International Dispute Resolution In An Era Of Globalization

Globalization is changing the world order, and with it, international law. As relationships between nations and individuals become more intertwined and new technologies transform global politics and economies, the ways that societies operate have also changed. It considers how such developments are influencing international disputes and international conflict. First, the nature, scope and impact of international conflict have changed. Armed conflict that poses a major threat to international peace used to occur primarily between nations. Today, these events increasingly occur in the intrastate or non-State context. A second development has been the emergence of global collective problems, such as climate change, that threaten peace and security. A third change is the rise of a new international community of engaged non-State actors that demand increased access to, and involvement in IDR. Fourth, the diversity and availability of dispute resolution venues have diversified and proliferated offering both promise as well as problems, such as uncertainty and fragmentation. Fifth, the paradigm of peace promotion has shifted from managing and settling disputes to resolving them and promoting societal reconciliation. These five categories of change present challenges for the IDR regime and offer new opportunities for enhancing its capacity in an era of globalization.

The practice of addressing international disputes has emerged out of the history of international law itself. The creation of mechanisms for the pacific resolution of disputes was necessarily linked to the development of law that sought to promote peace. Roman law, for example, introduced the concept of humanities or the human tendency as an ethical commandment benevolent consideration for others. During the Eighty Years War and the Thirty Years War that disrupted Europe in the Middle Ages, Hugo Grotius sought to broaden the concept of humanities through the development of jus ad bellum and jus in bello to support the need for laws that could bind nations and encourage more humane behavior among peoples and between States. During the Hague Peace Conferences of 1899 and 1907, 28 States met in order to strengthen the collective capacity to promote peace and prevent war. To do so, they adopted the Convention for the Pacific Settlement of International Disputes to ensure the pacific settlement of international differences and established the Permanent Court of Arbitration (‘PCA’). After World War I the Covenant for the League of Nations established the Permanent Court of International Justice (‘PCI’), which operated from 1922 to 1946, as the first permanent international tribunal with general jurisdiction. It delivered opinions in 29 cases and 27 advisory opinions during this period.

Today, the UN Charter provides the framework for understanding the modem IDR regime. The fundamental purpose of dispute resolution is linked to the purpose of the United Nations ‘to maintain international peace and security. The UN Charter prohibits the threat or use of force unless it is authorized by the UN Security Council or necessary for self-defense.  In addition, Article 2(3) requires Members to settle disputes peacefully, and Article 33 provides the list of available methods for doing so. These IDR methods have traditionally been grouped by type (diplomatic, legal, political), aim (prevention, management, resolution), and enforcement status (binding or nonbinding).They include negotiation, defined as direct communication between disputing parties for the purpose of reaching agreements that will settle or resolve a dispute, as well as legal methods of judicial settlement and arbitration (referred to collectively as adjudication)P There are several diplomatic or non-legal third party processes. Mediation is where an impartial third-party facilitates a process for effective communication of issues and interests with the aim of fostering problem solving between the disputing parties.

Just as armed conflict has shifted from the interstate to the intrastate context, the nature of international disputes is also changing. Globalization has enhanced the scope and speed of the connection of actors in the global community. Today’s large-scale harms capable of threatening global peace and security arrive in many forms. Beyond traditional war, threats can occur through global economic crises, climate change, terrorism, health pandemics and so forth. International disputes arising from such interconnected issues have proven difficult to address through traditional judicial means because they often involve extralegal concerns and nonstate actors. Many of today’s international disputes, understood to be specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another, are complex. They involve international organizations, corporations, NGOs and individuals in addition to States and are occurring at the intersections of public, private, cross-border and transnational arenas. Efforts to resolve these disputes through traditional forms of adjudication have become increasingly ineffective because resolution requires the broader participation of the international community. As former ICJ Judge Christopher Weeramantry has stated, when we enter the arena of obligations which operate erg an omnes rather than inter partes, rules based on individual fairness and procedural compliance may be inadequate. The great ecological questions now surfacing will call for thought upon this matter. International environmental law will need to progress beyond weighing the rights and obligations of the parties within a closed compartment of individual State self-interests, unrelated to the global concerns of humanity as a whole. One nation cannot solve collective problems. Neither can States alone. Thus, the nature of many international disputes today requires the IDR system to provide the international community with a venue for collective problem solving. It also necessitates dispute resolution options for cases where legal rights have yet to be established or remain unclear.

In the new era of globalization, every individual seeks to have a voice. Although States have been the dominant actors within international law, individuals today are demanding increased participation. States have the international legal capacity to enter into treaties but non-State actors are playing an increasingly powerful role in shaping the treaty-making process. For example, during the 15th session of the Conference of the Parties to the UN Framework Convention on Climate Change in Copenhagen in 2009, individuals and civil society groups far outnumbered State delegates, using their numbers to make up for the power their non-State delegate status lacked. IDR embraced participation by individuals early in its history. For example, under the International Prize Court proposed to be established by the 1907 Hague Convention XII, individuals would have been able to lodge appeals against the decisions of national prize courts, although States could forbid nationals from using this option (ultimately the Convention never entered into force). Individuals enjoyed standing to bring claims before the Central American Court of Justice (1907-1918) against foreign States without consent of their home country. Individuals have brought claims against foreign States for war damages and mass claims before tribunals such as the Anglo-German Mixed Arbitral Tribunal in 1924. Despite these early developments, individuals still have limited rights and access to international adjudication.