Settlement of Public International Disputes on Shared Resources: Elements of a Comparative Study of International Instruments
Comparative Study of International Instruments
Settlement of Public International Disputes on Shared Resources: Elements of a Comparative Study of International Instruments
Dominique Alheritiere
Dominique Alheritiere, Settlement of Public International Disputes on Shared Resources: Elements of a
-
Settlement of Public International
Disputes on Shared Resources:
Elements of a Comparative Study
of International
Instruments
INTRODUCTION
Among the very many sources of international conflict, conflicts
involving natural resources may claim, from an historical perspective, to
be the most numerous. Fertile lands, abundant waters, vast forests, and
essential locations have always been jealously protected by inhabitants
and coveted by invaders. The pressure for environmental goods certainly
has not diminished in recent times; rather, it has increased considerably.
Recently, natural resources have been the origin of the hottest crises, and
will inevitably be the source of future disputes.'
The prevention and settlement of disputes are among the main purposes
of the law. In a series of articles on the law of transboundary resources,
it is quite natural to discuss the settlement of resources disputes, and that
is the objective of this article. The problem of resources dispute settlement
has not always received its share of attention, because it is one of the
most thankless and glamourless themes of environmental law. The concept
of settlement implies that, first of all, a dispute has occurred and, thus,
settlement is very much "after the fact." For some years now, emphasis
has been placed on a preventive approach of nipping environmental
disputes in the bud.2 This article will focus on the subject of resources
dispute settlement to ensure the subject is not unduly neglected in this
special issue of the Natural Resources Journal dealing with transboundary
resources. Initially, the only certitude modern international law provides
is the basic obligation to seek a peaceful settlement of disputes. This
general principle is embodied in The Charter of the United Nations,'
which stipulates: "The parties to any dispute, the continuance of which
is likely to endanger the maintenance of international peace and security,
*LL.D., Legal Officer, FAO Legal Office, Rome, Italy.
tThe views expressed in this article do not necessarily reflect those of the organization the author
has the honor to serve.
1. Biswas, Shared Natural Resources: Source of Conflict or Springs of Peace? 13 DEV. FORUM
(1982).
2. Id.
3. 1 INTERNATIONALES UMWELTRECHT-MULT1LATERALE VERGRAGE 945:47/I (W. Burhenne ed.
1974).
shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional a4gencies
or arrangements, or other peaceful means of their own choice. ",
This principle of peaceful settlement has been echoed in many
international instruments dealing with natural resources. This article will first
determine the exact substance and meaning of that principle as applied
to shared resources. The second section of this article will examine, both
in theory and in practice, the diverse peaceful solutions envisaged by the
various provisions of instruments relating to the settlement of resources
disputes.
The subject of dispute settlement is extremely broad, even when limited
to natural resources. Therefore, a discussion of the definitional limits of
this article seems indispensable. A first limitation will apply to the word
"settlement," which should be read as "peaceful settlement." A second
limitation concerns the word "disputes" which, as indicated in the title,
are public international disputes. Even the word "public" will be restricted
to cover only disputes between states. However, the lessons which can
be learned from settlements of disputes over state contracts should not
be neglected.5 A third limitation relates to the word "resources," which
will imply only "shared natural resources." Finally, this article will
consider only recent texts which primarily deal with marine resources on a
regional level. These texts shall be referred to as "instruments," to avoid
participating in the debate of ascertaining what is an agreement in
international law.6 Any limitation, however, is artificial and should not be
interpreted to mean that matters undiscussed are less important than those
developed in this article. 7
THE SEARCH FOR PEACEFUL SOLUTIONS
Peace is very much the heart of the purposes and principles of the
United Nations Charter which provides that "All Members shall settle
their international disputes by peaceful means," 8 and that "All Members
shall refrain in their international relations from the threat or use of
force." 9 Indeed, the U.N. Charter obliges Parties to, first of all, "seek
4. Id.
5. DeLaume, State Contracts and Transnational Arbitration, 75 AM. J. INT'L L. 784 (1981).
6. Widdows, What is an Agreement in International Law?, 50 BRIT. Y. B. INT'L L. 117 (1979). (...truncated)