International Organizations and International Dispute Settlement:

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Abbreviations xiii
Introduction and Acknowledgments xvii
Part I General Overview
Chapter 1. International Organizations and the International Judicial Process: An Overview 3
Contentious Jurisdiction 5
Judicial Bodies whose Jurisdiction is not Limited to a Specific Geographic Area 7
Regional Human Rights Bodies 10
Judicial Bodies of Regional Economic and Political Integration Agreements 12
Europe 12
Latin America 15
Advisory Jurisdiction 17
Judicial Bodies whose Jurisdiction is not Limited to a Specific Geographic Area 19
Regional Human Rights Bodies 26
Judicial Bodies of Regional Economic and Political Integration Agreements 28
Europe 29
Latin America 31
Africa 32
Conclusions 33
Chapter 2. International Organizations as Parties to Contentious Cases: Selected Aspects 37
General Aspects: Contentious Cases and International Organizations 37
Contentious Cases under General International Law 37
Problems arising when International Organizations are Admitted as Parties to Cases under General International Law: the Experience of the International Tribunal for the Law of the Sea 39
Contentious Cases before Domestic Courts, under the Domestic Law of International Organizations and in "Transnational" Private Law Situations 44
Part II The European Union and International Judicial Bodies
Chapter 3. The European Union and International Dispute Settlement 49
The EU as a State-Like Subject of International Law 49
The EU and Dispute Settlement: General Considerations 51
The EU and the WTO Dispute Settlement Mechanism 55
Other Mechanisms 58
Internal EU Procedures 64
Concluding Remarks 70
Chapter 4. The European Union before the European Court of Human Rights 73
The European Union as Human Rights Violator? 73
The European Union is not a Party to the European Convention on Human Rights 74
The Approach of the European Court of Human Rights 75
Allegations of Human Rights Violations by Institutions of the European Community 78
The European Community as Friend of the Court 82
The Commission's Intervention in "Senator Lines GMBH v. 15 Member States of the European Union" 83
The Need for an External Human Rights Review of Community Action 87
Part III International Organizations and the International Court of Justice
Chapter 5. Request of Advisory Opinions in Contentious Cases? 91
Introduction 91
Advisory Opinions Accepted as Decisive: Disputes between International Organizations and States 92
Advisory Opinions Accepted as Decisive: Review of Judgments of Administrative Tribunals 95
Ordinary Advisory Opinions 98
Some Concluding Remarks 100
Ordinary Advisory Opinions 100
Binding Advisory Opinions in a Dispute between an Organization and a Single State 101
Binding Advisory Opinions in a Dispute between an Organization and its Officials 102
Chapter 6. Advisory Opinions and the Furtherance of the Common Interest of Mankind 105
Issues of Global Public Policy and the Request for an Advisory Opinion 107
Resort to the Court as a Means of Promoting the Common Interest of Human Kind 107
Advisory Opinions and the Diversification of International Institutions and Dispute Settlement Mechanisms 112
Request for Advisory Opinions and the Changes in the International Decision-Making Process 113
Some Thoughts on the Openness of the Advisory Process 114
Non-State Actors in the Consultative Process 115
Conclusion 118
Chapter 7. Links Between the ILO and the ICJ: A Less Than Perfect Match 119
Introduction 119
The ILO Constitution and Structure: The Rationale for Granting Access to the Court by the ILO 120
First Link between the Two: ILO Commission of Inquiry and the ICJ (Article 29.2 of the ILO Constitution) 122
ILO Complaints Procedure 122
Genesis of Article 29.9 of the ILO Constitution Procedure and Failure to Secure Corresponding Fitting in the PCIJ Statute 125
What Could be Made, and by Whom, of the Procedure of Article 29.2 of the ILO Constitution? 126
Right of Appeal of the ILO Governing Body 126
Right of Appeal of the State against which a Compliant is Made 127
Second Link between the Two: ICJ Interpretative Functions in the Context of ILO Normative Actions (Art. 37.1 of the ILO Constitution) 129
Conclusions 131
Part IV International Organizations and Amicus Curiae
Chapter 8. Intergovernmental Organizations as "Friends of the Court" 135
Introduction 135
The Role of Amicus Curiae 136
Intergovernmental Organizations as Amici Curiae: Procedure and Practice 139
(i) International Court of justice 139
(ii) International Criminal and Human Rights Courts and Tribunals 145
(iii) The World Trade Organization Dispute Settlement System 149
Policy Considerations for International Organizations 153
(i) The Purpose of Amicus Briefs 153
(ii) When Might International Courts and Tribunals Wish to Solicit Amicus Briefs from International Organizations? 155
(iii) When Might International Organizations Seek to File Amicus Submissions? 159
Conclusions 161
Part V Liaisons Dangereuses: The Independence of Judicial Bodies from the Organizations of Which They are Organs
Chapter 9. Process Integrity and Institutional Independence in International Organizations: The Inspection Panel and the Sanctions Committee of the World Bank 165
Introduction 165
Interpretation 166
Immunity 168
The Inspection Panel 169
Operating Procedures 173
Experience 175
Review of Experience 177
Inspection Mechanisms in Regional Development Banks 180
The Compliance Advisor Ombudsman (CAO) 184
The Sanctions Committee 187
Process 187
Procurement Context 189
Experience 190
The Issue of Independence 191
Conclusions 192
Chapter 10. The Relationship Between Political and Judicial Organs of International Organisations: The Role of the Security Council in the New International Criminal Court 195
Introduction 195
The Relationship between the Security Council and the ICC as Defined in the Rome Statute 198
The Security Council has the Power to Trigger the Jurisdiction of the ICC through Referral of Situations 199
The Security Council has the Power to Defer Action by the ICC in Situations Involving Threats to International Peace and Security 204
The Security Council has a Potential Role in the Exercise by the ICC of its Jurisdiction over the Crime of Aggression 206
The Security Council Plays a Role in Ensuring the Cooperation of States with the ICC 210
The Relationship between the Security Council and the ICC from the Perspective of the International Legal System 211
The Legal/Political Dichotomy and the Distinction between Political and Judicial Organ 212
The Question of Hierarchy in the Relationship between Political and Judicial Organs 213
Conclusion 217
Chapter 11. Judicial Independence in the World Trade Organization 219
Origins of Judicial Independence 220
The WTO Judiciary and its Independence 223
The WTO's Judicial Branch 225
Is There Judicial Independence in the WTO? 227
Criticism of the WTO Judiciary 230
Asbestos: Judicial Independence under Pressure 235
Conclusion 239
Conclusions: Whither the Judicial Function? Concluding Remarks 241
Documentary Annex 249
International Organizations 250
A) United Nations 250
A.1) Charter of the United Nations 250
A.2) Statute of the International Court of Justice 251
A.3) ICJ Rules of Court (1978), as Amended on 5 December 2000 252
A.4) Convention on the Privileges and Immunities of the United Nations 252
A.5) Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations 252
B) United Nations Convention on the Law of the Sea 252
B.1) Annex IX-Participation by International Organizations 252
B.2) Agreement Relating to the Implementation of Part XI of the Convention 256
B.3) Annex VI - Statute of the International Tribunal for the Law of the Sea 256
B.4) International Tribunal for the Law of the Sea: Rules of the Tribunal 257
C) International Labour Organization 258
C.1) Constitution of the International Labour Organization 258
C.2) Statute of the Administrative Tribunal 261
D) The World Bank Group 262
D.1) International Bank for Reconstruction and Development: Articles of Agreement 262
D.2) World Bank Inspection Panel: Resolution No. IBRD 93-10, And Resolution No. IDA 93-6 262
D.3) IFC/MIGA Operational Guidelines for the Office of the Compliance Advisor/Ombudsman (CAO) 266
E) World Trade Organization 269
E.1) Annex 2 of the WTO Agreement: Understanding on Rules And Procedures Governing the Settlement of Disputes 269
E.2) Havana Charter for an International Trade Organization 269
F) European Union / European Community 272
F.1) Treaty Establishing the European Community (As Amended by the Treaty of Amsterdam) 272
International Courts and Tribunals 277
G.1) International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda: Rules of Procedure and Evidence (ICTY As At December 13, 2001 And ICTR As At May 31, 2001) 277
G.2) International Law Commission: Draft Statute of the International Criminal Court 277
G.3) International Criminal Court: Statute 277
G.4) International Criminal Court: Rules of Procedure and Evidence 279
H) Human Rights Courts 279
H.1) European Convention for the Protection of Human Rights and Fundamental Freedoms, as Amended by Protocol No. 11 279
H.2) European Court of Human Rights: Rules of Court 280
H.3) African Charter on Human and Peoples' Rights: Protocol on the Establishment of the African Court on Human and Peoples' Rights 280
Conference Program 281

Title: International Organizations and International Dispute Settlement: Trends and Prospects

Manufacturer:

Brill Academic Publishers

Item Number: 9781571052681

Publication Date: July 2002

Number: 1

Product Description: Full Name: International Organizations and International Dispute Settlement: Trends and Prospects; Short Name:International Organizations and International Dispute Settlement

Universal Product Code (UPC): 9781571052681

WonderClub Stock Keeping Unit (WSKU): 9781571052681

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Depth: 0.900 cm (0.35 inches)

Date Added: August 25, 2020, Added By: Ross

Date Last Edited: August 25, 2020, Edited By: Ross

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reviewed International Organizations and International Dispute Settlement: Trends and Prospects on May 18, 2015

International Organizations and International Dispute Settlement

In this short essay Immanuel Kant promotes the idea of perpetual peace. In order to reach this ideal, the interaction between peoples and states has to be reorganized. According to Kant, all states should become republics (that is, transform from despotic absolutist regimes into the rule of the people) that are primarily occupied with governing themselves (be it through an autocrat, an aristocracy or a democratic process). Only secondarily, in the interaction with other states, will the question of peace present itself.

He recognizes the natural state of man to be Hobbesian (a war of all against all), if not directly at least indirectly, and this manifests itself on both the national level and international level. Hence, there should be some sort of international federation that both acknowledges the sovereignty of the republics as well as being able to serve as a mechanism in order to smooth frictions and conflicts.

In the beginning of the essay, Kant mentions both the negative and positive articles of what states should not and should do. After this, he goes to lengths to demonstrate that the judicial system he promotes is in perfect alignment with the state of nature - which is proceeds in a teleological fashion. And finally, he explains how politicians (i.e. statesmen) can be made to act moral - squaring the circle, so to speak - through the use of philosophers. Philosophers, and the informed public at large, should have the freedom to express their thoughts, even if these aren't to the liking of the rulers. Through the use of public discourse, the statesman can navigate his state on its course to perpetual peace.

(In this, Kant discards Plato's ideal of the philosopher-king, recognizing that power distorts our vision of the truth.)

This, in a nutshell is Kant's essay. There's a lot more to say, but this is mostly historical details - not interesting to the general reader.

Now, Kant sketches an ideal world, in which cosmopolitanism and globalization (international law, international trade, migration, etc.) are deemed to be the characteristics of a world living in perpetual peace. Of course, this is primarily an empirical claim - and it is unclear to me how much of it has been validated in the time since Kant wrote his essay. Sure, humanity has developed tremendously and we are all (mostly) better off compared to just a century ago. Yet I think the current pandemic and the economic depression that followed in its wake have shown us the empirical facade of much of the cosmopolitan ideology. Socioeconomic inequalities have skyrocketed, public services have been cut at the expense of those worst off, mass migration leads to increased poverty and racial tensions, etc. etc.

But apart from Kant's future ideal being an empirical claim, it's also a theoretical claim. The claim that war should be prevented is, in its ultimate form, a moral claim. As both Hegel and Carl Schmitt have pointed out, in their critique of Kant, this cosmopolitan idealism treats deeply existential antagonisms - both between groups within a state as well as between states themselves - as non-existent. This is highly treacherous and, more importantly, highly dangerous, since it starts from the premisse of the universality of morals. There is no moral proposition that all people can agree on - there are existential differences between people and peoples about good and bad. Pretending this is not so, and eradicating war through application and enforcement of universal morality (i.e. human rights) will only lead to a new kind of war, a total war. (Schmitt's words).

I personally think this is true. It is a conundrum that any honest person caring about humanity has to face up to. It is simply not true that all people subscribe to the morality as is laid down in the human rights and the UN institutions. For example, there are many, many people worldwide who do not subscribe to the equality between men and women; or who do not accept homosexuality or atheism. This pits - at least in theory - all people against each other, again, in a fight to gain dominance in this existential struggle. It is not for nothing that in this cosmopolitan, globalized state the worlds sees global crises, global demonstrations, global agendas (UN Agenda 21, now Agenda 2030) being enforced in all countries, etc. We are living in a time of total war, just as Schmitt predicted, and it's the UN and its institutions against the world - that is, against all people and states that deviate from their agendas.

There are existential antagonisms and hostilities between peoples and between states. Any theory that seeks to jump over this primordial fact will forever remain an empty idea. But of course, Kant's theory on perpetual peace should primarily be read as a historical document, deeply embedded in the the context of the French Revolution and the transformation in Europe of feudal society into bourgeois society. An interesting little work...

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	Abbreviations	xiii
	Introduction and Acknowledgments	xvii
Part I	General Overview
Chapter 1.	International Organizations and the International Judicial Process: An Overview	3
	Contentious Jurisdiction	5
	Judicial Bodies whose Jurisdiction is not Limited to a Specific Geographic Area	7
	Regional Human Rights Bodies	10
	Judicial Bodies of Regional Economic and Political Integration Agreements	12
	Europe	12
	Latin America	15
	Advisory Jurisdiction	17
	Judicial Bodies whose Jurisdiction is not Limited to a Specific Geographic Area	19
	Regional Human Rights Bodies	26
	Judicial Bodies of Regional Economic and Political Integration Agreements	28
	Europe	29
	Latin America	31
	Africa	32
	Conclusions	33
Chapter 2.	International Organizations as Parties to Contentious Cases: Selected Aspects	37
	General Aspects: Contentious Cases and International Organizations	37
	Contentious Cases under General International Law	37
	Problems arising when International Organizations are Admitted as Parties to Cases under General International Law: the Experience of the International Tribunal for the Law of the Sea	39
	Contentious Cases before Domestic Courts, under the Domestic Law of International Organizations and in "Transnational" Private Law Situations	44
Part II	The European Union and International Judicial Bodies
Chapter 3.	The European Union and International Dispute Settlement	49
	The EU as a State-Like Subject of International Law	49
	The EU and Dispute Settlement: General Considerations	51
	The EU and the WTO Dispute Settlement Mechanism	55
	Other Mechanisms	58
	Internal EU Procedures	64
	Concluding Remarks	70
Chapter 4.	The European Union before the European Court of Human Rights	73
	The European Union as Human Rights Violator?	73
	The European Union is not a Party to the European Convention on Human Rights	74
	The Approach of the European Court of Human Rights	75
	Allegations of Human Rights Violations by Institutions of the European Community	78
	The European Community as Friend of the Court	82
	The Commission's Intervention in "Senator Lines GMBH v. 15 Member States of the European Union"	83
	The Need for an External Human Rights Review of Community Action	87
Part III	International Organizations and the International Court of Justice
Chapter 5.	Request of Advisory Opinions in Contentious Cases?	91
	Introduction	91
	Advisory Opinions Accepted as Decisive: Disputes between International Organizations and States	92
	Advisory Opinions Accepted as Decisive: Review of Judgments of Administrative Tribunals	95
	Ordinary Advisory Opinions	98
	Some Concluding Remarks	100
	Ordinary Advisory Opinions	100
	Binding Advisory Opinions in a Dispute between an Organization and a Single State	101
	Binding Advisory Opinions in a Dispute between an Organization and its Officials	102
Chapter 6.	Advisory Opinions and the Furtherance of the Common Interest of Mankind	105
	Issues of Global Public Policy and the Request for an Advisory Opinion	107
	Resort to the Court as a Means of Promoting the Common Interest of Human Kind	107
	Advisory Opinions and the Diversification of International Institutions and Dispute Settlement Mechanisms	112
	Request for Advisory Opinions and the Changes in the International Decision-Making Process	113
	Some Thoughts on the Openness of the Advisory Process	114
	Non-State Actors in the Consultative Process	115
	Conclusion	118
Chapter 7.	Links Between the ILO and the ICJ: A Less Than Perfect Match	119
	Introduction	119
	The ILO Constitution and Structure: The Rationale for Granting Access to the Court by the ILO	120
	First Link between the Two: ILO Commission of Inquiry and the ICJ (Article 29.2 of the ILO Constitution)	122
	ILO Complaints Procedure	122
	Genesis of Article 29.9 of the ILO Constitution Procedure and Failure to Secure Corresponding Fitting in the PCIJ Statute	125
	What Could be Made, and by Whom, of the Procedure of Article 29.2 of the ILO Constitution?	126
	Right of Appeal of the ILO Governing Body	126
	Right of Appeal of the State against which a Compliant is Made	127
	Second Link between the Two: ICJ Interpretative Functions in the Context of ILO Normative Actions (Art. 37.1 of the ILO Constitution)	129
	Conclusions	131
Part IV	International Organizations and Amicus Curiae
Chapter 8.	Intergovernmental Organizations as "Friends of the Court"	135
	Introduction	135
	The Role of Amicus Curiae	136
	Intergovernmental Organizations as Amici Curiae: Procedure and Practice	139
(i)	International Court of justice	139
(ii)	International Criminal and Human Rights Courts and Tribunals	145
(iii)	The World Trade Organization Dispute Settlement System	149
	Policy Considerations for International Organizations	153
(i)	The Purpose of Amicus Briefs	153
(ii)	When Might International Courts and Tribunals Wish to Solicit Amicus Briefs from International Organizations?	155
(iii)	When Might International Organizations Seek to File Amicus Submissions?	159
	Conclusions	161
Part V	Liaisons Dangereuses: The Independence of Judicial Bodies from the Organizations of Which They are Organs
Chapter 9.	Process Integrity and Institutional Independence in International Organizations: The Inspection Panel and the Sanctions Committee of the World Bank	165
	Introduction	165
	Interpretation	166
	Immunity	168
	The Inspection Panel	169
	Operating Procedures	173
	Experience	175
	Review of Experience	177
	Inspection Mechanisms in Regional Development Banks	180
	The Compliance Advisor Ombudsman (CAO)	184
	The Sanctions Committee	187
	Process	187
	Procurement Context	189
	Experience	190
	The Issue of Independence	191
	Conclusions	192
Chapter 10.	The Relationship Between Political and Judicial Organs of International Organisations: The Role of the Security Council in the New International Criminal Court	195
	Introduction	195
	The Relationship between the Security Council and the ICC as Defined in the Rome Statute	198
	The Security Council has the Power to Trigger the Jurisdiction of the ICC through Referral of Situations	199
	The Security Council has the Power to Defer Action by the ICC in Situations Involving Threats to International Peace and Security	204
	The Security Council has a Potential Role in the Exercise by the ICC of its Jurisdiction over the Crime of Aggression	206
	The Security Council Plays a Role in Ensuring the Cooperation of States with the ICC	210
	The Relationship between the Security Council and the ICC from the Perspective of the International Legal System	211
	The Legal/Political Dichotomy and the Distinction between Political and Judicial Organ	212
	The Question of Hierarchy in the Relationship between Political and Judicial Organs	213
	Conclusion	217
Chapter 11.	Judicial Independence in the World Trade Organization	219
	Origins of Judicial Independence	220
	The WTO Judiciary and its Independence	223
	The WTO's Judicial Branch	225
	Is There Judicial Independence in the WTO?	227
	Criticism of the WTO Judiciary	230
	Asbestos: Judicial Independence under Pressure	235
	Conclusion	239
	Conclusions: Whither the Judicial Function? Concluding Remarks	241
	Documentary Annex	249
	International Organizations	250
A)	United Nations	250
A.1)	Charter of the United Nations	250
A.2)	Statute of the International Court of Justice	251
A.3)	ICJ Rules of Court (1978), as Amended on 5 December 2000	252
A.4)	Convention on the Privileges and Immunities of the United Nations	252
A.5)	Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations	252
B)	United Nations Convention on the Law of the Sea	252
B.1)	Annex IX-Participation by International Organizations	252
B.2)	Agreement Relating to the Implementation of Part XI of the Convention	256
B.3)	Annex VI - Statute of the International Tribunal for the Law of the Sea	256
B.4)	International Tribunal for the Law of the Sea: Rules of the Tribunal	257
C)	International Labour Organization	258
C.1)	Constitution of the International Labour Organization	258
C.2)	Statute of the Administrative Tribunal	261
D)	The World Bank Group	262
D.1)	International Bank for Reconstruction and Development: Articles of Agreement	262
D.2)	World Bank Inspection Panel: Resolution No. IBRD 93-10, And Resolution No. IDA 93-6	262
D.3)	IFC/MIGA Operational Guidelines for the Office of the Compliance Advisor/Ombudsman (CAO)	266
E)	World Trade Organization	269
E.1)	Annex 2 of the WTO Agreement: Understanding on Rules And Procedures Governing the Settlement of Disputes	269
E.2)	Havana Charter for an International Trade Organization	269
F)	European Union / European Community	272
F.1)	Treaty Establishing the European Community (As Amended by the Treaty of Amsterdam)	272
	International Courts and Tribunals	277
G.1)	International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda: Rules of Procedure and Evidence (ICTY As At December 13, 2001 And ICTR As At May 31, 2001)	277
G.2)	International Law Commission: Draft Statute of the International Criminal Court	277
G.3)	International Criminal Court: Statute	277
G.4)	International Criminal Court: Rules of Procedure and Evidence	279
H)	Human Rights Courts	279
H.1)	European Convention for the Protection of Human Rights and Fundamental Freedoms, as Amended by Protocol No. 11	279
H.2)	European Court of Human Rights: Rules of Court	280
H.3)	African Charter on Human and Peoples' Rights: Protocol on the Establishment of the African Court on Human and Peoples' Rights	280
	Conference Program	281