An international Commission of Inquiry for the South China Sea? Defining the law of sovereignty to determine the chance for peace.

• Author: Mitchell, Ryan
• Position: IV. Benefits of an International Commission of Inquiry through VI. Conclusion, with footnotes, p. 782-817

4. BENEFITS OF AN INTERNATIONAL COMMISSION OF INQUIRY

   1. A Modern Innovation for a Multipolar World

      Regarding international law's legitimacy and enforcement dilemmas, Myres McDougal wrote that "[u]nless there is a basic acceptance of the system of public order no community exists; where no community of loyalty, belief, and faith exists, no rational process of decision can occur, since recommendations will proceed on irreconcilable assumptions." (153) That, as has been described in this Article, is precisely the underlying problem with regard to the Philippines v. China arbitration as well as the South China Sea dispute more generally. In addition to identifying the problem at this general level, McDougal also elaborated in his work a key metric for evaluating its manifestation in specific instances: the question of whether states have competing or irreconcilable hierarchies of values. (154)

      As suggested above in Part III, China and the Philippines are advocating very different views regarding such basic international legal principles as nemo dat and "the land dominates the sea." While interpreting the same body of legal rules, the two sides reach different outcomes precisely due to a disagreement as to the hierarchy of values underlying the rules being interpreted. In China's case, to reiterate, the apparent highest value is the positivistic assumption that the legitimacy of legal rules is in the final instance always determined by state consent. (155) On the Philippine-U.S. side lies the alternative view that the highest value of international law is a prioristic rulemaking and the establishment of shared communal norms. (156)

      A resolution to the current dispute would be much easier, at least as a legal matter, if one side or the other was "wrong." However, this is not the case, for "[t]here [is] no well-developed and authoritative hierarchy of values in international law." (157) As a result, even more so than is already the case within domestic jurisdictions, international legal decisions can reach markedly different conclusions depending on decision makers' valuation of different factors, such as the rights of sovereign states or the universal rights of individuals. (158)

      To accommodate the impossibility of resolving by fiat fundamental interstate differences over hierarchies of value, McDougal and other representatives of the New Haven School of international legal theory advocated "a public order which is designed to promote the greatest production and widest sharing of all values and which in its power processes, in particular, is oriented toward a minimum of coercion and a maximum of persuasion." (159) The resulting order, then, would have to be one that adopts as a basic principle the need for maximally inclusive rules and institutional mechanisms aimed at diminishing what Jacques Ranciere has termed dissensus: the fundamental clash between incompatible collective worldviews based on different epistemologies of value. (160)

      The chief need, then, is for a mechanism that enables states that wish to resolve their conflicts, but that bring to the table markedly different Weltanschauungen, to gradually work towards beneficial solutions, mutual understanding, and accommodation. As will be argued in this Part, the Commission of Inquiry (COI) mechanism is in many ways the most viable institutional tool states have available to them for these purposes. The concept of the COI was designed at the turn of the twentieth century, in a world of newly equal (and newly globalized) states, which sought to recognize their equal status while making allowances for fundamental differences over the ideal world order, stemming from different hierarchies of value. (161)

      COIs were introduced as a potential means for resolving international disputes in the first Hague Convention of 1899, and then again endorsed and expanded in the second Hague Convention of 1907. (162) The idea of an independent transnational process of establishing a group of inquirers to investigate the facts of disputed or controversial incidents was largely a new innovation, although a few international legal instruments had previously provided for inquiry processes (e.g., in order to resolve complex preexisting disputes between parties to a peace treaty.) (163) Yet, unlike these predecessors, the COI was conceptualized as a perpetually available tool for states to use in the context of increasingly complex global ties and, in particular, the difficult project of managing the world's ever more crowded sea lanes. (164)

      The earliest applications of the new mechanism were thus in the so-called vessel inquiries, (165) which intended to facilitate the resolution of the circumstances and allocation of responsibility over occasional altercations between major sea powers. Thus, the very first Hague Convention COI was the 1905 Dogger Bank inquiry, (166) which was occasioned by a Russian naval ship's firing at UK fishing vessels after mistaking them for enemy Japanese torpedo boats in the midst of the Russo-Japanese War. The incident, which sparked a serious diplomatic altercation and was seen as potential cause for military confrontation given contemporary geopolitics, was frequently referred to in the United Kingdom as the "Russian Outrage." (167) Dogger Bank was the first opportunity for great powers to demonstrate their ability to unite, in accordance with The Hague principles, in the collective attempt to constrain and limit sources of dispute while maximizing potential areas of agreement.

      The proceedings were in many ways exemplary of the originally intended role and function of the original COIs. Occurring in the context of a war between Russia and a rising Japan (allied with Britain), the underlying incident certainly had great potential for sparking further military or diplomatic conflagration. Yet the use of the COI, which had originally been proposed by the Estonian-Russian jurist Friedrich Martens, (168) eventually managed to unite the two parties, Britain and Russia, in common acknowledgment of the improper but partially inadvertent nature of the Russian naval actions in question. Unlike a litigation, this outcome was reached by means of an independent committee's establishment, via inquisitorial methods, of certain basic facts (in that case, specific movements of ships and issuance of military commands, based on accounts by various parties present at the time), with no specific damages awarded, blame sought, or penalty imposed--though the mere establishment of key facts eventually proved enough to motivate apology and compensation by Russia to Britain over the acts of one of its officers. (169) The process successfully helped defuse the incident.

      Various other COIs were deployed in similar maritime contexts in the years that followed. As a means of resolving contentious, potentially volatile disagreements, the new inquiry model was seen as incorporating some of the best aspects of preexisting forms of dispute settlements, serving as "a tool that married the independence of arbitration with the flexibility and souplesse of mediation." (170) Indeed, in some of the earliest theoretical investigations of the promising role of the mechanism in helping to order the multipolar world community--a vital concern given the complex balance of power dynamics characterizing the period--it was precisely this souplesse ("flexibility, elasticity, or suppleness") that served as its most valuable function. (171)

      This mechanism, however, fell into disuse in the years leading up to World War II, as flexibility and accommodation became increasingly rare objectives in interstate relations. (172) During the Cold War era, as well, the period of dormancy continued, largely due to such factors as the tense international structure of competing alliances, proxy regimes, and extremely centralized military and diplomatic decision making on both sides of the ideological divide. (173) Important factors promoting the attempt to discover and make use of conciliatory mechanisms, such as COIs and high levels of economic integration and expanding diplomatic and commercial ties, were also largely absent from U.S.-Soviet relations. Following the collapse of the Soviet Union, however, COIs were rediscovered beginning in the 1990s and put to novel use in the context of official international inquiry into situations of possible human rights abuse or violation of similarly grave international customary norms. (174)

      The mechanism was seen as particularly suitable for such contexts for a number of reasons, among these being (1) the relatively low amount of political and diplomatic capital required to establish them--as opposed to, official tribunals empowered to pass binding judgments as a matter of international criminal law; (2) the collaborative nature of the proceedings that meshed well with the fundamental premise of international human rights law investigation that the rights identified are "universal" norms of the entire community of nations (not particular political assertions by one or a group of states); and (3) the flexibility or souplesse afforded by this tool in terms of defining both the exact nature of the inquiry, particularly the highly adjustable degree to which it is conceptualized as making legal versus factual determinations, and, relatedly, the concomitant lack of any significant restrictions on the possible forms of subsequent conciliation between parties. (175) These factors have informed, for example, recent use of the mechanism to address human rights abuses in North Korea, (176) with a COI on the issue established under the UN Human Rights Council making greater progress on international consensus over the problem's severity than any other approach (though some critique the degree to which modern human rights COIs do not aim at conciliation per se but rather "to condemn and provoke"). (177)

      Indeed, it is largely for the same three qualities of moderation...