RULE MAKING and

DISPUTE RESOLUTIONS
in International Agreement

Emmy
Yuhassarie
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 RULE MAKING LEVEL

Multilateral INTERNATIONAL

Regional TREATIES

Bilateral

Agreement DOMESTIC/NATIONAL

Contract

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 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 partiesone
party faces a cost that is not recovered by the
other.
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 Remember 3 R

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.

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 ones 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.

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
states 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 citizens 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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