Several Aspects of Tribunals among Countries - Literature review Example

Tribunals This study analyzes appropriate literature to investigate several aspects of tribunals among countries, including the influence of cultural and political differences among nations, the consequences of not having tribunals and the demerits of tribunals. The study establishes that tribunals help avert escalation of international disputes and their consequences through providing an acceptable way to nations to solve disputes. The study also shows that political and cultural homogeneity among involved nations is an important ingredient in the process and achievements of tribunals. In absence of tribunals, disputes among nations would possibly descend into war, economic and human suffering and unsustainable exploitation of global shared resources. Lastly, non-compliance by member countries, non-membership by important countries and a lack of sufficient power to impose resolutions are demerits of tribunals. Introduction Tribunals have gained prominence in the contemporary world ever since the Nuremberg trials for war crimes following World War II. According to Posner and Yoo (2004), a tribunal is a panel of individuals given the responsibility of resolving a dispute between or among states based on international law. Tribunals offer third party dispute resolution or international adjudication, and have different levels on a dependency continuum ranging from the more dependent arbitrator to the less dependent court. Tribunals have been seen as an acceptable way to deal with international disputes, as seen by the pressure on the UN (United Nations) to set up an ad hoc international criminal tribunal (Schabas, 2006). This momentum towards establishing tribunals informs enquiry into the topic, especially given their potential to solve state-state disputes and prevent escalation possibly averting world-scale warfare. The current study investigates the importance of tribunals among two or more nations and the influence of cultural differences on international tribunals, the possible consequences of absence of tribunals and the demerits of the tribunal system. 1. The Importance of Tribunals among Two or More Nations Tribunals occupy an important position in international law and inter-state dispute resolution due to a number of reasons. First, disputes between or among nations are complex in nature and may rapidly escalate into damaged relations, proving difficult to repair. Such disputes are also of a large scale, with the capacity to result in socio-economic and political distress of the citizenry of the involved nations. Darby (2005) provides case examples of some of the inter-country disputes that have occurred in history. The disputes range from disagreements among European nations for the partitioning of Africa for colonization, complex trade disputes and conflicts over boundaries, waterways and international waters. In such cases, the nature and implications of the disputes add significance. For instance, the disputes entail vested political and economic interests and considerations on historical relations among two or more nations. In terms of consequences, warfare, human suffering and disruption of trade may ensue if interventions are unavailable. Inter-state tribunals offer a highly acceptable way out of such complex situations and avert the undesirable consequences that may ensue. The importance of tribunals in settling such disputes also lies in their nature: unlike ordinary courts of adjudication, tribunals do not suppress the voluntary element while making the involuntary element of case submission predominant (Darby, 2005). The tribunal system balances adjudicative and arbitrative roles unlike ordinary courts of law, making it suitable for the complexities of international disputes. This makes tribunals acceptable and averts or repairs any damages in inter-state relations. Tribunals are also sufficiently flexible to cater for different situations. For instance, interstate tribunals provide control to the states, which are unitary actors in this case. Transnational tribunals legally insulate the tribunal from the will of the involved states (Simmons and Steinberg, 2007). 2. The Effect of Cultural and Political Differences on Tribunals between Nations Helfer and Slaughter (2005) discuss the factors that have an impact on supranational tribunals; factors within control of the state, within control of the judges and beyond the control of the state or judges. In the third category, one of the most important factors is the relative socio-cultural and political homogeneity among the various states involved in establishing a supranational tribunal. The two scholars argue that most recent tribunals such as those in Europe have taken regional inclinations (geo-politically linked tribunals), indicating that cultural and political differences play an important part in determining the achievements of a tribunal. It is conceivable that cultural differences such as collectivist versus individualistic backgrounds may influence the outcomes of inter-country tribunals, as the involved peoples do not share similar values and worldviews. Similarly, it would be difficult to establish an acceptable tribunal between or among countries with different governance systems, for instance autocracies and democracies. Posner and Yoo (2004) argue that the differences between democratic and autocratic political inclinations among countries inhibit the validation of international law upon which international tribunals are based. Such differences also determine the acceptability and compliance to resolutions arrived at through tribunals. One of the cases that indicate the impact of such differences is the Honduras-Nicaragua dispute on land maritime borders, pitting two neighbors disagreeing on natural resources. Whereas the two countries share closely related cultures, their political history has followed different paths. This has resulted in ideologically opposed political systems arising from their development ever since their colonization by Spain (Granger, 2007). The two nations conform to the wider Central American political developments in which nations have ended up as democracies, military autocracies or traditional authoritarianism. As Granger (2007) reports, the efforts to solve the land and maritime dispute between Nicaragua and Honduras have experienced challenges. The political differences have led to petitions, counter-petitions and lack of compliance to the Central American Court of Justice (CACJ) tribunal. This contrasts with the achievements made by tribunals within the European Union where there are shared political inclinations. 3. The Possible Consequences of lacking Tribunals Neier (2005) reflects on the pre-international tribunal era, noting that during the Cold War, it was impossible to establish tribunals to solve disputes among nations. The absence of tribunals in which signatory states would solve their disputes was driven by global politics, stakes and poorly developed international law at the time. Some of the consequences of such a situation included warfare, arms races, economic sanctions, subsequent economic challenges and human rights abuse across the world. Neier (2005) especially concentrates on the regional tribunals agreed upon by geo-politically linked nations. The scholar indicates that a comparison of regions lacking tribunal systems and such agreements and those with established tribunal systems can help underpin the consequence of lacking tribunals. The scholar notes that regional tribunals are usually established along regional international bodies, which exist in regions such as Europe, Latin America and Africa. Nations in these regions have access to tribunal systems in times of disputes, as exemplified by the Nicaragua-Honduras land and maritime dispute. The tribunal for the two countries was established under the auspices of the Organization of Central American States through the CACJ (Central American Court of Justice) (Granger, 2007). However, such regional bodies do not exist everywhere in the world, especially lacking in Asia and the Middle East. As a result, Neier (2005) argues that the observed human rights transgressions in such regions arise due to the lack of mechanisms to establish tribunals. The lack of opportunities to form tribunals may also explain the frequent military conflicts and perennial lack of peace in the Middle East. Alternatively, the impact of an absence of tribunal systems can be discussed in terms of the achievements that tribunals around the world have made. Without such tribunals, deterioration of international relations accompanied by undesirable consequences would be common. In terms of economical considerations, the tribunals afforded to countries through the WTO (World Trade Organization), which has both judicial and legislative powers, indicate what might happen in the lack of tribunal systems. The WTO tribunals adjudicate among nations, institute punitive measures and overrule inappropriate domestic policies and laws. This is achieved through wielding power by virtue of the ability to institute economic sanctions (Barlow and Clarke, 2002). In case such tribunals were absent, nations would lack a mechanism to solve disputes involving resource sharing, international land and maritime borders, intellectual property rights and patenting issues. Further, powerful nations would have unchecked power which may result in endangering the planet through extracting shared resources to extinction and debilitating the global water crisis. For instance, the case of Chile against the European Community at the WTO, solved through a tribunal, helped conserve the nearly depleted swordfish stock in the South Pacific (Granger, 2007). Further, tribunals have been used to settle numerous cases of border disputes between nations such as Chile and Peru, Honduras and Salvador, Great Britain and French colonies and Colombia and Venezuela (Darby, 2005). Such cases would have possibly precipitated into war and its undesirable effects including human suffering, economic challenges and displacement. 4. The Demerits of Tribunals in Settling International Disputes One of the main demerits of tribunals in solving disputes among states arises from the nations choosing to abide by the resolutions or ignore them according to their will. Tribunals, unlike municipal courts, fail to underpin binding nature of rulings and as a result may not achieve the desirable outcomes. There several examples of cases in which nations involved in tribunals have failed to implement the rulings of tribunals. According to Granger (2007), the land and maritime border dispute went through several challenges even when being handled by the CACJ-established tribunal. One of the challenges was the failure to implement rulings by both nations when such rulings appeared not to favor them. For instance, when the CACJ ordered Honduras to suspend the planned maritime treaty with Colombia, Honduras ignored the ruling since it was unfavorable. On the other side, Nicaragua ignored the tribunal’s order that the 35% import tariff levied on Honduran goods coming into Nicaragua, which was implemented to arm-twist Honduras into dropping its maritime treaty with Colombia. The lack of compliance among the countries also affects the only way tribunals are able to enforce their rulings. A country may not comply with orders to institute economic sanctions on another country in order to force the latter to abide by tribunal resolutions. This effectively weakens the power of tribunals. Besides issues of compliance, the Honduras-Nicaragua tribunal also offers another aspect of tribunal system demerits. A lack of the requisite credibility hinders the achievements of tribunals. For instance, Granger (2007) reports that one of the judges in the Honduras-Nicaragua tribunal was from Honduras. Through split decisions, the judge strongly dissented when Nicaragua stood to gain from the process. Ultimately, the tribunal was unable to solve the dispute between the two countries. A further demerit of tribunals arises from their upholding of the voluntary element of participation, unlike ordinary courts such as municipal courts (Darby, 2005). As Neier (2005) argues, tribunals are usually effective when they follow available regional confederations. However, non-member countries in such bodies weaken the strength of tribunals in solving regional international disputes. For instance, China is a non-member to the ASEAN (Association for Southeast Asian Nations). The economic and political importance of China in the region makes their non-membership in such a bloc a serious hindrance to establishing tribunals in the region. In the USA, some officials, scholars and thinkers feel that international tribunals undermine American principles of popular sovereignty, checks and balances and democratic institutions as provided in the constitution (Posner and Yoo, 2004). Conclusion This study explores several important aspects of tribunals among nations, first indicating the importance of tribunals through demonstrating the complex nature and serious consequences of disputes among nations. These include wars, economic and human suffering and damage to international relations, to which the tribunal provides an acceptable way of resolution. Cultural and political differences are shown to have an impact on the process and outcomes of tribunals through a comparison of smooth tribunals in culturally and politically homogenous countries and their non-homogenous counterparts. Warfare, economic and human suffering, destroyed international relations, unsustainable exploitation of global resources and human rights abuse are some of the possible consequences of the absence of tribunals. However, demerits of tribunals are noted, including the lack of sufficient power to enforce resolutions, non-membership by important countries, non-compliance by members and bias among judges. References Simmons, B. A. & Steinberg, R. H. (2007). International law and international relations. CUP, USA. Barlow, M. & Clarke, T. (2002). Blue gold: The battle against corporate theft of the worlds water. Stoddart Publishing, Toronto. Darby, E. W. (2005). International tribunals: A collection of the various schemes which have been propounded and of instances since 1815. Adamant Media Corp, USA. Granger, C. L. (2008). The role of international tribunals in natural resource disputes in Latin America. Ecology Law Quarterly, 34: 1297-1313. Helfer, L. R. & Slaughter, A. (2005). Why states create international tribunals: A response to professors Posner and Yoo. California Law Review, 93: 1-57. Neier, A. (2005). Lessons learned: Building on the success of the current international tribunal framework to develop the next era of war crimes tribunals. American University International Law Review, 21: 517-523. Posner, E. A. & Yoo, J. C. (2004). A theory of international adjudication. Law & Economics Working Paper No. 206. Retrieved from 3 July 2012 from http://www.law.uchicago.edu/files/files/206-eap-jy.tribunals.pdf Schabas, W. (2006). The UN international criminal tribunals: The former Yugoslavia, Rwanda and Sierra Leone. CUP, USA. Read More