History of International Law of Conflict Management

Abstract

The task of this research seminar is to explore the history of international law of
conflict management. The conclusion of this paper expresses the beliefs of this
learner's present and developing understanding of law and its relationship to conflict
management. This paper aims at incorporating the operational capabilities of the field
of conflict management as part of liberal international relations (IR) practice, and
offers a model that incorporates conceptual and practical aspects of liberal approaches
to IR. The model is relevant for both analysts (academics, consultants) and "real
world" decision makers and practitioners, based on the research seminar.

Introduction

Conflict management is the process of limiting the negative aspects of conflict while
increasing the positive aspects of conflict. The aim of conflict management is to
enhance learning and group outcomes, including effectiveness or performance in an
organizational setting. Properly managed conflict can improve group outcomes (Poole
and Kuhn, 2000).

Conflict is inevitable and perpetual in all human interaction. "Human beings engage
in conflict. Aggression, warfare, violence seemingly equate with the human
condition" (Tidwell, 1999). Conflict has two faces: that which negatively affects
society through violent acts between people, and that which positively contributes to
the development of human relationships and social interaction. Violent acts against
humanity and society call for a different kind of treatment than do transformational
conflicts. Both require rules to ensure that justice prevails and truth is pursued.
International conflicts and conflicts within divergent cultures necessitate flexibility in
management approaches and understanding of context and procedure in order to
choose an appropriate mode of dispute management. MacFarlane (1999) underscores
the need for the evaluation of the relationship between the role of law and the
management of conflict when she says: "Modern conflict theorists have moved away
from the study of rules and systems and toward the study of disputes themselves. This
challenges students of dispute management to consider the relationship of rules to
conflict management and dispute management, both as a matter of theory and in
practice".
Conflict cannot exist without a source that is a central part of the conflict. For
example, Isenhart (2000) describes several common sources of conflict: values,
procedures, relationship, structure, data, interests and communication. These common
sources can be a part of a violent or a non-violent conflict. Nevertheless, there are
some sources of conflict that can increase the possibility of violence. Such sources
can be economic, political and social (Gardam, 2006).

Early conflict management models

Blake and Mouton (1964) were among the first to present a conceptual scheme for
classifying the modes (styles) for handling interpersonal conflicts in five types:
forcing, withdrawing, smoothing, compromising, and problem solving.

In the 1970s and 1980s, researchers began using the intentions of the parties involved
to classify the styles of conflict management that they included in their models. Both
Thomas (1976) and Pruitt (1983) put forth a model based on the concerns of the
parties involved in the conflict. The combination of the parties' concern for their own
interests (i.e. assertiveness) and their concern for the interests of those across the table
(i.e. cooperativeness) yielded a particular conflict management style. Pruitt called
these styles yielding (low assertiveness/high cooperativeness), problem solving (high
assertiveness/high cooperativeness), inaction (low assertiveness/low cooperativeness),
and contending (high assertiveness/low cooperativeness). Pruitt argues that problem-
solving is the preferred method when seeking mutually beneficial options (win-win).

Khun and Poole's model

Khun and Poole (2000) established a similar system of group conflict management. In
their system, they split Kozan's confrontational model into two sub-models:
distributive and integrative.

 Distributive – Here conflict is approached as a distribution of a fixed amount

of positive outcomes or resources, where one side will end up winning and the
other losing, even if they do win some concessions.

 Integrative – Groups utilizing the integrative model see conflict as a chance to

integrate the needs and concerns of both groups and make the best outcome
possible. This model has a heavier emphasis on compromise than the
distributive model. Khun and Poole found that the integrative model resulted
 in consistently better task-related outcomes than those using the distributive
model.

DeChurch and Marks's meta-taxonomy

DeChurch and Marks (2001) examined the literature available on conflict

management at the time and Ni established what they claimed was a "meta-
taxonomy" that encompasses all other models.

They argued that all other styles have inherent in them into two dimensions:

 activeness ("the extent to which conflict behaviors make a responsive and

direct rather than inert and indirect impression"). High activeness is
characterized by openly discussing differences of opinion while fully going
after their own interest.

 agreeableness ("the extent to which conflict behaviors make a pleasant and

relaxed rather than unpleasant and strainful impression"). High agreeableness
is characterized by attempting to satisfy all parties involved.

In the study DeChurch and Marks conducted to validate this division, activeness did
not have a significant effect on the effectiveness of conflict management, but the
agreeableness of the conflict management style, whatever it was, did have a positive
impact on how groups felt about the way the conflict was managed, regardless of the
outcome.

Rahim's meta-model

Rahim (2002) noted that there is agreement among management scholars that there is
no one best approach to how to make decisions, lead or manage conflict. In a similar
vein, rather than creating a very specific model of conflict management, Rahim
created a meta-model (in much the same way that DeChurch and Marks, 2001,
created a meta-taxonomy) for conflict styles based on two dimensions, concern for
self and concern for others. Within this framework are five management approaches:
integrating, obliging, dominating, avoiding, and compromising.

 Integration involves openness, exchanging information, looking for

alternatives, and examining differences to solve the problem in a manner that
is acceptable to both parties.
  Obliging is associated with attempting to minimize the differences and
highlight the commonalities to satisfy the concern of the other party.

 Dominating in this style one party goes all out to win his or her objective and,
as a result, often ignores the needs and expectations of the other party.

 Avoiding here a party fails to satisfy his or her own concern as well as the
concern of the other party.

 Compromising involves give-and-take whereby both parties give up

something to make a mutually acceptable decision (Rahim 2002).

 Special consideration should be paid to conflict management between two

parties from distinct cultures. In addition to the everyday sources of conflict,
"misunderstandings, and from this counterproductive, pseudo conflicts, arise
when members of one culture are unable to understand culturally determined
differences in communication practices, traditions, and thought processing"
(Borisoff and Victor, 1989). Indeed, this has already been observed in the
business research literature.
 Renner (2007) recounted several episodes where managers from developed
countries moved to less developed countries to resolve conflicts within the
company and met with little success due to their failure to adapt to the conflict
management styles of the local culture.
 As an example, in Kozan's study noted above, he noted that Asian cultures are
far more likely to use a harmony model of conflict management. If a party
operating from a harmony model comes in conflict with a party using a more
confrontational model, misunderstandings above and beyond those generated
by the conflict itself will arise.
 International conflict management, and the cultural issues associated with it, is
one of the primary areas of research in the field at the time, as existing
research is insufficient to deal with the ever-increasing contact occurring
between international entities.

International law, also known as public international law and law of nations, is the set
of rules, norms, and standards generally accepted in relations between nations. It
establishes normative guidelines and a common conceptual framework to guide states
across a broad range of domains, including war, diplomacy, trade, and human rights.
International law aims at the practice of stable, consistent, and organized international
relations (Janis and Noyes, 2006).

The origins of international law can be traced back to antiquity. Among the earliest
examples are peace treaties between the Mesopotamian city-states of Lagash and
Umma (approximately 2100 BCE), and an agreement between the Egyptian pharaoh
Ramses II and the Hittite king, Hattusilis III, concluded in 1258 BCE. Interstate pacts
and agreements of various kinds were also negotiated and concluded by polities
across the world, from the eastern Mediterranean to East Asia.

The impetus to manage conflicts and limit their effects is evident even in the tentative
collective security arrangements of antiquity. Ancient China was home to some mixed
experiments in cooperative leagues of independent states in the seventh and sixth
centuries BC, in which limiting warfare and its deleterious effects was a primary
objective; the dissolution of these proved a precursor to a long period of bitter
warfare. Elements of collective security and conflict management were also present in
the Pan-Hellenist leagues of classical Greece. From their origins as military alliances
born of convenience, these arrangements evolved to a point where the most powerful
actors were entrusted with the responsibility for the maintenance of order, in return
for some executive powers and privileges conferred by weaker (Bercovitch and
Regan, 2004).

The 15th century witnessed a confluence of factors that contributed to an accelerated

development of international law into its current framework. The influx of Greek
scholars from the collapsing Byzantine Empire, along with the introduction of the
printing press, spurred the development of science, humanism, and notions of
individual rights. Increased navigation and exploration by Europeans challenged
scholars to devise a conceptual framework for relations with different peoples and
cultures. The formation of centralized states such as Spain and France brought more
wealth, ambition, and trade, which in turn required increasingly more sophisticated
rules and regulations.

Having become geographically international through the colonial expansion of the

European powers, international law became truly international in the 1960s and
1970s, when rapid decolonization across the world resulted in the establishment of
scores of newly independent states. The varying political and economic interests and
needs of these states, along with their diverse cultural backgrounds, infused the
hitherto European-dominated principles and practices of international law with new
influences. A flurry of institutions, ranging from the World Health Organization to the
World Trade Organization, furthered the development of a stable, predictable legal
order with rules governing virtually every domain. The phenomenon of globalization,
which has led to the rapid integration of the world in economic, political, and even
cultural terms, presents one of the greatest challenges to devising a truly international
legal system.

International conflict management is concerned with processes of removing tensions

between states or maintaining them at levels consistent with continued peaceful
pursuit by states of their goals (individual or collective). A full description of the
processes of conflict management within a community would entail a full description
of the numerous and complex kinds and degrees of the divisive and common concerns
among its members. This statement acknowledges, on the one hand, that conflict and
even war are by no means an abnormal part of international life (Stone, 1954). It has
been calculated that only 270 years of the 3,500 years known to history have been free
of wars. On the other hand, we should not go so far as to identify “international
politics” wholly with “oppositional” relations of groups (Wright, 1955). Charles
Boasson correctly says that such identification does not sufficiently take into account
the role of accommodation and renunciation, the influence of norms of legal and
ethical judgment, and the impact of the appeal to justice (Boasson, 1963). The
cooperative aspect is stressed by Ernst Haas, who re-explored the prospects of
contemporary international “functionalism” in the face of varied and changing types
of national societies and the future international environment (Haas, 1964), and by
Burton (1965), who offered the thesis that the use of power is steadily yielding place
to cooperative measures even in oppositional relations between states pursuing only
their own, independent, “nonaligned,” interests in regional and functional
arrangements.

It is an undoubted gain that since World War I the study of international conflict and
its management has moved out of the general monopoly of the historian (Boasson,
1963) and away from the specialized, technical concerns of the international lawyer
and publicist (Stone, 1954, introduction). There is now a Journal of Conflict
Management, and teaching and research in this area are widespread, especially in the
United States.

Good offices and mediation are special forms of negotiation in which a third party
plays a role (Nicolson, 1954). It is indicative of the comparatively recent growth and
primitive nature of international arrangements for conflict management that even
good offices is so highly valued as a method. For its import is only to restore
communication and negotiation between disputants and perhaps induce some restraint
in that communication; there is no obligation of the parties to go further.

It was still thought necessary in the first Hague Peace Conference, in 1899, to declare
that the offer of such services was not an “unfriendly act.” And after two generations
of struggle for more effective and peremptory procedures through the League of
Nations and the United Nations, these tentative prenegotiation procedures still play an
important role in conflict management.

International commissions of enquiry were provided for by the Hague Convention of

1899, which established a legal frame within which a commission could, by
agreement of the parties, be appointed to find facts on a particular dispute. Such
commissions proved useful in several instances, mostly naval incidents, of which the
best known was the Anglo-Russian dispute concerning the Dogger Bank incident
during the Russo-Japanese War. Both the League of Nations and the United Nations
adapted this kind of technique to their own organizational arrangements, the former
exploiting it particularly well as a means of procrastination and persuasion.

Alongside the scarcely inhibited powers of the United Nations Security Council to
make binding decisions in conflicts involving threats to the peace or breaches of the
peace, these traditional procedures seem puny and timid. The League of Nations and
its successor, by collectivizing even the mild, traditional procedures, greatly
developed and strengthened them (Walters, 1952).

“Internationalist” effort since World War I has not always respected these realities.
Impatience with the weak diplomatic methods caused blueprints for more “modern”
machinery to be created. Under the League of Nations the response to the ambitious
General Act for Pacific Settlement of 1928 was poor. But the response of United
Nations members to the proposed revision of this Act in 1949 was even more
discouraging. Indeed, though each Part of the Act may be accepted separately, even
Part I, on conciliation, has not been accepted by a single communist state or by any
new Asian state. Disappointment of hopes for stronger measures has stimulated some
interest in the possibilities of improving mediation techniques. The matter has, for
example, been among the projects of the Institut de Droit International and the United
Nations Educational, Scientific and Cultural Organization (Rolin, 1959).

A good deal of fruitless controversy in the vast literature produced since World War I
arises from the ambiguity of the word “justiciable,” especially when we take it out of
its historical-international context. It is often understood, for example, to refer merely
to the question whether, assuming the parties are willing to accept binding third-party
decision, a tribunal could offer some kind of solution. This really makes the problem
of justiciability disappear altogether. For the hard core of that problem lies not in the
difficulty of getting a third party to propose some solution or other, but in getting the
states in conflict to invite him to do so and in his then finding a solution that will
settle the real issues about which they are in conflict (Stone, 1961).

The chronic and festering East-West conflict concerning Berlin after World War II,
for example, could no doubt be reduced to a series of legal questions eminently
suitable for adjudication by the International Court. Some of these would be: What is
the extent of any obligation of the Soviet Union to permit traffic of German personnel
and goods between the Federal Republic of Germany and West Berlin under the
Jessup-Malik talks of 1949? What limits, if any, are there to the Soviet obligation to
permit Allied military rail, motor, or air communications between West Germany and
West Berlin? And there would also be many legal subquestions. Yet, when all such
questions had been answered by a tribunal, the management of the conflict would not
necessarily have been advanced. For the concerns that have brought about and
maintain this conflict really have little to do with such questions (Wengler, 1956).

The problem of justiciability shows itself, first, in the case of a simple refusal of the
parties in conflict to submit to any third-party determination. Before such submission,
the question has no technical legal import, and justiciability is then a mere policy
issue between those favoring and those opposing submission. The question whether a
dispute is justiciable may also arise as a technical legal question. This happens in
cases where there has been an apparently relevant submission of a class of future
conflicts, the class being delimited in the instrument of submission to exclude
conflicts that are “nonjusticiable” (sometimes called “political”) or to include only
those that are “justiciable” (sometimes called “legal”). There is, moreover, no magic
in these literal words. The distinction in the General Act of 1928 is in terms of “legal”
and “nonlegal” and when states agree under the “optional clause” of article 36(2) of
the Statute of the International Court of Justice to submit to the court the categories of
disputes there enumerated, the whole enumeration is qualified by the problematic
words, “legal disputes concerning.” There is, moreover, a view that some treaty
obligations, for instance to join another party in war, are in their nature political, or
nonjusticiable, in the sense that each party must determine for itself whether the
obligation has matured.

Clearly, under the older “vital interests, honor, and independence” reservations
formula, the determination of whether the issue was justiciable was subjective to each
party in conflict. This probably remains so whenever the question of justiciability in
the present sense arises, unless a state’s submission or the constitution of a standing
tribunal to which the matter is submitted makes the contrary clear (Stone 1958, p. 32).
The effect is to allow the state concerned, if it chooses to be arbitrary (and face any
moral disapproval entailed), to escape altogether its obligation to submit to
arbitration. Indeed, advocates of extended arbitration have used this as a point of
cogent logical attack upon the notion that there are disputes that can be nonjusticiable.
Unfortunately, the basic weaknesses of the international legal order, from which this
notion continues to draw its force, are such hard empirical facts that, although they
can be exposed, they cannot be removed by logic.

For creating peace and conflict prevention, peace workers apply conflict management
strategies, which can help to some extent. As a result, intercultural conflict
management emerged and made it possible to analyze conflicts and find ways to
reduce international tension. According to Ting-Toomey and Oetzel (2001),
intercultural conflict management is a process of using a set of culture-sensitive skills
that help transition the process of conflict effectively and meet important objects
amicably, for warring parties. Intercultural conflict management consists of different
methods and types. As Bercovitch et al. (2004) argue, there are three peaceful
conflict-management types: diplomatic, legal, and political. The first type is
diplomatic, or in other words, bilateral negotiation. Negotiation is a problem-solving
process that relies on cooperation and mutual respect in order to satisfy mutual
interests (Isenhart, 2000).
International law enables are not merely discursive or confined to legal arenas.
International law is a social phenomenon that interacts with the material world. Just as
it facilitates real-world collaborations, so too does it facilitate real-world conflicts-
conflicts that play out through, for example, economic restrictions, deteriorated
diplomatic relations, and at times even the use of armed force. To say that
international law enables conflict is to say that it sometimes contributes to these
things happening in the world. It does so because it gives global actors new reasons to
disagree and an institutional and normative infrastructure for having and sharpening
their disputes. The key conceptual point is conflict and cooperation are synergistic.
Even when a conflict lacks substantive management, it does not necessarily detract
from-and can instead further-both the ends that the cooperation thesis envisions and
the broader project of international law (Robert, 1982).

Conclusion

Conflict management is the practice of being able to identify and handle conflicts
sensibly, fairly, and efficiently. Conflict is inevitable and perpetual in all human
interaction. "Human beings engage in conflict. International law is the set of rules,
norms, and standards generally accepted in relations between nations which
establishes normative guidelines and a common conceptual framework to guide states
across a broad range of domains, including war, diplomacy, trade, and human rights
and aims at the practice of stable, consistent, and organized international relations.
The origins of international law can be traced back to antiquity. Ancient China was
home to some mixed experiments in cooperative leagues of independent states in the
seventh and sixth centuries BC. In the 15th century, the influx of Greek scholars from
the collapsing Byzantine Empire spurred the development of science, humanism, and
notions of individual rights. The formation of centralized states such as Spain and
France brought more wealth, ambition, and trade, which in turn required increasingly
more sophisticated rules and regulations. International law became truly international
in the 1960s and 1970s due to colonial expansion of the European powers when rapid
decolonization across the world resulted in the establishment of scores of newly
independent states. International law enables conflict is to say that it sometimes
contributes to these things happening in the world. It does so because it gives global
actors new reasons to disagree and an institutional and normative infrastructure for
having and sharpening their disputes.
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