Concurrence of Jurisdiction between the ECJ and other International Courts and Tribunals

Summary: While states increasingly have the possibility to settle environmental 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 environmental 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. In the first part of this two-part article the author discusses two developments in international law in detail. First, the aspect of institutionalisation of international law and second, the danger of fragmentation of international law. He then turns to the developments in European law. In particular, this section analyses the precise extend of the jurisdiction of the ECJ in regard to international environmental law, the jurisprudence of the ECJ on international law issues and its effect on the competence of the EC Member States to utilise dispute resolution mechanisms outside the EC Treaty. As an illustration of the problems associated with the concurrence of jurisdiction, the author discusses the MOX plant and Ijzeren Rijn disputes. The second instalment of the article (to be published in the October issue of EELR) will analyse the consequences of the concurrence of jurisdiction on the basis of the MOX plant and Ijzeren disputes and will wrap up the discussion by presenting a number of possible solutions. As a caveat, it should be noted that this paper does not deal with arbitration proceedings involving private parties and their relationship with Community law and international law.