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40. Lecture by Legal Adviser John B. Bellinger, III, at World Legal Forum at The Hague (Dec. 10, 2007)

Lecture at World Legal Forum
John B. Bellinger, Legal Advisor

December 10, 2007

As Prepared

I am delighted to be back in The Hague, and it is a pleasure to address the World Legal Forum in such distinguished company. It is particularly fitting to discuss the topic of dispute resolution on the centennial of the Hague Peace Conference of 1907. That conference and the one before it in 1899 were animated by the belief that international disputes could be settled by arbitration and law. The diplomats who attended the 1907 conference faced, much as the world today does, a pressing set of international issues—how to establish mechanisms for peaceful settlement of international conflict, how to address a troubling increase in arms expenditures, and how to make war more humane. The conference concluded a number of conventions addressing these issues, including the Convention for the Pacific Settlement of International Disputes. The then-American Secretary of State Elihu Root called the conference “the greatest advance ever made at any single time toward the reasonable and peaceful regulation of international conduct.”

Some of the problems addressed at the 1907 conference are still problems with us. We still seek ways of avoiding conflict and humanizing war. But we also face new challenges in managing a world that is tied together more tightly and in more complex ways than before. As the number of connections has grown, so too have the potential sources of disputes. We all have a shared interest in resolving those disputes peacefully and permanently.

The United States has particular reasons to seek peaceful and effective international dispute settlement. Few if any international disputes do not have an impact on our security, humanitarian, and economic interests. Thus, we rely heavily on international institutions and international law to find peaceful and effective resolutions to conflicts and disagreements.

But we also believe that successful dispute resolution requires that states be active and politically engaged in seeking a settlement. That is where I want to focus my remarks today. It is not enough to turn over a problem to international organizations and hope that after a time, a solution will emerge. Such formal resolution mechanisms have a vital role to play, and can be a decisive factor in resolving disputes. But especially in the most serious crises, there is no substitute for the application of political will and energy by states.

With respect to dispute resolution mechanisms, the United States has typically taken a pragmatic approach—using such mechanisms where they fit the problem and can advance the parties toward a resolution. Moreover, no one mechanism of dispute resolution is inherently superior to another. The United States has made use of a wide range of mechanisms—some within existing institutional frameworks, others wholly ad hoc—to try to address the critical peace and security problems of our time. In this respect, we have wholeheartedly embraced the perspective of Article 33 of the UN Charter, which suggests an array of resolution mechanisms to disputing parties.

Consistent with this approach, the United States has resorted to international courts and tribunals where they are likely to be most effective—for example, where they are tasked with enforcing a fairly specific set of obligations. This is evident in the United States’ strong support for the World Trade Organization, which has a dispute settlement mechanism tailored to address trade issues. In the last dozen years, the US and the EU have managed to resolve a number of trade disputes through the WTO—some affecting critical industries and involving billions of dollars, without resort to a damaging trade war.

Courts or tribunals can also be tailored to address specific political or security problems. Indeed, the very act of establishing a tribunal can take a particular issue off the table and make resolution of a broader dispute easier. The Iran-US Claims Tribunal, based here in The Hague, was created as part of an arrangement that resolved a major crisis and led to the release of the U.S. hostages. In a different vein, the Permanent Court of Arbitration, also here in The Hague, has provided a mechanism for states to reduce conflict by allowing resolution of disputes on an ad hoc basis.

More recently, the United States has firmly backed the Special Tribunal created, in accordance with UN Security Council Resolution 1757, to bring to justice those responsible for the murder of former Lebanese Prime Minister Rafik Hariri and others. Although deference to a state’s internal legal process is the norm, this was a case where that process was itself subverted by threats of violence and terrorism. We strongly hope that the Tribunal will ultimately punish those responsible for the assassinations and put to rest the resulting civil discord. And we also owe a note of thanks to the Dutch, who have kindly agreed to host the Special Tribunal.

By contrast, we have found it more difficult to reach political consensus for a single tribunal covering all manner of international law disputes. The International Court of Justice was meant to serve as the ultimate arbiter of most international law issues affecting the UN Charter. Although it has not achieved this lofty and difficult aspiration, we believe the court can play a constructive role in resolving international disputes. To be sure, the United States—like many countries—does not accept the mandatory jurisdiction of the ICJ. But we have nevertheless turned to the ICJ to address a number of disputes, including a longstanding boundary issue with Canada and Iran’s takeover of our embassy in Tehran in 1979. These cases allowed the ICJ to do what it does best: resolve a concrete dispute in light of well-developed international law.

We believe, however, that some look to courts and tribunals for more than they realistically can deliver, because they somehow regard them as the most authentic source of international law. Efforts to lure international courts and tribunals into choppier political waters can often prove embarrassing to those bodies. Justice Holmes of our Supreme Court once said, “Great cases, like hard cases, make bad law.” This is especially true of inherently political cases, which can strain the legitimacy of international legal institutions and undermine the capacity of those institutions to contribute to effective dispute settlement. A notable example is the ICJ’s advisory opinion process, which allows the court to opine on matters without full participation by all disputing parties and tends to cast the court in the role of arbitrating political conflict.

Despite these concerns, the United States believes that an effective ICJ is invaluable to advancing the rule of law and encouraging the peaceful settlement of international disputes. That commitment is evident in the Avena case, which President Bush has determined to enforce by instructing our states to provide new hearings to the 51 foreign nationals covered by the ICJ order. This has been deeply controversial in the affected states, and there has been strong resistance to the President’s actions. But we remain committed to complying with the ruling, and have asked our Supreme Court to give full effect to the President’s decision.

But I want to leave international courts and tribunals to the side for now, and focus my remaining time on other mechanisms of dispute settlement. Most international disputes do not end up in court. Instead, they are managed by the international community, and often resolved, through many other formal and informal mechanisms. One such mechanism is the process of consultation and confidence-building that can prevent mutual suspicion from developing into full blown disputes. Another is the ongoing monitoring and negotiation, which can help resolve a dispute that has already taken concrete shape. The distinctions between these mechanisms of dispute settlement are not always clean: a single international institution might engage in each of these forms of dispute settlement, depending on the nature of the problem. But we believe these various mechanisms are different tools in the lawyer and policymaker’s toolbox, and which one is best typically depends on the problem to be solved.

The United States strongly supports the role of international institutions in preventing disputes from ever taking shape. This work of heading off real trouble is the everyday work of valuable international institutions, such as the OECD and OSCE, for example, which in their respective areas host regular intergovernmental and promote appropriate reporting and consultation mechanisms.

The United States has been particularly supportive of the role of the UN Security Council in helping to prevent disputes from escalating into dangerous conflict. In recent years, the United States has been an active participant in the Security Council process. In fact, over the last several years, the United States has been among the leaders in pressing for Security Council action to deal with threats that have emerged to international peace and security.

We believe this engagement has moved serious international disputes closer to resolution. With respect to Iran, the United States has pressed the Council to take robust action to address the serious concerns surrounding that country’s nuclear program. The Council unanimously adopted two sanctions resolutions, requiring Iran to take certain steps to allow for negotiations toward a long-term agreement. The measures imposed in the resolutions have also reinforced the efforts of EU High Commissioner Solana—on behalf of China, France, Germany, Russia, the UK and the US—and those of the IAEA to secure Iran’s compliance with its obligations. This targeted, multilateral approach is increasing the costs to the Iranian regime of its behavior and maintaining pressure necessary to persuade Iran to help find a negotiated solution. For this approach to succeed, however, the international community must intensify pressure on Iran to suspend its enrichment program—most importantly by adopting a new UN Security Council sanctions resolution. We continue to insist that Iran provide a full account of its past and present nuclear activities, and we must ensure that Iran’s nuclear weapons program remains halted.

International disputes can be handled through formal or informal frameworks of negotiation and mediation. The United States supports many organizations that offer formal frameworks for resolving disputes at an early stage. US border issues with Canada and Mexico have long been managed by international commissions, which address not only issues related to the actual borders, but also water use, navigation, and environmental disputes. In addition, the United States has supported the work of the NAFTA Free Trade Commission in addressing trade-related disputes through non-binding mechanisms before those disputes reach arbitration.

But we believe that informal negotiation and mediation—where states must engage and real political effort must be expended—are often the best way to address the most serious international disputes. Such disputes never invite neat solutions, and effective settlement is mainly a political problem.

In this vein, the United States has played, and continues to play, a leading role to help bring peace to the Middle East. We do not act alone by any means—the participation of some 50 ministerial level delegations at the President’s recent Annapolis conference shows how broad international support is for peacefully resolving the Arab-Israeli dispute. Amr Moussa was there, and the United States was honored by his attendance. I know Amr has worked tirelessly for the peaceful resolution of disputes in the Middle East for many years.

As Secretary Rice noted, the issue of Middle East peace is “an issue of conscience that … stir[s] us all.” We have joined with the other members of the so-called international Quartet—Russia, the EU and the UN—to help Israelis and Palestinians progress on their path to a two-state solution. But it is the United States to which the parties have turned for most hands-on help in resolving their differences.

As a result of Annapolis, as the President announced, Israelis and Palestinians are launching permanent status talks to end their conflict. At our urging, these negotiations will be continuous and deal with all the core issues, including borders, security arrangements, refugees, Jerusalem, water and settlements. Moreover, the parties committed themselves at Annapolis to make every effort to conclude an agreement before the end of 2008. This is an ambitious goal, so Palestinian President Abbas and Israeli Prime Minister Olmert have also agreed to meet on a bi-weekly basis to oversee the negotiations. The United States will continue to be deeply engaged in supporting these efforts, as you will see by high-level visits to the region in the upcoming days and weeks.

In parallel to their political negotiations, the Israelis and Palestinians also asked the United States at Annapolis to develop a trilateral mechanism to monitor and judge implementation of their prior commitments to improve conditions on the ground. Too often, hopeful signs of progress on the political track have been compromised by acts eroding confidence in the ability to achieve a mutually satisfactory outcome through negotiations. In recognition of that risk, the parties are looking to us as an outside party to help them avoid these lapses. This will be a sensitive task since our mutual goal is progress in meeting obligations not recriminations over shortcomings. If we are successful, it will be an excellent illustration of how a creative approach to dispute-resolution can blend diplomacy, monitoring, and informal adjudication to address issues as explosive as the Arab-Israeli conflict.

The United States has also strongly promoted negotiation and mediation to address the problem of North Korea’s nuclear program. We have insisted that those negotiations include all the major interested parties in the region—South Korea, North Korea, Japan, China, Russia and the United States. The goal of these Six-Party Talks is the “verifiable denuclearization of the Korean peninsula in a peaceful manner.” A September 2005 joint statement contains the ingredients for resolution of many sources of conflict that undermine security and stability in Northeast Asia. First and foremost, North Korea committed to abandoning all nuclear weapons and existing nuclear programs and returning to the nuclear non-proliferation treaty and to IAEA safeguards. The joint statement also charted a path by which the North can be integrated into the international community—through economic cooperation in the fields of energy, trade and investment, and through eventual normalization of relations between North Korea and both the United States and Japan.

The negotiations regarding North Korea, as reflected in the joint statement, look to the past, and to the future. No peaceful settlement agreement has ever been reached to replace the provisional armistice that halted the Korean war more than 50 years ago. The joint statement committed certain “directly related parties” to negotiate one. In addition, the Six Parties committed themselves to joint efforts toward lasting peace and stability in Northeast Asia and toward long-term mechanisms to address security issues in the region.

These negotiations are now bearing some fruit, and the parties are completing negotiations in coordinated steps, as envisioned by the joint statement. At the request of the other parties, the United States is leading a team to disable specified facilities by December 31st. North Korea is to provide a complete declaration. The implementation of the 2005 consensus has not been without bumps in the road. But it continues to produce very positive results, and there is reason to hope it can lead to the eventual denuclearization of the Korean Peninsula, and to a stable and peaceful North East Asia.

Finally, and perhaps most important at this moment, the United States has consistently demonstrated its commitment to working toward a peaceful settlement in Kosovo. Kosovo’s status remains in urgent need of a resolution. NATO took action in 1999 to respond to a tragic crisis. The UN Security Council, recognizing the distinct threat that the Kosovo situation posed to international peace and security, immediately followed by adopting Resolution 1244. That resolution set in motion a political process aimed toward establishing a lasting peace. For over fifteen months, the UN’s Special Envoy, Martii Ahtisaari, led an intensive effort designed to resolve Kosovo’s final status, culminating in March 2007 in the submission of the Ahtisaari plan and its recommendation for supervised independence. This was followed by prolonged negotiations in New York last spring and summer that failed to produce an agreement in the Security Council. Last Friday, the EU-U.S.-Russia Troika, which had facilitated high-level discussions between Kosovo and Serbia during a further 120-day period that began last August, submitted a report on its work to the UN Secretary General. Through all this, the United States has worked closely with our European partners, and has strongly supported the UN process and the efforts of the Troika.

All of us, of course, would have preferred for the parties to reach agreement on the future status of Kosovo. But at this point, after intensive engagement by the Troika, it is now clear that there is no realistic chance of such an agreement. We therefore believe that the Ahtisaari Plan offers the best way forward. By its terms, existing Resolution 1244 remains in effect, and the resolution provides a solid basis for the international community to proceed. The United States will continue to engage in consultations with the European Union during the next month on how best to achieve a durable solution for Kosovo as we enter 2008.

In closing, I wish to reiterate that the United States is firmly committed to UN Charter principles for resolving international disputes peacefully. We are not wedded to any particular theory of how that should be done. Instead, we believe in a pragmatic approach, and believe in the need to rely upon whatever mechanism can best reduce, manage, or resolve disputes. International law—the Charter in particular, with its purpose of “maintain[ing] international peace and security”—expects states to do exactly this.

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