The Role of The Court of Justice of the European Union in Fragmentation of International Public Law

Abstract

The significance of judicial and arbitral bodies lies in the binding nature of their decisions, that directly influence the behavior of states. Therefore, the most obvious problem immediately associated with proliferation of international judicial bodies was a risk of inconsistent judgments that would impose conflicting obligations on states. Inconsistent judgments, in their turn, result from overlapping jurisdictions, when a few forums have jurisdiction to decide over the same or similar type of disputes. Naturally, the risk of jurisdictional overlaps grows together with the number of courts dealing with similar types of disputes. For instance, the ICJ and a relatively recently established International Criminal Tribunal for Former Yugoslavia have been deciding on the same point of law (which amounts to jurisdictional overlap) at arrived at divergent interpretations.Because of the increase in the risk of inconsistent judgments with the emergence of new courts, the question of proliferation of international judicial and arbitral bodies was included in the study on fragmentation of international law, conducted by a special Study Group within International Law Commission. Fragmentation was defined as a multidimensional phenomenon, with the difficulties ensuing from multiplication of international courts constituting its institutional aspects.Compulsory jurisdiction over particular type of disputes envisaged in constitutive instruments of certain courts makes jurisdictional overlaps even more complicated and harder to deal with. Among those, the position of the Court of Justice of the European Union is the most interesting, because the scope of its exclusive jurisdiction over interstate disputes was rather recently addressed by the Court in its case-law. Although the possibility of infringement actions for failure to fulfill obligation under EU law between EU Member States (MSs) [currently] envisaged in Art.259 of the Treaty on the Functioning of the European Union (TFEU) has been used for just few times during the last couple of decades, should such a dispute arise, compulsory jurisdiction of the ECJ applies.The scope of the ECJ’s compulsory jurisdiction ratione materiae in inter-MSs disputes was clarified in infringement proceeding against Ireland, whereby the Court extended its jurisdiction to public law disputes that involve a point of EU law. The judgment may re-shape jurisdictional relations between the ECJ and other international courts and tribunals and imposes certain constraints on EU MSs with regard to the choice of forums for their public law disputes. Eventually, these “institutional problems” of fragmentation connected with proliferation of international courts were left outside the scope of the Study Group’s findings, although it acknowledged their existence. As an illustration, the MOX plant dispute between Ireland and the UK is mentioned. The same set of facts gave rise to proceedings launched before different international fora, and ended up with the above mentioned infringement proceedings at the ECJ. Importantly, the dispute did not result in divergent judgments, but raised different issues, inter alia, about jurisdictional relations between different courts. It may be deduced that the Study Group opined that the jurisdictional position of the ECJ is important from the viewpoint of fragmentation of international public law. The Report does not explain, however, why and from what perspective that particular dispute and the role of the ECJ in it are relevant for the fragmentation debate.These questions will be considered in order to reach the purpose of the present thesis – to answer how does the ECJ compulsory jurisdiction over inter-MSs disputes contribute into fragmentation of international public law and how should the conflicts of jurisdictions involving the ECJ be dealt with in order to not obstruct the settlement of public law disputes between EU MSs.