Duncan Holis -  Peaceful Settlement of Disputes to the Cyber-Context


Wed, 08/12/2021 - 15:00 to 16:30

States and scholars often ask how international law can forestall or redress harms caused by tensions and differences among States. This article offers the obligation of peaceful settlement of disputes as a necessary part of any response. Despite a prominent place in the UN Charter, the obligation is currently under-theorized and its practice under-examined. We explain this marginalization by identifying category errors and disabling assumptions in existing historical, doctrinal, and practical treatments, which view peaceful settlement as an obligation derived from the laws of war (jus ad bellum) and largely concerned with legal modalities (e.g., international courts and tribunals).

Our article provides an autonomous, qualified, and functional account of peaceful settlement as a foundational feature of the international legal order. We survey it as part of a jus ad pacem, whose origins both pre-date the Charter and have evolved in the ensuing years. We review four existing interpretations of what the obligation entails and—contrary to earlier attempts to declare one superior—offer a holistic view, envisioning each interpretation as a different manifestation of the same obligation for different contexts. Applying this approach, we can catalog the obligation’s prohibitions, requirements, and permissions. Doing so reveals peaceful settlement as an obligation of international law, but not one requiring performance solely in international law; compliance through non-legal modalities is not only possible but prevalent.

By opening up the concept and contents of peaceful settlement, we demonstrate it functions as far more than a tool for dispute settlement; it serves as a bulwark for the maintenance of international peace and justice, as well as a critical component in constructing international law itself. Thus, our article offers States a new framework for identifying and complying with peaceful settlement as a legal obligation and a research agenda for assessing its capacity to address international tensions effectively and constructively.

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