Transcript Document

PEACEFUL DISPUTE
RESOLUTION,
ARBITRATION &
INTERNATIONAL
TRIBUNALS
Prof David K. Linnan
USC LAW # 783
Unit Seventeen
PEACEFUL SETTLEMENT
HISTORY
1.
Modern history of int’l arbitration
reaching back to late 18th century & 1794 USUK post-Revolutionary War Jay Treaty
[further afield, int’l commerical arbitration]
2.
Use of force abolition as dispute
resolution mechanism in 20th century (UN
Charter art 2(2)) increased pressure for
formal peaceful mechanisms
NOT COURTS
LITIGATION VS CONSENSUAL MODEL
3.
However, peaceful resolution of disputes does not
necessarily mean courts, since preference has always
been for consensual resolutions between states (via
negotiation)
4.
“Judicialization” of int’l law is something other than
pure peaceful dispute resolution
a.
May be tied to individual rights & human rights
approaches (int’l law system participants of too
great power disparity)
b.
May be separate strand of “legalization”
aspirations in bringing in mandatory
courts/judges/separation of powers under rule
of law views
ASSUMPTIONS
REMEMBER REGARDING INT’L LAW SYSTEM
1.
Sovereign nations
2.
Subject only to “jurisdiction” by consent
3.
Some disputes may not be subject to short term, or
even any resolution
4.
Basic nature of disputes different on state versus nonstate actor level
5.
Basic nature of “law” different since States make law
rather than Courts, no “law” ex aequo et bono and
possibility of “non liquet” response
DISPUTES
WHAT IS A DISPUTE?
1.
Not all disagreements are “disputes” for
dispute resolution purposes
2.
Is “dispute” same as “case or controversy”
following domestic law terminology?
a.
No, advisory opinions seeming not
problematic
b.
Focus on parties’ conflict about rights
with practical consequences
JUSTICIABLE?
ARE FOLLOWING DISPUTES JUSTICIABLE?
1.
What about US-Russian (earlier Soviet)
disagreements re recently terminated ABM
treaty & Strategic Defense Initiative?
a.
Krasnoyarsk radar
b.
2.
Star Wars defense, now mutated into
Bush missile defense
What about dispute re East Timor, now Timor
Lorosae, Indonesia-Portugal (as former
colonial power) originally later Indonesia-UN
more generally? Problem of selfdetermination, evidence of peaceful
resolution?
NEGOTIATION
BASIS FOR NOT PREFERRING JUDICIAL
RESOLUTION, BEYOND LACK OF INT’L
SOVEREIGN
1.
Negotiation
a.
Benefits of compromise
i.
Consensual within traditional
international law framework
ii.
Country interests sufficiently
protected
iii.
No problem with issues re what
is law
GOOD OFFICES/MEDIATION
NON-JUDICIAL PREFERENCE
2.
Good Offices
3-P inducing disputants to negotiate (eg, UN
Secretary General)
3.
Mediation
3-P participates in talks as neutral
facilitator (eg, US with Palestinians and
Israelis under Mitchell)
a.
In modern setting, recognize 3-P
mediation offer is not an unfriendly act
CONCILIATION/INQUIRY
NON-JUDICIAL PREFERENCE (CONT’D)
4. Conciliation
3-P participates in talks as neutral
facilitator and suggests non-binding
solutions
5. Inquiry
3-P body investigates and reports on
“facts,” possibly linked to further
resolution suggestions
ARBITRATION I
NON-JUDICIAL PREFERENCE (CONT’D)
6.
Arbitration (State to State)
Binding nature distinguishes from
conciliation and prior categories
a.
Undertaking to arbitrate and
compromis d’arbitrage
b.
Must fix applicable law and rules
(arbitrators too)
c.
“Standing” tribunal versus ad hoc
arbitral choices
d.
Prior (and problems of attempt to
thwart, e.g., not naming arbitrators)
versus immediate
ARBITRATION II
NON-JUDICIAL
PREFERENCE/ARBITRATION (CONT’D)
1. Substantive problems of arbitration,
Model Rules on Arbitration Art. 35
grounds for challenging awards
a.
Typically, tribunal exceeding
powers (e.g., arbitrators
disregarding direction to choose
between alternatives, baseball
style rules)
ARBITRATION III
ON-JUDICIAL PREFERENCE/ARBITRATION (CONT’D)
2.
Other legal limitations
a.
Fraudulent inducement through untrue
testimony
b.
Traditional standard for overturning award
“essential error”
i.
Issue whether only fraud and errors of
fact VERSUS
ii.
(Major) errors of law
A.
What are “major” and “manifest
error” standards?
B.
Mistake in interpreting terms of
compromise versus determining
legal issue like state succession
ARBITRATION IV
ON-JUDICIAL PREFERENCE/ARBITRATION
(CONT’D)
3.
Claims tribunal tradition
a.
Older US-Mexican plus post WW II
tribunals
b.
More recently US-Iran claims tribunals
WHAT MIGHT A CLAIMS TRIBUNAL RESOLUTION
LOOK LIKE TO LONGER TERM ISRAELIPALESTINIAN DISPUTE AT WORKING LEVEL,
GOING ALL THE WAY BACK TO NATIONALITY,
REFUGEE AND LAND OWNERSHIP STARTING IN
1947 EVEN ASSUMING EVENTUAL RESOLUTION
OF A “MAP” THROUGH THE WEST BANK
NEGOTIATIONS POST-OSLO ACCORDS
STANDING VS AD HOC
HISTORY OF INT’L TRIBUNALS
1.
Standing courts part & parcel of two successive major int’l
organizations
a.
Permanent Int’l Court of Justice (1922-39, League of
Nations)
b.
2.
Int’l Court of Justice (since 1946, United Nations)
Notwithstanding permanent character, since jurisdiction
voluntary more quasi-arbitral tribunals
a.
Heart of older “world peace through law” efforts
b.
Somewhat suspect in official US eyes as UN
affiliated, grasping for armed conflict jurisdiction
c.
Technical issue of how ICJ as chief UN judicial
organ fits in with other institutions, chiefly political
Security Council & place in disputes between
General Assembly and Security Council (armed
conflict issues, e.g., advisory opinion re Israeli
security wall)
ICJ JURISDICTION I
INT’L COURT OF JUSTICE STATUTE
1.
Only states may be parties, art 34 (problematic for
NGOs given desire to participate)
2.
Jurisdiction upon states voluntarily referring matter,
matters specially provided for in UN Charter, or in
other treaties & conventions, art 36 (but reservation &
reciprocity practice)
a.
Interpretation of a treaty
b.
Any question of int’l law
c.
Factual determinations for state responsibility
purposes
d.
Nature or extent of reparations
THE ICJ DETERMINES ITS OWN JURISDICTION
ICJ JURISDICTION II
INT’L COURT OF JUSTICE STATUTE (CONT’D)
3.
Advisory opinions (non-binding) authorized under UN
Charter, art 65 (basically, General Assembly, Security
Council & UN organs authorized by General Assembly)
4.
Most of friction concerning ICJ jurisdiction going back
to 1980s involved armed conflict proceedings & claims
not suited to judicial resolution (e.g., US withdrawal
from mandatory ICJ jurisdiction re Nicaragua case)
5.
Practical problems of withdrawal & essentially
consensual jurisdiction based upon nature of state
parties
QUERY, IF ICJ ONLY FOR STATES WHERE DOES MODERN
HUMAN RIGHTS FOR INDIVIDUALS, ETC. FIT?
SPECIAL TRIBUNALS
REGIONAL/SPECIALIZED TREATY-BASED INT’L
LAW TRIBUNALS
1.
Specialized int’l tribunals as European Court
of Justice for EU matters (essentially
constitutional tribunal)
2.
Extensive regional human rights court
system (best known is European Court of
Human Rights in Stassbourg)
3.
Analogous status for International Tribunal
for the Law of the Sea
4.
Arguably status for “dispute resolution
mechanisms” in economic law as for WTO, or
NAFTA
WAR CRIMES, ETC.
TRIBUNALS FOR INDIVIDUAL RESPONSIBILITY RE WAR
CRIMES, OFFENSES AGAINST HUMANITY, ETC
1.
General precursors to all current int’l criminal law or
war crimes tribunals were Nuremberg & Tokyo
tribunals post-WW II
2.
Attempt since circa 1980 to create int’l criminal law as
such with ad hoc tribunals for former Yugoslavia &
Rwanda (created by UN Security Council resolution),
now Int’l Criminal Court discussed in class problem
3.
Individual responsibility is their jurisdiction, so no
longer are tribunals purely state to state
OTHER INDIVIDUAL CLAIMS MORE VIA NATIONAL COURTS
(REMEMBER ATCA UNDER UNIT 4, ETC.)
BROADER THEMES
PEACEFUL DISPUTE RESOLUTION & COURTS
1.
Arguable link between individual
rights/responsibilities ideas & growth of
courts, plus legalization efforts
2.
Now visible clash of “justice” vs “peace”
kinds of efforts to try dictators or recover
damages vs achieve political solutions as
with armed conflicts
3.
Do you need courts & specifically int’l courts
for int’l law, why or why not? What does
answer tell you about int’l law system?
About lawyers?