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RESOLVING INTERNATIONAL



CONFLICT

THROUGH ADJUDICATION

In the history of international politics since 1919, we have identified the proce­dures used for handling different crises and conflicts, and, in the case of the United Nations, some disputes and colonial conflicts as well. Of those that were controlled or settled by peaceful means, a large majority employed the proce­dures of formal negotiations and the services of international organizations. During the 1920s, at least eight conflicts were resolved by plebiscites or nonjudi-cial League awards. But what of judicial procedures? To what extent have govern­ments turned to the International Court of Justice as an avenue for resolving conflicts or disputes? If we maintain our definition of conflict—a situation involv­ing incompatible collective objectives between two or more governments—then the ICJ and its predecessor, the Permanent Court of International Justice, have resolved or helped to resolve only five such situations between 1921 and 1980 (see Table 15-4). Of the 156 attempts to resolve the conflicts and crises, only eleven, or 7 percent, were made through courts. If we look at the record of the ICJ we see that it has considered fifty-two cases (excluding advisory opinions) between 1946 and 1975; of these, only three involved conflicts. The remainder would be classified as disputes, involving relatively minor issues between nor­mally friendly states, cases in which the interests of private citizens, rather than collective national goals, were at stake.

Explanations for this relatively meager record lie in the nature of the Court's jurisdiction, which is based on the principle of voluntarism, on the charac­ter of award-type outcomes, on certain attitudes of governments toward contem­porary international law, and on the fact that the Court is not expected to deal with issues with a high political content. Before the Court can hear a case— and the case must concern only legal problems—both parties have to agree to the Court's jurisdiction. A government that knows it has only a weak legal posi­tion in a contentious situation will probably not agree to this method of conflict resolution, because under it, there can be only a winner and a loser. Compromise, which is the hallmark of diplomatic bargaining and mediation, cannot be the result of judicial proceedings. Moreover, the cases that have been dealt with by international tribunals reveal that the parties have disagreed primarily over the establishment of facts or the meaning of existing law or treaties. In most international conflicts, however, one of the parties is deliberately attempting to change the other's rights, privileges, or obligations. Thus, most conflicts have important legal aspects, but one or both of the parties do not wish to characterize

434 The Interaction of States: Conflict and Conflict Resolution

the situation in legal terms because their political objectives and actions are clearly incompatible with existing legal principles or jurisdictions. In other cases, a justiciable dispute is not handled by legal procedures because it has become too deeply embroiled in, or is symbolic of, greater tensions and conflicts between two states.38 Finally, there is the problem of the sources of modern international law and governmental attitudes toward that law.

Many existing legal principles were developed to help regulate jurisdic­tions, forms of interaction, and responsibility of the European states during the eighteenth and nineteenth centuries. Some principles were designed specifi­cally to protect European commercial interests and colonial relationships. Aside from most Communist governments, which have rejected some doctrines of "Western" international law, legal scholars have noted that many of the new states are less than enthusiastic about many of these older principles. They have many economic, political, and commercial needs that cannot be regulated effectively or met by the application of older norms. Hence, the reluctance of many of the new nations to accept the compulsory jurisdiction of the ICJ may be explained in part by their suspicion toward the former colonial powers and the legal principles that they developed to take care of their own needs.

This last point opens another perspective on the problems of conflict resolution: the willingness of types of states to employ mechanisms of conflict resolution. If we were to extrapolate from all the figures presented above two types of situation wherein conflict resolution would be most likely to succeed or fail, we would describe them as follows: Conflicts involving (1) two small states, (2) non-cold-war issues, and (3) a combination of bilateral negotiation and Secretary-General mediation would be most likely to result in a successful (such as compromise) outcome. Conflicts involving (1) the major powers, (2) cold-war issues, and (3) mediation outside or within the United Nations structure would be least likely to lead to a successful outcome. But what of the nature of the parties to conflicts? Is it true, as suggested above, that developing states are less likely to make use of judicial procedures when they become involved in conflicts? Do governments with authoritarian characteristics become involved in institutionalized conflict resolution any less than governments that could be characterized as open? William Coplin and Martin Rochester have made a study of 121 cases before the League of Nations, Permanent Court of International Justice, United Nations, and International Court of Justice.39

They found that "open" states are more likely than "closed" states to use the major institutional structures for resolving conflicts, although "closed" polities were found to use the United Nations slightly more often than "open"

38 Charles De Visscher, Theory and Reality in Public International Law, trans. Percy Corbett (Princeton, N.J.: Princeton University Press, 1957), pp. 322-23. For an argument that international law is too inflexible and conservative as a basis for resolving conflicts, see John W. Burton, Conflict and Communication (London: Macmillan, 1969), Chap. 10.

39 William D. Coplin and J. Martin Rochester, "The Permanent Court of International Justice, the International Court of Justice, the League of Nations, and the United Nations: A Compara­tive Empirical Survey," American Political Science Review, 66 (1972), 529-50.

435 The Interaction of States: Conflict and Conflict Resolution

states. The figures also reveal that "open" societies have taken cases to interna­tional courts much more frequently than have either "closed" states or "semi-open" states. This finding would indicate that both developing and Communist states have strong reservations about employing legal procedures, or Western rules of law, as means for resolving conflicts.

In terms of levels of economic development, the figures substantiate the finding: The developed states used the courts three times more often than either developing or "intermediate" states. However, such states used the League and UN more often than the developed states. We can conclude that among the developing states and states with "closed" political systems, judicial proce­dures have not yet achieved popularity or legitimacy. If they are going to take cases to any institution, the political organs of the League and UN have been favored highly.

In terms of the power of the participants, the study also reveals interest­ing conclusions. In cases submitted to the courts, the initiator is usually the stronger of the two states involved in the conflict or dispute. In only one out of five submissions is the initiator of legal procedures the weaker of the two states. However, the exact opposite emerges in submissions to the League and UN. In these institutions, the initiators have usually been the weaker of the two parties in a conflict or dispute. According to Coplin and Rochester, these findings suggest that weaker, developing, or Communist states have tended to perceive the courts as the protectors of the status quo, and the League and UN as the most favorable institutions for handling international conflicts and disputes.

CONCLUSION

Most conflicts arise over incompatible positions in various issue areas. If the incompatible values and positions of both parties are perceived as fundamental, the parties' behavior, buttressed by hostile, distrustful, and suspicious attitudes, may well be violent. Unless stalemate, obsolescence, or effective third-party inter­vention occur, the outcome is likely to be physical conquest or forced withdrawal. The critical point in the conflict occurs when the actions of one state lead the government of another to consider the possibility of using force. Mild threats, pressures, and reprisals can often be controlled, but if tensions are high enough and the actions perceived as extremely threatening, a crisis situation, where a decision to use organized force may be required, results. In a crisis, symbolic communication often increases while overt bargaining and negotiation decrease; and the behavior of policy makers may well be vitally affected by the pressures of time, perceptions of threat, and the need to act quickly. Violence often results. It is in this situation that the fact-finding, mediation, interposition, and supervi­sory tasks developed in international organizations become important. Both the League of Nations and its successor have in fact dealt primarily with crises

436 The Interaction of States: Conflict and Conflict Resolution

rather than conflicts. In this field, they have been reasonably successful. In the most difficult task, mediation, the United Nations has achieved desired results in about 40 percent of the attempts, while in reporting, interposition, and super­vision, rates of success have been much higher. In resolving conflicts or promot­ing peaceful change—that is, arranging some sort of new legal or political situa­tion that is accepted by all the parties directly involved—the record is not nearly so impressive. Indeed, one of the most discouraging facts about international organizations has been their inability or unwillingness to cope with conflicts before they reach the crisis stage.40 Yet it is probably in the crisis stage that formal settlements are least likely to be attained. Only in the area of transition from colonialism has the organization proved truly effective as an instrument of peaceful change.

SELECTED BIBLIOGRAPHY

Aubert, Vilhelm, "Competition and Dissensus: Two Types of Conflict and of

Conflict Resolution," Journal of Conflict Resolution, 7 (1963), 26-42. Bell, Coral, The Conventions of Crisis. New York: Oxford University Press, 1971. Bloomfield, Lincoln P., ed., International Military Forces: The Question of Peacekeep­ing in an Armed and Disarming World. Boston: Little, Brown, 1964. _____, and Amelia C. Leiss, Controlling Small Wars: A Strategy for the 1970s.

New York: Knopf, 1969. Boulding, Kenneth E., Conflict and Defense: A General Theory. New York: Harper

& Row, 1962. Brecher, Michael, ed., "Studies in Crisis Behavior," special issue of The Jerusalem

Journal of International Relations, 3 (Winter-Spring 1978). Brownlie, Ian, International Law and the Use of Force by States. London: Oxford

University Press, 1963. Burns, Arthur L., and Nina Heathcote, Peace-Keeping by U.N, Forces: From Suez

to the Congo. New York: Praeger, 1963.

Burton, John W., Conflict and Communication. London: Macmillan, 1969. Claude, Inis L., Jr., Swords into Plowshares: The Problems and Prospects of International

Organization, 4th ed. New York: Random House, 1971. _____, "The United Nations and the Use of Force," International Conciliation,

No. 532 (1961), 325-94. Coser, Lewis A., "The Termination of Conflict," Journal of Conflict Resolution,

5 (1961), 347-53. Donelan, M.D., and MJ. Grieve, International Disputes: Case Histories 1945-1970.

London: Europa Publications, 1973. Fisher, Roger, International Conflict for Beginners. New York: Harper & Row,

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40 Inis L. Claude, Jr.,Swords into Plowshares, 4th ed.(New York: Random House, 1971), p. 239.

.

437 The Interaction of States: Conflict and Conflict Resolution

Goodrich, Leland M., The United Nations in a Changing World. New York: Colum­bia University Press, 1974.

Haas, Ernst В., Robert L. Butterworth, and Joseph S. Nye, Conflict Management by International Organizations. Morristown, N.J.: General Learning Press, 1972.

Haas, Michael, International Conflict. Indianapolis: Bobbs-Merrill, 1974.

Hermann, Charles F., ed., International Crises: Insights from Behavioral Research. New York: Free Press, 1972.

Katz, Milton, The Relevance of International Adjudication. Cambridge, Mass.: Har­vard University Press, 1968.

Kecskemeti, Paul, Strategic Surrender. Stanford, Calif.: Stanford University Press, 1958.

Larson, Arthur, When Nations Disagree. Baton Rouge: Louisiana State University Press, 1961.

Levi, Werner, "On the Causes of War and the Conditions of Peace," Journal of Conflict Resolution, 4 (1960), 411-20.

Lockhard, Charles, Bargaining in International. Conflicts. New York: Columbia University Press, 1979.

Luard, Evan, ed., The International Regulation of Frontier Disputes. London: Thames & Hudson, 1970.

Modelski, George, "International Settlement of Internal War," in International Aspects of Civil Strife, ed. James N. Rosenau. Princeton, N.J.: Princeton Uni­versity Press, 1964.

Northedge, Fred S., and Michael Donelan, International Disputes: The Political Aspects. London: Europa Publications, 1971.

Pruitt, Dean G., and Richard C. Snyder, eds., Theory and Research on the Causes of War. Englewood Cliffs, N.J.: Prentice-Hall, 1969.

Rikhye, Indar Jit, Michael Harbottle, and Bjorn Egge, The Thin Blue Line: International Peacekeeping and its Future. New Haven, Conn.: Yale University Press, 1974.

Schelling, Thomas C, The Strategy of Conflict. Cambridge, Mass.: Harvard Uni­versity Press, 1960.

Singer, J. David, and Melvin Small, The Wages of War, 1816-1965: A Statistical Handbook. New York: John Wiley, 1972.

Snyder, Glenn H., and Paul Diesing, Conflict Among Nations. Princeton, N.J.: Princeton University Press, 1977.

Wright, Quincy, "The Escalation of International Conflicts," Journal of Conflict Resolution, 9 (1965), 434-49.

Young, Oran, The Intermediaries. Princeton, N.J.: Princeton University Press, 1967.

Zacher, Mark W., International Conflict and Collective Security, 1946-1977. New York: Praeger, 1979.

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