Resolving conflicts between states
In the event of disagreements between states, a tribunal or arbitration may offer a solution. International dispute settlement is a relatively new but fast-growing field within law, Professor Eric de Brabandere explains. Inaugural lecture 23 February.
It sounds like a practice-oriented subject, resolving international disputes. How academic is the subject?
‘Until thirty years ago it was indeed very practice-oriented: you had the law, you had a particular situation and you applied the law in that situation. That's what mediation was. But, because it has been applied more and more frequently, the number of decisions taken in disputes - like the number of tribunals, courts and other mediation bodies - has also grown. This warrants a critical analysis of the situation or academic research that will examine how tribunals relate to one another, how you could make better use of arbitration or the International Court of Justice, or whether this depends on the type of conflict, whether you can impose interim measures on states while a dispute is ongoing, etc. etc.’
‘It's probably something of a chicken and egg discussion: do we regard it is an academic discipline because it has grown so much, or are we seeing this enormous increase because we have been studying it? These two aspects are two sides of the same coin.'
Is international dispute settlement not just more of a political or diplomatic eventuality than a legal discipline?
‘Of course, it is always a political eventuality, because it's about states. A state has to give its consent to engage in international dispute settlement by a court or via arbitration, so that is a political decision. But what we see is that more and more states are prepared to do that. It's increasingly regarded as one of the ways in which international law is practised and therefore is a part of international law.'
‘When states agree to a particular treaty, they are in some instances also obliged to accept dispute resolution by a court or tribunal. Countries that want to join the World Trade Organisation (WT), for example, have to agree that in the event of a conflict about international trade they will let this be resolved by a WTO-affiliated dispute council. Being a member thus means accepting the legal authority of the system.'
Is there enough 'material' to carry out scientific research? There aren't that many international disputes, are there?
‘In the WTO alone in the 22 years that the organisation has existed, some 500 disputes have been dealt with. And it is a practice that is growing. Of course, not all sensitive - armed - conflicts between states, such as those in Iraq or Syria, will be mediated by a court. That will not change. But there are some areas where it keeps on increasing, such as international trade or conflicts between states and investors that are decided via arbitration before the Permanent Court of Arbitration in The Hague, or the International Centre for Settlement of Investment Disputes in Washington. There have been 800 such cases over the past 20 years. And sensitive conflicts are referred the International court of Justice more often, such as the situation between Russia and Georgia, and between China and the Philippines about the China Sea.'
‘There are two reasons for this increase in the use of international dispute settlement. First of all, the 'egotistical' approach taken by states: it is impossible to do without dispute mediation in a trade agreement or investment, for instance. If you don't go along with this, you are automatically putting yourself outside the international trade community. Secondly, there has been a change in mentality within states. Resolving a dispute in court or via arbitration is becoming more and more acceptable. This turnaround came about after the end of the Cold War. At that time of stalemate between states, legal realism was the order of the day. Minor legal disputes could be brought before a tribunal, but everything that affected the importance of the state had to be resolved politically. Since the end of the Cold War, this idea has been losing ground in favour of international dispute settlement. The advantage is that it brings greater tranquility and stability, as well as other benefits.'