Adjudication, Politics and International Law

Abstract

The debated legality of armed intervention in Iraq, and the position the world finds itself concerning the Charter of the United Nations and the use of force, suggests that we are in the time of a paradigm shift of the type that led to the establishment of the United Nations in the first place. Yet rather than reaching out and finding new and positive ways of solving the terrible problems the world faces in wrestling with the challenges of achieving order, there seems to be a retreat from fashioning multilateral approaches to the development of solutions. But the day will come when the world will make a quantum leap forward; it is suggested that what will be required is something akin to the compulsory system of third-party adjudication that characterises most mature domestic legal systems. Advances are needed if international law is going to deliver a greater measure of order to a world that sometimes appears to be disintegrating.

The traditional nature of the international legal system is voluntarist, with international law progressing not in arenas characterised by third-party decision makers such as arbitrators and adjudicators, but in areas involving processes of unilateral determination followed by reciprocal responses. Third-party adjudication often develops only after diplomacy and direct bilateral negotiations have tried and failed. But it is hard to see a viable international legal order emerging unless the cause of third-party adjudication is advanced. At present, it exists only as one technique among many in resolving international disputes.

In discussing the development of third-party adjudication, the paper considers cases such as the dispute between France and New Zealand over the sinking of the Rainbow Warrior. It explains the political advantage to a decision reached by a respected neutral third party (albeit with secret negotiation) rather than negotiated openly and directly at a time when domestic opinion in both countries was highly charged. The author argues however that although third-party adjudication suits some political people some of the time, such a situation is not sufficient for a proper set of protections at the international level based on robust application of the rule of law. International adjudication will not be effective unless it can impose effective restraints upon the struggle for power at the international level. This creates conflict between State sovereignty and the necessities of third-party adjudication in international dispute resolution.

Keywords: adjudication, international law, international legal system, third party adjudication, Rainbow Warrior, State sovereignty

JEL Classification: K33