Beyond Confrontation: International Law for the Post-Cold War Era

By Lori Fisler Damrosch; Gennady M. Danilenko et al. | Go to book overview

continue to hesitate to refer disputes involving vital interests to interstate adjudication. We must recognize that this reluctance is in part a consequence of the belief that forward-looking negotiation, rather than application of past expectations, is better suited to such problems. Unfortunately, this reluctance may also be the consequence of the belief that negotiation, where one has superior bargaining leverage, will serve one's interests more than the application of law. This latter source of reluctance will persevere as long as the rule of law is not a pillar of both the municipal and the international systems. Similarly, we must also recognize that such reluctance reflects in part the fact that differences in wealth, belief, and security among nations give rise to forceful vital disputes. In this last sense, it must be emphasized that the strengthening of the international community's ability to resolve disputes of general concern must be coupled with a plan of action that will address the inequities at the root of such disputes.

Finally, we must recognize that we continue to rely on a highly decentralized system of authority to achieve world order. Some of the states in this decentralized system are more ready than others to participate in the various dispute resolution mechanisms, and some states will choose to stand outside the scope of most of these mechanisms. In this sense, there need to be mechanisms tailored to geographic regions and various substantive areas of transnational affairs, as well as to states that choose to stand outside the rule of law.


Notes
1
A related and fundamental interstate concern might be said to arise if a "state" became unable, as distinct from unwilling, to fulfill its obligations because it no longer could be said to exercise sufficient authority over the population of the territory of the state. Examples might include the systemic inability of a state to control terrorists or drug cartels operating within its territory or the total breakdown of governance in the face of civil war or famine.
2
INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, done at Brussels Nov. 29, 1969, reprinted at 9 I.L.M. 45 ( 1970).
3
S.S. Lotus (Fr. v.Turk.), 1927 P.C.I.J. (ser. A) No. 9 (Sept. 7).
4
CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 127-128 ( P. E. Corbett trans. 2d ed. 1968).
5
Decree of the Presidium of the Supreme Soviet of the U.S.S.R. of February 9, 1989.
6
Letter from the Minister of Foreign Affairs of the USSR, Edward A. Shevardnadze, to the U.N. General Secretary on the repeal of reservations, U.N Doc. CN. 27, 1989 Treaties 1 (Annex).
7
Fred L. Morrison, Treaties as a Source of Jurisdiction, Especially in U.S. Practice, in THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS 58 ( 1987).
8
Dep't of State, Statement of October 7, 1985.

-332-

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