Académique Documents
Professionnel Documents
Culture Documents
!"#$%&%'(#)*+,(-%,"$%#,&*%#.(!#/(,0$*+'0(1&23+,"(4"2*.+,&*%
5+,0*$6278(9:(;:(90&%<&%(#%=(4*>#%#(?#=+$2<#
?*+$@"8(A0"(-%,"$%#,&*%#.(#%=(9*>3#$#,&B"(!#/(C+#$,"$.DE(F*.:(GHE(I*:(J(6K+.:E(LMML7E(33:(NOMP
NNH
Q+).&20"=()D8(9#>)$&='"(R%&B"$2&,D(Q$"22(*%()"0#.S(*S(,0"(T$&,&20(-%2,&,+,"(*S(-%,"$%#,&*%#.
#%=(9*>3#$#,&B"(!#/
?,#)."(R4!8(http://www.jstor.org/stable/759800
5@@"22"=8(HGUHVUOHLH(HL8GW
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://dv1litvip.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=cup.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
Cambridge University Press and British Institute of International and Comparative Law are collaborating with
JSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly.
http://dv1litvip.jstor.org
LEARNING ABOUT INTERNATIONAL LAW THROUGH
DISPUTE RESOLUTION
and ROMANA
C. M. CHINKIN SADURSKA*
I. INTRODUCTION
* Senior
Lecturers, Sydney University Law School. The authors would like to acknow-
ledge the assistance and support of the students who participated in the optional course on
international dispute resolution, Sydney Law School, 1989.
1. Bin Cheng (ed.), International Law: Teaching and Practice (1982); W. M. Reisman
and A. Willard, International Incidents: The Law that Counts in World Politics (1987);
Reisman, "The Teaching of International Law in the Eighties" (1986) 20 Int. Lawyer 987;
Lachs, "Teachings and Teaching of International Law" (1976) 151 Hag. Rec. 163.
2. Reisman and Willard, ibid. See for comments Falk, "The Validity of the Incidents
Genre" (1987) 12 Yale J. Int. L. 376, and Bowett, "International Incidents: New Genre or
New Delusion?", idem, p.386.
3. E.g. Pound, "Law in Books and Law in Action" (1910) 44 Am. L.Rev. 12; Llewel-
lyn, "The Constitution as an Institution" (1934) 34 Col. L.Rev. 1; L. Petrazycki, Law and
Morality (1955); McDougal and Lasswell, "Criteria for a Theory about Law" (1971) 44
Cal. L.Rev. 362; W. M. Reisman, Folded Lies: Bribery, Crusades and Reforms (1979).
4. Courses which require students to move away from the concentration on decided
cases have been described as challenging them "to reorganise the cognitive map of the
legal world implanted by an education centred on the reading of appellate cases". This
requires rethinking the assumptions of "background versus foreground, periphery versus
core, hard versus soft" which are inherent in the traditional curriculum. See Galanter,
"World of Deals: Using Negotiation to Teach about Legal Process" (1984) 34 J. Leg.
Educ. 268, 270. Cf. Green, "A Comprehensive Approach to the Theory and Practice of
Dispute Resolution", idem, p.245 at p.249.
5. Even brief examination of the extremely valuable books of cases and materials com-
monly used in university courses in international law demonstrates the frequent use of
decided cases. See e.g. D. J. Harris, Cases and Materials on International Law (3rd edn,
1983); L. Henkin, R. Pugh, O. Schachter and H. Smit, International Law Cases and
Materials (1980); N. Leech, C. Oliver and J. Sweeney, The International Legal System
(1973).
6. Cf. The Lotus Case (France v. Turkey) (1927) P.C.I.J. Rep. Ser.A, No.10, 28; Asy-
lum Case (Colombia v. Peru) I.C.J. Rep. 1950, 266; Anglo-Norwegian Fisheries (United
Kingdom v. Norway) I.C.J. Rep. 1951, 116, 130-131; Fisheries Jurisdiction Case (United
Kingdom v. Iceland), Merits I.C.J. Rep. 1974, 3, 26-27; Military and Paramilitary Activi-
ties in Nicaragua (Nicaragua v. United States), Merits I.C.J. Rep. 1986, 14, 108-109. The
approach to the proof of customary international law in all these cases was selective and
non-analytical of the richness and diversity of State practice. Cf. D'Amato, "Trashing
Customary International Law" (1987) 81 A.J.I.L. 101.
7. It is estimated that some 90% of civil cases are settled before trial; Galanter,
"Reading the Landscape of Disputes: What We Know and Don't Know (and Think We
Know) about Our Litigious Society" (1983) 31 U.C.L.A. L.Rev. 4, 27.
JULY1991] Dispute Resolution in International Law 531
8. Dissatisfaction with the inadequacy of the judicial process for the resolution of dis-
putes is reflected in the steady growth of alternative dispute resolution processes in dom-
estic forums and the corresponding growth of relevant courses in law schools in the US and
Australia.
9. E.g. R. Fisher and W. Ury, Getting to Yes: Negotiating Agreement without Giving
In (1981).
10. The public international law part of the general international law course covered
the following traditional topics: sources of international law, the law of treaties, the rela-
tionship between international law and Australian law, jurisdiction and immunity from
jurisdiction, State responsibility, international claims and settlement of disputes. This
course also includes topics of conflicts of laws.
532 International and Comparative Law Quarterly [VOL.40
from being an addition to the standard international law syllabus, inter-
national dispute resolution turned out to be at its very core.
III. METHODOLOGY
to provide points of contrast with the main case study with respect to the
unfolding of an international dispute and the attempts at resolution;
however, certain disputes were used more than once to illustrate the dif-
ferent progressions a dispute can take. Our requirement was that dis-
cussion should not focus on the legality of any claims made by the
participants or actions taken by them but that attention be directed
exclusively at assessing their contribution (or otherwise) to the resolu-
tion of the dispute. It was interesting for us to see how difficult some stu-
dents found it after several years of legal training to make this shift in
perspective from legality per se to function and effectiveness. Although
the level of student preparation and the quality of their contributions
were exceptional (especially in a law school where in many courses little
class participation is required or encouraged), some students had prob-
lems in keeping the correct focus.
11. The students were required to become familiar with the following general readings:
J. Merrills, International Dispute Settlement (1984); Bilder, "An Overview of International
Dispute Settlement" (1986) 1 Em. J. Int. Dis. Res. 1; F. Northedge and M. Donelan,
International Disputes: The Political Aspects (1971).
12. The incidents included the Salman Rushdie affair; the controversy over reservations
made to the International Convention on the Elimination of all Forms of Discrimination
Against Women (as described in A. Byrnes, Report on the Seventh Session of the Com-
mittee of Discrimination Against Women and the Fourth Meeting of States Parties to the
Convention, 7th CEDAW/IWRAW Report, Aug. 1988); human rights issues and the
bombing of Tripoli in August 1986.
13. What is the dispute between the protagonists? What are the causes of the dispute?
What are the interests of each disputant that are threatened by the other? Suggest econo-
mical ways of achieving your government's objectives. What strategies might be pursued
to achieve these objectives? Do you think the results will last? The group representing the
UN Secretary-General had also to consider the international community interest in resolv-
ing this dispute and to make proposals to present to each side.
14. R. Cottam, Nationalism in Iran (2nd rev. edn, 1979); K. Roosevelt, Countercoup:
The Struggle for the Control of Iran (1979); Falk, "The Iran Hostage Crisis: Easy Answers
and Hard Questions" (1980) 74 A.J.I.L. 411; Falk, "Comments on International Law and
534 International and Comparative Law Quarterly [VOL.40
Court of Justice'5 and the debates within the United Nations16 to illus-
trate the differences between legal and political presentation. Both
introductory classes examined the prima facie nature and causes of an
international dispute, the apparent factors that weighed against early
resolution and those that might have assisted resolution, and highlighted
the differences between international and domestic disputes. We ques-
tioned the relative impact upon the outbreak and continuation of the
disputes of the following legal and extra-legal factors: religion and ideol-
ogy and sometimes the desire to export them; the geopolitical theatre;
subjective perceptions of external threat; long-standing third-party
intervention into the internal affairs of a sovereign State; superpower
policies over a period of time; economic policies and the allocation of
resources, especially the impact of oil policies and the need to maintain
the flow of oil; internal politics and the importance of domestic
audiences; the interests of ethnic minorities; repeated violations of
human rights; personalities of members of the respective 61lites;national
pride and prestige; perceptions of justice and equality in the inter-
national arena; and the interests of the international community in end-
ing, containing or prolonging the dispute. We also considered how any
of these singly or in combination could lead to an escalation of the dis-
pute.
From this we moved specifically to the causes of international dis-
putes. We examined different incidents to illustrate that not all the
above factors will be present or important in every dispute, while other
crucial elements may be present. We analysed the causes of the Rain-
bow Warrior incident (a single violent act resulting from resentment by
a government to opposition to its policies)"7 and of the Falklands/Malvi-
the United States' Response to the Iranian Revolution" (1981) 33 Rut. L.R. 399; Fisher,
"The Iranian Crisis: Who Should Do What?" (1980) 14 Akron L.R. 1; Jeffery, "The
American Hostages in Tehran: The ICJ and the Legality of Rescue Missions" (1981) 30
I.C.L.Q. 717; Malloy, "The Iran Crisis: Law Under Pressure" (1984) 15 Wis. I.L.J. 15;
Stein, "Contempt, Crisis, and the Court. The World Court and the Hostage Rescue
Attempt" (1982) 76 A.J.I.L. 499.
15. Case Concerning United States Diplomatic and Consular Staff in Tehran (United
States v. Iran), Merits I.C.J. Rep. 1980, 3.
16. E.g. Security Council Res.457 (adopted 4 Dec. 1979) and 461 (31 Dec. 1979). See
letters of 25 Nov. from UN Secretary-General to the President of the Security Council and
of 22 Dec. from the Permanent Representative of the US to the UN to the President of the
Security Council (1979) 33 U.N.Y.B. 311-312.
17. Cf. Rousseau, "France et Nouvelle-Z61ande. Affaire Greenpeace" (1986) 90
R.G.D.I.P. 216; Rousseau, "France et Nouvelle-Z61ande. Reglement de l'affaire du
Rainbow Warrior" (1986) 90 R.G.D.I.P. 993; France et Nouvelle-Z61ande Echanges de
'
Lettres Relatifs au Reglement des Problemes de l'Incident du Rainbow Warrior, sign6es
Paris le 9 juillet 1986 (1986) 90 R.G.D.I.P. 1095; Apollis, "Le Reglement de 1'Affaire du
Rainbow Warrior" (1987) 91 R.G.D.I.P. 9; Rousseau, "France et Nouvelle-Z61ande. Etat
Actuel de l'Affaire du Rainbow Warrior" (1988) 92 R.G.D.I.P. 395; Rousseau, "France
JULY1991] Dispute Resolution in International Law 535
22. See supra nn.17, 18 and 20. See also Report on the Rainbow Warrior Affair, 74
I.L.R. 241; "International Law and the Sinking of the Rainbow Warrior" (1986) 60 Aust.
L.J. 51; Wexler, op. cit. supra n.17; Franck, "Dulce et Decorum Est: The Strategic Role
of Legal Principles in the Falklands War" (1983) 77 A.J.I.L. 109; Mueller, "The Falkland
Islands, Will the Real Owner Please Stand up?" (1983) 58 Notre Dame L.R. 616; A. Coll
and A. Arend, The Falklands War: Lessons for Strategy, Diplomacy and International
Law (1985); Green, "The Falklands, The Law and The War (1984) Y.B.W.A. 89; P.
Sands, Chernobyl, Law and Communication: Transboundary Nuclear Air Pollution, the
Legal Materials (1988); Horn, "Nuclear Energy Safety" (1987) 28 Harv. I.L.J. 558,
Heller, "Chernobyl Fallout: Recent IAEA Conventions Expand Transboundary Nuclear
Pollution Law" (1987) 23 Stanf. J.I.L. 651; McBrayer, "Chernobyl's Legal Fallout-the
Convention on Early Notification of a Nuclear Accident" (1987) 17 Ga. J.I. & Comp. L.
303.
JULY1991] Dispute Resolution in International Law 537
31. Self-help which is not authorised under the UN Charter can be collective in form
but in reality unilateral in that one State initiates the response. Some instances of self-help
are legitimate collective and individual self-defence under Art.51 of the Charter or
regional measures under Chap.8. Schachter, "Self-Defence and the Rule of Law" (1989)
83 A.J.I.L. 259.
32. Cf. the US coercive economic action designed to induce France to speed up the
arbitration of an aviation dispute; Damrosch, op. cit. supra n.27, at pp.797-802.
540 International and Comparative Law Quarterly [VOL.40
object of the use of force by each side seemed to be humiliation of the
adversary and its total capitulation. What it developed into was a war of
attrition where a cease-fire cannot be regarded as having resolved the
dispute. Three aspects of this dispute were presented in class: the causes
of the resort to armed force by the protagonists; the various responses of
the international community over the duration of the conflict, and the
increased participation in the "tanker war".33 The Iran/Iraq war also
illustrated the changing context of international disputes and the inter-
locking of disputes through its impact on the resolution of the hostages
crisis.
For the sake of clarity we have taken an analytical approach to the
actions and responses that make up any dispute while remaining fully
aware that any single instance of self-help itself comprises many forms
of behaviour with multiple and often ambiguous motives. This was
surely the case with the non-forcible measures against the Soviet Union
and Iran. In both incidents it appears that the measures of self-help were
punitive, law-invoking and tactical in attempting to induce change.
These goals may be convergent but the means through which they are
attempted can subvert some of the goals. Putting coercive pressure on
the Soviet Union and Iran did not lead to any obvious positive changes
in the behaviour of these countries.
33. This dispute is remarkable for a number of reasons which cannot be developed in
this article but include: the initial international community response; the evolution of that
response due, inter alia, to the use of chemical weapons and the escalation of the "tanker
war"; the various participants including States, international, regional and religious organ-
isations, the Kurds, a transboundary national minority group; the use of attrition as a form
of dispute resolution; the use of UN and International Red Cross fact-finding missions.
34. Readings included: Sohn, "The Role of International Institutions as Conflict-
Adjusting Agencies" (1961) 28 Chic. L.R. 205; Sigmon, "Dispute Resolution in the
United Nations: an Inefficient Forum?" (1984) 10 Brooklyn J.I.L. 437; Elias, "The Com-
mission of Mediation, Conciliation and Arbitration of the Organisation of African Unity"
(1964) 40 B.Y.I.L. 336; Case Concerning Border and TransborderArmed Actions (Nicara-
gua v. Honduras), Jurisdiction and Admissibility I.C.J. Rep. 1988, 69, 96-107 (judgment
of 20 Dec.); Suy, "United Nations Peacekeeping System", in Encyclopaedia of Public
International Law (1982), Vol.4, pp.258-265; Certain Expenses of the United Nations
I.C.J. Rep. 1962, 151 (adv. op. 20 July).
JULY 1991] Dispute Resolution in International Law 541
35. It suffices to mention the war in Vietnam. Moreover, there is a possibility of the
escalation of a secondary dispute within the Security Council and between the Security
Council and General Assembly over their respective jurisdiction.
36. Almost all the disputes chosen at some point involved the UN in some capacity. See
Higgins, "The Place of International Law in the Settlement of Disputes by the Security
Council" (1970) 64 A.J.I.L. 1.
37. E.g. at the conclusion of the Iran/Iraq war 1980-88.
38. E.g. Cyprus after the invasion by Turkey in 1974.
39. E.g. in Namibia in 1989.
40. The class presentation included a video of the peace-keeping forces in Cyprus.
41. It had just the opposite consequence in the Iran/Iraq conflict: Iran refused to accept
S.C. Res.398 because Iraq was not labelled an aggressor. See Detailed and Official Pos-
ition of the Islamic Republic of Iran on Security Council Resolution 598 (1987), in which
Iran called the Resolution 'an unjust and partial resolution" because it favoured Iraq
despite the latter's aggression against Iran. Iran claimed that S.C. Res.479, 28 Sept. 1980
calls upon Iran 'to practically submit to aggression" (1987) 26 I.L.M. 1479.
542 International and Comparative Law Quarterly [VOL.40
there is no political obstacle to denoting a State as being in violation of
international law the resolutions may go further and impose sanctions
upon a named wrongdoer.42 South Africa was used as an illustration of
this function of the organised international community.43The objectives
of the sanctions imposed were to invoke the illegality of apartheid under
international law and to force the South African government to comply
with this norm; to subvert the existing socio-political system in South
Africa; to prevent further repression of the black population in South
Africa and to provide support for the front-line African nations. While
some of these objectives could be realised by a mere call for sanctions,
the wider goals can be achieved only through a universally accepted
embargo on trade and finance. Collective sanctions may prolong a dis-
pute by entrenching and strengthening the target's resolve; limitations
of collective sanctions as a dispute resolution process may occasionally
be similar to those in the context of self-help.44
Although Article 99 of the United Nations Charter formally gives the
Secretary-General only a limited role in the maintenance of inter-
national peace and security and subordinates the position to the Security
Council, in disputes discussed throughout the course we saw several
functions performed by him or under his auspices.45 Indeed, within the
United Nations the most active and creative role for dispute resolution
often appears to be performed through the Secretariat, with a wide
range of functions carried out by the Secretary-General. It is dependent
(as always) on there being a favourable political climate for his interven-
tion.
On the other hand, the United Nations Charter encourages regional
organisations to supplement its procedures. States may resort to
regional organisations either because a dispute is regional in character
42. Resolutions such as S.C. Res.550, 11 May 1984 calling for non-recognition of the
purported State of the Turkish Republic of Northern Cyprus have the same effect.
43. Defining the South African situation as a dispute caused some difficulties due once
again to the statist bias of international law. There are at least two main participants which
are not States: black South Africans and the UN. Judge Dillard queried who should be
identified as parties to the dispute, South Africa and the Security Council or South Africa
and the members of the Security Council. He commented that Art.32 did not seem to
apply to the former, and concluded that "in a sense there is a dispute between South
Africa and the other States". Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South WestAfrica) Notwithstanding Security Council 276 (1970)
I.C.J. Rep. 1971, 16, 255. Judge Gros thought that failing to recognise South Africa as a
party to the dispute was "a purely formal view of the facts of the case which does not ...
correspond to realities", idem, p.326 (diss. op. Gros J).
44. It could conceivably even widen the dispute. Imagine e.g. that certain members of
the UN wish to extend sanctions to Israel for its involvement in providing arms to South
Africa. The dispute would probably be widened in the UN by the objections of the US and
others.
45. E.g. fact-finding (US/Iran; Iran/Iraq); intermediary/mediation (Afghanistan);
mediation/arbitration (Rainbow Warrior).
JULY1991] Dispute Resolution in International Law 543
46. E.g. Argentina in rallying the support of the OAS in the Falklands/Malvinas con-
flict and the UK doing likewise in rallying the support of the EC; Lamoreaux, "United
States Obligations Under the OAS Charter and the Rio Treaty: An Analysis of the Falk-
land Islands Crisis" (1983) 13 Cal. West I.L.J. 493, 494; (1982) 7 Eur. L.R. 1. All mem-
bers of the EC imposed an arms embargo on Argentina and all except Italy and Eire
agreed on economic sanctions.
47. African States kept the Biafra dispute within the OAU at least partly because of
apprehension of the implications of a possible debate within the UN on self-determination
in that context.
48. In Grenada there was no dispute until the US and OECS intervention and after the
change of l61itein Grenada there was no one to express the claims of the State. Again this
highlights the statist bias of international law.
49. E.g. the Contadora process; Nicaragua v. Honduras, supra n.34, at pp.96-98,
101-105.
50. Readings included: 0. Young, The Intermediaries: Third Parties in International
Crises (1967); A. S. Lall, Modern International Negotiation: Principles and Practice
(1966), pp.5-21, 84-100; Lachs, "International Law, Mediation and Negotiation", in A.
S. Lall (ed.), Multilateral Negotiation and Mediation (1985), p.183; J. Carter, "Keeping
Faith", in S. Goldberg, E. Green and F. Sander, Dispute Resolution (1985), pp.446-476.
51. Members of the UN have, of course, accepted the obligations of the UN Charter.
52. There is no one single definition of the terms "mediation", "conciliation", "good
offices" and other forms of third-party intervention or facilitation. Through the disputes
we examined we found these terms being used in a variety of ways. They are fluid pro-
cesses which depend upon tasks entrusted to the third party, that third party's implemen-
tation of them and the disputants' willingness to accept that implementation. These
processes can be adapted to the needs of the particular participants in the context of the
specific dispute. For discussion of the processes see Goldberg, Green and Sander, ibid.
544 International and Comparative Law Quarterly [VOL.40
53. Greenberg, "Algerian Intervention in the Iranian Hostage Crisis" (1983) 20 Stanf.
J.I.L. 259.
54. Class presentations analysed the mediation process and the terms of the Hostages
Agreement.
55. See Touval and Zartman, "Mediation in International Conflicts", in Kressel, Pruitt
and Associates, Mediation Research: The Process and Effectiveness of Third Party Inter-
vention (1989), p.115.
56. Rousseau, "Argentine et Chili. Etat Actuel de la Question du Canal de Beagle"
(1981) 85 R.G.D.I.P. 538. The process was mediation but the outcome was a package pro-
posed by the third party to be accepted or rejected in total. In this sense it was more like
arbitration. However the proposals included demilitarisation of the disputed zone and that
the parties should conclude a treaty of perpetual friendship-requirements making it very
different from a legalistic arbitral award.
57. Rep. (1978) 17 I.L.M. 738. Himmelreich, "The Beagle Channel Affair: A Failure
in Judicial Persuasion" (1979) 12 Vand. J.T.L. 971; Princen, "International Mediation-
The View from the Vatican" (1987) 3 Negotiation J. 347.
58. The defeat in the Falkland Islands war, the fall of the military junta and the return
to civilian government.
59. (1985) 24 I.L.M. 1.
60. We analysed in a similar fashion mediation in Afghanistan, Iran/Iraq and the Rain-
bow Warriordisputes.
JULY1991] Dispute Resolution in International Law 545
4. Internationalfact-finding
The role of objective fact-finding in dispute resolution was developed
through an examination of the United Nations mission in Kampuchea in
1989 and the investigations of the use of chemical weapons in the Iran/
Iraq war. The particular difficulties of fact-finding in international dis-
putes were discussed.61 It was recognised that while fact-finding is not of
itself a dispute resolution process (and may even aggravate a dispute by
providing evidence of previously unsubstantiated allegations) it can pro-
vide an objective basis for considering options in a mediation or negoti-
ation.62
5. International arbitration63
One of the outcomes of the hostages dispute was the establishment of
the United States/Iran Claims Tribunal, which led us into a discussion of
international arbitration. We examined both inter-State ad hoc arbitral
tribunals (in the Beagle Channel and Rainbow Warrior disputes) and
international commercial arbitration. The United States/Iran Tribunal
provided a bridge between these: its adoption was part of the solution of
an inter-State dispute, while its jurisdiction includes disputes between
individuals and the foreign State arising out of commercial dealings. To
this end it incorporates and adapts the UNCITRAL Model Rules.
The establishment of the Tribunal illustrates two of the important
themes of the course. First, it highlights the polycentric nature of inter-
national disputes with the presenting issue being only the tip. The deten-
tion of the hostages was the focal point of the dispute but many other
issues were also disputed by the countries and needed to be taken into
account in a settlement package. Second, it shows how in a dispute
between States important individual interests are subjugated to the
overriding concerns of the government and their claims subsumed by
the State. This was true both of the commercial claimants and of the
hostages themselves, who were barred from presenting their claims to
any jurisdiction.64 While individuals may be participants in an inter-
national dispute they are typically excluded from the dispute resolution
process.65
Three aspects of the United States/Iran settlement66 were especially
6. International adjudication70
Given the vast literature on the subject of international adjudication,
especially the International Court of Justice, we decided to limit our
attention to two topics which fitted into the overall theme of the course:
the identification of participants in a multilateral dispute in order to
determine who are the appropriate parties before the Court; and the
characterisation of the situation in which the claims arise for the purpose
of deciding their admissibility.
The discussion of the factual context of Nicaragua's claims against the
United States71 and subsequently Honduras72 provided an eloquent
contrast with that in the hostages dispute. The latter was a clear-cut bila-
teral dispute presenting no State party problem before the Court while
the former was more complex. The conflict was evidently not a bilateral
dispute as presented by Nicaragua and accepted by the Court. The
approach of the International Court to third-party claims of interven-
67. These were compared with lump-sum settlements as a means of resolving such dis-
putes. See R. Lillich and B. Weston, International Claims: Their Settlement by Lump Sum
Agreements (2 vols., 1975).
68. International Bank for Construction and Development: Convention on Settlement
of Investment Disputes between States and Nationals of Other States, 18 Mar. 1965, 575
U.N.T.S. 159.
69. E.g. ICSID cases Amoco Asia v. Republic of Indonesia (Arb/81/1) Award on the
Merits 20 Nov. 1984 (1985) 24 I.L.M. 1023; Ad Hoc Committee (Annulment of Award)
decision 16 May 1986 (1986) 25 I.L.M. 1441; Decision on Jurisdiction of Tribunal, 10 May
1988 (1988) 27 I.L.M. 1281. The same is true with inter-State arbitration as exemplified by
the Beagle Channel and the Rainbow Warrior. The International Tribunal convened to
consider allegations that by repatriating the French agents France had violated the earlier
arbitral award gave its ruling in May 1990; Sydney Morning Herald, 9 May 1990.
70. Bilder, "International Dispute Settlement and the Role of International Adjudi-
cation" (1987) 1 Em. J. Int. Dis. Res. 131.
71. Supra n.24.
72. Supra n.34.
JULY1991] Dispute Resolution in International Law 547
79. E.g. Certain Expenses of the UN, supra n.34; Legal Consequences for States, supra
n.43; WesternSahara Case I.C.J. Rep. 1975, 12 (adv. op. 16 Oct.).
80. We discussed these questions in the context of the Applicability of the Obligation to
Arbitrate under s.21 of the United Nations HeadquartersAgreement of 26 June 1947 I.C.J.
Rep. 1988, 12 (adv. op. 26 Apr.) concerning the attempt by the US to legislate to close the
PLO UN Mission in New York.
81. The Falklands/Malvinas Islands dispute is a good example of this.
82. Agreement between Afghanistan and Pakistan on the Principle of Mutual Relations
in Particular of Non-Interference and Non-Intervention, Geneva; Bilateral Agreement
between Afghanistan and Pakistan on the Voluntary Return of Refugees; Declaration of
International Guarantees; Agreement on the Interrelationships for the Settlement of the
Situation relating to Afghanistan, all done at Geneva 14 Apr. 1988, rep. (1988) 27 I.L.M.
581 et seq.
JULY1991] Dispute Resolution in International Law 549
this was a successful outcome to the dispute or whether it was merely the
first stage in a new dispute between different participants. Even an
apparently unequivocal outcome such as a treaty or a court decision may
in fact simply gloss over the layers of the dispute and provide a cause of
future dispute.83
The direct outcomes of all the international disputes we studied were
also evaluated in terms of their impact on the formation, confirmation,
change or obliteration of norms of international law. Again, the focus of
our concern was not the legality or otherwise of, for example, the sink-
ing of the Rainbow Warrior, the spread of nuclear contamination from
Chernobyl or the use of force in the Falklands/Malvinas but, rather, the
impact of the claims made by the participants in these disputes and the
responses made to those claims upon the prescriptive processes and
operation of international law.
When evaluating the process of dispute resolution one must look
beyond the outcome of the particular dispute and appraise the methods
used. Again a number of questions need to be asked and the entire
course represented an attempt to answer them. What encourages parti-
cipants to commence dispute resolution processes? What were the criti-
cal factors affecting the choice of process? Do all disputes follow a
similar pattern? Why not? When does a dispute escalate into a crisis?
Are there better approaches to resolution of any given dispute that
might have been attempted? Was articulating the claim for the purpose
of dispute resolution counterproductive, for instance by blowing it out
of proportion and focusing undesirable attention upon it and even caus-
ing wider participation? All these questions require further research for
a better understanding of the dynamics of dispute resolution processes
and their operation in making effective the prescriptions of international
law.
The final class presentation was an appraisal of the provisions on dis-
pute resolution in the 1982 United Nations Convention on the Law of
the Sea.84 The Convention provides States parties with a range of
options in managing and attempting to resolve their disputes. We dis-
cussed the circumstances that might influence States in pursuing one
option in preference to others.
VI. CONCLUSION
85. Students were required to submit a paper with the following instruction: "Critically
evaluate an international legal dispute of your choosing. In your evaluation you must
include: (1) The origins of the dispute; (2) The interests of the parties; (3) Dispute resolu-
tion processes attempted by the parties; (4) The outcome; (5) Appraisal of the dispute."
Disputes evaluated included the Anglo-Icelandic fisheries; disputes with the People's
Republic of China in the aftermath of Tianamen Square; the dispute over Cyprus; Vene-
zuela/Guyana; Libya/Chad; the dispute over the US bombing of Tripoli; US/Cuba; French
nuclear testing in the Pacific; Nauru's claims against Australia and the international situ-
ation of Tibet. In all cases the students demonstrated a sophisticated understanding of the
processes of international law and the broad arena of their operation that we do not
believe they would have acquired through even an in-depth analysis of a particular branch
or subject of international law.