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Settlement of International Disputes by Non-Judicial Methods

Published online by Cambridge University Press:  30 March 2017

Stanley D. Metzger
Stanley D. Metzger*
Affiliation:
Department of State
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Extract

Thoughtful exponents of the impartial judicial method for settling disputes among nations generally have been careful to avoid overstating its potentialities. Lauterpacht, Lissitzyn, and others have emphasized that the growth of impartial adjudication has been, and doubtless will continue to be, hampered by many obstacles. It has long been known, for example, that the “political” nature of many disputes makes them non-justiciable, since many nations are unwilling to entrust them to the judicial process through fear of losing.

Type
Research Article
Information
American Journal of International Law , Volume 48 , Issue 3 , July 1954 , pp. 408 - 420
Copyright
Copyright © American Society of International Law 1954

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Footnotes

*

The views expressed herein are those of the writer and do not necessarily reflect those of the Department of State.

References

1 Lauterpacht, The Function of Law in the International Community (1933), pp. 139–143. As Lauterpacht points out, his illustrious predecessors, Vattel, Westlake, Fiore, Dreyfus, and others, also had a lively awareness of these limitations.

2 Lissitzyn, The International Court of Justice (1951), pp. 10, 16–18.

3 The Fund Articles may be found in Treaties and Other International Acts (T.I.A.S.) 1501, 60 Stat. 1401, and the Bank Articles in T.I.A.S. 1502, 60 Stat. 1440.

4 Art. V. Sec. 3, of the Bank Articles provides that “(a) Each member shall have two hundred fifty votes plus one additional vote for each share of stock held, (b) Except as otherwise specifically provided, all matters before the Bank shall be decided by a majority of the votes cast.” The basic voting provision of the Fund is Art. XII, Sec. 5, which provides that “(a) Each member shall have two hundred fifty votes plus one additional vote for each part of its quota equivalent to one hundred thousand United States dollars. … (d) Except as otherwise specifically provided, all decisions of the Fund shall be made by a majority of the votes cast.”

5 In the Cable ease, the Fund interpreted Art. IX, See. 7, of its Agreement which provides that “The official communications of the Fund shall be accorded by members the same treatment as the official communications of other members,” to include rates on cables; since U. S. cable companies charged certain foreign governments a cheaper rate than ordinary persons, the question was whether they were bound to give the same rate “treatment” to the Fund’s cables as they gave to these foreign governments. The Federal Communications Commission accepted the Fund’s interpretation of its Articles as binding upon the United States.

6 T.I.A.S. 1957; 63 Stat. (Pt. 2) 2173.

7 For a good collection of the disputes provisions of the multilateral agencies established through 1949, see Rubin, “The Judicial Review Problem in the International Trade Organization,” 63 Harvard Law Eeview (1949) 78, 84–87Google Scholar.

8 Constitution of the World Health Organization, Art. 75. T.I.A.S. 1808; 62 Stat. 2679.

9 Convention on International Civil Aviation, Art. 84. T.I.A.S. 1591; 61 Stat. 1180.

10 Constitution of UNESCO, Art. XIV. T.I.A.S. 1580; 61 Stat. 2495.

11 Constitution of the ILO, Arts. 411, 415, 417 (in Part XIII of the Treaty of Versailles, The Treaty of Versailles and After, U. S. Dept of State Pub. No. 2724, Conference Series No. 92 (1947), pp. 713–715; T.S. 874, 49 Stat. 2712); Arts. 26, 29, 31 (revised Constitution), T.I.A.S. 1868; 62 Stat. 3485.

12 They all operate on the one-country one-vote principle.

13 Rubin, loc. cit, at p. 88.

14 Art. VI, par. 1, provided that “… The basic minimum and maximum prices, and the equivalents thereof hereafter referred to, shall exclude such carrying charges and marketing costs as may be agreed between the buyer and the seller.” T.I.A.S. 1957.

15 To the suggestion that, since a provision for outside arbitration would be availed of sparingly, it could do no harm, the answer was that its presence would be unsettling to the negotiated settlement of disputes, since the ability to go to arbitration could easily cause the negotiations to become desultory and a mere necessary preliminary to outside recourse.

16 T.I.A.S. 2799.

17 The United Nations Sugar Conference met in London from July 13 to Aug. 24, 1953. The resulting Agreement was approved by the Senate on April 28, 1954, and the instrument of ratification of the United States deposited on May 3, 1954.

18 The first session of the United Nations Tin Conference, which met in Geneva in October-November, 1950, recessed without producing a draft agreement. The second session, held in Geneva from Nov. 16 to Dec. 9, 1953, produced a draft agreement to be considered by governments; the Agreement was open for signature from March 1 to June 30, 1954, and will be subject to ratification by those countries which decide to sign. Art. XVII is the disputes article. The United States has decided not to sign the Agreement.

19 Under the International Wheat Agreement, for example, the Council must meet at least twice a year, and must also be convened by the Chairman if a session is requested by five countries, or by one or more countries holding at least 10% of the total votes, or by the Executive Committee. In addition, a session of the Council may be called “at such other times as the Chairman may decide.” Art. XIII D, 16, 17.

20 Commodity control agreements in rubber and cotton have been discussed from time to time by nations under the aegis of the International Bubber Study Group and the International Cotton Advisory Council, respectively; when prices of such primary commodities, which are basic to the economy of many producing countries, tend to move downward for a significant period, interest in a commodity control agreement for the purpose of “stabilization” tends to rise. See Eeport to the President and the Congress, January, 1954, by the Commission on Foreign Economic Policy (the Randall Commission), p. 35.

21 Ideas for international institutions for these purposes have been discussed from time to time in the United Nations, the Economic and Social Council, and in reports of “experts” to these bodies.

22 Boston speech of Aug. 26, 1953, 29 Department of State Bulletin (Sept. 7, 1953) 307, 310.

23 Testimony before the Charter Review Subcommittee of the Senate Foreign Relations Committee, 30 Department of State Bulletin (Feb. 1, 1954) 170, 172.