EUSA Ninth Biennial International Conference, March 31-April 2, 2005, Austin, Texas Concurrence of Jurisdiction between the ECJ and other international courts and tribunals Dr. Nikolaos Lavranos, LL.M.,? Department of European Law, Faculty of Law, University of Amsterdam, The Netherlands, N.Lavranos@uva.nl Without adjudication, international law would be a poor thing. Disputes would be resolved by political or military means. At best, the law would be merely one factor in the balance. [Trevor C. Hartley, European Union Law in a Global context, Cambridge 2004, at p. 71] Table of contents I. Introduction 2 II. Developments on the international law level 5 1. The institutionalization of international law 5 2. The danger of fragmentation of international law 7 3. Conclusion 11 III. Developments on the European law level 12 1. The jurisdiction of the ECJ regarding international law 12 2. The ECJ jurisprudence on selected international law aspects 19 2.1. External trade 19 2.1.1 UN Security Council Resolutions 20 2.1.2 WTO law 24 2.2. Human rights 30 2.3. Environmental law 38 3. Conclusion 41 IV. The consequences of the concurrence of jurisdiction 42 1. Case-studies 44 1.1. The MOX-case 44 1.2. The Ijzeren Rijn-case 45 2. Consequences of expanding ECJ jurisdiction for other international courts/tribunals 46 3. Consequences of expanding ECJ jurisdiction for the EC Member States 48 4. Conclusion 49 V. Possible solutions 50 1. Extending the jurisdiction of the ICJ 50 2. Making the ICJ a Court of Appeal vis-à-vis the other international courts and tribunals 52 3. Creating a preliminary ruling system at the level of ICJ 52 4. Extending the already existing advisory jurisdiction of the ICJ 53 5. Creating a Tribunal des Conflits 53 6. The legal duty to take into account decisions of other courts and the principle of good faith 54 7. The application of the res judicata and lis pendens-principles 55 8. Conclusion 56 I. Introduction The relevance of this topic stems from two parallel developments that currently take place on the international as well as European law level. On the international law level we are witnessing an undisputable explosion of the creation of international courts and tribunals endowed with jurisdiction to deal with certain areas of international law or to settle specific disputes, as well as an increase in the willingness of states to use these courts. Reference can be made to the International Tribunal for the Law of the Sea (ITLOS), the tribunals for the former Yugoslavia and Rwanda, the International Criminal Court (ICC), the dispute settlement system of the World Trade Organisation (WTO) etc. This development is spurred by the globalisation of political, legal and economic relations between states as well as the increasing involvement of other actors such as international organisations, multinationals and individuals on the international plane. This proliferation of international courts and tribunals can essentially lead into two opposing developments. Either the proliferation leads to an increased density of international law which in turn contributes to the institutionalization and perhaps even constitutionalization of international law. Or the proliferation can lead to the fragmentation of international law due to the lack of hierarchy and coordination between the various international courts and tribunals and their decisions. Several authors agree that the possible danger of fragmentation of international law caused by the proliferation of international courts is small and that the positive aspects clearly outweigh the negative ones. The assumption is that the judges and arbitrators of the various international courts and tribunals more or less apply the same methodology and thus come to more or less the same application of international law. Moreover, they increasingly meet each other – formally and informally, they cite each others decisions more often and thus create a global community of courts. Hence, according to these writers, the proliferation of international courts and tribunals practically creates no legal problems or legal conflicts. In fact, it should be welcomed as the beginning of an emerging global jurisprudence. However, other authors point to the danger that the coherence of international law could be threatened by a possible divergent jurisprudence of the different international courts and tribunals which could lead to a fragmentation of international law, especially since there is no hierarchical relationship between the various courts and tribunals. They emphasize the still existing shortcomings of the various international courts and tribunals and the fragmented legal framework in which they have to operate and interact. Indeed, the International Law Commission (ILC) found this subject so topical that it commissioned a feasibility report on this subject in order to determine its relevancy for further long-term study by the ILC. Prof. Hafner presented his report to the ILC in 2000 in which he emphasized the danger of fragmentation of international law. The ILC decided on that basis to create a study group chaired by Prof. Koskenniemi to analyze this topic further. Unfortunately, the ILC limited the scope of the study group by excluding the aspect of proliferation of international courts and tribunals and their possible effect on the fragmentation of international law. In this context it should be noted that the ILC also changed the title of the study group so as to reduce possible negative connotations to the subject which might be associated with the word 'fragmentation'. On the European law level the continuing expansion of the competences of the EC encompassing ever-more policy areas results into an increasing influence of Community law on the position of EC Member States in the international legal order. This influence manifests itself in various ways. One aspect is that Community law transforms ('communitarizes') international legal obligations that fall within the scope of EC law by attaching EC law principles such as supremacy over all national law and possible direct effect to them before they enter the legal order of the EC Member States. In addition, the EC – and increasingly the EU in the II. and III. pillars (Common Foreign and Security Policy (CFSP) and Police and Judicial Cooperation in Criminal Matters (PJC)) – has been expanding its competence in many policy areas that used to be governed mainly by international law, i.e. trade, environment, human rights, security. Since the jurisdiction of the European Court of Justice (ECJ) – and of the Court of First Instance (CFI) – runs parallel to the competence of the EC, the jurisdiction of the ECJ has been expanding as well to cases involving the interpretation and application of international law. Furthermore, Art. 292 EC Treaty (ECT) requires that all disputes between EC Member States involving Community law must be brought exclusively before the ECJ. As a consequence thereof, more disputes that previously were to be settled by international courts now come also within the jurisdiction of the ECJ. The MOX-case that will be discussed below in more detail is a clear evidence of it. Hence, while states increasingly have the possibility to settle disputes before various international courts and tribunals, the right of the EC Member States to use these fora is progressively restricted due to the expanding jurisdiction of the ECJ – at least as far as intra-EC Member States disputes are concerned. Thus, the possibility that the same dispute could come before an international court/tribunal and the ECJ at the same time is rising. Accordingly, a concurrence between the jurisdiction of international courts/tribunals on the one hand and the ECJ on the other hand arises, which increases the possibility of conflicting judgements regarding the same dispute. The following graphic illustrates the situation of concurrence of jurisdiction. On the basis of the premises outlined above, the following section II will discuss two developments in international law in more detail. First, the aspect of institutionalization of international law and second, the danger of fragmentation of international law. Section III will turn to the developments in European law. In particular, this section will analyze the precise extend of the jurisdiction of the ECJ in regard to international law, the jurisprudence of the ECJ on international law issues and its effect on the competence of the EC Member States to utilize dispute resolution mechanisms outside the EC Treaty. Section IV will then discuss the consequences of the concurrence of jurisdiction, while section V will wrap the discussion by presenting a number of possible solutions. As a caveat, it should be emphasized that in this paper I will not deal with arbitration proceedings involving private parties and their relationship with Community law and international law. II. Developments on the international law level In the context of this paper, two current developments in international law are particularly relevant and thus will be analyzed in more detail in the following two sections. First, the ongoing institutionalization of public international law caused especially by the increasing law-making activities of International Organizations (IOs) and the proliferation of international courts/tribunals and their decisions. Second, the danger of fragmentation of public international law caused by the lack of a formal hierarchy, co-ordination and co-operation between the various international courts and tribunals. 1. The institutionalization of international law Since the end of the Cold War in 1989 we are witnessing a surge in the co-operation between nation states in particular through previously established IOs that were paralysed by the Cold War as was the case with the UN Security Council as well as through the establishment of new IOs or other comparable institutionalized settings such as Conference of Meeting of Parties (COPs/MOPs) within the framework of multilateral environmental agreements (MEAs). The increasing activity of IOs supposedly results into an increase in terms of quantity and quality of law-making of IOs. Moreover, it seems that existing IOs are co-operating more with each other as for example in the area of international peace and security between the UN Security Council and NATO. Also, the close co-operation between the G7/8 and the IMF/World Bank in the area of international finance is just another example of the close co-operation between international institutions. The development of creating new sources of international law leads inevitably to a higher density of international law which in turn forms the basis for a more solid institutionalization of international law or even constitutionalization of international law. In other words, public international law increasingly covers all areas of law so that it provides a common standard or framework for the conduct of states but also for other subjects of international law such as IOs, multinationals, NGOs and ultimately individuals. Indeed, some regard the level of institutionalization of international law to have matured to a level that would provide the basis for a process of constitutionalization of international law. More specifically, as regards the proliferation of international courts and tribunals, the creation of all these judicial bodies – and one should emphasize that new international courts/tribunals continue to be created – also entails an increased interaction and communication between the judges of these courts/tribunals leading supposedly to a global community of courts. Since the judges of these international courts/tribunals face similar legal problems but at the same time have to apply the same rules and principles of international law, they understand each other, they read each others decisions and awards, they meet and know each other and thus add to the institutionalization or constitutionalization of international law. Consequently, there is not much to worry about the possibility that conflicting judgements and awards would be rendered by the various international courts and tribunals. At least so we are told by eminent writers such as Ann-Marie Slaughter. Indeed, the proliferation and diversity of international courts and tribunals is seen by some as a sign of maturity of the international legal system and as reflection of the growing strength of the unity and integrity of international law. In my view a constitutionalization of international law seems currently a step too far. Definitely, if one compares it with the currently on-going process of constitutionalization of European law which is much more advanced and thus truly deserves this label. Indeed, the recent signing of the European Constitution is just one but nevertheless clear piece of evidence of the ongoing process of constitutionalization on the European law level. However, it is undisputable that an institutionalization of international law is currently taking place. There is hardly any area of law that is not covered by international norms and for which an IO and/or a court/tribunal has been established to ensure the proper implementation of these norms. In so far, the development of an all-encompassing body of law and various institutions could to a certain extend be compared to the one on the national level. However, constitutionalization implies much more in my view. It implies – among other things – a functioning executive, legislation and judiciary, checks and balances of those branches, the effective enforcement of international norms, a proper role for the individual. All this exists only in rudimentary form on the international law level – even if one would take the UN system as a potential basis for a constitution on the international level. That is not to say that things are not moving in this direction and that one day a constitutional system on the international law level could be established, but currently this is not yet the case. Rather we are – it is submitted – in the process of a consolidation of norms and of an institutionalization of through institutions that could form the basis for a constitutional system. 2. The danger of fragmentation of international law While the argument of a global community of courts and on a more general level of global governance in a world of networks and constant interaction contributing to the constitutionalization of international law and international relations has been forcefully posited by Anne-Marie Slaughter many times , the danger of fragmentation of international law caused by the very same effect of proliferation of international courts and tribunals cannot be overlooked and thus must be addressed. The root of the possible danger of fragmentation of international law lies in the fact that there is no legal hierarchy in international law (with the exception of ius cogens norms and Art. 103 UN Charter claiming primacy over other norms of international law) and no hierarchy between all the various international courts and tribunals. This means that it is quite possible that a dispute involving the same legal question or legal norm is interpreted and applied by two different international courts in a very different way. That in itself is not an unknown phenomenon – on the contrary! On the national law level this happens all the time. However, the difference is that at the end of the day it will be one supreme arbiter, a supreme court or a constitutional court, that will determine the dispute in fine and binding for the parties and often also binding for the other lower domestic courts. Similarly, the relationship between the ECJ and the national courts of the EC Member States is regulated in a hierarchical way by putting the ECJ at the top of the hierarchy. Despite the fact that the ECJ describes its relationship with the national courts as one of 'co-operation', in particular, when it comes to the preliminary reference procedure of Art. 234 ECT, the judgements of the ECJ are final and binding for the national courts requesting a preliminary ruling from the ECJ. Indeed, due to the supremacy of Community law over all national law and combined with the obligation of the EC Member States to do everything in order to give full effect to EC law and refrain from opposing in any way the full effect of EC law (Art. 10 ECT), the judgements of the ECJ are de facto binding on all national courts of the EC Member States. Moreover, the ECJ has been justifying the expansion of its jurisdiction especially by emphasizing the need to ensure the unity and consistency of Community law in all EC Member States. Indeed, the need to preserve the unity and consistency of Community law is at the centre of concern in the context of the establishment of the new courts of first instance within the European judicial system that is currently taking place. Recently, a new European Union Civil Service Tribunal that will deal with all staff cases has been established and a new Community Patent Court will be established very soon. Both courts will function as specialized first instance courts under the current Court of First Instance (CFI) which in turn functions under the ECJ. The rules governing these new courts contain a special mechanism that allows the First Advocate General of the ECJ to refer a case to the ECJ if he/she considers that the unity and consistency of Community law would be endangered by judgements rendered by the CFI or the specialized courts of first instance. This new mechanism clearly illustrates that the establishment of the new specialized courts creates a danger for the unity and consistency of Community law, i.e. could result into a fragmentation of Community law which needs to be avoided in order to ensure the proper function of EC law in all EC Member States. But the danger of fragmentation in Europe also exists on the horizontal level, namely, between the ECJ and the European Court of Human Rights (ECrtHR) in regard to the interpretation and application of the fundamental rights as protected by the European Convention of Human Rights (ECHR). Again the lack of a clear explicit hierarchical determination of which court should have the last word regarding European fundamental rights has lead to several divergent judgements by both courts on similar issues. So far, the fact that the EC is not party to the ECHR has allowed the ECJ to continue to claim the highest authority when it comes to the interpretation and application of Community law vis-à-vis fundamental rights. However, in the recent Schmidberger-judgement the ECJ accepted for the first time that the fundamental rights of the ECHR could be used as a justification for EC Member States to let the ECHR prevail over the four freedoms as enshrined in the EC Treaty. In other words, the ECHR as interpreted by the ECrtHR can in certain circumstances prevail even over primary EC law and thereby become the highest authority regarding fundamental rights within the EC and its Member States. Indeed, the Schmidberger-judgement already anticipates the future relationship between the ECJ and the ECrtHR as it is envisioned in the recently signed European Constitution. That Constitution foresees the accession of the EU to the ECHR (Art. I-9 (2)) and the acceptance of the ECrtHR as the highest court regarding human rights in Europe, so that the ECJ would be legally bound by the rulings of the ECrtHR (Art. II-111-113). Despite these shortcomings, the overall success of the ECJ model has been taken by some authors to call for a similar model for the International Court of Justice (ICJ) vis-à-vis the other international courts and tribunals in order to create some sort of a hierarchical structure that would enable the ICJ to ensure the consistency and unity of international law. These authors have suggested that the ICJ should become formally the highest international court which would provide binding interpretation of international law for the other international courts and tribunals. While the jurisprudence of the ICJ has undoubtedly gained high authority in the world and the model of the ECJ has proven to be very effective in the past 50 years, its limited and optional jurisdiction as well as the restricted accessibility to states only, makes it currently impossible for the ICJ to assume the role of the leading international court. A less ambitious proposal is to create the possibility for the other international courts and tribunals to be able to request preliminary rulings from the ICJ in cases in which they consider it necessary to receive guidance on a particular issue of international law. This proposal would establish a less strict hierarchical structure between the ICJ and the other international courts and tribunals as it would leave it to their discretion in which cases they consider it necessary to request a preliminary ruling. While this would no doubt put the ICJ in a position to ensure more consistency within the jurisprudence of the other international courts and tribunals, it would still require many cumbersome amendments of the statutes and founding instruments of the ICJ as well as of the other international courts/tribunals. As both options are unlikely to be realized in the near future, the potential of fragmentation of international law caused by the proliferation of international courts and tribunals under the present circumstances must be assessed. Fortunately, several extensive studies have already been conducted on this point, so it is not necessary to repeat the same exercise. In 1998, the late Professor Charney examined in his Hague lectures extensively several international courts and tribunals and the potential of conflicting rulings by them. His main conclusion was that the danger of fragmentation is very low. He repeated this conclusion on a later occasion again. A few years later, dr Shany published his doctoral thesis on competing jurisdictions of international courts and tribunals. He concluded that the potential of competing or concurrent jurisdiction is actually quite real, which is in particular supported by recent (pending) cases, such as the MOX case that will be discussed later on. Finally, also Professor Hafner examined this issue for the ILC and came to the conclusion that the danger of fragmentation is at least so eminent that it should be explored further by the ILC. Similarly, Professor Koskenniemi has clearly voiced his concerns on the potential of fragmentation of international law. In my view, the danger of fragmentation clearly exists and therefore its potential effects on international law and especially on the issue of jurisdiction of the various international courts and tribunals merits further analysis. While so far only a few cases have given rise to actual conflicting judgments by the various international courts and tribunals, the fact that the proliferation of international courts and tribunals continues combined with the lack of any hierarchy between the courts suggests that in the future more conflicting judgements can be expected. 3. Conclusion The previous section has clearly illustrated that the globalization of international law results into many different developments – sometimes seemingly opposing ones. On the one hand, a continuing institutionalization of international law through more international agreements and law-making of IOs and through the establishment of more international courts and tribunals takes place. On the other hand – and the same time – the proliferation of international courts and tribunals and the increasing number of their decisions and awards creates the danger of a fragmentation of international law. This is in particular the case because of a lack of binding legal hierarchy between norms of international law as well as between the various international courts and tribunals. As a consequence thereof, there are currently no mechanisms in place – as for instance within the Community legal order – which could ensure that the on-going institutionalization of international law is accompanied by a hierarchization between the various international courts and tribunals. However, it seems to the present author, that such a hierarchization is necessary in order to prevent a level of fragmentation of international law which otherwise could undermine the very development of institutionalization of international law. III. Developments on the European law level As mentioned above, the expanding competence of the EC encompassing ever more policy areas is the main reason for the expanding jurisdiction of the ECJ. In particular, the so-called AETR- formula pronounced by the ECJ which states that whenever the EC has promulgated Community legislation in one policy area, it automatically acquires exclusive external competence in that field, resulted in an enormous expansion of the EC's activities on the international plane, especially through the ratification of numerous international agreements and membership in many IOs. However, starting with its Opinion 1/94 on the WTO Agreement and subsequently in its open- skies judgement , the ECJ substantially restricted the AETR-formula by ruling that the competence of the EC becomes exclusive only after a certain policy areas has been fully or at least to a large extent harmonized by EC legislation. Consequently, one would assume that the expansion of the external competence of the EC has come to a halt, but the contrary is true. Indeed, the successive amendments of the EC and EU Treaties of the past decade (Maastricht, Amsterdam, Nice) culminating in the recently signed European Constitution have only added new policy areas to the already long list of Community competences. Thus, the EC has over the past decade obtained new competences that can be become exclusive external competences as soon as sufficient harmonizing legislation has been issued. Accordingly, in the subsequent paragraphs the jurisdiction of the ECJ and its case-law regarding international law aspects will be the main focus by addressing the following questions. First, how far does the jurisdiction of the ECJ extend regarding international law? Second, how does the ECJ deal with international law, in particular, with regard to supremacy and direct effect of international law in the Community legal order? 1. The jurisdiction of the ECJ regarding international law According to Art. 220 ECT, the task of the ECJ is to ensure that the law is observed in the interpretation and application of the EC Treaty (ECT). In addition, Art. 234 ECT provides that the ECJ has jurisdiction to interpret the EC Treaty and secondary Community law acts (Art. 234 (a) ECT) and to rule on the validity of acts of the Community institutions (Art. 234 (b) ECT). But these provisions say nothing with regard to the jurisdiction of the ECJ over international treaties. The ECJ has seized jurisdiction over international treaties by interpreting the term 'acts of the Community institutions' broadly when it argued with respect to the Association Agreement EEC-Greece and EEC-Turkey that the '[…] agreement was concluded by the Council under Articles 228 [now 300] and 238 [now 310] of the Treaty as appears from the terms of the [Council] Decision […] therefore, in so far as it concerns the Community, [it is] an act of one of the institutions of the Community within the meaning of subparagraph (b) of the first paragraph of Article 177 [now 234]'. The ECJ's main argument justifying its jurisdiction over international treaties is that only when it has broad jurisdiction can the provisions of international treaties be applied uniformly in all EC Member States. Accordingly, the ECJ has jurisdiction in the following cases: (i) Treaties concluded by the EC alone As mentioned before, Art. 133, 310 ECT are one of the very few explicit provisions of the EC Treaty which give the EC exclusive external competence to sign international agreements, for example, tariff and trade agreements and association agreements with third states. The Treaty of Nice has substantially amended Art. 133 ECT by including certain agreements on trade in services and commercial aspects of intellectual property rights. Similarly, the European Constitution will amend and extend again Art. 133 ECT, which will become Art. III-315 of the Constitution. Without going into details, it suffices for our purposes to keep in mind that the EC enjoys exclusive competence concerning all agreements concluded on the basis of Art. 133, 310 ECT, which in turn gives the ECJ jurisdiction to the same extent. (ii) mixed-agreements concluded by the EC together with its Member States The problem of mixed-agreements is that it is unclear whether the jurisdiction of the ECJ extends also to areas of shared competence, i.e. areas that have not yet become the exclusive competence of the EC. So far, the ECJ has not yet explicitly decided this issue. The following cases illustrate how the ECJ justifies its jurisdiction, in this case Art. 50 (6) TRIPS Agreement, which clearly does not belong to the exclusive competence of the EC and indeed some would argue belongs to the exclusive competence of the Member States, thus outside the jurisdiction of the ECJ. In the first case, the Hermès-judgement , the ECJ prepared the ground to justify its jurisdiction on the basis of the following considerations: '24 It should be pointed out, however, that the WTO Agreement was concluded by the Community and ratified by its Member States without any allocation between them of their respective obligations towards the other contracting parties. 25 Equally, without there being any need to determine the extent of the obligations assumed by the Community in concluding the agreement, it should be noted that when the Final Act and the WTO Agreement were signed by the Community and its Member States on 15 April 1994, Regulation No 40/94 had been in force for one month. [...] 28 It is true that the measures envisaged by Article 99 and the relevant procedural rules are those provided for by the domestic law of the Member State concerned for the purposes of the national trade mark. However, since the Community is a party to the TRIPS Agreement and since that agreement applies to the Community trade mark, the courts referred to in Article 99 of Regulation No 40/94, when called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under a Community trade mark, are required to do so, as far as possible, in the light of the wording and purpose of Article 50 of the TRIPS Agreement (see, by analogy, Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraph 9, and Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 52). 29 It follows that the Court has, in any event, jurisdiction to interpret Article 50 of the TRIPS Agreement. [...] […] 32 Second, where a provision can apply both to situations falling within the scope of national law and to situations falling within the scope of Community law, it is clearly in the Community interest that, in order to forestall future differences of interpretation, that provision should be interpreted uniformly, whatever the circumstances in which it is to apply (see, to that effect, Case C-130/95 Giloy v Hauptzollam Frankfurt am Main-Ost [1997] ECR I-4291, paragraph 28, and Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen [1997] ECR I-4161, paragraph 34). In the present case, as has been pointed out in paragraph 28 above, Article 50 of the TRIPS Agreement applies to Community trade marks as well as to national trade marks. 33 The Court therefore has jurisdiction to rule on the question submitted by the national court.' The most important point to note for our purposes is the argument of the ECJ that, since no explicit distribution of powers between the EC and its Member States was made when the WTO Agreement was ratified, there is accordingly no need for the ECJ to embark on a clear distinction of the competences with regard to Art. 50 TRIPS. That is insofar interesting since, in its Opinion 1/94, the ECJ explicitly indicated that there is barely any Community legislation in this area, so that most parts of the TRIPS fall within the competence of the Member States. Nonetheless, the ECJ argues, since Art. 50 TRIPS applies both to the EC and its Member States, both the ECJ and the national courts have jurisdiction to apply the provision. However, the ECJ goes on to claim that, since only the ECJ can ensure that Art. 50 TRIPS is uniformly interpreted and applied in all Member States, it must exercise its jurisdiction in the present case. Thus, without deciding the main issue of whether or not Art. 50 TRIPS falls within the competence of the EC or its Member States, the ECJ seized jurisdiction to interpret that provision anyway for the sake of ensuring uniformity of interpretation in all Member States. In the second case, the Dior/Assco-case , the ECJ was faced with the question of whether or not Art. 50 (6) TRIPS had direct effect as the Dutch courts apparently believed. Before dealing with this question, the ECJ – by referring to the Hermès-judgment – repeated that it has jurisdiction to interpret Art. 50 (6) TRIPS. In particular, the ECJ emphasized again that: '38 Only the Court of Justice acting in cooperation with the courts and tribunals of the Member States pursuant to Art. 234 of the Treaty is in a position to ensure such uniform interpretation. 39 The jurisdiction of the Court of Justice to interpret Article 50 of TRIPS is thus not restricted solely to situations covered by trade-mark law.' Finally, in the third case, the Schieving-Nijstad-case , the ECJ confirmed the main points of its Dior/Assco-judgment. Thus, the ECJ interpreted Art. 50 (6) TRIPS Agreement despite the fact that, in its Opinion 1/94, it declared that the TRIPS Agreement belongs for the most part to the competence of the Member States. In other words, the main aim of the ECJ is 'to ensure the uniform application throughout the Community of all provisions forming part of the Community legal system and to ensure that the interpretation thereof does not vary according to the interpretation accorded to them by the various Member States'. Most recently, the ECJ – by confirming the above-mentioned jurisprudence – interpreted without difficulty Art. 16 TRIPS agreement. Hence, in the light of this practice it can be concluded that the jurisdiction of the ECJ extends to all provisions of a mixed agreement which fall within the shared competence. In other words, the jurisdiction of the ECJ encompasses all provisions except those that fall within the exclusive competence of the Member States. (iii) Treaties concluded by the EC Member States alone In principle, international treaties concluded by the EC Member States alone and which do not fall within the exclusive competence of the EC are outside the scope of Community law and thus outside the jurisdiction of the ECJ. Of course, the EC Member States are free to extend the jurisdiction of the ECJ to such treaties through an additional protocol to the international treaty as has been the case with the Brussels Convention 1968. But there are two cases in which the ECJ exerts a sort of 'implied jurisdiction' over international treaties concluded by the EC Member States alone, namely, the former GATT 1947 and the European Convention of Human Rights (ECHR). Regarding the GATT 1947, it should be noted that the EC was never contracting party to it. But because the GATT 1947 fell within the exclusive competence of the EC (Art. 133 ECT), the ECJ was able to extend its jurisdiction due to the fact that the EC de facto replaced the Member States as regards the GATT 1947. Similarly regarding the ECHR, the EC has never been a contracting party to it, while all EC Member States are. Nevertheless, since its judgement in the Nold-case , the ECJ determined that fundamental rights as enshrined in the constitutions of the EC Member States and the ECHR belong to the general principles of Community law. Accordingly, the ECJ accepted to review Community measures in light of the general principles and under certain conditions even Member States' measures. In the ERT-case , the ECJ stated that: '41 With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case 5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed. 42 As the Court has held (see the judgment in Joined Cases 60 and 61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 25, and the judgment in Case 12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, paragraph 28), it has no power to examine the compatibility with ECHR if national rules do not fall within the scope of EC law. On the other hand, where such rules fall within the scope of Community law, it must provide all the criteria of interpretation needed to determine whether those rules are compatible with fundamental rights the observance of which the court ensures and which derives in particular from the ECHR.' Thus, the ECJ uses the 'general principles' as a means to expand its jurisdiction to interpret also the ECHR, which is primarily – indeed according to Art. 19 , 32 , 46 ECHR exclusively – the task of the European Court of Human Rights (ECrtHR). Moreover, the Maastricht Treaty has further reinforced the legal links between Community law and ECHR law by giving the ECJ the explicit possibility to review – within its jurisdiction – acts of the EC and EU as to their compatibility with the ECHR. Indeed, in its more recent case-law, the ECJ applies the ECHR even directly without using the 'general principles' detour. In fact, in the recent Schmidberger-judgment , the ECJ accepted that the ECHR can be used as a justification for the EC Member States in order to restrict even the four 'internal market' freedoms (free movement of goods, workers, services and capital) guaranteed by the EC Treaty. Hence, over time the ECJ has integrated the ECHR into the Community legal order and thus seized jurisdiction to interpret and apply the ECHR when Community law is involved. In this way, the ECJ basically has usurped part of the exclusive jurisdiction of the ECrtHR to interpret the ECHR as the highest authority as is provided for in the ECHR. Conversely and as a reaction to the ECJ's seizure of jurisdiction to interpret the ECHR, the ECrtHR has asserted its jurisdiction to review the compatibility of Member States' acts implementing EC law with the ECHR, which essentially boils down to a review of EC law – including ECJ judgements – and its compatibility with the ECHR. Nonetheless, the recently signed European Constitution will further integrate fundamental rights into the Community legal order (or rather Union legal order as it will be called when the Constitution enters into force) in three ways. First, when the European Constitution enters into force it will make the Charter of Fundamental Rights, which contains a catalogue of fundamental rights that is comparable but not identical to the ECHR and that was signed as a non-legally binding document together with the Nice Treaty, legally binding. Second, Art. I-9 (2) European Constitution provides for an explicit legal basis for the Union to accede to the ECHR. Hence, the Union, including all its organs and thus also the ECJ, will be bound by the ECHR and the jurisprudence of the ECrtHR. Third, the European Constitution contains several provisions that intend to ensure that the ECJ's jurisprudence on fundamental rights does not fall below the standards set by the ECrtHR. Until then, the already existing concurrence of jurisdiction between the ECJ and the ECrtHR when it comes to the final determination of the level of protection of fundamental rights in Europe will continue to exist. So, the battle between the ECJ and ECrtHR over who is the primus inter pares will most likely continue in the future. (iv) Advisory opinion of the ECJ on international agreements Finally, one should remember the specific procedure of Art. 300 (6) ECT which allows the Member States, the European Parliament, the Council or the Commission to request an opinion of the ECJ prior to the signing of an international agreement regarding its compatibility with Community law. This procedure has enabled the ECJ to determine on several occasions fundamental aspects of the relationship between international law vis-à-vis EC law. In sum, it thus can be concluded that the jurisdiction of the ECJ extends to all policy areas that fall outside the exclusive competence of the EC Member States. Accordingly, one can describe the ECJ as 'pro-active' in the sense that it rather asserts and even extends its jurisdiction than to decline it, especially in order to preserve the unity and consistency of Community law. So even in borderline cases the ECJ prefers – if it can – to avoid any explicit delineation of the respective competences of the EC and its Member States in order to be to assert its jurisdiction. Hence, due to this broad jurisdiction of the ECJ, the ECJ has had ample opportunity to determine the relationship between Community law and international law, which will be discussed in more detail in the following paragraphs. 2. The ECJ jurisprudence on selected international law aspects It is not the intention to present an exhaustive analysis of the complete ECJ jurisprudence on international law, but rather to focus on a few selected international law aspects which have come before the ECJ repeatedly. Obviously, the areas of international law that are most likely to come before the ECJ are those that are (also) regulated by international law, in particular, by (mixed) international agreements and decisions of IOs. Accordingly, in the following paragraphs the jurisprudence of the ECJ regarding external trade, human rights and environment law will be analyzed in more detail. However, before doing so it is necessary to recall the legal status of international treaties and decisions of IOs in the Community legal order. The ECJ determined that that all international treaties ratified by the EC as well as decisions of IOs that fall within the competence of the EC become automatically integral part of the Community legal order. This applies even to treaties not ratified by the EC as was the case with the GATT 1947. Moreover, as to the legal status of international treaties and decisions of IOs within the Community legal order, the ECJ places them between primary and secondary Community law, i.e. below the EC Treaty but above Regulations, Directives etc. 2.1. External trade The heading 'external trade' encompasses both external trade as such (especially WTO agreements and Association Agreements) as well as trade and foreign policy, in particular, the implementation of UN Security Council Resolutions that impose economic sanctions. Accordingly, the jurisprudence of the ECJ regarding UN Security Council Resolutions will be discussed first before discussing the case-law of the ECJ concerning WTO law. 2.1.1 UN Security Council Resolutions The EU is not a member of the UN and it cannot currently become a member because the UN is only open to nation-states (Art. 4 UN Charter). Thus, from a formal legal point of view, the EU is not obliged to implement Security Council obligations. However, in several cases UN Security Council Resolutions have also called upon non-member states and international organizations to implement UN Security Council Resolutions. Accordingly, not being a member of the UN is apparently not considered to be an obstacle to creating an obligation to implement Security Council Resolutions. Indeed, since the beginning of the 1990's the EC has been implementing most UN Security Council Resolutions, thereby indicating that it is ready to implement them even without being a member of the UN. The basis for the implementation of UN Security Council Resolutions imposing economic and financial sanctions by the EC can be found in the exclusive competence of the EC in external trade matters (Art. 133, ex 113 EC Treaty). However, since the Maastricht Treaty entered into force in 1993, the implementation of UN Security Council Resolutions imposing economic sanctions has been formalized in the EU Treaty (TEU) and EC Treaty in a two-step procedure. In a first step, within the Common Foreign and Security Policy (CFSP, II. pillar)-decision-making process, the EU Member States reach a common position (Art. 15 TEU) or agree on a joint action (Art. 14 TEU). In a second step, the Council of the EC adopts the appropriate legal measures (mostly a Regulation) on the basis of Art. 301 ECT and, if the sanctions touch on the movement of capital and payments, on the basis of Art. 60 ECT. The EC Regulation is then published in the Official Journal of the EU and it is from that moment on directly applicable in all EU Member States. Accordingly, UN Security Council Resolutions are first implemented by European legislation before they enter the domestic legal order of the EU Member States, i.e. they are 'communitarized'. The ECJ has on several occasions dealt with the implementation of Security Council Resolutions within the EU and its Member States. Two groups of cases can be distinguished. The first group concerns cases involving the implementation of UN Security Council Resolutions by the EU and its Member States. The second group of more recent cases involves the question of non-contractual liability for unlawful acts adopted by the EU organs. The latter group of cases will not be discussed here. In the following cases, two questions have repeatedly come up. First, the question is whether and, if so, to what extent the EU Member States still have some residual competence concerning the implementation of UN Security Council Resolutions. Second and more recently, the question has come up whether and, if so, to what extent individuals have the possibility to obtain judicial review against EC/EU acts implementing UN Security Council Resolutions. One of the first cases involving the interpretation of EC acts implementing a UN Security Council Chapter VII Resolution was the Bosphorus-case. Bosphorus Airways is a Turkish charter company which leased – before sanctions were imposed against the Federal Republic of Yugoslavia (FRY) – for a period of 4 years two aircrafts owned by the national Yugoslav airline JAT. EC Regulation No. 990/93219 based on former Art. 113 (now 133) ECT (as a pre-Maastricht Treaty measure) intended to implement certain aspects of sanctions imposed against the FRY by Security Council Resolution 820 (1993) that provides in paragraph 24: 'that all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories in which a majority or controlling interest is held by a person or undertaking in or operating from the FRY […]'. Art. 8 of Regulation 990/93 contains the same wording: 'All vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro) shall be impounded by the competent authorities of the Member States.' The main issue was whether the term 'majority or controlling interest' was applicable in the present case where Bosphorus was solely responsible for the day-to-day operations of the leased aircrafts, while JAT remained owner of the planes without being involved in the operation of them. The ECJ – emphasizing the importance of the aims pursued by the UN Sanctions and the Regulation – applied a broad interpretation of the term 'majority or controlling interest' and concluded that Art. 8 of Regulation 990/93 is applicable also in the present circumstances. Soon afterwards, the Centro-Com-case came before the ECJ. This case involved the implementation of UN Security Council Resolution 757 (1992) by EC Regulation No. 1432/92 prohibiting Serbian or Montenegrian funds deposited in its territory from being released in order to pay for goods exported to those areas. Centro-Com is an Italian company that exported pharmaceutical goods and blood-testing equipment to Montenegro. The bills were to be paid from funds deposited with Barclays bank in the UK. The UK implemented Security Council Resolution 757 (based on the UN Act 1946) by 'Order 1992' which prohibits any person from supplying or delivering any goods to a person connected with Serbia and Montenegro – with the exception of medical supplies. Following reports of abuse of the authorization procedure established by the Sanctions Committee for the export of goods to Serbia and Montenegro, the UK Treasury decided to change its policy. Henceforth, payments from Serbian and Montenegrian funds held in the UK for exports of goods exempted from the sanctions, such as medical products, were to be permitted only where those exports were made from the UK. Since Centro-Com operated from Italy, Barclays bank was no longer allowed to transfer the requested funds to Centro-Com. The central issue in this case was whether the UK still retained some residual competence to adopt such measures after the EC had adopted Community law measures implementing Security Council Resolution 757. The ECJ accepted that: '24 The Member States have indeed retained their competence in the field of foreign and security policy. At the material time, their cooperation in this field was governed by inter alia Title III of the Single European Act.' But then concluded that: '27 Consequently, while it is for Member States to adopt measures of foreign and security policy in the exercise of their national competence, those measures must nevertheless respect the provisions adopted by the Community in the field of the common commercial policy provided for by Art. 113 [now 133] of the Treaty.' Thus, the remaining competence of the Member States to adopt measures in this policy area is severely limited in the sense that they must be in accordance with the relevant Community law measures. A few weeks later the ECJ handed down its judgment in the Ebony-case concerning – like the Bosphorus case – the implementation of Security Council Resolution 820 (1993) by Regulation 990/93. The UN Resolution and Regulation require all states to detain all vessels within their territory that might violate the embargo. A vessel flying the Maltese flag that was on its way to the FRY was detained by Italian authorities in international waters. The main issue in this case was whether the action on international waters was covered by the sanctions laid down in the Resolution and the Regulation. The ECJ concluded that for an effective implementation of the sanctions all traffic in Yugoslavian waters must be prevented, which includes also attempted entries into those waters by vessels that are still in international waters. More recently, several cases have come before the Court of First Instance (CFI) regarding the listing of persons and organizations who are suspected of having links with terrorist groups that is regularly done by UN Sanctions Committees and which are implemented by the EU and its Member States. For instance, in the Aden-case, an action against the Council and the Commission has been brought before the CFI by a number of Swedish nationals of Somali origin. On 15 October 1999, the UN Security Council adopted Resolution 1267 (1999), calling for inter alia sanctions against the Taliban, which were extended by Resolution 1333 (2000) to cover Osama Bin Laden and persons and bodies associated with him. On 6 March 2001, the Council adopted Regulation (EC) No 467/2001. Under Art. 2 of that Regulation all funds and other financial resources belonging to any natural or legal person, entity or body listed in Annex I are to be frozen. The UN Taliban Sanctions Committee of the Security Council decided to amend the list by adding several individuals and bodies, including the applicants. On the basis of Art. 10 of the Regulation, the Commission adopted Regulation (EC) No 2199/2001 giving effect to that decision. The applicants submitted that the Council Regulation, which required that the applicants' funds were to be frozen and that resources were not to be made available to them, exceeds the powers of the Council under Art. 60 and 301 ECT and is in breach of Art. 249 ECT. They argued that, by automatically copying the decision of the Sanctions Committee, the Council and the Commission have de facto delegated the power to the Taliban Sanctions Committee to determine which persons or organisations are included in Annex I. They further claimed that the Council and Commission had not examined the reasons why the Taliban Sanctions Committee included the applicants in its list nor were the applicants given any opportunity to apprise themselves of and refute the allegations on which the decision to include them in Annex I was based. The applicants had onerous sanctions imposed on them without any opportunity to defend themselves. The fundamental legal principle of the right to a fair and equitable hearing had been disregarded. Accordingly, the applicants asked the CFI in an interim procedure to annul the measures adopted by the Council and the Commission. However, the President of the CFI refused in the Aden as well as the Sison case to do so in the interim procedure because it did not considered it necessary to provide for interim measures in order to protect the rights of the applicants. Thus, it remains to be seen what the outcome will be in the main procedure and perhaps in a subsequent appeal procedure before the ECJ. In this context, it should be noted that within the framework of the 'war against terrorism', the EU has adopted on its own initiative similar measures against persons and groups having links with European terrorist groups such as the ETA and the PKK. The difference however is that in this case no EC Regulation was used to implement these measures but only II. and III. pillar measures against which there is no judicial review possible – at least by the ECJ and CFI, but perhaps by the ECrtHR. In other words, persons or groups that are affected by EU measures have even less possibilities available for judicial review than those affected by UN measures implemented by the EU! In summary, it can be concluded that despite the fact the EU is not member of the UN, most Security Council Resolutions imposing sanctions are implemented by first adopting a Common Position and then a Regulation. In this way, UN Security Council Resolutions are incorporated in the Community legal order, which in turn reduces the residual competence of the EC Member States almost totally while at the same a jurisdiction for the ECJ in this area is created. The ECJ interprets the EC Regulations implementing UN Security Council Resolutions very broadly with a view to ensuring the full effectiveness of them. As a consequence thereof, the ECJ and CFI are very reluctant to review EC/EU measures implementing UN Security Council Resolutions. 2.1.2 WTO law As is well known, the ECJ has always rejected any direct effect of GATT provisions both under the GATT 1947 as well as under the WTO regime. Concerning the question of whether GATT 1947 provisions could have direct effect, the ECJ held in the International Fruit Company-case that: '20 For this purpose, the spirit, the general scheme and the terms of the general agreement must be considered. 21 This agreement which, according to its preamble, is based on the principle of negotiations undertaken on the basis of "reciprocal and mutually advantageous arrangements" is characterized by the great flexibility of its provisions, in particular those conferring the possibility of derogation, the measures to be taken when confronted with exceptional difficulties and the settlement of conflicts between the contracting parties.' In contrast, the Italian Constitutional Court, before it had to follow the ECJ case-law, was of the opinion that certain GATT 1947 provisions could be directly applicable. Nonetheless, from 1972 up until the entering into force of the WTO Agreement, the ECJ has repeated its position that the provisions of the GATT 1947 are not directly applicable. With regard to the agreements annexed to the WTO Agreement, in particular GATT 1994, GATS and TRIPS, the ECJ observed in the Portugal v. Council-case : '36 While it is true that the WTO agreements, as the Portuguese Government observes, differ significantly from the provisions of GATT 1947, in particular by reason of the strengthening of the system of safeguards and the mechanism for resolving disputes, the system resulting from those agreements nevertheless accords considerable importance to negotiation between the parties. [...] 40 Consequently, to require the judicial organs to refrain from applying the rules of domestic law which are inconsistent with the WTO agreements would have the consequence of depriving the legislative or executive organs of the contracting parties of the possibility afforded by Article 22 of that memorandum [DSU] of entering into negotiated arrangements even on a temporary basis. [...] 42 As regards, more particularly, the application of the WTO agreements in the Community legal order, it must be noted that, according to its preamble, the agreement establishing the WTO, including the annexes, is still founded, like GATT 1947, on the principle of negotiations with a view to "entering into reciprocal and mutually advantageous arrangements" and is thus distinguished, from the viewpoint of the Community, from the agreements concluded between the Community and non-member countries which introduce a certain asymmetry of obligations, or create special relations of integration with the Community, such as the agreement which the Court was required to interpret in Kupferberg. [...] 46 To accept that the role of ensuring that Community law complies with those rules devolves directly on the Community judicature would deprive the legislative or executive organs of the Community of the scope for manoeuvre enjoyed by their counterparts in the Community's trading partners. 47 It follows from all those considerations that, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions.' Thus, while the ECJ acknowledged that the WTO Agreement strengthened in particular the dispute settlement mechanism, it still rejects any direct effect of WTO law in the Community legal order. Indeed, it even declines to review the legality of EC measures vis-à-vis WTO law, which means that WTO law cannot be invoked either by EC Member States nor by private parties before the European Courts in order to challenge the legality of Community measures. There are only two exceptions to that. First, if a provision of the WTO agreements falls within the exclusive competence of the Member States, then domestic courts are allowed to grant direct effect if they see fit. The ECJ stated this quite clearly in its Dior/Assco-ruling regarding TRIPS provisions: '44 For the same reasons as those set out by the Court in paragraphs 42 to 46 of the judgment in Portugal v Council, the provisions of TRIPS, an annex to the WTO Agreement, are not such as to create rights upon which individuals may rely directly before the courts by virtue of Community law.' […] '48 [...] in a field in respect of which the Community has not yet legislated and which consequently falls within the competence of the Member States, the protection of intellectual property rights, and measures adopted for that purpose by the judicial authorities, do not fall within the scope of Community law. Accordingly, Community law neither requires nor forbids that the legal order of a Member State should accord to individuals the right to rely directly on the rule laid down by Article 50 (6) of TRIPS or that it should oblige the courts to apply that rule of their own motion'. Hence, in the absence of Community legislation, the courts of the Member States are not prevented by Community law from according direct effect to a provision of an international agreement or binding decision of an IO that falls within their competence – regardless of the existence of a deviating case-law of the ECJ or CFI. Second, direct effect of WTO law is possible if a Community law act explicitly refers to the agreements annexed to the WTO Agreement or is intended to implement obligations arising out of these agreements. This is the so-called Nakajima/Fediol-rule established by the ECJ in 1989/91, which was summarized by the CFI as follows: '58 In that regard, it is only where the Community intends to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the agreements contained in the annexes to the WTO Agreement, that it is for the Court of Justice and the Court of First Instance to review the legality of the Community measure in question in the light of the WTO rules (see Portugal v Council, paragraph 49). 59 Neither the reports of the WTO Panel of 22 May 1997 nor the report of the WTO Standing Appellate Body of 9 September 1997 which was adopted by the Dispute Settlement Body on 25 September 1997 included any special obligations which the Commission 'intended to implement', within the meaning of the case law, in Regulation No 2362/98 (see with regard to the 1947 GATT, Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 31). The regulation does not make express reference either to any specific obligations arising out of the reports of WTO Bodies, or to specific provisions of the agreements contained in the annexes to the WTO Agreement.' In the very recent Chiquita-case , the CFI applied the Nakajima/Fediol-rule in an even more restrictive way, as the following considerations of the ruling illustrate. First, the CFI reminded us that so far the Nakajima/Fediol-conditions have only been applied in WTO anti-dumping cases. It therefore asked itself whether it is at all possible to apply them to cases involving other areas of WTO law. The CFI then concluded that: '124 The applicant rightly argues that application of the Nakajima case-law is not, a priori, limited to the area of anti- dumping. It is capable of being applied in other areas governed by provisions of the WTO Agreements where those agreements and the Community provisions whose legality is in question are comparable in nature and content to those just referred to above concerning the Anti-Dumping Codes of the GATT and the anti-dumping basic regulations which transpose them into Community law. 125 Therefore, the condition for applying the Nakajima case-law to the effect that the Community measure whose legality is challenged must have been adopted for the purpose of 'implementing a particular obligation assumed in the context of the WTO Agreements' requires, in particular, that that measure specifically transposes prescriptions arising from the WTO Agreements into Community law.' Then the CFI turned to the application of the Nakijima/Fediol-rule with regard to WTO dispute settlement reports vis-à-vis Community law. The CFI argued that: '161 Even if the applicant's line of argument could be interpreted as seeking to rely on infringement by the Community of its obligation to implement the recommendations or rulings of the DSB, it cannot be accepted. Even though the Commission considers – having regard to international law – that the DSU requires the losing party to bring a measure declared incompatible by a DSB ruling into compliance with the WTO Agreements, that obligation to ensure the conformity of internal measures with international undertakings arising from the WTO Agreements is undoubtedly of a general character, which contrasts with the rules of the Anti-Dumping Codes. Therefore, it cannot be relied on for the purposes of applying the Nakajima case-law. 162 Moreover, without it being necessary to enquire what the possible consequences as regards compensating individuals would be of non-implementation by the Community of a DSB ruling finding a Community measure incompatible with WTO rules, a question which the applicant has not expressly raised independently of that concerning the application of the Nakajima case-law, it is sufficient to point out that the DSU does not establish a mechanism for the judicial resolution of international disputes by means of decisions with binding effects comparable with those of a court decision in the internal legal systems of the Member States. The Court of Justice has held that, interpreted in the light of their subject-matter and purpose, the WTO Agreements do not prescribe the appropriate legal means for ensuring that they are applied in good faith in the legal order of the contracting parties. The Court has stated that, despite the strengthening of the mechanism for resolving disputes resulting from the WTO Agreements, that mechanism nevertheless accords considerable importance to negotiation between the parties (Portugal v Council, paragraph 36). [..] 163 That conclusion cannot be confined to cases where the reasonable period laid down by Article 21.3 of the DSU for implementing DSB recommendations or rulings has not yet expired. […] 166 The Community judicature cannot therefore review the legality of the Community measures in question without depriving Article 21.6 of the DSU of its effectiveness, particularly in the case of an action for compensation under Article 235 EC, for as long as the question of implementing the recommendations or rulings of the DSB is not resolved, including, as provided in Article 22.8 of the DSU, 'those cases where compensation has been provided or concessions or other obligations have been suspended but the recommendations to bring a measure into conformity with the covered agreements have not been implemented' (see, by analogy, Case C-93/02 P Biret International v Council [2003] ECR I- 10497, paragraph 62, and Case C-94/02 P Biret v Council [2003] ECR I-10565, paragraph 65). [...] 170 In the light of the above, the Court holds that, in adopting the 1999 regime, and Regulation No 2362/98 in particular, the Community did not intend to implement a particular obligation assumed in the context of the WTO Agreements within the meaning of the Nakajima case-law. Therefore, the applicant is not in a position to plead infringement by the Community of its obligations under the WTO Agreements.' However, one immediately ask one's self: What reason would there be of adopting Regulation No 2362/98 other than modifying the basic banana Regulation No 404/93 so as to bring it in line with the WTO dispute settlement report? More generally, as to the reasoning of the CFI, it is submitted that it is not convincing. This reasoning would enable the EC organs to prevent any review of legality of their acts that are somehow connected with the WTO agreements and/or WTO dispute settlement reports by simply avoiding any explicit reference to them or concealing the fact that they are intended to implement WTO obligations. This purely formalistic approach can hardly be considered to be in line with the Community law principle that ensures full review of Community law acts by granting a right to an effective remedy as one of the fundamental rights protected by the ECJ and CFI. The CFI itself emphasized the importance of this right by stating: '121. In this connection, the Court of Justice has stated that access to justice is one of the constitutive elements of a Community based on the rule of law and is guaranteed in the legal order based on the EC Treaty in that the Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions (Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23). The Court of Justice uses the constitutional traditions common to the Member States and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a basis for the right to obtain an effective remedy before a competent court (Case 222/84 Johnston [1986] ECR 1651, paragraph 18).' It is obvious that the formalistic approach of the CFI makes the actual exercise of the right of an effective remedy against Community law measures, which are somehow connected with WTO obligations but which do not explicitly state that, dependent on the preferences of the legislative and executive organs of the EC. This can hardly be reconciled with the basic task of the ECJ and CFI as enshrined in Art. 220 ECT, namely, to ensure that the law is observed. Indeed, in this context the ECJ explicitly stated that: '52 When the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the Treaty. Likewise, an implementing regulation must, if possible, be given an interpretation consistent with the basic regulation (see Case C- 90/92 Dr Tretter v Hauptzollamt Stuttgart-Ost [1993] ECR I-3569, paragraph 11). Similarly, the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.' Accordingly, the scope of the term 'law' of Art. 220 ECT includes clearly also international law that is integral part of the Community legal order and that must be observed by the ECJ. In any case, if the Chiquita-ruling would be confirmed by the ECJ, then the invocability of WTO law even within the strict limits of the Nakajima/Fediol-rule is almost impossible. The CFI indicated that it is not prepared to change its position on rejecting any direct effect or even invocability of WTO law before European courts. This is in sharp contrast with the position of Advocate General Alber in the Biret-case that was adjudicated a year prior to the Chiquita-case. In his opinion AG Alber invited the ECJ to relax its position a little bit by accepting direct effect of WTO law for the purpose of being able to start a procedure against the EC if the EC has failed to implement a WTO dispute settlement report after the implementation deadline has passed. In its judgement the ECJ could avoid dealing with this issue for factual reasons. However, the ECJ explicitly left the question open whether in a case in which the factual circumstances were different direct effect of a WTO dispute settlement report could be possible. So, it seemed as if the ECJ would finally bow to the heavy criticism and at last grant direct effect – albeit to a limited extent. But that was wishful thinking considering the Chiquita-ruling of the CFI and the most recent judgement of the ECJ in the van Parys-case. In the van Parys-case, the ECJ followed completely the CFI's Chiquita-ruling so that the hopes raised by the AG Alber in the Biret-case were totally unfounded. In other words, it is still almost impossible to invoke WTO law or even WTO dispute settlement reports before the European courts. In sum, it can be concluded that the jurisprudence of the ECJ has become more restrictive on certain aspects of international trade law. Firstly, the ECJ restricted the ATER-ruling and thus the possibility of the EC to claim exclusive competence in external trade issues. Second, the ECJ and CFI continue to stick to their long-standing jurisprudence regarding WTO law. In contrast, the ECJ is much more willing to grant direct effect of provisions of Association Agreements. This difference in approach cannot be explained by purely legal arguments but rather by the economic and political implications connected with WTO law. The ECJ made it quite clear that it considers it necessary to show judicial restraint in order not to reduce the room of negotiation of the Commission when it comes down to negotiate compensation for failing to implement WTO dispute settlement reports if the Commission and Council so decide. In other words, the ECJ and CFI jurisprudence on WTO law has been certifying the inconsistency of EC law measures with WTO law. In this way the European courts are clearly deviating from the binding rulings of the WTO dispute settlement system. Consequently, the same legal issues are interpreted in a diametrically opposing way. 2.2. Human rights From the outset it must be emphasized that despite the fact that the EC is not a contracting party to the European Convention of Human Rights (ECHR) and cannot become a party to it as the law currently stands, the ECJ has been interpreting the ECHR for many years. In the ERT-case , the ECJ summed up the importance of the ECHR within the Community legal order as follows: '41 With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth questions, it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories (see, in particular, the judgment in Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13). The European Convention on Human Rights has special significance in that respect (see in particular Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). It follows that, as the Court held in its judgment in Case 5/88 Wachauf v Federal Republic of Germany [1989] ECR 2609, paragraph 19, the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.' This is in effect has also been enshrined in Art. 6 (2) in conjunction with 46 (d) TEU by subsequent treaty revisions. In the most recent case-law of the ECJ, a new development can be identified since the ECJ no longer uses the reference 'source of inspiration' but rather applies the ECHR directly as if it were an integral part of the Community legal order. As a consequence thereof, the ECHR and the case- law of the ECrtHR enjoy primacy over conflicting secondary Community law and all national law of the EU Member States. This close relationship leads to an increased interaction between the ECJ and ECrtHR, which can also lead to divergent interpretations of the fundamental rights enshrined in the ECHR. Both aspects will be discussed in the following paragraphs by analyzing several relevant cases of both courts. (i) Interaction between the ECJ and the ECrtHR The Baustahlgewebe-case is an illustrative example of how the ECJ applies the ECHR. In that case, the ECJ accepted the claim of the appellant – who relied on Art. 6 ECHR – that the Court of First Instance failed to conclude the case within a reasonable time. Also the Krombach-case , in which the ECJ held that Art. 6 ECHR is violated if a court of one EU Member State executed a judgment of another EU Member State in which the defendant has no right to defend himself before the court of origin, is a good example of how the ECJ applies the ECHR. More recently, the ECJ accepted in its Schmidberger-ruling that the freedom of expression and of assembly as protected by Art. 10, 11 ECHR could justify a restriction of the free movement of goods as protected by Art. 28, 30, 34 read together with Art. 5 ECT. Thus, when the ECJ applies the ECHR and the rulings of the ECrtHR, they are brought into the 'orbit' of Community law. As a result, the ECHR and the case-law of the ECrtHR obtain Community law features such as supremacy over all domestic law of the EC Member States and possible direct effect. In other words, all national measures of the Member States that fall within the 'field of application of Community law' are subject to the European courts' interpretation and application of the ECHR. Consequently, the ECJ has seized jurisdiction to interpret and apply the ECHR – in all cases in which a measure falls within the 'field of application of Community law', whereas formally, the ECrtHR is the only competent organ to interpret the ECHR. In the meantime, the ECrtHR has reasserted its competence by also reviewing measures of the Contracting Parties (which are at the same time members of the EC) that implement EC law, which is essentially an indirect review of Community law acts. In the Cantoni-case , the ECrtHR explicitly stated that the fact that a national provision is based almost literally on an EC Directive 'does not remove it from the ambit of Art. 7 ECHR', thus enabling the ECrtHR to review such a measure. In the Matthews-case , the ECrtHR held the UK responsible for failing to allow elections to the European Parliament to be held in Gibraltar. While the Strasbourg Court observed that EC acts as such cannot be challenged before the ECrtHR because the EC is not a Contracting Party of the ECHR, it nevertheless emphasized that, even though the ECHR does not prevent the transfer of competences to international organizations, the Contracting Parties continue to be responsible that the rights provided by the ECHR are secured after such a transfer. In the Bosphorus-case , which has been admitted by the ECrtHR but is still pending for final determination, the ECrtHR will examine whether UN Security Council sanctions implemented by the EC through EC Regulations and executed by Ireland by national measures violated Art. 1 of Protocol No. 1 of the ECHR which protects the right of peaceful enjoyment of possessions. In this case, Bosphorus, a Turkish company, was leasing several aircrafts from the state-owned Yugoslav company JAT. After the imposition of economic sanctions against the FRY by UN Security Council Resolutions, an aircraft of Bosphorus was impounded by Irish authorities in order to give effect to the sanctions. Bosphorus appealed against the impoundment of the aircraft before Irish courts, one of which requested a preliminary ruling from the ECJ as regards the legality of the measure in view of the fact that Bosphorus was fully in control of the day-to-day business of the aircraft, while the Yugoslav owner had no influence at all on the business of Bosphorus. The ECJ ruled that the implementation of UN sanctions prevails even if property rights are affected. Subsequently, Bosphorus brought the case before the ECrtHR arguing that Art. 1 of Protocol 1 of the ECHR (peaceful enjoyment of possessions) was violated by Ireland when giving effect to the UN sanctions, Community law and the judgement of the ECJ. The ECrtHR admitted the case in September 2001 , while the oral hearing before a Grand Chamber took place only in September 2004, that is 3 years later (!). The judgment in substance is expected any moment soon. The interesting aspect of this case is that incidentally the ECrtHR will review inter alia the conformity of the Community measure implementing the UN sanctions against FRY as well the judgement of the ECJ with the ECHR. The fact that the ECrtHR admitted the case indicates that it is possible that the ECrtHR will render a conflicting judgement compared to the one of the ECJ regarding the same matter. Another example of the interaction between the ECJ and the ECrtHR is the Senator Lines-case. Senator Lines and several other maritime transport companies were fined by the Commission for infringing the competition rules of the EC Treaty. In its decision the Commission indicated that in case the companies would appeal against the decision of the Commission, the Commission would not enforce its decision the period in which the proceedings take place if the companies provide bank guarantees that cover the amount of the fines plus interest rates. Due to the high amount of the fines and their bad financial situation Senator Lines and the other companies were unable to secure appropriate bank guarantees. Consequently, in an interim procedure the maritime companies appealed against the requirement of having to provide bank guarantees in order to avoid having to pay the fine before a final decision in substance has been rendered by the European courts. However, the appeal asking for interim measures was rejected by the President of the CFI. The companies again appealed against that decision but this was also rejected by the President of the ECJ. At the same time Senator Lines started a procedure before the ECrtHR against all (at that time) 15 EC Member States claiming that Art. 6 ECHR (access to court) has been violated by the Commission because it was required to pay the fine before a decision in substance had been taken by the European courts. In the meantime, the CFI ruled in the substance of the case that the fines have not to be paid by the companies. In turn, the President of the ECrtHR cancelled the oral hearing in the Senator Lines case by apparently assuming that the case was decided in fine. In its subsequent decision as to the admissibility of the Senator Lines-case, the Grand Chamber of the ECrtHR came to the following conclusion: 'The Court observes that the present application concerns proceedings which had not ended when the application was introduced. The principal complaint was of a denial of access to court. The applicant company claimed that, if the fine imposed on it were enforced before the proceedings had been judicially determined, then its access to court would have been denied. In so doing, the applicant company was relying, in substance, on the above-mentioned Segi and Gestoras Pro-Amnistia and Others case law, namely that it had produced reasonable and convincing evidence of the likelihood that a violation affecting it would occur. As events transpired, the fine imposed on the applicant company was neither paid nor enforced, and the applicant company's challenge to the fine (along with the related challenge by other companies) was not merely heard, but ended with the final quashing of the fine. Accordingly, the facts of the present case were never such as to permit the applicant company to claim to be a victim of a violation of its Convention rights. By the time of the "final decision" in the case – the CFI's judgment of 30 September 2003 – it was clear that the applicant company could not produce "reasonable and convincing" evidence of the likelihood that a violation affecting it would occur, because on that date it was certain that there was no justification for the applicant company's fear of the fine being enforced before the CFI hearing. It follows, whatever the merits of the other arguments in the case, that the applicant company cannot claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention, and that the application is to be rejected, pursuant to Article 34 and Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously declares the application inadmissible.' However, it seems to the present author that the decision – at that time – of the President of the ECHR to cancel the oral hearing was taken prematurely since the ruling of the CFI in substance could still have been appealed by the parties before the ECJ. Accordingly, it would have been possible that the ECJ could overturn the ruling of the CFI which would mean that the companies would still have had to pay the fines. Apparently, no appeal was lodged. Nonetheless, this case illustrates how the decisions of the ECJ and CFI on the one hand and the ECrtHR on the other hand interact with each other and thus influence the outcome of the various proceedings. Besides, and in contrast to the Cantoni and Matthews cases in which the proper implementation of EC law caused a violation of the ECHR, the ECrtHR also ensures that Contracting Parties of the ECHR which are members of the EU fulfil their obligations under Community law as far as the provisions of the ECHR are concerned. Accordingly, in a case against Greece the ECrtHR ruled that: '45. By refraining for more than five years from taking the necessary measures to comply with a final, enforceable judicial decision [ECJ judgement C-147/86 (Commission v Greece), ECR 1988, p. 1637] in the present case the Greek authorities deprived the provisions of Article 6 para. 1 of the Convention of all useful effect.' More recently, in the Dangeville-case , the ECrtHR considered the failure of France to properly implement an EC tax Directive as a violation of the right to property as enshrined in the 1st Protocol to the ECHR. Thus, there is an interaction between the ECrtHR and the ECJ that can enhance the overall protection level of the ECHR, but can also lead to divergent interpretations of the ECHR, especially since both courts are not bound by each other's interpretation. (ii) Divergent jurisprudence In a few cases a divergent interpretation between the ECJ and the ECrtHR exists. However, the most recent case-law suggests that the existing differences are being reduced by a slow convergence of their respective jurisprudence. For instance, there is the interpretation adopted by the ECJ in the Hoechst-case as compared with the position of the ECrtHR in the Niemietz-case regarding the question of whether or not business premises that have been searched are protected by Art. 8 ECHR. Whereas the ECJ determined that the scope of Art. 8 ECHR could not be extended to business premises, the ECrtHR adopted a much broader view by ruling that Art. 8 ECrtHR also covers professional offices. Although, it must be admitted that there is a difference between business premises and premises of professionals such as lawyers, it is interesting to note that the ECJ did not take this development into account in its case- law. Be that as it may, more recently, the ECrtHR explicitly stated in the Colas Est-case that 'under certain circumstances' Art. 8 ECHR is applicable to business premises and indeed a Chamber of seven judges unanimously ruled that in this case France violated Art. 8 ECHR by ordering the search of business premises without a prior authorization of a judge. A few months later, the ECJ – while repeating its position adopted in the Hoechst-case – took note in a preliminary consideration of the Cola Est-ruling of the ECrtHR without, however, making clear whether or not the extension of the scope of Art. 8 ECHR is also applicable to measures that fall within the 'field of application of Community law'. Thus, it must be concluded that, while it is clear that the ECJ did not ignore the importance of the Colas Est-ruling of the ECrtHR, it failed to indicate whether it follows the ECrtHR and thus establishing a convergence between the case-law of both courts. In the Orkem-case , the ECJ adopted a more restricted approach regarding the right not to give evidence against oneself by denying the application of Art. 6 ECHR to undertakings, while in the Funke-case , the ECrtHR could not find a justification for denying that right to undertakings. More recently, the issue of the position of Advocate Generals (AG), Commissaire du Gouvernement and comparable advisory functions concerning their role and influence on the decision-making process of a court has been judged upon in the context of Art. 6 ECHR by the ECrtHR and the ECJ. In a series of cases, the ECrtHR has clearly established that the impossibility for the parties to respond to the opinion of Advocate Generals, Commissaire du Gouvernement, etc. and the fact that, in some cases, they participate in the deliberations of the court (even without having the right to vote), violates the right of adversarial proceedings as enshrined in Art. 6 ECHR. This case-law of the ECrtHR covers penal, civil, social and administrative law procedures. In contrast, in the Emesa Sugar-ruling the ECJ determined that the existing impossibility to respond to the European AG is not affected by the ECHR and the jurisprudence of the ECrtHR. The ECJ emphasized that: '16 Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court's Advocates General.' Although it is admitted that the situation of the European AG is not entirely the same compared to national AGs, in principle they perform the same task, namely, to submit an independent opinion that advises and accordingly influences the court. That is also underlined by the fact that in a large majority of cases the ECJ follows the opinion of the AGs. Thus, there are no fundamental differences between the system of the European AG and national AGs that would convincingly justify the deviating approach of the ECJ. The divergence between the case-law of both courts has only been partly reduced by the Kress-judgment of the ECrtHR. In this case, which concerned the role of the Commissaire du Gouvernement before the French Conseil d'Etat, the ECrtHR found a violation of Art. 6 ECHR only insofar as the Commissaire du Gouvernement is often present at the deliberations of the Conseil d'Etat, while it considered the existing possibility to reply to the submissions of the Commissaire du Gouvernement by means of a memorandum to the Conseil d'Etat to be compatible with Art. 6 ECHR. Whereas the incompatibly of the European system with Art. 6 ECHR lies in the fact that – as the ECJ repeated again – parties to a procedure before the ECJ are prohibited from responding to the opinion delivered by the AG. In this context, it should be noted that the AG never participates in the deliberations of the ECJ. In the meantime, Emesa Sugar brought the case before the ECrtHR arguing that the ECJ's rejection to allow parties to respond to the opinion of the AG amounts to a violation of Art. 6 (1) ECHR (fair hearing). The ECrtHR recently determined that the complaint is inadmissible, since the dispute concerned taxes and thus did not fall within the scope of 'civil rights and obligations' of Art. 6 ECHR. Consequently, the ECrtHR managed to avoid to deal with the main issue of the case. Hence, the question whether or not the Rules of Procedure of the ECJ are in conformity with the ECHR and the jurisprudence of the ECrtHR remains unanswered – at least for the time being. Nevertheless, it should be noted that in some cases the ECJ has adopted a more liberal approach than the ECrtHR. That is, for example, the case concerning the application of fair trial principles as contained in Art. 6 ECHR in staff cases. While in the Dufay and Johnston -cases the ECJ applied them to staff members, the ECrtHR did not apply them in the Neigel , Lombardo , Massa and Pellegrin -cases. More recently, in the Carpenter-case , the ECJ interpreted several elements of Art. 8 ECHR more dynamically than the ECrtHR. For instance, the ECJ accepted that the element 'family life' exists even though Mrs. Carpenter was raising the children of Mr. Carpenter that were born out of his first marriage with another woman. Apparently, only in one (unpublished) case before the European Commission of Human Rights was this situation considered as meeting the condition of 'family life'. Moreover, the ECJ also adopted a more dynamic approach when it accepted the denial of a residence permit as an interference with the 'family life', whereas in the case-law of the Strasbourg court that is not the case. Finally, the ECJ accepted the right of the Carpenters to choose their residence, whereas the ECrtHR stated that Art. 8 ECHR does not oblige the Contracting Parties of the ECHR to respect the choice of married couples of the country of their matrimonial residence nor to accept the non-national spouses for settlement in that country. In sum, it can be concluded that a complex interaction between the ECJ and ECrtHR takes place. In most cases the ECJ interprets the ECHR in line with the jurisprudence of the ECrtHR, so even in the case of concurrent jurisdiction between both courts, not many conflicts arise. Indeed, the 'communitarization' of the ECHR and the jurisprudence of the ECrtHR into the Community legal order by the ECJ, must be welcomed since it upgrades its legal status within the EC Member States and thus increases the enforceability of it. However, if there is a divergent jurisprudence between both courts, difficult problems arise in terms of the fundamental question which court is the highest and final authority which determines the level of fundamental rights protection in Europe. The entering into force of the European Constitution will most likely not resolve the issue of concurrence of jurisdiction between the ECJ and the ECrtHR. Whereas on the one hand, accession of the EU to the ECHR is explicitly provided for thereby submitting the ECJ to the final authority of the ECrtHR, the Constitution will make the Charter of Fundamental Rights legally binding, so that the EU will finally have its own catalogue of fundamental rights that will be interpreted in fine by the ECJ. However, at the same time the Constitution requires from the ECJ not to fall below the standards of fundamental rights protection as set by the ECrtHR when it interprets similar provisions of the Charter of Fundamental Rights. And finally, the ECrtHR retains the right to review Member States' acts implementing EC law as to their conformity with the ECHR. In other words, the complexity and intensity of the interaction between the ECJ and ECrtHR is going to increase rather then reduced or even resolved. Indeed, one should keep in mind that the situatition is further complicated by the existence of several other international human rights treaties such as the International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Convention against Torture etc. – with some of them having their own (optional) dispute settlement mechanisms. 2.3. Environmental law Over the past decades a large number of international agreements covering practically all aspects of environmental law have been concluded on the global as well as on the regional level. Most of those multilateral environmental agreements (MEAs) establish organs (Conference or Meeting of Parties, COP/MOP) that are able to adopt binding decisions. Furthermore, some MEAs also provide for various dispute settlement mechanisms such as establishing permanent courts (e.g. ITLOS) or providing for the possibility of establishing arbitral tribunals (e.g. OSPAR, UNCLOS) or providing for the possibility to bring the dispute the ICJ (e.g. UNCLOS). The EC has become party – together with some or all of the EC Member States – to many important MEAs, for instance, the UNCLOS, OSPAR, Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer, the Basle Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal and the United Nations Framework Convention on Climate Change. Moreover, the EC has adopted extensive legislation in the field of environmental law and is also – often besides the EC Member States – party to many MEAs and thus involved in the implementation of the decisions adopted within MEAs. Indeed, since most MEAs are concluded by the EC together with its Member States as mixed agreements, the legal implications of mixed agreements must be kept in mind. In accordance with the principles applicable to mixed agreements, all parts of the MEAs that do not fall within the exclusive competence of the Member States become an integral part of the Community legal order. As a result, they obtain the Community law characteristics of supremacy over conflicting secondary Community law and all national law of the EU Member States as well as possible direct effect if they fulfil the criteria established by the ECJ. A contrario, if an MEA falls within the exclusive competence of the EC Member State because the EC is not party to it or because it has not obtained competence by adopting Community legislation in that field, than the jurisdiction of the ECJ is excluded. Despite the fact that the EC has been actively involved in international environmental law, so far only few cases involving MEAs directly have come before the ECJ. One explanation for that is that practically all binding obligations arising out of MEAs require additional implementing acts by the EC and in many cases also by the EC Member States. In this context, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an interesting example of how a MEA is incorporated and thus 'communitarized' into the Community legal order. Even though the EC is not a contracting party to the CITES, it incorporated the CITES through the adoption of Regulation 3626/82 into the Community legal order. As a consequence thereof, the CITES has been transformed into ordinary EC law from the point of view of the EC Member States. Accordingly, the ECJ stated with regard to its jurisdiction to interpret the CITES: '23 It may be observed, first, that under Article 1(1) of Regulation No 3626/82, CITES applies in the Community under the conditions laid down in that regulation, and that Regulation No 338/97, as stated in the second recital in its preamble, replaces Regulation No 3626/82. 24 Therefore, without there being any need to determine whether the Court has jurisdiction, in the context of the cooperation between it and the national courts under Article 234 EC, to rule on the interpretation of the provisions of CITES, such an interpretation is in any event unnecessary in the present case, since those provisions apply at Community level only via the two regulations cited in the preceding paragraph. 25 However, since Regulation No 3626/82 and Regulation No 338/97 both apply, as stated in the second paragraph of Article 1 in each case, in compliance with the objectives, principles and (in the case of Regulation No 338/97) provisions of CITES, the Court cannot disregard those elements, in so far as they have to be taken into account in order to interpret the provisions of the regulations.' Nonetheless, in most cases the implementing acts rather than the MEAs are challenged primarily before the domestic and some times before the European courts. As regards the legal effect of MEAs in the Community legal order, the ECJ emphasized in its Opinion on the Cartagena Protocol , the differences between WTO agreements on the one hand, and MEAs on the other hand, when it stated: '52. It is common ground that, as a rule, the lawfulness of a Community instrument does not depend on its conformity with an international agreement to which the Community is not a party, such as the EPC. Nor can its lawfulness be assessed in the light of instruments of international law which, like the WTO agreement and the TRIPS and TBT agreements which are part of it, are not in principle, having regard to their nature and structure, among the rules in the light of which the Court is to review the lawfulness of measures adopted by the Community institutions (Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraph 47). [1999] ECR I-8395, paragraph 47). 53. However, such an exclusion cannot be applied to the CBD [Convention on Biodiversity], which, unlike the WTO agreement, is not strictly based on reciprocal and mutually advantageous arrangements (see Portugal v Council, cited above, paragraphs 42 to 46). 54. Even if, as the Council maintains, the CBD contains provisions which do not have direct effect, in the sense that they do not create rights which individuals can rely on directly before the courts, that fact does not preclude review by the courts of compliance with the obligations incumbent on the Community as a party to that agreement (Case C-162/96 Racke [1998] ECR I-3655, paragraphs 45, 47 and 51).' Accordingly, the ECJ treats international environmental agreements more favourably than, for instance, the WTO agreements regarding their suitability to be used as a basis for reviewing the conformity of Community law with them. More recently, the ECJ had the opportunity to pronounce itself on the direct effect of Art. 6 (3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based sources of the Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention). In this case, a syndicate of local fishers complained against discharges of EDF (an electricity producer) that were polluting the l'etang de Berre by invoking Art. 6 (3) of the Protocol before the domestic French court. The Cour de Cassation stayed the proceedings and requested a preliminary ruling from the ECJ on the question whether or not Art. 6 (3) of the Protocol has direct effect. The ECJ applied the same criteria as it has developed to determine the direct effect of provisions of international agreements and decisions of organs of IOs, i.e. the wording of the provision must be clear, precise and unconditional as well as the purpose and nature of the agreement. Without any difficulties the ECJ ruled that Art. 6 (3) of the Protocol lays down clear, precise and unconditional obligations as to discharges of certain substances. This finding is – according to the ECJ – also supported by the purpose and nature of the Protocol. Thus, the fishers successfully relied directly on a provision of a MEA before a domestic court in order to enforce the obligations arising out of the MEA against another party. Besides, the same considerations also apply to the relevant decisions of the MOP established by the Protocol. Moreover, it should be noted that in a different procedure instituted by the Commission against France, the ECJ condemned France for failing to implement the very same Convention and Protocol. In sum, the case of the syndicate illustrates that if a provision of a MEA meets the conditions of direct effect, the ECJ will readily grant direct effect. Moreover, a lack of direct effect of a provision of a MEA does not preclude a review by the ECJ of Community law vis-à-vis obligations arising out of MEAs. While this 'MEA-friendly' approach of the ECJ enhances the enforceability of international environmental norms, it at the same time raises the possibility that the same dispute is adjudicated by various international courts and tribunals. 3. Conclusion The analysis of the previous section on the jurisdiction of the ECJ and CFI illustrates that their jurisdiction regarding international law is far-reaching and thus the potential for concurrent jurisdiction with other international courts and tribunals is high. In particular, in the areas of international law where other dispute settlement mechanisms exist and are used, for example, in the area of WTO law, human rights and increasingly international environmental law, the possibility of concurrent jurisdiction is real. As long as the ECJ jurisprudence is in line with the jurisprudence of the other international courts and tribunals, there is no problem with the phenomenon of concurrence of jurisdiction. In fact, if the ECJ incorporates that decision into the Community legal order (i.e., 'communitarizes' the decision), it even enhances its legal status and enforceability in the Community legal order as well as in the legal orders of the EC Member States because that decision suddenly enjoys supremacy over all domestic law. However, the problem starts when divergent or even conflicting decisions are rendered by the various international courts/tribunals and European courts concerning the same dispute. For instance, if the ECJ refuses to take into account the decision of the another international court/tribunal – such as in the case of the WTO dispute settlement reports on bananas and hormones – then by virtue of the supremacy of EC law, the EC Member States are forced to violate their international obligations because they are obliged to give effect to judgements of the ECJ. This in turn raises problems of liability of the EC Member States vis-à-vis the other WTO members as well as issues of pacta sunt servanda as regards the proper implementation of binding WTO law obligations and thus the execution of legal obligations in good faith. IV. The consequences of the concurrence of jurisdiction After having set out the framework for the International and European law level, this section will turn to the actual practice by presenting two case-studies in order to illustrate the problems that are associated in case of competing jurisdiction. More specifically, the consequences of the expanding jurisdiction of ECJ jurisdiction for the other international courts and tribunals as well as for the EC Member States is discussed in more detail. The problem of concurrence of jurisdiction comes in many guises. It can occur between international courts and tribunals as such, for instance, between the ICJ and ITLOS or between the ICJ and ICTY. But the problem can also occur between an international court/tribunal and regional courts, for example, between the WTO Appellate Body and the ECJ or between the ICJ and the ECrtHR. And finally, a concurrence of jurisdiction can take place between regional courts and tribunals, for instance, between the ECJ and the ECrtHR. Furthermore, it should be kept in mind that the phenomenon of concurrence of jurisdiction is sometimes a 'build in' problem created by certain arrangements in a treaty that provides for various fora of dispute settlement understanding. The following example of the UN Law of the Sea Convention (UNCLOS) illustrates this point: Article 287 – Choice of procedure 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. [...] 4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree. Article 288 – Jurisdiction 1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part. 2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement. [...] This 'menu' of different dispute settlement mechanisms from which the Contracting Parties that are involved in a dispute can select almost naturally leads to problems of concurrent jurisdiction. Furthermore, the following UNCLOS provisions illustrate that UNCLOS takes into account and respects other available dispute settlement mechanisms, and if used by the parties, excludes to the extent that the dispute is solved by the other mechanisms the dispute settlement system of UNCLOS. Article 281 – Procedure where no settlement has been reached by the parties 1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. 2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit. Article 282 – Obligations under general, regional or bilateral agreements If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree. In other words, UNCLOS gives the parties to a dispute a maximum of freedom to select the in their view most appropriate forum to solve their disputes. Contrary to this approach is the one adopted by Art. 292 ECT: 'Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein'. But even the exclusion of any other dispute settlement mechanisms outside the EC Treaty can not prevent the problem of concurrent jurisdiction as the following case-studies illustrate. 1. Case-studies 1.1. The MOX-case The MOX-case which is currently pending exemplifies many aspects of the problem of concurrence of jurisdiction between the ECJ and other international courts and tribunals. The full details of the case have been described elsewhere , so I will confine myself to a short summary on the issues that are relevant for our purposes. In this dispute Ireland is complaining against the UK about the radioactive discharges of the MOX plant in Sellafield, UK. The dispute between Ireland and the UK involves on the one hand ITLOS and arbitral tribunals established under the UN Law of the Sea Convention (UNCLOS) and the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), and on the other hand the ECJ. Ireland essentially seeks the disclosure of information regarding the discharges of the MOX plant from the UK on the basis of the OSPAR convention as well as a declaration that the UK violated its obligations under UNCLOS. After negotiations, Ireland and the UK agreed to establish arbitral tribunals under both – UNCLOS and OPSAR – to resolve the dispute. Regarding the proceedings under UNCLOS, the ITLOS first prescribed provisional measures and determined that the arbitral tribunal has prima facie jurisdiction. The arbitral tribunal when considering whether it indeed has definite jurisdiction to solve the dispute, accepted the UK's objection that the ECJ has probably jurisdiction in this case since EURATOM and Community legislation on environment are at issue in this case. Accordingly, the arbitral tribunal stayed the proceedings and requested the parties of the dispute to first find out whether the ECJ has jurisdiction or not before the arbitral tribunal is able to proceed. At the same time, the European Commission started an infringement procedure against Ireland for violating Art. 292 ECT and the identical provision in the EURATOM Treaty by bringing the case before the arbitral tribunal instead of the ECJ. The Commission argues in that case that Ireland has instituted the proceedings against the UK without taking due account of the fact that the EC is a party to the UN Convention for the Law of the Sea (UNCLOS). In particular, the Commission claims that by submitting the dispute to a Tribunal outside the Community legal order, Ireland has violated the exclusive jurisdiction of the ECJ as enshrined in Art. 292 ECT and Art. 193 Euratom. Furthermore, Ireland has also violated the duty of cooperation incumbent on it under Art. 10 ECT and Art. 192 Euratom – according to the Commission. Regarding the proceedings under OSPAR, the arbitral tribunal took a different approach. It accepted that it has jurisdiction and decided that the UK did not violate its obligations under OSPAR by not providing the information sought by Ireland. However, the European Commission apparently intends to bring also an action against the UK because it is of the view that the UK violated Community law since OSPAR has also been ratified by the EC and thus has become integral part of the Community legal order. If the ECJ accepts its jurisdiction and rules on the dispute, it would automatically exclude the jurisdiction of the arbitral tribunals – at least according to the UNCLOS arbitral tribunal itself. Moreover, a ruling of the ECJ contrary to the ruling of the OSPAR arbitral tribunal would take primacy over the OSPAR arbitral tribunal decision, so that the UK would at the end be forced to disclose the information requested by Ireland. 1.2. The Ijzeren Rijn-case A similar problem of concurring jurisdiction between the ECJ and an arbitral tribunal will be addressed in the current dispute between the Netherlands and Belgium concerning the Ijzeren Rijn railway line. The Ijzeren Rijn railway line was one of the first international railway lines in mainland Europe in the 19th century running from Antwerp through the Netherlands to the German Ruhr-area. Since 1991 the line was not used anymore because it was crossing in the Netherlands through a protected natural habitat. In the past decade Belgium and the Netherlands have been trying to revitalize the railway line but could not agree on the additional costs connected with meeting the applicable environmental laws which are estimated to be around 500 million euros. Both states agreed to solve the dispute by bringing it before the Permanent Court of Arbitration (PCA). In the agreement between the Netherlands and Belgium, the arbitral tribunal is called upon to settle the dispute on the basis of international law, including if necessary European law, while at the same time respecting the obligations of the parties arising out of Art. 292 ECT. Indeed, it is quite likely that Community law, in particular EC environmental legislation but also aspects of free movement of goods and services, are at issue in this dispute. If that is actually the case, which must be determined in the first place by the arbitral tribunal itself, than the exclusive jurisdiction of the ECJ on the basis of Art. 292 ECT comes into play. As a consequence thereof, this arbitral tribunal could – similar as in the MOX-case – decide to relinquish its jurisdiction in favour of the jurisdiction of the ECJ, which would mean that also in this case the ECJ would be the final arbiter in the dispute whereas the parties had initially chosen a different dispute settlement forum. For the time being we have to wait for some time as the case is currently at the pleading stage. 2. Consequences of expanding ECJ jurisdiction for other international courts/tribunals Essentially, the expansion of the ECJ jurisdiction entails two main consequences. First, the actual or potential jurisdiction of the other international courts and tribunals can be limited or even totally excluded when the ECJ is seized by the same dispute and renders a decision. As a consequence thereof, international courts and tribunals are not in position anymore to decide a case in fine because of the supremacy and binding effect of Community law, including ECJ judgements – at least as far as EC Member States are concerned. In other words, even if an international court/ tribunal would ignore the jurisdiction of the ECJ and render a decision in a dispute, its decision could not supersede a prior or subsequent ECJ judgement on the same issue because the EC Member States are obliged by virtue of the supremacy of Community law to give priority to the ECJ judgement. This means that international courts/tribunals could be prevented from exercising their assigned task of adjudicating disputes that arise within their respective jurisdiction – at least in so far as EC Member States are involved. Thus, the ECJ can directly affect the extent of the jurisdiction of other international courts and tribunals and thereby reduce or even eliminate their ability to develop the law. This point brings us to the second more general consequence of co-existing conflicting judgements. The co-existence of conflicting judgements on the same issue of law is not necessarily a bad thing. Indeed, some eminent authors argue that in fact a competition between the various international courts and tribunals in finding the best legal interpretation should be welcomed and stimulated. In other words, the various legal interpretations should compete with each other in order to develop the law so that over time the best view will prevail. While a competition of views can certainly be fruitful for the overall advancement of international law, it is submitted that if it happens in an uncoordinated and non-hierarchical manner as is currently the case, the negative effects in terms of fragmentation and inconsistency of international law are outweighing the possible positive effects. Indeed, already now several examples of conflicting decisions on the same point of law exist that undermine the uniformity of international law and thus can lead to a fragmentation of it, which in turn undermines the authority of the various international courts and tribunals vis-à-vis the global community, i.e. the other actors of international law that are affected by their decisions. The following examples illustrate this point quite clearly. For instance, the Appeals Chamber of the ICTY in its Tadic-judgement expressly adopted a conflicting view on the issue of use of force in customary international law (the Nicaragua-test established by the ICJ). The Appeals Chamber of the ICTY argued that the law as stated by the ICJ on the use of force was not 'persuasive' and was 'unconvincing' and went on to declare that the law was to the contrary of what the ICJ had said it was. In a subsequent case, the ICTY Appeals Chamber further declared that this contrary statement of the law had to be followed notwithstanding the asserted difference with the point of view of the ICJ. The disagreement between these two important judicial organs on such a fundamental point of international law, while operating under the same UN umbrella, can seriously undermine the consistency and uniformity of international law. Another example of conflicting decisions relates to the diametrically opposing views of the WTO Appellate Body and the ECJ in the bananas and hormones cases. Whereas the WTO Appellate Body found Community legislation to be clearly inconsistent with WTO law, the ECJ refuses even to review the consistency EC law with WTO law – let alone to follow the WTO Appellate Body's decisions by declaring the relevant Community legislation invalid. As consequence thereof, the ECJ is certifying with its jurisprudence violations of the EC and its Member States of WTO law, in particular by refusing to give any effect to WTO Appellate Body decisions. In this context, the currently pending dispute between the EC and several WTO Members concerning GMOs is another high-profile case in which the EC will probably refuse to implement a WTO panel or AB report that considers the EC legislation to be inconsistent with WTO law. By refusing to follow the WTO Appellate Body the ECJ is setting an example of disobedience and of disrespect for the WTO Appellate Body which essentially invites other WTO Members (for instance the US) to act in the same way. This in turn undermines the authority of the WTO Appellate Body and indeed the whole WTO dispute settlement system, which has been hailed as one of the most sophisticated and successful dispute settlement mechanism of an International Organization – with the exception of the EC judicial system. Furthermore, as in case of the previous example, the conflicting decisions of two important dispute settlement bodies undermines in the long-term the authority and acceptance of WTO Appellate Body decisions. Finally, also the conflicting judgements of the ECJ and ECrtHR regarding the level of protection of fundamental rights in Europe illustrate the negative effects of conflicting decisions – in this case they are felt even more powerful as they affect the rights of private parties directly. 3. Consequences of expanding ECJ jurisdiction for the EC Member States The expansion of the ECJ jurisdiction on international law aspects is not limited to the other international courts and tribunals but rather also affects the EC Member States in their freedom to select and use the – in their view – appropriate dispute settlement mechanisms. In particular, the compulsory jurisdiction of the ECJ based on Art. 292 ECT coupled with the supremacy and binding effect of ECJ judgements deprives the EC Member States from using other available dispute settlement mechanisms such as ITLOS or arbitral tribunals established under UNCLOS. As a consequence thereof, the EC Member States lose their freedom to take certain policy considerations into account when deciding before which dispute settlement body they wish to bring a dispute. For instance, the fact that it takes more than 2 years before the ECJ renders a judgement could be a very strong policy consideration for EC Member States to bring a dispute before an arbitral tribunal that could render a decision in half the time. Similarly, other procedural advantages such as the possibility to choose the arbiters, to determine the terms of reference, the rules of procedure and to agree on confidentiality of the pleadings and decisions are all considerations that cannot be taken into account when a dispute is brought before the ECJ. Another important aspect is the different legal nature and consequences of an ECJ decision versus a decision by another international court or tribunal. Whereas a judgement of the ECJ is fully legally binding on the EC Member States and can be enforced with punitive penalties (Art. 228 ECT) and enjoys primacy over all national law, a decision of an arbitral tribunal or a WTO Appellate Body ruling lacks those features and thus are supposedly considered to be less legally binding or less 'heavy' for the EC Member States. This aspect can in some cases be of crucial importance in convincing the other party to accept an arbitral dispute settlement method instead of an ECJ procedure. 4. Conclusion In sum, it can be concluded that the consequences of the extension of the ECJ jurisdiction affects the other international courts and tribunals in two ways: (i) institutionally, by limiting or even excluding the prima facie jurisdiction of international courts and tribunals, and (ii), substantively, by preventing the international courts and tribunals to develop the law through their jurisprudence as they see fit. Indeed, this aspect points to a more fundamental issue, namely, the apparent quest for external supremacy of EC law and ECJ jurisprudence over international law and decisions of other international courts and tribunals – in addition to the already established internal supremacy vis-à-vis the law of the EC Member States. Furthermore, the expansion of the ECJ jurisdiction has also an (iii) internal effect by limiting the possibility for the EC Member States of utilizing effectively other available dispute settlement mechanisms outside the ECJ. All these effects combined contribute to the danger of fragmentation of international law by undermining the consistency and authority of the decisions of international courts and tribunals and thus of international law in general. Indeed, the growing number of incompatible decisions brings states increasingly in a position of difficult dilemmas as they don't know any more which obligations they should fulfil and which they should violate. V. Possible solutions Since this paper forms the start of a 3-year long research project, it must be seen as an initial 'terms of reference' manual setting out the future research agenda rather than a final and exhaustive presentation of all aspects. Accordingly, this section will wrap up this paper by presenting a number of possible (preliminary) solutions that appear to be promising and thus warrant more detailed analysis. These possible solutions are presented irrespective of the practical difficulties in ever being implemented. Rather, they must be considered as part of a creative academic exercise in order to find out which solutions would actually be worth to be pursued further. As the previous sections illustrate, the lack of hierarchy between the various international courts and tribunals, coupled with the problem of concurring jurisdictions and the existence of conflicting judgements on the same issue of law amplify the danger of leading towards a fragmentation of international law. Accordingly, the introduction of some form of hierarchy between the various international courts and tribunals appears to be a key element that could help to avoid a fragmentation of international law. 1. Extending the jurisdiction of the ICJ While the UN Charter denominates the ICJ as the 'principle judicial organ' of the UN and while the ICJ has in the 50 years established its authority as the World Court, in practice though, one must remember that its jurisdiction is very limited, in particular compared to the ECJ – both in terms of ratio personae and materae as well as in terms of the existing optional acceptance of its jurisdiction by the states. It should be recalled that currently only 65 out of some 190 states have accepted the jurisdiction of the ICJ, many with substantial reservations. For example, most recently the US denounced the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes of 24 April 1963 which confers jurisdiction to the ICJ following the Avena-judgement of the ICJ, because the US Administration considers the Avena- judgement to be an unacceptable interference in its domestic affairs concerning capital punishment. In other words, a considerable number of states apparently do not consider the ICJ to be actually the principle judicial organ on the global level – at least not to an extent that would lead them to submit themselves to its jurisdiction. Moreover, the optional nature of the jurisdiction of the ICJ, which allows states to limit or even totally exclude the jurisdiction of the ICJ either in terms of certain disputes or areas of law or disputes with certain states further undermines the general standing of the ICJ as the World Court. The weakness of the limited jurisdiction of the ICJ becomes particularly visible if one compares it with the one of the ECJ. The ECJ has automatic compulsory jurisdiction covering all areas of Community law and some limited aspects in the III. pillar (justice and home affairs). The EC Member States cannot place reservations to the jurisdiction of the ECJ – at least regarding the EC Treaty. As is well known, the situation in the III. pillar resembles much more the situation of the ICJ. According to Art. 35 TEU, the EU Member States can choose whether or not they want to accept the jurisdiction of the ECJ to render preliminary rulings in the area of the III. pillar, and if they accept it, the EU Member States may limit the right to request a preliminary ruling to their highest courts. In fact, the UK, Ireland and Denmark have not accepted the jurisdiction of the ECJ, while Spain has limited to its highest court. The interesting aspect of this comparison is that the ECJ has rendered so far only 2 judgements while 2 other cases are still pending since the Treaty of Amsterdam entered into force in 1999, whereas the ECJ renders hundreds of judgements a year on EC law. Fortunately, the EU Member States realized that the system of limited optional – à la carte – jurisdiction of the ECJ in the III. pillar is not adequate and thus have decided that with the entering into force of the European Constitution the III. pillar will be completely 'communitarized', i.e., it will fall under the regime of current Community law, thereby giving the ECJ full compulsory jurisdiction to adjudicate also in the sensitive area of cooperation in police and criminal law matters. When taking this experience of the ECJ and applying it to the current situation of the ICJ, becomes clear that only when the ICJ is given full and automatic compulsory jurisdiction on all aspects and disputes of international law by enlarging the ratio personae and materae will the ICJ be able to actually play the role of the principle organ of the UN. Despite these shortcomings, it should be noted that a recent study indicates that the compliance with final judgements of the ICJ in the past two decades is quite reasonable. 2. Making the ICJ a Court of Appeal vis-à-vis the other international courts and tribunals Along the lines of the previous proposal, the idea has been put forward to make the ICJ a Court of Appeal vis-à-vis the other international courts and tribunals. In this way, the ICJ would be the ultimate arbiter regarding aspects of public international law. As a consequence thereof, the ICJ would be in a position of providing binding interpretations and thus ensure homogeneity in the application of public international law. In other words, a clear hierarchical structure would be introduced in which the ICJ would be on top of the other international courts and tribunals. The role as a Court of Appeal could be especially effectively played by the ICJ, if the ICJ would become a compulsory Court of Appeal for all international courts and tribunals. This, however, would require the extension of the ratio personae and materae so that also natural and legal persons would have locus standi as is the case in several international courts and tribunals. A less far-reaching option would be to establish a Court of Appeal hierarchy on a case by case basis and for a limited number of courts/tribunals, for instance, in regard to the ITLOS, ICC, ICTY. 3. Creating a preliminary ruling system at the level of ICJ Another way of establishing a hierarchical structure between the ICJ and the other international courts and tribunals is the creation of a preliminary ruling system like the one established in the Community legal order (Art. 234 ECT). This would mean that the ICJ would obtain the jurisdiction to receive requests for a preliminary ruling on issues of general international law on which the requesting international court/tribunal considers the guidance of the ICJ necessary in order to render its decision. In this way, the ICJ would be able to ensure a high level of uniformity of international law while at the same time leaving the other international courts and tribunals sufficient freedom to decide the specific cases in accordance with the respective requirements. Indeed, one could go one step further by creating a system by which the ICJ would also be able to request preliminary rulings from the other international courts and tribunals, for instance from the ICC on criminal law aspects or from the ITLOS on law of the sea aspects. In this way, the uniformity of international law could be ensured even beter. Compared with a formal Court of Appeal system, the preliminary ruling sysem would impose a less strict hierarchical relationship as every international court/tribunal would decide for itself on a case-by-case basis whether or not to request a preliminary ruling. 4. Extending the already existing advisory jurisdiction of the ICJ A less far-reaching proposal is to extend the already existing advisory jurisdiction of the ICJ by broadening the group of organs and bodies that could request an advisory opinion from the ICJ. Currently, only a very limited number of organs/bodies can request an advisory opinion, despite the fact the advisory opinion of the ICJ have been very influential in determining a number of fundamental aspects of international law. Indeed, one could go as far as saying that the advisory opinion of the ICJ are an even more appropriate tool to develop the law than the contentious cases which are often very politicized and specific. This proposal is particularly attractive as it would involve comparatively little changes of the UN Charter and ICJ Statute. At the same time, however, the hierarchical structure would be quite loose so that the ability of the ICJ to ensure a high level of uniform interpretation of international law would remain limited. 5. Creating a Tribunal des Conflits This idea is borrowed from the French judicial system which has created a Tribunal des Conflits in order to resolve disputes between the two main branches of law concerning the question which of the two branches has jurisdiction over a certain case. The Tribunal des Conflits is composed of 3 members of the Conseil d'Etat (supreme administrative court), 3 members of the Cour de Cassation (supreme civil/criminal court) and 2 other members. In other words, the Tribunal des Conflits is composed of judges of the two supreme courts and has the task to decide which of the courts has jurisdiction to adjudicate a case when both branches of courts (i.e. administrative or civil/criminal branch) claim jurisdiction over the same case. Regarding the international law level, one could think of a Tribunal des Conflits de jurisdiction internationale – composed of an equal number of members of the ICJ (for instance 6 ICJ judges) and members of some of the other international courts and tribunals (1 ICTY judge, 1 ICTR judge, 1 ICC judge, 1 ITLOS judge, 1 arbitral tribunal member, 1 WTO AB member) plus 1 independent member that would come together in order to determine in fine issues of international law that have been interpreted differently by the various international courts/tribunals. The advantage of this proposal would be that the creation of a new overarching tribunal would allow for a tailored-made and flexible statute that would serve the needs, instead of trying to reform with great difficulties the currently existing system. Moreover, the equal participation of the other international courts and tribunals in such a Tribunal des Conflits would ensure a consistent exchange of ideas and compromise that would find the support by all international courts and tribunals. Accordingly, a high level acceptance of a uniform interpretation of international law aspects could be secured. 6. The legal duty to take into account decisions of other courts and the principle of good faith In view of the enormous practical problems that the previous proposals would create, in particular in terms of amending and ratifying several legal instruments by 190-plus states, other less formal proposals have been put forward in order to reduce the danger of conflicting judgements of various international courts/tribunals. One author claims that all judicial bodies have a legal duty to take into account decisions of other international courts/tribunals on the same issue and to act in good faith, i.e., to follow that decision unless there are overwhelming reasons not to do so which in turn should be clearly set out by the court that wishes to deviate. This proposal assumes that all international courts/tribunals respect each other and that their decisions carry some authority or at least guidance for each other. This legal obligation flows from the need to ensure consistency within the same system of international law in which all international courts and tribunals operate. The principle of good faith, while usually applied in international law to state obligations, is considered here more broadly and thus applied also to international courts and tribunals when they apply and develop international law. Although, this approach fits nicely with the idea of a global community of courts as posited by Ann-Marie Slaughter , the problem is that this obligation is rather a moral than a legal one and that – due to the lack of any hierarchical order between the various international courts – nothing can prevent an international court/tribunal to deviate from the case-law of the ICJ for instance – as the Appeals Chamber of the ICTY decision in the Tadic-case illustrates. Indeed, even a strong supporter of the proliferation of international courts and tribunals such as Professor Rao has to conclude that in fact only the application of the principle of good faith can mitigate the potential danger of fragmentation of international law when he writes: 'The important caveat, however, is that judges of these diverse tribunals, when they apply and interpret rights and obligations under international law, should be conscious of the overarching international judicial system that is emerging, which they should creatively and energetically promote. Furthermore, judges must show good faith and exhibit respect, not only to their own previous holdings on a subject, but should show equal respect to the relevant holdings of other international tribunals in the interest of judicial harmony, certainty, and the predictability of law. […] The ultimate justification for the existence of a diversity of international tribunals is to achieve unity of the international legal system, which is dedicated to justice and equity in international relations.' 7. The application of the res judicata and lis pendens-principles The res judicata-principle allows a court to decline jurisdiction based on an earlier ruling by another court or tribunal on the same matter, i.e. the finality of proceedings by excluding re- litigation of the same dispute before another court/tribunal. The lis pendens-principle bars proceedings before a court regarding as long as the same claim is pending before another court/tribunal. In this context, it should be emphasized that the present author has no doubts as to the applicability of the res judicata and lis pendens-principles in international judicial proceedings. However, there are three conditions for the application of both principles: (i) identity of parties; (ii) identity of object or subject matter, i.e. exactly the same issue must be in question; (iii) identity of the legal cause of action. It is obvious that in particular the second and third condition raise difficulties of ascertaining whether or not in a given case these conditions are fulfilled. Moreover, even if a court/tribunal concludes that indeed a relevant earlier decision of another court/tribunal exists, it still could decide to proceed with the case as that court is legally not bound to take the other decision into account. Nonetheless, the application of the res judicata and lis pendens-principles can certainly help reduce the number of conflicting judgements by denying parties the possibility of re-litigating the same dispute in the hope of a different outcome. Furthermore, the respect and the acceptance of a final decision by an international court/tribunal increases the legal certainty and increase the authority and credibility of the various international courts and tribunals in general. Indeed, recently a WTO panel as well as the WTO Appellate Body have confirmed the res judicata-effect of WTO panel reports when it was stated that: 'In our view, an unappealed finding included in a panel report that is adopted by the DSB must be treated as a final resolution to a dispute between the parties in respect of the particular claim and the specific component of a measure that is the subject of that claim.' 8. Conclusion In sum, it can be concluded that a number of possible solutions are – at least theoretically – available in order to resolve the rising tension between the proliferation of international courts and tribunals and the concurrence of jurisdiction that could lead to fragmentation of international law. Essentially, the possible solutions can be divided into two groups: (i) formally legally binding modifications by introducing some kind of hierarchical structure that would regulate the relationship between the various international courts and tribunals, and (ii) the application of certain formally non-binding principles of law on the basis of good faith and respect of each others decisions. Whereas the first group of proposed solutions requires some cumbersome modifications of existing legal instruments coupled with the necessity of ratification by a large number of states, the second group of proposed solutions does not require ratifications and thus could be implemented basically right away and without many difficulties. However, the question arises whether the legally non-binding solutions would actually provide an effective way out of the dilemma. In the current view of the present author, it appears that the legally non-binding solutions alone are not sufficient to effectively organize the relationship between the various international courts and tribunals in a way that would resolve the issue of concurrence of jurisdiction. In particular, the extension of the advisory function of the ICJ or the creation of a Tribunal des Conflits appears to be an essential precondition for introducing a hierarchy also between the different international courts and tribunals. Indeed, if one accepts that a proliferation of international courts and tribunals is actually taking place than it is inevitable that new instruments must be developed and applied which ensure that the uniformity and consistency of international law is preserved as much as possible. The experience with the ECJ as regards Community law illustrates quite clearly that only with the help of supremacy of Community law coupled with the preliminary ruling procedure is the ECJ able to preserve the unity of Community law within currently 25 EC Member States and their domestic courts. Obviously, preserving uniformity and consistency of international law within 190 states is impossible without any legally binding solution that puts the ICJ in the driving seat. ? Assistant Professor EU Law and Senior Researcher International Law. This paper is written as part of the research project 'Concurrence of Jurisdiction between the ECJ and other international courts and tribunals' sponsored by the Netherlands Scientific Research Organization (NWO) for the period 2005-2008. Special thanks are due to dr Yuval Shany for his very useful comments on an earlier draft. The usual disclaimer applies. The term 'international courts and tribunals' is used in a generic way encompassing all sorts of international courts, (arbitral) tribunals and quasi-judicial bodies, established on a permanent, semi-permanent or ad hoc basis. See further: Romano, The proliferation of international judicial bodies: The pieces of the puzzle, New York University Journal of International Law and Politics 1999, pp. 709-751; Martinez, Towards an International Judicial System, Stanford Law Review 2003, pp. 429-529. The recent launching of a new journal entitled 'The Law and Practice of International Courts and Tribunals' by Martinus Nijhoff Publishers (ISSN 1569-1853) underlines the increasing importance of the subject and the need to research it and disseminate the results of that research to a broader audience. See further: Burke-White, International Legal Pluralism, Diversity or Cacophony?: New Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 963-979. See: Orrego Vicuña, International Dispute Settlement in an Evolving Global Society, Hersch Lauterpacht Memorial Lecture 2001, Cambridge 2004, pp. 1 ff. Buergenthal, International Law and the proliferation of International Courts, in: Bancaja Euromediterranean – Courses of International Law, Vol. V., 2001, pp. 31-43; Spelliscy, The Proliferation of International Tribunals: A chink in the armor, Columbia Journal of Transnational Law 2001, pp. 143-175; Simma, Fragmentation in a positive light, Diversity or Cacophony?: New Sources of Norms of International Law – Symposium, Michigan Journal of International Law 2004, pp. 845. Charney, Is International Law threatened by multiple International Tribunals?, Recueil des Cours 1998, Tome 271, The Hague 1999, pp. 105-382. Slaughter, A Global Community of Courts, Harvard International Law Journal 2003, pp. 191-219; ibid., Judicial Globalization, Virginia Journal of International Law 2000, pp. 1103-1124. Slaughter, A New World Order, Chapter 2, Princeton 2004. Alvarez, The new dispute settlers: (Half) Truths and Consequences, Texas International Law Journal 2003, pp. 405- 444; Koskenniemi/Leino, Fragmentation of International Law? Postmodern anxieties, Leiden Journal of International Law 2002, pp. 553-579. Hafner, Risks Ensuing from Fragmentation of International Law, Official Records of the General Assembly, 55th session, Supplement No. 10 (A/55/10), annex; ibid., Pros and Cons ensuing from Fragmentation of International Law, Diversity or Cacophony?: New Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 849-863. Report of the Study Group on Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law, ILC, 55th A/CN.4/L.644, 18 July 2003. See: Report of the ILC, 56th session, Chapter X, A/59/10, 2004. Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004; Bethlehem, International Law, EC Law and National Law: Three systems in search of a framework, in: Koskenniemi (ed.), International Law aspects of the EU, The Hague 1998, pp. 169-196. Art. 292 ECT reads as follows: Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty [EC Treaty] to any method of settlement of disputes than those provided for therein. {It should be noted that a similar provision is also contained in the EURATOM Treaty.} See e.g.: Lavranos, Multilateral Environmental Agreements: Who makes the binding decisions?, European Environmental Law Review 2002, pp. 44-50; Churchill/Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A little-noticed phenomenon in International Law, American Journal of International Law 2000, pp. 623-659; Röben, Institutional developments under modern environmental agreements, Max-Planck Yearbook of UN Law 2000, pp. 363-443. See further: Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, European Journal of International Law 2004, pp. 907-931; Rao, Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation, Diversity or Cacophony?: New Judicial Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 929-961; Orrego Vicuña, International Dispute Settlement in an Evolving Global Society, Hersch Lauterpacht Memorial Lecture 2001, Cambridge 2004, pp. 10 ff. De Wet, Inaugural speech, 25th February 2005, University of Amsterdam, Law Faculty. For instance, the establishment of a new European Patent Court under the European Patent Convention is currently considered. See on this: Lavranos, The new specialized courts within the European judicial system, to be published in: European Law Review, April 2005. But also in Africa and in Latin America new judicial or quasi-judicial bodies have recently been created or will be established soon. See: Pauwelyn, Going Global, Regional, or Both? Dispute Settlement in the Southern African Development Community (SADC) and overlaps with the WTO and other jurisdictions, Minnesota Journal of Global Trade 2004, pp. 231-304. Slaughter, A Global Community of Courts, Harvard International Law Journal 2003, pp. 191-219; ibid., Judicial Globalization, Virginia Journal of International Law 2000, pp. 1103-1124. See for a statistical analysis of the interaction between various international courts and tribunals: Miller, An International Jurisprudence? The Operation of 'Precedent' across International Tribunals, Leiden Journal of International Law 2002, pp. 483-526. Slaughter, A New World Order, Princeton 2004. See: Rao, Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation, Diversity or Cacophony?: New Judicial Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 929-961. But see: Helfer, Constitutional Analogies in the International Legal System, The Emerging Transnational Constitution – Symposium, Loyola Los Angels Law Review 2003, pp. 193-237. See: Lenaerts/Van Nuffel, Constitutional Law of the European Union, 2nd ed., London 2005. See further: Von Bogdandy, Globalization and Europe: How to Square Democracy, Globalization and International Law, European Journal of International Law 2004, pp. 885-906. Slaughter, A New World Order, Princeton, 2004; ibid., Judicial Globalization, Virginia Journal of International Law 2000, pp. 1103-1124. See: Hafner, Pros and Cons ensuing from Fragmentation of International Law, Diversity or Cacophony?: New Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 849-863; Koskenniemi, Global Governance and Public International Law, Kritische Justiz 2004, pp. 241-254; Dupuy, The Danger of Fragmentation or Unification of the International Legal System and the ICJ, NYU Journal of International Law and Politics 1999, pp. 791 ff. See extensively: Shany, The competing jurisdictions of international courts and tribunals, Oxford 2003. See further: Komarek, Federal Elements in the Community Judicial System: Building Coherence in the Community Legal Order, Common Market Law Review 2005, pp. 9-34. See e.g.: Case C-53/96 (Hermès) [1998] ECR I-3603; Opinion 1/94 (WTO Agreement) [1994] ECR I-5267. See for details: Lavranos, The new specialized courts within the European judicial system, to be published in: European Law Review, April 2005. Council Decision 2004/752/EC establishing a European Union Civil Service Tribunal, [2004] OJ, L 333/7. See for details: Lavranos, The new specialized courts within the European judicial system, to be published in: European Law Review, April 2005. The Nice Treaty amending the EC and EU Treaties inserted two new provisions, Art. 225a and Art. 229a ECT, which allows for the creation of new specialized courts of first instance dealing with specific disputes. See: Canor, Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe?, European Law Review 2000, pp. 3-21. See for details: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004, Chapter 4; Spielmann, Human Rights case law in the Strasbourg and Luxembourg courts: Conflicts, Inconsistencies and Complementarities, in: Alston (ed.), The EU and Human Rights, Oxford 1999, pp. 757-780. See e.g.: Case C-17/98 (Emsesa Sugar) [2000] ECR I-665; Case C-94/00 (Roquette) [2002] ECR I-9011. Case C-112/00 (Schmidberger) [2003] ECR I-5659. Reader-friendly edition available at: http://www.euabc.com/upload/rfConstitution_en.pdf. Pellet, Strengthening the Role of the ICJ as the Principal Judicial Organ of the UN, The Law & Practice of International Courts and Tribunals 2004, pp. 159-180. Ibid., in particular pp. 165 ff. Charney, Is International Law threatened by multiple International Tribunals?, Recueil des Cours 1998, Tome 271, The Hague 1999, pp. 105-382; Shany, The Competing Jurisdictions of International Courts and Tribunals, Oxford University Press 2003; Hafner, Risks Ensuing from Fragmentation of International Law, Official Records of the General Assembly, 55th session, Supplement No. 10 (A/55/10), annex. Charney, Is International Law threatened by multiple International Tribunals?, Recueil des Cours 1998, Tome 271, The Hague 1999, pp. 105-382. Charney, The 'horizontal' growth of International Courts and Tribunals: Challenges or Opportunities?, American Society of International Law Proceedings 2002, p. 369. Shany, The Competing Jurisdictions of International Courts and Tribunals, Oxford University Press 2003. Hafner, Risks Ensuing from Fragmentation of International Law, Official Records of the General Assembly, 55th session, Supplement No. 10 (A/55/10), annex; ibid., Pros and Cons ensuing from Fragmentation of International Law, Diversity or Cacophony?: New Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 849-863. Koskenniemi/Leino, Fragmentation of International Law? Postmodern anxieties, Leiden Journal of International Law 2002, pp. 553-579. Case 22/70 (AETR) [1971] ECR 263. See extensively: Eeckhout, The External Relations of the EU, Oxford 2004. Opinion 1/94 (WTO Agreement) [1994] ECR I-5267. See further: Franklin, Flexibility vs. Legal Certainty: Article 307 EC and other issues in the aftermath of the Open Skies cases, European Foreign Affairs Review 2005, pp. 79-115; Lavranos, case-note on open skies, Legal Issues of Economic Integration 2003, pp. 81-91. See: Case 181/73 (Haegeman) [1974] ECR 449; Case 12/86 (Demirel) [1987] ECR 3719. See: Case 104/81 (Kupferberg) [1982] ECR 3641; Case C-61/94 (Commission v. Germany) [1996] ECR I-3989. See for details: Eeckhout, The External Relations of the EU, Oxford 2004. See: Herrmann, Common Commercial Policy after Nice: Sisyphus would have done a better job, Common Market Law Review 2002, 7-29. See further, Krajewski, External Trade Law and the Constitution Treaty: Towards a federal and more democratic Common Commercial Policy?, Common Market Law Review 2005, pp. 91-127. Case C-53/96 (Hermès) [1998] ECR I-3603 (emphasis added). Opinion 1/94 (WTO Agreement) [1994] ECR I-5267. Joined cases C-300/98 (Dior) and C-392/98 (Assco) [2000] ECR I-11307 (emphasis added). Case C-89/99 (Schieving-Nijstad) [2001] ECR I-5851; see also; Lavranos, case-note, Legal Issues of Economic Integration 2002, pp. 323-333. Case C-192/89 (Sevince) [1990] ECR I-3461, para. 11. Case C-245/02 (Anheuser-Busch), judgement of the ECJ of 16.11.2004. Koutrakos, The interpretation of mixed-agreements under the preliminary ruling procedure, European Foreign Affairs Review 2002, pp. 25-52. Dashwood, Preliminary rulings on the interpretation of mixed agreements, in: O'Keeffe (ed.), Judicial Review in EU law – Liber Amicorum Lord Slynn of Hadley, The Hague 2000, pp. 167-175. Case 21-24/72 (International Fruit Company) [1972] ECR 1219. Case 4/73 (Nold) [1974] ECR 491. Case C-260/89 (ERT) [1991] ECR I-2925 (emphasis added). Article 19 – Establishment of the Court To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as "the Court". It shall function on a permanent basis. Article 32 – Jurisdiction of the Court 1 The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47. 2 In the event of dispute as to whether the Court has jurisdiction, the Court shall decide. Article 46 – Binding force and execution of judgments 1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. Case C-413/99 (Baumbast) [2002] ECR I-7091; Case C-60/00 (Carpenter) [2002] ECR I-6279; Case C-117/01 (K.B) judgement of ECJ of 7.1.2004; Case C-200/02 (Chen), judgement of ECJ of 19.10.2004. Case C-112/00 (Schmidberger) [2003] ECR I-5659. See: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004, Chapter 4. ECrtHR, Cantoni v. France, judgement of 15.11.1996; ECrtHR, Matthews v. UK, judgement of 18.2.1999; ECrtHR, Bosphorus.v Ireland, decision on the admissibility, 13.9.2001 (the final judgement is still pending). Art. 9 European Constitution 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Constitution. Art.II-112 Scope and interpretation of rights and principles 3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. Art. II-113 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. See below the section on the ECJ jurisprudence in human rights. See e.g.: Opinions 1/75 [1975] ECR 1355; Opinion 1/76 (European laying-up fund for inland waterway vessels) [1977] ECR 741; Opinion 1/78 (International Agreement on Natural Rubber) [1979] ECR 2871; Opinion 1/91 (European Economic Area) [1991] ECR I-6079; Opinion 2/91 (Convention Nº 170 of the ILO) [1993] ECR I-1061; Opinion 1/92 (European Economic Area) [1992] ECR I-2821; Opinion 2/92 (Third Revised Decision of the OECD on national treatment) [1995] ECR I-521; Opinion 1/94 (WTO Agreement) [1994] ECR I-5267; Opinion 2/94 (Accession by the EC to the ECHR) [1996] ECR I-1759; Opinion 1/00 (European Common Aviation Area) [2002] ECR I-3493; Opinion 2/00 (Cartagena Protocol) [2001] ECR I-9713. For an exhaustive analysis see: Eeckhout, The External Relations of the EU, Oxford 2004. In this context, it should be noted that I will not discuss II. and III. pillar agreements as the jurisdiction of the ECJ is excluded for the II. and very limited for the III. pillar. See: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004. See e.g.: Case 12/86 (Demirel) [1987] ECR 3719; Case C-192/89 (Sevince) [1990] ECR I-3461; see generally: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004. Case 21-24/72 (International Fruit Company) [1972] ECR 1219. See e.g.: Case C-61/94 (Commission v. Germany) [1996] ECR I-3989, see generally: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004. See further: Bethlehem, The EU, in: Gowlland-Debbas (ed.), National Implementation of UN Sanctions – A comparative study, Leiden 2004, pp. 123-165; ibid., Regional Interface between Security Council Decisions and Member States implementation: The example of the EU, in: Gowlland-Debbas (ed.), United Nations Sanctions and International Law, The Hague 2001, pp. 291-305. See for details: Wessel, The EU's Foreign and Security Policy, The Hague 1999; Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004, Chapter 3. See following paragraphs. See e.g.: Case T-220/96 EVO [2002] ECR II-2265; Case C-237/98 P Dorsch Consult [2000] ECR I-4549; Case T- 184/95 Dorsch Consult [1998] ECR II- 667. Case C-84/95 (Bosphorus) [1996] ECR I-3953. Case C-124/95 (Centro-Com) [1997] ECR I-81. Case C-124/95 (Centro-Com) [1997] ECR I-81. Case C-124/95 (Centro-Com) [1997] ECR I-81. Case C-177/95 (Ebony) [1997] ECR I-1111. Case T-306/01 R (Aden) [2002] ECR II-2387; Case T-4703 R (Sison) [2003] ECR II-2047; Case T-49/04 (Hassan v. Council/Commission), Action brought on 12.2.2004 against Council and Commission, [2004] OJ, C94/52. Case T-306/01 R (Aden) [2002] ECR II-2387; Case T-4703 R (Sison) [2003] ECR II-2047; Case T-338/02 (Segi), Order of the CFI of 7.6.2004; Case T-206/02_1 (KNK v. Council), Order of 15.2.2005; Case T-229/02_1 (PKK v. Council), Order of 15.2.2005. Case 21-24/72 (International Fruit Company) [1972] ECR 1219. See: Giardana, International Agreements of the Member States and their construction by the Court of Justice, in: Carporti, et.al. (eds.), Du Droit International au droit de l'integration – Liber Amicorum Pescatore, Baden-Baden 1987, pp. 263-273. Case C-149/96 (Portugal v. Council) [1999] ECR I-8395 (emphasis added). See for details: Everling, Will Europe slip on bananas? The bananas judgement of the Court of Justice and national courts, Common Market Law Review 1996, pp. 401-437; Eeckhout, The domestic legal status of the WTO Agreement: Interconnecting legal systems, Common Market Law Review 1997, pp. 11-58; Lavranos, Die Rechtswirkungen von WTO panel reports im Europäischen Gemeinschaftsrecht und im deutschen Verfassungsrecht, Europarecht 1999, pp. 289-308; idem., Die EU darf WTO-Recht weiterhin ignorieren, Europäisches Wirtschafts- und Steuerrecht 2004, pp. 293-297. Joined cases C-300/98 (Dior) and C-392/98 (Assco) [2000] ECR I-11307 (emphasis added). Case C-69/89 (Nakajima) [1991] ECR I-2069; Case 70/87 (Fediol) [1989] ECR 1781 (emphasis added). Case T-18/99 (Cordis) [2001] ECR II-913; Case T-30/99 (Bocchi) [2001] ECR II-943; Case T-52/99 (T.Port) [2001] ECR II-981 (emphasis added). Case T-19/01 (Chiquita v. Commission), judgment of the CFI, 3.2.2005. Ibid., paras. 118-120. See: Peers, WTO dispute settlement and Community law, European Law Review 2001, pp. 605-615. Case T-377/00 (Philip Morris International v. Commission) [2003] ECR II-1 (emphasis added). Case C-61/94 (Commission v. Germany) [1996] ECR I-03989 (emphasis added). Opinion of AG Alber in Case C-93/02 (Biret) [2003] ECR I-10497. Ibid. See: Lavranos, Die EG darf WTO-Recht weiterhin ignorieren, Europäisches Wirtschafts- und Steuerrecht 2004, pp. 293-297; idem, Die Rechtswirkung von WTO panel reports im Europäischen Gemeinschaftsrecht sowie im deutschen Verfassungsrecht, Europarecht 1999, pp. 289-308. Case C-377/02 (van Parys) judgement of ECJ, 1.3.2005. See in support of approach of the ECJ and CFI: Von Bogdandy, Legal Effects of WTO Decisions within EU Law: A contribution to the theory of Legal Acts of International Organizations and the action for damages under Art. 288 (2) EC, Journal of World Trade 2005, pp. 45-66. See further on this point: Tancredi, EC Practice in the WTO: How Wide is the 'Scope of Manoeuvre'?, European Journal of International Law 2004, pp. 933-961. See for a detailed comparative analysis with case-studies: Rapp-Lücke, Das rechtliche Verhältnis zwischen dem Streitbeilegungsgremium der Welthandelsorganisation und dem Gerichtshof der EG, Baden-Baden 2004. See for detailed studies: Alston (ed.), The EU and Human Rights, Oxford 1999; Lawson, Het EVRM en de Europese Gemeenschappen, Leiden 1999; Pernice, Grundrechtsgehalte im Europäischen Gemeinschaftsrecht, Baden-Baden 1979. Case C-260/89 (ERT) [1991] ECR I-2925 (emphasis added). Case C-413/99 (Baumbast) [2002] ECR I-7091; Case C-60/00 (Carpenter) [2002] ECR I-6279; Case C-200/02 (Chen), judgment of the ECJ, 19.10.2004. Case C-189/95 P (Baustahlgewebe) [1998] ECR I-8417. Case C-7/98 (Krombach) [2000] ECR I-1935. Case C-112/00 (Schmidberger) [2003] ECR I-5659. See for details: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004, Chapter 4. ECrtHR, Cantoni v. France, judgement of 15.11.1996. ECrtHR, Matthews v. UK, judgement of 18.2.1999. ECrtHR, Bosphorus v. Ireland, decision on the admissibility of 13.9.2001. Case C-84/95 (Bosphorus) [1996] ECR I-3953. ECrtHR, Bosphorus v. Ireland, decision on the admissibility of 13.9.2001. ECrtHR, press release of 29.9.2004: http://press.coe.int/cp/2004/457a(2004).htm Case T-191/98 R (DSR-Senator Lines) [1999] ECR II-2531, Order of President of CFI. Case C-364/99 P (R) (DSR-Senator Lines) [1999] ECR I-8733, Order of President of ECJ. ECrtHR, Application no. 56672/00, Senator Lines v. 15 EU Member States. Case T-191 and T-212-214/98 (Senator Lines), judgement of the CFI of 30.9.2003. Press release Registrar of ECrtHR: http://www.echr.coe.int/Eng/Press/2003/oct/SenatorLinescancelled.htm. ECrtHR, Senator Lines, decision as to the admissibility of 10.3.2004. ECrtHR, Hornsby v. Greece, judgement of 19.3.1997. ECrtHR, SA Dangeville v. France, judgement of 16.4.2002. Joined cases 46/87 and 227/88 (Hoechst) [1989] ECR 2859. ECrtHR, Niemietz v. Germany, judgement of 16.12.1992. ECrtHR, Colas Est v. France, judgement of 16.4.2002. Case C-94/00 (Roquette) [2002] ECR I-9011. Case 374/87 (Orkem) [1989] ECR 3283. ECrtHR, Funke v. France, judgement of 25.2.1993. See also generally: Scheer, The interaction between the ECHR and EC Law – A case study in the field of EC Competition Law, Zeitschrift für Europarechtliche Studien 2004, pp. 663-691. See e.g.: ECrtHR, Vermeulen v. Belgium, judgement of 20.2.1996; J.J. and K.D.B. v. Netherlands, judgment of 27.3.1998; Reinhardt&Slimane-Kaïd v. France, judgement of 31.3.1998; Voisine v. France, judgement of 8.2.2000. See for details: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004, Chapter 4. Case C-17/98 (Emesa Sugar) [2000] ECR I-665. See: Lawson, case-note on Emesa Sugar, Common Market Law Review 2000, pp. 983-990. ECrtHR, Kress v. France, judgement of 7.6.2001. Case C-466/00 (Kaba) [2003] ECR I-2219. ECrtHR, Emesa Sugar, application no. 62023/00, admissibility decision, 13.1.2005. Case 257/85 (Dufay v EP) [1987] ECR 1561. Case 222/84 (Johnston) [1986] ECR 1651. ECrtHR, Neigel v. France, judgement of 17.3.1997. ECrtHR, Lombardo v. Italy, judgement of 26.11.1992. ECrtHR, Massa v. Italy, judgement of 24.8.1993. ECrtHR, Pellegrin v. France, judgement of 8.12.1999. Case C-60/00 (Carpenter) [2002] ECR I-6279. See for details: Forder, case-note on Carpenter, European Human Rights Cases 2002, pp. 739-749. ECrtHR, Abdulaziz, Cabales and Balkandali, v. UK, judgement of 28.5.1985; Ahmut v. the Netherlands, judgement of 28.11.1996; but see a more dynamic approach by the ECrtHR in Sen v. the Netherlands, judgement of 21.12.2001. See for details: Sands, Principles of International Environmental Law, 2nd ed., Cambridge 2003; idem., Documents in international environmental law, 2nd ed., Cambridge 2004. Lavranos, Multilateral Environmental Agreements: Who makes the binding decisions?, European Environmental Law Review 2002, pp. 44-50. Jans, European Environmental Law, 2nd ed., Groningen 2000. See e.g.: Opinion 2/00 on the ratification of the Cartagena Protocol, [2001] ECR I-9713. Case C-379/92 (Peralta) [1994] ECR I-3453. See e.g.: Case C-277/02 (EU-Wood-Trading GmbH), judgement of 16.12.2004. See e.g.: Case C-154/02 (Jan Nilsson), judgement of ECJ of 23.10.2003. Case C-510/99 (Xavier Tridon) [2001] ECR I-7777 (emphasis added). Opinion 2/00 [2001] ECR I-9713 (emphasis added). Case C-213/03 (Syndicat professionel coordination des pêcheurs de l'Etang de Berre and de la région), judgement of 15.7.2004. See e.g.: Case 12/86 (Demirel) [1987] ECR 3719; Case C-192/89 (Sevince) [1990] ECR I-3461; Joined cases C-317/01 and C-369/01 (Eran Abatay and Others) and (Nadi Sahin), judgement of the ECJ of 21.10.2003. Case C-213/03, para. 41. Ibid., para. 44. Ibid., para. 46. Case C-239/03 (Commission v. France), judgement of 7.10.2004. See below on the MOX-case. See for details: Lavranos, Legal Interaction between Decisions of International Organizations and European Law, Groningen 2004. See the statistical analysis of: Miller, An International Jurisprudence? The Operation of 'Precedent' across International Tribunals, Leiden Journal of International Law 2002, pp. 483-526. See for the materials of the dispute: Permanent Court of Arbitration, at http://pca-cpa.org. Churchill/Scott, The MOX Plant Litigation: The first-half-life, International Comparative Law Quarterly 2004, pp. 643-676; Shany, The First MOX Plant Award: The need to harmonize competing environmental regimes and dispute settlement procedures, Leiden Journal of International Law 2004, pp. 815-828; Röben, The Order of the UNCLOS Annex VIII Arbitral Tribunal to suspend proceedings in the case of the MOX plant at Sellafield: How much jurisdictional subsidiarity?, Nordic Journal of International law 2004, pp. 223-246. Case C-459/03, Action brought on 30.10.2003 by the Commission against Ireland, [2004] OJ C7/39. See further: McDorman, Access to information under Art. 9 OSPAR Convention (Ireland v. UK), Final Award, AJIL 2004, pp. 330-339. See the Dutch official gazette 'Tractatenblad' 2003, 138; Tweede Kamer, vergaderjaar 2004-2005, 29 579, nr. 15; Tweede Kamer, 23.11.1004, TK 26-1659. The case can be followed on the website of the PCA at: http://pca-cpa.org/ENGLISH/RPC/#Belgium/Netherlands. See e.g.: Schwebel, Address by the President of the ICJ to the General Assembly of the UN, 27.10.1998, available at:http://www.lawschool.cornell.edu/library/cijwww/icjwww/ipresscom/SPEECHES/ispeechPresidentGA98.htm; Charney, The 'horizontal' growth of International Courts and Tribunals: Challenges or Opportunities?, American Society of International Law Proceedings, 2002, p. 369; Simma, Fragmentation in a positive light, Diversity or Cacophony?: New Sources of Norms of International Law – Symposium, Michigan Journal of International Law 2004, pp. 845 ff. See for details: Shahabuddeen, Consistency in holdings of International Tribunals, in: Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda, The Netherlands 2002, pp. 633-650. ICTY Appeals Chamber, Tadic, IT-94-1-A of 15.7.1999, paras. 115 and 116. ICTY Appeals Chamber, Aleksovski, IT-95-14/1-A of 24.3.2000, paras. 92 ff. See e.g.: WT/DS27/AB/R, EC – Regime for the importation, sale and distribution of bananas (AB report, 9.9.1997); WT/DS26/AB/R, EC – Measures concerning meat and meat products (hormones) (AB report, 16.1.1998); Case C-93/02 P (Biret) [2003] ECR I-10497; Case T-19/01 (Chiquita), judgement of the CFI of 3.2.2005. See for a comparison between WTO and ECJ jurisprudence: Rapp-Lücke, Das rechtliche Verhältnis zwischen dem Streitbeilegungsgremium der WTO und dem Gerichtshof der EG, Baden-Baden 2004. See: Lavranos, Die EG darf WTO-Recht weiterhin ignorieren, Europäisches Wirtschafts- und Steuerrecht 2004, pp. 293-297. See: EC – Measures Affecting the Approval and Marketing of Biotech Products (GMOs), DS 291, 292, 293, available at: http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#bkmk32. See also: Shany, The First MOX Plant Award, Leiden Journal of International Law 2004, at p. 823. See further: Orrego Vicuña, International Dispute Settlement in an Evolving Global Society, Hersch Lauterpacht Memorial Lecture 2001, Cambridge 2004, pp. 20 ff. See: http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicdeclarations.htm. ICJ, Mr. Avena and 50 other Mexican nationals, judgment of 31.3.2004. See the following text of notification: Reference: C.N.186.2005.TREATIES-1 (Depositary Notification) OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING THE COMPULSORY SETTLEMENT OF DISPUTES VIENNA, 24 APRIL 1963 UNITED STATES OF AMERICA: NOTIFICATION OF WITHDRAWAL The Secretary-General of the United Nations, acting in his capacity as depositary, communicates the following: The above action was effected on 7 March 2005.(Original: English) I have the honor on behalf of the Government of the United States of America to refer to the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, done at Vienna April 24, 1963. This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol. See generally: Yasuaki, The ICJ: An Emperor without clothes? International Conflict Resolution, Art. 38 of the ICJ Statute and the Sources of International Law, in: Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda, The Hague 2002, pp. 191-212. Case C-469/03 (Miraglia), judgement of 10.3.2005; Joined case C-187/01 and C-385/01 (Gözütok and Brügge) [2003] ECR I-1345; Opinion of AG Maduro in Case C-160/03 (Spain v. Eurojust) of 16.12.2004; Opinion of AG Kokott in Case C-105/03 (Pupino) of 11.11.2004. See generally: Sugihara, The ICJ – Towards a higher role in the International Community, in: Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda, The Hague 2002, pp. 227-235. Paulson, Compliance with final judgements of the ICJ since 1987, AJIL 2004, pp. 434-461. See: Pellet, Strengthening the Role of the International Court of Justice as the principle judicial organ of the UN, The Law and Practice of International Courts and Tribunals 2004, pp. 159-180; Guillaume, The Future of International Judicial Institutions, ICLQ 1995, pp. 848-862. Dupuy, The Danger of Fragmentation or Unification of the International Legal System and the ICJ, NYU Journal of International Law and Politics 1999, p. 791 ff. It should be noted that such a court is known in other jurisdictions as well. For instance, in Israel a similar court exists that determines jurisdictional conflicts between religious courts. See e.g.: Martinez, Towards an International Judicial System, Stanford Law Review 2003, pp. 429-529, at pp. 487 ff.; Shahabuddeen, Consistency in holdings by International Tribunals, in: Ando et.al. (ed.) Liber Amicorum – Judge Shigeru Oda, The Hague 2002, Vol. 1, pp. 633-650. Shahabuddeen, at pp. 646-647. See: Slaughter, A new World Order, Chapter 2, Princeton 2004. Rao, Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation, Diversity or Cacophony?: New Judicial Sources of Norms in International Law – Symposium, Michigan Journal of International Law 2004, pp. 929-961 at p. 961 (emphasis added). See generally: Reinisch, The Use and Limits of Res Judicata and Lis Pendens, The Law and Practice of International Courts and Tribunals 2004, pp. 37-77. See further: Shany, Competing Jurisdiction of International Courts and Tribunals, Oxford 2004, pp. 212 ff. Reinisch, pp. 47-50. Ibid., pp. 55 ff. See further: Shany, Competing Jurisdiction of International Courts and Tribunals, Oxford 2004, pp. 170 ff. WT/DS141/AB/RW, EC – Anti dumping duties on imports of cotton-type bed linen from India – Recourse to Art. 21.5 DSU by India, para. 93 of 8.4.2003; WT/DS58/AN/RW, US – Import Prohibition of certain shrimp and shrimp products – Recourse to Art. 21.5 DSU by Malaysia, paras. 92-96, AB Report of 22.10.2001. 1