Dispute Settlement in International Law

by

Loris Marotti, Paolo Palchetti

• LAST REVIEWED: 28 March 2018
• LAST MODIFIED: 28 March 2018
• DOI: 10.1093/obo/9780199796953-0074

Introduction

The basic principles and methods governing the settlement of international disputes today—particularly interstate disputes—are substantially the same as those that were identified and enshrined in the Charter of the United Nations in 1945. Parties to a dispute are under a duty to settle it in a peaceful way (Article 2, paragraph 3 of the UN Charter). While barred from resorting to armed force, the parties remain however, at least in principle, “masters” of the procedure for dispute settlement, and of the outcome. In the absence of a precise treaty obligation, they are free to decide the particular means of dispute settlement they prefer (Article 33 of the UN Charter). More broadly, any settlement will inevitably depend, directly or indirectly, on the agreement of the parties. Thus, the whole edifice of dispute settlement at the international level is characterized by an inherent tension between a legal duty to settle disputes in a peaceful way and the absence of any real compulsory mechanism that may render such obligation effective. Against this legal background, the notion of dispute settlement covers a great variety of different settlement devices. Such procedures can be distinguished one from the other on the basis of different criteria, such as whether they contemplate the intervention of a third party, whether the settlement is based on the application of rules of international law, or whether the final outcome of the procedure has a binding or nonbinding character. The classification of these different procedures; the identification of their respective merits and shortcomings, in absolute or comparative terms; their suitability in relation to different categories of disputes—these are all issues that have been traditionally the object of a vast body of literature. On a broader perspective, recent trends, which have brought some changes in the field of the international dispute settlement, have also attracted the attention of doctrine. These trends include the progressive institutionalization of the procedures, thanks also to the growing role of international organizations in this area, the multiplication of settlement mechanisms and the ensuing problem of the possible interaction or conflict between them, the creation of new courts and tribunals, and the rise of adjudication as a means of dispute settlement.

General Overviews

Pacific means of dispute settlement are traditionally divided into two groups: diplomatic means and arbitral/judicial means. The main difference lies in the fact that in resorting to diplomatic means, the parties retain control over the outcome of the procedure, since any solution proposed by a third subject will not be binding upon them, whereas in the case of arbitration or adjudication, the parties accept as binding the final solution adopted by the international arbitrator or judge. Although international adjudication has progressively become the object of specialized studies, most general works in the field of dispute settlement continue to address both types of procedures. One of the leading texts is Merrills 2017, which provides a comprehensive analysis of the different methods and of their interaction in particular contexts. A comprehensive account is also provided in Collier and Lowe 1999, although, compared to Merrills 2017, this work devotes less attention to diplomatic means in favor of a detailed study of the arbitral process. Brownlie 2009 and Reisman 2012 provide a concise introduction to the variety of settlement procedures. They both examine the comparative merits of the different procedures, with the former focusing on interstate disputes, and the latter dealing in particular with the resolution of commercial disputes. A historical approach characterizes the work of Caflisch 2001, which assesses the relative importance of the different procedures, taking also into account the developments that took place in this field in the 20th century. A particular place in the literature on dispute settlement is occupied by the UN Handbook on the Peaceful Settlement of Disputes between States (United Nations Office of Legal Affairs 1992), a text whose declared purpose is to contribute to the peaceful settlement of disputes by providing “States parties to a dispute with the information they might need to select and apply procedures best suited to the settlement of particular disputes.” Approaching the study of this subject from a different perspective, political scientists have also given a great contribution to the study of dispute settlement in international relations. It is enough here to refer to Bercovitch, et al. 2009 and Zartman and Rasmussen 2007, which provide a comprehensive overview of the functioning of the various procedures, and of the differences in functions and strategies between them (but for more detailed bibliographical references, see the separate Oxford Bibliographies in International Relations entries “Conflict Management” and “International Negotiation and Conflict Resolution” and the Oxford Bibliographies in Political Science entry “International Conflict Management”).

• Bercovitch, Jacob, Victor Kremenyuk, and I. William Zartman, eds. The SAGE Handbook of Conflict Resolution. Thousand Oaks, CA: SAGE, 2009.

  Part III of this book, dealing with “the methods of managing conflicts,” contains an extensive overview of the field from a political science perspective.

• Brownlie, Ian. “The Peaceful Settlement of International Disputes.” Chinese Journal of International Law 8.2 (2009): 267–283.

  DOI: 10.1093/chinesejil/jmp015

  Concise introduction to the system of peaceful settlement of interstate disputes, by an authoritative scholar and practitioner. Useful to undergraduates, it offers an insightful discussion of the comparative merits of arbitration and adjudication.

• Caflisch, Lucius. “Cent ans de règlement pacifique des différends interétatiques.” Recueil des Cours 288 (2001): 245–468.

  Besides offering an overview of the basic principles and methods, this in-depth analysis provides an historical account of the developments that took place over the course of the 20th century.

• Collier, John, and Vaughan Lowe. The Settlement of Disputes in International Law: Institutions and Procedures. Oxford: Oxford University Press, 1999.

  Offers a synthetic overview of the principles and means of dispute settlement. Its main focus is on arbitration and adjudication, discussing in particular the International Court of Justice and arbitral procedure.

• Merrills, John Graham. International Dispute Settlement. 6th ed. New York: Cambridge University Press, 2017.

  DOI: 10.1017/CBO9780511973550

  A systematic survey of the different means of dispute settlement, it also addresses the relationship between the various procedures in the context of the law of the sea and in international trade, as well as the role of international organizations. A classic study, the first edition was published in 1991.

• Reisman, W. Michael. “The Diversity of Contemporary International Dispute Resolution: Functions and Policies.” Journal of International Dispute Settlement 3.1 (2012): 1–17.

  A short and clear map of the basic principles of international dispute settlement. As opposed to Brownlie 2009, its focus is on interstate, mixed, and private international commercial disputes.

• United Nations Office of Legal Affairs. Handbook on the Peaceful Settlement of Disputes between States. New York: United Nations, 1992.

  Prepared by the Secretary-General at the request of the General Assembly and on close consultation with member states, this text provides a general description of the main characteristics and functions of the different means of settlement. Available online.

• Zartman, I. William, and J. Lewis Rasmussen, eds. Peacemaking in International Conflict: Methods and Techniques. 2d ed. Washington, DC: Unites States Institute for Peace, 2007.

  Written by political scientists, it offers an analysis of the traditional tools and techniques available for the resolution of international conflict.