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Peaceful Co-existence

Peaceful Co-existence. As applied to international courts and tribunals. P.J. Kuijper University of Amsterdam. The First Responsibility of International Courts. ICJ has a general responsibility for international law. All other courts are primarily responsible for “their” Treaty system.

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Peaceful Co-existence

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  1. Peaceful Co-existence As applied to international courts and tribunals. P.J. Kuijper University of Amsterdam

  2. The First Responsibility of International Courts • ICJ has a general responsibility for international law. • All other courts are primarily responsible for “their” Treaty system. • Particularly true i.a. for ECJ and WTO DS. They have “exclusive jurisdiction”. • Their reflexes tend toward “separateness”. No “infection” by “lesser” systems.

  3. How to keep one’s legal system whole? • Our system is a separate system; it is “self-contained.” • How do you deal with gaps? • Have recourse to “background” international law • What about system failure? • Go back to general international law of remedies? • You could find yourself in the WTO: Mexico Soft Drinks. • Our system/treaty has a different object and purpose from your system. • Interpret identical provisions differently because they are in e different context and have a different object and purpose (Cf ECJ in 70s and 80s in respect of FTAs

  4. Is the judgment of the other Court binding? • The ECJ is confronted with this question, when considering judgments of courts of treaty system to which it is a party: WTO and EEA. • Should the ECJ implement and enforce reports of Panels and the AB? The EFTA Court? • Cf. ECJ in WTO cases and US Supreme Court in Medellin. • The character of a rule as non-self-executing is not changed by clarification and interpretation by a Court. • Especially not if the rule is non-self-executing for systemic reasons

  5. Is the judgment of the other Court binding? 2 • This is not the right approach: it is not a question of direct effect of the WTO Agreement or of Panel or AB decisions. • The question is: is the Court bound by the decision of the other Court? • Any organ of the State or Int Org is bound by a judgment that binds the State, especially organs that themselves engage the responsibility of the State or the Int. Org • But it is here that the internal division/balance of powers can come in again. Is the judgment of the other Court binding?

  6. Is the judgment of the other Court binding? 3 • A parallel with the way national Supreme Courts carry out international international judgments is more productive. • In particular the Gorgulu Case of the German Constitutional Court is enlightening. • The closer the case before the national court matches the precedent decided by the international court, the more must the national court follow it. • In any case the national case must “reason with” the international case: “sich auseinandersetzen”

  7. Is the judgment of the other Court binding? 4 • Judged along those lines: • The CFI did not do too badly in Ritek • The ECJ was below par in Germany bananas and Ikea.

  8. What does this mean for the AB? • WTO not bound by any treaty with a DS system that is authoritative. • But what about agreements widely ratified by the Member States? • Strictly speaking: no consequence (?) • Different approach ECJ: Intertanko. • From a different angle not such a different outcome from the treaty law approach.

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