The establishment of more flexible mechanisms for either preventing or settling disputes

10.8.1 Quasi-judicial compulsory settlement of trade disputes

GATT & WTO – both examples of innovative methods of int’l settlement of disputes

WTO system – Dispute Settlement Understanding:

1. Each contracting party must notify the WTO and other parties of its adoption of trade measures affecting the operation of substantive provisions of a trade agreement. Notification followed by consultation. If consultation fails, can resort to good offices or conciliation by WTO.

2. If no settlement reached, a contracting party may submit a complaint to a panel of independent experts. Complaint is not about breach of WTO provisions, it is about nullification or impairment of benefits accruing to it.

3. Complaint may emanate from a single state or more states.

4. Panel hears submission from each complainant as well as the state complained of. 3rd states may also be heard. In making their findings on the facts and law, panel first issues Interim Report with findings and conclusions, which parties can comment on. Then Final report issued.

5. Panel’s report is adapted unless consensus not to adopt it OR party to dispute appeals against report.

6. If an appeal is made, Appellate Body hears appeal, solely on questions of law.

7. Reports of the Appellate Body are automatically adopted, unless consensus not to adopt (no further right of appeal).

8. There is monitoring of compliance with Panel/Appellate Body’s report. If no compliance, state injured may ask for suspension of concessions or other obligations laid down in agreement.

9. If the state disputes the suspension, the matter must be referred to Arbitration and findings of Arbitral Court are final.

а Inventive mixture of conciliation, negotiation, and adjudication, with some follow-up.

· Strength of procedure to do with importance states place on economic interests.

· Has proved to be one of best and most useful means of settling disputes in world community.

10.8.2 International supervision

Another system established to scrutinize behaviour of state parties to specific treaties as a way of inducing compliance.

Different from int’l adjudication in these ways:

· Composition of organ responsible for scrutiny may include representatives of states acting in official capacity, not just individuals.

· Overseeing functions are often entrusted to more than one body.

· Initiative of supervisory procedure not left to aggrieved state, but can be taken by other beneficiaries of the int’l rules (e.g. individuals, NGOs, the supervisory organ itself.)

· Supervision carried out with aim of deterring states from breaking rules.

· Normally hearings of supervisory bodies are private, so as not to embarrass states

· Outcome of procedure is not binding, but more a report

Why create such a system?

· After WWI, States started to resort to int’l treaties to regulate matters which until then had been within domestic jurisdiction (like minorities, workers’ rights, narcotic drugs) – issues which related to protecting interests of those other than states

· In these new areas it was difficult to establish mechanisms to ensure observance with international rules, because these were new and challenging obligations, states did not want to be monitored on performance before judicial bodies. Furthermore, int’l community couldn’t grant standing to individuals who were beneficiaries of these rights and the most natural claimants for their breach.

· Imagine monitoring systems established – all designed to limit impact on State sovereignty

· Have been relatively successful at impelling states to live up to their int’l obligations, because it relies not on punishment or judgement but moral and diplomatic persuasion

Field in which supervision is most widespread:

· International labour conventions

· Treaties and other int’l standards on human rights

· Peaceful use of atomic energy

· Environment

· Antarctic and Outer Space

· Int’l and internal armed conflict

· International economic law

Modalities through which supervision carried out:

· Reporting - Examination of periodic reports submitted at pre-determined intervals

o ILO (art. 22), CERD (art. 9), Covenant on Human Rights (art. 16 and 40), Slavery Convention (art. 8), Convention against Torture (art. 19)

· Inspection – more penetrating than reports, which rely on state’s own account of situation, can be on the spot

o International Agency for Atomic Energy (art 12.6), Antarctic Treaty (art. 7), Treaty on Peaceful Use of Outer Space (art. 12)

· Contentious Procedure – parties to a dispute and supervisory body engage in contentious examination of case

o Covenant on Civil and Political Rights (art. 41), Optional Protocol to Covenant, Torture Convention (art. 21)

· Preventive supervision – adoption of measures designed to forestall commission of international delinquency by a state

o Peaceful use of atomic energy and protection of environment

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Part III: Contemporary Issues in International Law

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Дата добавления: 2015-11-16