I attended a conference at NYU two weeks ago as part of NYU’s Journal of International Law & Politics symposium on the “Normalization of Adjudication in Complex International Governance Regimes.” Invited to bring a little dispute resolution to this otherwise complete adjudicatory focus, it was very interesting to think about what the “normalization” of international courts and decisions might mean for dispute resolution. I came to this conference with some background in writing on international trade dispute resolution regarding the evolution of international dispute resolution and the importance of individual representation in courts, but had left much of this behind to focus on dispute resolution more broadly. More recently, I have had the opportunity to think about a number of interesting co-existing features in the development of international law and dispute resolution. First, as I wrote about last year, it is a striking coincidence that as we worry about the “vanishing trial” in the U.S., the international scene has been exploding with new courts (WTO, Rwanda, Yugoslavia, Sierra Leone, etc.) and expanded case loads even for longer-standing courts (the ICJ, ECJ, ECHR, IACHR, etc.). This does not even include the multitude of other processes designed to deal with global conflict, including truth and reconciliations commissions like those in South Africa and in many South American countries. So, last spring at PON’s dispute system design symposium, I was able to broaden my perspective and think about the concerns and challenges faced by DSD when creating systems to deal with human rights conflicts and, what has been called, transitional justice situations. (Click here to see my draft article on this entitled Dispute System Design and Transitional Justice.)
My next step, the paper for this NYU symposium, will now look forward to where we go from here.
There are clearly patterns and problems in the routinization of adjudication of international disputes in addition to those I have already listed. I now plan to examine some of the possibilities of this routinization (and here is where I’d love to hear from our blog readers).
I see two so far. First, as the law becomes more standardized, transparent, predictable, and understood, might we see the increase in consensual dispute processes attached to the courts or adjudicatory bodies-Bargaining in the Shadow of (International) Law? Second, with more tribunals and truth commissions in operation around the world, another possibility is that there are more implicit conversations about appropriate remedies for human rights victims. There is the ongoing debate about whether such loaded concepts as justice or reconciliation are achieved through prosecutions, monetary reparations, or more directed benefits like free education to the children of those murdered, health care for torture victims, new schools for decimated villages, etc. Some truth commissions have made these awards and the Inter-American Court of Human Rights has handed down some of these remedies as well. Assuming that human rights violations around the world will not cease anytime soon, what will the routinization of these types of institutional responses bring in terms of creative and helpful remedies?
Finally, and perhaps most optimistically, will the routinization of punishments and remedies stemming from human rights violations better equip national courts around the world to enforce these rights on their own?
Cross posted at Indisputably.
I am struck by your phrase “the routinization of adjudication of international disputes.” I’m currently reading A GODLY HERO, a biography of William Jennings Bryan. In a very colorful life, best known for the “Cross of Gold” speech, Jennings also served as Secretary of State under President Woodrow Wilson. During that time, he negotiated approximately thirty “Bryan Treaties.”
Answers.com provides a brief description of the treaties: “The basic aim of these bilateral treaties was to prevent war by interjecting a conciliation process into a dispute between parties to the treaty. Each signatory nominated two members, one a national and one a foreign citizen, to a permanent commission. These four would then choose a fifth member who could not be a national of either state. The commission would review the underlying facts to the dispute and issue a report on the controversy within one year. Until the report was issued the parties agreed to refrain from resorting to hostilities.”
I also recently read some essays on J. Reuben Clark, for whom BYU’s law school is named. He was an international lawyer and State Dept. official at about the same time as Bryan, and was also a big believer in the potential of international commissions and tribunals to solve things.
The Bryan treaties never amounted to much practically (few disputes were ever referred to them), but I thought they make an interesting historical analogy. As with much in life, international order goes through phases. During Bryan and Clark’s day, international commissions for adjudication of disputes were all the rage. They resolved few disputes and failed to stop two world wars.
Today’s explosion of international courts and “the routinization of adjudication of international disputes” have interesting historical roots, I think. If these new international courts are all the rage today, I wonder if five decades from now we will look back and see they fell to the same fate as the Bryan commissions.
I think this posting raises several good points. I have one concern with the “routinization” of transitional justice. I wonder how the process may result in particular remedies becoming routine, despite cultural differences. While publicly people may see “justice” as occurring, the true victims may feel left out. If all human rights violations fall into routinization, then many of the “restorative” processes might not actually restore the communities because of geographical, cultural and individual differences. Victims themselves may be pushed aside or even revictimized, while the focus shifts completely to the offenders and the routine process. While the routinization will surely give benefits, each situation should take the best things from different past processes, like the concept of Truth and Reconciliation Commissions from South Africa, while recognizing problems and altering the processes for their individual situation.
When I first started reading this post the first thing that came to my mind was the difficulty we had getting into the ICC on our spring break trip last year. I remember Prof. Schneider making the point that while this was frustrating for our class, it must be extremely frustrating for victims travelling to the Hague to testify. That being said I think whenever possible it is best to have these commissions within the community and have the punishments prescribed by the community. Ashley raises a great point about restoring the communities. I think the restorative process is less effective in the community when it has to take place in some far off land.