“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
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
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
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
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
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
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
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
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
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.