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Vanderbilt Journal of Transnational Law

James K. Irvin

First Page

58

Abstract

One of the chief functions of any legal system is to provide the machinery for settling disputes between members of the society which the system serves. No legal system can be expected to solve all such disputes, but law can create an atmosphere in which the parties themselves may effect, without bloodshed, the resolution, minimization or avoidance of disputes. The disputants may choose an arbiter or conciliator to reach a settlement for them, or they may bargain and compromise until they find a common basis for an agreement ending the dispute. The latter process, called negotiation, is the most effective and by far the most prevalent means of settling disputes, whether they are between individuals, organizations, or sovereign states.

International disputes arise when the interests of two or more states conflict. A dispute may be resolved by the use of force or it may be settled peacefully by adjudication, arbitration, conciliation, or negotiation. Regardless of the means of resolution, some negotiation will occur, and it will probably influence the ultimate result. Negotiation may be distinguished from other peaceful means of settlement because it does not rely on the direct influence of a neutral third party. Instead, the disputants rely on their bargaining power and negotiating skill to find a common ground somewhere between their respective positions.

Because the international legal system has not fully matured, certain functions are left to independent resolution. In more advanced and centralized systems these functions would be performed by legislatures, courts and administrative bodies. The predominant role of negotiation in the settlement of international disputes is, therefore, not very surprising, and, as the movement toward a centralized international legal order falls behind the pace of increased international interdependence, the importance of negotiation grows. Furthermore, because negotiation automatically comes into play when a dispute occurs, the role of negotiation in contributing to a peaceful settlement is especially significant.

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