Peaceful Co-existence

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 ones 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.