Peaceful Co-existence As applied to international courts and tribunals. P.J. Kuijper University of Amsterdam

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.

How to keep one’s 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

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

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?

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”

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.

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.