Alternative Methods of Dispute Resolution

International law can be determined through a great variety of procedures of which the main classes are both the national and the international adjudicative bodies discussed in the preceding chapters. In particular, in the context of international courts and tribunals the character of most interstate adjudication as a kind of arbitration agreed between the states concerned became visible. Traditional interstate adjudication provides the procedural means which the state parties consider appropriate to facilitate their desire to settle the issue in a flexible manner. Although the procedural authority lies generally with the international courts reflecting the national model of a fixed and unalterable lex fori proceduralis it is never authoritatively exercised against the state parties. The basic idea is to facilitate dispute settlement rather than executing and enforcing an overarching international legal order. One major reason for this character of international adjudication is the lack of authority granted to international courts reflected in the most meagre and rare submission of states to jurisdiction according to Article 36.2 of the ICJ Statute. No enforcement of judgments against the will of the judgment debtor may be expected. The other major reason is that international law’s incoherent structure is more apt and ready to settle disputes than to enforce coherent doctrines rarely endorsed by the states as the ultimate standard of their international behaviour. Article 16 of the ICC Statute which subjects the decision to take a criminal prosecution to the political decision of a non judicial organ provides evidence of this. Settling disputes is rather seen as a desirable end in itself and is encouraged with great priority over implementing substantive law. On the occasion of these procedures international law is invoked, defined and determined making these judicial decisions a “subsidiary means for the determination of the rules of [both national and international] law”. This clarifies the fact that dispute settlement procedures on the international plane are not substantially different from international adjudication but just display different features according to their specific setting such as diplomatic negotiation, “good services” of a third party (an individual arbiter, for example, the Pope, the Spanish King, a Professor or the Secretary General of the UN to name those employed in practice; or a state or international organisation trying to achieve a solution as the OAS currently is between Colombia and Ecuador/Venezuela) or “agreed” retaliation (a means employed successfully to enforce the WTO/DSU panel decisions). From this perspective they are all valid procedures in international law just as international adjudication is. Therefore, they may be treated here too.