The Jurisdiction Of The International Tribunal For The Study

The determination of its jurisdiction is the precondition for international tribunals to resolve international disputes. This paper explores the preliminary role of the jurisdiction of international tribunals in the legal resolution of international disputes; analyses the nature and scope of the jurisdiction of international arbitration and justice institutions (both global and regional ones), general and special justice institutions and international administrative tribunals; studies the various demur in jurisdiction disputes and the jurisdiction disputes and their settlement between international tribunals; and anticipates the future development of the jurisdiction of international tribunals. Besides the preface and the conclusion, there are altogether six chapters, with an overview as the first chapter and the remaining five devoted to detailed analysis.The first chapter is devoted to basic theories. First, the definition of international disputes according to international law and a brief analysis of the settlement of international disputes are given. Second, the third party dispute settlement, or the establishment of international tribunals, is studies as a way to resolve international disputes. Analysis has also been done for the legitimacy and the jurisdiction of international tribunals. The importance of creating international tribunals on the basis of treaties is stressed as the key to their scientific and well-defined jurisdiction, and thus crucial to their independence and impartiality. Third, detailed analysis of the definition of the jurisdiction of the international tribunals and sources or titles of jurisdiction is made. With the connotation and extension of jurisdiction clarified, it is pointed out that jurisdiction is of great significance in both procedural and substantive law, reflected throughout the legal procedures in an international tribunal. The definition of jurisdiction given by this paper is aimed at presenting a comprehensive and improved understanding of this important concept. In order for a certain case to be heard by the international tribunal, it has to be proven to be within the jurisdiction of the international tribunal, which is also studied by this paper. Finally, sovereignty as the most important factor behind the development of the jurisdiction of international tribunals is analyzed, and so is the interactive relation between state sovereignty and the jurisdiction of international tribunals. It is emphasized that sovereignty is still the basis of international legal framework and that the identification of the scope and nature of the jurisdiction of the international tribunal usually represents a compromise between the two. With this clarified, the following detailed study on the competence to settle disputes, scope and nature of the jurisdiction of the international tribunal will not be accused of being unfounded.The second chapter studies consent as the basis of jurisdiction of the international tribunals. First of all, a case analysis is made to gain a better understanding of thisprinciple and to confirm its necessity. Then, the essential valid legal elements, including the steps and forms, of consent is analyzed. In addition, the withdrawal of consent and exceptions to the consent is examined. The conclusion drawn is that generally speaking the jurisdiction of the international tribunal and the state sovereignty are compatible. This chapter examines the close relation between the acknowledgement of the jurisdiction of the international tribunal by the sovereign state and the transfer of sovereignty. It is stressed that the sovereign state's consent is very important to the jurisdiction of the international tribunals.The third chapter analyzed the scope of the jurisdiction of the international tribunal. The first part looks at its contentious jurisdiction, with focus on the difference between principle jurisdiction and incidental jurisdiction. The nature of incidental jurisdiction is studied with a view of interim measures. It is pointed out that incidental jurisdiction is a by-product of the legal proceedings in an international tribunal, which is aimed at safeguarding the proceedings and the judicial functions as well as the authority of the international tribunal. The second part deals with the scope of advisory jurisdiction, the legal binding of advisory opinion, and the reform and innovation of such a system. It is the writer's view that advisory jurisdiction, as another way to provide legal rationale for international dispute settlement, is complementary to contentious jurisdiction. But because of its lack of legal binding and the narrow scope in some international tribunals such as the International Court of Justice, advisory" jurisdiction only plays a very limited role. Therefore, two suggestions have been made to address this issue. In the third part, the writer examines the other major function of the international tribunal, that is, competence to competence or jurisdiction to determinate its own jurisdiction. The writer argues from three perspectives, namely, the practices of the international tribunal, the relation between competence to competence and clause contraire, and the relation between competence to competence and automatic or self-judging reservation, and arrives at the conclusion that whether or not it is specified in the constitutive instruments of the international tribunal, competence to competence is an implient and inherent power of the international tribunal. At the end of this chapter, a new power, that is, jurisdiction of other tribunal to decide on the competence of a tribunal, is also discussed.As an emphasis of this paper, Chapter Four vertically compares and analyses the scope and the attribute of international courts of different types. Focusing on the analysis of new characteristics and development of jurisdiction rationae personae, jurisdiction rationae materiae, jurisdiction in time and jurisdiction territoriale of each type of international courts, this chapter studies the tendency of the enlargement of jurisdiction and the increase of compulsory jurisdiction of international courts. This chapter consists of seven sections to analyse the characteristics of jurisdiction of different type of international courts. With the development of international laws and international legal relations, the scope of international court jurisdiction is continuously enlarging. For example, as we have analysed in SectionOne, the scope of PCA jurisdiction has been enlarged from arbitration between countries to arbitration between countries, international organizations, legal persons and individuals after a series of optional rules were made. Section Two analyses two special international economic dispute settlement procedures—jurisdiction scope of ICSID and DSB models. Both of the two procedures have their own jurisdiction scopes. On the jurisdiction scope of ICSID, we mainly analyse the breakthrough in the jurisdiction scope of individuals, i.e. the citizen of the signatory state to a treaty (the investor, including the natural person and the legal person) can submit arbitration to ICSID as a proper party in the dispute, which is an attempt to settle international investment dispute with international laws. As for the jurisdiction scope of DBS, we mainly analyse the evolution of the jurisdiction scope of panels events, i.e. from the fragmentation and diversity of the GATT 1947 rules to the agreements of WTO and DSU, all the disputes originating from specific agreements and those from the rights and duties prescribed by the WTO and DSU items alone or combined are in the jurisdiction scope of DBS. Thus, all the disputes are discussed with a unified dispute settlement procedure and a comprehensive and perfect jurisdiction system is established. We also analyses the limitation on the jurisdiction scope of DBS permanent appeal mechanism. Section Three mainly studies the jurisdiction scope of PCIJ and ICJ. Their uniqueness of person jurisdiction (Only states may be parties in cases before the Court) is comparatively narrow, which reflects the subject theory of traditional international laws. As a common international judicial organ, an international court has the broadest event jurisdiction and has the right to adjudicate all the cases that a country accepts. Section Four analyses the enlargement of person jurisdiction scope of ITLOS. The person jurisdiction scope of ITLOS contains not only signatory states but also Namibia, self-governing dominions, international organizations and bodies besides signatory states. The jurisdiction scope of seabed dispute is enlarged to International Seabed Administrative, state-run enterprises and natural persons or legal persons that have the nationality of the signatory state. Under this specific condition, natural persons and legal persons have the right to present before the international court, which suits the condition that international sea activities have multi-level participants. Compared to state courts, the prescription of jurisdiction of ITLOS has made great progress in the settlement of maritime dispute. This section also analyses the exclusive jurisdiction of Item 287 of UNCLOS, which prescribes the choice of binding procedures and seabed tribunal, on the disputes listed in Item 187 and analyses the compulsion of the jurisdiction. Section Five studies the jurisdiction of international administrative tribunals. Concerning the characteristics of the legal relation between international organizations and their employees, we study the unidirection of person jurisdiction and limitation of event jurisdiction. Section Six divides area international courts into general ones and special ones for analysis. Here we analyses the process how the jurisdiction of CJEC is enlarged. It is pointed out that the broadness and compulsion of their...