The role of legal norms in mediation and negotiation: views from the field.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Friday, March 25, by its moderator, Nicolas Michel of the Geneva University Law Faculty and the Geneva Graduate Institute of International and Development Studies, who introduced the panelists: John Crook of George Washington University Law School; Joel Hernandez of the Ministry of Foreign Affairs of Mexico; Jennifer Lake of Independent Diplomat; and Lamia R. Matta of Miller & Chevalier.

INTRODUCTORY REMARKS BY OMAR DAJANI

Good morning, everyone. My name is Omar Dajani. I am a professor at the University of the Pacific, McGeorge School of Law, and also on the program committee this year. It's a very great pleasure to welcome you to this panel on the role of legal norms in negotiation and mediation.

The fantastic roundtable participants whom we have assembled will be introduced by our moderator, Nicolas Michel, but I wanted to join Nicolas in thanking them for participating and also to introduce Nicolas, who is a professor of international law in Geneva and who formerly served as United Nations legal counsel and as a legal advisor to the Swiss Foreign Ministry.

REMARKS BY NICOLAS MICHEL

Thank you very much, Omar, and for what you did, you and your colleagues, for setting up this panel. Thank you and congratulations. It was definitely not easy, so thank you very much for gathering us.

I will very briefly introduce the members of the panel and then explain to you how we are going to proceed. Starting immediately next to me, we have John Crook. He has been so active and done so many things that we cannot do justice to everything he has done. John teaches international arbitration at George Washington University Law School. He sits as an arbitrator under NAFTA and edits the American Journal of International Law's section on contemporary U.S. practice relating to international law. John served for nearly three decades in the U.S. State Department's Office of the Legal Adviser. He was the second U.S. Agent at the Iran-U.S. Claims Tribunal in The Hague, was deeply involved in creating the UN Compensation Commission in Geneva, and appeared in several cases before the International Court of Justice. From 2000 to 2004, he was general counsel of the Multinational Force and Observers, an international organization operating an 1,800-soldier peacekeeping force in the Sinai Desert in Egypt. He was a party-appointed commissioner on the EritreaEthiopia Claims Commission, which successfully addressed extensive claims for injuries to persons and properties stemming from the 1998-2000 war between the two countries. John has written extensively on dispute settlement and is a frequent consultant to counsel on ICSID and other proceedings. He is active in the American Society of International Law and was been nominated to become an ASIL vice president at ASIL's 2011 Annual Meeting.

Next to John, we have Ambassador Joel Hernandez. He is the Legal Advisor to the Ministry of Foreign Affairs of Mexico, and has been there now for almost six years. A career diplomat,

Ambassador Hernandez joined the Foreign Service of Mexico in 1992. He served as Deputy Consul General of Mexico in New York, Alternate Permanent Representative of the United Nations Office in Vienna, and Director-General for UN Affairs. He also has extensive judicial experience. He was the agent of Mexico in the request for interpretation of the judgment of the ICJ in the Avena case. He has also been co-agent of Mexico in various cases before the Inter-American Court of Human Rights, and in addition, he served as Associate Legal Officer at the United Nations Office for the Law of the Sea. Ambassador Hernandez earned his bachelor of laws degree from the School of Law of the National Autonomous University of Mexico, and he also holds a master of laws degree from New York University School of Law.

Next to him is Jennifer Lake. Jennifer is a Legal Advisor to Independent Diplomat. Now, Independent Diplomat is a nongovernmental organization dedicated to conflict resolution through the provision of diplomatic advice to under-resourced governments and political groups, with the aim of ensuring that their views are heard in the workings of modern-day diplomacy. By promoting greater inclusiveness and accountability in international relations and diplomatic discourse, Independent Diplomat seeks more just and sustainable solutions to international issues through avoiding conflict, facilitating self-determination, and limiting climate change. Their current clients include the government of Southern Sudan, the people of Western Sahara, and the government of Moldova. Jennifer previously served as a Legal Officer at the United Nations, the Iran-U.S. Claims Tribunal, and the Korean Energy Development Organization. She also served as head of the International Law and Treaty of Waitangi Section at the Office of the Solicitor General in New Zealand, and she was a member of the New Zealand legal team in the Rainbow Warrior arbitration between New Zealand and France.

Also here is Lamia Matta, who is of counsel in the Litigation Practice Group at Miller & Chevalier, chartered in Washington, D.C. Lamia counsels and represents clients in complex litigation matters and has worked on cases that implicate foreign policy issues, particularly in the Middle East. Lamia also practices in the area of international trade and focuses on matters involving the Foreign Corrupt Practices Act, export controls, and trade policy. Before joining Miller & Chevalier, Lamia worked for a number of years as a legal advisor in the peace negotiations between Israel and the Palestinian Authority. In that context, she provided advice to the Palestinian negotiators, the Office of the Authority's President, and a number of its ministries, including the Ministries of Civil Affairs, Finance, and Planning. She also prepared numerous opinions relating to governance, anti-corruption, judicial reforms, and so on. Lamia has also managed the advocacy campaign for the International Crisis Group's Middle East Initiative, a global advocacy initiative designed to generate new political momentum for a comprehensive settlement of the Arab-Israeli conflict. She has served as a federal judicial law clerk and worked at a number of human rights organizations. She is a member of the D.C. Bar and the California State Bar and holds a master's degree in international religions as well as a juris doctorate degree.

So I am really pleased to have been invited. It is an honor to moderate such a good panel. Now, how have we organized our panel? I will ask the same basic question to each of the panelists. They will start making a brief presentation, say about five minutes in responding to this question. Then we will engage in a dialogue between the panelists. We will address a number of specific questions, depending on how much time we have, but then we will definitely give you an opportunity to engage in a dialogue with the panelists. At the end, the panelists will have also a few minutes for concluding remarks.

Now, the initial question all the panelists have received is the following: drawing on your experience, describe a situation in which international law influences efforts to resolve a dispute through negotiations or mediation. By what means did law exert an influence? In what way was it helpful or unhelpful?

Can we start in the order of the presentation? John, please.

REMARKS BY JOHN CROOK

Thank you, Nicolas, for that very kind introduction, which established my lifelong inability to hold a steady job.

[Laughter]

We had a discussion before about the differences in the way international law plays out in bilateral and multilateral negotiations. They are very different worlds. My experience has tended to be more on the bilateral side, so I am going to focus on that in my initial remarks.

It's clear that negotiating settlements to complex international disputes is difficult. If it weren't difficult, there wouldn't be so many complex international disputes. The chair has given us five minutes for our initial presentations. I want to use mine to highlight briefly some procedures informed and shaped by international law that have played significant roles in bringing about and structuring some settlements of complex disputes.

I want to look at two in particular that are familiar to me from my past life the package of agreements between the United States and Iran that brought an end to the 1979-1981 hostage crisis between the two countries, and the December 2000 agreement between Ethiopia and Eritrea to end their bitter war.

I was not directly involved in the negotiation of either of these. I was peripherally involved in negotiating the first one, but I spent many years implementing the procedures that were established by these agreements.

1979 was a long time ago. As I look around the audience, I am frighteningly reminded of how long ago it was, so bear with me for a little bit of history. The Islamic revolution came to power in Iran in February of 1979. Many of the revolution's leaders had a very strong sense of grievance against the United States, stemming from years of U.S. policy and action in support of the Shah and so forth. In November of 1979, months after the revolution, a group of students seized the U.S. embassy and took 52 Americans hostage. The Government of Iran subsequently ratified their actions. In the meantime, previously extensive economic and investment relationships between the United States and Iran were precipitously ended. Contracts were terminated, goods were not paid for, and properties were expropriated. American parties responded in the characteristic American way, which is to say they sued and attached every Iranian asset in sight. The U.S. government also responded in a familiar way and froze every Iranian asset it could, both in the United States and abroad.

This created a somewhat difficult negotiating problem. Serious negotiations could not get underway until the fall...

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