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Beyond Adjudication: Resolving International Resource Disputes in an Era of Climate Change

by Anna Spain
September 2011 Anna Spain
I. INTRODUCTION

Climate change is one of the greatest emerging threats to global peace and security. Among other impacts, climate change will exacerbate the scarcity of water, food, and other natural resources essential to human survival. One concern is that as these resources become scarcer, the frequency and severity of international disputes will increase. Thus, developing effective means for resolving international resource disputes is of critical global importance.

Historically, the international legal system has played a central role in providing international dispute resolution (IDR). After World War II (WWII), nations became obligated under the United Nations (UN) Charter to pursue pacific dispute resolution as an option of first recourse. Of the many methods provided for in the Charter, adjudication has become the predominant approach for dispute resolution under the international legal system. In recent years, the use of adjudication has increased and international courts and tribunals have proliferated. The normalization of compulsory jurisdiction and the use of binding decision making further supports this view.

This Article challenges this paradigm and argues that the emphasis on adjudication as a mechanism for resolving the types of international disputes prompted by climate change is misplaced. The examination of the limits of adjudication is not new to international legal scholarship. For example, Bilder discusses why, due to the parties’ reluctance to submit to the authority of a court, the win-­-lose nature of the process, or the failure to address underlying causes of the dispute, adjudication is limited in its usefulness as an IDR method. Anand, Merrills, and others provide additional reasons why states are reluctant to engage in an adjudicatory process for resolving international disputes, particularly those in which the stakes are high. Others have described the limitations, as well as the benefits, of using adjudication to resolve international environmental disputes, which are addressed in Part III.B.

This Article extends the critique of adjudication to the context of international resource disputes.9 The central claim is that adjudication’s limits render it ineffective as a tool for resolving international resource disputes, warranting serious consideration of alternative approaches. Adjudication is limited by process deficiencies, its reliance on underdeveloped sources of international law, and institutional restrictions. Analysis of the use of adjudication by international courts and tribunals reveals four categories of limitation: a) cases where the parties refused to submit to adjudication, b) cases where the judicial decision did not address the merits of the dispute, c) cases of noncompliance, and d) cases with a recurrence of the dispute or conflict. In response, I argue for progressing beyond the adjudication paradigm in order to advance global capacity to resolve disputes and prevent conflict in an era of climate change. I suggest that effective dispute resolution can be enhanced through the use of integrated IDR methods.10 Employing adjudication with mediation or facilitation allows the strengths of rights-­-based processes and interest-­-based processes to complement one another. Integrating different IDR methods in this way has proven beneficial in international resource cases, as three case studies illustrate, leading to the successful resolution of disputes as well as to the deescalation of armed conflict.

However, expanding IDR capacity beyond adjudication under the international legal system raises broader conceptual issues about the emerging purpose and scope of international law. Solving global problems may require nations to comply with international law, even when it is against their own interests, to protect broader collective interests. This challenges fundamental notions about the sovereignty, authority, and power of states. Resolving international resource disputes, as this Article identifies, requires recognizing the importance of including nonstate actors in the process and having a reliable and effective system capable of addressing all parties’ concerns with legitimacy, fairness and speed. Maintaining a system that limits the participation of nonstate stakeholders in international decision-­-making hinders effective dispute resolution.

As background for establishing the context and scope of this Article, the following definitional and conceptual parameters apply. First, the Article focuses on international disputes and their resolution. However, it also recognizes the interconnected nature between disputes and the conflicts those disputes are often part of. In part, this is because resource scarcity and environmental concerns are root causes of both disputes (over territory, boundaries, etc.) and conflict. Definitions distinguishing the terms “dispute,” “conflict,” “international,” “armed,” and so forth are provided in Part II. Second, this Article narrows its examination of adjudication to international resource disputes. I recognize that the limitations of adjudication do extend to other types of international and environmental disputes, but demonstrating such is beyond the scope of this analysis. Third, the conceptual framework for this Article examines the obstacles of using adjudication in the context of international courts and tribunals. Though adjudicatory mechanisms at the national and sub-­-national levels, such as litigation in U.S. courts under the Alien Tort Statue, provide additional mechanisms for resolving resource disputes, this Article does not analyze these mechanisms.

This Article proceeds in five Parts. The first Part analyzes the relationship between climate change, resource scarcity, and conflict. The second Part evaluates adjudication as a dispute resolution mechanism for addressing international resource disputes and identifies source and process limitations. The third Part explores four categories of adjudication limitation: nonparticipation, failure to address merits, noncompliance, and recurrence. The fourth Part explains how adjudication could improve through integration with interest-­-based IDR methods and explores three case studies that illustrate this claim. And the fifth Part considers how moving away from an adjudication-­-centric model of dispute resolution will challenge the traditional foundations of international law. The Article concludes by emphasizing the importance of proactive preparation so that the international legal system may serve as an effective tool for peace in an era of climate change.

Click here to read the full article, previously published at 30 Stanford Environmental Law Journal, 343 (2011).


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BeyondAdjudication.pdf Beyond Adjudication  (BeyondAdjudication.pdf)

Biography


Anna Spain
Associate Professor of Law, University of Colorado Law School
Mediators Beyond Borders, Board of Directors
J.D., Harvard Law School
B.A., Denison University magna cum laude (Environmental Studies and Economics)

Anna Spain is an Associate Professor at the University of Colorado Law School where she teaches international law, international dispute resolution, human rights and mediation. Professor Spain’s research focuses on global cooperation and conflict, international law and dispute resolution. Her work has been published in the Georgetown Journal of International Law and the American Society of International Law Insights. She has also taught courses at UCLA Law School and UCLA School of Public Affairs.

Professor Spain’s perspectives on the role of law and dispute resolution in addressing international challenges are informed by her diverse professional experiences. She practiced international law as an Attorney-Adviser at the U.S. Department of State Office of the Legal Adviser where she represented the U.S. before the Iran-U.S. Claims Tribunal in The Hague, served as a delegate to the United Nations Compensation Commission in Geneva and advised the Department on investment and property disputes in Asia and the Pacific. Professor Spain also has policy experience working on climate change and trade at the U.S. Environmental Protection Agency and the Office of the United States Trade Representative in Washington, D.C. Professor Spain has been a certified mediator for over 15 years specializing in cross-cultural conflict in public disputes and the workplace.

Professor Spain is a graduate of Harvard Law School and clerked for the Honorable Judge Raymond L. Finch of the U.S. District Court for the District of the Virgin Islands. She is a member of the American Bar Association, American Society of International Law, Council on Foreign Relations (Term Member), Mediators Beyond Borders and Pennsylvania Bar Association.



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Website: www.annaspain.com

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