Conflict Resolution in the Twenty-first Century: Principles, Methods, and Approaches

Chapter Four: Arbitration, Adjudication, and International Law

3333333333333333334 23333333333333 chapter four Arbitration, Adjudication, and International Law 47 International law–based methods of conflict resolution are a binding form of third-party intervention. Disputing states submit their claims to an impartial judicial body that makes a ruling on the basis of established international legal principles. Through adjudication, or judicial settlement, disputes are referred to an established court or standing tribunal, such as the International Court of Justice (ICJ) or the European Court of Human Rights (ECHR). Alternately, a dispute might be submitted to arbitration . This requires the parties themselves to set up the machinery to handle the dispute—the judges, procedures, and jurisdiction of the tribunal—as well as determine the scope or terms of the award. Historically, permanent judicial institutions developed out of the diplomatic practice of arbitration. International law–based methods are, by and large, an efficient and rational means of dealing with a narrowly defined set of international disputes, namely, those that require a legal ruling, as opposed to a political settlement. They are also surprisingly effective; the vast majority of awards and judgments are adhered to (Merrills 1998). Unfortunately, the nature of international law—its historical development and its narrowly prescribed role—limits the efficacy of legal methods for dealing with the more contentious and potentially more destructive forms of conflict with which we are primarily concerned. Any consideration of legal approaches to the maintenance of peace and order in international society runs the risk of falling into extremes. On the one hand, idealistic individuals concerned for international peace and order, as well as many international lawyers, see the establishment of international law as the panacea for international conflict. If states could be convinced or forced to submit their disputes to international courts or tribunals, the thinking goes, the peaceful rule of law would prevail. On the other hand, in avoiding the idealistic overestimation of international law, especially in its enforcement capacity , some have intentionally or unintentionally come close to denying any legal force at all for international law. Instead, they view it—cynically at times—as a convenient instrument of power politics (Delbruck 1987). In avoiding these extremes, we suggest that international law plays a limited but important role in the range of conflict resolution methods available to international actors. It is a useful way of dealing with a certain class of disputes, which can, if left unresolved, lead to more serious conflict. And it has important normative functions relating to the maintenance of peace and order in the international system. In a negative sense, international law assists in preventing the growth of interests leading to strife. It does so by clarifying the values of the international society: what interests and goals may be legitimately pursued (a form of interest articulation); where the boundaries of respective spheres are delineated; and the allocation of rights and responsibilities (Starr 1997; Levi 1976). In addition, international law creates situations for cooperation and adjustment: establishing and facilitating routine interactions among states; socializing decision makers as to the nature of the prevailing consensus in the international system and its expectations regarding the rights and duties of international actors; and regime and 48 CONFLICT RESOLUTION IN THE TWENTY-FIRST CENTURY norm creation. Most important for our purposes, international law serves a variety of conflict-related functions, such as limiting the conditions under which a justified conflict can originate, regulating the legal means of pursuing the conflict, and serving a central role in the range of processes involved in conflict management and resolution (Starr 1997: 102). In this chapter, we provide an overview and assessment of the main legal methods of conflict resolution. We do not consider humanitarian law or the legal processes of transitional justice such as international war crimes prosecution or quasi-legal truth commissions; these issues are covered in chapter 11. Instead, we focus on the institutions and processes that have emerged alongside the historical development of international law. 33333333 Conceptualizing Legal Methods of Conflict Resolution The Nature of International Law When we talk about law, we are referring to a “general rule which covers a specific class of cases, and which is backed by a probable sanction, stated in advance and widely accepted as legitimate” (Deutsch 1978: 201). International law may be conceived as “a body of rules which binds states and other agents in world politics in their relations with one another and is considered to have the status of law” (Bull 1977: 127). Looking at these definitions , a basic dilemma is immediately obvious...