Procedural And Substantive Due Process Requirements The political and military tensions that may arise during violent confrontations that include land boundary disputes can sometimes reach such a high level that the parties involved in the fight are unable to settle their issues on their own. Despite the fact that the parties have reached a cease-fire agreement to put an end to the hostilities, the delimitation of a border may prove to be too delicate and too technical to be resolved by the use of bilateral dispute resolution approaches such as mediation or negotiation. In these kinds of situations, the parties may try to include the participation of an external player in order to advance the peace process. As time goes on, international arbitration is becoming the preferred method of dispute resolution. However, despite the fact that tribunals provide awards that are conclusive and legally enforceable, their rulings almost never put an end to political conflicts; in fact, they may further exacerbate conflict. This is the matter that we are concerned about. What is the reason why some arbitrations are seen to be legal successes while others are considered to be political failures? How exactly can tribunals utilize the law to bring about peace in the real world? The first consent to be bound by a third party is all that is realistically necessary in many kinds of legal dispute resolution, such as commercial arbitration. Consent to being bound implies permission to continuing to be bound, and this may be enforced in a court of law. An example of this would be the agreement to be bound by a third party. When it comes to arbitration inside the framework of a peace process, this is not the case. With regard to this matter, the parties' initial consent does not necessarily imply that they will continue to preserve their consent for the whole of the arbitration procedure. Tribunals often confront the challenge of obsolescing consent when the effective settlement of a dispute is contingent on the political will of the parties involved. This occurs because the consent that was originally given is continually reshaped by changes in political reality and the parties' views of the arbitration. In order to guarantee its continuance, tribunals need to exercise caution, not only during the period of arbitration but also throughout the phase of implementation. In the event that a tribunal is unable to execute a punishment, the parties may choose to withdraw from the arbitration process, reject a judgment, or simply fail to live up to their promises. The parties have the ability to appoint their own arbitrators, they have the ability to determine the time frame of the arbitration, they have the ability to draft distinct procedural rules for the tribunal, and the arbitration can accommodate a variety of actors, not just states. These are some of the features that may convince the parties to give their initial consent to the process. However, none of these judgments can be considered a guarantee that the political commitment of the parties will continue, and such a commitment cannot be forcefully imposed. Therefore, in order to fulfill the requirements of a peace process, it is necessary to not only make an initial commitment to arbitration, but also to make steps to guarantee that this commitment is maintained during the whole of the arbitral procedures and while the award is being implemented. In light of these circumstances, the issue arises as to who should make a commitment right from the start and to what should that commitment be maintained. The legitimacy of the arbitration and the practical impact it has on the ground are both determined by these two aspects of consent, which are important since they jointly define the validity of the arbitration. As we go forward, we will discuss who should provide their assent to what. Ever since the momentous inauguration of the World Trade Organization (WTO), its dispute resolution tribunal, the World Trade Court (the Court), 3 has garnered a great amount of attention, and often praise, from both its users and other pundits. Over the course of the last ten years, this WTO system's crown jewel has been responsible for the filing of more than 350 lawsuits. Four times as many cases have been heard by the Court as have been heard by the International Court of Justice (ICJ) in the fifty years that the latter has been in operation. Ironically, the magnetism of the Court has worked out to be a gift in disguise. Highprofile, non-trade concerns, such as human health and safety, have lately gravitated towards the World Trade Court. This is in addition to the usual trade issues, such as tariffs, subsidies, and anti-dumping, in which the World Trade Court clearly maintains competence. There is a correlation between the increase of regulatory concerns inside the World Trade Organization (WTO) and the emergence of the contemporary welfare state, which places a significant emphasis on social hygiene. As a consequence of this, risk restrictions, such as those pertaining to beef that has been treated with hormones, have become the focal point of economic disagreements. Despite the fact that these disagreements have the potential to be excellent cases due to the fact that they include both trade and non-trade values, they are still prone to producing inappropriate legal precedents. Oliver Wendell Holmes had previously cautioned that the conclusions that result from them may be disagreeable and perplexing. It is important to note that the subject matter of those disagreements, which is municipal laws on food stuffs, has a tendency to be inherently flammable due to the scientific debates and the socio-cultural sensitivities that surround it. On the other hand, after the matter has been resolved, the WTO dispute resolution procedure compels the Court to examine and assess the substantive regulatory conclusions that domestic regulators have arrived at about their respective settings. After then, the court will make a final ruling about whether of the parties is in the right or the wrong. At this stage, one can discover a transcendental vision of a Dworkinian "Hercules" who provides his own answers on dangers and science in an omniscient manner, and these answers are always true. It is vital to identify the one-of-a-kind hermeneutical route that the Court follows in order to reason out the answer on risks and science in order to properly deal with the required specifics of the Court's judicialization of science, including its nature, scope, and procedure. According to the argument presented in this article, the concept of "burden of proof" (BOP) provides the key to accomplishing such a method. In a critical manner, this piece makes an effort to reconstitute the traditional idea of BOP as the interpretative burden of the Court. In contrast to the traditional BOP, which is carried by par ties, the article contends that the Court, in its capacity as a judicial Hercules, is responsible for bearing the load of evaluating the arguments and evidence presented by the parties. In doing so, the Court "judicializes" science by operationalizing the BOP in a manner that exposes its own view of science. In other words, the Court "judicializes" science. According to the customary method that is used in public international law, the burden of proof (BOP) is essentially the duty of the parties. This means that any party that cites a particular fact is responsible for demonstrating the reality of that fact (actori incumbit probatio). Shirts and Blouses, an early case before the World Trade Organization, upheld this viewpoint. 12 The logical corollary of this default rule is as follows: if a party that is bearing the burden of proof fails to discharge it, the party will lose; and if all of the pieces of evidence that are available to the court are insufficient or in equipoise in their probative force, the party that is bearing the burden of proof will also lose, because the other party will have the benefit of the doubt. It is the contention of Judge Spano that the function of the European Court of Human Rights (ECtHR or "the Court") as a facilitator of national protection of human rights is undergoing a transformation. First and foremost, the Court's attention was directed on the incorporation of the European Convention on Human Rights (often known as "the Convention") into the legal systems of member states. The implementation of conventionbased rights and responsibilities was the means by which this was accomplished. Recently, the Supreme Court entered what is known as the "age of subsidiarity," which is characterized by its emphasis on "procedural embedding." The Court provides domestic institutions with an incentive to make use of its human rights instruments and to become more active in the European Convention on Human Rights (ECHR) system by ensuring that domestic procedures are of a high standard. Legislators are the target audience for this practice. It is the contention of Judge Spano that this will result in an improvement in the democratic nature of domestic rights-based practice. The fulfillment of the "human rights-oriented role of national parliaments in defining the domestic scale of rights protections subject to European supervision" would be motivated by this, and it will also generate a "democratic debate where reasonable minds may differ on the scope and content of the proposed policy." The value of comparable arguments being presented from a variety of viewpoints has been ad clothed by academics. Despite this, the subject is still not well investigated from an empirical point of view. Over the course of the past few years, the literature on international criminal courts has undergone a transition from a more enthusiastic response from the legal community regarding the exciting new frontiers in legal and institutional development to a more critical debate that includes participation from anthropologists, sociologists, political scientists, and a large number of scholars from interdisciplinary fields. There are three distinct lines of criticism that are interconnected and are explored to varying degrees through the work of many writers. The first is a general inquiry of whether or not the only concentration on punitive "trial" justice is in reality useful for the victims of war crimes and crimes against humanity, as well as for the larger society that have suffered as a result of such atrocities. The second argument is that in continuing wars, the pursuit of such justice may clash with the desire of peace via talks. This is something that is brought up in the second point. There is a lack of engagement with the communities who are impacted by the crimes that are being prosecuted, which is the third worry. For the first two points, the arguments that are presented by both sides have been well rehearsed. Indeed, with respect to the first issue, one might argue that a consensus is growing in the academic literature, although it is clearly not yet in policy practice, that international criminal courts need to be a part of a larger package of transitional justice instruments at various policy levels. This is something that is not currently the case. On the other hand, the third line of criticism has not been given a great deal of consideration. In this line of criticism, the claim is made that victims of crimes and broader impacted communities have not been consulted and have not been given the opportunity to choose whether or not international criminal tribunals are their preferred form of justice. When it is in its weaker version, it maintains that in order for international criminal courts to obtain legitimacy, they need to be more communicative and responsive to societal demands than they have been up to this point. The more robust version of this line of reasoning maintains that they cannot be legitimate unless they are answerable to democratic principles. The issue of whether or not it is possible to link resolutions of treaty organs to the interpretative categories of subsequent agreement and subsequent practice within the meaning of Article 31(3)(a) and (b) or to other practice pursuant to Article 32 of the Vienna Convention on the Law of Treaties (VCLT) is the most important issue. Whaling in the Antarctic illustrates the significance of organ practice, which refers to the practice of organs of international treaties by means of resolutions, for the interpretation of the underlying treaty.1 The most important question is whether or not it is possible to link resolutions of treaty organs to these interpretative categories.2 Such a proposition entails a number of consequential issues, starting with the question of whether or not organ practice counts as practice "between the States." If this is the case, then the question that follows is whether this is consistent with a special rule on subsequent practice that has the effect of reducing the requirement for an agreement within treaty organs. Lastly, the question that needs to be answered is whether the answer to both questions is different with regard to organs that are part of general treaty regimes as opposed to organs that are part of international organizations that have legal personality. interpretation of the underlying treaty, and highlights a number of issues attached to its interpretative employment.1 The foremost issue is whether it is possible to link resolutions of treaty organs to the interpretative categories of subsequent agreement and subsequent practice within the meaning of Article 31(3)(a) and (b) or to other practice pursuant to Article 32 of the Vienna Convention on the Law of Treaties (VCLT). A statement of this kind has a number of consequences, the first of which is the question of whether or not the practice of organ donation is considered to be practice "between the States." If this is the case, then the question that follows is whether this is consistent with a special rule on subsequent practice that has the effect of reducing the requirement for an agreement within treaty organs. Lastly, the question that needs to be answered is whether the answer to both questions is different with regard to organs that are part of general treaty regimes as opposed to organs that are part of international organizations that have legal personality. As a result of the ruling that the International Court of Justice (ICJ) made in the Jurisdictional Immunities case1, it was generally believed that the possibility of establishing an additional exception to the norm of state immunity in cases that allege severe international crimes was eliminated. Attempts to claim that the hierarchically higher standing of the substantive principles at issue 'trumped' the so-called procedural rules of sovereign immunity were unsuccessful, just as they were in a number of other instances that were brought before it in domestic as well as foreign tribunals. When it heard the claims of Italian victims of German atrocities that occurred during World War II, the Court came to the conclusion that Italy had acted in an unlawful manner. In reaching this conclusion, the Court relied on the distinction that is now commonly known between substantive laws (such as those that prohibit war crimes) and (so-called) procedural laws such as state immunity. As a result of the fact that immunity is only concerned with the scope of a domestic court's juris diction and not with the issue of whether or not a state is liable for the alleged violation, it was claimed that there could be no contradiction between the two. A number of people voiced their disapproval of the formalistic approach used by the Court in its evaluation, as well as its inability to address the more complex matter of how to reconcile the numerous interests that were at risk. However, very few people have gone beyond this to investigate whether or not the distinction that the judgment was based on may be considered genuine. The decision to focus on this particular subject stems from the fact that international adjudication is a relatively minor but not insignificant part of the intricate structure of international governance, which is the means by which states and other players attempt to provide global public goods. Certain international treaties provide international tribunals with the ability to safeguard, articulate, and mold ideals that are reflective of public goods. This remains true in particular for regimes that are reasonably integrated and are supported by values that are hierarchically higher than others. For instance, the European Court of Human Rights (ECtHR) is able to contribute to the production of the public benefit of human-rights protection by deciding cases that are based on the European Convention on Human Rights (ECHR). Additionally, outside of such hierarchically structured contexts, international courts have the ability to adjudicate claims against states that undermine global public goods. The Dispute Settlement Body of the World Trade Organization (WTO) and the International Criminal Court (ICC) are two other human rights bodies that have comparable roles. If we acknowledge that whales are a worldwide public benefit that should be protected, then the claim that Australia has brought against Japan before the International Court of Justice may be able to contribute to the production of that public good. When we consider the possibility that international courts may play a part in the preservation of public goods, we are compelled to inquire as to whether or not the procedural law of courts is conducive to the protection of such goods. In one of the few, if quite brief, explanations of the relationship between international substantive and procedural law, Jenks made the observation that it is reasonable to anticipate that procedural law would follow substantive law, and vice versa: In each and every legal system, the way in which law and procedure interact with one another is continuous. Changes in the substantive law necessitate the introduction of new processes and remedies, and the introduction of new procedures and remedies necessitates the introduction of new substantive legislation. In the same way, this is the case with international law; if we want to evolve the law in such a way that it can adapt to the challenges of our times, our processes and remedies need to be sufficiently diversified and flexible for the purpose. The conclusion that may be drawn from this is that the procedural law of international courts ought to permit the adjudication of claims that include public goods, and in cases where it does not, the procedural law need to be modified. The link between international adjudication and the supply of public goods, on the other hand, is more complicated than this. In spite of the fact that there are instances in which the process of international adjudication makes it possible to perform an effective application of substantive law that incorporates public goods, adjudication may sometimes serve other interests and may even obstruct the fulfillment of public goods. One of the primary goals of inter-state judicial process is to ensure that individual rights of states are protected. However, global public goods and the community interests that are connected with them cannot be reduced to what are known as bilateral schemes. Particularly at the International Court of Justice (ICJ), there is a conflict between the collective and multilateral character of substantive principles that the Court may be called to dispute and the bilateral nature of its processes. This conflict is a source of stress. Furthermore, international adjudication might be considered a public benefit in its own right, which means that it competes with other public goods that are considered to be substantial. However, claims that are based on international rules associated with public goods rarely present themselves in black-and-white terms that allow courts to apply such rules without reflection on their role in the development of international law. This is because the maintenance of an international court, which is a trusted institution by relevant actors, sits uncomfortably with an assertive approach that may be necessary to protect global public goods. The many linkages that exist between specific procedural arrangements, on the one hand, and the substantive law that safeguards global public goods, on the other hand, give rise to fundamental concerns. In the process of justifying procedural regulations, what importance should substantive law play? Is it true that procedural law is nothing more than the handmaiden of substantive law, with the only legitimate objective of ensuring that substantive law is applied effectively? On the other hand, does process serve other goals, some of which are independent of and maybe even in contradiction to the effective execution of substantive laws? Is it desirable from a normative standpoint if this is the case? Regarding these problems, should the courts be the appropriate actors to make choices, or should they be left to other actors to make decisions? Over the course of the last several decades, there has been a substantial advancement in the prominence of international organizations. International organizations have been subjected to new demands, and as a reaction, they have devised novel rules and methods. These, in turn, have necessitated the use of certain policing measures. These tasks include, among other things, the creation of compliance and sanctioning processes, as well as actions related to regulatory oversight. persons and non-state actors are affected by the ever-expanding scope of operations carried out by international organizations. This is due to the fact that the activities carried out by international organizations have a growing effect on the regular activities of these persons and actors. When these activities aim to control the behavior of people and other non-state players and apply punishments in the event of misbehavior, it is possible that the rights of these persons and other non-state actors will be harmed. The increasing restrictions that have been implemented by international organizations have resulted in people and non-state actors disputing the choices that have been made by international organizations. Additionally, they have petitioned for access to remedies because they believe that their rights and interests may be negatively impacted. As an example, in the framework of the United Nations, one of the most prevalent concerns has been the imposition of economic sanctions, in particular in accordance with resolution 1267 of the Security Council1 and the call to guarantee that the human rights of the persons mentioned are respected. The gradual shift from a conventional system of sanctions aimed at nations to the emergence of so-called "smart sanctions," as well as the subsequent individualization of the mechanism by which the United Nations imposes penalties, calls for the construction of mechanisms that enable people to protect their rights. As a result of this exigency, the United Nations established, among other things, an office for an Ombudsperson in 2009. This Ombudsperson is responsible for handling matters pertaining to de-listing petitions. An further illustration of this would be the establishment of sanctions systems by international financial institutions for the purpose of punishing businesses and persons who have been discovered to have participated in misconduct such as fraud and corruption in operations that were funded by such organizations. Sanctions imposed by the World Bank on persons and companies that engage in fraudulent and corrupt activities have resulted in the emergence of problems that are, in many respects, comparable to those that have arisen as a result of the United Nations framework. Regarding both instances, there is, on the one hand, a sanctioning institution that is part of an international organization, and, on the other hand, there are persons or businesses that are the targets of sanctions. The introduction of procedures that provide sanctioned non-state actors the ability to defend themselves acts as a counterbalance to the choices that are made that have a detrimental impact on the latter. There is a specific picture of justice that may be related to the scenario that these international organizations are now facing. This image depicts Lady Justice wielding a sword in her right hand and scales in her left hand. In addition to the capacity to impose sanctions, there must also be a comprehensive procedure of weighing all elements of a case. This will guarantee that, in the end, each party will obtain a result that is fair and just without exception. Having access to many treatments is an essential component of this evaluation process. A worldwide public benefit is the availability of treatment options. Global public goods include not just items in the conventional sense, but also ideas such as peace, legal protection, and human rights. This is because global public goods encompass all of these things. Everyone has the right to have access to various forms of relief. Remedies are not exclusive in the sense that they should be applicable to everyone who is in a situation that is comparable to the one being treated. From the perspective of international law, the provision of remedies by international bodies has received a very little amount of attention. On the other hand, they do merit that attention. It is possible to define remedies as "the means of enforcing rights and redressing wrongs." This is a wide definition of remedies. Access to justice is a more general notion that may be described as "the individual's right to obtain the protection of the law and the availability of legal remedies before a court or other equivalent mechanism of judicial or quasi-judicial protection." These rights are a component of the larger idea of access to justice. The idea of access to justice encompasses not only the right to seek a remedy before a court of law or a tribunal, but also the "remedies offered by competent public authorities, which are not courts of law but can nevertheless perform a dispute settlement function." This is because the notion of access to justice encompasses both of these types of remedies. There are several different ways that individuals might have access to remedies inside international organizations. In terms of both their nature and their qualities, the mechanisms that have been developed are various. The number of options for independent assessment and compliance has increased significantly in recent years. The mechanism of the World Bank Inspection Panel, for instance, permits groups of individuals who have been adversely impacted by a project that has been supported by the Bank to seize the Panel in order to urge that the Organization evaluate and even alter its own conduct in line with its own standards and procedures. A decision is made by the Panel regarding the eligibility of the complaint, as well as the merit of requesting authorization from the Board of the World Bank to conduct an investigation of a specific action taken by the financial institution in relation to the application of its operational policies.8 In the event that an investigation is conducted, the Bank may be prompted to implement an action plan in order to correct the situation that gave rise to the complaint. At this particular crossroads of national and international decision-making, peace discussions stand out as a singular moment. The majority of peace talks that take place in the modern age are intra-statist, meaning that they take place between an incumbent government and a domestic opposition organization or between many parties of this kind. However, the outcomes of these essentially domestic processes are significantly impacted by the external pressures that are presented to the negotiating parties by third-party governments and international organizations that are involved in the peace process as mediators, donors, or peacekeepers (also referred to as "third party facilitators"). An further transnational aspect of intra-state peace talks is that they often result in repercussions for nations and people who are not directly participating in the process, even those that are located in close proximity to the state in question. Inter-statist peace talks are held between two or more governments, whereas hybrid peace negotiations include an autonomous government in opposition to a national liberation movement. Peace negotiations that are not intra-statist are referred to be inter-statist. Just like intra-state negotiations, inter-state and hybrid negotiations are often affected by third party facilitators. Additionally, these types of talks may also have ramifications for international parties who are not officially participating. At the same time, these discussions also have a significant national component since they include the core interests of domestic constituencies and provide the impetus for 'level 2' conversations among those constituencies. As a result, peace talks are impacted by a wide variety of local and international players, and they also have an effect on those actors. However, there is no guarantee that those who make choices and those who are affected by those decisions are a match. As a result, peace discussions are vulnerable to a twofold representation deficit, which includes both internal and external representation. Internally, weak domestic groups may find themselves in a position where they are forced to sacrifice their vital interests in the name of peace. This may occur as a result of their government giving in to the demands of more strong domestic groups or as a result of the government giving in to pressures imposed by its counterpart or by third party facilitators. Externally, non-citizens may be obliged to endure economic, environmental, demographic, or other externalities imposed by a peace accord without having any influence on the parameters of the pact. There may be other externalities as well. This shows that concessions that are touted as the "necessary price of peace" could, in reality, reflect easy compromises rather than vital sacrifices. This is because they come at the cost of under-represented groups who lack chances to properly monitor and respond to the decisions that negotiators make. The issue may be better understood with the aid of a few examples. In 1995, the Dayton Peace Agreement proposed a new constitution for Bosnia and Herzegovina (Bosnia). This constitution made provisions for the distribution of political power among the three major ethnic groups in the country: Bosniaks, Serbs, and Croats. These ethnic groups are referred to as the "constituent peoples" of Bosnia in the Constitution.2 As a result of this arrangement, Bosnian citizens who did not belong to any of the constituent peoples, which are referred to in the Constitution as "Others" (for instance, Roma and Jews), were not allowed to be elected to the presidency or the House of Peoples (the chamber of the Bosnian Parliament that has the power to veto decisions). The Bosnian administration said that the exclusion of Others was a regrettable but inevitable result of the necessity to keep Bosnia unified while also pleasing local ethno-nationalists. This argument was presented in response to a challenge to this arrangement that was brought before the European Court of Human Rights that was brought against it. The Court, on the other hand, expressed the opinion that the government could come up with an alternative power-sharing formula that would guarantee the interests of the three constituent peoples without completely excluding Others.3 It is arguable that the fact that the Bosnian government did not give serious consideration to such alternative options demonstrates how easily a government can decide to sacrifice the rights of marginalized groups in order to achieve peace. A further illustration of this would be the fact that in 2001, when the Taliban administration was overthrown, representatives from all of the main Afghan groups gathered in Bonn under the auspices of the United Nations in order to build a new government for Afghanistan. The Bonn peace talks were conspicuously under-representative of women and so was the newly established Afghan government, whose members were elected by the peace talks’ participants.4 The exclusion of women from the peace talks and the government was in line with the requirements of various conservative forces within Afghan society. It is not difficult to understand why the delegates from Bonn and the United Nations gave a significant amount of weight to the demands of these reactionary groups, who could have otherwise ruined the peace process. At the same time, they downplayed the interests of Afghan women, who would obviously not resort to violence in order to claim their rights. On the other hand, surrendering the rights of women in such a manner seems to have been a needless undertaking. This is something that can be gleaned from the fact that at first, not even a single woman was invited to Bonn. It was only after being pressured by women's groups that the organizers of the peace negotiations ultimately made an attempt to include some women. This suggests that if they had made a bigger effort, they would have probably invited a higher number of women. The European Court of Human Rights (ECtHR) has been in the process of recalibrating its approach to the margin of appreciation that it allots to respondent nations for a considerable amount of time now. The Court is, without a doubt, on the verge of reformulating the substantive and procedural standards that determine the proper degree of deference that should be accorded to member states. The over arching objective of these efforts is to implement a more robust and coherent concept of subsidiarity in conformity with the Brighton Declaration on the future of the Strasbourg Court, which was released in April 2012, and Protocol 15.1 A new ‘procedural approach’ to the margin of appreciation that is arguably in the making involves granting a margin of appreciation depending on whether there are sufficient and effective remedies avail able at the domestic level. To add insult to injury, the European Court of Human Rights (ECtHR) provides a wide margin of error provided the domestic authorities have scrupulously weighed conflicting interests and basic rights, as well as respected procedural safeguards. Particularly important is the quality of the judicial and legislative evaluation of the need of a legislation at the legislative and judicial levels. Within the context of a constitutional discussion, the Court has employed the procedural approach to the margin of appreciation in order to exert influence on its domestic opponents. First, the paper focuses on the required degree of democratic legitimation for the European Court of Human Rights (ECtHR), and then it argues that the combination of European consensus and margin of appreciation contributes to an appropriate level of legitimation. This is done in order to provide evidence for the argument that is proposed. The essay is based on models of legitimation that were designed particularly by legal experts for the purpose of democratically legitimizing local and international courts. A further point to examine is that the argument is rooted in concepts and ideas about the relevance of a backlash for democratic constitutionalism and a culture of justification. A space is made available for democratic contestation and discourse as a result of the European Court of Human Rights' (ECtHR) hybrid legitimation strategy, which includes European consensus and a procedural approach to the margin of appreciation. Judicial decisions that are progressive and rightsfriendly and that view a simple trend among 'vanguard' state parties as a European consensus are likely to spark internal contestation in 'laggard' states.