Rethinking International Dispute Settlement: Norm Fatigue in a Coercive Hegemonic System

[Saumya Kaushik is an LL.M. candidate in International Law at the Geneva Graduate Institute, focusing on international dispute settlement and compliance mechanisms.]

Often the discourse on international dispute settlement lays emphasis on the choice of forum; i.e., whether States should resort to legal means of dispute settlement or diplomatic means of settlement. As Marcelo Kohen identifies, these are two sides of the coin (a) resort to adjudication or (b) bilateral settlement. The red line between them being the absence or presence of legal character, or so is the tendency to simplify.

Georges Abi Saab observed that:

“the possibility or threat of going to court, when such a possibility exists (in terms of competent forum and jurisdictional title) will always be lurking at the back of the minds of the negotiators and affecting, whether consciously or not, their strategies and choices.”

However, what happens when the possibility of legal recourse stops being a threat? The current axis of international relations might paint this question in the minds of many. To understand the fallout of current geopolitics, amidst “mini-wars” between Russia-Ukraine, Israel-Palestine, and most recently the outright abduction of Venezuelan President Nicolas Maduro by the United States, we must map the genetic makeup of a dispute, the choices in its resolution and what a shift in perspective would entail.

This article posits that as hegemonic coercion erodes good faith in diplomacy, international law must shift from privileging negotiation to embracing adjudication as a strategic tool. The article moves from questioning primary reliance on diplomatic settlements, to demonstrating how hegemonic coercion causes norm fatigue. It makes a case for legal adjudication as tool for reputational defence, diplomatic leverage, and collective action, concluding that adjudication must be reimagined as an active response to power asymmetry.

The Vilification of the Adjudicatory Shadow

To follow the discourse by Prof. Abi Saab, the threat of going to courts operates as an invisible constraint on state behaviour i.e. negotiation strategies as well as its outcomes are seen as a variable factor; affected by legal adjudicatory recourses.

In the Free Zones case, the PCIJ laid the dictum that “judicial settlement is a succédané to the direct and friendly settlement of dispute.” The behavioural tendency is to view judicial settlement as the next best option, an option with an opportunity cost of forgoing pacific settlement of dispute.

This tendency is captured in the General Assembly’s Manila Declaration as well. Article 33 of the UN Charter lays down the different means of dispute settlement. Though it does not specify a hierarchy, it does emphasise on the use of “other peaceful means” as chosen by the parties. Similarly, the Manila Declaration stresses that “States should, without prejudice to the right of free choice of means, bear in mind that direct negotiations are a flexible and effective means of peaceful settlement of their disputes.”

Further, majority of compromissory clauses in treaties provide that parties undertake measures for pacific settlement of disputes and attach conditions for prior negotiation as a fortiori for bringing the dispute. Illustratively, several conventions such as the Convention on the Elimination of All Forms of Racial Discrimination, Convention Against Torture, contain clauses requiring settlement by peaceful means as a precursor for bringing a claim.  This notion of ‘colling-off’ period, as clarified by the ICJ in Georgia v. Russian Federation, requires a genuine attempt to negotiate and pursue these negotiations as far as possible, before seisin of the court.

However, this pre-condition has also drawn its share of criticism. Sir Robert Jennings, commented that using the term ‘pacific’ insinuates that “going to court is as momentous and extreme a decision as its ‘non-pacific’ alternative of going to war.” This pre-requisite may seem to many as a natural choice of what international instruments should strive for, i.e. resolve the dispute before it escalates to be considered by legal adjudication. Sir Elihu Lauterpacht captures this scepticism, stating that the first rule of international litigation is that international litigation should be avoided. And that even if it is avoided, its shadow lurks in the minds of negotiators, as put by Prof. Abi-Saab. 

The question that arises is whether we are at a juncture where States would prefer strategic alternatives, given the present futility of negotiations and conciliations.

The Shadow Inversion: A Response to Norm Fatigue

The Second Trump Administration indicates a shift in diplomatic settlement of disputes by States. There is a palpable norm fatigue being experienced by States. Precisely, the second Trump Presidency ushered in with it unilateral tariffs; a turnberry system of trade which is hallmarked by asymmetric trade agreements such as the recent ones with Malaysia, and the EU; blocking of humanitarian aids, and more to recount and still counting. A culmination of these absurdities is the situation in Venezuela or the intended acquisition of Greenland by the USA. 

This is the nadir where international law practitioners and scholars must rethink the academic preference of negotiations and treating adjudication as a last resort measure.

Negotiations and pacific settlement of dispute presuppose a crucial facet of good faith. A negotiation will be a more lucrative option for States only when there is a presumption of good faith reciprocity. In a coercive hegemonic system, this critical assumption of observance of good faith erodes. Such shifts highlight how legal adjudicatory processes have more to offer than they cost.

1. Legal Adjudication as Reputational Defence

The very act of initiating a claim signals legitimacy and a sense of wrongdoing suffered by the Applicant State. This forces the other State to provide some defence, no matter how legally accurate, to justify their actions. For instance, the initiation of claims by Ukraine against Russia, helped reframe the conflict from a purely political one to having a legal character. Although Russia abstained from appearing at the provisional measures hearing, it nonetheless engaged with the ICJ proceedings through written submissions, including preliminary objections and later written phases.  Initiation of legal adjudication forces the State to deploy some legal arguments and if it does not do so, it only strengthens the legitimacy of the Applicant State and reinforces their victimhood. Brewster terms this as “procedural signalling function” of international adjudication, where States submit claims not for the end of winning but for the means to legitimatise their claims and standing in the conflict. Further, even if the award or final judgment is denied by the Defendant State, it forms a legal basis for imposition of sanctions and diplomatic isolation, thus giving such adjudicatory processes a multiplier effect. 

2. Legal Adjudication as Diplomatic Leverage

States may also bring legal proceedings in order to leverage political and diplomatic recognition of their rights. For instance, the PCA South China Sea Award, where even though China rejected the award, it still marked a win for Philippines as an international tribunal recognised their maritime jurisdiction over contested parts of the South China Sea and rejected claims of ‘historic rights’ made by China on legal grounds. Such adjudications, even though do not lead to enforcement, provide forum visibility and in this case, allowed Philippines to anchor political and legal recognition of its claims. Had Philippines resorted to negotiations and mediation, the power asymmetries and contention impasse would have made it impossible to reach any positive dictum on the issue. 

3. Legal Adjudication for Collective Action

Another recourse is what is known as a ‘class action suit’ in international law. This refers to erga omnes claims or erga omnes partes claims, essentially obligations that a State owes to the international community as a whole or to all States party to the treaty. This allows for non-injured States to bring claims against the non-compliant State, granting a universal standing. Article 42 of ARSIWA provides the right of an injured State to bring a claim and Article 48 positions the invocation of responsibility by a State other than an injured State. This recognition of locus standi erga omnes has been recognised by the ICJ in the Barcelona Traction Case, Belgium v. Senegal, Gambia v. Myanmar and more recently in South Africa v. Israel.

There has been an uptick in erga omnes claims before the ICJ in the recent years. There has been an increase in formal interventions of States under Article 62 of the ICJ statute which allows for interventions by States that have interest of a legal nature, with the Ukraine v. Russia Genocide case seeing a record 30 States intervening in the matter.

Such “class actions” in international law are useful means of collective manoeuvring and collective leverage, especially in a phase of coercive hegemonic dominance. This also has tangible consequences. Take for instance, the WTO Appellate Body Crisis . In response to the USA paralysing the WTO Appellate Body by blocking new appointments, more members have taken resort to the Multi Party Interim Appeal Arbitration Arrangement [“MPIA”] under Article 25 of the WTO Dispute Settlement Understanding, which allows for arbitration as an alternative means of dispute resolution. Till date there are 57 WTO members, including major economies like the EU and China, as participants in the MPIA system. The MPIA has been invoked in 12 dispute settlement proceedings of which a final award has been issued in 3 disputes. Thus, the MPIA can be seen as a collective response to the paralysis caused by hegemonic inaction and signals the importance of collective manoeuvring.

Conclusion

Paradoxically, in times of conflict, adjudication is seen as a lethargic resort in international relations. However, the above considerations highlight that adjudication is a sum of its means and not an end in itself. If leveraged skilfully, legal processes unearth opportunities of collective innovation, reputational repairs and a refuge of legitimacy to inform further action. Perhaps, it is time for challenging the normative fatigue and get creative with what international legal processes could offer in the backdrop of hegemonic disruption.

Photo Attribution: “Netherlands-4540 – International Court of Justice” by Dennis G. Jarvis is licensed under CC BY-SA 2.0