I. Introduction
In 13 April 2006, International Law Commission issued a report (A/CN.4/L.682) on the threat of fragmentation of International Law. The term implies the implications of the diversification and expansion of international law. One of these implications is the threat of competing jurisdictions of international dispute settlement mechanisms, such as two different international courts become competent to settle the same single dispute. The fear is that two separate mechanisms which are competent to resolve an international dispute would undermine the binding nature of international law in the event that they reach conflicting conclusions.
This article will briefly expand on this issue and subsequently focus on the possible solutions under international law to resolve it.
II. The Problem of Competing Jurisdictions
An international dispute arises in general terms in the case of a violation of a norm of international law.
An international organ confers its jurisdiction over an international dispute based on a source of international law with the explicit consent by States. This could either be and often is a treaty or a unilateral declaration by the State concerned, although the latter can rarely lead to competing jurisdictions of two international courts.
The problem of competing jurisdictions occurs when a single international dispute falls under the jurisdiction of two different international organs. This could be due to the fact that State parties to the dispute are a party to two separate treaties which accord jurisdiction to two different international organs. It could also be because the same treaty allows for different sorts of dispute settlement mechanisms.
To provide an instance for the first case, in 2002, Ireland started proceedings against the United Kingdom for the fact that a company fully owned by the United Kingdom allegedly dumped radioactive wastes into the Irish Sea.[1] The matter fell within the obligations of protecting the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS)[2] and subsequently, Ireland initiated the arbitration proceedings before the PCA under Annex VII of UNCLOS. However, the discharge of radioactive waste also concerned the conservation and management of sea fishing resources over which the European Court of Justice had exclusive competence under the European Union (EU) Treaties.[3] Consequently, the discharge of radioactive waste into the Irish sea constituted a violation of both the UNCLOS and the EU Treaties. Following this, both one of the dispute settlement mechanisms under the UNCLOS –the PCA—and under the EU treaties –the European Court of Justice—could establish jurisdiction over the matter.
As for the second case when two sets of mechanisms under the same treaty become competent over a single dispute, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Convention) provides for mechanisms where States can initiate proceedings before the CERD Committee[4] or bring the matter before the International Court of Justice (ICJ) as a last resort.[5] In the case of Qatar v. United Arab Emirates (UAE) before ICJ, Qatar started proceedings before ICJ after also having brought the matter before the CERD Committee, something strongly contested by the UAE.[6] In this case, the same treaty allowed for different options –CERD committee and the ICJ— that were eventually triggered simultaneously.
As can be seen in both of these examples, the problem of competing jurisdictions is further aggravated when States initiate “simultaneous” proceedings before two different mechanisms as they tend to claim that there is nothing under international law that stops them from doing so.
The next section will focus on the possible solutions to the competing jurisdictions, i.e. whether there is a rule of international law that prevents States from initiating simultaneous proceedings before two competent international organs.
III. Possible Solutions
1. The Principle of Lex Specialisand Lex Posterior
The first solution that comes to mind is the operation of the principles of lex specialis and lex posterior.
The principle of lex specialis is considered a principle of law,[7] repeatedly acknowledged by the Court[8][9]
When two conflicting provisions regulating the same subject matter[10] leads to incompatibility once applied simultaneously,[11] the clause that alters the effect of the other[12] or regulates an exception[13] operates as lex specialis.
As for the principle of lex posterior, according to Article 30 (3) of the Vienna Convention on the Law of Treaties, the effect of an earlier treaty is preserved only if it is compatible with the subsequent treaty between same parties. This principle is also considered and applied as a principle of law.[14]
The principle of lex posterior seems to have a wider range of application considering it does not require the clause with lex posterior effect to constitute an exception to the other clause. Nevertheless, it still requires the incompatibility of the two clauses once applied simultaneously. It is hard to foresee whether the concern of potentially conflicting decisions of two courts per se constitute an incompatibility between two jurisdictional provisions in treaties.
2. The principle of lis pendens
Lis pendens means that a court may not be seized once a question brought before it is already pending before another court.[15] Hence, it is the perfect principle preventing simultaneous proceeding before two international fora. Unfortunately,
A general principle of law should have a widespread application in domestic courts of a vast majority of countries and be transposable at “international level”.[16] It is possible to say that lis pendens has found a prevalent application[17] on occasions in domestic legal systems and in the case-law of international courts, including the Permanent Court of International Justice (PCIJ). PCIJ stated in Certain German Interests in Polish Upper Silesia that the occasion to discuss whether lis pendens is transposable was not present in the case as the elements for its application were clearly lacking, however it stated that the principle is said to find application in international relations.[18] Judge ad hoc Cot of the ICJ also opined in Qatar v. UAE that the Court ‘did not rule out the possibility’[19] of the application of lis pendens in a case where its elements are present. The principle of lis pendens is also found as a regulating principle of parallel proceedings in a multitude of treaties.[20] Many scholars also opine[21] that lis pendens is the applicable norm in international tribunals.
On the other hand, there are many arguments against the applicability of this principle in international law. Many publicists have indicated that lis pendens is not a general principle of law.[22] In fact it is not even cited as a solution by certain scholars in the case of competing jurisdictions of international courts.[23] One of the strongest points of these arguments is that the principle is not “transposable at international level” as a general principle of law since the application of lis pendens is almost impossible in international law because of its strict elements peculiar to domestic legal systems.[24]
Putting aside the debate on whether or not it is a general principle of law within the meaning of Article 38(1) of the ICJ Statute, it is safe to conclude that even if it were, it would hardly be applicable due to its requirements. PCIJ elaborated on the requirements of lis pendens to be two identical actions by the same parties before two courts of the same character.[25]
Firstly, it must be admitted that it would not be applicable in cases where jurisdiction of an international court would overlap with that of an international organ without the competence of giving binding decisions. Decisions rendered by judicial bodies are res judicata and binding on parties to the dispute.[26] This means that they are not subject to a ratification or another form of acceptation by the parties.[27] This is the case in the above mentioned CERD Committee and the ICJ.
Secondly, the principle would be hard to establish in cases where there are two different bodies under two different treaty regimes. Although the parties to the disputes will often be the same in the case of simultaneous proceedings before two different fora, the identity of actions will be difficult to establish. For there to be identical actions, the identity of remedies and legal grounds are required. Even if remedies demanded from the two for a are the same, identity of grounds is almost impossible in the case of two separate treaties with different sets of obligations. Identical grounds refer to the fact that the parties rely on ‘same legal arguments’ before two different fora. [28] Violation of the UNCLOS treaty and the EU treaty mentioned above would not constitute the same legal ground since these treaties contain different obligations. Some suggest that it suffices for the identity of legal grounds that the clauses in two different treaties relate to the “same factual background”. [29] As also held by the Tribunal in Bluefin Tuna, it is indicated to be merely artificial [30] and implausible to claim that “substantially identical provisions” stipulated in different treaties have different legal grounds.[31] However, this approach can be characterized as exceptional in the case-law of international courts, having been found in a very few cases.
In the end, it is only the possibility where there are two different international courts under the same treaty provided for the dispute under that single treaty which might potentially allow for the application of lis pendens.
3. The principle of forum non-conveniens
The principle suggests that the forum seized should decline to exercise its jurisdiction provided that there is another forum ‘better suited to hear the dispute’.[32]
Forum non conveniens finds application exclusively in common law countries, which makes it in no way adopted by a vast majority of countries.[33] Thus, it does not find common application in the majority of countries as a general principle of law should do.
Furthermore, this principle aims to resolve cases where there is an unjustifiably excessive burden on the defendant if the forum is stayed, or the location of evidence and witnesses leads to physical obstacles in relation to the location of the court.[34] States compared to individuals with limited financial means do not encounter the same burden or obstacles.[35] The rationale behind it may be quite irrelevant to international litigation and makes it implausible to be transposed at international level.[36]
On the other hand, it seems like an appealing rationale to decline jurisdiction since there is another international organ “better suited to hear the dispute” for the fact that if not declined, the jurisdiction of the second international court might lead to conflicting decisions. Despite not citing the principle of forum non-conveniens, this is exactly what the PCA did in the case of Mox Plant.[37]
IV. Conclusion
The threat of fragmentation of international law includes the possibility of conflicting decisions of international dispute settlement mechanisms caused by the overlapping jurisdictions of international courts triggered simultaneously. One solution to this problem would be to operate the principles of lex specialis and lex posterior for the jurisdictional provisions in treaties so long as these provisions are incompatible. However, it is not always possible to suggest that two jurisdictional provisions are incompatible just due to the fact that they provide simultaneous jurisdiction. Another solution might be the application of the domestic law principle lis pendens, which is disputably an applicable principle in international law. In any event, the requirements of the principle would be hard to fulfil in international dispute settlement mechanisms. Last solution might be the principle of forum non conveniens, which cannot be accepted as an applicable principle in international law for the fact that it finds application merely in common law countries. Nevertheless, its rationale seems more relevant to be applicable in resolving the overlap between jurisdictions of international dispute settlement mechanisms.
Image: Japan Times
Sources:
[1] MOX Plant Case (Ireland v. United Kingdom), PCA Case No. 2002-01, Order on Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, 24 June 2003, ¶9.
[2] MOX Plant Case (Ireland v. United Kingdom), PCA Case No. 2002-01, Order on Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, 24 June 2003, ¶12; see UNCLOS Arts. 123, 192, 193, 194, 197, 206, 207, 211, and 213.
[3] Commission v. Ireland, ECJ Case no. C-459/03, 30 May 2006, ¶8.
[4] Article 11-13 of the CERD Convention
[5] Article 22 of the CERD Convention
[6] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 14 June 2019, I.C.J. Reports 2019, ¶12.
[7]International Law Commission Study Group on Fragmentation Report no. A/CN.4/L.682, 13 April 2006, finalized by Koskenniemi ¶¶ 56, 61; Vaughan Lowe, “Overlapping Jurisdiction in International Tribunals.” Australian Yearbook of International Law, 20, 1999, p. 195; Anja Lindroos, “Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis”, 2005, Nordic Journal of International Law 74:2005.
[8] “Right of Passage Case”, Judgement of 12 April 1960, ICJ Reports 1960, p.44; “Legality of the Threat or Use of Nuclear Weapons”, Advisory Opinion of 8 July 1996, ICJ Reports 1996, ¶25; “Gabcíkovo-Nagymaros Project”, (Hungary/Slovakia), Judgement of 25 September 1997, I.C.J. Reports 1997, p.76, ¶132. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)”, Judgment of 27 June 1986, ICJ Reports 1986, ¶274.
[9] Joost Pauwelyn and Luiz Eduardo Salles, “Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions”, Cornell International Law Journal: Vol. 42, Iss. 1, (2009), p.110.
[10] Gerard Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’, XXXIII British Yearbook of International Law, (1957), p.237.
[11] Anja Lindroos, “Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis” Nordic Journal of International Law 74, (2005), p.45.
[12] International Law Commission Study Group on Fragmentation Report no. A/CN.4/L.682, 13 April 2006, finalized by Koskenniemi ¶88.
[13] Vaughan Lowe, “Overlapping Jurisdiction in International Tribunals.” Australian Yearbook of International Law, 20, 1999, p.194.
[14] “The Mavrommatis Palestine Concessions”, PCIJ Series A. No 2, Judgment (Objection to the Jurisdiction of the Court), Judgement of 30 August 1924, p.31.
[15] K.Oellers-Frahm, ed. J.A. Frowein and R.Wolfrum, “Multiplication of International Courts and Tribunals and Conflicting Jurisdiction — Problems and Possible Solutions” Max Planck Yearbook of United Nations Law, Volume 5, 2001, p.77.
[16] Alain Pellet, Daniel Müller, “Statute of the International Court of Justice, Ch.II Competence of the Court, Article 38, 2019”, in eds. Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm, Christian Tomuschat, Oxford University Press (2019), ¶255.
[17] See Nouveau Code de Procedure Civile (France), Art.100; Code of Civil Procedure, art. 114 (Turkey)
[18] Certain German Interests in Polish Upper Silesia”, (Germany v. Poland), Merits, Judgment, 1926 PCIJ Series A, No. 6, p.20
[19] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 14 June 2019, I.C.J. Reports 2019, Dissenting opinion of Judge ad hoc Cot, ¶3
[20] See Comprehensive Economic and Trade Agreement between Canada and the EU (CETA), 30.10.2016, Article 29.(2)-(3).
[21] Vaughan Lowe, “Overlapping Jurisdiction in International Tribunals.” Australian Yearbook of International Law, 20, 1999, p.203; Laurence Boisson de Chazournes, “Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach”, European Journal of International Law, Volume 28, Issue 1, 2017, p.46; August Reinisch, “The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes”, The Law & Practice of International Courts and Tribunals, (2004) 3(1), p.43; Ténékidès, ‘L’exception de litispendance devant les organismes internationaux’ Revue générale de droit international public(1929), p.526.
[22] Gilles Cuniberti, Parallel Litigation and Foreign Investment Dispute Settlement, 21 ICSID REV. FOREIGN INVESTMENT Law Journal, 2006, p.383; Pauwelyn, Joost and Salles, Luiz Eduardo (2009) “Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions,” Cornell International Law Journal: Vol. 42: Iss.1, Article 4, p.107.
[23] K.Oellers-Frahm, ed. J.A. Frowein and R.Wolfrum, “Multiplication of International Courts and Tribunals and Conflicting Jurisdiction — Problems and Possible Solutions” Max Planck Yearbook of United Nations Law, Volume 5, 2001, p. 77
[24] K.Oellers-Frahm, ed. J.A. Frowein and R.Wolfrum, “Multiplication of International Courts and Tribunals and Conflicting Jurisdiction — Problems and Possible Solutions” Max Planck Yearbook of United Nations Law, Volume 5, 2001, p. 77
[25] Certain German Interests in Polish Upper Silesia”, (Germany v. Poland), Merits, Judgment, 1926 PCIJ Series A, No. 6, p.20
[26] “Effect of Awards of Compensation Made by the U.N. Administrative Tribunal” Advisory Opinion of 13 July 1954: ICJ Reports 1954, p. 47, pp.53-62.
[27] Jean Combacau et Serge Sur, “Droit international public”, 6e édition, Domat, Droit Public, (2019), p.568.
[28] UNCITRAL Arbitration Proceedings-Quantum proceedings, CME Czech Republic B.V. (The Netherlands) v. The Czech Republic, Legal Opinion Prepared by Christoph Schreuer, August Reinisch, 20 June 2002, ¶43.
[29] UNCITRAL Arbitration Proceedings-Quantum proceedings, CME Czech Republic B.V. (The Netherlands) v. The Czech Republic, Legal Opinion Prepared by Christoph Schreuer, August Reinisch, 20 June 2002, ¶55.
[30] Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, 39 ILM 1359 (2000), ¶54.
[31] UNCITRAL Arbitration Proceedings-Quantum proceedings, CME Czech Republic B.V. (The Netherlands) v. The Czech Republic, Legal Opinion Prepared by Christoph Schreuer, August Reinisch, 20 June 2002, ¶51.
[32] Crawford, C. Brownlie’s Principles of Public International Law (9th Edition), 9 July 2019, p.462
[33] Joost Pauwelyn and Luiz Eduardo Salles, “Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions”, Cornell International Law Journal: Vol. 42, Iss. 1, (2009), p.110.
[34] Vaughan Lowe, “Overlapping Jurisdiction in International Tribunals.” Australian Yearbook of International Law, 20, 1999, p. 200.
[35] Ibid.
[36] Ibid.
[37] MOX Plant Case (Ireland v. United Kingdom), PCA Case No. 2002-01, Order on Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, 24 June 2003, ¶24.
