support conflict resolution. Historically, limits on the use of force were accompanied by the establishment of means for settling international controversies. The first global third-party mechanism to settle inter-state disputes was the Permanent Court of Arbitration (PCA), which was established by an international treaty in 1899. The PCA is an early example of an international organization tasked with administering law. Despite its name, the PCA is not a standing court but an institutional framework facilitating the establishment of one-time arbitration panels to resolve disputes between states.

The next major step in institutionalizing peaceful dispute settlement was the creation of the League of Nations in 1920. The League was the first global intergovernmental organization founded to maintain world peace. The Covenant of the League formalized diplomatic settlement procedures by tasking its main bodies to act as third parties and requiring member states to choose either judicial or political means for resolving disagreements. Member states committed to the obligation to first seek arbitration, judicial settlement, or involvement of the League Council in the settlement of disputes with other states. The League Assembly and the League Council could both engage in fact-finding and adopt recommendations for dispute settlement (Tams 2007). Judicial settlement was to be performed by the newly created Permanent International Court of Justice (PICJ). The PICJ was the first permanent international tribunal with general jurisdiction.

While the League of Nations and the PICJ were short-lived, the basic idea served as a blueprint for the United Nations system. The UN Charter prohibits the use of force, and even the threat of the use of force, in international affairs and demands member states settle differences peacefully. The system’s main political instrument to preserve international security is the UN Security Council, which is given the primary responsibility to maintain world peace. This responsibility necessarily involves dispute settlement. Furthermore, the International Court of Justice (ICJ) succeeded the PICJ as the main judicial organ to settle disputes between states. Thus, the United Nations offers the oldest, the most comprehensive, and still the only truly global system of dispute settlement. Member states are encouraged to use any of these means of conflict resolution. As stated above, the Charter also recognizes non-institutionalized mechanisms such as bilateral negotiations. Not even within this one system are there any clear recommendations regarding which forum to choose.

I am interested in researching why states either choose or forgo third parties’ assistance within the United Nations system. I investigate the ICJ as an example of the choice of a legal forum, and the UN Security Council as an instance of the choice of a political forum with third-party assistance. These decisions are contrasted with that of forgoing third-party assistance by examining the choice of direct talks between the disputants. While this limits the empirical analysis to bilateral negotiations, the UN Security Council, and the ICJ, the focus allows for more rigorous research and more reliable results. In exploring a newly proposed theory it is helpful to focus on prominent, frequently used, and well-documented examples.

For one, studying when and how states use the most prominent international governmental organization, the UN, is highly relevant to understanding international relations. The UN is the focal point of global governance and of high hopes as well as numerous reform proposals. The UN system enjoys an advantage of legitimacy because it is more representative than any other organization. In terms of usage, the selected forums are the ones states most commonly turn to. As states more frequently choose bilateral negotiations over any third-party involvement, this method is included in this study. The United Nations has been the political third party most frequently involved in peaceful settlement attempts by far (Bercovitch/Schneider 2000: 156–9). So far, the most frequently utilized judicial third party has been the ICJ. Secondly, the different mechanisms under the aegis of the UN have been a part of the world’s governance structure for long enough that a great number of states are familiar with their proceedings and are therefore more likely to use them than more recent institutions.

Above all, the selected forums are representative of the most common dispute settlement methods. In a nutshell, disputing parties have three basic ways to settle disputes: (1) they can attempt to solve the dispute without the help of a third party, (2) they can seek assistance from a political third party, or (3) they can employ judicial means. This three-tiered classification is commonly used by scholars, with some variation employed to organize each category. Another widely used distinction is between (1) direct bilateral negotiations, (2) non-binding third-party settlement – that is, political procedures, such as good offices and mediation, and (3) binding third-party settlement corresponding to judicial means, such as arbitration and adjudication (for example, Mitchell 2002: 750). To the extent that methods from either category are still distinct from the one under investigation, findings may not be generalized without careful adjustment where necessary.

Direct bilateral negotiations are the most common method of all and are a category of their own. The range of political third-party techniques is broader. Both the type of third party and the procedure can vary. A third party may be a single eminent person like the Pope, a single state like Norway, an existent body like the Peace and Security Council of the African Union, an ad hoc commission, and so on (Bercovitch/Schneider 2000: 146–8). They may or may not be neutral. Their task may be to facilitate communication because the conflicting parties do not wish to engage in direct talks. Third parties can also have a more active role, for example suggesting possible points of an agreement (mediation) or even evaluating facts and presenting recommendations (conciliation). Sometimes the third party is tasked to establish which facts are relevant to a dispute or to provide an account of what has happened (enquiry). What all these methods have in common is that they are diplomatic processes of conflict resolution. The disputing parties are aware that politics will be paramount in the settlement process.

This is the decisive difference between political and judicial methods, which will make binding decisions based on law. Judicial means are either arbitration or adjudication. Arbitration is different from adjudication in that a panel is selected ad hoc for a specific dispute by the disputing parties. In contrast, adjudication refers to decision-making by standing courts. Both types of settlement share fundamental similarities so that they are commonly treated together (Romano et al. 2014: 4–9). Legal experts render a ruling that has the force of law. The generalizability of the findings on the three forums studied in this book to other forums will be addressed in the concluding chapter.

Maritime boundary disputes

I investigate forum selection in disputes over maritime boundary delimitation. Maritime border disputes have emerged as prominent and salient issues in international relations (Bailey 1996; Mitchell/Prins 1999: 169–70, 175). Just like land-based territorial disputes, competing claims to maritime space have great potential to endanger international security. Contested territory has long been known to be a central cause of war (Vasquez/Henehan 2001; Walter 2003), but disputes over maritime spaces have not yet received the scrutiny they merit in international security studies. In contrast to land borders, delimitation of maritime boundaries is not yet even complete. The estimated potential number of maritime boundaries is 430, of which about half have been delimited by agreement to date (‘Disputes – International’ 2013). The other half of potential borders between adjacent and/or opposing coastal states has not yet been fixed. While not every unlimited boundary line indicates a dispute, about a quarter of delimitation agreements are stalled due to unresolved disputes (Blake 2004: 71).

Maritime boundary disputes involve economic resources, strategic considerations, and questions of sovereignty. National sovereignty is at stake because control over territory, and by extension maritime space, lies at the heart of statehood. To the extent that coastal states have exclusive rights in maritime zones, securing claimed areas is akin to preserving territorial integrity. Maritime space matters to states even though it is not habitable. Resources at stake include fish stocks, exploitation of seabed oil, gas reserves, and other potential sources of revenue. Sovereignty over certain islands is often disputed because their possession would mean control over additional maritime space and related resources (Nyman 2013: 11–12). However, boundary disputes may also derive salience from past and present troubled relationships between the disputing parties. Such disputes may easily then become the focal point for nationalism and/or matters of principle, making settlements even harder to attain (Kleinsteiber 2013). Just like land territory, maritime space can be of highly symbolic value. Strategically, coastal states are concerned with unimpeded access to sea lanes of communication, being able to exclude foreign activities close to their shores, and defending themselves against attacks from sea. Thus the control of maritime areas always has implications for state security.

The opportunity to select among different forums arises in other policy fields as well. For example, international trade disputes can be brought to either the World Trade Organization (WTO) or the dispute settlement system of a regional trade organization such as the North American Free Trade Agreement (NAFTA), or they can be dealt with in bilateral talks. Yet I am interested foremost in the fundamental choice of one type of dispute settlement over a different type, rather than exploring the choice of a particular judicial settlement option over another judicial one. For this reason, the dispute subject must not predetermine forum selection in the sense that alternatives are available in theory but hardly ever turned to in the real world. For instance, Southeast Asian states have not yet used the regional procedure to settle trade disputes. Moreover, studying instances of disputes over low stakes between states enjoying friendly relations are unlikely to yield insights into the process of forum shopping. It stands to reason that the disputing parties would simply open bilateral negotiations in such a situation and not bother to seek third-party assistance. Once the dynamics of forum selection are clear, the findings can be transferred to other international conflicts.

The high issue salience makes maritime boundary delimitation disputes a particularly productive starting point to investigate forum selection. Since important matters are at stake, states carefully assess how to deal with the dispute. Careful processes of deliberation offer a wealth of material for study. Moreover, there is a range of fundamentally different forums available to settle maritime border quarrels, all of which are actually used by states. A better understanding of forum choice can be gained when disputants have a menu of likely and sound choices.

A brief example illustrates that states engage in forum shopping when it comes to maritime boundary delimitation. For several years, Slovenia opposed Croatia’s candidacy for European Union (EU) membership and also threatened to block its neighbor’s accession to the North Atlantic Treaty Organization (NATO) because of an unresolved maritime delimitation dispute between the two states. Slovenia rejected the Croatian proposal to entrust the International Court of Justice with delimiting their maritime boundary. Instead, Slovenia impeded the opening of certain n...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables and Maps
• Series Editors’ Preface
• Acknowledgements
• List of Abbreviations
• Part I: Theorizing Forum Shopping
• Part II: The Choice of a Specific Forum: Case Studies
• Part III: Explaining Forum Shopping
• Notes
• Bibliography
• Index