As remarked by Sepúlveda-Amor (2010), the rise of “third party adjudication” as a means of solving inter-State and other international disputes has become a characteristic feature of the recent international law developments (2010, p.7). However, traditionally, the solution of international disputes has proceeded through the medium of inter-State diplomatic negotiations, which makes the relationship between the latter and judicial settlement methods rather problematic or even antagonistic. In this paper, the preferability of traditional diplomatic methods in comparison with the international judicial settlement techniques will be argued. Socio-legal and comparative approaches to legal studies shall be used in dealing with this issue, so that to enable the multifaceted perspective thereupon.
Diplomatic Negotiations and Judicial Settlement from the Socio-Legal Viewpoint
The socio-legal approach to international law is ultimately predicated upon the socio-legal theory, or a social theory of law. As presented by, among others, Tamanaha (1997), socio-legal studies may be defined as “a group of disciplines that applies a social scientific perspective to the study of law” (1997, p.2). Within the particular context in question, socio-legal studies may encompass such interdisciplinary fields as “sociology of law, legal anthropology, legal history”, and other similar research directions (Tamanaha 1997, p.2).
As for the application of socio-legal approach in the international legal studies, one may argue that the former would be predicated upon the view of international law as a complex action system forming an integral part of the social whole it relates to (Kawaguchi 2003). In particular, Kawaguchi (2003) presents a socio-legal interpretation of the possibility of a “legal settlement by means of a value judgment of a dispute that has shifted from real-world level (conflict) to the verbal level” (2003, p.104). Defining conflict as a “real-world opposition, incompatibility, or confrontation” arising between “two or more parties” with respect to their “interests, roles, symbols, law”, Kawaguchi contrasts it to a dispute as “an act in which the parties to a conflict contend over value judgment by means of logic” (Kawaguchi, 2003, p.104). Hence, the importance of international law is based on its character as a symbolic “basis of authority” upon which all such arguments may be based.
Thus, the problem of the possibility of adequate translation of the conflict to a dispute would present itself. Kawaguchi (2003) solves it by maintaining that “the arguments of the parties to a dispute do not always correspond exactly to underlying conflict” (2003, p.104); or, to simplify, it may be argued that the parties do not often wish to disclose their intentions and motives when engaging in the international dispute. Thus, there is a discrepancy between the parties’ stated and real intentions in each international dispute, making it difficult to evaluate their motivation.
Furthermore, the use of third-party judicial settlement methods is inherently limited by the fact that the majority of the international judicial institutions are themselves not safeguarded from the impact of the politics of national interest. The international court, such as International Court of Justice (ICJ), may be “independent third party in a systemic sense” (Kawaguchi, 2003, p.109), but as a working body it is inexorably subjected to competing influences of the nation-states that send their nationals as judges thereto. As noted by Kawaguchi (2003), there were only two recorded examples as of 2003, when the ICJ judges ruled concurrently in opposition to their home governments’ opinions (2003, p.109).
The World Trade Organization (WTO) dispute settlement system may serve as an example of the ambiguities of the third-party adjudication system of the trade dispute resolution. According to Reynolds (2009), the Dispute Settlement Body (DSB) which is comprised of the WTO member states ambassadors effectively acts as a liaison body between the nation filing a complaint and a defendant government (2009, p.194). The first stage of trade dispute settlement takes the form of consultation among the parties that is supervised by the DSB. If the consultations may fail, the DSB panel should be formed from the third-nations’ government and non-government legal experts to solve the dispute. Significantly, the pre-1994 legal settlement allowed the defendant to effectively block the panel’s proceedings, making them a rather ineffectual instrument. However, the present WTO procedure increased the panel’s enforcement powers, while still making its proceedings subject to concurring interests of various parties thereof (Reynolds 2009, p.195).
Thus, in practice, the third-party arbitration system such as that employed by WTO is, paradoxically enough, closer to the true inter-party negotiations’ system. Wolfe (2005) proposed to regard the WTO trade dispute settlement not as a court of arbitration-style legal framework but as an international economic lawmaking environment that provides space for the individual parties’ incentives and establishes the principles of a trade law that is ultimately “shaped in the shadow of bargaining” (Wolfe 2005, p.339). Hence, a socio-legal perspective on international trade dispute settlement would proceed from the assumption of fictitiousness of the third-party principles, as all actors participating in the dispute settlement are actually independent parties with their particular stakes therein.
A Comparative International Law Perspective on International Trade Dispute Settlement
Following Yu (2002), it is possible to contrast the international lawmaking perspective, which is centred on the notion of universally applicable dispute settlement norms and rules, with a comparative perspective which emphasizes the need to adapt the international legal procedures to the respective local and regional contexts. In particular, Yu (2002) argues that “by requiring countries to adopt “universal” standards, international lawmaking might deprive less developed countries of the ability” (2002, p.2) to place international law procedures within their particular legal system’s contexts. This is particularly evident from the example of intellectual property rights disputes between the developed and developing nations (Yu 2002), as well as from the so-called “development disputes” (Broude 2010), which emphasize the disparity of the interpretation of the same legal rules by various parties. In such situation, the effective use of the third-party adjudication (judicial settlement) may become problematic.
Furthermore, as observed by Keohane, Moravcsik, & Slaughter (2000), both legal systems and exact rule of law situation in the nations sending their representatives to the international courts of arbitration and similar panels are scarcely compatible to enable the efficient inter-State legal process. In particular, the various degrees of political interference in the court proceedings by the nation-states sending their representatives thereto may contribute to the breakdown of the judicial process under consideration, as the parties would lack a common legal framework to agree upon. In this way, the authors for the development of a truly transnational court litigation procedures (Keohane, Moravcsik, & Slaughter 2000); however, given the anarchical state of the modern international system, such development may scarcely be plausible.
The problems inherent in the notion of ‘universal’ commercial arbitration would be evident if the problems faced by the developing nations in this respect were researched to a greater depth. Asouzu (2004) explores the case of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards as the case of the obstacles presented by the attempt to enforce the application of specific international commercial arbitration principles within the African legal context. Apart from the general issue of non-ratification of the Convention by 26 African states, including such major regional nations as Angola, Ethiopia and Sudan (Asouzu 2004, p.187), such issues as the very definition of a commercial transaction (2004, p.194), the frequent implementation of the Model Law in the former British colonies, with its characteristically wider framework for defining the scope of applicability of arbitrary awards (2004, p.196), and the ambiguity of ‘public policy’ option both in the New York Convention itself and in the African countries’ national legislation (Asouzu 2004, pp.200-201) would lead to significant conundrum that would preclude the effective recognition of the third-party arbitration proceedings in several of the African nations under consideration. Thus, it would appear as if the use of judicial settlement in this case were to be overridden by the need for specific negotiations between the parties affected.