Tuesday, September 13, 2011

Climate change: moving international dispute resolution beyond adjudication

(Delighted to welcome back alumna Anna Spain, who contributes this guest post)

International dispute resolution has evolved in response to crises. It emerged in response to the international community’s need to prevent inter-state conflict by providing states with peaceful alternatives to war for addressing their differences.
From the establishment of the Permanent Court of Arbitration in 1899 to the creation of the International Court of Justice in 1945, adjudication, through arbitration and judicial settlement, has formed the foundation of the international dispute resolution system. (credit for photo of Peace Palace, headquarters of both the PCA and the ICJ) The proliferation of courts and tribunals in recent decades further underscores this point.
While adjudication works well as a means to settle legal disputes between states that arise under international law, it is not as effective at resolving complex disputes over shared resources that involve non-state actors and fundamental human interests. Furthermore, adjudication promotes a win-lose paradigm. Whether by judges or arbitrators, matters are decided in favor of and against participating parties.
Given the the need to promote cooperation in order to address global crises facing the world today, it is time to rethink this paradigm.
One of the most pressing global crises is climate change (credit for photo below right), a subject on which IntLawGrrls frequently have posted. This past July, U.N. Secretary-General Ban Ki-moon said:

'We must make no mistake…[t]he facts are clear: climate change is real and accelerating in a dangerous manner… it not only exacerbates threats to international peace and security; it is a threat to international peace and security.'

In my article, "Beyond Adjudication: Resolving International Resource Disputes in an Era of Climate Change," published this year in the Stanford Environmental Law Journal, I argue that climate change demands new ways of understanding our approaches to resolving international disputes. Combating the threats caused by climate change requires unprecedented global cooperation. This is why the win-lose paradigm by which we understand international disputes and address them must also change.
I explore this challenge in two parts, as follows:

Effectiveness of adjudication
First, I evaluate the effectiveness of adjudication as a method for dispute resolution by identifying its limits. These limitations are particularly salient for complex, multi-party disputes involving interests in addition to rights.
Using the case of international resource disputes, I identify two types of deficiencies – those relating to the lack of adequate legal sources and those arising from the limitations of adjudication as a process. After analyzing the treatment of international resource disputes at the International Court of Justice, the Permanent Court of Arbitration, the International Tribunal for the Law of the Sea, the World Trade Organization, and the International Centre for the Settlement of Investment Disputes, I identify four categories of adjudication limitation. In turn, the categories refer to cases where:
► The parties refused to submit their dispute to adjudication;
► The adjudicatory decision did not satisfactorily address the merits of the dispute;
► There was noncompliance; and
► Despite the fact that the adjudication process was followed, the dispute or conflict recurred.

New dispute resolution approach
Second, I propose a new approach for resolving international disputes, which I refer to as "integrated international dispute resolution." This term, which I introduced in a 2010 article, "Integration Matters: Rethinking the Architecture of International Dispute Resolution," means using adjudication alongside interest-based international dispute resolution methods, such as mediation or facilitation, in a sequential or mixed fashion.
In addition to addressing disputants' concerns about rights and interests, this approach promotes criteria for effective dispute resolution, such as subsidiarity.
Several case studies illustrate how such integrated approaches have worked in the past:
► For example, in the Case Concerning Mali-Burkina Faso Border Dispute, the ICJ’s 1986 decision delineating the border was implemented with the assistance of a commission that engaged in facilitation with local parties. This brought an end to the armed conflict, the legal dispute over the border and the underlying dispute over water.
► Similarly, in the Case Concerning the Land and Maritime Boundary between Cameroon-Nigeria, the parties engaged in judicial settlement at the ICJ, as well as a peace process administered by then-U.N. Secretary-General Kofi Annan. A resolution was also facilitated through a multi-party commission, in order to bring an end to the armed conflict and resolve the underlying dispute over marine and oil resources.
I argue that given the present and future nature of international disputes and the limitations of adjudication, the international legal community ought to embrace and institutionalize the capacity for integrated international dispute resolution approaches in order to enhance ability to resolve such disputes.
Although my article focuses on how to enhance international dispute resolution in the context of climate change, it raises a set of broader challenges facing the purpose and function of international dispute resolution in the international legal system today. My desire is to generate discussion about these challenges, including:
► How can international dispute resolution to promote global peace given the collective nature of many emerging security threats?
► Should disputes involving collective rights and interests be treated differently than those that are purely inter-state?
► How does sovereignty influence the effectiveness of international dispute resolution?
► When should judicial and non-judicial international dispute resolution methods be used together?
► What impact will this have on the role of judges and international courts?
► What can be done to improve resolution of international disputes in the long term?
► How does sovereignty limit the effectiveness of international dispute resolution?
► How can international dispute resolution promote global peace given the collective nature of many emerging security threats?
► Should disputes involving collective rights and interests be treated differently than those that are purely inter-state?

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