Related Links:

Courts Versus Arbitration in Settling Disputes among States

Is There a Relationship between Effectiveness and the Independence of International Courts?

When Is an International Tribunal Independent or Effective?

International Court Independence: Where Posner and Yoo Went Wrong

Why Do States Delegate Authority to Independent International Tribunals?

Scholars Eric A. Posner and John C. Yoo identify two trends with respect to international tribunals:

1. International tribunals are becoming more powerful:
   • Compulsory jurisdiction is increasing. That is, states are more often agreeing to give up their choice of whether or not to be subject to the court's jurisdiction.
   • International tribunals are becoming more independent of the states that create them. International tribunals are not simply about meeting the interests of the states, but operate as third party decision makers.
2. International tribunals have become more diverse. Different courts have jurisdiction over different areas of law, and there is no one court over all the other international tribunals.

However, the growth in the power of international courts is associated with a loss of sovereignty of states. If a state submits to the compulsory jurisdiction of an international court, then it gives up some degree of control over how a dispute should be handled. A state should normally want to control the outcome of a dispute. Giving the ability to determine the outcome to a court means that the state loses the ability to determine the outcome.

Why would a state agree to give up some degree of control or sovereignty? Or, asked another way, what benefits could a state get from an international tribunal?

Posner and Yoo identify two potential benefits of international tribunals for states.

Disputes over Treaties

Even though two states may have a treaty to cover a situation, circumstances can change. It may not be clear how the treaty might apply in the new situation.

Settling the Meaning of Treaties

Treaties cannot be written to cover all possible circumstances and events. Each state will want the treaty to apply to the new situation in a way that benefits their own interests. So, the treaty is interpreted in different ways.

An international tribunal may help the disputing states decide how to understand the treaty under the new situation. To the extent that the tribunal is independent of the interests of either state, it has no vested interest in biasing the interpretation of the treaty one way or another. The court can decide the meaning based on other, more legal bases.

Identifying Facts

Sometimes states may agree on the meaning of the treaty, but disagree about what the facts of the case are. For instance, the U.S. and Mexico had agreed that the border between the countries should follow the Rio Grande and the Colorado rivers. However, in 1864, the Rio Grande flooded and the course of the river changed. The countries had previously agreed that the border between the countries could change if the river changed course because of normal avulsion (where the banks of the river changes due to normal erosion). Because the Rio Grande's flood was not a matter of normal erosion, the treaty specified that boundary between the U.S. and Mexico should remain tied to the original course of the river.

Both countries agreed that the border should follow the river's original course, but the problem was that there were no accurate records of where the original course of the river was. In other words, the countries agreed on the meaning of the treaty, but could not agree on the facts. Through arbitration, the U.S. and Mexico were able to settle the dispute.

A neutral third party may be able to decide a case based on a wider range of information. For instance, the U.S. or Mexico could withhold information about the previous course of the river (if this helped their case). However, a neutral third party could gather information from both sides and make a ruling based on a broader range of facts.

Cases Where There Are No Treaties

Disputes between states may also arise where there is no formal treaty. In this case international law is generally defined as “customary.” The problem is, customary law can be very ambiguous. What counts as a customary practice? How does a particular customary practice apply (or not) to the given dispute?

Again, as with relationships governed by treaties, a neutral third party can help the disputing countries interpret the law as well as identify the relevant facts.

For instance, in the early 20^th century the U.S. and the Netherlands both claimed ownership of the Island of Palmas. The U.S. claimed that since Spain had owned the island previously, and the U.S. had acquired the island through a treaty with Spain in acquiring the Philippines, then the island belonged to the U.S. The Dutch, however, argued that Spain did not, in fact, ever control the island and so it wasn't theirs to give away. The Dutch, and not the Spanish had exerted control over the island.

The arbitrator in this case first had to decide whether the customary law of “continuous control” applied in this situation, and then, whether, in fact, Spain had exercised continuous control. The arbitrator decided that the ownership of the island should go to the Netherlands since it was not the American-Spanish treaty that applied, but the principle of continuous control, and Spain had not exercised this control. In short, the arbitrator decided, first, which principle applied, and second, what the facts of the case were.

Avoiding the Alternative

A neutral third party tribunal can help states clarify the meaning of treaties or decide what the appropriate conventional law is. The tribunal or arbitrator can also bring information to bear in the dispute that sheds light on the appropriate facts.

But, still, why would states want to do this? After all, it would make sense for states to apply doctrines and construe facts that best serve their interests. Why allow these things to be decided by a third party?

The alternative to dispute resolution could potentially be conflict (for instance, economic sanctions or war). Both of these alternatives may be more costly than the chance of coming out the loser in a dispute resolution case.

Other Keytexts from this source

Courts Versus Arbitration in Settling Disputes among States

Is There a Relationship between Effectiveness and the Independence of International Courts?

When Is an International Tribunal Independent or Effective?