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Andrea K. Schneider, Bargaining in the Shadow of (International) Law: What the Normalization of Adjudication in International Governance Regimes Means for Dispute Resolution, 41 N.Y.U. J. Int’l L. & Pol. 789 (2009)

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41 New York University Journal of International Law and Politics 789 (2009)


After examining the similar goals and values that drive the simultaneous increase in international trials and the decrease in U.S. trials, the article then examines the challenges international adjudication poses to dealing with human rights violations and transitional justice situations. Simplistically, these tensions can be viewed as the need to strike a balance between peace and justice, top-down implementation and bottom-up impact, and process efficiency and conflict customization. The good news is that these challenges have been slowly working themselves out as the next generation of international adjudication models continues to improve. This continued improvement and normalization leads to an even more interesting question - what are the possibilities for human rights adjudication in the future? What happens when countries and individuals are bargaining in the shadow of international law? The last part of this article, looking through the lens of dispute resolution theory, addresses at least two intriguing developments that could occur in the next ten years. The first development might be the normalization of consensual international processes that mirror, at least to some degree, U.S. process. After moving away from negotiation toward judicialization of international disputes, the pendulum might start to swing back toward negotiated settlements. Will individual defendants be more likely to plea bargain (as has already occurred)? Will states be willing to work out settlements with their human rights victims prior to trial? Given the potential risks involved in these developments, the international community needs to be vigilant so that the rule of law, rights, and equality are still protected through these consensual dispute resolution processes. Second, the shift to broad community reparations like health care and education ordered by tribunals and truth commissions opens up a new chapter in more appropriate remedies for human rights victims.

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