Adjudication: International Arbitral Tribunals and Courts
By Richard Bilder
This Article Summary written by: Conflict Research Consortium Staff
Richard Bilder, "Adjudication: International Arbitral Tribunals and Courts", in Peacemaking in International Conflict: Methods and Techniques, eds. I. William Zartman and J. Lewis Rasmussen, Washington DC: United States Institute of Peace Press, 1997, pp. 155-190.
"International adjudication is a method of international dispute settlement that involves the referral of the dispute to an impartial third-party tribunal--normally either an arbitral tribunal or an international court--for binding decision, usually on the basis of international law."(p. 155) Bilder examines the role of adjudication in international affairs. He weighs its advantages and disadvantages relative to other dispute resolution techniques, and considers its prospects for future use. This essay also offers an overview of the International Court of Justice.
Many people equate an effective international legal order with the development of an international system of adjudication designed along the model of national legal systems. Bilder cautions that national legal systems may not be an appropriate model at the international level. Moreover, focusing on adjudication may reflect a Western cultural bias. There are many other methods of dispute resolution available at the international level, including negotiation, mediation, and diplomacy.
Citizens are subject to the compulsory jurisdiction of their country's courts. In contrast, states can only be brought under a court's jurisdiction by their own consent, whether given at the time of a particular dispute, or in advance by treaty. International adjudication takes the form of either arbitration by an ad hoc tribunal, or judicial settlement by an international court. Arbitral tribunals are convened by the agreement of the parties to address a specific dispute. Tribunals usually have three members--one chosen by each side and a neutral third--although other (always odd) numbers are possible. Since the decision to submit to arbitration is consensual, the rate of compliance with arbitral decisions is high. Currently the International Court of Justice (ICJ) is the only court with general and global jurisdiction. The International Criminal Court has global jurisdiction over certain international crimes. There are also many international courts with regional or specialized jurisdictions.
The main advantage of arbitration (as opposed to the courts) is that it gives parties the most control. The parties select the arbitrators, select the procedures, and define the issue. Arbitration may be less formal and lower-profile that court adjudication. Since only states have standing in many international courts, non-state actors may prefer arbitration. The main draw back to arbitration is that the parties must be able to agree on the issues, procedures and arbitrators. This can be time consuming, and simply increase their conflict. It may be difficult to find experienced, impartial arbitrators who are available for such a temporary tribunal. Some observers are concerned that since arbitration tribunals have is less prestige, there may be less compliance with their awards. Arbitration can be more or less expensive that going to court.
Courts have the primary advantage of being readily available. They are permanent entities, paid for by the international community and staffed with experienced, committed full-time judges. However, parties may be unwilling to risk losing a case in such a public and prestigious forum. Sometimes parties may lack confidence in the courts' competency or impartiality.
The ICJ was established in 1945 by the UN Charter. It is composed of fifteen judges elected to nine-year terms. Parties may present their case to the full court, or may submit it to a special chamber of five judges--the special Chamber on Environmental Matters, for example. The court rules according to international law, that is, relevant treaties and international agreements, customary international law, and generally accepted legal principles. It has no criminal jurisdiction. The court may also honor requests for advisory opinions by the UN. Many treaties include compromissory clauses, in which parties agree to refer future treaty disputes to the ICJ. More than a quarter of states have signed options clauses (albeit with significant reservations), which gives the ICJ compulsory jurisdiction in disputes with other option-clause states. States may protest being brought before the ICJ, in which case the Court must decide whether it does have jurisdiction in that case. ICJ decisions are binding only on the parties; they have no force as precedent. If necessary, the UN Security Council may take steps to enforce compliance.
Compared to other dispute resolution techniques, adjudication has a number of advantages. It makes a final disposition of the dispute. Submitting to adjudication reinforces the international rule of law. Adjudication proceedings are impartial, impersonal, principled, orderly, serious and authoritative. Adjudication may reduce tensions by "depoliticizing" an issue. Its rulings may offer guidance to other nations. Drawbacks to adjudication include the risk of losing, the possibility of biased judges, and the often unpredictable outcomes. Adjudicative settlements are imposed, and focus narrowly on the legal issues. They tend to freeze the dispute in tits submitted form, and often overlook win-win or compromise solutions. Adjudication proceedings are adversarial, and so potentially escalatory. They are conservative in that they apply existing law as it is, without addressing deeper legal flaws. Sates may raise "nuisance suits" for purposes of propaganda or harassment. Without effective enforcement, adjudication may be ineffective.
Bilder argues that international adjudication is most appropriate in cases, such as minor border disputes, that are emotionally volatile but do not involve significant national interests; complex technical or factual disputes; or as politically acceptable way of buying time in dangerous or awkward disputes. The existence of international courts with compulsory jurisdictions can encourage parties to negotiate mutually acceptable solutions, rather than risk being in brought to court. "Finally," Bilder suggests, "it is important to note that, for many people throughout the world, international adjudication symbolizes civilized and ordered behavior and the rule of law in international affairs."(p. 180) When powerful states refuse to submit to the court's jurisdiction, or to comply with their awards, it can undermine public respect and support for the rule of law.
Bilder suggests six ways to encourage use of international adjudication. Establish new courts with specialized jurisdictions--Africa, or human rights, for instance. Increase the number and scope of compromissory clauses in treaties. Authorize additional bodies, such as states, national courts, or regional organizations, to seek advisory opinions from the ICJ. Extend the court's jurisdiction to allow non-state actors to bring cases. A first step would be to allow non-state parties to file friend-of-the-court briefs. "Make existing courts more 'user-friendly,' particularly to newer, smaller or poorer states, by simplifying and expediting procedures, broadening the parties range of choices over arbitrators and judges, expanding available remedies, and reducing costs."(p. 182) Finally, encourage more states to accept compulsory jurisdiction under the optional clause, without reservations.