A Short Study of the Jurisdiction of the ICTY and WTO

A Short Study of the Jurisdiction of the ICTY and WTO



Wen-Cheng Huang



1. Introduction

The aim of this paper is to explore the legal bases for the jurisdiction of ICTY and WTO, and to examine whether the principles of ius sanguinis and ius soli still play a role at this level, or is jurisdiction decided based on other principles.

First, Jurisdiction is an aspect of sovereignty and refers to judicial, law-making, and administrative competence. Principally, the proposition is that, jurisdiction is territorial. While, a principle of substantial and genuine connection between the object of jurisdiction, the territorial base and reasonable interested of the jurisdiction sough to be exercised, still should be observed .

Below I would like to first discuss the legal basis for the jurisdiction of ICTY and its influence on the principle of ius soli, then turn to discuss the legal basis for the jurisdiction of WTO.


2. The Jurisdiction of ICTY

2.1 The Principle of Criminal Jurisdiction as ius soli

With regard to criminal jurisdiction, in general, the court of the place where the crime is committed may exercise jurisdiction. More specifically, it is generally accepted that jurisdiction is founded when any essential constituent element of a crime is consummated on state territory . It is the so-called objective territorial principle. Now, you may wonder why Radislav Krstic was tried by the ICTY, not by the national court.

2.2 The Conflicts of Jurisdiction

Although certain types of wrongdoing are commonly recognized as international crimes, those crimes sometimes could be prosecuted both for before national courts and international criminal courts, and thus there are conflicts of jurisdiction between national courts and international criminal courts. The conflicts are furthered by the Security Council of UN to limit recourse to national courts in certain situations, including the former Yugoslavia. The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by the Security Council of UN, in 1993, under Chapter VII of the United Nations Charter. The concern behind is that the reluctance of governments to prosecute their own nationals . Thus, it provides the policy ground to establish the specific international criminal courts .

2.3 The Jurisdiction of ICTY

Considering the development of the armed conflict in Yugoslavia since 1991, the Security Council determined to create a tribunal to address those responsible for grave breaches of international humanitarian law. Based on a Report of the Secretary-General, including a draft statute, the Security Council approved the Statue of the International Tribunal .

Article 8 of the Statute provides that, the territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, and the temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991.


The establishment of the Tribunal also confined the scope of its subject-matter jurisdiction and imposed strict criteria on the choice of the applicable law. However, given the fact that the Security Council, per se, is not a law-making body, the sub-organ it established shall not have the competence the parent body did not have .


Although the Statute provides for concurrent jurisdiction for both national courts and the International Tribunal, Article 9 of the Statute stipulates that, the International Tribunal shall have primacy over national courts.

2.4 Two Specific Issues Relating to Jurisdiction

2.4.1 Delimiting the territorial restriction

In the Genocide Case (Bosnia and Herzegovina v. Yugoslavia), the International Court held that, the territorial restriction do not apply to rights and obligations which are erga omnes . Since the rights and obligations provided by the UN 1948 Convention on Prevention and Punishment of the Crime of Genocide (hereafter referred to the Convention) are rights and obligations erga omnes. The Court notes that, the obligation each State needs to prevent and to punish the crime of genocide is not territorially limited by the Convention . Hence, the Principle of Criminal Jurisdiction as ius soli has been derogated.

2.4.2 Delimiting the temporal jurisdiction

The temporal jurisdiction of the ICTY is set up in Article 8 of the Statute to start from 1 January 1991 before the Security Council’s decision in 1993 . Yugoslavia thus raised the question of jurisdiction ratione temporis before the International Court of Justice. The Court rejected this argument, and pointed out that, the Genocide Convention does not contain any clause the object or effect of which is to limit the scope of its jurisdiction ratione temporis . Thus, in criminal law, the principle of the non-retroactivity of legal acts has also been derogated.

2.5 The Doubt of Independence

Whereas the ICTY was formed part of a coercive order created by the Security Council of UN, some observers wondered the independence of the prosecution process from external influences. Prof. Ian Brownlie even indicates that, political considerations, power, and patronage will continue to decide who is to be tried for international crimes and who not .

3. The Jurisdiction of WTO

3.1 The Historical Background of DSU

The Understanding on Rules and Procedures for the Settlement of Disputes, commonly referred to as DSU, is not an invention during the Uruguay Round. Instead, DSU is gradually evolved from the practices of GATT dispute settlement . Although none of the GATT provisions explicitly referred to dispute settlement, the GATT Contracting Parties, in a pragmatic manner, successfully transformed, from initially a power-based system for dispute settlement through negotiation, into a rule-based system for dispute settlement through adjudication . However, despite the success of GATT to settle disputes , given the fact that the findings and conclusions of the panels only became legally binding when adopted by consensus by the GATT council, the responding party could thus prevent any unfavorable conclusion from being in force. It is therefore important to design a new Dispute Settlement Mechanism for global trading system .

Also, it worth to note that, one of the driving forces behind the negotiation of the DSU is the concerns regarding unilateral action by the United States. While other GATT Contracting Parties were alarmed by the section 301 of the US Trade Act of 1974 empowering the US administration to retaliate its trade partners when they violated GATT provisions , the United States argued that, the existing GATT dispute settlement mechanism, as a result of the consensus requirement, was too weak to ensure the US trade interests . In exchange for a US commitment not to employ its 301 measures, the other GATT Contracting Parties agreed to establish a new and procedurally effective settlement mechanism to meet the US demands .



3.2 Jurisdiction of WTO Dispute Settlement Mechanism

3.2.1 An Integrated System

Article 1.1 of the DSU states that: “the rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (hereafter referred to as the covered agreements). Thus, the DSU offers a single, integrated system for dispute settlement applying on disputes arising under any of the covered agreements .


3.2.2 A Compulsory System

Article 23.1 of the DSU states, when Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding. According to this provision, a complaining Member is obliged to bring any dispute under the covered agreements to the WTO dispute settlement mechanism, rather than through unilateral action . On the other hand, the responding Member has no choice, but to accept the jurisdiction of the WTO dispute settlement mechanism .


3.2.3 An Exclusive System

In US-Section 301, the Panel ruled that, Article 23.1 of the DSU imposes on all Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system . Article 23.1 of the DSU both ensures the exclusive jurisdiction of the WTO, compared with other international organizations, and protects the global trading system from unilateral conduct .


3.2.4 A Contentious Jurisdiction

In US-Wool Shirts and Blouses, the Appellate Body held that, Article 3.2 of the DSU is not meant to encourage either panels or the Appellate Body to make law by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute . The WTO dispute settlement mechanism is thus only contentious, not advisory, jurisdiction .


3.3 Comparison with the principle of ius soli

Without WTO Agreements, all disputes relating to trade between States shall be resolved voluntarily by issuing a separate declaration or attaining a separate agreement among states , and this basic principle is also based on the sovereignty of the states, the basis of principle of ius soli. Once there is a dispute arising within a territory of a Member like discriminating measures, on behalf of its nationals, the other Member brings this dispute to the WTO dispute settlement mechanism and claims the responding Member’s measures violating WTO rules. Also, Members are no longer free to enforce WTO rules through their domestic laws to retaliate its trade partners.



4. Conclusion

In ICTY, national courts were virtually deprived of jurisdiction on certain international crimes. This tendency has derogated from the application of the principle of ius soli. In WTO, nation-states are no longer having the choice not to raise the disputes relating to trade before the WTO dispute settlement mechanism. On the other hand, more and more difficult cases we found in practice are how to determine the origin of goods and the nationality of the companies, within the global trading system. Perhaps, this is time to reframe the criteria of according nationality, but so far, there is no answer in the world.



【Reference】



Books

Antonio Cassese, International Criminal Law, (Oxford, 2003).

Ian Brownlie, Principles of Public International Law, (Oxford, 2008).

M. Matsushita, T. Schoenbaum, and P. Mavroidis, The Wrold Trade Organization: Law, Practice, and Policy, (Oxford, 2006).

J. Jackson ed., Legal Problems of International Economic Relations-Cases, Materials and Texts on The National and International Regulation of Transnational Economic Relations, (Western Group, 2002).

Peter Van den Bossche, The Law and Policy of the World Trade Organization: Texts, Cases and Materials, (Cambridge 2008).



Articles

R. Hudec et al, A Statistic Profile of GATT Dispute Settlement Cases: 1948-1989, Minnesota Journal of Global Trade, (1993).

R. Hudec, The New WTO Dispute Settlement Procedure, Minnesota Journal of Global Trade, (1999).

Shraga and Zacklin, The International Tribunal for Former Yugoslavia, European Journal of International Law, 5 (1994).