The Systemic Responsibility of the ECJ for Judicial Comity towards International Courts and Tribunals

International Courts and the European Legal Order

The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate in other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU Member States from signing agreements creating international courts, because those courts’ roles would necessitate construing EU law and their composition would mean they could not guarantee the ‘homogeneity’ necessary to EU law. The more recent of these opinions, concerning the European and Community Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU Member States are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.

The Governance of International Courts and Tribunals: Organizing and Guaranteeing Independence and Accountability - A Appeal for Research

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

An Ecological Item-Response Model for Multiple Subsets of Respondents with Application to the European Court of Justice

Scholars have extensively studied how the European Court of Justice (ECJ) interacts with Member State courts. The ECJ’s behaviour vis-à-vis international tribunals remains, however, underexplored despite its salience for EU global actorness. The ECJ does at times condone and at other times reject cooperation with international tribunals in that it either authorises or prohibits EU and Member State participation in relevant regimes. What drives ECJ behaviour? While intuitive, European law fails to fully account for it. This study draws on models of bounded discretion to explain ECJ behaviour in external judicial politics. It argues that two factors – namely jurisdictional overlap between the European legal order and international tribunals as well as the centrality of these tribunals in global governance – decisively influence the preferences of the ECJ, Member States, the European Commission and Parliament and thus delimit the range of politically viable rulings and shape ECJ behaviour.

The multiplication of international courts and tribunals in recent decades has paved the way for a judicialisation of international law and has therefore profoundly changed the landscape of international law. Whereas the existence of a panoply of dispute resolution avenues is a welcome development which may be conceptualised as part of an ongoing constitutionalisation of international law, it has concomitantly activated the problem of conflict between different judicial actors. Although doubtlessly designed as an international court sui generis, the ECJ forms part of this international dispute settlement architecture and has to compete with other international actors in the case of jurisdictional overlaps. The recent MOX plant saga is an illustration of these competing forces at play and underscores the self-perception of the ECJ as a constitutional court reluctant to pay deference to the pronouncements of other international judicial actors. Although fitting squarely with the Court’s mandate issued by the framers of the EC Treaty in Article 292, this approach risks an undesirable fragmentation of international law as a whole, which could be avoided by reference to a number of conflict avoidance devices available to international courts and tribunals.

The European Union is increasing its participation in dispute settlement systems in the new framework of proliferation of international courts and tribunals. Specifically, the rules of the United Nations Convention on the Law of the Sea (UNCLO) on jurisdictional settlement of disputes provided in section 2 of Part XV contains express provisions dealing with the participation of EU which are of interest to the study of the issue. Furthermore, there has been decisive progress of the EU and the Member State�s practice before the International Tribunal for the Law of the Sea (ITLOS). Recently, the advisory proceeding initiated by the Sub-regional Fisheries Commission (SRFC), before ITLOS (case num. 21) highlighted the internal difficulties involved in the appropriate coordination of the EU and the Member State's participation in proceedings before international tribunals. Additionally, the European Court of Justice has clarified a number of issues concerning the definition of EU position and its representation before international courts and tribunals.

The Legal Reasoning of the Andean Court of Justice in Comparative Context

Using the example of the European Court of Justice (ECJ), this article addresses the lack of historical contextualization which is prevalent in most general accounts of EU law and EU institutions. It argues that this narrative is the result of a tradition established by the founders of the discipline. For these early ‘Euro-lawyers’, distinguishing the practice of European institutions from earlier international institutions had important political implications. This was especially true with regard to the ECJ. By providing a selective and partly decontextualized narrative of this court and describing it as largely unprecedented in international law, early Euro-lawyers were not only able to bolster the ‘supranational’ and ‘sui generis’ character of their nascent discipline. They were also able to avoid comparisons between the ECJ and prior international courts and tribunals whose similarly wide-ranging powers and integrated nature had been considered as politically problematic.

This volume collects the essays presented at the workshop entitled �National Judges and Supranational Laws: On the Effective Application of EU Law and the ECHR�, hosted by the Sant�Anna School of Advanced Studies (Pisa) on 15 and 16 January 2010. The workshop gathered 21 scholars from across Europe to discuss two fundamental questions: whether domestic judiciaries handle European Union (EU) law and the European Convention of Human Rights (ECHR) in a similar manner; and whether national courts facilitate a convergence in the implementation of EU law and the ECHR in domestic legal orders. In order to answer these questions the participants were asked to review their national legal systems in the light of three parameters, each containing a complex array of specific questions. Under the �legal� parameter the authors were required, inter alia, to illustrate the status of EU law and the ECHR in the domestic hierarchy of sources and to explain whether there have been amendments of national constitutions or statutes following a decision of the European Court of Justice (ECJ) or the European Court of Human Rights (ECtHR). Under the �judicial� parameter the participants were asked, inter alia, to examine the case law of national courts (both constitutional and ordinary courts) in order to appraise whether special status is granted to EU law and the ECHR and to identify the effects of the judgments of the ECJ and of the ECtHR on national legal systems. Moreover, the contributors were invited to describe the solutions devised by national judges (if any) to handle conflicts between, on the one hand, the European legal orders and national laws and, on the other hand, between the ECJ and the ECtHR and domestic courts. Finally, under the �academic� parameter the authors were asked to explain what the understanding of EC and �

The European Court of Justice is an International Court

The achievements of the European Court of Justice in instilling the rule of law within the domain of economic integration is to witness to what extent public international law can be dynamic. For the Court of Justice, which attempted to slip its international law origins by characterizing European Community law as belonging to a ‘new legal order’; the post-Maastricht era has been a rude awakening. So effective was the European Court, during its first four decades, that Community law was seen as being set apart from traditional international law; as being sui generis. However, with the Maastricht Treaty and again with the Amsterdam Treaty, it has become evident that the creation of what is today termed the ‘European Union’ is governed by international law and that, ultimately, it is the States and not the European institutions – foremost among them the Court of Justice – which are the ‘Herren der Verträge’.Yet, within the domain of economic integration, the European Court has acted in a truly revolutionary manner for an international court. Barring witness to the achievements of the Luxembourg Court in this domain is to realize to what extent international law can be moulded to achieve results. The lesson to be learnt from the function of the European Court within the field of economic integration is that if there is State consensus, an international court can promote and actively ensure the rule of law. While the uniqueness of the European experience and that of the European Court of Justice may not be able to be grafted onto other areas of the international relations, what the evolution of the European Court does provide is a new way of thinking about international law. The supranational elements, those ‘constitutional’ areas of European law demonstrate the avenues that public international law can travel, if States are willing to allow it.

As private actors turn to international courts (ICs), we argue that judges can adopt pro-individual rights agendas to promote their own legitimacy. By leveling the odds for disempowered individuals and spotlighting their rights claims, ICs rebut charges that they are playthings of the powerful and cultivate support networks in civil society. We assess our theory by scrutinizing the first IC with private access: the European Court of Justice (ECJ). Established as an economic court and alleged to conceal a pro-business bias, we leverage original data demonstrating that the ECJ publicizes itself as protector of individuals and matches words with deeds. The ECJ ‘levels’, favoring individuals’ rights claims over claims raised by businesses boasting better legal teams. The ECJ then ‘spotlights’ pro-individual rights rulings via press releases that lawyers amplify in law journals. These findings challenge claims that ICs build legitimacy by stealth and the ‘haves’ come out ahead in litigation.

International courts exercise public authority. Their decisions affect individual and collective self-determination. Nowadays, international courts decide on criminal, constitutional and administrative matters, much in the same way as domestic courts. Possible tensions between international and domestic courts raise the question of how to frame international judicial authority vis-à-vis domestic courts in a way that contributes to the legitimacy of their decisions. To respond to these concerns, the article analyses the potential of a generalised principle of complementarity. The principle's underlying idea can be rooted back to several procedural and substantive manifestations of it in human rights courts and in international investment tribunals. It regulates the relationship between international and domestic courts in order to ensure individual legal protection and the balance of individual and collective interests. In accordance with the rationale of the Rome Statute, domestic courts are primary responsible in this regard; and only when they are unable or unwilling may international courts compensate domestic institutional deficiencies, safeguard subjective rights, ensure compliance with international law standards and strengthen domestic capacities. The function of the principle is twofold: (i) to structure the relationship between international and domestic courts—a relationship that is characterised by a division of labour, cooperation and mutual responsibility; and (ii) to normatively guide and evaluate the jurisprudence of international courts. In fulfilling these functions, the legitimating potential of complementarity can best be unfolded.