The Difficulties of Third-Party Adjudication for Political People
American Society of International Law, Proceedings of the 97th Annual Meeting, April 2-5, 2003
6 Pages Posted: 11 Dec 2012 Last revised: 22 Feb 2015
Date Written: 2003
The normative system of international law has implications for third-party adjudication at an international level. The nature and function of international law, and its qualities, differ from municipal law. The international legal system is traditionally 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: third-party adjudication, Rainbow Warrior, international law, international legal system, State sovereignty, international dispute resolution
JEL Classification: K33
Suggested Citation: Suggested Citation