univ. - prof. dr. werner meng, europa institut, saarland university, germany legitimacy of wto...
TRANSCRIPT
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
LEGITIMACY OF WTO DISPUTE SETTLEMENT
1
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
LEGITIMACY IS NOT LEGALITY
WHAT IS LEGAL MIGHT NOT BE ACCEPTED BY ALL STATES IN PUBLIC INTERNATIONAL
LAWD AS LEGITIMATE
E.G.: JUDGES AGAINST PARLIAMENTS
PROBLEM IN NATIONAL LAW, BUT PARTICULARLY IN INTERNATIONAL LAW
2
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
EXAMPLES
BIRD AMENDMENT CASE
DS against US Congress and sovereignty
Threat: No implementation of WTO DS decisions
DOLE COMMISSION
Suspicion against the Geneva judges
Threat: Leaving the DSU/WTO
HELMS BURTON CASE
Security Concerns
Damaging the DS procedure by disregarding it3
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Problems of Legitimacy
A new international court face to national legislation
Conflicts with Civil Society
Relations to other rules of international law
Political dimension of WTO law
Structure of the DS bodies
Procedural Rules: particularly lack of openness
Judicial activism
Protection of individuals
4
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Thesis
Non-implementation of WTO law and DS decisions will quickly erode the whole WTO system that is based on law
If states find problems with the legitimacy of WTO DS they can remedy them in practice as well in changing the law.
5
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
A new court
New courts have to develop a standing of their own in a legal order like public international law where there is no means to really enforce their decision.
Being reliable and trustworthy, no activism, sticking to the powers conferred
6
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Conflicts with Civil Society
Tuna - Dolphin cases in the end of GATT
„The GATT is blind to environment and human rights“
Increasing protests against limitations by public international law of the states in developing public policies.
ACTA, TTIP, Investor-State Arbitration
7
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Relations to other rules of international law
The Appellate Body has clearly stated that WTO law is part of general public international law
It therefore is informed by the developments of that law that happened since 400 years before
This stabilizes the interpretation and refers also to other methodological rules of PIL
8
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Political dimension of WTO law
GATT initially was a set of rules with economic background
GATT DS was to preserve the mutually agreed economic advantages („nullification or impairment“ by a diplomatic procedure)
In GATT this system was charged more and more with law (unlawfulness as „prima facie nullification or impairment“)
This state of the law has been transferred to the WTO legal system
9
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Structure of the DS bodies
Dispute Settlement Body is diplomatic, but thanks to the reverse consensus not the real decision-maker in disputes. Parties may not block decisions
The DSB consists of carefully chosen specialists of WTO law and produces high quality decisions
The panels are like arbitral tribunals, the qualification is mixed. EU proposal: standing panels as first instance
10
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Procedural rules
Closed door principle (at the disposition of the parties)
Amicus curiae briefs for panels yes, for the AB disputed (the developing countries object!)
Some negative experiences from the past will be remedied now
Procedures are always more specialized (and therefore a problem for DCs with limited human resources).
11
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Judicial activism
Parties wanted to restrain the DS organs as much as possible: „may not add or diminish the law“
AB: right to use all methods of interpretation including the teleological one is natural for a highest court
MS are accepting the mildly progressive jurisprudence
AB tries to stick as close as possible to the texts of the WTO treaty system.
12
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Protection of individual rights
WTO law contains no individual substantive or procedural rights
But it is designed to make individual traders trust in the protection of law
Individuals may complain to their states that may then initiate inter-state procedures.
Unfortunately the implementation procedure finally ends up as a system of controlled economic sanctions, that do not take into consideration individual rights
But this cannot be changed in a decentralized legal system without enforcement police powers
13
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Why still international DS?
It is the only means to secure the rule of law with impartiality
that states and individuals (to a certain extent) may trust in
Reciprocity of submission
Mandatory and exclusive jurisdiction
14
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
Possible SolutionsDiplomacy is increasingly suspicious to Civil Society groups
more transparent procedures: open doors and amicus admission
strengthening the trust in the purely legal function of DS
independence, impartiality and legal security
self-control of judicial activism
Legal control of parliaments is indispensable in areas of legislation, if arbitrariness should be avoided and the protection of individual rights should be guaranteed.
Control of parliaments and of state powers are only possible through courts (at least internationally)
The previous ratification in parliaments gives as much democratic legitimacy as possible for an international Court
15
Univ. - Prof. Dr. Werner Meng, Europa Institut, Saarland University, Germany
No arbitrary implementation
If member states are trying to take an exception to the general duty to implement WTO law and DS decisions, they are jeopardizing the whole DS system with its intrinsic value for the world trade order
Strict implementation of the DS rules is necessary for the functioning of the WTO as a whole.
16