Settlement of Public International Disputes on Shared Resources: Elements of a Comparative Study of International Instruments

Natural Resources Journal, Dec 1985

By Dominique Alheritiere, Published on 07/01/85

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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)


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Dominique Alheritiere. Settlement of Public International Disputes on Shared Resources: Elements of a Comparative Study of International Instruments, Natural Resources Journal, 1985, Volume 25, Issue 3,