PEACEFUL DISPUTE RESOLUTION, ARBITRATION & INTERNATIONAL TRIBUNALS

1. PEACEFUL DISPUTE RESOLUTION, ARBITRATION & INTERNATIONAL TRIBUNALS Prof David K. Linnan USC LAW # 783 Unit Seventeen

2. PEACEFUL SETTLEMENT HISTORY 1. Modern history of int’l arbitration reaching back to late 18th century & 1794 US- UK 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

3. 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

4. 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 non- state 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

5. 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

6. 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. Star Wars defense, now mutated into Bush missile defense 2. What about dispute re East Timor, now Timor Lorosae, Indonesia-Portugal (as former colonial power) originally later Indonesia-UN more generally? Problem of self- determination, evidence of peaceful resolution?

7. 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

8. 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

9. 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

10. 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

11. 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)

12. 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

13. 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 ISRAELI-PALESTINIAN 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

14. 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. Int’l Court of Justice (since 1946, United Nations) 2. 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)

15. 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

16. 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?

17. 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

18. 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.)

19. 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?