��RULE MAKING and �DISPUTE RESOLUTIONS � in International Agreement

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Emmy Yuhassarie

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RULE MAKING LEVEL

• Multilateral
• Regional
• Bilateral

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• Agreement
• Contract

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INTERNATIONAL

TREATIES

DOMESTIC/NATIONAL

Back Ground Setting

• States enter into international agreement all the time,
• When states draft their agreements they often make choices: to chose to weaken or to strengthen the force and credibility of their commitments.
• International law, so far, is criticized for failing to guarantee effective enforcement
• So if international law is weak, we should expect states to do everything in their power to increase the strength, credibility and compliance pull of their agreement.

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1.Why States, in the first place, hesitate to use credibility enhancing strategies ?

• States cannot write enforceable promises in the same way as private parties.
• States frequently enter into soft law agreements, most agreement including treaties, do not include mandatory dispute resolution provisions, and monitoring.

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2. The sanction in contractual breach

• No monetary damage;
• No zero sum impact;
• The sanction is a net loss for both parties—one party faces a cost that is not recovered by the other.

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Remember 3 R

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• Reputation;
• Retaliation
• Reciprocal

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6 Modes of Dispute Settlement :

• CARICOM : Caribbean Community ( CARICOM) including CARICOM Single Market and Economy Treaty( CSME)
1. Good offices,
2. Mediations,
3. Consultations,
4. Conciliation,
5. Arbitration and
6. Adjudication.

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DESIGN OF AGREEMENT

• First element of interest is choices between soft law or hard law , it will refer toward which form to be adopted. If they evidence an intent to be “bound” the agreement is labeled as treaty.
• Second element is the adoption of formal dispute resolution mechanism, this can range to consultation to a formal system of binding adjudication. e.g Unclos, WTO;
• Third, the use of monitoring procedures, such as neutral observer, structure to supervise,

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INTERNATIONAL AGREEMENTS AS CONTRACTS

• Because our understanding of promises made at international level is quite poor , it is helpful to study international agreement as a form of contract, and bring the insights from the contract literature.

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• However, we should not be oblivion on the basic differences between promises exchanged by states and those exchanged by private parties.

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The Basis of State Behavior

• We can assume that State is rational being– which actually not always so.
• The State is juridical person;
• The head of state is political leaders;
• The agreement is made by executive branch, which may be opposed by legislative branch or being challenged by other political parties.
• Or being challenged by its constituent/people;

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That explains why States, in the first place, hesitate to use credibility enhancing strategies

• The behavior of parties to an agreement could be traced down to the state domestic system of government, its political affiliation, its civil society, and its stage of economic development.

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Between Public and Private

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• Maintaining one’s privacy in the face of nosy neighbors is of a different order from protecting a private domain from the intrusions of the state.
• In a liberal democratic society the former is a more frequent concern, but the latter a more important one.

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• WHY ??????

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Border of State intrusions

• Because the state by definition enjoys sovereignty over its citizens, and thus possesses a monopoly of putatively legitimate coercion, the state’s invasions of privacy are potentially very harmful to those concerned.
• There are number of ways in which the state ‘s power is checked for the sake of individuals’ privacy.
• Property rights , which conceived in terms of market exchanges, and accumulation of capital.
• Rights to freedom of conscience, opinion, association and expression involve respect for the citizen’s privacy from the state;
• Legal rights that protect the individual from arbitrary arrest, lack of legal counsel, or an unfair trial

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At its most basic , the rule of law refers to the idea that law should meet certain procedural requirements so that the individual is enabled to obey it .

• For that the rule of law are first, that law be general.
• Law must take the form of rules that are by definition directed to more than a particular situation or individual.
• The rule of law also requires that law be certain, clearly expressed, open, and adequately publicized.

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Legal system that serve the purpose

• A legal system should also be internally consistent, so that particular laws do not conflict with each other ;
• Law must be prospective, directed only at behavior which takes place after it is enacted;
• The practical effect of these principles is to set limits to the discretion of legislators, administrators, judges and the police.
• The rule of law ensures that these different agencies of governance are kept separate, so that political interference in legal affairs, for example, and the arbitrary power which is its result, are impermissible

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Hans Kelsen conclusion on� Private-Public separation

• He observes that: “No one has yet succeeded in arriving at a fully satisfactory statement of the difference between private and public law “
• Although rejecting the distinction himself, Kelsen does endeavour to describe the conventional understanding, in the following terms:
• The most widely disseminated view turns on a classification of legal relations, with private law representing a relation between coordinate subjects of equal standing legally, and public law representing a relation between a superordinate and a subordinate subject –between two subjects, then, one of which is of higher standing than the other.

The typical public law relation is that between state and citizen.

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TRANS –PACIFIC PARTNERSHIP

• On November 12, 2011, the leaders of the nine Trans-pacific Partnership countries –Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam and the United States- announced the achievement of the broad outlines of an ambitious, 21st century agreement that will enhance trade and investment among the TPP partner countries, promote innovation, economic growth and development, and support the creation and retention of jobs.

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Scope of Legal Text

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