(Course/Major)
(Professor/Instructor)
(Location/ Address)(Date)
The International Court of Justice: Resolving global business disputes
In the latter part of 2005, the United Nations General Assembly adopted a grandiose plan designed to retool the framework of the United Nations, objectives and policy. Should the program be implemented, the program will be the most revolutionary restructuring that will be conducted by the United Nations to date. Nevertheless, one particular agency of the international body, the International Court of Justice, remained virtually untouched.
The UN mechanism has undergone routine initiatives at restructuring, at various stages and in scale, for the greater part of its history. In a 1997 report of the Secretary General entitled Management and Organizational Measures and Renewing the United Nations: a programme for Reform, these have fueled the current initiative at restructuring the organization (ABILA, 2006).
The legal philosophies that govern UN jurisprudence as well as dispute resolution systems are founded in the concept of “state sovereignty” as commonly held in the Westphalia justice system of traditional international law, one that is grounded in the dominant government control of the state over a specific area instead of the concepts based on human rights and the democratic principles of government.
With regards to international economic statutes, these are fundamentally anchored on international agreements on the mutual provision of access to their respective markets. In addition, these agreements work for the lifting of the barriers to facilitate trade activities within the global community. Majority of these agreements integrate exacting and precise procedures to optimize investor security as well as enhanced protections for producers and traders as well. In addition, these treaties also have their particular conflict mediation processes to assure the practice that specific provisions in treaties are appreciated and implemented by scholars in financial law and economic policy makers.
Though the ICJ, and in a lesser scope its predecessor the PCIJ, were designed to assume the position as “principal conflict resolution” mechanisms of the UN to decide on disputes between nations, these actuations never occurred. No more than one third of the UN member nations have acknowledged the mandatory jurisdiction of the UN. It is noted that among the reasons that nations have been extremely hesitant to submit trade disputes to the ICJ is the skepticism to allow the ICJ to adjudicate their respective trade laws to a third party for resolution.
Nevertheless, this air of doubt among the does not adequately explain the reasons that states have come to adopt a policy to restrict their economic agenda discretion and the reasons that countries that adopted policies to allow measures for compliance with treaty commitments by particularized conflict resolution organizations, inclusive of the GATT And the WTO as well as the WTO appeals system and an increasing number of international trade disputes mechanisms and agencies.
Majority of these specialized conflict resolution entities are being utilized with rising frequencies. In this light, given that these accords mandate exclusive redress to the particular clauses for the resolution of conflicts on the appreciation and implementation of the respective agreements, it is highly unlikely that these conflicts will be raised to the bar of the International Court of Justice for resolution (Petersmann 1999).
With the conclusion of the Uruguay Round Agreement, bilateral or multilateral trade conflicts concerning IPR or intellectual property rights were given over to the mandate of the World Trade Organization (WTO). This instance was noteworthy in that in previous times, disputes regarding intellectual property concerns did not have a judicial body to resolve disputes. Though prior agreements associated multilateral disputes on intellectual property rights under the Berne and Paris agreements to the International Court of Justice, countries have shown a form that generally seeks to skirt any possible third party that removes any amount of independence and determination in these matters.
The addition of the Appellate Body, or the “Super Court” in trade matters, and the implementation of trade sanctions, and if needed to be overseen by international monitoring actions, has strengthened the legalistic features of the conflict resolution system. Though states still have the final decision in terms of applying the decisions as a matter of formality, in actuality the power to implement the decision rests in the commissions and the Appellate Body. Given these instances, a question that can be posed is the reason why countries still would adhere to a trade adjudication system that is increasingly shifting in character to become a judicial and restraining law enforcement mechanism. Given that the international economy, will the superpower states be able to force their own policy decisions to the detriment of the smaller nations?
Previously, trade disputes among nations were elevated to the ICJ. However, in Article 28 (2) of the Paris and Article 33 (2) of the Berne Conventions, respectively, fundamentally undercut the efficacy of these accords since it allowed a member state to state that it is not under the provision in adjudicating a case it will have against another member state. With this factor, there has been no conflict over trade and intellectual property rights that have been elevated to the ICJ for resolution.
Nevertheless, though global trade law has fortunately separating itself from a number of restraints seen in general international law with the corpus juris concept in the WTO, the idea that the state as the prime actor in the tenets of international law is still dominant in international law. The restriction that individuals cannot have a stake cannot be accepted anymore on the foundations that states are the only actors in global trade law.
Here, it can be said that trade and human rights law meld with each other; to prohibit an individual to implement their rights with regards to intellectual property rights is bereft of authority. The concept that the state is dependent on the general principle banning individuals from having a stake in determining trade policy as a safeguard in defending its independence and to assure that the rights of citizens for redress on the matter lie within the parameters of the law the state applies. However, the conflict in this matter is that the interest of the government and the individual often clash with one another.
The legal principles used in formulating the ruling in India—Patent Protection shows that the resolution of these cases will increase the likelihood that present practices will continue to challenge the ascendancy of the trade court as a mechanism that recognizes the rights to due process and are in acknowledgement of the private parties that are in involved in the case.
Though the trade court seems to be undergoing a term of undeniable approval, legal literature in international law displays the fact that this is short term. On an increasing frequency, legal experts will contend against the use of the law as a tool to assimilate the various markets around the world sans a level of accountability and justification. In this light, the international judicial system must look to agree on a common standard of acceptance for the accordance of this new mandate (Evans 1998).
Bibliography
ABILA Committee, 2006, Reforming the United Nations: what about the International Court of Justice? Chinese Journal of International Law 5 (1) pp. 39-65
Evans, G., 1998, Issues of legitimacy and the resolution of intellectual property disputes in the supercourt of the World Trade Organization [online] Available at: <http://gaileevans.com/EvansSupercourt98.pdf (Accessed 1 November 2014).
Petersmann, E., 1999, Proposals for strengthening the UN dispute settlement system. [online] Available at:<http://www.mpil.de/files/pdf2/mpunyb_petersmann_3.pdf (Accessed 1 November 2014).
