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 US, the international scene has 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 words 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?
I see some issues that, in my Profound Ignorance, I don’t know how would be dealt with:
1. how and by whom will the fine points of what constitutes a human rights violation be determined? What is “normal” in some cultures is considered barbaric in others.
2. related to the above, what are the legitimate powers of a government? After 232 years, we Americans still fight over this; resolving the boundary between international crime and “internal” disputes not subject to international adjudication is fraught with complications revolving around national sovereignty and self-determination.
3. should the focus of this effort be to “regularize” the traditional dispute resolution mechanisms of individual nations, making sure international parties are at least aware of each nation’s “traditions” and only worrying about compliance with the norms adopted?
4. what is the status of a nation which has been in “compliance” (whatever that means) which undergoes a revolution? Is the new government bound by agreements of the overthrown regime? or relegated to pariah status until it does? or until it regularizes its revolutionary processes?
I think those are really interesting questions. Consensual dispute resolution processes would certainly engage, and therefore benefit, the parties more. While observing ICTY trials, I noticed the defendants don’t even seem to be paying attention. The defendants were doodling instead of listening to witnesses testifying. If they are not engaged in the process, how can they fully understand the hurt they have caused? Without that understanding the victims have not been heard, which is what many of them want.
I think that more local tribunals and truth commissions are preferable for lower level perpetrators of human rights violations. These allow the victims to confront violators and be heard. The ability to speak and to be heard, not only by the violators but also by other community members, is very important to the healing process. Also, these local proceedings allow the sides to work together to create a feasible remedy that will go further toward healing the rift than jail sentences do.
Routinization could encourage national courts to deal with human rights violations. Routinization would give national courts some examples to look at and model their behavior after. This could make these courts more comfortable enforcing punishments since they know the international community supports such actions.