The AU´s Withdrawal Strategy: Is the Glass Half Full or Half Empty?

AU 28th Ordinary Session, January 2017, Addis Ababa, Ethiopia

The 28^th ordinary session of the Assembly of the African Union, finally came to an end on the 31^st of January 2017 in Addis Ababa. One of the many topical issues towards the end of the summit was the adoption of the common strategy document on withdrawal from the International Criminal Court (ICC). The grievances that African states have with the international criminal justice system are well documented, however, it appears the lack of progress in resolving those contentions has led to the adoption by the AU Assembly, of the withdrawal strategy document. At first instance, this move might tempt one to envision doom and gloom for the continent, let alone the international criminal justice system. However, when one considers the strategy in its entirety, not all is lost, in fact, one could argue that the strategy is a reflection of the glass being half full as opposed to being half empty.  

The withdrawal strategy is a separate document that was adopted within the AU Assembly decision on the ICC. The decision does not provide any details about the contents of the strategy but simply adopts it. The withdrawal strategy document itself, which is on file with the author, seems to detail its main objective, as the achievement of equity in the application and enforcement of global justice in order to enable the establishment and development of a regionalised system of international criminal law. In order to achieve this, the strategy details two avenues, firstly, by way of legal and institutional strategies such as the implementation of the amendments to the Rome Statute; reform of the UNSC; strengthening national criminal justice mechanisms of member states; ratification of the Malabo protocol as well as increasing African representation in the ICC. The second avenue contained in the withdrawal strategy document entails political strategies which involve engagement with the UNSC, Assembly of  State Parties (ASP) and the ICC´s Office of the Prosecutor (OTP) among others. Given the already long struggle by the African group of states for UNSC reform, it would seem most of the legal and institutional strategies have already been in motion for a number of years but to no avail. Some of the main goals expected from the second approach comprising of political engagements include ensuring the withdrawal of the Sudan referral situation by the UNSC as well as ensuring that the permanent 5 members of the UNSC do not veto a resolution to that effect. Given the previous refusal by the UNSC to defer not only the Sudanese situation but also the Kenyan situation, it seems rather unrealistic to expect a change in stance.

Additionally, the withdrawal strategy acknowledges that collective withdrawals are not recognised by international law and alludes to the possibility of individual withdrawals by African states. The document does not in any way explicitly give instructions, nor a timeline for African states to collectively withdraw from the Rome statute. Instead, it outlines a comprehensive contextual (political and historical) background as well as the legal implications for individual African states, should they decide to trigger the withdrawal clause within the Rome Statute. Therefore, any inferences that claim that the adopted strategy implies “collective withdrawal” seems rather misleading as it gives the impression that a mass exodus of African states from the ICC has been triggered. Similarly, the title of the document, “withdrawal strategy” leads to misconceptions and has polarising undertones as it allows for the impression of a mass withdrawal to be created. For the most part, the document is actually rather constructive and puts into perspective some of the most contentious issues in the application of international criminal justice matters whilst calling for continuous dialogue in order to resolve the matters.

Legal implications of the ICC withdrawal strategy

Given that AU Assembly decisions are generally binding upon member states, which may be inferred from Article 23 (2) of the Constitutive Act, it means the decision on the ICC is legally binding. However, according to the 1971 ICJ advisory opinion on the presence of South Africa in Namibia (para. 114) the ICJ opined that the text of a resolution must be analysed in order to assess its binding nature and in that regard, non-mandatory language which does not create obligations for states nor affect their legal rights is non-binding. Since paragraph 8 of the decision simply adopts the withdrawal strategy and does not explicitly provide any instruction to member states, this implies that member states do not accrue any obligations from paragraph 8 of the decision. Consequently, the said withdrawal strategy, which is a separate document from the decision, is legally non-binding on AU member  states as it also creates no binding obligations upon AU member states. The withdrawal strategy can simply be equated to a political message, proposal or recommendation to African states. The Assembly´s adoption of the strategy on the other hand indicates that African leaders continue to be dissatisfied with the current international criminal justice system and might be running out of patience to continue in dialogue.

Given the lack of clear and concise instructions, timeline or repercussions upon non-compliance within the decision as well as the strategy document, each individual state still holds the sovereign right to individually decide and embark upon the withdrawal process as provided for by article 127 of the Rome Statute if they so wish. This implies that, should African states hypothetically individually decide to simultaneously withdraw from the ICC, there would be no new legal implications for  each withdrawing African state apart from those laid out by article 127 of the Rome Statute. 

Possibly due to the fact that the withdrawal strategy document was not circulated to state delegates before the AU Summit, it is my observation that the legal implications of the withdrawal strategy might still be unclear to member states. Additionally, the misleading title of the strategy might have triggered unnecessary panic. This might explain the 13 states which expressed reservations based on the fact that they viewed the strategy document as a violation of the principle of the sovereignty of states. Additionally, that the AU, not being a state and therefore lacking the capacity to ratify treaties, cannot adopt decisions that have implications on the membership of state parties to the ICC. This would be true if the withdrawal strategy was binding and if state parties risked facing sanctions upon non-compliance but the withdrawal strategy makes no such suggestion.

THE ICC AND THE AU: A CALL FOR DIALOGUE

Gambian President Yahyah Jammeh declares Gambia to Leave ICC

In the wake of recent news that Burundi, South Africa and now Gambia are to withdraw from the Rome statute of the ICC, there are, justifiably, tense moments among the legal and wider fraternity that constitutes the so called international criminal justice project: are the steps taken by these nations the beginnings of a mass walk-out by African states (which constitute the single largest continental membership bloc), and can the ICC survive an event of such proportions, or would such a walk-out even matter? The OTP’s Fatou Bensouda, herself a Gambian has already provided an answer to the latter question. In a typically dismissive fashion, she has noted that the ICC will march on regardless. However, a more politically grounded president of the ASP, Sidiki Kaba, has signaled that dialogue should be embraced by all parties to avert a potential disaster, and this is as it should be.

The prevailing narrative on the intended withdrawals and any further potential cases from Africa is the much repeated and equally robustly rebutted notion that the ICC is unfairly targeting African nations in its fight against global impunity, the so called African bias. Both sides of this argument have been so exhaustively prosecuted in contemporary legal and political discourse that any further pronouncements on the argument here would be rather futile. What I propose here is that the problem between the ICC and the disaffected African states lies quite outside of this oft repeated premise, and any attempts to understand it must look both to the attitude of the ICC and to the internal political dynamics of the states concerned.

SA. President Zuma Recently Implicated in State Capture Report

Accordingly, South Africa’s notification of its intention to withdraw has been linked by some to the difficulties surrounding the government after its own courts embarrassed it by declaring its reception of Al Bashir, the ICC’s most wanted fugitive, a breach of the law. The government’s own protestation that it had to choose between loyalty to the AU and pandering to the ICC rings hollow. However, the decision comes at a time when the composition and integrity of the current ANC leadership faces a mounting political existential threat: the prospect of damaging corruption revelations in a report on state capture by the outgoing public protector has sent Zuma’s government clutching for straws. Further, an apparently politically motivated and ill advised decision by the SA National Prosecuting Authority to go after the current finance minister has, as widely expected, ended in fiasco and reinforced perceptions of a Zuma government engaging in a witch-hunt. I venture to suggest that SA’s decision will eventually unravel as a poor attempt at political diversion with little if anything to do with the government’s official position and everything to do with Zuma and the ANC’s political calculus, and the SA opposition and civil society are likely to successfully petition the courts to declare it null and void on administrative procedural and constitutional grounds. Similarly, the Burundi and Gambia decisions must be understood within the context of their internal political dynamics. This does however not absolve the ICC from its role in building up the perception of bias towards African states. The ICC and in particular the OTP has by its attitude and political stance provided ammunition for local political players and given them enough reasons to legitimize their actions in front of their local supporters.

The ICC claims to be non-political (and only legal) when the opposite is clearly the case. More than anything else, it is its claim to being a purely legal entity that does not engage in any politics that exposes the ICC to claims of dishonesty and bias. A quick look at the actions of the ICC in Kenya, Uganda, and Ivory Coast for example reveals its political hand in at least three ways: overtly as when it engages in direct negotiations with Uganda in obtaining its self-referral; the ICC was thus effectively co-opted by Museveni in his personal pursuit of Kony et al, and bringing  the ICC dimension into the equation was meant to up the stakes against Kony and the Lord’s Resistance Army ; covertly when it gets itself inserted into and manipulated by local politics as we saw in the Ivory Coast situation where some political contestants sought to tip the balance of power in their favor by ‘accepting’ the sovereignty of the court while in actual fact putting their opponents away; and indirectly when its inaction and/or inefficiency with regards to prosecutorial decisions and case turnover creates cause for concern with serious ramifications on its legitimacy and universal acceptance. Thus, insisting that it is an institution concerned solely with the law while overtly making political considerations and allowing itself to be manipulated by politicians in furthering local political interests only serves to legitimize the anti-ICC crusade. This stance has simply straight-jacketed the ICC into a self-defeating legal formalism and held it back from engaging with the AU in a politically viable manner.

Child Terrorists and Child Foreign Fighters in Europe

Ine van Giessen

On 13 November 2015, bombings and shootings in six different locations in Paris killed over 130 people and injured over 100 others. Five months later, bomb attacks in the departure hall of Zaventem Airport and at Maalbeek Metro station in Brussels, killed 31 people and injured 220 more on 22 March 2016.  These attacks on European territory share common denominators, namely, the Islamic State (ISIL) claimed responsibility for both attacks. Furthermore, Belgian nationals committed the attacks in Paris and Brussels. According to research by the International Centre of Counter-terrorism (ICCT) at least seven of the perpetrators of the Paris attacks had allegedly previously fought for ISIL. Of those seven perpetrators, intelligence suggests that three traveled to Syria at some point before the attacks. This raises questions  legal classifications, and obligations or possibilities to prosecute under domestic and/or international (criminal) law.

On 1 April 2016, the ICCT published a report on the phenomenon of Foreign Fighters (FF) in the European Union. The research shows that the total of FF from the European Union lies between 3922 and 4294 people of which 30 percent have returned to Europe and 14 percent is confirmed dead. The ICCT research states that amongst those FF are minors. ISIL grooms children and educates them on its ideology to create a new generation of supporters of the caliphate. These young children (known as ashbal al-khilafa “cubs of the caliphate” are used on the battlefield as well as featured in promotional videos. Many of the videos show these young children in different capacities acting on behalf of the caliphate.

Scholars such as Capone argue that there are two main categories of child FF. The first category consists of those who are motivated to leave their home in pursuit of their own personal identity, and the second category consists of those who want to live in a true Islamic Community. Furthermore, the families of children could have forced these children to join the caliphate as a Dutch mother did, in March 2015, who brought their two Dutch children to join ISIL in Syria. Moreover, Watts’ research indicates that recruitment of FF by family members forms a high percentage of means of recruitment.

Interpretation of international law indicates that the three who travelled to Syria could be classified as FF whilst the others who did not travel abroad prior to the attacks would most likely be classified as terrorists. Since there does not exist an universally accepted definition of terrorist or FF under public international law (PIL), the UN leaves the door open for the interpretation of the definition of terrorism on a domestic level. Pursuant to States’ discretion to define terrorism under their domestic legislation, differences occur between domestic systems leading to different legal consequences. Similarly, there does not exist a universal definition of a FF. The commonly used definition is that of the UNSC, which intrinsically links FF to terrorists groups. The UNSC does refer to children in Resolution 2178, calling upon the Member States to prevent the radicalization to terrorism and the recruitment of FF, including children. However, the PIL system lacks possibilities to prosecute those children for terrorist acts on an international level. PIL such as IHRL, IHL and ICL makes no distinction between adult perpetrators and children with respect to terrorist acts. Children are not excluded as perpetrators of terrorist acts by virtue of childhood. Consequently, children can be the violators of international rights and provisions governing terrorist acts. On itself, PIL does not prohibit the prosecution of children. The Committee on the Rights of the Child merely urges states to set the limit of criminal liability not below the age of 12. There exists no international juvenile court, which, in theory, would mean that children would face prosecution before the ICC since IHRL, IHL and ICL mostly rely on the ICC for the prosecution of individual perpetrators. However, under PIL there exists no de facto possibility to prosecute children on an international level, as the ICC excludes prosecution of persons below the age of 18. De jure, prosecution is possible before other institutions such as special tribunals; however, these are not (yet) in place. Consequently, PIL leaves the prosecution of child terrorists and child FF to the municipal courts. Whether child terrorists and child FF will f before domestic courts under international law or domestic law consequently depends on the state that will undertake the prosecution. Since the definition of terrorism and FF and the criminalization of these acts is left to the discretion of states, differences in legal consequences will occur.

A vast framework of IHRL instruments is set up to protect the rights of children, with the key international instrument being the Convention on the Rights of the Child which awards children special protection with respect to fair treatment and fair trial in case of prosecutions under article 40(2). However, the lack of consistency on the international level with respect to child terrorists and child FF does, in my opinion, does not coincide with children’s need for special protection.

The international community made a first step in acknowledging that children can be the perpetrators of terrorist acts but has failed to take the second step and create a better protection framework. The international legal system, as it is now, is not yet ready to prosecute children for gruesome acts on an international level, leaving the prosecution to the discretion of states. If the international legal system is not ready to prosecute child perpetrators, to what extend will it be ready, in its current state, to protect the rights of these children when they face prosecution by states on a domestic level. Children need extra protection at all times, even in the capacity of terrorists and FF, and in my view, it is of utmost importance that the international community strengthens the protection framework in a timely manner.

Guest Post By Ine van Giessen (Ine holds an LL.M in Public International Law from Utrecht University and specialises in issues of human rights and terrorism)

The Trial of Hissene Habre: An Analysis of the Rights of the Accused

Hissene Habre Dragged into Court at the Start of His Trial : Photo Courtesy EPA

On 30 May 2016, the African Extraordinary Chambers (AEC) delivered a judgment finding Hissène Habré guilty of crimes against humanity committed during his presidency in Chad between 1982 and 1990. He was sentenced to life imprisonment. Many commentators have lauded the trial of Habré by the AEC and considered it a significant step towards the promotion of international criminal justice on the African continent. This may well be the case. However, the treatment of Habré during his trial, in my view, amounted to a violation of his rights as an accused person, which is a fundamental component of a fair trial. The violation of Habré’s rights during the trial is like the proverbial rotten apple that spoils the barrel and is therefore a subject worthy of discussion.

From the outset, I will begin by appreciating the fact that the crimes committed in Chad during the reign of Hissène Habré were horrific, brutal and affected thousands of victims. Indeed, the attempt to try Habré took too long, and was characterized by convoluted legal battles in Senegal, Belgium and before the International Court of Justice (ICJ). The establishment of the AEC, a special hybrid court, was a compromise, which provided a solution to a stalemate. The AEC’s pro-victim stance is also understandable because it is in line with the new trend in international law where the place of  victims in international criminal trials is given more and more recognition. The AEC was charged with the difficult duty, as with all international tribunals, of balancing the need to deliver justice to victims of horrible crimes and to protect the rights of the person accused of perpetrating such crimes. This was exacerbated by the moral outrage of the victims and general public when confronted with the crimes committed during the Habré regime. In my view, the AEC gave in to the moral outrage and violated at least two fundamental rights of the accused.

The first, and the most flagrant violation, was the issuance of the order for Hissène Habré to be forcefully dragged into court kicking and screaming, by masked men.  This, probably arose from the AEC’s  misinterpretation of the right to be present at trial, which misinterpretation violated  the accused's right to personal integrity. The right to be present at trial is provided for in most international and regional human rights instruments, for example article 14 (3) (d) of the International Convention on Civil and Political Rights (ICCPR) and article 6 (3) (c) the European Convention on Human Rights (ECHR). Similarly, article 21 (4) (d) of the Statute of the Extraordinary African Chambers (AEC Statute) also provides for the same right. However, this right is not absolute. The Human Rights Committee, the independent body of experts in charge of monitoring the interpretation and implementation of the ICCPR, has found that trials in absentia may be held exceptionally and for justified reasons. For example, in the case of Mbenge v Zaire, while the Committee emphasized that the right of an accused person to be present at trial is fundamental, it also recognized that there are circumstances where trials in absentia are permissible for the proper administration of justice. According to the Committee, one such circumstance is "for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present."

Exploring the Concept of Plea Bargaining as a Potential Solution at the International Criminal Court: The Kenyan cases

Phoebe Oyugi, Case Manager, Ble Goude Defence Team

The International Criminal Court (ICC) faces tremendous challenges with regard to collection of evidence to be used at trial, language barrier, lengthy trials, long physical distance between the scene of crimes and the seat of the ICC, lack of state cooperation, and witness interference, among others. This is well illustrated, for example, by the challenges faced by the ICC during the prosecution of the Kenyan cases, that is, the cases against President Uhuru Kenyatta (Kenyatta) and Deputy President William Ruto (Ruto), both charged with crimes against humanity. These cases were among the most high profile cases at the ICC for many reasons among them being that it was the first time that a sitting head of state and his deputy appeared before an international tribunal. They therefore generated a lot of interest in the international community. Yet, both cases were terminated prematurely due to insufficient evidence.

In December 2014, the Prosecutor of the ICC having been ordered by the Chamber to either withdraw the charges against Kenyatta or commence trial, chose the former cause of action because she had insufficient evidence. Similarly, the charges against Ruto were vacated in April 2016 because the judges could not decide whether the insufficiency of evidence was due to the fact that there was simply no evidence to be found; or whether it was a result of witness interference. In both instances the Prosecutor blamed the insufficiency of evidence on the Kenyan Government, headed by the two accused persons, accusing it of failure to cooperate with her in obtaining evidence and of making deliberate attempts to frustrate the cases.

Because the Prosecutor was not able to present sufficient evidence, the Kenyan cases ended in a lose-lose situation. The ICC was unable to establish the truth or enforce international justice in fulfilment of its mandate; the accused persons still have the suspicion of crimes against humanity hanging over their heads and the possibility of being prosecuted afresh; and the victims received neither closure nor reparations. This lose-lose situation raises the question of whether such a situation could have been remedied through compromise.

This brings to mind the Anglo-American concept of plea bargaining, a compromise, which in its simplest form involves an agreement between the Prosecutor and the accused person where a guilty plea from the latter is obtained in exchange for a reduced sentence and/or the accused person’s cooperation in the investigations. This practise is not a novelty before international criminal institutions. International tribunals such as the International Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) have resorted to plea bargaining by, for instance, reducing sentences in exchange of guilty pleas and cooperation by accused persons. This was used in several cases, for example, the Prosecutor v Todorovic and the Prosecutor v Sikirica at the ICTY, as well as the Prosecutor v Serushago and the Prosecutor v Ruggiu at the ICTR. This eventually led to the inclusion of Rule 62 ter of the ICTY Rules of Procedure and Evidence (RPE) which regulates plea agreements at the ICTY.

However, the concept of plea bargaining is not used at the ICC. The main obstacle to the introduction of the practice of plea bargaining before the ICC is that it seems to negate the principles upon which the Court is founded. A similar concern led the ICTY judges to reject, at first, the suggestion to introduce this practice at the ICTY.  However, due to the particularities of international criminal proceedings, such as lengthy, complex and costly proceedings, plea bargaining was eventually introduced, and a number of cases were settled in this manner at both the ICTY and ICTR. The ICC has experienced and continues to face similar challenges as those faced by the ICTY and ICTR, which necessitated the introduction of plea bargaining in these two Courts. This, therefore, necessitates an exploration of plea bargaining as a potential solution to some of the challenges bedevilling the ICC.

If plea bargaining were permitted at the ICC, it might have been employed in the Kenyan cases, mentioned above, to result into a potential win-win situation. The Kenyatta and Ruto cases, just like all cases at the ICC, had three participants namely the Prosecutor, the Defence and the victims of the Kenyan Post-election Violence (PEV), all who had conflicting interests. These conflicting interests may be summarised as follows: on one hand, the Prosecutor’s duty was to prove the charges against the two accused beyond reasonable doubt with a view to obtaining a conviction against the two; but she was unable to secure sufficient evidence partly due to the power and influence of the two accused within the situation country. She, however, enjoyed the support of the ICC and most of the international community, except the African Union (AU).On the other hand, both Kenyatta and Ruto wanted to be acquitted of all the charges against them and for their names to be cleared. Being the President and Deputy President of Kenya respectively, they had the power to potentially hinder the investigations, influence witnesses and influence the AU and most African states against the ICC. They seemed willing to do all it took to prevent the cases from proceeding at the ICC. Lastly, the victims of PEV wanted someone to take responsibility for the horrible crimes which were committed against them and to receive reparations.

The fact is that the two accused persons literally held the keys to Kenya, the one place which contained all the evidence the Prosecutor needed to establish the cases against them. It was not realistic for the Prosecutor to expect them to cooperate in helping her gather evidence against them. The accused persons also held the fate of the victims in their hands and had the power to put in place a national system of reparations if they so wished. For this reason, I think it would have been prudent to enter into discussions with them with a view to reaching a plea agreement. As part of the plea deal, perhaps Kenyatta and Ruto would have been required to take responsibility for some of the crimes that were committed during the PEV. As Kenyan leaders who enjoy massive support of the members of their respective political constituencies, even if they did not incite people to violence, I believe that they had it in their power to stop the violence or to reduce the effects thereof. In return, the Prosecutor would have offered to reduce or withdraw the charges against them. Alternatively an agreement would have been reached whereby upon conviction, the sentences would not include imprisonment. Furthermore, it would also have been prudent for the Victims’ Representative to enter into negotiations with the two accused persons with a view to setting up a reparation system to the benefit of all the PEV victims. The Kenyan government would have been required to, for example, ensure the resettlement of all the victims, some of who still live in camps as internally displaced persons to date.

Admittedly, this situation seems like a bargain of justice. However, in my view it seems like a practical solution in that it would have ensured that someone took some responsibility for the crimes committed and it would also have resulted in the victims’ reparation. As a result of the plea deal, Kenyatta and Ruto may also have had their names cleared and the ICC would have been unable to recommence cases against them in future. This to me seems like a win-win situation compared to what actually occurred.

Plea bargains are used all over the world especially in the United States where over 90% of federal convictions are achieved through guilty pleas. Furthermore, as shown above, plea bargaining has been used by other international tribunals, namely the ICTY and the ICTR, to settle cases. By not considering this potential solution, the ICC was unable to deliver the promise of international justice to the Kenyan people, the Prosecutor was deeply embarrassed by her inability to close these two high profile cases, Kenyatta and Ruto still have suspicion hanging over their heads and the possibility of future prosecution, and the victims did not receive any reparation. This is a very undesirable lose-lose situation which, in my opinion, ought to have been avoided by resorting to plea bargaining as described above.

Guest Post by Phoebe Oyugi (Phoebe Oyugi is a Kenyan lawyer who specialises in International Criminal Law, International Human Rights Law and International Humanitarian law. She currently works as a case manager and consultant in the Defence team of Charles Blé Goudé at the International Criminal Court)

Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement

Ruikun Sun

Prof. Tom Zwart

Increasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law.  

These international courts and tribunals are not the success story law professors and legal advisers would like us to believe. Thus, over time support for the International Court of Justice has been eroding. This is a consequence of the fact that weaker states use the Court to put pressure on more powerful states, which then renounce the jurisdiction of the Court if they lose. The International Criminal Court has been hailed as the global criminal court, but many of the big players, including three out of the five permanent members of the Security Council, have refused to sign up. Furthermore, the Court and its Prosecutor have managed to alienate the African states parties to such an extent that a mass exodus has almost become inevitable.

Political science teaches us that the support courts enjoy is not unlimited. To retain their legitimacy, they should stick to applying neutral and objective legal principles to facts in a technical fashion. Therefore, they ought to refrain from deciding cases which are unfit for adjudication. The South China Sea dispute, which is currently pending before an Arbitral Tribunal set up under the United Nations Convention of the Law of the Sea (UNCLOS), is such an unsuitable case for three reasons.

First of all, the case is a typical example of what Lon Fuller has called 'polycentricity'. The case involves so many actors and affects so many interests, that the binary format of a court case between opposing parties can never do justice to all. Six states and Taiwan have declared a stake in this matter, but the case only relates to the Philippines and China, while the latter does not even accept the authority of the Tribunal. Because of the remit of the Tribunal under UNCLOS, it is only able to deal with some lesser aspects of the dispute, but it will have to forgo on others, like the crucial issues of maritime boundaries and sovereignty. This means that an award on the merits will only settle part of the issues between some of the interested actors at best, while leaving out other affected parties and points of contention.

In addition, the Tribunal deals with the case on the basis of adversarial court proceedings which pit one party against another on the basis of polarising positions. Such an approach is alien to East Asia's culture of harmony, which relies on a willingness to invest in reconciling conflicts and differences. Consequently, in the region the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.

Finally, the South China Sea, which serves as the passageway for half of the world's goods, is of vital geopolitical importance. Consequently, the dispute should be decided at the political level and not by a judicial tribunal. China has decided not to appear before the Tribunal because it contests its jurisdiction. It is an illusion to think that a legal award in a matter of high politics is going to gain any traction when one of the parties, which also happens to be a permanent member of the Security Council, refuses to take part in the proceedings.

The South China Sea dispute is ideally suited for what is called 'integrative negotiation', which favours cooperation over competition. Rather than opting for a win-lose outcome, where one party prevails at the expense of the others, the parties involved look for a win-win solution, which does justice to the interests of all. Considering the importance attached to harmony in the region, such an integrative approach has a high chance of being successful in this case.

One could rightly claim that thus far attempts to deal with the matter amicably through negotiations have not been successful. This is where something good may come out of the involvement of the Tribunal. In its decision it could appoint a Special Master, who will be entrusted with the responsibility to bring all directly affected parties to the table as part of integrative negotiations. The Tribunal will refrain from pronouncing itself on the merits of the case until a comprehensive settlement will have been reached, or, alternatively, until the Special Master reports that achieving such a settlement is unlikely. This will stimulate all parties involved to invest in the negotiations.

In the past reputable courts have decided to refrain from granting relief if the long term interest of justice so required. Thus, the legendary Chief Justice John Marshall of the U.S. Supreme Court denied the plaintiff's petition for a writ of mandamus in Marbury v. Madison in 1803. Chief Justice Marshall felt that issuing a mandamus would irreparably harm the relations between the Court and the executive branch headed by President Thomas Jefferson. The decision in Marbury v. Madison is widely regarded as a defining moment in the history of the Supreme Court, which went on to become to most highly respected judicial body in the world. Therefore, the members of the Arbitral Tribunal should draw inspiration from this very sound judgment.       

Guest post by Prof. Tom Zwart, Professor of Law, Utrecht University, and Director of the Cross-Cultural Human Rights Centre and  Ruikun Sun, Fellow at the Netherlands School of Human Rights Research