Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION: A PROPOSED SYNTHESIS

Since the end of the Second World War, the legal significance of national boundaries has diminished. A variety of political, economic, and technological factors have contributed to the growth of international legal systems of unprecedented strength and scope. Among the most striking consequences of this phenomenon are the development of an international law of human rights and the growth of international arbitration. This essay will explore the issue of whether the latter has any relevance for the former: can international arbitration be an effective instrument for the protection of human rights?
This question is important because human rights abuses are still widespread, in spite of the international public's heightened awareness of, and concern about, such abuses, and in spite of the development of formal legal remedies for human rights violations. While regional human rights adjudication mechanisms have succeeded in Europe, their counterpart institutions in the Americas have had relatively little impact. Judicial and quasi-judicial human rights tribunals in other regions of the world are either nonexistent or too new to evaluate.[1] Meanwhile, the International Court of Justice (ICJ), the body with potentially global jurisdiction in human rights matters, "has not lived up to its potential and few states consistently look to it" to resolve disputes of any kind.[2]
In short, the human rights movement needs additional means by which to induce governments to comply with accepted standards, a means that takes into account the realities of international relations and the sensitivities of sovereign states. Louis Henkin has observed that "[t]he slow development of enforcement machinery reflects the tensions in the international system between its new commitment to human values and its traditional commitment to values of State autonomy and impermeability."[3] The purpose of this note is to suggest that the ascendant practice of international arbitration might offer a means of bridging this important conceptual gap.
At this early point I wish to make my definition of "arbitration" clear. Although this note uses the term in an unusual context--the resolution of human rights disputes--the "arbitration" of which it speaks is functionally the same as commercial arbitration, which Martin Domke defined simply as "a process by which parties voluntarily refer their disputes to an impartial third person, an arbitrator, selected by them for a decision based on the evidence and arguments to be presented before the arbitration tribunal. The parties agree in advance that his determination, the award, will be accepted as final and binding upon them."[4] If a procedure falls short of this definition, it is outside the ambit of this paper. "Negotiations" of human rights issues,