Chapter 2 explores how Etienne Wenger’s theory of communities of practice translates to the context of international law and the concept of a special regime. According to Wenger, a community of practice is defined by the presence of three structural elements: there must be a mutual engagement of community members; community members must be engaged in a joint enterprise; and they must have a shared repertoire. Chapter 2 draws up the contours of a methodology that will help the classically trained legal scholar to justify propositions categorizing segments of the international legal system as special regimes, based on the idealist’s conception of a special regime. As the chapter demonstrates, the task needed to justify a suggestion that some subpart of the international legal system is a special regime is not significantly different from many investigations that classically trained legal scholars are already conducting, more or less as a matter of course.

This chapter addresses the suggestion that for a special regime to exist, community members must have a shared repertoire. In the context of international law, to claim that a group of international law specialists have a shared repertoire is to assert that they consider the use of certain rhetorical tools appropriate. As Chapter 5 argues, the existence of such a presupposition can be inferred from, amongst others, the use by specialists of distinct concepts, a distinct terminology, a distinct method, and distinct theories.

A special regime is a subpart of the international legal system. This is why, in international legal discourse, there are several different conceptions of a special regime. For the same reason as lawyers disagree about the proper definition of the concept of international law, not only do they have different conceptions of an international legal system but they also assume different definitions of the concept of a special regime. There are considerable differences among the different conceptions of a special regime. This observation raises questions about their relative utility. Chapter 1 suggests the adoption of the conception that characterizes special regimes as communities of practice – as it helps to manage and control the effect of legal fragmentation compared to other conceptions.

Chapter 3 addresses the suggestion that for a special regime to exist, there must be a mutual engagement of community members. As the chapter argues, in the context of international law, a mutual engagement among a group of international law specialists can be inferred from their participation in a distinct legal discourse, and from their further specialization and distinct way of ascribing functions to legal agents. More specifically, it can be inferred from: the publication of specialized international law journals; the way of organization of conferences and workshops; the creation of inter-governmental organization; the work of NGOs; the specialized research profile of international scholars and description of chairs; their separation of tasks and division of labour; and the function that they ascribe to the judiciary and to the international legal scholar.

This chapter addresses the suggestion that for a special regime to exist, community members must be engaged in a joint enterprise. In the context of international law, to claim that a group of international law specialists is engaged in a joint enterprise is to assert that they do what they do based on the idea that some certain state of affairs is desirable. As Chapter 4 argues, in the context of international law, the existence of such a presupposition can be inferred from the actual pursuit of those specialists of a distinct state of affairs, and the way in which they perform assignments.

The ILC Study Group on Fragmentation of International Law asserted that the proliferation of special regimes poses a threat to the unity of the international legal system. Chapter 6 challenges this assumption. It builds on the distinction made in epistemology between knowledge-that and knowledge-how. The idea of a special regime as a community of practice makes it a system of knowledge-how. As such, it is compatible with all of the legal positivist’s, legal realist’s and legal idealist’s conceptions of an international legal system, which either see it as a system of knowledge-that or a combination of a system of knowledge-that and a system of knowledge-how. In the former case, in no way does the proliferation of special regimes affect the unity of the international legal system. In the latter case, the unity of the international legal system is indeed affected, but only in a positive sense, as it increases the efficacy of international law relative to the assumed legal ideal.

In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.

The growth and development of the United Nations as the major universal organisation has been accompanied by a no less dramatic increase in the number and range of organisations with membership drawn from the states of a particular region. Such regional organisations frequently become involved in the resolution of disputes.1 Sometimes this is because dispute settlement has been defined as a goal of the organisation. Article 4(e) of the Constitutive Act of the African Union, for example, lays down as one of its aims the peaceful resolution of conflicts between member states, and similar provisions can be found in the constitutions of other organisations. But even organisations whose primary concern is with matters of no present relevance may find themselves involved in some form of settlement activity. For bringing states together in an institutional setting provides the parties to a dispute with an opportunity to settle their differences and regional neighbours with the chance to add their encouragement, assistance and pressure as an incentive.

The eclectic character of the method is at once apparent. The Conciliation Commission in the ‘Timor Sea Conciliation’ explained that conciliation ‘seeks to combine the function of a mediator with the more active and objective role of a commission of inquiry’.2 If mediation is essentially an extension of negotiation, conciliation puts third-party intervention on a formal legal footing and institutionalises it in a way comparable, but not identical, to inquiry or arbitration. For the fact-finding exercise that is the essence of inquiry may or may not be an important element in conciliation, while the search for terms ‘susceptible of being accepted’ by the parties, but not binding on them, provides a sharp contrast with arbitration and a reminder of the link between conciliation and mediation.

When the parties to an international dispute are unable to resolve it by negotiation, the intervention of a third party is a possible means of breaking the impasse and producing an acceptable solution. Such intervention can take a number of different forms. The third party may simply encourage the disputing states to resume negotiations, or do nothing more than provide them with an additional channel of communication. In these situations, the intermediary is said to be contributing ‘good offices’. On the other hand, the assignment may be to investigate the dispute and to present the parties with a set of formal proposals for its solution. As we shall see in Chapter 5, this form of intervention is called ‘conciliation’. Between good offices and conciliation lies the form of third-party activity known as ‘mediation’.1

Having reviewed the various ways of attempting to resolve international disputes individually, we are now in a position to consider what this survey as a whole demonstrates about the possibilities open to a state when confronted with a dispute, the factors which influence decisions on whether to use a particular procedure and the prospects for improving this situation in the future. To deal with these issues it will be necessary to consider separately some of the legal and political factors which form the context in which decisions relating to the conduct of disputes are taken, and then to suggest some ways of modifying or developing current methods of settlement with a view to making them more effective and easier to use. First, however, it may be useful to recall in brief outline what our study has revealed about the present situation.

When a disagreement between states on some issue of fact, law or policy is serious enough to give rise to an international dispute, their views on the matter in question may be difficult or impossible to reconcile. In such a case, either or both of the parties may refuse to discuss the matter on the ground that their position is ‘not negotiable’. Alternatively, negotiations may drag on for years until one side abandons its claim or loses patience and attempts to impose a solution by force. It follows that negotiation, even if assisted by good offices or mediation, cannot be regarded as an adequate means of resolving all international disputes.

Disputes are an inevitable part of international relations, just as disputes between individuals are inevitable in domestic relations. Like individuals, states often want the same thing in a situation where there is not enough of it to go round. Moreover, just as people can disagree about the way to use a river, a piece of land or a sum of money, states frequently want to do different things, but their claims are incompatible. Admittedly, one side may change its position, extra resources may be found, or, on looking further into the issue, it may turn out that everyone can be satisfied after all. But no one imagines that these possibilities can eliminate all domestic disputes and they certainly cannot be relied on internationally. Disputes, whether between states, neighbours, or brothers and sisters, must therefore be accepted as a regular part of human relations and the problem is what to do about them.