From The Aspect Of The European Model

The essay aims to articulate that, as one of trends of dispute settlement in the regional international organization, judicialization has obtained significant development in Europe and formed the said "European model", that is, based on the corresponding institutions, a systematic set of rules and principles has formulated as a result of settling the disputes in Europe with judicial proceedings. The "European model"is approved in large and has been exported to the other regional international organizations. The definition of the "regional disputes"in this essay is related to and differs from the definition of the traditional "international disputes". The parties of the latter are only states or some international organizations, but the range of the parties of the former includes individuals, non-governmental organizations apart from states. The extending of the range of the parties is based on the fact that private parties increasingly participate in the international commercial activities in the global (particularly in certain regional international organizations, for example, the European Union), and that individuals are entitled to be against the states or the international organizations in certain situations, for example, relating to the human rights. With a review of the circumstances of Europe, it can be concluded that judicial proceedings may be applied in the disputes arising from politics, economy and human rights in Europe. Judicialization may be discussed unless it is acknowledged that the definition of the "regional disputes"is larger than the definition of the traditional international disputes. Judicialization in the broadest sense of the term means replacing non-judicial proceedings of legislation, administration, or dispute settlement with judicial proceedings. In international law, traditional dispute settlement proceedings that are rooted in the world of diplomacy or of ad hoc arbitration are increasingly being replaced by permanent international courts or court-like institutions. The introduction of the international and regional dispute settlements in the Chapter One is to state by contrast that judicial proceedings can settle disputes more justly and reasonably than diplomatic model or arbitration does. The diplomatic model or arbitration has instinctual shortcomings: no procedural security, difficult to establish the rules in the dispute solution proceeding, enforcement problem, and the judicial proceedings may overcome the shortcomings to some extent. What is the European model is discussed in Chapter two. The European model is the practice exercised by Europe as a whole in settling the disputes in the region with the judicial proceedings. The establishment of the European model one of the characteristics of which is to settle dispute in judicial proceedings occurred with the European political and economic unification, and the development of the European model will depend on the improvement of the European unification. First of all, the European model is based on the institutions, that is, two independent systems: the European Court of Human Rights (ECHR) on the one hand, and the European Court of Justice(ECJ) and the EFTA Court on the other (including the Preliminary Court of the EU). The courts are similar in that: establishment under certain international convention the party of which is one or a few European countries; a few of judges; fixed location and so on. Furthermore, the appointment of the judges in the ECHR is more democratic than the other three courts. The nominator is voted in the former, and every country has the right to nominate one judge in the three courts located in Luxembourg. The judges aforesaid are absolutely independent once elected. The most important characteristic of European model is particularity of the jurisdiction and the relevant procedural rules. The ECHR has the jurisdiction over all kinds of political rights of citizens stipulated in the European Human Rights Convention. It needs to emphasize that individuals originally may not bring action before the ECHR directly, but the individuals, no-government organizations and individual groups were entitled to indict directly. One point of the Chapter is the jurisdiction and the procedural rules of the ECJ. The ECJ has the direct and indirect jurisdiction. Direct jurisdiction, which may be subdivided to over suits against the institutions of the EU and against the state, means the one over suits commencing and ending in the ECJ, and the finding of the ECJ has the ultimate effect on the case. The core of the indirect jurisdiction is the preliminary ruling procedure. According to the procedure, the suit is brought before the state court, which refers the problems related to the EU law to the ECJ, and the ECJ makesthe preliminary ruling on the applied problems. The procedure applies to any laws and rule of the EU, and based on whether an institution acts as a court or a tribunal, the ECJ make a decision of the institutions capability of reference to the ECJ. The state court making a reference to the ECJ is bound by the preliminary ruling made by the ECJ, and shall apply the interpretation of the ECJ to the dispute solution without amendments or distortions. Three "constitutional principles"of the ECJ, i.e. the direct effect principle, the supremacy principle and the state liability principle, are elaborated here. The direct effect principle means individuals may claim in the state court for the rights and fulfillment of the obligations stipulated in the EU law. The supremacy principle means the effect of the EU law is prior to the one of the state law, that is, the EU law may exclude the application of the state law contrary to the law thereof and be deemed as part of the immediately applicable legal system within the territory of the state. The state liability principle, which applies to the damages to individuals by the state breach of the EU law, requires the states to be liable for its tort. All the three principles are established on certain precedents by the ECJ. The particularity of the methods of interpretation of the courts is one of the characteristics of the European model. The ECJ uses a dynamic approach in explaining the fundamental agreement of the EU as required by the separate case. The means of the Preliminary Court of the EU and the EFTA Court is similar to the one of the ECJ, but there is a little difference between them. The ECHR declared that it complied with the provisions of the Vienna Convention. The purpose of the judicial explanation is to make up the blank and ambiguity in the EU (EC) law system. Based on the institutions arrangement, the European model made as many parties as possible obtain the access to judicial proceedings The preliminary ruling procedure secures that individuals'claim may be heard by the relevant courts of Luxembourg. To protect the substantial interests of the relevant individuals, governments or the institutions of the EU, the ECJ stimulated the third parties'right to participate, and the EFTA Court and the ECHR have the similar regulations. It is unable to deny that the EU law and the EFTA law in the European model have an effect on the law of the states. From diverse aspects, the three "constitutional principles"affects or diminishes the effect of the national law of the states, and the situation extends to the EFTA Court and the ECHR to...