“ADR in International Disputes”
Notes for a Presentation
by Jack R. Miller,
Member of the Bar of the Province of Quebec
and of the Law Society of Upper Canada

The North American Conference on
Peacemaking and Conflict Resolution

Montreal, Canada
March 4, 1989

The purpose of my presentation this morning is to share with you some of my thoughts and experience with regard to the very broad topic of ADR in international disputes. ADR is the private law counterpart of dispute settlement mechanisms of public law.

I submit that the two systems – the private ADR system and the public dispute settlement mechanisms – are part of the same spectrum of conflict resolution and dispute settlement. I submit further that the two systems could interact and in so doing add value to the other.

Perhaps I should first give you my working definition and understanding of “ADR”. I do not see ADR as necessarily an alternative to any particular method of resolving disputes but an alternative to conventional ways of thinking about resolving disputes which may result in the use of different tools than those which might otherwise have been used to resolve the dispute. For me, ADR is an approach involving the use of a set of tools of different shapes and sizes designed for particular applications.

Conventionally, it is often thought that disputes are resolved by adjudication, i.e. by a third person deciding the matter for the parties to the dispute on the assumption that the parties are incapable of deciding the matter themselves. This approach has developed from the formal court system to a system of informal administrative tribunals to a system of arbitration. These conventional adjudicative systems have become overloaded and put to all applications. Such systems are concerned with issues such as jurisdiction and whether or not decisions are binding on the parties. They all put a heavy burden on the decision-maker.

While adjudication has its place, and a more rational use of such systems will reduce the drain on the public treasury and polish their lustre, the basic trend is towards another fundamental approach to dispute resolution, namely settlement of disputes by the parties to the dispute, often with the aid and support of third persons. I call this approach “facilitative” to distinguish it from “adjudicative”. I think that this approach is a prime characteristic of what we refer to as “ADR”.

Under facilitation, issues of jurisdiction fade away since the parties control the process. Whether or not a decision is binding takes on a much different colour since the parties themselves have each made a decision which results in the settlement. And what one looks for in a third party is much different: the third party is essentially a facilitator and not a decision-maker.

In public international law, facilitation has been the rule and adjudication the exception since there were few means at hand to enforce a decision by a third person on two or more nation-states. The only alternative was often facilitation so that facilitation became the rule. Consequently, public international law has generated dispute resolution mechanisms such as notification and consultation. And now there are their counterparts in private international law, namely, ADR.

It is time now to recognize that the private international law dispute settlement mechanisms, which we refer to sometimes as “ADR” and the public international law dispute settlement mechanisms, which have evolved separately from the other, are part of a single continuum of dispute resolution.

A recent concrete example of the opportunity to put private ADR and public ADR together is the Canada-United States Free Trade Agreement. One of the main stated purposes of the parties to the Agreement was to facilitate the settlement of disputes arising in the context of trade between the parties. Trade includes not only trade in goods but, for the first time in a GATT related Agreement, trade in services.

Dispute settlement mechanisms, or rather inefficient dispute settlement mechanisms, can be an effective non-tariff trade barrier. It might be accurate to say that dispute settlement mechanisms which are inefficient and ineffective actually block trade. Looking at the matter positively, private ADR and public ADR facilitate trade. At least this is the view from the marketplace.

There has been much debate and controversy in some circles in both Canada and the United States regarding the dispute settlement mechanisms of the Free Trade Agreement. In those circles, these mechanisms have been criticized on the basis that they are not binding except in limited cases. This criticism fails to take into account the nature of dispute settlement mechanisms of public international law, namely they are facilitative as a rule and adjudicative by exception. Those who understand ADR can appreciate that the FTA dispute settlement mechanisms are in the vanguard of ADR: in and of themselves, they are farsighted, forward-thinking, and realistic and they will also legitimize and promote ADR in international matters. In fact, the FTA dispute resolution mechanisms beckon to ADR to complete the system.

Let me explain. Under the FTA, because it is public international law, standing for private parties is the exception and the rule is that generally only the nation has standing. However, trade is actually carried on by the private sector. The private sector will not want to become entangled and embroiled in the politics of nation-states. Therefore, when a dispute arises, the private sector may often seek to resolve disputes themselves before resorting to the forum of public international law. Enter ADR to fill out and complete the spectrum of dispute resolution mechanisms. We need to open up practical channels of communication so that this can happen. In this connection, world trade centres may offer a convenient physical and electronic environment.

To the extent that war has its origin in commercial conflict, the public international law dispute settlement mechanisms are an alternative to war.

In effect, the General Agreement on Tariffs and Trade, known as GATT, which is both an agreement and an organization, is the commercial equivalent of the United Nations. The Canada-United States Free Trade Agreement is made in the context of GATT and sanctioned by it.

I think that we can expect a development of the standing of private parties under international commercial law similar to the development of standing of private parties under general public international law.

In 1948, the Universal Declaration of Human Rights, designed to give standing to private parties under international law which then recognized mainly nation-states was, according to one of its architects, John Humphrey, a Montrealer, a marginal document which was barely accepted. In fact, Canada originally voted against it.

Today, 40 years later as we celebrate its anniversary, the Universal Declaration of Human Rights is at the core of public international law. I think that ADR will empower the private party under public international law.

I would also like to share with you some of my thoughts on another application of ADR in international relations, namely the work that it has been my privilege to do with branches of the Iroquois Confederacy, and in particular some communities of the Mohawk nation.

The territories of the Iroquois Confederacy border the territories of Canada and of the United States. Members of the Iroquois Confederacy consider themselves members of their nation first and North Americans second.

The Iroquois have highly evolved methods of conflict resolution and dispute settlement. They welcome ADR because at last some of us non-Iroquois seem to be catching on to the essence and dynamics of conflict resolution. They are waiting for the rest of us to catch up to them so that they can at last communicate with us.

The conflict resolution and dispute settlement traditions of the Iroquois are a precious natural resource which they generously hold out to us if we are open to it.

The congruity of Iroquois justice systems and ADR enable the Iroquois and the non-Iroquois to meet on common ground, each secure in their own identity and experience.

I think that we are on the threshold of the application of ADR to the resolution of the conflicts and settlement of the disputes between the Aboriginal peoples and the other peoples of North America so that I think that we can expect to witness a break out of the impasses evidenced by confrontations and public inquiries and a fresh start on the fronts of the administration of justice, land claims including the economic development of the territories, and human rights, where I think we will see significant progress within the next 18 months.

I recommend that a concerted effort be made to explore the full potential of ADR for the resolution of conflicts and the settlement of disputes involving not only the Aboriginal peoples of North America but also the indigenous peoples of the world in general.

Let us listen to them as they share with us their experience within their communities. Let us learn from the lessons of Wounded Knee. Let us properly prepare ourselves for discussion of the merits by focusing on the processes of interaction. Let us build a common technology which we can jointly own from the best of our diverse experiences.

Finally, may I take this opportunity to share with you a personal observation, which I know is not original – thank goodness – relevant to ADR in international relations, namely that peace is here now. Let us embrace it and put our hearts and minds to the adjustments that are required. To paraphrase John Lennon, which is really only to put what he said in different words, “Let’s give ADR a chance. Let ADR begin with me”.

Thank you. And good day. And enjoy Montreal.