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LEARNING ABOUT INTERNATIONAL LAW THROUGH
DISPUTE RESOLUTION

and ROMANA
C. M. CHINKIN SADURSKA*

I. INTRODUCTION

THIS article attempts to contribute to the discussion on the objectives


and methodology of teaching and researching international law.' The
debate goes beyond methodological preoccupations with teaching and
research, to developing new insights into the nature of the international
legal system and its operation in international and municipal arenas.
The most stimulating example has been the work on international inci-
dents as a new international epistemic unit.2 We draw upon the experi-
ences of developing and teaching an international dispute resolution
course for final-year law students at Sydney University. While we make
no claims of creating a new methodology we found that detailed analysis
of international disputes highlighted the inner workings of the inter-
national legal system.

II. OBJECTIVESOF THE COURSE


IN traditional legal studies an implicit assumption is made that judicial
process is the most appropriate method of resolving disputes. Therefore
the focus of study in many law school courses is selective in two senses:
the study concentrates upon only one type of dispute resolution process,
litigation; and it looks only to the culmination of what may have been a
long, socially, personally and economically complex pattern of behav-
iours. Although realist jurisprudence3 has taught us that there is more to
a case than the legal proposition which it appears through purely logical

* 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).

529 (1991) 40 I.C.L.Q.


530 International and Comparative Law Quarterly [VOL.40
and textual construction to formulate, most academic legal training still
centres around the decided case law of superior courts.4
This focus of study shapes future lawyers' perceptions of what is at the
heart of legal activity. More particularly it forms their view of both the
pattern of disputes and the appropriate mechanism for their resolution.
They come to see the dispute after it has been articulated in legal terms,
its factual background, origins, conflicting interests of both parties and
non-parties, their perspectives and expectations either made invisible or
distilled into the language of the court. What is dealt with by the court is
only the skeleton of the intricate and ultimately conflicting relation-
ships.
Despite the differences between the international and municipal legal
systems, international law courses are often taught in a similar fashion
to other courses, that is, with emphasis on the decisions of international
and domestic courts and tribunals.5 Admittedly, attention is also given
to the terms of international agreements and the practice of States but
the former are often analysed as if they were equivalent to domestic
statutes, while the latter is perceived mainly through the opinions of
courts6 or assertions by States through General Assembly debates and
resolutions.
It is unnecessary to stress that litigation is only one dispute resolution
process and that even in domestic arenas it is not the most frequently
used7 and is certainly not the most economic and cost-effective form of

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

managing and containing disputes." Other mechanisms are available


which are non-adversarial, do not take place in a public judicial forum
and are not so clearly directed towards the win-lose outcome of adjudi-
cation.9 Instead they are directed towards formulating a constructive,
efficient and lasting solution that addresses and targets the substratum
of the dispute. The parties assume responsibility for the process and its
result rather than channelling the dispute into the impersonal judicial
machinery.
Our starting point in developing an international dispute resolution
course was that we were free to introduce a new public international law
optional course addressing topics which had been omitted, primarily for
lack of time, in the basic course.1o Possibilities were, for example,
human rights, international organisations, air and space law or law of
the sea. We chose international dispute resolution because it seemed to
us that in a legal system lacking compulsory jurisdiction it was particu-
larly questionable to focus on judicial decision-making to the extent we
did in the general course. However, it very soon became apparent that
dispute resolution was not an "add-on" but, rather, was integral to the
entire international legal process; through working on this realisation an
advanced international law course emerged. This was because in look-
ing at dispute resolution processes we touched the very nerve of the
main issues of contemporary international law in the context in which
they actually arise. We continuously came up against the major themes
that underlie the international legal system and the operation of power,
authority and control within it. For example, we treated through actual
disputes problems of State sovereignty contrasted with interdepen-
dence; international organisations as functional extensions of member
States but increasingly assuming for themselves an autonomous role;
sources of law and the international prescriptive process; international
responsibility; the spectrum of coercive behaviour in the international
arena; participation in the international legal process of States and their
governments, peoples, individuals committing transnational offences,
juristic and natural persons and national liberation movements. Far

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

A framework was adopted for the analysis of international disputes and


the processes of their resolution. We wanted to explore the definition of
an international dispute, to examine the origins and development of
international disputes, to identify the participants, their interests and
situations and the impact of all these factors on the processes of dispute
resolution attempted by the parties and the immediate and long-term
outcomes. Throughout the class discussions we emphasised two dimen-
sions: the time factor and the multifaceted nature of disputes.
A dispute is never static: the participants, causes, the interests of the
protagonists and other participants, their situations, expectations and
perspectives are constantly changing in a process of action and reaction.
A dispute is usually multifaceted and each of the above features com-
prises a number of layers. Our purpose was to keep stripping away the
layers: the guiding assumption was that we should never accept at face
value the apparent simplicity of any of the features.
The method was to analyse in depth a chosen international dispute
and the processes undertaken to attempt to resolve it. The dispute was
the seizure and detention of the United States hostages by Iran in 1979.
This dispute was used as a springboard for discussion of, and compari-
son and contrast with, other international disputes. Each of these dis-
putes was carefully chosen to illustrate a number of diverse aspects of
the character of international disputes and dispute resolution processes.
By returning to disputes previously discussed from a different perspec-
tive students acquired an in-depth perspective of their complexities.
The detention of the United States hostages in Iran seemed an ideal
dispute for our purposes. The main, but not sole, reason was that almost
the full range of dispute resolution mechanisms was attempted: coercive
economic and military self-help; intergovernmental negotiation; third-
party fact-finding and mediation; good offices, recourse to international
and regional organisations; international and domestic adjudication and
arbitration; and enforcement. The existence of all these processes in one
dispute presented a unique opportunity to assess their relative effective-
ness against the same background and to demonstrate the dynamics of a
dispute as it goes through different phases, which in turn affects the effi-
cacy of the various mechanisms attempted.
Students were expected to participate actively in seminars by means
of required reading and preparation. Each student was asked to prepare
specific aspects of a particular dispute for class presentations which were
fitted into the overall structure of the course. The disputes were chosen
JULY 1991] Dispute Resolution in International Law 533

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.

IV. CONTENT OF A COURSE ON INTERNATIONAL DISPUTE


RESOLUTION

A. Origins, Definition and Participants"


We started by presenting the students with a hypothetical international
dispute which drew heavily upon a number of real incidents.12 The stu-
dents were divided into three groups, one to represent each of the par-
ties and the third the Secretary-General of the United Nations. Each
group had to consider a number of questions which introduced the main
themes of the course.13
Against this background we commenced the case study. Students
were required to become familiar with all aspects of the dispute through
a number of readings,14 including the litigation in the International

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

nas conflict (a long-standing territorial claim entangled with colonial


policies which erupted into armed hostilities).'8 Discussing causes inevi-
tably led us to attempt to define an international dispute,19 an exercise
that could be problematic, for instance in the case of the Chernobyl
nuclear disaster.20 This last was a situation which had all the potential
for triggering a major international dispute and yet did not do so.
Equally challenging was the apparently easy task of defining the parti-
cipants both in these and the United States hostages dispute. For
instance, participants in the Rainbow Warrior affair included all the
involved States (France, New Zealand, the United Kingdom, the Neth-
erlands, Switzerland), Greenpeace, a non-governmental organisation,21
the individual victim, the offenders who were State agents and the Sec-
retary-General of the United Nations as a third-party facilitator for
settlement. The international labelling of these participants was relevant
to determining the appropriate arena and mechanisms for settlement,
the patterns of responsibility and attachment of liability and the types of
reparation sought and partly obtained. We repeatedly came back to the
issues of participation and the definition of a dispute and found the com-
plexities to be even greater in some disputes subsequently discussed, for
example in the dispute about apartheid policies in South Africa. Many

et Nouvelle-Z6lande. Etat Actuel de l'Affaire du Rainbow Warrior" (1988) 92


R.G.D.I.P. 993; Wexler, "The Rainbow Warrior Affair: State and Agent Responsibility
for Authorised Violations of International Law" (1987) 5 Boston U.I.L.J. 389.
18. J. Goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic
History (rev. edn, 1982); Hopple, "Intelligence and Warning: Implications and Lessons of
the Falkland Islands War" (1984) 36 World Politics No.3, 339; P. Calvert, The Falklands
Crisis: The Rights and the Wrongs (1982); Metford, "Falklands or Malvinas? The Back-
ground to the Dispute" (1968) 44 Int. Affairs No.3, 463; Northedge, "The Falkland
Islands: Origins of the British Involvement" (1982) 7 Int. Rel. No.4, 2167.
19. In Mavrommatis Palestine Concessions (Greece v. United Kingdom) the PCIJ
defined a dispute as "a disagreement on a point of law or fact, a conflict of legal views or
interests between two persons" (1924) P.C.I.J. Ser.A, No.2, 11 (judgment of 13 Aug.
1924). For other definitions see e.g. the claim that a dispute has arisen "Whenever the
State ... bringing the matter before the Security Council alleges that the actions of
another State ... in respect of the first State ... constitute a breach of international obli-
gation . . . and the State or States which are the subject of these allegations contest, or do
not admit, the facts alleged or inferences to be drawn from such allegations" UN Doc.A/
578, 15 July 1948, Entezam (Special Rapporteur), "The Problem of Voting in the Security
Council", pp.7-8; and "if a State makes a charge against another State and the State
against which it is made repudiates it or contests it, then there is a dispute". Egypt used
these at the debate on the Palestine question, S.C.O.R. 6th year 553rd Meeting, 16 Aug.
1951, and 555th Meeting, 27 Aug. 1951, S/2313.
20. AAEC Task Group, The Chernobyl Nuclear Accident and its Consequences (1987);
Nuclear Energy Agency OECD, The Radiological Impact of the Chernobyl Accident in
OECD Countries (1987); W. Brown (ed.), M. Gorbachev, The Chernobyl Statement, 15
May 1986 (1987).
21. One of a number of groups which operate across boundaries and whose activities
have transnational impact, but which are not established by intergovernmental agreement.
Many have consultative status with ECOSOC under Art.71 of the UN Charter.
536 International and Comparative Law Quarterly [VOL.40
of the conceptual difficulties stemmed from the statist bias of inter-
national law, which fails to take adequate account of the realities of
wider participation in modern international intercourse. Wider partici-
pation inexorably leads to a broader spectrum of claims voiced in the
international arena than those traditionally espoused by States.

B. Applicable International Law


We looked at the international law applicable to these same disputes
solely in order to assess the appropriate arenas and processes available
for their resolution.22 The United States hostages dispute provided a
useful contrast with the others. As there was clear evidence of treaty
violation and a basis for jurisdiction it seemed worthwhile to the United
States to seek a favourable judicial ruling from the International Court,
even though it must have doubted its enforcement. At the other
extreme, there were no apparent norms of international law applicable
to the Chernobyl nuclear accident, and analogies could not easily be
drawn from other areas of law. Further, even without the uncertainty of
the substantive law there was no obvious legal forum for the presen-
tation of the dispute.
The contrast between the two disputes made us realise that the avail-
ability of an international judicial forum may not necessarily be effec-
tive for the resolution of a dispute and may even be instrumental in
causing its escalation. Conversely, lack of judicial forum need not be
disadvantageous for resolving a dispute. For example, even if there
were clear-cut substantive law on State liability for nuclear disaster, it is
conceivable that a judicial finding of liability against the Soviet Union
would have made that State less co-operative in taking active steps for
the future international regulation of the nuclear industry. Adjudication
is also inherently limited as a method of international dispute resolution;
its main preoccupation is with the allocation of existing legal rights and
duties, but the dispute articulated in this fashion may be part of a wider

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

situation23which the court is not equipped to consider, so that the ruling


can never effectively resolve the dispute.
The importance of the distinction between a narrowly defined dispute
and a wider situation made us analyse in depth the origins, causes and
participants of international disputes. The prime illustration of a dispute
where there were attempts to reduce to legal concepts a wider situation
and which concentrated upon the legal claims of only two of the partici-
pants is that between Nicaragua and the United States.24 Furthermore,
submission to the judicial forum may divert the parties' energies
towards the conduct of the proceedings, to the detriment of creative
thinking for the resolution of the dispute. On the other hand, inter-
national adjudication may serve a useful purpose. It can resolve some
aspects of the dispute by judging the legitimacy of certain claims. This
may help to rally the international community behind the aggrieved
party, which in turn can put pressure on the other to consider ways of
resolving the dispute. Without the International Court's strong condem-
nation of the seizure of the hostages the United States might have found
it more difficult to gain international support. By contrast, Iran found
itself internationally isolated until it released the hostages. This was par-
ticularly harmful to its interests at the commencement of the war with
Iraq in 1980, which added a new dimension to the co-existing dispute
with the United States.
A comparison was made with the use of a domestic judicial forum
(where available) for the consideration of an international dispute.
After the sinking of the Rainbow Warrior, criminal proceedings against
the agents in the New Zealand courts may have exacerbated the dispute
by presenting and condemning the French actions as criminal in a public
forum. However, adjudication was not completely counterproductive to
international dispute resolution. Since in New Zealand the criminal
court's ruling could not be challenged as subservient to the executive
will, it served as an additional legitimation of New Zealand's claim. It
23. For instance, the elements of the situation in 1986 in which the Chernobyl accident
occurred and which impacted on the outcome of this incident included inter alia: the
encouraging attitudes of Western governments toward political reforms in the Soviet
Union and their unwillingness to jeopardise the beginning of a new wave of detente and
progress in arms reduction talks; the skilful diplomacy of Gorbachev in directing attention
towards the question of specific and comprehensive methods of control of nuclear power
while stressing its overall beneficial character; the congruence of this position with that of
the Western governments, which were also concerned not to fan up environmental and
anti-nuclear concerns of public opinion; increased sales to the USSR; the submissiveness
of Eastern European governments, which accepted the Soviet account that they would
suffer no damage.
24. This dispute went through many phases in the ICJ: Military and ParamilitaryActivi-
ties in and against Nicaragua (Nicaragua v. United States), Request for the Indication of
Provisional Measures I.C.J. Rep. 1984, 169 (order of 10 May); Declaration oflntervention
I.C.J. Rep. 1984, 215 (order of 4 Oct.); Jurisdiction and Admissibility I.C.J. Rep. 1984,
392 (judgment of 26 Nov.); Merits I.C.J. Rep. 1986, 14 (judgment of 27 June).
538 International and Comparative Law Quarterly [VOL.40
also indicated to the French that New Zealand did not intend to allow
the matter to pass without taking any steps. It was necessary for the New
Zealand public to see the matter as one at least initially firmly dealt
with. By way of contrast, the use of the United States domestic courts by
American business concerns to obtain pre-judgment attachment of Ira-
nian assets added another layer to the subsequent negotiations for the
release of the American hostages and led to constitutional challenge to
the Executive Agreement reached.25 The ultimate role of the domestic
Supreme Court was to uphold the legitimacy of the foreign policy initiat-
ives of the executive.26

C. Methods of Dispute Resolution

1. Forcible and non-forcible self-help


We examined ways in which participants attempt to resolve their dis-
putes, regardless of the legality or otherwise of the methods chosen.
This went beyond Articles 2(3) and 33 of the United Nations Charter,
which impose the obligation of the peaceful settlement of disputes on
States by considering self-help and the use of force in this context.27 The
disputes we considered alongside our primary case study were the use of
non-forcible sanctions against the Soviet Union after its invasion of
Afghanistan,28 the Swedish responses to the incursions by foreign sub-
marines29and the Israeli military rescue of the hostages at Entebbe.3') By
means of these case studies both forcible and non-forcible methods of
25. Declaration of the Government of the Democratic and Popular Republic of Algeria
Concerning the Settlement of Claims by the Government of the United States of America
and the Government of the Islamic Republic of Iran, 19 Jan. 1981, rep. (1981) 20 I.L.M.
224 (hereinafter "Hostages Agreement").
26. See Dames and Moore v. D. T. Regan, Secretary of the Treasury et al. 453 US 654
(1981); Chinkin, "The Foreign Affairs Powers of the US President and the Iranian Hos-
tages Agreement: Dames and Moore v. Regan" (1983) 32 I.C.L.Q. 600.
27. Readings included: E. Zoller, Peacetime Unilateral Remedies: An Analysis of Coun-
ter-Measures (1984); 0. Y. Elageb, The Legality of Non-forcible Counter-measures in
International Law (1988); Damrosch, "Retaliation or Arbitration-or Both?" (1980) 74
A.J.I.L. 785; Higgins, "Legal Responses to the Iranian and Afghan Crises" (1980) 74
A.S.I.L. 248; Corfu Channel (United Kingdom v. Albania), Merits I.C.J. Rep. 1949, 4;
Nicaragua v. US, Merits I.C.J. Rep. 1986, 14, 432-438; Schachter, "The Right of States to
Use Armed Force" (1984) 82 Mich. L.R. 1620; Sadurska, "Threats of Force" (1988) 82
A.J.I.L. 239.
28. Higgins, ibid; DeSouza, "The Soviet Gas Pipeline Incident: Extension of Collective
Security Responsibilities to Peacetime Commercial Trade" (1984) 10 Yale J. Int. L. 92;
Perlow, "Taking Peacetime Trade Sanctions to the Limit: the Soviet Pipeline Embargo"
(1983) 15 Case W. Res. J.I.L. 253, n.4; Doxey, "International Sanctions in Theory and
Practice" (1983) 15 Case W. Res. J.I.L.
29. Sadurska, "Foreign Submarines in Swedish Waters: The Erosion of an Inter-
national Norm", in Reisman and Willard, op. cit. supra n.1, at p.40; Delupis, "Foreign
Warships and Immunity for Espionage" (1984) 78 A.J.I.L. 53.
30. See e.g. W. Stevenson, 90 Minutes at Entebbe (1976); Boyle, "The Entebbe Hos-
tage Crisis" (1982) 29 Neths. Y.B.I.L. 32.
JULY1991] Dispute Resolution in International Law 539

self-help were analysed alongside consideration of a dispute where war


was regarded by both protagonists as the only response to an apparent
territorial dispute-the Iran/Iraq war.
Self-help covers a wide spectrum of unilateral behaviour and motiva-
tions, not all of which are legal31 or directed at dispute resolution. For
instance, the objective of self-help may be to punish a perceived wrong-
doer, to deter it from further wrongdoing, to retaliate for the initial act
or a combination of all these purposes, as in the principal case study
itself. Self-help could be restorative by aiming at a return to the status
quo ante. Humanitarian intervention as exemplified by the Israeli rescue
and attempted in the United States' military action in Iran is an illus-
tration of a special kind of self-help with the limited purpose of saving
threatened lives. Even this may be combined with other motives as in
the United States' overthrow of General Noriega in Panama in
December 1989.
Again, it was not the legality of such actions that was our focus but
their impact upon the continued course of the dispute. While self-help
measures may incidentally lead to a resolution of the dispute, that is not
normally their prime goal; indeed they may further the evolution of a
new dispute. In other situations self-help may be a direct factor in the
causal chain leading towards dispute resolution. For example, it may be
a coercive tactic designed either to put pressure on the adversary to
negotiate a settlement on terms favourable to itself or to submit to some
other recognised process of dispute resolution.32 In the hostages dispute
the measures taken by the United States in freezing Iranian assets
became part of the negotiations leading to the hostages' eventual
release. Measures of self-help may also be a signal that benefits will be
restored in proportion to the target's willingness to co-operate and thus
can foster a climate for settlement. Self-help may invoke the rule of
international law which is threatened by the disputed behaviour; its
function in this case is to prevent erosion of the rule which may provide
a standard by which the claims can be appraised. This was a Swedish
objective in its various reactions to the intrusions by Soviet submarines.
There is always a danger in the use of self-help that while measures
taken may lead to a final settlement of the dispute they are just as likely
to provoke its escalation.
An extreme form of self-help was the Iran/Iraq war, where a prime

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.

2. Global and regional organisations


Global and regional organisations provide both forums and mecha-
nisms for the resolution of disputes.34 The United Nations' dispute reso-
lution role is formally limited by its primary purpose: the maintenance
of international peace and security. The United Nations is given com-
petence when the Security Council, under Article 39, or the General
Assembly, under the Uniting for Peace Resolution, defines a dispute as
constituting a breach of the peace, a threat to the peace or an act of
aggression. States are not, however, precluded from referring a dispute

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

likely to endanger the maintenance of international peace and security


to the United Nations without such determination. The combined effect
of Chapters 6 and 7 and the exercise of the veto under Article 27(3) is
that the United Nations might not become seised of a dispute which is
not deemed likely to endanger international peace and security and
even serious disputes may be excluded from consideration for lack of
consensus in the Security Council.35 These limitations do not, however,
necessarily obstruct the United Nations' role where the political climate
encourages the organisation's active involvement in a particular dis-
pute.36 Formal resolutions of both the Security Council and the General
Assembly typically stress the need to cool the dispute and to diffuse the
crisis without directly addressing the grievances of the parties. They
typically call for such measures as a cease-fire, the withdrawal of troops,
the restoration of taken territory or the return of hostages, and for the
parties to enter into negotiations for real settlement, while other mem-
bers of the international community are urged to refrain from aggravat-
ing the situation. In extreme cases the United Nations can establish
peace-keeping forces, for example to oversee a cease-fire,37 to interpose
between belligerents, or to maintain law and order in disputed areas38or
to oversee democratic elections and transitions of power.39 Again, these
are directed primarily at maintaining or restoring order and disengage-
ment rather than at dispute resolution. They are devices which may be
used to create a climate for settlement of disputes rather than dispute
resolution mechanisms. A case study of the peace-keeping forces in
Cyprus between 1964 and 1989 was made to illustrate the changing but
continued role of the United Nations and the attitudes of governments
and citizens to their presence in disputed territory at different times.40
Not only do these resolutions tend not to address the real disputed
issues but they also refrain from labelling either party as a wrongdoer.
Such a label may prejudge the assessment of the legality of the actions
and be counterproductive for dispute resolution.41 However, where

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

or because a member of the region is in dispute with an outsider and


wishes an expression of regional support.46 States in the region might
fear that involvement of the United Nations with invocation of universal
law might be detrimental to their regional interests.47 The existence of a
regional organisation may provoke a regional dispute where it inter-
venes in the internal affairs of a member State.48 A class presentation
examined the role of the Organisation of American States and the
OECS in the American invasion of Grenada to illustrate these points.
Outside the established institutional frameworks specific disputes may
give rise to ad hoc regional responses based on a regional, cultural or
religious solidarity and the shared interests of a number of States in the
resolution of the dispute.49

3. Negotiation and third-partyintermediaries50


The mechanisms for dispute resolution discussed so far do not rely
directly upon the acceptance of the parties to the dispute,51 while the
use of third-party intermediaries is consensual.52 The disputants' will-
ingness to involve a third party may not be indicative of the chances of a
successful outcome, but nevertheless signifies that their positions are not
intransigent. From the perspective of dispute resolution the three cru-
cial aspects of third-party intervention are the choice of third party, the

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

timing of the third-party intervention and the functions ascribed to or


assumed by that third party.
The role of Algeria in achieving the release of the United States hos-
tages was used for discussion of all three factors.53Its work as intermedi-
ary created a face-saving process for both parties, the culmination of
which was the settlement in the form of a Declaration of the Govern-
ment of Algeria.54 As we had done throughout the course we used other
disputes to highlight and contrast aspects of the third-party dispute reso-
lution processes. The Algerian success and the factors contributing to it
were contrasted with the failure of the United States to mediate success-
fully in the Falklands/Malvinas dispute at the time of the sailing of the
British task force in April 1982. This discussion raised, too, the role
smaller powers can play in offering their services as mediators in con-
trast to that of the superpowers, and led to a consideration of the agenda
and motivation of such third parties.55 Another example that compared
arbitration and mediation was the Beagle Channel dispute between
Argentina and Chile. These States found recourse to mediation by the
Vatican56 more satisfactory than arbitration by judges of the Inter-
national Court, and discussion ensued on why this was so.57 Although
Argentina initially accepted neither decision the changes in the situation
by 198458made it amenable to signing the Treaty of Peace and Friend-
ship.59 This dispute again emphasises the importance of the choice and
function of the third party. The fact that the mediator was the Holy See
gave its proposals special authority with both Catholic countries.
Further, the representative chosen by the Pope was well qualified to
deal with this dispute-he had been papal ambassador to Colombia and
was highly regarded as the Vatican expert on South American affairs.60

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

61. Cf. Nicaragua v. United States, Merits, supra n.27.


62. Plunkett, "UN Fact-Finding as a Means of Settling Disputes" (1969) 9 V.J.I.L. 154.
63. See Bockstiegel, "States in the International Arbitral Process", in J. D. M. Lew
(ed.), Contemporary Problems in International Arbitration (1986).
64. Declaration of the Government of the Democratic and Popular Republic of
Algeria, Nullification of Sanctions and Claims, para.11; Hostages Agreement, Art.2,
para.1.
65. Cf. Rainbow Warrior, South Africa, Grenada, Chernobyl.
66. Incorporated in the Hostages Agreement.
546 International and Comparative Law Quarterly [VOL.40
considered in class presentations: the form of the agreements and the
extent to which the many aspects of the dispute had been dealt with by
the participants; the jurisdiction and composition of the arbitral tri-
bunal, and the jurisprudence of the tribunal with respect to expropria-
tion claims.67 In order to widen the examination of the operation of
international commercial arbitration we compared the expropriation
cases heard by the United States/Iran Tribunal with investment disputes
before the International Centre for Investment Disputes.68 The proce-
dural rules of each institution were analysed and (as in the discussions
on the inter-State Beagle Channel dispute) we concentrated upon the
choice of arbitration and arbitrators. The significance of the finality of
an arbitral award from the perspective of dispute resolution was also
raised. Where awards are challenged, for whatever reason, the effect-
iveness of the process is subverted.69

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

tion73 and issues of indispensable parties74 was evaluated. The conclu-


sion was reached that the Court can play only a limited role in the reso-
lution of multipartite disputes.75 The Court is more effective in bilateral
disputes submitted to it by special agreement. These restrictions were
further exposed by Nicaragua's case against Honduras, which amounted
to round two of the same dispute.
The same predilection to distil the narrow legal dispute from the
wider situation has led the Court to reject claims of inadmissibility based
on the alleged political character of the dispute.76 In the Hostages Case
Iran claimed that the Court "cannot and should not take cognisance of
the case" as submitted by the United States government and confined to
the detention of the hostages. "For this question only represents a mar-
ginal and secondary aspect of an overall problem, one such that it can-
not be studied separately.""77 Similarly, in Nicaragua v. United States this
time the United States argued, inter alia, that ongoing disputes concern-
ing the use of force are not appropriate for adjudication but, rather,
should be dealt with by political processes. Of course adjudication
allowed a neutralisation of the superpower status of the United States,
which would not occur in a political arena.

7. Request for an advisory opinion


Requesting an advisory opinion may perform dispute resolution func-
tions. By bringing in international organisations and involving the inter-
national community it may prevent intensification of a dispute by
clarifying legal rights and duties.78 Advisory opinions have been used by
the organisations to bolster their own authority and autonomy and
widen their participation in dispute resolution processes. The fact that
advisory jurisdiction does not directly depend upon the consent of
States may facilitate authoritative clarification of the law and thus con-
tribute to the resolution of a dispute. But the opposite may also be true.
Precisely because the States most closely concerned have not consented
to the request, the effectiveness of the advisory opinion may be weak-
ened and the articulation and publicity of the request may exacerbate

73. Under Art.62 or 63 of the Statute of the ICJ.


74. Cf. Damrosch, "Multilateral Disputes in the International Court of Justice", in L.
Damrosch (ed.), The International Court of Justice at a Crossroads (1987), p.376.
75. See Chinkin, "Third-Party Intervention Before the International Court of Justice"
(1986) 80 A.J.I.L. 495; Rogers, Beat and Wolf, "The Application of El Salvador to Inter-
vene in the Jurisdiction and Admissibility Phase of Nicaragua v. United States" (1984) 78
A.J.I.L. 929.
76. Gordon, "Discretion to Decline to Exercise Jurisdiction" (1987) 81 A.J.I.L. 129.
77. United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Merits
I.C.J. Rep. 1980, 3, 8 (judgment of 24 May).
78. E.g. Interpretationof the Agreement of 25 March 1951 between the WHO and Egypt
I.C.J. Rep. 1980, 73 (adv. op. 20 Dec.).
548 International and Comparative Law Quarterly [VOL.40
the dispute or be counterproductive.79 Furthermore, the need to frame
the question to the Court in legal terms may once again reduce the situ-
ation to bare formulae susceptible to judicial management and conse-
quently the relevant context may be ignored.80
The use of advisory jurisdiction as a dispute resolution process is pre-
dicated and contingent upon respect for the authority of international
law and the Court. It depends also upon being able to present the ques-
tions to the Court in a meaningful form which reflects the reality of the
situation. The limited use of this method and the lack of successful out-
comes suggest that neither of these elements is often sufficiently pres-
ent.

V. OUTCOME AND EVALUATION OF DISPUTE RESOLUTION


PROCESSES

IN evaluating the dispute resolution processes we concentrated upon


two aspects: the outcome of a particular dispute and appraisal of the
methods used. In determining the outcome we had to ask several ques-
tions: how do you decide when a dispute is over? How do you appraise a
dispute that persists for many years, at times stagnant, at times erupting
into crisis?81How do you determine a successful conclusion? What are
the criteria for a successful outcome and from whose perspective? A
number of factors made the answers to these questions complex. Some
disputes evolve into other disputes; the presenting issue may be resolved
but the situation continues unchanged, so resolution is only apparent;
the parties' goals in the dispute resolution process may not have coin-
cided, causing disparate perceptions of when (or even if) the dispute is
terminated; further, the organised international community on the one
hand, and individual third States on the other, may have still different
goals pressing for an apparent solution.
The withdrawal of Soviet troops from Afghanistan pursuant to the
Geneva Peace Agreements82 formed the basis for discussion of these
complex questions. In particular we attempted to determine whether

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

OURconclusions relate to curriculum development in law schools as well


as to the functioning of the international legal process. A number of law

83. A prime example is the Iran/Iraq war.


84. UN Convention on the Law of the Sea, Part XV, Annexes V-VIII; Adede, "The
Basic Structure of the Disputes Settlement Part of the Law of the Sea Convention" (1982)
11 Ocean Dev. & Int. L.J. 125.
550 International and Comparative Law Quarterly [VOL.40
schools in Australia and the United States have introduced courses on
dispute resolution. These form a welcome addition to the traditional
curriculum but one must realise that this approach marginalises dispute
resolution and separates it from the mainstream subjects. The practical
consequence is that a small number of students select this subject
towards the end of their legal education with little time for rethinking
what they learnt in substantive law subjects in dispute resolution terms.
Our experience suggests that dispute resolution could usefully be incor-
porated into all subjects, as well as forming a separate final year option.
It can provide a different perspective for the examination of the forma-
tion and operation of substantive legal rules. Yet many such rules are
taught through an examination of the decided cases-which are, of
course, disputes. This might require a considerable effort in rewriting
teaching materials and rethinking teaching methodology and would
necessitate recourse to non-legal materials. Access to such materials
may be difficult, and their management problematic for people accus-
tomed to legal research. For example, much of the information needed
for examination of these disputes was acquired from such publications
as The Economist, the Far Eastern Economic Review, the Guardian
Weekly, national newspapers, press releases and statements from
foreign affairs departments. But the high level and quality of student
participation in class and through their research paperss5 and their
enthusiasm for the course that we experienced made the experiment
well worthwhile. The importance of studying dispute resolution pro-
cesses and conflict management on both the domestic and international
planes within law school curricula cannot be underestimated. At least
they can illuminate the dynamics of disputes and the impact upon them
of varying legal and extra-legal processes; at most they can contribute to
more effective and lasting methods of resolving conflict.

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.