University of Pennsylvania Journal of International Law
Anna Spain, Integration Matters: Rethinking the Architecture of International Dispute Resolution, 32 U. Pa. J. Int'l L. 1 (2010), available at https://scholar.law.colorado.edu/articles/1243.
International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This is concerning because empirical studies show that international conflict is increasingly intra-state, and involves non-state actors and extra-legal issues. Second, states prefer mediation to adjudication as a method for resolving disputes that occur in the context of inter-state conflict. Yet the role and value of mediation have been underappreciated, and it lacks institutional support under international law. Third, the current architecture of the IDR system promotes single method approaches, which can foster fragmented IDR approaches that separate legal issues from extra-legal ones, despite their interconnected nature. It also fails to structurally incorporate emerging, hybrid IDR approaches that enhance IDR capacity. In response to these limitations, this Article argues that there is a need to restructure the IDR system to create a framework for understanding how to systematically integrate IDR methods across forums. The Article concludes by considering several challenges that this approach presents to the state-centric foundations of the international legal system.
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