Cultural and Regional Factors Can Have Better Outcomes in ADR than Contentious Proceedings

Abstract 

This research illustrates the influence of cultural and regional factors on the dynamics of dispute settlement mechanisms. Whenever there is a dispute between two different states or between states from different regions, the cultural and regional differences of those states are inevitably embedded in the conflict. Different ways of settling disputes across the world—through diverse legal systems, rules, regulations, and customs—make these factors significant. Generally, in settling international disputes, the parties go through traditional contentious proceedings. But when a dispute involves cultural and regional factors, such proceedings often fail to address these dimensions. For this reason, Alternative Dispute Resolution (ADR) mechanisms are the best tools to settle such disputes because they specifically acknowledge and emphasize these factors and produce better outcomes than traditional contentious proceedings. 

Introduction 

Culture is always a part of disputes, whether it plays a significant role or only a minor, indirect one. Every dispute has a cultural factor that influences us in the places where we hold and admire our identities. Variations within groups, organizations, or communities are influenced by culture in terms of perceptions, attitudes, behaviors, and consequences. Shared beliefs, traditions, languages, practices, and habits make up a group’s culture; these cultural factors affect how people interact with and perceive their surroundings1. Thus, in terms of Alternative Dispute Resolution, these factors are important. Culture has a big impact on how disputes are settled; cultures convey messages that influence our conceptions of ourselves and others as well as our perceptions, attributions, and judgments. They resemble the underlying winds that influence our relationships and daily lives. Creative and flexible approaches that take into consideration the particulars of each case are often required in the complicated method of dispute settlement, and customs and traditions have gained greater acceptance in promoting amicable resolution.2 

Research Methodology 

This research will be conducted through qualitative methods. This research will be based on critical and analytical studies of both primary and secondary sources. The primary sources are conventions, rules, and judicial decisions. And the secondary sources are books, journals, articles, and online-based resources. The above-mentioned sources will be discussed and analyzed to obtain the purpose of this research. 

Concept and Significance of Cultural and Regional Factors 

The dynamics of dispute resolution are greatly influenced by cultural and regional elements as communities become more interconnected. The interaction of various cultural norms, traditions, and regional differences has affected the procedures and results of settling disputes outside established legal systems, from ancient civilizations to contemporary cross-border disputes. 

Cultural factors include moral principles, laws or behavioral rules, customs, language, and beliefs that members of a community share. They shape how people react to disputes both individually and collectively. Regional factors—based on geographical or territorial differences—similarly affect the outcome of dispute resolution.3 

Religious beliefs shape moral and ethical principles and an individual’s sense of right and wrong. Several religious traditions value reconciliation and peace, making mediation a natural forum. Customary practices, drawn from long-standing traditions and community agreement, can offer specialized answers consistent with cultural identity. Historical experience, including colonization and its effects on perceptions of formal legal systems, also influences how disputes are settled.4 

Factors that Influence Dispute Settlement 

Culture as a factor: 

Law and culture both enforce behavioral norms, yet they differ in structure. Culture—people’s way of life—affects the way we view the world, our values, behavior, decisions, and the outcome of disputes. Cultures act like underlying flows delivering messages that shape our ideas of self and other.5 

• Diverse cultural communication: Cultural elements such as common values, beliefs, and norms influence how people communicate. Differences in verbal and non-verbal communication can create disputes and miscommunication. 
• Diverse cultural values and priorities: Cultural values transmitted from generation to generation determine behavior and decision-making and can strongly influence dispute outcomes. 
• Cultural diversity of fairness and justice: All conceptions of justice are cultural in nature; different societies hold different ideas of fairness. 
• Time orientation: Cultures vary in their perception of time—some value promptness and instant results, others a more flexible and patient approach. 

Region as a factor: 

Regional characteristics—cultural, political, economic, and legal—also shape dispute outcomes. 

• Different legal systems and traditions: Civil law, common law, religious law, and customary law provide different approaches to justice and influence dispute-resolution methods. 
• Different culture and social context: Customs, values, and social structures vary not only among nations but even among regions or indigenous groups within a nation, shaping how they communicate, respect law, and reach agreements. 
• Role of community and traditional practices: communities often maintain strong linkages with their past and their territories; their traditions, ceremonies, and customary laws can influence how disputes are resolved. 

The Conventions Related to Cultural Heritage: 

1970 UNESCO Convention 

As per Article 17(5) of The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, UNESCO may offer its good offices to mediate a settlement between at least two States Parties to this Convention that are engaged in a dispute over the way it is implemented. 6 

2001 UNESCO Convention 

As per Article 25(1) of The Convention on the Protection of the Underwater Cultural Heritage, If two or more States Parties cannot agree on how to interpret or apply this Convention, they will negotiate in good faith or use another alternative dispute resolution process of their choice.7 

2005 UNESCO Convention 

As per Article 25 of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, if there is a dispute among the parties to the convention regarding the interpretation or the application of this convention, the parties then can use any of the alternative dispute resolution procedures, which are to be adjudicated by the third party.8 

UNIDROIT CONVENTION ON STOLEN OR ILLEGALLY EXPORTED CULTURAL OBJECTS (1995) 

As per Article 8 of the Convention, it is stated that the parties “may agree to submit the dispute to any court or other competent authority or to arbitration”; however, the terms of the dispute settlement are not stated.9 

How Cultural and Regional Factors Influence Actual Outcomes: 

The Navigational rights case (Costa Rica/Nicaragua) (2002) 

In this case, Costa Rica claimed that Nicaragua had imposed restrictions on the navigation of Costa Rican boats and their passengers on the San Juan River and asked the Court to acknowledge the customary right of riparian Costa Ricans to fish for subsistence.10 The Court noted the long and uninterrupted subsistence fishing activity and found that Costa Rica had a customary right that Nicaragua must respect. Yet the ICJ, while recognizing navigation rights, did not fully address the cultural significance of the river as part of the Costa Rican community’s identity. If ADR mechanisms had been applied, cultural rights could have been more explicitly acknowledged.11 

So, here the court failed to recognize the cultural right of the Costa Rican people in its decision. Though the case is related to navigational claims, the ICJ, due to its jurisdictional issue, cannot overlook the issue herein mentioned. If ADR mechanisms were being implemented in this case regarding giving importance to the cultural rights-related issue mentioned, then the outcomes of this case would be different than the current one. Because ADR mechanisms in terms of dispute settlement, where culture plays a significant role, deal with such disputes by acknowledging cultural rights. 

Land and maritime boundary (Cameroon and Nigeria) (2002) 

The ICJ awarded sovereignty over the Bakassi Peninsula to Cameroon based on colonial-era agreements. Indigenous Mio and Calabar peoples, with distinctive religious and civic organizations and long-standing traditional agriculture and fisheries, were largely overlooked. Although the Court allowed residents to retain nationality, it did not sufficiently consider the cultural and historical significance of their ties to the land. Mediation could have resolved the dispute more peacefully while safeguarding the rights of these indigenous peoples.12 

Here in this case, it was not only addressing issues of territorial sovereignty but also the forefront of the cultural rights of the indigenous peoples inhabiting the contested region. The court has failed to underscore this. The court decided the boundary line for sovereignty over the Bakassia, but it did not put enough emphasis on the cultural aspect of the people who had been living in that peninsula over a long period. The court needed to give importance to this because that peninsula, which the court delivered to Cameroon, was a land of the Mio and Calabar indigenous people. Those people have a different culture, a different system, and a different living style in that specific area, which should be in the consideration of the court before delivering its judgment. Though the court did mention that the people do not need to change their identity or nationality, this leaves a void in the decision given by the court based upon the cultural and historical attributions of those people. 

These cases reveal that the ICJ, constrained by jurisdiction and formal procedure, often fails to give adequate weight to cultural and regional factors, whereas ADR mechanisms are designed to accommodate them. 

Effectiveness of Mediation and Arbitration in Reinforcing Cultural and Regional Factors When settling disputes outside of the court system, arbitration and mediation can be used as a means of peaceful dispute resolution.13In order to resolve international disputes between the disputing parties, the Charter of The United Nations has given a fundamental directive measure, which is mentioned in Article 33 of The Charter of The United Nations. According to Article 33 of the Charter, any sort of disagreement that might endanger the maintenance of global peace and security has to be settled peacefully through any peaceful means that might be negotiation, mediation, or arbitration.14 

Effectiveness of Mediation: 

Mediation is an effective form of dispute resolution, saving time and money, especially in cross-cultural disputes, by providing a speedy and cost-effective alternative to complex legal procedures. It offers a private and flexible forum for discussing sensitive issues beyond the law, including relational, societal, and emotional aspects. Considering customary laws and local traditions further enhances its effectiveness, ensuring the process is culturally sensitive and meaningful.15 Mediation also helps preserve future relationships by fostering empowerment, respectful problem-solving, communication, understanding of interests, confidentiality, and post-mediation support. Confidentiality is crucial, as it builds trust and encourages open communication, allowing parties to freely express concerns and explore solutions. 

Effectiveness of Arbitration: 

Arbitration, as a form of ADR mechanism, is a helpful solution that addresses contemporary issues with the preservation of cultural heritage.16 This is especially because of its more casual framework and ability to include specialists as decision-makers. These components enable innovative solutions, economical dispute resolution, expediency, and a less adversarial approach.17 

Findings: 

• Article 33 of the UN Charter is not fully contemporaneous; the ICJ often fails to preserve human diversity or adequately address cultural interaction. 
• The ICJ is a rigid forum and not appropriate for cultural rights disputes; ADR is more flexible and considerate. 
• There is no specific forum dealing with culture-related disputes, leaving many communities without adequate protection. 
• Judges often lack deep understanding of cultural backgrounds, whereas mediators and arbitrators can build effective communication using cultural knowledge. 
• ICJ judgments can be partial or unreasonable because they disacknowledge cultural and regional factors. 

Recommendations & Concluding Remarks 

The contribution of cultural and regional factors in the decision-making process of international disputes is immense. As there are no proper legal frameworks to deal with disputes where cultural and regional aspects exist, concerned international organizations should come forward in this regard. Besides, nothing exists like regional mediation or arbitration platforms, so it is really necessary to make such platforms that can provide a more contextually aware environment for dispute resolution, ultimately increasing the likelihood of mutually agreeable outcomes. Moreover, international organizations should take initiatives that promote cross-cultural understanding among nations. Building trust and lowering cultural barriers in international relationships can be facilitated by diplomatic attempts, educational cooperation, and cultural exchange activities. In conclusion, the involvement of cultural and regional factors should be taken into consideration while delivering judgment in disputes so that proper justice can be ensured. Moreover, the use of ADR mechanisms should be encouraged in this regard to avoid the miscarriage of justice.

Legislations: 

1. The UN Charter. 
2. The 1970 UNESCO Convention. 
3. The 2005 UNESCO Convention. 
4. The 1989 Indigenous and Tribal Peoples Convention. 

Judicial Decisions: 

1. Dispute Regarding Navigational and Related Rights (Costa Rica vs Nicaragua) [2009] ICJ 13 (July 13, 2009). 
2. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) [1998] ICJ 11 (June 11, 1998). 

Online Resources: 

1. Michelle LeBaron, “Culture and Conflict” (Beyond Intractability, July 2003) <https://www.beyondintractability.org/essay/culture_conflict#:~:text=Culture%20is%20a n%20essential%20part,ideas%20of%20self%20and%20other> Accessed on September 09, 2025. 
2. Laura McKinney, “What is Tangible Cultural Heritage?” <https://warbletoncouncil.org/patrimonio-cultural-tangible-16574> Accessed on September 09, 2025. 
3. “WIPO Alternative Dispute Resolution (ADR) for Art and Cultural Heritage” (WIPO) <https://www.wipo.int/amc/en/center/specific-sectors/art/> Accessed September 10, 2025 
4. “Alternative Dispute Resolution: Mediation vs Arbitration” (LEXLAW)  <https://lexlaw.co.uk/solicitors-london/alternative-dispute-resolution-adr-mediation-v-arb itration-pros-and-cons-second-opinion/> Accessed September 10, 2025
5. “The Advantages and Disadvantages of Arbitration” (SAC ATTORNEYS LLP) <https://www.sacattorneys.com/the-advantages-and-disadvantages-of-arbitration.html> Accessed September 11, 2025 
6. “The benefits of mediation in the art and cultural heritage sector” (AARNA LAW) <https://www.aarnalaw.com/benefits-mediation-art-cultural-heritage-sector/?fbclid=IwA R3k_mWzJ1RS6zO2XDFFBFuWRZzWEnIRaKp9K8vyrgjmmJ2Isyx6N_Ldl20> Accessed September 12, 2025

1 https://smarthistory.org/what-is-cultural-heritage/

2 https://www.beyondintractability.org/essay/culture_conflict#:~:text=Culture%20is%20an%20essential%20 part,ideas%20of%20self%20and%20other

3 https://warbletoncouncil.org/patrimonio-cultural-tangible-16574 

4 https://culturalheritagestudies.ceu.edu/concept-and-history-cultural-heritage 

5 https://www.wipo.int/amc/en/center/specific-sectors/art/

6 https://en.unesco.org/about-us/legal-affairs/convention-means-prohibiting-and-preventing-illicit-import-exp ort-and

7 https://www.unesco.org/en/legal-affairs/convention-protection-underwater-cultural-heritage?hub=66535 

8 https://www.unesco.org/en/legal-affairs/convention-protection-and-promotion-diversity-cultural-expression s

9 https://www.unidroit.org/instruments/cultural-property/1995-convention/ 

10 https://www.icj-cij.org/case/133 

11 Memorial of Costa Rica, Vol 1, para 1.07-1.08 

12 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002

13 https://lexlaw.co.uk/solicitors-london/alternative-dispute-resolution-adr-mediation-v-arbitration-pros-and cons-second-opinion/

14 https://www.un.org/securitycouncil/content/pacific-settlement-disputes-chapter-vi-un-charter#:~:text=Articl e%2033%20of%20the%20Charter,means%20to%20%20settle%20their%20%20dispute

15 https://www.aarnalaw.com/benefits-mediation-art-cultural-heritage-sector/?fbclid=IwAR3k_mWzJ1RS6zO 2XDFFBFuWRZzWEnIRaKp9K8vyrgjmmJ2Isyx6N_Ldl20 

16 https://www.sacattorneys.com/the-advantages-and-disadvantages-of-arbitration.html 

17 https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3996&context=wmlr