Matching settlement method to problem: Sir Kenneth Keith presents an optimistic view of recent Asian experience in the peaceful resolution of disputes.

• Author: Keith, Kenneth

The Charter of the United Nations, in its Article 33, imposes on all the states of the world which are party to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, an obligation, first of all (avant tout in the French text), to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice. One of those other means, not listed in the Charter but to be found, for instance, in the 1899 and 1907 Hague Conventions for the Peaceful Settlement of Disputes, is the offer of good offices, invoked, for instance, with success by the Dutch prime minister at a critical stage in the Rainbow Warrior controversy between New Zealand and France. That obligation is an elaboration of the principle stated in Article 2(3) of the Charter that members are to settle their disputes by peaceful means--an obligation matching the principle which follows immediately in Article 2(4) prohibiting the use of force.

I make four comments on those provisions:

* Adjudication and arbitration are just two of the means in that list and indeed appear towards its end. Some years back lawyers, or at least litigators, began to speak of ADR, which they explained as alternative dispute resolution, 'alternative', that is, to going to court. 'Appropriate' is surely a better word.

* The obligation, stated in Article 33, relates to the 'resolution of disputes' and appears in Chapter VI of the Charter, headed Pacific Settlement of Disputes. But the Charter also refers to 'situations' and to 'matters', including matters being dealt with by the UN Security Council. Consider, to anticipate just one matter, the ongoing management and allocation of fisheries resources between the fleets of non-coastal states entitled to fish in extended fisheries zones or those on the high seas.

* The final phrase is a reminder of the basic principle that states, as sovereigns, are not bound by any procedure for the resolution of disputes unless they consent. That consent may be given in advance or ad hoc. I recall that the position in our national law over the centuries has not been that different. The king, it was said, could do no wrong and some crown immunities still remain. Indeed, as recently as last year, the new Public Service Act maintained a crown immunity. That provision was the subject of no real public debate. Should it not have been subject to a report by the attorney-general under the Bill of Rights as an apparent breach of the right to justice by all persons against the crown? Some practice is to the contrary as states show an increasing willingness to subject themselves in advance to methods of dispute settlement, particularly in trade and law of the sea matters.

* The obligation is limited to disputes which are likely to endanger international peace and security. States nevertheless often invoke the listed methods in respect of the many international disputes which do not reach that level to resolve or handle them.

Another point I would make at this stage is about the definition of the dispute. There may be value in widening or narrowing the dispute or dividing it or recasting it. Recall Gertrude Stein's last words, 'What is the question?'

Negotiation option

I begin with negotiation. It is one means emphasised by China for the resolution of its disputes, particularly in respect of land and maritime boundaries, as appears from the South China Sea case I discuss below. That statement is subject to important qualifications in respect of international trade matters and, in some respects, law of the sea issues as well. China, for instance, has been a party as applicant, respondent or third party in many WTO disputes. My last international judging task was as a panelist in a case which it brought against the European Union.

So far as negotiation is concerned, I take the example of three Asian states and New Zealand resolving disputes or issues concerning the management of fisheries. When New Zealand extended its fishery zone from three to twelve miles in the mid-1960s, Japan protested. It proposed that the two states agree to take the matter to the International Court of Justice. In 1958 and 1960 the first and second UN conferences on the law of the sea had been unable to resolve the extent of the territorial sea and of fishery zones beyond that sea. The proposal which had come nearest to acceptance would have extended fishing zones to twelve miles...