17 Apr When and Why States Use International Arbitration
One of the enduring puzzles for international law and international relations scholars is determining when and why states resort to international dispute settlement and when and why they don’t.
Last week, a tribunal constituted under the Permanent Court of Arbitration issued a decision delimiting the maritime boundary between Barbados and Trinidad & Tobago, thus (partially) settling a long-time dispute between the two island nations over rights to undersea development, including undersea gas drilling rights. (see below in related posts for links to the award and here for a brief news summary)
On the other side of the world (but in a very similar type of dispute), China announced it will ban foreign ships from entering a zone where it is pursuing undersea gas drilling. This zone is in the “exclusive economic zone” of both China and Japan and both countries are supposed to be negotiating some sort of joint development agreement in the absence of a maritime boundary. Like Barbados and Trinidad & Tobago, international arbitration is available but there seems zero likelihood of either China or Japan seeking such a solution.
Why not? Is it because of the size and power of the countries involved? Or their distrust of international tribunals (neither country, as far as I know, has ever been a party to a case before the International Court of Justice, for instance)? Or something else?
Too often, international lawyers simply assert that states should comply with international rules and seek resolution from international dispute mechanisms. But the more interesting question is why do states bother sometimes with international institutions and why they sometimes don’t. have to admit that I don’t know, but any halfway persuasive theory of international law needs to offer an answer to such a puzzle.
I wholeheartedly agree with the importance accorded such questions in light of any pretense to a ‘persuasive theory of international law.’ We might get some sense of how answers will be elicited and possibly what kinds of answers could be forthcoming if we are clear as to the theory or model invoked: rational choice theory, systems theory, game theory, evolutionary psychology, cognitive (choice?) psychology, social norms, Wittgensteinian ‘practices,’ and so forth and so on. In addition, it helps to know if the researcher is predisposed to either ‘quantitative’ or ‘qualitative’ methods, or is committed to eclecticism of some sort, or has a preference for or against, for example, ‘methodological individualism.’ Are the answers of a diachronic or synchronic sort, or both? The researcher’s stance (beliefs, assumptions, presuppositions) toward prominent and lesser debates in legal theory, economics, and international relations (positivism, realism, etc.) are important. Similarly, one should be frank as to which grand historical narrative of international law one finds compelling (say that of an Allott or a Koskenniemi, for instance). And understanding what it means to subordinate methodological tools (or simply ‘methods’) to the problem at hand is no mean achievement. Clarity on such matters prior to attempts to… Read more »
One also wonders why international arbitration is the preferred means of dispute resolution for resolving international disputes involving sovereign nations. As I am fond of telling my students in Alternative Dispute Resolution, lawyers should opt for a particular type of dispute resolution system because the costs and benefits fit the concern of a particular context. So what is it about arbitration that makes it the norm in this context? Maybe litigation is out because of the problems with a home field advantage and/or enforceability of arbitration awards? But what else is lost – particularly for those countries trying to develop their internal rule of law systems? But beyond this, why are we not considering other types of dispute resolution? What about structured mediation? What about negotiation beyond pure power politics? Are there in fact ways that states can structure their dispute resolution systems (say a hybrid method like med-arb or arb-med) to try to get the most efficieincy and greatest value out of the dispute resolution system?
Apologies for asking for questions than I answer, but it is something I’ve been thinking about lately in the context of investor-state dispute resolution.