Introduction
In a research paper titled Alternative Dispute Resolution in the International Context: The North American Free Trade Agreement, O. Thomas Johnson Jr. interestingly mentions that the Alternative Dispute Resolution in international law is a misnomer because it asks us the question alternate to what? [1]We know that international law is functional solely because of the respect for international relations and the fear of retaliation that any state/non-state actor harbours.
No court has permanent jurisdiction over the states because the subjects of international law are independent sovereign entities. Sanctions for committing any offence does not fall under the purview of international law which is why many legal scholars and jurists have often considered international law as ‘weak law’.
Initiatives have been taken by various sates after the two devastating wars to create organizations aimed at resolving the disputes at the international level. The multilateral treaties of the League of Nations and its subsequent successor The United Nations have been useful to substantiate international law. One of the main principles of the establishment of the UN is the pacific settlement of disputes.
Apart from all the above, there have been several courts and tribunals who have upheld the principle of pacific settlement of disputes between nations. This article aims to summarize the principle of ADR and that of pacific settlement of disputes present in the various theories of international law, why ADR is the most suitable technique of solving international disputes and cases where the applicability of ADR has to lead to the successful dispute resolution among the nations.
Prevalence Of ADR In Treaties And Principals Of International Law
Article 33 of Chapter VI of the charter of the United Nations requires the parties to a dispute to resolve their issues through negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
The General Assembly resolution 2625 (XXV) of October 1970 requests the states to seek early and just settlement of their international disputes” of their international disputes by ADR methods. Part 1 para 5 of the Manila Declaration on the Peaceful Settlement of International Disputes of 1982 (approved in General Assembly resolution 37/10 of November 1982) to enshrines the requirement of the parties to settle their dispute through the processes of types of ADR. Para 1 of the Resolution 40/9 of November 1985 of the General Assembly also enshrines the settlement of disputes through negotiations and other peaceful methods.
The United Nations organized a special committee which prepared a draft declaration regarding the role of the United Nations in the peaceful settlement of disputes. The statement “peaceful settlement of disputes has often been interpreted in international law in the form of types of ADR. Secretary Generals have also been instrumental in propagating the process of ADR in the field of international law. UN Secretary-General Boutros Boutros-Ghali mentioned in his “Agenda for Peace” in the year 1992 the various ways of tackling diplomacy. The United Nations by consequent resolutions have made guidelines each of the type of ADR processes.
Apart from United Nations, guidelines for Arbitration have been framed by various organizations to regulate the process of arbitration, for example, The united nations General Assembly by resolution “2205 (XXI)” in 17 December 1966 introduced ‘The United Nations Commission on International Trade Law (UNCITRAL)’, The General Assembly in the year 1988 adopted resolution 53/101, which enshrines the principals of Negotiation.
Why is ADR apt for international disputes?
History is witness to the devastating effect the world suffered when wars were fought by the nations. The culmination of the Second World War saw the degeneration of the human race, degradation in the economy, depressive projection of consciousness of human being. Previously, the pre-colonial and post-colonial era of invasion resulted in a barbaric climax of events and a ruthless amount of loss of lives. In the contemporary age where human rights are given importance, the focus has shifted from war to diplomacy and pacific settlement of disputes. one can enlist several reasons for using ADR to resolve international disputes few of them are as follows:-
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Prevention of Conflict
As stated earlier the conflict between nations can result in tremendous destruction, can lead to widespread deaths and can result in the degeneration of the subsequent generations. ADR in all forms serves as a platform for diplomacy and discussion between the nations. Thus it prevents the nations from arriving at a face-off situation. However, sometimes negotiations turn bitter and can further embitter the relationships between the nations.
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Peaceful Settlement Of Dispute
Though international law does not have a binding effect on its subjects but the subjects should harbour respect for international law and since the international treaties give importance to ‘pacific settlement of disputes’ the subjects should try their best to ensure that they do not engage in any activity which may be considered to be aggressive or un-peaceful. Peaceful settlement of the dispute would also mean that the dispute between the subjects is settled and done away with. Settling a dispute at the international level is not an easy task since it takes into consideration the interests of the country as a whole.
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Preserves Friendly Relationships
International relations are essential for a number of factors ranging from economic to political. Maintaining friendly relations with nations is necessary to ensure the development of trade, enhances globalization, free flow of information, the flow of capital, ensures peaceful existence, freedom from political turmoil, intermixing of cultures. Also, maintaining friendly relations will ensure the protection of the citizens in a foreign country, because it is always difficult for enemy aliens to exist in a nation.
International institutions dedicated to the cause of ADR.
There are several institutions which provide worldwide ADR services to the subjects of international law. These are the ones with greater popularity and the greater number of cases.
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Permanent Court of Arbitration:
The PCA was established by the Convention for Pacific Settlement of International Disputes. It is located in The Hague. ; the PCA has developed into a modern, multi-faceted arbitral institution perfectly suited to meet the evolving dispute resolution requirements of the international community.[2] It is one of the oldest institutions providing ADR facilities.
According to the current reports the PCA is working on “3 inter-state proceedings, 108 investor-state arbitrations, 54 cases under contracts involving a state or other public entity, and 2 other disputes”[3] Out of the 3 inter-state disputes all the three are regarding the law of the sea and UNCLOS is the law under which the proceedings are being held. The PCA has guidelines for all the ADR types for the settling dispute.
- International Chambers of Commerce:
ICC Arbitration gives the assurance of the best quality of service in ADR. From regular sales contracts to intellectual property matters, joint ventures, share purchase arrangements or state-financed construction projects—whatever the case—the organization is adept in providing assistance in resolving disputes of all cases.[4]
While dealing with international law we have to keep in mind the fundamental features which differentiate international law from municipal law which is the fact that international law does not have a binding effect on the parties. The applicability of ADR in international law while dealing in international disputes increases the binding effect because all forms of ADR give great emphasis to the agreement between the parties. After an agreement is reached between the parties it is highly improbable that the parties will recede from the decision made.
[1] O. Thomas Johnson Jr., Alternative Dispute Resolution in the International Context: The North American Free Trade Agreement, 46 SMU L. Rev. 2175 (1993) https://scholar.smu.edu/smulr/vol46/iss5/11
[2] “About Us.” Cour Permanente D’Arbitrage | Permanent of Court Arbitration, pca-cpa.org/en/about/.
[3] “Cases.” Cour Permanente D’Arbitrage | Permanent of Court Arbitration, pca-cpa.org/en/cases/.
[4] “Arbitration – ICC – International Chamber of Commerce.” ICC, iccwbo.org/dispute-resolution-services/arbitration/.
