Transnational dispute resolution model

The role of the state in supranational adjudication is diminishing. The unitary state is losing control over both the endogenous and exogenous dynamics of supranational adjudication. Relations between national courts and supranational jurisdictions are changing and becoming more important than those between national governments and the international judiciary. The classical model of international dispute resolution is dramatically changing.

Traditionally, International Law has been conceptualised as a normative framework that regulates relationships only between states. Individuals are not considered to be subjects of this legal system. In this model, states behave as unitary sovereign actors that can solve their disputes in supranational courts and tribunals, which have been created by them, directly or indirectly, through treaty-making processes.

States control these judicial bodies in several ways. First, states are usually the unique entities, which are allowed to have access to international adjudicative processes. Second, states usually designate the judges that will sit on these tribunals. Third, states have the discretion to enforce or fail to enforce the decisions of these international courts. Fourth, states control the international legal process and its consequences in domestic law. This paradigm for solving disputes has been called Interstate Dispute Resolution (IDR).

It can be argued that this type of international dispute resolution model has never really existed, at least since the beginning of the Cold War. For example, even the International Court of Justice (ICJ), which became operational in 1946, gives access to non-state actors such as the General Assembly or the Security Council in matters related to advisory opinions. It could also be asserted that judges are not designated directly by member states of the United Nations, but by the General Assembly and the Security Council. Further, states can always opt out of the Court´s jurisdiction if they are not willing to submit their disputes for a judicial solution. Finally, there is no effective supranational mechanism to enforce the ICJ rulings. Theoretically, the Security Council is empowered to enforce them with the use of force, if necessary. However, the very architecture of the UN justice system favours political solutions over strictly juridical outcomes. There cannot be a legalised solution when the five permanent members of the Security Council maintain power to veto a binding decision of the ICJ.

Despite of these exceptions, there is no obstacle in conceiving this sort of dispute resolution model as one that is deferential to sovereign countries. In other words, it is a state-centred paradigm propelled by the logic of power politics rather than judicial principles. IDR is an ideal type of dispute resolution and consequently it is impossible to find an existing court or tribunal that neatly fulfils all of its requirements. But such models serve to explain reality through abstract and relatively simple principles.

Since the end of the Cold War, there has been a tendency to move from IDR to a more flexible mechanism that has been called Transnational Dispute Resolution (TDR). TDR is a dispute resolution process in which non-state entities have access to international forums. In this scheme, states are usually unable to designate the judges that will sit at international tribunals. In addition, States tend to enforce the rulings of international judicial or quasi-judicial bodies regardless of their binding or unbinding character. In other words, it is irrelevant whether the adjudicative body´s resolution is binding or just persuasive. In this model, there are political as well as legal mechanisms at work that punish nations when they fail to comply with these judicial decisions. The existence of this legal process is not new, but it has been reinvigorated and strengthened since the collapse of Communism. Most of the recently created judicial and quasi-judicial bodies have been constructed according to the TDR model.

The main difference between IDR and TDR is that in the latter "access to courts and tribunals, and the subsequent enforcement of their decisions, are legally insulated from the will of individual national governments". In contrast to IDR, TDR allows individuals and other actors in civil society to participate in international judicial proceedings. It also makes it difficult for states not to comply with a ruling issued by a supranational judicial body.

According to this liberal approach, the international judiciary will continue to evolve incrementally toward TDR.

The prototypical examples of TDR are the two major European Courts, the ECJ and the ECHR. Their effectiveness is due to their very unique history and the particular political context in which they have evolved. However, liberal scholars assert that this sort of supranational adjudication can be extrapolated to other latitudes. Helfer and Slaughter argue that the UN Human Rights Committee (UNHRC) could follow some of the patterns that have made supranational adjudication in Europe so effective. They also believe that other dispute resolution bodies, e.g. the WTO, NAFTA panels, the IACHR and the ICC, could evolve similarly. For example, the IACHR has used to some extent and will probably continue to use the reasoning and interpretative methodologies previously developed by the ECHR.

In the case of UNHRC, the Committee should be able to replicate another dimension of the European experience: the construction of a "community of law". Communities of law are not constituted only by states, but by networks of individuals, domestic courts, lawyers, governmental officials, academics, and NGOs, among others. In order to build these communities, it is necessary create or strengthen legally valid channels of communication by which these actors can articulate and disseminate norms, principles and jurisprudence issued by supranational judicial or quasi-judicial entities. The idea is to find new legal formulations that would "maximize the impact of supranational decisions". The first step to create this common language would be to link the UNHRC to the ECHR jurisprudence so that the body of law produced by the former would converge, where appropriate, with that of the latter.

But this dialogue is not limited to interactions among supranational entities. Communication of this sort is also taking place between supranational courts and domestic tribunals. For instance, in 1995 the South African Supreme Court considered arguments and resolutions issued by the ECHR, in declaring the death penalty as unconstitutional. A similar approach toward supranational jurisprudence was observed by the Supreme Court of Zimbabwe and by the British Privy Council in important decisions regarding the protection of human rights. The Supreme Court of Zimbabwe considered the reasoning of the ECHR in declaring that corporal punishment of an adult constitutes cruel and unusual punishment, and that the same punishment was unconstitutional if applied to a juvenile offender. Similarly, the British Privy Council, sitting as the Constitutional Court of Jamaica, commuted a Jamaican death penalty to life imprisonment, based on the ECHR´s decision in Soering v. United Kingdom.

So far this section has analysed the supranational aspects of this sort of judicial globalisation. It has also introduced the issue of a nascent global community of law, which also reaches the domestic dimension and the transnational level proper. Further elaboration upon this topic is presented in the following subsection.