Bellinger: Lecture on International Dispute Resolution at the World Legal Forum

We noted earlier this week, the speech John B. Bellinger, III (Legal Adviser, U.S. Department of State) delivered at the Oxford Prisoners in War conference on Monday. Earlier that same day, in The Hague, Bellinger delivered a lecture on international dispute resolution at the World Legal Forum. Here's an excerpt:

The United States has particular reasons to seek peaceful and effective international dispute settlement. Few if any international disputes do not have an impact on our security, humanitarian, and economic interests. Thus, we rely heavily on international institutions and international law to find peaceful and effective resolutions to conflicts and disagreements.

But we also believe that successful dispute resolution requires that states be active and politically engaged in seeking a settlement. That is where I want to focus my remarks today. It is not enough to turn over a problem to international organizations and hope that after a time, a solution will emerge. Such formal resolution mechanisms have a vital role to play, and can be a decisive factor in resolving disputes. But especially in the most serious crises, there is no substitute for the application of political will and energy by states.

With respect to dispute resolution mechanisms, the United States has typically taken a pragmatic approach—using such mechanisms where they fit the problem and can advance the parties toward a resolution. Moreover, no one mechanism of dispute resolution is inherently superior to another. The United States has made use of a wide range of mechanisms—some within existing institutional frameworks, others wholly ad hoc—to try to address the critical peace and security problems of our time. In this respect, we have wholeheartedly embraced the perspective of Article 33 of the UN Charter, which suggests an array of resolution mechanisms to disputing parties.

Consistent with this approach, the United States has resorted to international courts and tribunals where they are likely to be most effective—for example, where they are tasked with enforcing a fairly specific set of obligations. This is evident in the United States’ strong support for the World Trade Organization, which has a dispute settlement mechanism tailored to address trade issues. In the last dozen years, the US and the EU have managed to resolve a number of trade disputes through the WTO—some affecting critical industries and involving billions of dollars, without resort to a damaging trade war.

Courts or tribunals can also be tailored to address specific political or security problems. Indeed, the very act of establishing a tribunal can take a particular issue off the table and make resolution of a broader dispute easier. The Iran-US Claims Tribunal, based here in The Hague, was created as part of an arrangement that resolved a major crisis and led to the release of the U.S. hostages. In a different vein, the Permanent Court of Arbitration, also here in The Hague, has provided a mechanism for states to reduce conflict by allowing resolution of disputes on an ad hoc basis.

More recently, the United States has firmly backed the Special Tribunal created, in accordance with UN Security Council Resolution 1757, to bring to justice those responsible for the murder of former Lebanese Prime Minister Rafik Hariri and others. Although deference to a state’s internal legal process is the norm, this was a case where that process was itself subverted by threats of violence and terrorism. We strongly hope that the Tribunal will ultimately punish those responsible for the assassinations and put to rest the resulting civil discord. And we also owe a note of thanks to the Dutch, who have kindly agreed to host the Special Tribunal.

By contrast, we have found it more difficult to reach political consensus for a single tribunal covering all manner of international law disputes. The International Court of Justice was meant to serve as the ultimate arbiter of most international law issues affecting the UN Charter. Although it has not achieved this lofty and difficult aspiration, we believe the court can play a constructive role in resolving international disputes. To be sure, the United States—like many countries—does not accept the mandatory jurisdiction of the ICJ. But we have nevertheless turned to the ICJ to address a number of disputes, including a longstanding boundary issue with Canada and Iran’s takeover of our embassy in Tehran in 1979. These cases allowed the ICJ to do what it does best: resolve a concrete dispute in light of well-developed international law.

We believe, however, that some look to courts and tribunals for more than they realistically can deliver, because they somehow regard them as the most authentic source of international law. Efforts to lure international courts and tribunals into choppier political waters can often prove embarrassing to those bodies. Justice Holmes of our Supreme Court once said, “Great cases, like hard cases, make bad law.” This is especially true of inherently political cases, which can strain the legitimacy of international legal institutions and undermine the capacity of those institutions to contribute to effective dispute settlement. A notable example is the ICJ’s advisory opinion process, which allows the court to opine on matters without full participation by all disputing parties and tends to cast the court in the role of arbitrating political conflict.

Despite these concerns, the United States believes that an effective ICJ is invaluable to advancing the rule of law and encouraging the peaceful settlement of international disputes. That commitment is evident in the Avena case, which President Bush has determined to enforce by instructing our states to provide new hearings to the 51 foreign nationals covered by the ICJ
order. This has been deeply controversial in the affected states, and there has been strong resistance to the President’s actions. But we remain committed to complying with the ruling, and have asked our Supreme Court to give full effect to the President’s decision.

But I want to leave international courts and tribunals to the side for now, and focus my remaining time on other mechanisms of dispute settlement. Most international disputes do not end up in court. Instead, they are managed by the international community, and often resolved, through many other formal and informal mechanisms. One such mechanism is the process of consultation and confidence-building that can prevent mutual suspicion from developing into full blown disputes. Another is the ongoing monitoring and negotiation, which can help resolve a dispute that has already taken concrete shape. The distinctions between these mechanisms of dispute settlement are not always clean: a single international institution might engage in each of these forms of dispute settlement, depending on the nature of the problem. But we believe these various mechanisms are different tools in the lawyer and policymaker’s toolbox, and which one is best typically depends on the problem to be solved. . . .

International disputes can be handled through formal or informal frameworks of negotiation and mediation. The United States supports many organizations that offer formal frameworks for resolving disputes at an early stage. US border issues with Canada and Mexico have long been managed by international commissions, which address not only issues related to the actual borders, but also water use, navigation, and environmental disputes. In addition, the United States has supported the work of the NAFTA Free Trade Commission in addressing trade-related disputes through non-binding mechanisms before those disputes reach arbitration.

But we believe that informal negotiation and mediation—where states must engage and real political effort must be expended—are often the best way to address the most serious international disputes. Such disputes never invite neat solutions, and effective settlement is mainly a political problem. . . .

In closing, I wish to reiterate that the United States is firmly committed to UN Charter principles for resolving international disputes peacefully. We are not wedded to any particular theory of how that should be done. Instead, we believe in a pragmatic approach, and believe in the need to rely upon whatever mechanism can best reduce, manage, or resolve disputes. International law—the Charter in particular, with its purpose of “maintain[ing] international peace and security”—expects states to do exactly this.