The Dispute Settlement Mechanisms in Major Multilateral Treaties
CIL researchers Anais Kedgley Laidlaw and Shaun Kang have completed a major quantitative study of the dispute settlement mechanisms of 236 major multilateral treaties for which the UN Secretary-General is depositary. As part of their research they examined the different types of dispute settlement mechanisms contained in those multilateral treaties, including those which provide for referral to a third-party (as opposed to simply requiring negotiation or consultation), those which provide for compulsory as opposed to voluntary procedures, and the types of third-party provided for.
Their key finding is that—contrary to popular belief—the great majority of multilateral treaties provide for compulsory referral to a third party, meaning they can be triggered without the consent of both disputing parties.
This is significant—although mechanisms providing for compulsory referral to a third party are rarely used, their presence can, and usually do, have a major background influence over the actions of States, which typically seek to avoid lengthy and expensive dispute settlement procedures.
The findings are also timely. In the context of its dispute with the Philippines over the South China Sea, China’s position has been that the consent of both disputing parties should be obtained before third party mechanisms can be triggered – despite clear provisions in the UN Law of the Sea Convention which provide for compulsory referral of disputes to third-parties.
The authors hope that this research will help debunk the myth that compulsory referral of disputes to a third party is uncommon or unusual in international treaties, and will enable a better understanding of the different types of dispute settlement mechanisms found in multilateral treaties, to assist those involved in the negotiation of dispute settlement provisions in future multilateral agreements.