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Mansfield, Bill --- "Peaceful settlement of international disputes: litigation or negotiation - some practical considerations" [2016] OtaLawRw 8; (2016) 14 Otago LR 329

Last Updated: 13 January 2018



Peaceful Settlement of International Disputes: Litigation

or Negotiation – Some Practical Considerations

Bill Mansfield*

Looking back I think I spent a good deal of my career learning that the strength of one’s case as a matter of law is only one factor in reaching a sound decision as to whether or not to attempt to litigate a state–to–state dispute. I want to focus on some of the other considerations that an in–house counsel should factor into her or his advice.

I will start by making a few contestable propositions and then illustrate

some of them by reference to a few relatively high profile cases.

First, by and large litigation as a means of settling state–to–state disputes is best avoided just as it is best avoided between domestic law disputants.

Second, if it is going to be initiated then, as at domestic law, it is best to be very clear about the objectives and confident that litigation is the best or only means of achieving them.

Third, politics can be a significant complicating factor at the international level, although sometimes litigation can help diffuse political tensions, get higher level governmental attention to the dispute, level the playing field between the disputants, and/or reduce the risk of escalation of the dispute.

Fourth, the timing and speed of intervention are often under–assessed factors in considering the pros and cons of potential litigation.

Fifth, bringing in third parties to help resolve a dispute or elements of a dispute does not reflect a failure of negotiating skills (this is also true of initiating litigation).

Sixth, there is an underexplored and under utilised range of techniques involving third parties that can be used constructively to assist decision– making and avoid or resolve state–to–state disputes and lawyers should be more aware of them.

On the first point that state–to–state litigation at the international level can be high risk as well as high cost, compared with negotiation and other ways of resolving disputes through a more iterative process, I should note this is not always the case. Some categories of international legal disputes between states (eg trade law disputes) may not always carry





* William R (Bill) Mansfield, Barrister and Legal Consultant, former Director of the Legal Division of the Ministry of Foreign Affairs and Trade and former member of the United Nations International Law Commission. This paper is based on a presentation given at the International Environment, Trade and Investment Symposium hosted by the University of Otago, Faculty of Law, 21 April 2016.


quite the same risks.1 And the situation is obviously different where both parties specifically agree to submit a particular dispute to arbitration or judicial settlement. But the general proposition is a good place to start because most disputes between states at the international level arise between parties that expect to have ongoing relationships with each other. They are therefore more like disputes between neighbours at the municipal level than disputes between arms–length parties. And we all know that if the relationship between neighbours deteriorates there is no ruling a court or tribunal can make that can overcome the fact that, if they choose to do so, neighbours can make each other ’s lives miserable and stressful. What is more, unlike a neighbour involved in a dispute, a state doesn’t have the option of selling up and moving on.

So before deciding on state–to–state litigation as the preferred course, some of the questions that can usefully be asked include the following:

(a) will the introduction of legal principle and legal argument into the dispute help or hinder its resolution?

(b) will the issuing of proceedings help or hinder at this particular point in time?

(c) will the nature of the decision sought, and its timing, contribute to the resolution of the dispute?

(d) if some other states, or the wider international community, have an interest in the substantive matters at issue will the proceedings contribute to an outcome that takes account of that interest and attracts their support?

(e) will the proceedings and the outcome mean the parties are better equipped to resolve future issues that arise in the same context?

(f) will the parties be more or less disposed to use third party assistance

in resolving future difficulties?

To illustrate the relevance of such questions I will talk briefly about the use of the compulsory dispute settlement mechanism of the United Nations Convention on the Law of the Sea (UNCLOS) in the Southern Bluefin Tuna cases in 1999 and 2000.2





1 For example, if the disputant states are parties to the World Trade Organisation (WTO) and experienced in, and comfortable with, the use of WTO dispute resolution mechanisms for issues of the kind involved in the instant dispute.

2 Southern Bluefin Tuna cases (New Zealand v Japan; Australia v Japan) (Requests for Provisional Measures) (27 August 1999) 38 ILM 1624 (1999) (hereafter Southern Bluefin Tuna Provisional Measures) and Southern Bluefin Tuna cases (Australia and New Zealand v Japan) (Award on Jurisdiction and Admissibility) (4 August 2000) 39 ILM 1359 (hereafter Southern Bluefin Tuna Award).


The background to that dispute is complex.3 In essence the Commission of the Convention for the Conservation of Southern Bluefin Tuna had become dysfunctional as a result of a fundamental disagreement between Japanese scientists on the one hand and Australian and New Zealand scientists on the other as to whether the total allowable catch of this very valuable and very vulnerable stock could be increased.4 In the end, after extensive fruitless negotiations, Japan proceeded with an experimental fishing programme (EFP) involving an additional catch substantially above the previously agreed catch limit. In response Australia and New Zealand filed proceedings against Japan under UNCLOS arguing that the EFP was illegal and requesting provisional measures including its cessation.5

The proceedings resulted first in an Order of provisional measures by the International Tribunal for the Law of the Sea (ITLOS) on the basis of its finding that the relevant Arbitral Tribunal to be established under Part XV of UNCLOS would prima facie have jurisdiction over the disputes6 and second, a decision by that Arbitral Tribunal that it did not have jurisdiction and therefore that the Order of provisional measures should be revoked.7

So, the only formal outcome was the Arbitral Tribunal’s decision that it did not have jurisdiction to hear the merits. And yet there is no doubt the legal proceedings played a major role in the achievement of an expanded and revitalised Commission. In effect the proceedings acted as a circuit breaker. The ITLOS provisional measures ordered the parties not to exceed the previously agreed national allocations and not to engage in unilateral experimental fishing. The Order also required them to resume negotiations without delay, to make further efforts to bring other states and fishing entities that were fishing for Southern Bluefin into the agreement and, most importantly, to report back to ITLOS within six weeks. This galvanised the parties into negotiations that involved senior foreign ministry officials. Rapid progress was made and was reported to ITLOS.8

3 See Bill Mansfield “Compulsory Dispute Settlement After the Southern Bluefin Tuna Award” in Alex Oude Elferink and Donald Rothwell (eds) Oceans Management in the 21st Century: Institutional Frameworks and Responses (Martinus Nijhoff Publishers, Leiden, 2004) 255 at 257–258; Southern Bluefin Tuna Award, above n 2 at [24]–[28].

4 The Commission was established by the Convention for the Conservation

of Southern Bluefin Tuna which came into force in 1994. It is the function

of the Commission (which was comprised of three members in 1994:

Australia, New Zealand and Japan) to set Southern Bluefin tuna total

allowable catch allocations for members based on maximum sustainable

yields. While Japan proposed to increase the total allowable catch New

Zealand and Australia would not agree.

5 Southern Bluefin Tuna Provisional Measures, above n 2, at [28]–[29].

6 Southern Bluefin Tuna Provisional Measures, above n 2, at [62].

7 Southern Bluefin Tuna Award, above n 2, at [72].

8 Bill Mansfield, above n 3, at 259.


The subsequent decision of the Arbitral Tribunal in declining jurisdiction was also of critical importance. It made it clear that the formal revocation of the ITLOS Order did not mean the parties could disregard its effect or the decisions they had made in conformity with it.9

It recalled the statements the parties had made about their recent progress and reminded them they were under an ongoing legal obligation to seek to resolve their remaining differences.10 It then set out the techniques that could be used for this purpose and emphasised they should refrain from any unilateral act that might aggravate the dispute before it was finally resolved.11

This was an unmistakable message to the parties that it was in their interests and the interests of the wider international community that they continue the progress they had made on resolving the underlying problem, returning the Commission to functionality and expanding its membership.12 What was also reasonably clear was that although the Tribunal considered the proceedings to that point had played a constructive role in relation to the dispute, it was also of the view that a hearing on the merits would not assist the momentum towards a negotiated solution that had been generated by the interim measures Order.13 In that they were almost certainly right. A ruling on whether Japan’s previous EFPs were or were not contrary to their legal obligations (the relief Australia and New Zealand were seeking) was not going to restore functionality to the Commission. In fact the adversarial mindset and effort involved in preparation for the merits phase might well have had the reverse effect.

Without going into details, the parties responded positively to the clear message from the Tribunal. Further constructive negotiations were held. It was agreed independent external scientists should be brought in to work out a programme to reduce the uncertainties about the state of the stock. And at the next meeting of the Commission the programme developed by the independent scientists was adopted and the effectiveness of the Commission was increased by the inclusion of Korea and a mechanism to allow the participation of Chinese Taipei.14

In summary, this was a situation where the institution of formal third party dispute settlement procedures under UNCLOS played a major role in the resolution of a dispute where one could argue the underlying problem or disagreement was not really capable of being resolved by a

9 Southern Bluefin Tuna Award, above n 2, at [67].

10 At [70].

11 At [70].

12 Bill Mansfield, above n 3, at 268.

13 For discussion on the overall interest of the Tribunal in pushing parties

to a resumption of negotiations and if necessary the use of other tools

in the international toolbox of third party assistance, see Bill Mansfied,

above n 3, at 265–269, especially 268.

14 Report of the Seventh Annual Meeting of the Commission, 18–21 April

2001, Sydney, Australia, Attachment I.


legal ruling. In other words the high level objective of the legal action was met despite the absence of a ruling on the merits. And I think the case clearly illustrates the value in the UNCLOS dispute settlement system of access on an urgent basis to a competent tribunal that stands ready to intervene in a timely way in appropriate situations.15

It is interesting to compare this case with the Whaling in the Antarctic (Whaling) case.16 In the latter case the filing of the proceedings effectively brought to an end the negotiation process that had been underway for three years or so to resolve a number of whaling issues including the number of whales that might be taken in the southern ocean. No agreement had been reached but on the question of the southern ocean take the last proposal released by the International Whaling Commission, before the filing of the case, was that the Japanese would be limited to 400 minke whales annually for the first five years of a ten year arrangement and 200 for the following five years. Other variations involving annually reducing limits were also the subject of ongoing discussion.17

Unlike the situation in the Southern Bluefin Tuna cases there was no obvious basis for seeking interim measures in the Whaling case. There was nothing comparable to the available evidence about the dramatic decline in the Southern Bluefin stock and its extreme vulnerability. Therefore once the whaling case was filed the situation was on hold for the four years necessary for the International Court of Justice (ICJ) to hear the case and deliver its judgment.

Not having been part of the process one can only speculate as to the objective or range of objectives that led to the Australian decision to file proceedings. If, as one assumes, at least one of the objectives was to reduce or eliminate as quickly as possible the catch of minke whales

15 International Tribunal for the Law of the Sea “The Tribunal” <www.itlos. org/the-tribunal>; United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November

1994), Part XV “Settlement of Disputes”.

16 Whaling in the Antartic (Australia v Japan: New Zealand intervening)

(Judgment) [2014] ICJ Rep 226.

17 Personal comments, Gerard van Bohemen (then New Zealand’s

Commissioner to the IWC). See also, for example, the Australian proposal

made to the Small Working Group on the Future of the IWC in 2010 that

“Whaling (other than current aboriginal subsistence whaling) should

be phased down within a reasonable time frame, including the phasing

down and out of whaling in the Southern Ocean within five years” (“The

Future of the International Whaling Commission: An Australian Proposal”

(2 March 2010) (document M10/SWG5 prepared for IWC62 Annual

Meeting, Morocco, 2010) at 2, <http://iwc.int/futuredocs> ) and the

[Revised] Chair’s Report of the Intersessional Meeting of the Commission on

the Future of the IWC, where New Zealand is reported to have “sought

an end to all special permit whaling as soon as possible, especially in the

Southern Ocean but accepted that a phased approach may be needed

to achieve this end. However, it could not accept a capping of numbers

with no commitment to a process of further reductions” ((6 May 2009)

IWC/61/7 Rev, at 6).


in the southern ocean then it presumably involved a calculation that this was more likely to be achieved through the litigation process than through the continuation of the negotiations.

Obviously we cannot judge whether any such calculation was accurate because we cannot know the final result of the interrupted negotiations. But the fact that Japan has now initiated a new scientific research programme involving the taking of 333 minke whales18 raises serious questions whether the apparently successful outcome of the court case has contributed positively or negatively to the assumed underlying objective.

A key question that did not seem to receive much consideration at the time, at least in the media, was whether the initiation of litigation would make it more or less difficult politically for the Japanese Government to forego or significantly reduce its scientific research programme. I, for one, argued publicly that taking a case to the ICJ would not only be ineffective, it would be counterproductive.19 My main argument was that, at that time, the economics and the politics surrounding the Japanese whaling programme were not working in favour of the Japanese Fisheries Agency (JFA) and the interests it represented or reflected. Therefore the diplomatic negotiations aimed at finding some form of phase–out solution had a reasonably good prospect of bringing an eventual end to whaling in the southern ocean, albeit not as quickly as many would have liked.

In contrast, a legal challenge in the ICJ would raise the issue of Japanese face in such a way as to ensure Japanese public opinion, as well as the other relevant Japanese agencies such as the Foreign Ministry, consolidated behind the JFA’s position. At a minimum this was likely to extend the life of the Japanese whaling programme in the southern ocean whatever the actual outcome of the case. This it seems to have done. At the end of November last year Japan announced a new scientific research programme that aims to take more than 300 minke in the first year. And what is more, Japan, as a result of the case, has changed its acceptance of the ICJ’s compulsory jurisdiction to exclude the possibility of any similar case in the future.20 So not only is it now politically more difficult for the Japanese to reduce their catch further but they will not

18 Government of Japan “Research Plan for New Scientific Whale Research

Program in the Antarctic Ocean” (2015) Institute of Cetacean Research

<www.icrwhale.org/pdf/151127newrep-a.pdf> at 31.

19 Bill Mansfield, public comment following an International Law

Association, New Zealand branch public lecture by Professor Don

Rothwell on “International Legal Options to halt Japanese Whaling in

the Southern Ocean” (public lecture, International Law Association, New

Zealand Branch, Wellington).

20 Declaration by Motohide Yoshikawa, Permanent Representative of

Japan to the United Nations, filed with Secretary-General of the United

Nations 6 October 2015, International Court of Justice <www.icj-cij.org/

jurisdiction/index.php?p1=5>.


again accept the ICJ’s jurisdiction on the matter and are probably less likely to agree to any other form of third party assistance in relation to the dispute.

Perhaps one point to take out of this comparison is that the calculations I referred to at the start are more difficult the higher the political profile of the issue both domestically and internationally. Another is the importance of in–house lawyers ensuring they are not captured by the strength of legal arguments and keep their eyes firmly on the objective that potential litigation is intended to serve.

An extreme example of how politics may make it necessary to look outside the norm for a mechanism to resolve an international dispute is the Rainbow Warrior case.21 The two French agents were sentenced to

10 years by the New Zealand courts and public opinion in New Zealand was emphatic they should serve their sentences. Public opinion in France was equally emphatic that they had simply followed orders and should not be left languishing in a foreign prison. Politically neither Government could be seen to be negotiating on their position and obviously it was not a matter that could be solved by litigation. The way forward was to refer the dispute to the Secretary–General of the United Nations for a ruling. But, as our then Prime Minister revealed many years later, the ruling was actually pre negotiated by the parties so that the Secretary– General could be confident that each could live with it.22

A word or two more about timing and speed of intervention. In some situations the time taken by the court or tribunal to determine the matter may not be of any consequence. A time lag between the filing of proceedings, the hearings and the decision may even be helpful in getting the issue off the political front burner. But one of the major developments of the latter part of last century has been the use of requests for provisional measures to achieve rapid judicial intervention in disputes. The Southern Bluefin Tuna cases are an example of just how swift that intervention can be. On that occasion the request was filed on 30 July, the hearing was on 18, 19 and 20 August and the Order by ITLOS was made on 27 August.

I was conscious of the effectiveness of the speedy judicial intervention in the Southern Bluefin Tuna situation when, as Chair of the negotiations, I was drafting the rather complex objection procedure in the Convention on the Conservation and Management of High Seas Fisheries Resources






21 Rainbow Warrior (New Zealand v France) (1990) 82 ILR 499.

22 Geoffrey Palmer Reform: A Memoir (Victoria University Press, Wellington,

2013) at 491.


in the South Pacific Ocean, 2009 (SPRFMO).23 In fisheries it is important that any intervention is effective in the relevant fishing year, otherwise the situation can get increasingly complicated. So when Russia objected to the catch decisions in the first Conservation and Management Measure adopted by the new Commission it had to present its objection within 60 days of the decision becoming binding and had to appoint a member of a Review Panel when presenting its objection. As Chair of the Commission I had to appoint a second member of the Panel within 10 days of the expiry of the objection period and then we had to agree on a third member to chair the Panel within a further 10 days. The Panel then had to convene a hearing within a further 30 days and was required to transmit its findings and recommendations within 15 more days. A very tight timetable; but it was accomplished. And thanks to an excellent Panel and especially its Chair (Professor Bernard Oxman) we had legally and politically sophisticated findings and recommendations by the middle of the fishing year that provided us with a way forward. That rather complex but speedy dispute settlement process is, I think, unprecedented and I had been somewhat surprised that, until a recent article by Andrew Serdy in “Ocean Development and International Law”,24 it seemed to have largely passed unnoticed amongst the academic community of international lawyers.

Finally, a very brief word about negotiation as a way of resolving disputes. This is the default method. It is obviously very important. In reputational terms there is often a lot of emphasis on whether someone is a good negotiator. “Good” in this context is often equated with “tough”. But in my observation the most effective negotiators are those who first, put a lot of effort into understanding and mentally reversing roles with the other side and second, are not only able to look for compromise or solutions that will work for the other side, as well as their own, but also are able to recognise deadlock and to look for creative ways to involve third parties in identifying a forward path. In this regard I think Paragraph 70 of the Award of the Arbitral Tribunal in the Southern Bluefin Tuna cases is an important, but perhaps neglected, reference point for

23 “Convention on the Conservation and Management of High Seas Fisheries Resources in the South Pacific Ocean” (2009) New Zealand Foreign Affairs and Trade <www.mfat.govt.nz>. This Convention aims to ensure the long–term conservation and sustainable use of fishery resources in the South Pacific Ocean. Article 17 provides the objection procedure: Decisions become binding on members of the Commission 90 days after date of notification unless an objection is raised within the objection period which is 60 days after receiving notification of the decision. Thirty days from the end of the 60 day objection period, a Review Panel must be appointed. The Review Panel’s decision must be transmitted within

45 days of its establishment.

24 Andrew Serdy “Implementing Article 28 of the UN Fish Stocks Agreement:

The First Review of a Conservation Measure in the South Pacific Regional

Fisheries Management Organisation” (2016) 47(1) Ocean Development

and International Law 1.


the training and teaching of the full toolbox that may well be needed for resolving future disputes in our increasingly interdependent and resource scarce world.25




























25 This paragraph reads: “The Tribunal recalls that Article 16(2) prescribes that failure to reach agreement on reference to arbitration shall not absolve the parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph

1; and among those means are negotiation, mediation and arbitration. The Tribunal further observes that, to the extent that the search for resolution of the dispute were to resort to third-party procedures, those listed in Article 16 are labels that conform to traditional diplomatic precedent. Their content and modus operandi can be refined and developed by the Parties to meet their specific needs. There are many ways in which an independent body can be configured to interact with the States party to a dispute. For example, there may be a combination or alternation of direct negotiations, advice from expert panels, benevolent supervision

and good offices extended by a third–party body, and recourse to a third party for step–by–step aid in decision–making and for mediation, quite apart from third-party binding settlement rendered in the form of an arbitral award. Whatever the mode or modes of peaceful settlement chosen by the Parties, the Tribunal emphasizes that the prospects for a successful settlement of their dispute will be promoted by the Parties’ abstaining from any unilateral act that may aggravate the dispute while its solution has not been achieved”.


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