International Dispute Settlement and the Role of International Adjudication

Abstract

This article presents an overview of the general characteristics, advantages and disadvantages of international adjudication, including arbitration and judicial settlement.

The article first questions whether adjudication is necessary for effective legal order, noting that: (1) even in national legal systems most disputes are settled, if at all, in other ways than by formal court decision; (2) national legal systems may, in any case, not be an appropriate model for the international legal order; and (3) the character of international tribunals is, in any event, very different from that of national legal systems.

The article then suggests some advantages and disadvantages of international adjudication as compared with other dispute-settlement techniques. Some possible advantages of adjudication are that it is (1) positive; (2) impartial; (3) principled; (4) authoritative; (5) impersonal; (6) serious; (7) orderly; (8) may reduce tensions and buy time; (9) precedential and may help develop law; (10) system reinforcing. Some possible disadvantages of adjudication are that it: (1) involves the chance of losing; (2) is unpredictable; (3) may not be impartial; (4) involves imposed settlement; (5) may involve illusory or superficial settlement; (6) is adversarial and potentially escalating; (7) may freeze the dispute and the parties’ options; (8) is inflexible; (9) is conservative; (10) may be inconvenient and costly; (11) may be too precedential; (12) may be ineffective; and (13) may be used for propaganda or harassment purposes.

The article concludes with a discussion of some advantages and disadvantages of adjudication by a permanent court in contrast to ad hoc arbitrators, of the role of international adjudication in international governance, and of U.S. policy concerning the role of the International Court of Justice and other international adjudicatory tribunals, suggesting reasons why the U.S. should support the Court and a strengthened role for international adjudication.

This article is reprinted in M.E. O’Connell, INTERNATIONAL DISPUTE SETTLEMENT (Ashgate/Dartmouth 2003), Chpt. I (Library of Essays in International Law). A companion article by the author in “an Overview of International Dispute Settlement” appears in the Emory Journal of International Dispute Settlement, Vol. 1, No.1, (Fall 1986), pp. 1-32.

Keywords: international dispute settlement, international dispute management, international tribunals, international courts, international adjudication, international court of justice, international law, U.S. foreign policy, U.S foreign relations

JEL Classification: K40, K42