Alternative Mechanisms of Dispute Settlement Involving Individuals

Abstract

In the last decades of the 20th century, ‘the access of individuals to international justice’ has drastically expanded in practice notably within the international regimes for protection of human rights. On the other hand, alternative dispute resolution (ADR) has not been consciously discussed as another mechanism of international justice accessible for individuals. ADR (Modes alternatifs de resolution des conflits (MARC) in French) is in fact a confusing expression. The rapid rise of the worldwide popularity of ADR in recent years can be explained by the speed by which it can handle disputes, low and often fixed fees, confidentiality, informality, freedom of abandoning the process at any stage, and the possibility to mutually choose the intervening third party. For these reasons, the use of ADR has become pervasive, especially in disputes involving private parties for cross-border civil and commercial matters. Considering these advantages and institutional developments, ADR can also create a new trend in resolving international dispute of public nature. Firstly, the general concept of ADR itself is not novel but traditional because resolving disputes without using the court is a long-established practice froma historical and inter-cultural perspective. Secondly, the preference for negotiation suggests that ADR may provide stronger satisfaction for disputing parties than adjudicative proceedings, especially in the context of individual’s access to justice. Based on these two insights, the present chapter examines different types of ADR mechanisms for disputes which involve one or more States. In order to identify how the most satisfactory resolutions can be achieved in particular contexts, this paper examines the scope of ADR, which is extremely large because ADR may include any kind of method for dispute settlement outside of the court: it may include any social methods rooted in the traditions, culture, and history, which take divergent forms from one society to another and reflect socio-cultural elements in order to provide better satisfaction for disputing parties. Unlike what is generally discussed for ADR, the present paper sheds light on the institutional aspect of ADR rather than its methodologies or techniques. This is because discussing ‘mechanisms’ as an entire process of international dispute settlement can better describe the access of individuals to international proceedings and remedies. In this sense, the alternative mechanisms ought to be understood as a set of communications. By vindicating a legal mechanism comprising several phases in a certain field of international law, this article promotes, elucidates, and refines a social theory of international legal dispute settlement outside the court room and addresses some of the practical questions that it raises.