Kekuatan Hukum Putusan Dispute Settlement Body World Trade Organization Dalam Kaitannya Dengan Keefektifan Dan Keadilan Penyelesaian Sengketa WTO (Studi Kasus Sengketa WTO Yang Melibatkan Indonesia)

YOHANES, TRIYANA (2018) Kekuatan Hukum Putusan Dispute Settlement Body World Trade Organization Dalam Kaitannya Dengan Keefektifan Dan Keadilan Penyelesaian Sengketa WTO (Studi Kasus Sengketa WTO Yang Melibatkan Indonesia). PhD thesis, Universitas Sebelas Maret.

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    Abstract

    ABSTRACT Triyana Yohanes, 2017. Legally Binding of Decision of the World Trade Organization Dispute Settlement Body, in Relation with the Effectiveness and Justice Principleof the World Trade Organization Dispute Settlement System (Case Study : WTO Disputes Involving Indonesia asDeveloping Country).Promotor : Prof. Dr. Adi Sulistiyono, SH.,MH., Co Promotor : Prof. M. Hawin, SH.,LL.M., Ph.D.; Dissertation, Surakarta. The objective of this study is to identify and to analyze : 1). The legally binding character of the WTO DSB decision (rulings and recommendations), the consequence if it is not complied by the WTO members, and it’s impact to the effectiveness and justice principle of the WTO dispute settlement mechanism; 2). Possible measures under the international law beyond the WTO Agreement for enforcing decision of the WTO DSB; 3). The ideal mode of the WTO Dispute Settlement system, which will be more effective, fair and be able to protect the economic interests of all WTOmembers. This study is a normative legal research and the data are analyzed by deductive method. From the data analysis, it can be concluded that decision of the WTO DSB is legally binding as an international hard law, so if it is not being complied by the WTO members it will be resulted a breach of international law. However, the DSU does’t provide adequate sanctions against non-compliance with the WTO DSB decision, so in some cases the wining party has to do measures of self help in enforcing the WTO DSB decision. It caused the effectiveness of the WTO dispute system became relative, it depends on the ability of the wining party to force the losing party to perform the DSB decisions. If the wining party is a developing country, for instances in the disputes between Indonesia against some developed states (the United States and Korea), the WTO dispute mechanism in those cases was not effective. It has caused injusticeness for developing country members of the WTO in the WTO dispute settlement system, and some special treatments provisions for protecting developing countries and LDCs based on the WTO Agreement can not be well implemented. In case of the compliance mechanism based of the WTO Agreement dose not work, some enforcement measures under international law beyond the WTO Agreement can be implemented for enforcing decision of the WTO DSB. This measures comprises of doing a complaints, applying certain economic and trade sanctions, denouncing or terminating the application of the WTO Agreement, instituting juridical proceedings in front of international tribunal and domestic court. The ideal mode of the judicial WTO dispute settlement system is settlement done by an independent WTO Tribunal/Court and it is being backed up by an effective mechanism sanction against to the non-compliance with it’s decision. Recommendation : The WTO should establish an effective and fair adjudicatory dispute settlement system by creating organizational sanctions (such as financial sanctions, collective embargo, prohibition to make complain before the DSB) against non-compliance of the WTO DSB decision, giving more binding and implementative special rights for the benefits of developing countries and LDCs members of the WTO and give acces to the private business actors and non-governmental organization to participate in the WTO dispute settlement. Key words : WTO Dispute Settlement Body, Adjudicatory/Judicial, Effectiveness, Justice

    Item Type: Thesis (PhD)
    Subjects: K Law > K Law (General)
    Divisions: Pascasarjana
    Pascasarjana > Doktor
    Pascasarjana > Doktor > Ilmu Hukum - S3
    Depositing User: Wahyu Trianingsih
    Date Deposited: 07 Jan 2018 00:39
    Last Modified: 07 Jan 2018 00:39
    URI: https://eprints.uns.ac.id/id/eprint/39122

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