The period of the Cold War, with its associated East-West divisions and ever-present threat of nuclear war, presented considerable obstacles to the flowering of the methods of international dispute resolution that were envisaged in Chapters VI and VII of the UN Charter. Those approaches to dispute resolution might be grouped into three categories: resolution of disputes by applying rules of international law, such as resort to arbitration or international courts; resolution of disputes through the projection of power, either in self-defence or under authorisation of the Security Council; and resolution of disputes by identifying and accommodating the interests of the disputing states (or other actors), such as through negotiation, mediation or conciliation, sometimes under the auspices of the United Nations or regional organisations.
After the Cold War, hopes arose that such approaches to dispute resolution would accelerate, and to a certain degree they did. While some of these developments occurred in direct response to the end of the Cold War, they were by no means exclusive to Cold War-era claims. New international courts and tribunals emerged alongside the International Court of Justice, and there was a significant increase in resort to arbitration, notably in the area of investor-state arbitration. The Security Council made strides toward its envisaged role of projecting power, as demonstrated during Iraq’s invasion of Kuwait in 1990-91, and has remained active thereafter in addressing threats to peace and security.
This chapter, however, focuses on how states have continued to rely on and expand flexible, consent-based approaches for the resolution of disputes through techniques for identifying and accommodating the interests of the disputing states. The demise of the East-West divide opened up greater opportunities for negotiated settlements in areas such as trade in goods and services; protection of intellectual property; prevention of transboundary environmental harm; and delimitation of land and maritime boundaries. Dispute resolution through mediation or conciliation also advanced, albeit to a greater or lesser degree, just as they had within national legal systems. Through initiatives such as the 1992 An Agenda for Peace, the United Nations sought to play a greater role in framing the means for dispute resolution and its own role in that regard, while regional and even sub-regional organisations sought to carve out a path for resolving disputes in their domain. Across these mechanisms, non-state actors such as corporations and individuals also began to participate more directly in international dispute resolution processes.
GW Paper Series
Dispute Settlement, ch. 25, ‘The Cambridge History of International Law, Volume XII: International Law Beyond the End of the Cold War’ (E.Benvenisti and D. Kritsiotis eds., forthcoming).