International Dispute Settlement: A Network of Cooperational Duties

Abstract

This article identifies various duties of cooperation both in political and legal settlement strategies. A general, customary law-based duty of cooperation with a view to settlement, comprising a duty to negotiate, is inherent in the obligation to settle disputes peacefully. On the other hand, a general political exhaustion doctrine' does not exist. In diplomatic third party-based settlement, we find specific, i.e. procedural, obligations of cooperation. With regard to adjudication, the evolution of treaty law has seen the cooperational act of submission given at an increasingly early stage. The doctrine of non-frustration of adjudication functions as a corollary to the duties of cooperation. In international criminal justice, manifold duties of cooperation are binding erga omnes partes. The cooperational duties are placed in the context of two antagonistic trends in dispute settlement. One is the rise of adjudication which is found, for instance, in the creation of new courts. On the other hand, new and varied political means are resorted to, and justified by novel arguments, such as alternative dispute resolution (ADR). The international law of dispute settlement may be envisaged as a network of obligations. The hierarchical strand of the network is dominant where (quasi-)compulsory jurisidiction exists. Yet horizontal Westphalian elements persist. Finally, the network image applied to dispute settlement visualizes the oscillation of international law between Westphalianism and Constitutionalism.