A Study On States’ Attitude Towards International Judicial Procedure

The attitude of states towards international judicial procedure has not been paidmuch attention to by international law scholars. This dissertation tries to analyze thatfrom comparing states‘attitude towards ICJ and WTO dispute settlement mechanisms.This dissertation discovers the tendency of states‘attitude towards ICJ and WTOdispute settlement mechanisms through statistics, analyzes the reasons why statestreat ICJ and WTO dispute settlement mechanisms differently by means of historicalanalysis, empirical and interdisciplinary research method, and explores effective waysof increasing motivation of states towards those two dispute settlement mechanisms.Although this study cannot fully and entirely provide the reasons why states holddifferent attitude towards different international judicial procedures and how toincrease states‘motivation, it attempts to divine the whole from a part by comparingstates‘attitude towards two typical international judicial procedure—ICJ and WTO.There are four chapters in this dissertation besides introduction and conclusion.Chapter1uses all kinds of concrete data to illustrate states‘attitude towards ICJand WTO dispute settlement mechanisms, providing factual basis for analyzingreasons.Chapters2,3and4analyze the reasons why states treat ICJ and WTO disputesettlement mechanisms differently from three perspectives. In particular, theperspective of chapter2is historical development. There are two historical factorsinfluencing states‘attitude towards ICJ and WTO dispute settlement mechanisms, thatis, international background and imbalance of power among members. Chapter3focuses on system defect in five aspects, in particular, jurisdiction, judges, legalinterpretation, rules of evidence and judgment implementation. First, jurisdiction. The jurisdiction of ICJ is consensual, while WTO has compulsory jurisdiction. Consensusis an important reason for the negativity of member states, however, compulsoryjurisdiction of DSB offers complaining party a right to request establishment of paneland responding party cannot prevent that. The difference on jurisdiction makescountries negative about ICJ and positive about WTO dispute settlement mechanism.Second, judges. The independence of ICJ judges is controversial. Judge ad hoc hasreceived growing criticism and ICJ‘s image has been damaged in certain degree,which creates negative effect on states‘participation. Developed and developingcountries both doubt the neutrality of ICJ and reduce credit of ICJ, for the reason thatICJ judges have defect on independency. The fact that independence of panelists andappellate body members also has defect makes members suspicious of theirimpartiality, reduce credit of WTO dispute settlement mechanism and seek help fromother dispute settlement ways. Third, legal interpretation. Affected by internationalsituation, ICJ changed from judicial restraint to judicial activism, which madedeveloping countries become more positive and participate in more cases. The amountof cases which developing countries participated in reached a climax in1990s. In themeanwhile, developed countries also take part in more ICJ cases, but less thandeveloping countries. Viewing for a long term practice, WTO panel/appellate bodytend to exercise power of legal interpretation excessively, which leads to developedand developing members diminish enthusiasm towards WTO dispute settlementmechanism and then seek other dispute settlement mechanisms. Fourth, rules ofevidence. As to distribution of burden of proof, ICJ faces difficulties. In particular,what should the ICJ do when one party refuses to provide critical evidences forsecurity or other reasons? Article49of the ICJ statute provides the Court can take―formal note‖of any refusal by the parties to turn over the requested materials, butthis article doesn‘t provide the outcome of such refusal behavior. As parties aresovereign states, ICJ has no power to force parties to provide evidence. ICJ hasn‘tmade adverse reasoning aiming at such refusal behavior in practice, but made a rulingaccording to other evidences, which related to sovereignty nature of ICJ. Suchnegative practice damages the authority of judgment, trigger crisis of confidence and run contrary to ICJ‘s establishment intention. WTO panel and appellate body arerandom at confirming burden of proof and discretion nearly has no limitation, whichimpairs predictability of distribution of burden of proof. The deficiency of ICJ andWTO dispute settlement dispute mechanisms on distribution of burden of proof isbound to undermine states‘participation. As regards standard of proof, ICJ has moreflexible standard of proof which lacks predictability, whereas WTO dispute settlementmechanism has more fixed standard of proof. Thus, states are negative about ICJ,however, positive about WTO. In the case of the attitude towards amicus curiae, ICJ iscautious about that. So amicus curiae system hasn‘t been fully effective andinfluenced neutrality of judgment negatively, which made states negative about ICJ.In contrast, WTO panel/appellate body haven‘t uniform rules on accepting or rejectingamicus curiae statement, that is to say, there are large uncertainty and randomness.Meanwhile, the nongovernmental organizations submitting amicus curiae statementmostly represent benefit of developed countries. Therefore, developing countries aresuspicious of neutrality of amicus curiae and negative about WTO dispute settlementmechanism. Fifth, judgment implementation. The imperfection of ICJ judgment, theUN Security Council can enforce the ICJ judgment when the continuance of dispute islikely to endanger the maintenance of international peace and security and the votingof the Security Council is influenced by power politics make the implementation ofICJ judgment unsatisfactory. Many judgments were not observed, thus states arenegative about ICJ. The judgment implementation procedure of WTO disputesettlement mechanism has deficiency on duration of implementation, compensationmethods, retaliation and cross retaliation and sequence of dispute implementation,which discourages states‘enthusiasm of participation. Chapter4is based oninternational relations theory. Realism, liberalism and constructivism which constitutethree main schools of international relations all can explain the reason why states holddifferent attitude towards ICJ and WTO dispute settlement mechanism.Chapter5explores approaches to promote enthusiasm of states about ICJ andWTO dispute settlement mechanism. ICJ‘s improvement refers to three aspects, that is,jurisdiction, judges and judgment implementation improvements. Improvement of WTO dispute settlement mechanism also mainly concerns three aspects, that is,panel/appellate body organization, legal interpretation and implementation of report.The time to reform those two dispute settlement mechanisms radically has not comeyet. It‘s feasible to improve them gradually, and achieve reform ultimately.