Introduction
International disputes are misunderstandings that arise between two or more nations or states. It is no wonder classic international law treats nations as the only international legal entities. However, modern international law has come to recognize other entities like inter governmental and non-governmental organizations and other numerous entities to possess some degree of international personality, and that international dispute resolution can also encompass non state entities. A number of institutions and bodies are involved in the resolution of international dispute. Some of these institutions are international institutions like the United Nations whose activities are ratified by member states. Other than international institutions, there are regional institutions that deal with international dispute resolution. However, regional institutions deal much with the maintenance of regional stability than engaging in conflict resolution. On a large scale, they undertake to help in dispute resolution at regional as opposed to international levels. The diplomatic methods of dispute settlement espouse negotiation, mediation, inquiry and conciliation. Arbitration can also be used in international dispute resolution.
This essay will undertake to describe the methods of settling international disputes with much weight being given to diplomacy or alternative dispute resolution, and the role of international bodies like the International Court of Justice (ICJ) and the World Trade Organization (WTO). These methods of international dispute resolution will then be compared to litigation that is frequently used in municipal courts. The advantages and disadvantages of these methods will be described and opinion provided as to how these methods affect international trade and business decisions.
Dispute resolution by International Court of Justice
This institution is the principal judicial organ of the United Nations. It is situated in The Hague. The court is charged with settling legal disputes that are in tandem with international laws that are brought before it by member states. The court also undertakes to advise authorized international organs and agencies on various legal matters that are of grave concern to them. Only the member states are allowed to apply and appear before the court. The parties that appear before the court must first accept the jurisdiction of the court before any matter they bring before the court can be fully settled (Merrills, 1998). Parties can opt to take their dispute to the court when they make a special agreement to do so. By default, the parties are eligible to bring the dispute between them before the court if they are signatories to the ICJ treaty. This treaty contains a provision, known as the reciprocal effect of declarations, whereby the parties approve the agreement to forward the dispute arising between them to the International Court of Justice. A reciprocal declaration implies the parties will accept the jurisdiction of the court. In cases where there are doubts as to whether the court has power to handle a dispute, it is the preserve of the court itself to decide. As opposed to municipal courts whose jurisdiction is grounded on laws that govern states, the ICJ terms of operations are ratified by United Nations member states (Collier and Lowe, 1999). The United Nations General Assembly in conjunction with the Security Council elect judges to the ICJ.
Dispute resolution by World Trade Organization
The WTO has an organ known as the Dispute Settlement Body whose main mandate is to resolve disputes and this ensures that there is smooth flow in international trade. This body implements regulations that govern trade agreements between member states. Disputes normally arise in circumstances when a member state feels that the other party actively violates the agreement or commitment that was ratified under the WTO. WTO settles disputes through consultations. Multilateral systems are normally used as opposed to solving disputes unilaterally. Established procedures have to be adhered to and judgments respected, as opposed to the previous system. Procedures for solving disputes that existed under the defunct GATT had no fixed timetables, hence, it was easier to block rulings and disputes were not amicably resolved. However, a structured process was initiated and adopted in Uruguay under the WTO, the new system had clearly defined stages and this resulted into greater discipline.
Cases before WTO have to be promptly determined. The Uruguay agreement lays out procedures and timetable to be followed in dispute resolution (WTO, 2011). Under the agreement, a country losing a case cannot block the adoption of the ruling. Rulings are unanimously endorsed unless they are rejected. Rejection can only be effected if the interested party convinces other WTO member states to reject the case. This can be a case of aborted justice in circumstance where the country that does the lobbying did violate the WTO regulations. This creates uneven playground for states that take part in international trade. This can discourage flow of goods and services between countries allied to the two countries or parties.
Procedures in WTO’s institutions charged with dispute resolution do not resemble litigation in municipal courts because their main concern is that the countries have to discuss their divergent views and settle the dispute by themselves. Consultations and negotiations are widely used in WTO procedures as opposed to trial that the municipal courts favor. Under both the WTO and municipal courts, parties can appeal the ruling based on points of law such as legal interpretation. However, existing evidence cannot be re-examined or new issues examined under the WTO, as opposed to municipal courts.
Diplomacy as a mode of international dispute resolution
As enumerated earlier, diplomatic methods of dispute resolution include negotiation, good offices, mediation, inquiry, and conciliation. Negotiation may be the simplest of the diplomatic methods of dispute resolution. It is widely used in resolving differences that arise between two or more parties. The parties have to discuss among themselves with one main objective: that of coming up with a common understanding. The involved parties have to engage directly. The success of the process is propped on mutual goodwill of the involved parties. The parties must also be flexible and very sensitive.
Diplomatic dispute resolution by good office and mediation relies on the input of a third party-a state, group of states, an international organization, or a group of eminent personalities. Their role is to push the involved parties to come to a settlement. This system can be traced back to ancient Greece, ancient China, and Arabia. Good offices can be employed in circumstances where the third party’s core concern involves persuading the disputing parties to enter negotiations so that the dispute can be resolved. The moment negotiations have been initiated, good offices cease to be actively involved in the negotiations. In diplomatic dispute resolution, good offices are not obligatory and the disputing parties do not consider them binding. As opposed to good offices, mediators have to be actively involved in negotiations. In such circumstances, the mediator has to suggest the terms of settlement to the disputing parties. He takes part in the actual negotiation process. It is imperative that the mediator enjoys the confidence of both parties. This calls for absolute impartiality and utmost neutrality because the outcome of the mediation process is hinged on the traits of the mediator. The disputing parties must consent to the decision arrived at. The suggestions made by the mediators must not necessarily be binding to the parties involved. Its use is also not obligatory. Third parties have to be very influential and persuasive for settlement of international disputes to be successful. It is very difficult to make a practical distinction between good offices and mediators.
An inquiry approach involves appointing a special ad hoc body to lay bare the disputed facts and prepare a negotiated settlement. However, the parties are not under any obligation to accept the findings of the inquiry. However, statistics show that the parties do accept the findings of the inquiries. One of the inquiries that is yet to be erased from the world history is the Dogger Bank incident between Russia and Britain in 1904.
Conciliation integrates aspects of mediation and inquiry. In this regard, a commission is set up by the parties to examine the facts of a dispute. The commission then submits a report that contains the suggested terms of settlement. It is more formal as compared to mediation. However, it is less flexible. Traditionally, commissions are normally comprised of many members. In some instances, states have always considered engaging services of single conciliators. The recommendations in reports compiled by conciliators are not binding to parties in dispute. Some treaties have however made recommendations by conciliators’ binding. The parties in dispute therefore are left with no option but to implement the recommendations to the letter.
Reference List
Collier, J. and Lowe, V. (1999). The Settlement of Disputes in International Law: Institutions and Procedures. Oxford: Oxford University Press.
Merrills, J. (1998). International Dispute Settlement, 3rd ed., Cambridge: Cambridge University Press.
World Trade Organization (WTO). (2011). Dispute Settlement. Web.