Settling Post-War Disputes in the 19
thand 20
thcentury:
The Necessity of Goodwill, Trust and Justice
Mag. Marton Liszka
Student ID: 11313676
marton.liszka@gmail.com
University of Amsterdam
LLM International and European Law
Public International Law
2016/2017
Supervisor: Dr. Ingo Venzke
Abstract
This historical treatise assesses the process of dispute settlement in tense post-war situations. For this purpose, the three major peace settlements of the 19th and 20th century constitute the focus of this research. Fundamental characteristics of the current perception of negotiations are used as an introductory guideline to understand the historical examples. By getting familiar with the respective circumstances of the time and contrasting similarities and differences between the historical events, certain aspects can be evaluated closer. Assessing the applied methods to come to terms with other involved parties, a change in methodology how such settlements were addressed becomes evident. Namely, over time the approach shifted from a power-based perception towards a more rights-based course of action. Through the constantly growing effort of institutionalisation and juridification, the self-declared dominance of a number of “powerful nations” started to decrease, even though certain hierarchical structures can still be found in present international institutions. Due to the increasing political impact of current disputes, a future trend is difficult to predict. The creation of international organisations, competent to decide in contentious matters in accordance with a commonly accepted standard, is nevertheless the only promising way to settle forthcoming disputes. As a conclusion three criteria are singled out, which are indispensible for the success of such established institutions, as well as for settling post-war disputes, where no means of dispute settlement have been set beforehand, in general.
Table of Content
1. Introduction 4
2. Methods of Dispute Settlement 5
a. Fundamental framework 6
b. Negotiation 7
3. Post-war Dispute Settlement 8
a. Past Peace Agreements 9
i. Congress of Vienna 1814/1815 9
ii. Paris Peace Conference 1919 12
iii. Paris Peace Treaties 1947 16
b. Similarities and Differences 19
i. Methods 19
ii. Participants 19
iii. Location 22
iv. Territorial arrangements 20
v. Created Institutions 23
4. Reflections on the Process of Dispute Settlement 25
5. Outlook on current disputes 27
6. Concluding remarks 29
Chronology 31
1. Introduction
“Peacemaking” in the 19th century strikingly sought for balance and legitimacy, whereas
concluded agreements in the 20th century were predominantly punitive in nature.1 By
addressing on-going or recently ended disputes with the utilisation of diplomatic actions, Peacemaking aims at the conclusion of a negotiated agreement amongst hostile parties.2 In
situations, where international peace and security has already been destabilised3, achieving
such reconciliation is an exceptionally complex challenge. Moreover particular difficulties are entailed, when no means of dispute settlement have been set beforehand, wherefore no specific previously agreed procedure could be relied upon. Thus, in post-war situations of this kind, the involved parties’ goodwill to come to peaceful terms is of extraordinary significance for the final result. The encouragement for such goodwill to settle disputes amicably is embedded in Art. 2(3) UN Charter, which stipulates that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” It follows from this provision, however, that the existence of a dispute does not necessarily involve the endangerment of international peace and security. Correspondingly, the system of dispute settlement provided by the UN Charter mainly refers to “Preventive Diplomacy”, in other words methods of resolving international disputes that have not yet reached such a critical stage.4 Both Peacemaking and Preventive
Diplomacy make use of equivalent methods to settle a dispute. Nonetheless, finding a post-war solution has been proven far more difficult, due to suffered human and material loss, drastically opposing interests and lacking trust in other involved parties. It appears that heads of states sometimes tend to forget the past and their predecessors actions, wherefore they repeatedly find themselves in the same predicament.5 This treatise, hence, raises the question
which process of dispute settlement can provide a post-war solution that is perceived as justice and contributes to avoiding a potentially following dispute at the same time. This process of past peace settlements will therefore constitute the main focus of this paper, aiming to create a crosslink between certain historical events, to thereby demonstrate the challenges of post-war dispute settlement.
1 cf. Kissinger 1977, p. 139
2 Definition of Peacemaking: < http://www.un.org/en/peacekeeping/operations/peace.shtml > last accessed 8/7/17
3 Multilateral disputes of this extent will - without a discussion about the correct distinction to “armed conflicts” and regardless of the various levels of intensity – be referred to as “war“ in this treatise, simply because the assessed processes of peace settlement (vide 3.) were concluded in the aftermath of disputes that undisputedly amounted to wars.
4 cf. Peck 1996, p. 132 5 cf. Leng 1983, p. 415-417
Firstly, the treatise will present the dispute resolution system provided by the UN Charter, which ought to be respected and applied by every Member state of the UN. Providing a comprehensible overview of the fundamental framework of peaceful dispute settlement and the elementary characteristics of negotiations is indispensable for the presentation of changes in post-war dispute settlement methodology over time.
Secondly, the three most important peace agreements of the last two centuries are construed from multiple perspectives. Setting the respective scene and analysing the 1814/1815 Congress of Vienna, the 1919 Paris Peace Conference and the 1947 Paris Peace Treaties, sheds light on the trajectory of decision-making components and evidences changes over time. By means of a critical juxtaposition, contrasting a number of common and contrary aspects to the historical events, it is underlined that peace agreements are not only putting an end to a dispute, but also forming the groundwork for settling the next one.
Thirdly, the fundamental framework of dispute settlement will be reflected from a historical perspective, leading to instructive questions regarding the process of solving disputes. Considering the development of post-war dispute settlement processes, the necessity of general goodwill of the parties becomes apparent and leads to the conclusion that the creation of international institutional frameworks is in fact the most promising approach.
Subsequently a succinct outlook to current disputes is given, taking their changing nature into account. Especially in a globalised world as we live in today, the growing complexity of disputes affects a broader public.6 Concluding remarks will thus emphasise the growing
significance of maintaining international peace and security and the importance to strive for it deliberately. Ultimately, goodwill, trust and justice as three fundamental criteria for promising post-war dispute settlement are derived from the preceding elaborations. The omnipresence of these necessary criteria in the past underlines that learning from history and thereby avoiding past mistakes are imperative steps for successful post-war dispute settlement. Rephrased in Bruno Kreisky’s aptly expressed dictum: “Learn a little history, Mr. Editor”7.
2. Methods of Dispute Settlement
The settlement of disputes is only a “facet of the enormous problem of the maintenance of international peace and security”8. Art. 33 UN Charter enumerates “negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or 6 cf. Eyffinger 2000, p. 124
7 In 1981 Bruno Kreisky (Austrian Chancellor from 1970-1983) countered with „Lernen Sie ein bisserl Geschichte, Herr Reporter“ when the Austrian journalist Ulrich Brunner asked the Chancellor a question in an interview.
arrangements, or other peaceful means“ as mechanisms to find a solution to a dispute. This key provision has to be read together with the abovementioned Art. 2(3) UN Charter when it comes to the assessment of various dispute settlement methods. Both provisions are referring to the maintenance of international peace and security, constituting one of the most fundamental aims of the UN9. Without the mentioning of endangering international peace and
security, in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States10 the necessity of “early and just settlement” is
emphasised. It is therefore clear that “even disputes whose continuance cannot be said to endanger international peace should be settled as harmoniously as possible”11. Accordingly,
the application of methods provided by the current framework of dispute settlement will not hinge upon the actual endangerment of international peace and security. First of all the fundamental framework of current dispute settlement mechanisms is displayed, in order to provide a comprehensible overview. Subsequently, the most important characteristics of negotiations are assessed to internalise their inherent nature, which played a significant role in post-war situations. (vide infra 3.)
a. Fundamental framework
Dispute settlement can be divided in two superordinate categories. Diplomatic procedures, on the one hand, aim to encourage disputing parties to resolve their dispute on their own or with aid from a third party. Adjudication, on the other hand, includes dispute resolution by either an arbitral tribunal or a judicial organ, both constituting an independent and uninvolved third-party. Such courts and tribunals can be permanent or temporary, but also especially established for one particular dispute. Common to both adjudication procedures is, however, that the results are usually binding upon the parties.12
Even though there is no hierarchy inherent to the various methods, the wording of Art. 33 appears to imply a subliminal order. In particular because negotiation, being regarded as basic means of resolving disputes13, is mentioned first in the enumeration. Assuming this sequence
was intentional, the fact that diplomatic methods precede adjudication in the formulation could be interpreted as an indication to address disputes with diplomatic means first. However, this assumption does not amount to a rule or an obligation, which is also underlined
9 Art. 1 UN Charter
10 UN, GA Resolution 2625 (XXV), 24.10.1970. 11 Higgins 1995, p. 293
12 cf. Shaw 2014, pp. 732, 758-759 13 Merrills 2011, p. 25
explicitly in Cameroon v Nigeria14. Nonetheless, in the North Sea Continental Shelf Cases it
is clarified that negotiation, is a less complex forms of dispute settlement than the others.15
Notwithstanding, Sydney Bailey correctly points out that “diplomatic skill in handling disputes is a sine qua non”16, regardless of the method chosen.
Similarly, consent – even though sometimes only formally – of the involved parties is mandatory for every available method.17 However, the extent of necessary consent decreases
concurrently with increasing third-party involvement, wherefore the constellation of involved parties and the intensity of their participation in resolving a dispute are of particular significance. Thus, the applied methods are also discerned as either decentralised/dyadic or centralised/triadic. Only negotiation is in fact a completely decentralised method, as every other mechanism requires the interaction with an external third party not being party to the dispute.18
Ultimately a distinction can be drawn between power-based, rights-based and interest-based dispute resolution. The first category describes situations where lawfulness is proven by a contest of powers. In other words, conflicting states attempt to impose their terms of peace by relying on power structures of various intensity, resorting to war in the worst case. Opposed to this approach of fighting fire with fire, the rights-based approach means ensuring rightfulness according to a standard such as international law. Hence, utilising a commonly accepted framework as a guideline to ascertain a just resolution of disputes. Thirdly, the interest-based approach implies the reconciliation of opposing interests.19 However, the ability to assert own
interests will evidently depend on the state’s position in the global community and its “power” to do so.
b. Negotiation
Negotiation is usually the starting point when arguing parties are trying to settle a dispute.20
Reason for this is the particularly high level of flexibility that characterises this dyadic method. Firstly, it is applicable to every kind of dispute, may it be political or legal. Secondly, the parties to the dispute are negotiating on equal terms, without any interaction of a third
14 „Neither in the Charter or otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court.“ (Cameroon v. Nigeria (Preliminary Objections), ICJ Reports, 1998, pp. 275, 303.)
15 cf. Shaw 2014, p.737 16 Bailey 1971, p.18
17 cf. Bilder in: O’Connell 2003, p. 28 18 cf. Bailey 1971, p.17
19 cf. Peck 1996, pp.10-12 20 cf. Higgins 1995, p. 293
party.21 Provided that this equal footing is in fact ascertained, this mechanism therefore gives
the colliding states complete control over the resolution of their dispute.22 Despite the clear
distinction from all other methods in the current framework of dispute settlement, negotiations always take place at some point of a dispute settlement process. Nonetheless, they might reach their limits so soon that the application of other methods will be inevitable.23 This leads
to the major particularity of negotiations, namely the ultimate dependence on the degree of goodwill and sensitivity of the parties involved.24 As a necessary consequence, often parties
will only consent to negotiations with certain expectations towards the outcome of the settlement, especially if two “powerful” nations are involved.25 In order to circumvent such a
possible deadlock, the necessity to conduct “meaningful [negotiations], which will not be the case when either of them [parties] insists upon its own position without contemplating any modification of it” was stressed in North Sea Continental Shelf.26
Important to note is the difference depending on the number of participants, while bilateral negotiations are often conducted through written correspondence, multilateral negotiations, in contrast, tend to take place in the setting of an international conference at which every party to dispute has to be present. Both types of negotiations can either take place in one of the capital cities of the parties or alternatively in a city outside the involved states, providing a “neutral” forum for negotiations.27
3. Post-war Dispute Settlement
There is “often a considerable gap between what is possible in theory and what states are prepared to do in practice“28, wherefore the application of methods will always be overlapping
and intertwined in practice. As just mentioned, negotiations for instance will often be combined with other methods resulting in hybrid forms of various natures. Bearing the necessity of the parties’ goodwill in mind, it can be reiterated that practical examples are never as unequivocal as in theory, which is further underlined by the clarification that states
21 UN Handbook on the Peaceful Settlement of Disputes between States (hereinafter UN Handbook), p. 9 22 cf. Merrills 2007, p. 362
23 cf. ibid.
24 cf. Shaw 2014, p. 735
25 For instance the “Great Powers” expectations to form the factually deciding body at the Congress of Vienna. (vide infra, 3.a.i)
26 ICJ, Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), I.C.J. Reports 1969
27 cf. UN Handbook, pp. 13-15, 21 28 Merrills 2011, p. 286
have a free choice of methods to utilise for settling a dispute29. This intricacy is exemplified
by an analysis of applied methods to conclude agreements in the most important post-war situations of the 19th and 20th century. In order to provide a comprehensive overview, firstly
the respective scene is set with an adequate description of occurrences. Secondly, pointing out similarities and differences regarding certain striking characteristics creates a link between the historical events.
a. Past Peace Agreements
i. Congress of Vienna 1814/1815
The “Battle of Nations” near Leipzig 1813 initiated the end of the Napoleonic wars and triggered the urge amongst the victorious countries to restore order in Europe. Between March 1814 and November 1815 five events took place that would change the political map, European power structures up until WWI. In fact a new regime of European politics was introduced by this Congress, which Gerry Simpson calls the “Concert-System”.30 Even though
not everything was in fact decided in the Austrian capital city, all events are together presently conceived as the Congress of Vienna.31
On the 4th of March 1814 the representatives of the four “Great Powers”32 at the time33,
namely Lord Castlereagh, Klemens von Metternich, Karl Nesselrode and Karl August von Hardenberg concluded the Treaty of Chaumont. This agreement primarily aimed at prosecuting the war against France, but also entailed the obligation to stay allied for another period of 20 years to monitor the relationship with France, as it was expected to pose a continuous threat even after the Napoleonic era. Furthermore, the parties obliged themselves not to enter in any separate peace agreements.34 This formed “Council of Four” paved the
way for the Congress in Vienna by agreeing to hold a general congress to deal with the post-war situation.
Following the French defeat, the First Peace of Paris was signed on the 30th of May, in which
France waived all of its claims over foreign territories and accepted the reduction of its borders to the same status as it was in 1792.35 At the first glance the conditions of the Frist
Peace of Paris seem surprisingly kind to the French, just as Kissinger gives all credit to the 29 “Disputes are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties” ICJ in Fisheries Jurisdiction, para. 56.
30 cf. Simpson 2004, p. 91, 93 31 cf. Baumgart 2015, p. 706
32 The concept of “Great Powers” emerged from the Congress of Vienna. cf. Bibó 1990, p. 461 33 Britain, Austria, Russia and Prussia.
34 cf. Kissinger 1977, pp. 131-132 35 cf. Nicolson 1970, p. 100
statesmen who “were seeking equilibrium and not retribution, legitimacy and not punishment” and thereby resisted the “temptation of a punitive peace”.36 However, the decision was not
taken out of sentimentality, but rather merely for political reasons. An overly harsh treatment might have entailed the “revival of Bonapartism”, which would have been contrary to the ultimate goal of ensuring security and peace.37
Art. XXXII of the First Peace of Paris reads as follows: “All the powers engaged on either side in the present war shall, within the space of two months, send plenipotentiaries to Vienna, for the purpose of regulating, in general congress, the arrangements which are to complete the provisions of the present treaty”. Accordingly, the main mission to reconstruct the European state system remained with the actual Congress in Vienna. Accordingly, representatives of every European state that existed before the Napoleonic era gathered in Vienna and thereby turned it into the epicentre of diplomacy and politics between September 1814 and June 1815. Nevertheless, the conference was primarily directed and led by the major powers, which the French representative Charles Maurice de Talleyrand managed to join, due to his experience and diplomatic skills.38 Gerry Simpson addressed this striking paradox by
pointing out that inviting all powers to the Congress resembles the thought of sovereign equality, whereas the great power's intention to dominate the peace settlement is what he calls “legalised hegemony”, which are two opposed features.39 The newly formed Council of Five
was to some extent handicapped by the presence of the monarchs Emperor Francis I (Austria), King Fredrick William III (Prussia) and Czar Alexander I (Russia), as their support had to be affirmed after every meeting. In order to coordinate the Congress as frictionless as possible, ten separate committees were set up to address the various issues separately.40 Apart from
territorial arrangements, manifold other questions were on the agenda of this congress, such as the abolition of slavery, the creation of a German Confederation or the Swiss constitution. The difficulty of this undertaking was proven by a serious dispute about the destiny of Poland, which led to a clash between the negotiating parties.41 Finding a compromise between the
major powers in the polish question was crucial for the entire Congress, as the outcome would affect Russia, Prussia and Austria to a significant extent.42But then Napoleon escaped from
exile on the island of Elba and reclaimed the French throne, forcing the involved parties in 36 Kissinger 1977, p. 139
37 cf. Nicolson 1970, p.100
38 cf. "Vienna, Congress of." The Columbia Encyclopaedia, 6th ed. <www.encyclopedia.com> (accessed 5/5/17)
39 cf. Simpson 2004, p. 97
40 cf. Nicolson 1970, pp. 144-145, 158 41 cf. Ghervas/Jarrett 2014
Vienna to speed up their negotiations and come to a conclusion. Followed by a unified triumph over Napoleon in Waterloo, the “Acte Final” of the Congress of Vienna was eventually signed on the 9th of June.43 Napoleon’s comeback ended with him being sent to St.
Helena and France signing the Second Peace of Paris on the 20th of November 1815,
confirming both the First Peace of Paris and the Acte Final of the Congress.44 Despite some
minor territorial losses and imposed indemnity for France, this agreement was not as lenient as the first one. Nonetheless, the aim was still not to turn France into a permanently dissatisfied power. The very same day the Quadruple Alliance was established aiming for the continuous maintenance of peace in Europe. In parallel, the Holy Alliance between Austria, Russia and Prussia was founded. These two alliances “guided Europe for the next decade”45,
with France being part of this “Concert of Europe” as of 1818, aiming at managing the established balance of power, instead of abolishing it.46
It is interesting to take a brief look at Austria before the Congress, as it tried to navigate on neutral grounds between the antagonism amongst the allied powers and France. In this role, Metternich met Napoleon in June 1813, who determinedly refused territorial concessions but accepted Metternich as a neutral mediator. A month later, unsuccessful negotiations were held in Prague under the auspices of Metternich and even led to the declaration of war during summer 1813.47 Nonetheless, the intent of unilaterally trying to mediate an already existing –
but still intensifying – dispute is a notable step. The consent for the mediation was given, but the willingness to come to an agreement seemed rather one-sided, due to Napoleon’s inflexibility. Further, the neutrality and independence of the mediating party – an essential requirement for mediation, being a triadic method – can be questioned with regards to Austria, since it had certain obligations stemming from a previous treaty with Napoleon from 1812.48
Recapitulating the ensuing period, it becomes obvious that negotiation was the main pillar of the concluded peace agreement amongst the parties involved. The entire Congress can be seen as multilateral negotiations in the framework of an international conference in Vienna, a city deemed to be neutral and diplomatic. A correlation with the previous mediation attempts would not be more than a mere assumption. The successful conclusion of the Acte Final –
43 cf. Ghervas/Jarrett 2014 44 cf. Nicolson 1970, pp. 238-241 45 cf. Kissinger 1977, pp. 184-190 46 cf. Simpson 2004, p.95 47 cf. Stauber 2014, pp. 21-24 48 ibid., p. 21
which is considered the first collective agreement in the history of international law49 – can be
reduced to the participation and the goodwill of all involved parties, whereat the presence of France has to be particularly emphasized. Usually the Congress of Vienna is associated with three key words: legitimacy, restoration and balance of powers. The latter was, however, paramount to the other two objectives. Restoration and compensation were in fact means to achieve a system of balanced powers and respect for principles such as legitimacy was evidently subordinate.50 “A “balance of power system” must mean one in which the power
possessed and exercised by states within the system is checked and balanced by the power of others”51, as Schröder correctly remarks. Consequently, the active involvement of France in
the Council of Five was indispensable to create such a balance. Despite the participation of many countries, the main decisions were taken by these five nations, wherefore the equal footing of involved parties, being a fundamental characteristic of todays understanding of negotiations, was not given. Accordingly, the method utilised at the Congress of Vienna must be seen as a specific way of interest-based, decentralised negotiation. However, this was foreseeable from the very beginning, as the four Great Powers already agreed beforehand that they would take all major decisions together, by signing the secret Langres Protocol in January 1814.52 Nevertheless, the key requirement for the Concert of Europe was consensus at
the time of the agreement, wherefore the great Powers were perfectly clear that they had to act in concert and come to terms eventually. Leaving without an agreement would have entailed a high probability of a soon following belligerent dispute.53
ii. Paris Peace Conference 1919
Assassinating the heir to the Austro-Hungarian throne Franz Ferdinand and his wife in Sarajevo on the 28th of June 1814 was the famous initial spark of WWI, which was promptly
followed by a multitude of war declarations. The subsequent four and a half years amounted to the most extensive war up to that point, involving the vast majority of states worldwide. Characterised by the committed atrocities and devastating losses, British Prime Minister David Lloyd George felt that “the problems at the Congress of Vienna, great as they were, sink into insignificance compared with those which we have had to attempt to settle at the Paris Conference”54. The unprecedented situation the negotiators were facing, was not be
49 cf. Kimminich 1983, p. 233 50 cf. Baumgart 2015, p. 707 51 Schröder 1992, p. 685 52 cf. Simpson 2004, p. 96 53 cf. Bibó 1990, p. 462, 465 54 cf. Sharp 2014
solved merely by political means.55 The peace-making process was divided in multiple stages,
starting with the Paris Peace Conference in January 1919 and ending with the Treaty of Locarno in 1925. Due to the complex intertwining of circumstances, settling the disputes after WWI took even longer than the war itself.56
Following successive armistices at the end of 1918, the Paris Peace Conference started on the 18th of January 1919. The location was not undisputed though, since the severe effects of the
war contributed to a very strict settlement. 57 Other participants were not content with the
location either, as Lloyd George unambiguously revealed: "I never wanted to hold the Conference in his [Clemenceau’s] bloody capital ... but the old man wept and protested so much that we gave way".58 The mere fact that this discussion occurred proves the significance
of the location of such a large scale Conference.59 (vide infra, 3.b.i)
70 representatives from 27 states were present, but none of them from a defeated country.60
Furthermore, the fundamental decisions at the Conference were – similar to the Congress of Vienna – ultimately only taken by a Council of Four, consisting of Lloyd George, Georges Clemenceau, Vittorio Orlando and Woodrow Wilson61. Clemenceau even communicated that
no oral negotiations will take place and observations or remarks made by the German delegation have to be handed in written.62 In parallel, a Council of Five, including Japan as the
fifth state, was assigned with drafting treaties and redefining the boarders of Europe. Accordingly, the remaining states were in fact merely present.63 Thereby the Great Powers
evidently attempted to maintain both their key roles in the decision-making process and the “legalised hegemony“. Even though the acceptance by smaller states for this custom64 was
carried through the next century, it was also decreasing constantly.
In contrast to the uniformity of the “Acte Final” of 1815, five separate treaties had to be drafted for Germany, Austria, Bulgaria, Hungary and the Ottoman Empire65, wherefore the
decision making process was enormously prolonged. The suggestion to create the League of
55 Steiner in: Dockrill/Fisher 2001, p.22 56 cf. Sharp 2014
57 cf. Goldstein 2002, p. 9 58 Sharp 2014
59 The chosen date for the final signature was of particular significance as well, since Clemenceau selected the date of the anniversary of the German Empire’s proclamation in 1871. cf. Sharp 2014.
60 cf. Kinder/Hilgemann 2001, p. 411 61 Britain, France, Italy, United States 62 cf. Ströhle 1928, p. 5
63 cf. Sharp 2014
64 i.e. the custom of Great Powers deciding without an explicit legal basis. cf. Bibó 1990, p. 463
65 The respective treaties were signed in different places. Treaties of Versailles (GER), St. Germain (AUT), Neuilly (BUL), Trianon (HUN) and Sévres (Ottoman Empire).
Nations, Wilson’s “Fourteen Points”66 as the alleged basis for global peace and the problem of
not having settled an agenda for the Conference additionally caused serious confusion amongst the participants.67 The common preference to focus on institutionalisation is
evidenced by the fact that in the six plenary sessions held before the Treaty of Versailles was signed, the main topic was in fact the creation of the League of Nations, instead of substantial questions regarding the “German Problem”.68 Only on the 25th of April 1919, after
Clemenceau, Lloyd George, Orlando and Wilson had formulated the peace terms, was the German delegation actually invited to Versailles to review the documents. Importantly, Clemenceau requested the unconditional acceptance of the provided peace terms within a deadline of 7 days, factually leaving the Germans no other choice.69 In the same manner
Austria was not invited to St. Germain until the 12th of May 191970 and Hungary only got the
chance to plead their position after the peace terms were already settled71. This attitude
undoubtedly evidences, that the methods to deal with post-war consequences at the Paris Peace Conference were far away from negotiations, where parties are on an equal footing. They are much more a prime example of imposing terms of peace on a number of defeated nations. Taking the major losses into account, which the victorious countries suffered, Stein’s perception that “sometimes the wrong is felt so seriously that only actual retaliation in kind will satisfy the victim’s desire for revenge“72 seems very accurate. Considering further that
Germany was blamed responsible for the entire war, the aim was undisputedly to make Germany pay and suffer, even though Wilson initially strove for a non-vindictive agreement.73
The rigour of the imposed peace terms was even remarked by the French general Ferdinand Foch in 1920, who prophetically claimed: “Ce n’est pas une paix, c’est un armistice de vingt ans”.74
With regards to the concluded treaties of Versailles, St. Germain, Neuilly, Trianon and Sévres it is important to note that despite the variety of involved states all of them in fact constitute bilateral treaties and not collective agreements.75 This is logical, because the group of
66 Mentioned in a speech to the US Congress on the 8th of January 1918. 67 Cf. Sharp 2014 68 cf. Goldstein 2002, pp. 10-11 69 cf. Ströhle 1928, p. 5 70 cf. Goldinger 1962, p. 35 71 cf. Benda 1982, p. 870 72 Stein 1984, p.10
73 cf. Walworth 1986, p. 393; Count Ulrich von Brockdorff-Rantzau, German Minister of foreign affairs, said: “The demand is made that we [Germans] shall acknowledge that we alone are guilty of having caused the war. Such a confession in my mouth would be a lie.“
74 Jacquemart 2010
victorious states is entering into an agreement with every defeated state separately. The ramifications are not necessarily different for the respective states, but it indicates a methodical change in settling a post-war dispute. Since every defeated state is treated distinctly, the dissatisfaction with the dictated obligations – stemming from a comparison with other defeated states – is potentially even higher in this case.
Independent from the five concluded treaties, a number of unsuccessful peace initiatives had been attempted already during the war. Noteworthy is in particular President Wilson’s perception that the United States would be the only promising mediator in this dispute. In this role he tried to enhance negotiations between Germany and Britain, but at the same time prolonged the war by trading with the Allies, thereby maintaining their willingness to fight. Consequently, his role as a mediator was discredited.76Nonetheless, Wilson’s role at the Paris
Peace Conference must not be underestimated, as his 14 points were a laudable first attempt to approach peace negotiations with “certain clearly defined principles which should set up a new order of right and justice”.77 He was further the driving force behind creating the League
of Nations.78 The Covenant of the League stipulated to resolve disputes by arbitral
proceedings or judicial settlement, wherefore the Permanent Court of Justice was established. It was moreover specified, that in case the disputing parties would not opt for either of these two methods, the matter at hand should be brought to the so-called “League Council”. This body would then deal with the dispute, in order to circumvent progression to war.79 Evaluating
these steps, they are clear indications for an endeavour of institutionalisation and juridification.
As the Peace Treaty of Versailles caused uncertainty on both sides of the dispute, the 1925 Locarno Conference constituted a reasonable step to attempt the reintegration of Germany in the international community and thereby equilibrate the agitated international relations.80 The
Locarno Pact sought the protection against war by concluding agreements with Germany, the enemy.81 These agreements were appended to the final protocol of the conference and
provided for binding decisions by a judicial body, arbitral schemes and the creation of a Permanent Conciliation Commission. All legal disputes were to be submitted to compulsory judicial settlement, whereas the Conciliation Commission handled non-legal disputes.82 The
76 cf. Kennedy 2014 77 Nicolson 1939, p. 39 78 cf. Goldstein 2002, p. 34-35 79 cf. Ku 2001, p.16
80 cf. Goldstein 2002, p. 94
81 Germany was, however, the only defeated nation to be negotiated with. Austria, Hungary and others were not dealt with in Locarno.
Treaty of Locarno firstly proves the ultimate significance of including the losers of war in held negotiations and secondly evidences the preference to trust a neutral and independent body with arising contentious matters. Especially in tense situations such as the immediate aftermath of a war, the prosperity of negotiations taking place solely amongst victors and losers can be very limited.
Regarding the conference, British diplomat Harold Nicolson wrote: “We came to Paris convinced that the new order was about to be established, we left it convinced that the new order had merely fouled the old”83 It follows from this, that the “peacemakers” of the Paris
Peace Conference tried to approach the resolution of a major dispute from different perspectives than before, perceiving the solution a century before as inadequate.
iii. Paris Peace Treaties 1947
With WWII mankind managed to trump every previous war in manifold terms. The number of involved states, the tremendous losses and damages, as well as the immeasurable cruelty led to a situation where finding a just solution appeared almost impossible. Settling the smouldering tensions after the war was not to be done in one Conference or one simple treaty, wherefore multiple steps had to be undertaken. By assessing the Conference of Yalta, the Potsdam Agreement, the UN Conference in San Francisco and the Paris Peace Treaties concluded in 1947, it will become evident that the dispute settlement process after WWII is the prime example that ensuring sustainable peace after multilateral disputes is not a matter of one formal peace treaty anymore, but rather a lengthy and complicated process.84
Once again the key roles in settling the disputes were played by only a handful of individuals and their advisors. In 1943 US President Franklin D. Roosevelt and British Prime Minister Winston Churchill met in Casablanca to discuss further conjoint strategic steps against the Axis Powers.85 Later that year, Josef Stalin joined the next meeting taking place in Tehran,
again reviewing the next steps of warfare and how to proceed once Germany is defeated.86
The following, most important encounter of these three was the Yalta Conference in February 1945, just a couple of months before Hitler’s suicide and the accompanying definitive surrender of Germany. Anticipating its defeat, questions relating to Germany were the main points being discussed.87 Roosevelt and Churchill previously met in Malta, presumably in
order to make sure that the US and Britain would have a common position against the claims 83 Lord Hurd in: Dockrill/Fisher 2001, p.7
84 cf. Arndt 2011
85 cf. Farrell 1993, pp. 22-23 86 cf. Mayle 1987, pp. 22-27
made by Stalin. The meeting in Yalta was then practically just the final and formal confirmation of the priorly made arrangements. Accordingly it can be noted, that these three personalities were in fact not dealing with any kind of dispute settlement, but rather imposing measures in the manner of WWI and thereby influencing the progression of the war.
WWII officially ended with Japan capitulating in September 1945. However, the war ended earlier in Europe, the Potsdam Agreement was already concluded on the 2nd of August. Due to
elections in the US and Britain, the constellation of the deciding panel had changed, wherefore Harry Truman had replaced Roosevelt and Churchill was superseded by Clement Attlee.88 The final outcome of the Potsdam Conference, which was held in camera, was only
published when the negotiators had reached consensus in the contentious matters. Correspondingly, the qualification of this agreement remained questionable and rather constituted a memorandum of understanding89 than a binding document in the sense of
international law. As a matter of fact the Potsdam Agreement, nonetheless, determined the future of Germany and Austria. Both countries were divided into four occupation zones, had to return all annexed territories and were compelled to pay war reparations.90 Hence, the
authority represented by the handful of victorious countries was paramount to the informal nature of the negotiated document.
By the time WWII started, the number of methods to settle disputes had already grown immensely. The failure to prevent the war, however, was once again proof for the necessity of strengthening the already existing system of dispute resolution.91 The aim was to achieve this
by establishing a multipurpose body that would provide for a range of mechanisms to peacefully settle disputes.92 Thus, strictly seen not part of settling the disputes per se, but
undoubtedly part of the process of dealing with the consequences of WWII, the United Nations Conference on International Organization was held in San Francisco between April 1945 until June 1945.93 The fact that this Conference took place a couple of months before the
Potsdam Agreement was signed, proves the realisation of the committed misconduct and the desire to avoid blundering into the same situation in a few years time. Involving the three central figures Roosevelt, Churchill and Stalin, this thought was already emphasized in 1943
88 cf. Encyclopaedia Britannica, “Potsdam Conference”
89 A memorandum of understanding is not legally binding per se, but it sets out main terms of an agreement, which may be enforceable. For the definition see “A Dictionary of Law” 7th ed. (OUP, 2013)
90 cf. Encyclopaedia Britannica, “Potsdam Conference” 91 cf. O’Connell 2003, p. xxiv
92 cf. Ku 2001, p. 13
at the Moscow Conference.94 At the time of the encounter in San Francisco, the need to
replace the League of Nations with a functioning body was therefore uncontested. Especially granting both German States temporary membership after their separation, constituted an essential step to reintegrate Germany and thereby contributed significantly to settling the post-war situation.95 At this conference 50 states signed the UN Charter, in which todays dispute
settlement mechanisms (vide supra, 2.) are embedded. The significance and major impact of this global cooperation can therefore not be emphasised enough.
This fundamental conviction to strive for international peace and security can also be found in the 1947 Paris Peace Treaties. Between July 1946 and February 1947 the victors negotiated peace terms with Germany’s allies Italy, Hungary, Romania, Finland and Bulgaria at a conference in Paris. Just as in the Potsdam Agreement, the major points were due reparations, territorial changes, but also prospective political obligations. Estimating the experienced loss and damage in Dollars, plus also arranging borders newly evidently posed the usual challenges. By looking at these political clauses of the treaties though, it becomes evident that the essential pillar had shifted since the previous war. The wording “Hungary shall take all measures necessary to secure to all persons under Hungarian jurisdiction, without distinction as to race, sex, language or religion, the enjoyment of human rights and of the fundamental freedoms, including freedom of expression, of press and publication, of religious worship, of political opinion and of public meeting”96 undoubtedly indicates the intent of the authors to
strive for democracy and equality. This is further underlined by the undertaken obligation “not [to] permit in future the existence and activities of organisations of that nature which have as their aim denial to the people of their democratic rights”97.
In the Peace Treaty with Italy 1947 a Conciliation Commission was entrusted to decide upon issues such as the restitution of property or the compensation for losses98. In fact, however, the
transferred competences were similar to the ones of arbitral tribunals, as they were binding and definitive.99 This notion once again proves the endeavour of transferring the decisive
power to a neutral body, instead of relying on negotiations.
94 Moscow Declaration 1943, Para. 4 states that the allies „recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security“.
95 cf. Arndt 2011
96 1947 Treaty of Peace with Hungary Part II, Section I, Art. 2
97 ibid., Art. 4; 1947 Treaty of Peace with Italy Part II, Section I, Art. 17 98 1947 Treaty of Peace with Italy, Part IX, Art. 83
Recapitulating the process of dispute resolution after WWII, especially two particularities become apparent. Firstly, that the agreements concluded by the “powerful” nations during the war again excluded the other nations. In contrast, however, the defeated nations were present at the 1947 Conference in Paris to come to terms with the allied powers. Indicating that classic methods of dispute settlement are not promising during wartime, whereas a post-war application – still in the shadow of non-effaceable power structures – might provide an acceptable solution to all parties involved. Secondly, that after having lived through two world wars in one century, the institutionalisation of dispute settlement became a major objective.
b. Similarities and Differences
Comparing the three outlined historical events, certain parallels, but also discrepancies can be found. The uniqueness of every respective situation is self-evident and has to be born in mind at all times. Nonetheless, it is possible to compare, generalise and create a crosslink between the events by contrasting questions of methods, participants, location, territorial agreements and created institutions.100
i. Methods
Connotatively necessary, the term “peace agreement” implies that negotiations are and have always been the major way of settling disputes. As no means of dispute settlement are agreed upon before a war, negotiations still always constitute the first step of post-war dispute resolution, even though they can quickly result in a deadlock. Nevertheless, they usually form the basis for a concluded agreement providing for various other mechanisms, such as arbitral tribunals or conciliation commissions established by that very agreement. As the latter methods gained significance in the second half of the 19th century, the long durability of peace
after the Congress of Vienna caused optimism and also an upswing of peaceful dispute settlement methods.101 From this perspective the authoritarian way the 1919 Paris Peace
Conference was executed appears even more peculiar. However, as Kissinger concludes accurately, “all negotiation must be based upon the interchange of dependable concessions; if the concessions made by one side are held to be valid and the corresponding concessions made by the other side are thereafter repudiated, then all negotiation becomes impossible”.102
Due to the unwillingness of Germany to accept the defeat after WWI, the allied nations were
100 cf. Miall 1992, p. 24 101 cf. Weiler 1975, p. 464 102 Kissinger 1977, p. 159
indeed facing particular difficulties to settle the dispute.103 Anticipating this dilemma, they
presumably opted not to include the defeated nations in the negotiations at all. (vide infra,
3.b.iv) Notwithstanding, this tradition of negotiating behind closed doors can be dated back to
the Congress of Vienna, where the Great Powers met in Metternich’s apartment.104 This
attitude of “legalised hegemony“, as Simpson calls it, is in fact the insidious diplomatic packaging of a decision undertaken by a small number of great powers in the “legal” format of an international agreement, unobtrusively forcing smaller states to concede. Furthermore, the agreements were intended to be sustainable in nature and depending on their success also valid for decades. Hence, the decision was even respected by other states in the end. A realistic possibility to execute the concluded agreement, additionally contributed to this acceptance.105
Comparing Metternich’s and Wilson’s intention to act as mediators, another similarity becomes visible. Mediation is the active intervention by a third party aiming to reconcile opposite demands and provide a satisfactory solution for the involved in a confidential and informal manner. Further, mediation possesses the additional preventive effect of reducing emerging tensions throughout a dispute. Even though mediation has no binding effect per se, the accepted proposal often serves as a fundament for the final settlement of the dispute.106
Exactly for this reason, it is a method to be applied at an early stage of settling a dispute, to countervail opposing interests as soon as possible. Despite their influence on the final outcome, both Metternich and Wilson were unsuccessful in the end. This failure can supposedly be traced back to their states involvement in the dispute, as mediation is a classic third-party mechanism, for which trust from all others is indispensable. Especially in multilateral, fraught post-war situations such confidence in other involved parties is – not surprisingly – rare. Hence it can be concluded, that due to lacking neutrality and independence mediation did not provide a promising method for a settlement. Drimmel even argues that Wilson could have known from his previous experiences as a historian, that once serious animosity exists, a mediator will be given no chance to settle the dispute.107 In this
context it is interesting to note the finding that the presence of a mediator tends to contribute to a longer durability of peace, whereas a mediated agreement does not.108 From this it can be
derived that an entirely negotiated agreement is in fact preferable in post-war situations, as it 103 cf. Steiner in: Dockrill/Fisher 2001, p.22
104 cf. Simpson 2004, p. 115 105 cf. Bibó 1990, p. 463-465 106 UN Handbook, 41-45 107 cf. Drimmel 1984, p. 421
is very unlikely to find an independent and trustworthy mediator, who is accepted by all other involved parties.
ii. Participants
Negotiations form, as previously construed, the bedrock of post-war dispute settlement. The question arises, hence, how to execute these negotiations. Namely, who is entitled to take part and what role do the respective participants play? Churchill claimed that “those who can win a war well can rarely make a good peace and those who could make a good peace would never have won the war”.109 Accordingly, the prospects for a fair settlement would –
regarding the fact that the decision who will participate in negotiations is in fact up to those who just won the war – not be very promising. This claim can further be underlined by the truth that power-sharing arrangements to please the involved parties’ interests, are a common feature of negotiations.110As a consequence, the participants are primarily the victors and, if at
all, their allies. Whilst the Congress of Vienna was exceptional for the inclusion of all involved parties, the Paris Peace Conference is the prime example for the converse paradigm. Even though France initially suggested following the structure of dispute settlement established at the Congress of Vienna, the defeated nations were not included in the end.111
The subsequent discontent amongst the defeated was, thus, no surprise. According to Leng, it is common sense that the success or failure of a negotiations process in one dispute will have an effect on the chosen bargaining strategy in a potential subsequent crisis.112 From this
perspective it is comprehensible that after WWII the defeated nations were not entirely excluded.
Just as every party involved in the dispute would like to take part in the negotiations, naturally every negotiating party wants to exercise as much power as possible. Therefore the second posed question has to be answered similar to the first. The key players, who decide how far they take others interests and arguments into account, will again, mainly distribute the exercised power. For instance, the inclusion of France in the Council of Five at the Congress of Vienna, was based both on Talleyrand’s skills, but also the other four nations acceptance to grant this position to France. It is indisputable however, that the motivation to play an influential role in the decision-making process enabled France to get away with such lenient repercussions at all. Maoz claims that “it is not the size of the stick one carries, but the way one speaks and utilizes the stick, whatever its size, that matters [in interstate disputes]“. 109 cf. Muller 2003, p. 25
110 cf. Hartzell/Hoddie 2003 , p. 324 111 cf. Sharp 2014
Thereby he is disassociating power from motivation and emphasising the importance of a nation’s stakes in a dispute.113 To conclude, it can firstly be stated that the composition of the
decision-making body is crucial for the final outcome of the dispute and that this composition will, secondly, hinge upon the goodwill and the intentions of the victors of war. Coercive measures are indisputably detrimental to the relationship between the parties, making a settlement even more difficult or only of short duration.114 Thus, not including the defeated
parties will also entail negative ramifications on the durability of the concluded agreement.
iii. Location
For negotiations with good prospects, an international gathering presupposes a location that is accepted by all involved states. Already in the early modern era long discussions were held about the location of a conference, further proving the symbolic and tactical significance. With regards to that time, Heinz Durchhardt established confessional openness, functional infrastructure, insurance of security and immunity and surroundings that offer possibilities for informal exchange, as four criteria to choose a suitable location.115 To some extent these
factors also apply for the three described historical events, even though confession and accessibility presumably became less important over time. As mentioned above, in 1814 Vienna was commonly accepted to be a neutral and well-located ground, offering good opportunities to host a diplomatic event of that extent, whereas Paris was critically assessed after WWI. In case less states were involved, the requirement of neutrality therefore seemed to be replaced by the insurance of equal footing. Tehran, for instance, was chosen as a location for the encounter because all “the three nations were represented” in Iran.116
Likewise, Casablanca was selected, as it was territory overrun by the allies.117 In accordance
with what has been stated in the beginning, namely multilateral negotiations usually taking place in the framework of an international conference, it follows that the location primarily depends on the number of states involved. Secondly, it hinges on the parties’ relation to each other. As a matter of fact, enemies would never consent to a meeting in an inimical capital city, whereas amongst allies this is indeed a viable option. Realistically however, defeated states will not have much influence on where their fate will be sealed.
113 cf. Maoz 1983, pp. 222-223 114 cf. Peck 1996, p. 11
115 cf. Schelling 2015, pp. 24-26 116 Mayle 1987, p. 40
iv. Territorial arrangements
Based on the fact that expansionism118 has always been one of the major motivations to start a
war, post-war territorial arrangements logically caused the most controversy amongst the participants. Regardless of win or defeat, satisfaction with the results of the dispute settlement process is crucial for the durability of peace. In the same manner, neglected grievances can contribute to the recurrence of a conflict as well.119 The unequal durability of peace in the
aftermath of the Congress of Vienna and the Paris Peace Conference is hence undoubtedly based on the treatment of the defeated. The lenient penalisation of France in 1815 cannot be compared with the dictated punishment of Germany or Hungary after WWI.120 Taking into
account that Hungarians, for instance, still mourn the substantial territorial and population losses on account of the Trianon Treaty, it can be deduced with good conscience that repercussions of this kind are exceptionally excruciating. Consequently, the way in which territorial questions are resolved plays a crucial part of post-war dispute settlement overall.121
The Congress of Vienna was characterised by aim of restoration, which also applied to re-establishing national borders. Inherent to this thought is the creation of the situation that existed before, as if nothing happened. Wilson, in contrast, endeavoured to “readjust frontiers along clearly recognisable lines of nationality”122 and thereby base the settlement after WWI
on the principle of self-determination.123 The inner drive on the British and French side,
however, seemed to be more built upon retaliation, punishment and territorial aspirations. Furthermore, strategic considerations, such as creating a buffer between Germany and Russia through Poland’s independency, were extremely significant, though blatant.124 After WWII,
the borders of Finland, Romania, Hungary and Bulgaria were restored to the status quo ante
bellum, thus dealing with territorial changes similarly as with the French in 1815. Italy on the
other hand, had to hand over colonies and territories acquired at an earlier stage.
Since borders are rearranged after wars and the victors take such decisions, it cannot be denied that their own political interests will shape the new map in the end, regardless of eventual formal agreements.125 Consequently, the orchestration of implementing these
118 Expansionism can be based on various reasons, such as ensuring ethnicities to stay within national frontiers or, in contrast, using it as a strategic instrument of powerful nations. cf. Romsics 2014, pp. 20-25
119 cf. Peck 1996, p. 11
120 cf. Baumgart 2015, pp. 708-709
121 In his closing statement in 1919 Albert Apponyi, the leader of the Hungarian delegation, stressed that the victors’ role as “judges of fault” was entirely owed to the victory itself, criticising the unequal treatment of defeated nations as not being representative of the distribution of guilt. cf. Rubicon 2014/6, pp. 40-45 122 Point 9 of Wilson’s 14 Points
123 cf. Walworth 1986, p. 50 124 Nagy 1997, p. 25 125 ibid., p. 26
political interests will be at the centre of attention, not the interests themselves. The judgment whether territorial arrangements were just or not, will therefore depend on the political motivations of the parties involved. Nevertheless, the recurrence of the restoration thought after WWII proves – compared to the “territorial punishments” after WWI – the accuracy of this approach in principal.
v. Created Institutions
Last, but definitely not least, all three post-war dispute settlements were trying to implement institutional structures to guarantee future stability, peace and security. Alternative methods to manage power and conflict were sought in the aftermath of WWI in order to “restrain the unfettered freedom of states to destroy themselves and their citizens“, which led to the creation of the League of Nations and subsequently the UN.126 However, already the
Quadruple Alliance’s intentions to hold a regular “Concert of Europe“ in order to circumvent potential wars, proved to be a vital contribution for the maintenance of peace and security in the 19th century.127 The fundamental prerequisite of the “Concert of Europe” was for the
Great Powers to come to a unanimous agreement by respective compromise. Thereby a system of checks and balances that would ensure stability by monitoring potentially destabilising factors and counterbalancing them if necessary was established.128
Baumgart qualifies the nature of the Treaty of Versailles as being far away from this “Concert of Europe”-thought and in fact constituting a peace dictate. The laudable thought from the Congress of Vienna can, however, be found again in the foundation of the League of Nations, but even more in nowadays structure of the UN.129 Simpson specifies this by pointing out that
both at the Congress of Vienna and in San Francisco, the smaller states conceded the right to make decisions to the Great Powers despite their disappointment with this superior attitude.130
This proves the methodological approach of the dispute settlement in 1814/1815, but also its overarching impact up until present days. However, instead of a vague “Concert of Great Powers”, after both world wars states were striving for an institutional structure that would be more effective and regulated, but would still ascertain their positions of power.131 Whilst the
League of Nations was mainly concerned with establishing a legal order, building on respect for justice and legal obligations, the architects of the United Nations focused more on creating a system based on national interests and power relations, by ensuring their domination 126 cf. Ku 2001, p.13 127 cf. Baumgart 2015, pp. 708-709 128 cf. Bibó 1990, pp. 462, 464 129 cf. Baumgart 2015, p. 722 130 cf. Simpson 2004, p. 107 131 cf. Bibó 1990, p. 466
through a veto in the Security Council.132 It is argued that the failure of the League stems from
embodying the Covenant in the Peace Treaties, whereby an inherent association with the victors of the war was created. Further, not involving Germany and Russia from the beginning evidently prohibited the institution from being commonly accepted.133 In contrast, the Paris
Peace Treaties allowed the defeated countries to join the UN and also ensured their sovereignty. This methodically different approach undoubtedly contributed to the distinct success of the two institutions, wherefore it can be deduced that, similar to the participation in negotiations, involving all parties in such international cooperation is crucial for their ultimate success.
4. Reflections on the Process of Dispute Settlement
With regards to the question of a possible hierarchy between the initially distinguished diplomatic procedures and adjudication, it can be deduced from the historical elaborations, that diplomatic procedures seem to factually forerun methods of adjudication, as the establishment of “quasi-adjudicating bodies” in form of international institutions usually takes places after the application of other methods. As argued above, negotiations form the fundament for future settlements amongst the diplomatic procedures, wherefore this method can be placed on the top of a hypothetical hierarchy with good conscience. Nonetheless, a further hierarchical order has to be denied, since the methods applied in post-war situations are manifold and by far not as clear-cut as the present framework provides for.
In principle the requirement of consent is common to both past and present methods. However, the consent of defeated states after a war played a significantly subordinate role, which is why the probability of peace dictates was much higher in the past. Through the implementation of commonly respected institutional frameworks this is less likely to happen today. (vide infra, 5.) Furthermore, territorial decisions imposed by Great Powers are also less likely to occur, if a transparent system of decision-making is provided.
Distinguishing centralised and decentralised methods in post-war situations leads to a paradoxical finding. Despite negotiations being the only decentralised and most utilised method to settle the disputes, it seems that a decision taken by a supranational body would win more recognition after a war. Consequently, it appears that due to lacking trustworthy institutional structures, states rather resorted to decentralised negotiations than in actuality preferred methods.
132 cf. Goodrich 1955, pp. 12-13 133 cf. Goldstein 2002, p. 46
Ultimately, the distinction between power-based, rights-based and interest-based dispute settlement has to be reiterated134. The first category would mean solving disputes arising out
of war with war. Naturally, this would then not be dispute resolution, but dispute continuation. In a post-war context the rights-based approach would refer to centralised dispute settlement, namely transferring the decision-making competency to an institution, in accordance with a certain standard, such as international law. The interest-based approach, which aims for reconciliation of opposing interests, would hence be applicable for negotiations. In spite of the official goal to achieve so, the enumerated historical examples did not always aim for such a peaceful reconciliation. In conformity with the preference of centralised methods, the rights-based approach hence seems to be the most promising in post-war dispute settlement. This is underlined by the dominant assumption in the late 19th century
that most wars could be prevented by a system of obligatory arbitration.135 Especially after
1980 arbitration started to gain relevance expeditiously, a trend that was predicted by Sohn in 1982.136 The current preference of arbitration supposedly stems from its flexibility, compared
to the rather rigid system of judicial settlement.137 Further, it represents a move away from the
power-based system of negotiations towards a more principled system.138
Reconsidering the similarities and differences between the historical events and contrasting them with current methods – even though they did not exist at that time –, is a suitable way to provide an instructive conclusion, which raises overarching questions on how to approach the settlement of a dispute that are applicable to both past and present times.
The first questions to be raised are; which states are parties to the dispute139, what is the root
of the dispute and what are the corresponding interests? History has shown that the incentives for disputes or wars can be multi-layered and ambiguous. Nonetheless, expansionism, power struggles and economic aspirations can presumably be singled out as predominant factors from past narratives. Taking these motivations into consideration, the following issue would be to determine possible common grounds that would enable a compromise. The variety of established methods of dispute settlement provide an alterable fundament to come to terms with each other, while their respective success will hinge upon the particular circumstances of the dispute. Assuming that such a compromise can be found, the last step would be to uphold
134 cf. Peck 1996, pp.10-12 135 cf. Degan 1980, p. 262 136 cf. Sohn 1982, pp. 187-189 137 cf. Crawford 2012, p. 720 138 cf. Collier/Lowe 1999, p. 33
