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Fragmentation of International Law: Role of ECJ & WTO Appellate Body, Essays (high school) of Law

The proliferation of international courts and tribunals, the possible fragmentation of international law, and the implications for ec law and wto law. Case studies of the ecj and wto appellate body and their approaches to jurisdiction and the application of international law. The document also touches upon the unclos arbitral tribunal and the need for relevant community law to ensure the uniform application of ec law.

Typology: Essays (high school)

2011/2012

Uploaded on 10/15/2012

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Download Fragmentation of International Law: Role of ECJ & WTO Appellate Body and more Essays (high school) Law in PDF only on Docsity! 275 The Solange-Method as a Tool for Regulating Competing Jurisdictions Among International Courts and Tribunals NIKOLAOS LAVRANOS* I. INTRODUCTION In the past decade, the proliferation or multiplication of international courts and tribunals, competition between these courts, and the possible fragmentation of international law as a result of the lack of a hierarchical structure, has received increasing attention from a vast array of scholars and practitioners.1 It was therefore, appropriate that a conference on this topic entitled, “International Courts and Tribunals in the 21st Century: The Future of International Justice” be organized to reflect on the current situation and how to move forward.2 This article outlines two issues that were raised in the first panel of the conference for which this author was invited to * J.D., LL.M., Senior Researcher, Faculty of Law, ACIL, University of Amsterdam; Max Weber Fellow at the EUI, Florence, as of September 1, 2008. This article has been written as part of my NWO-sponsored research project, “Competing Jurisdiction Between the ECJ and Other International Courts and Tribunals” (2005-2009). I am indebted to Nicolas Vielliard for his assistance. The author can be contacted at nlavranos@yahoo.com. 1. See YUVAL SHANY, REGULATING JURISDICTIONAL RELATIONS BETWEEN NATIONAL AND INTERNATIONAL COURTS (2007) [hereinafter SHANY, REGULATING JURISDICTIONAL RELATIONS]; YUVAL SHANY, THE COMPETING JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS (2003) [hereinafter SHANY, COMPETING JURISIDICTIONS]; Nikolaos Lavranos, The MOX Plant and Ijzeren Rijn Disputes: Which Court is the Supreme Arbiter?, 19 LEIDEN J. INT’L L. 223, 223-46 (2006) [hereinafter Lavranos, The MOX Plant]. 2. A conference organized by the Project on International Courts and Tribunals (PICT) in cooperation with the Permanent Court of Arbitration and the Grotius Centre for International Legal Studies, held at the Peace Palace, The Hague, Nov. 30 – Dec. 1, 2007 [hereinafter PICT Conference at The Hague]. 276 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 comment upon. The first, more preliminary, question was whether signs of the fragmentation of international law could be detected as a result of the multiplication of international courts and tribunals. The second question was whether there is a need for further general or specific rules to regulate overlapping jurisdiction among those courts. More specifically, the question was put as to whether in this context, comity would be an appropriate general approach to handle competing jurisdiction. The analysis below follows the order of these questions. Accordingly, Part II presents several case-studies which illustrate the various effects of overlapping jurisdictions. Part III discusses possible solutions to avoid the negative effects associated with divergent or conflicting rulings by different courts and tribunals on the same legal issue. The focus will be on comity, specifically, on the more forceful variation of it, namely, the so-called Solange- method (Solange means “as long as” in German)3 developed by the German Federal Constitutional Court. II. CASE-STUDIES ON THE EFFECTS OF THE MULTIPLICATION OF INTERNATIONAL COURTS AND TRIBUNALS In this part, several case-studies will be presented to illustrate the effects that a multiplication of international courts and tribunals can have when they come to divergent or conflicting rulings or simply negate the existing jurisdiction of another court or tribunal. The multiplication of international courts and tribunals is not problematic on its own. On the contrary, it signals preparation on the part of states to use courts and tribunals for settling their disputes more often, rather than using armed forces. In other words, the multiplication of international courts and tribunals indicates a movement towards a rule of law based dispute settlement between states.4 Such multiplication, however, may raise problems when courts arrive at divergent or even conflicting rulings—as has been the case on several occasions. The primary sources of these problems stem from the lack of a hierarchical, legally binding relationship, between all the courts and tribunals. 3. Nikolaos Lavranos, Das So-Lange-Prinzip im Verhältnis von EGMR und EuGH, 41 EUROPARECHT 79, 79-92 (2006) [hereinafter Lavranos, Das So-Lange-Prinzip]. 4. See Ernst-Ulrich Petersmann, Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice, 10 J. INT’L ECON. L. 529, 529 (2007) [hereinafter Petersmann, Multilevel Judicial Governance of International Trade]. 2008] The Solange-Method 279 First, Ireland wanted to obtain from the United Kingdom all available information regarding the radioactive discharges of the MOX plant by relying on Article 9 of OSPAR.16 Article 9(2) requires the contracting parties to make available information “on the state of the maritime area, on activities or measures adversely affecting or likely to affect it.”17 Second, Ireland believed that the discharge of the MOX plant contaminated its waters and, therefore, constituted a violation of UNCLOS. Accordingly, Ireland sought an award for the disclosure of information regarding the MOX plant from the United Kingdom on the basis of the OSPAR convention as well as a declaration that the United Kingdom violated its obligations under UNCLOS.18 After lengthy negotiations, Ireland and the United Kingdom agreed to establish arbitral tribunals under both the OSPAR and UNCLOS conventions in order to resolve the dispute.19 The dispute between the two EC member states also involved EC law, specifically EC legislation and the European Atomic Energy Community (EURATOM) treaty. Article 292 of the Treaty Establishing the European Community (EC Treaty), requires all disputes between EC member states involving EC law to be brought exclusively before the ECJ.20 Thus, this dispute raised the potential overlap of jurisdiction between the two arbitral tribunals and the ECJ.21 Eventually, as discussed below, the MOX Plant dispute came before the ECJ—at least with regard to the UNCLOS dispute. 2. The OSPAR Arbitral Tribunal Award In its decision on July 2, 2003, the OSPAR arbitral tribunal asserted its jurisdiction over the case and rendered a final award.22 The tribunal held that the United Kingdom did not violate the OSPAR Convention by not disclosing the information sought by 16. See Shany, The First MOX Plant Award, supra note 15. 17. Convention for the Protection of the Marine Environment of the North-East Atlantic art. 9(2), Sept. 22, 1992, 32 I.L.M. 1069 [hereinafter OSPAR Convention]. 18. See Shany, The First MOX Plant Award, supra note 15, at 818. 19. Id. at 816. 20. PAUL CRAIG & GRÁINNE DE BURCA, EU LAW 203 (4th ed. 2008). 21. For a detailed analysis see Lavranos, The MOX Plant, supra note 1, at 213-41. 22. OSPAR Award, supra note 6. See also, Ted L. McDorman, Access to Information Under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), 98 AM. J. INT’L L. 330, 330-41 (2004). 280 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 Ireland.23 With respect to the possible implications of EC law to its decision and in particular, the possible jurisdiction of the ECJ, the tribunal refused to take into account any other sources of international law or European law that might potentially be applicable.24 Whereas Article 32(5)(a) of OSPAR states that the arbitral tribunal shall decide according to the “rules of international law, and, in particular, those of the OSPAR Convention,” the tribunal asserted that the OSPAR Convention was to be considered a “self-contained” dispute settlement regime, such that the tribunal could base its decision on the convention alone.25 3. Analysis Despite the fact that a multitude of other relevant sources of international law or European law were applicable in this case, such as EC Directive 90/313,26 replaced by EC Directive 2003/4;27 ECJ jurisprudence;28 and the Convention on Access to Information, Public Participation in Decision Making and Access to Justice Regarding Environmental Matter (Aarhus Convention),29 the OSPAR arbitral tribunal did not consider itself competent to take these into account.30 More specifically, the OSPAR arbitral tribunal chose to interpret the relevant provision of the OSPAR Convention much more restrictively than the ECJ’s interpretation of comparable EC law provisions. While the tribunal was not legally bound to follow the ECJ’s jurisprudence, the similar context of the relevant OSPAR and EC law provisions, and the fact that the dispute was between two EC member states would have been sufficient reasons for the OSPAR arbitral tribunal to give judicial deference to the ECJ. By failing to do so, the tribunal created a fragmenting 23. OSPAR Final Award, supra note 6, ¶ 78. 24. Id. ¶¶ 85-86. 25. Id. ¶ 143. See generally OSPAR Convention, supra note 17. 26. Council Directive 90/313, art. 4, 1990 O.J. (L 158) 56 (EC). 27. Council Directive 90/313, art. 11, 2003 O.J. (L 41) 26 (EC). 28. See Case C-186/04, Housieaux v. Délégués du Conseil de la Région de Bruxelles- Capitale, 2005 E.C.R. I-3299. See also Case C-233/00, Comm’n v. France, 2003 E.C.R. I- 6625; Case C-316/01, Glawischnig, 2003 E.C.R. I-5995; Case C-217/97, Comm’n v. Germany, 1999 E.C.R. I-5087; Case C-321/96, Mecklenburg v. Kreis Pinneberg, 1998 E.C.R. I-3809. 29. Council Decision 2005/370, 2005 O.J. (L 124) 1 (EC). The convention has been ratified by all EC member states and recently also by the EC itself. 30. OSPAR Final Award, supra note 6, ¶¶ 100-104. 2008] The Solange-Method 281 discrepancy between EC law and the OSPAR Convention as to the standard of access to information on environmental issues. 4. The UNCLOS Arbitral Award In contrast to the straight-forward OSPAR proceeding discussed above, the UNCLOS proceeding appears to be more complicated because of the various dispute settlement options offered by UNCLOS. Specifically, Articles 287 and 288 of UNCLOS provide that various forums can be selected by the contracting parties to settle their disputes; parties may use the International Tribunal for the Law of the Sea (ITLOS), the ICJ or ad hoc arbitral tribunals.31 Moreover, Article 282 explicitly recognizes the possibility of bringing a dispute before settlement bodies established by regional or bilateral agreements.32 Because the parties had not agreed to designate a particular dispute settlement forum, the dispute was submitted to arbitration in accordance with Annex VII Article 287(5) of UNCLOS.33 Pending the establishment of this ad hoc arbitral tribunal, however, Ireland requested from ITLOS interim measures under Article 290(5) of UNCLOS.34 Ireland asked that the United Kingdom be ordered to suspend the authorization of the MOX plant or at least take the measures necessary to halt the operation of the MOX plant instantly.35 Regarding the issue of jurisdiction, the ITLOS determined that the conditions of Article 290(5) of UNCLOS were prima facie met so that under Annex VII the arbitral tribunal had jurisdiction to decide on the merits of the case.36 Furthermore, the ITLOS ordered both parties to cooperate and enter into consultations regarding the operation of the MOX plant and its emissions into the Irish Sea, pending the decision on the merits of the arbitral award.37 31. United Nations Convention on the Law of the Sea arts. 287-288, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 3. 32. Id. at art. 282. 33. MOX Plant (No. 10) (Ir. v. U.K.), supra note 7. 34. Id. ¶ 33. 35. Id. ¶ 27. 36. Id. ¶ 62. Note also, that even if the condition of Art. 290(5) were not prima facie found, the tribunal deemed that provisional measures may still be prescribed in emergency situations. Id. ¶ 64. 37. Id. 284 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 before the UNCLOS arbitral tribunal.55 The Court of Justice went as far as stating, [T]he institution and pursuit of proceedings before the arbitral tribunal . . . involve a manifest risk that the jurisdictional order laid down in the Treaties and, consequently, the autonomy of the Community legal system may be adversely affected.56 The ECJ did not simply claim exclusive jurisdiction in this case, but found it necessary to make further remarks. First, only the ECJ may determine whether, and to what extent, provisions of the international agreement in question fall outside its jurisdiction, and whether it may be adjudicated by another dispute settlement body.57 If member states doubt whether a dispute involves Community law aspects, they are essentially obliged to obtain an answer from the ECJ before bringing the case to another dispute settlement body. Second, the ECJ found that Article 292 EC must be understood as a specific expression of the member states’ more general duty of loyalty as enshrined in Article 10 EC.58 Thus, member states have a duty to inform and consult with the competent Community institutions (i.e., the Commission and/or the ECJ) prior to bringing a case before a dispute settlement body other than the ECJ.59 In this way, the Commission and the ECJ are eventually informed of a dispute settlement procedure that may interfere with Article 292 EC. This in turn puts the Commission in a position to start an Article 226 EC infringement procedure against a member state if it determines that Article 292 EC has been violated. This is, however, entirely in the discretion of the Commission. In contrast to the Commission, the ECJ has no authority to seize ex officio by itself a case in order to protect its exclusive jurisdiction. 55. Id. ¶ 133. 56. Id. ¶ 154 (emphasis added). 57. Id. ¶ 135. 58. Id. ¶ 169 (“The obligation devolving on Member States, set out in Article 292 EC, to have recourse to the Community judicial system and to respect the Court’s exclusive jurisdiction, which is a fundamental feature of that system, must be understood as a specific expression of Member States’ more general duty of loyalty resulting from Article 10 EC.”). 59. Id. ¶ 179. 2008] The Solange-Method 285 6. Analysis The MOX Plant dispute was the first case that highlighted the potential problems associated with exclusive ECJ jurisdiction and the multiplication of international courts and tribunals. The ECJ decided to defend its exclusive jurisdiction to the fullest as far as it concerned disputes between EC member states that potentially involved EC law. It did so by substantially limiting the freedom of EC member states to select a dispute settlement body of their choice. Only if the ECJ establishes that no EC law issues are involved, will EC member states be in a position to bring their dispute before another dispute settlement body. This way, the ECJ hopes to protect the uniform application of EC law in all EC member states. The different approaches by the OSPAR and UNCLOS arbitral tribunals, however, illustrate that the ECJ cannot force a party to take EC law or the ECJ’s jurisdiction into account. The UNCLOS arbitral tribunal showed comity by staying the proceedings and requesting the parties to check first whether the jurisdiction of the ECJ was triggered in this case. In contrast, the OSPAR arbitral tribunal did not show any comity towards the ECJ. The MOX Plant dispute also revealed that the ECJ is quite helpless when it comes to defending its exclusive jurisdiction; it cannot prevent member states from going to another court. Only the Commission can take action against such a move if it considers it necessary and appropriate. In sum, the MOX Plant dispute exhibits fragmenting effects as far as the OSPAR Convention vis-à-vis EC access on information law, while at the same time showing unifying effects by preserving the uniform application of EC environmental law as far as UNCLOS law is concerned. B. The Ijzeren Rijn Dispute 1. The Facts The Ijzeren Rijn (also known as Iron Rhine) case concerned a dispute between the Netherlands and Belgium as to which of the parties had to pay the costs for the revitalization of an old railway 286 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 line.60 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 Rhine basin-area in Germany.61 Belgium had obtained a right of transit through the Netherlands on the basis of two treaties dating back to 1839 (Treaty of Separation) and 1897 (Railway Convention).62 After 1991 the railway line was no longer used.63 In the meantime, the Netherlands assigned an area (the Meinweg, close to the city of Roermond) which the railway line crosses as a “special area of conservation” according to the EC Habitats Directive.64 In 1994 the Netherlands also identified the Meinweg as a special protected area in accordance with the EC Birds Directive.65 The Birds Directive, however, was superseded by the Habitats Directive as far as what is relevant in the present dispute.66 In addition, the Meinweg area was identified as a national park and a “silent area” under domestic legislation.67 It is at this point that the relevancy of EC law in this dispute became apparent. In particular, Article 6 of the Habitats Directive,68 imposed strict conditions for any activities in a “special area of conservation” such as the Meinweg area. Despite this designation of protected status for the Meinweg area, Belgium expressed its intention to start using the railway line again.69 As a result, discussions took place between Belgium and the Netherlands regarding the revitalization of the railway line.70 The impact studies that were conducted in order to assess the possibility of a revitalization determined that additional costs of about five hundred million euros would be involved in order to 60. The details of the dispute can be found at the website of the Permanent Court of Arbitration, supra note 15. See also, Ivan van Bladel, The Iron Rhine Arbitration Case: On the Right Legal Track? An Analysis of the Award and of its Relation to the Law of the European Community, 18 HAGUE Y.B. OF INT’L L. 3, 3-22 (2005); THE HAGUE PERMANENT COURT OF ARBITRATION, THE IRON RHINE (IJZEREN RIJN) ARBITRATION (BELGIUM-NETHERLANDS) AWARD OF 2005 153-193 (2007). 61. PCA Awards Series, supra note 9, ¶¶ 16, 42. 62. Id. ¶¶ 31, 42. 63. Id. ¶ 19. 64. Id. ¶ 128. See also Council Directive 92/43 1992 O.J. (L 206) 7 (EC). 65. PCA Awards Series, supra note 9, ¶ 128. 66. Id. 67. Id. 68. Council Directive 92/43, 1992 O.J. (L 206). For recent cases concerning Art. 6 of the Habitats Directive, see Case C-388/05, Comm’n v. Italy, 2007 E.C.R. I-0000. 69. PCA Awards Series, supra note 9, ¶¶ 21-23. 70. Id. 2008] The Solange-Method 289 3. Analysis It is remarkable that the Ijzeren Rijn arbitral tribunal considered itself able to render its award despite the fact that Community law (Habitats Directive and Article 292 EC) was clearly applicable in this dispute and thus needed to be interpreted and applied. This would have triggered the exclusive jurisdiction of the ECJ based on Article 292 EC. As a consequence of the fact that the Ijzeren Rijn arbitral tribunal exercised its jurisdiction, the Habitats Directive was not applied in this case, however, it was clearly applicable. That, in turn, affected the uniform application of Community law in all EC member states. Due to the fact that the Ijzeren Rijn arbitral tribunal was not in a position to request a preliminary ruling from the ECJ because it did not meet the conditions of a proper court within the meaning of Article 234 EC,81 the arbitral tribunal was all the more obliged to refuse its jurisdiction in this case and refer the parties to the ECJ as the only proper forum. Consequently, the Ijzeren Rijn arbitral tribunal caused fragmentation—not so much within the international legal order—but rather within the European legal order by adjudicating a case that was clearly an EC law matter. Finally, this case confirms the observation made above regarding the MOX Plant dispute that arbitral tribunals are not 81. The ECJ formulated the conditions for a court or tribunal to be able to request a preliminary ruling from the ECJ as follows: 12. In order to determine whether a body making a reference is a court or tribunal of a Member State for the purposes of Article 234 EC, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult [1997] ECR I- 4961, paragraph 23, and the case-law there cited, and Case C-516/99 Schmid [2002] ECR I-4573, paragraph 34). 13. Under the Court’s case-law, an arbitration tribunal is not a court or tribunal of a Member State’ within the meaning of Article 234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are not involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator (Case 102/81 Nordsee’ Deutsche Hochseefischerei [1982] ECR 1095, paragraphs 10 to 12, and Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraph 34). Case C-125/04, Denuit v. Transorient - Mosaïque Voyages & Culture SA, 2005 E.C.R. I- 923, ¶¶ 12-13. It is submitted that this also applies in analogy to international arbitral tribunals. 290 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 particularly concerned with the possibility that the exclusive jurisdiction of the ECJ may be triggered in a certain case. Instead, tribunals prefer to seize jurisdiction and decide the case even if it requires presenting flawed legal arguments. C. The Mexico Soft Drinks Dispute 1. The Facts In 2004 the United States complained about certain tax measures imposed by Mexico on soft drinks and other beverages that use any sweetener other than cane sugar.82 The tax measures concerned included: (i) a 20% tax on soft drinks and other beverages that use any sweetener other than cane sugar (“beverage tax”), which is not applied to beverages that use cane sugar; and (ii) a 20% tax on the commissioning, mediation, agency, representation, brokerage, consignment and distribution of soft drinks and other beverages that use any sweetener other than cane sugar (“distribution tax”).83 The United States considered these taxes inconsistent with Article III of GATT 1994, in particular, Article III:2, first and second sentences, and Article III:4.84 Accordingly, the United States requested consultations with Mexico, which were unsuccessful.85 Consequently, the United States instituted dispute settlement proceedings against Mexico before the WTO.86 As a preliminary point, Mexico raised the issue of jurisdictional competition. More specifically, Mexico requested the WTO panel to decline to exercise its jurisdiction in favor of an Arbitral Panel under Chapter Twenty of NAFTA.87 In short, Mexico argued that this dispute involved two NAFTA states and touched on NAFTA provisions and, therefore, should be treated as a NAFTA dispute rather than a WTO dispute.88 Indeed, Mexico claimed that it had adopted the measure in order to force the United States to cooperate in finding a resolution to the dispute 82. Tax Measures Panel Report, supra note 10, ¶ 1.1. 83. Id. ¶ 2.2. 84. Id. ¶ 1.2. 85. Id. ¶ 1.1. 86. Id. ¶ 1.4. 87. Id. ¶ 3.2. 88. Id. ¶ 7.11. 2008] The Solange-Method 291 within the framework of NAFTA.89 Accordingly, Mexico argued that a NAFTA panel would be in a better position to decide this dispute.90 It should be noted that Mexico and the United States had been engaged in a broader dispute on sugar for quite some time that has been litigated in various proceedings before the WTO and NAFTA.91 2. The WTO Panel Ruling In a preliminary ruling, the WTO panel rejected Mexico’s request and found instead that under the Dispute Settlement Understanding (DSU) it had no discretion to decide whether or not to exercise its jurisdiction in a case properly before it.92 The WTO panel added that even if it had such discretion, it “did not consider that there were facts on record that would justify the panel declining to exercise its jurisdiction in the present case.”93 In its reasoning, the WTO panel opined that “discretion may be said to exist only if a legal body has the freedom to choose among several options, all of them equally permissible in law.”94 According to the panel, “such freedom . . . would exist within the framework of the DSU only if a complainant did not have a legal right to have a panel decide a case properly before it.”95 Referring to Article 11 of the DSU and to the ruling of the Appellate Body in Australia—Salmon, the panel observed that “the aim of the WTO dispute settlement system is to resolve the matter at issue in particular cases and to secure a positive solution to disputes” and that a panel is required “to address the claims on which a finding is necessary to enable the [Dispute Settlement Body] to make sufficiently precise recommendations or rulings to the parties.”96 89. Id. ¶ 8.89. 90. Id. ¶ 7.11. 91. For detailed discussions of the dispute see Alice Vacek-Aranda, Sugar Wars: Dispute Settlement Under NAFTA and the WTO As Seen Through the Lens of the HFCS Case and Its Effects on U.S.-Mexican Relations, 12 TEX. HISP. J. L. & POL’Y 121, 121-60 (2006) and Patricia Larios, The Fight at the Soda Machine: Analyzing the Sweetener Trade Dispute Between the United States and Mexico Before the World Trade Organization, 20 AM. U. INT’L L. REV. 649, 649-702 (2005). 92. Tax Measures Panel Report, supra note 10, Annex B (fax from Chairman of the Panel, dated Jan. 18, 2005). 93. Id. ¶ 7.18. 94. Id. ¶ 7.7. 95. Id. 96. Id. ¶ 7.8 (referring to Appellate Body Report, Australia—Measures Affecting Importation of Salmon, ¶ 223, WT/DS18/AB/R (Oct. 20, 1998)). 294 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 The WTO Appellate Body started its analysis by noting that Mexico did not question whether the WTO panel had jurisdiction to hear the U.S. claims.110 Moreover, Mexico did not claim that there were “legal obligations under the NAFTA or any other international agreement to which Mexico and the United States are both parties, which might raise legal impediments to the Panel hearing this case.”111 “Instead, Mexico’s position [was] that, although the [WTO] Panel had the authority to rule on the merits of the United States’ claims, it also had the ‘implied power’ to abstain from ruling on them, and ‘should have exercised this power in the circumstances of this dispute.’”112 Hence, the issue before the Appellate Body was not “whether the [WTO] Panel was legally precluded from ruling on the United States’ claims that were before it, but, rather, whether the [WTO] Panel could decline, and should have declined, to exercise jurisdiction with respect to the United States’ claims under Article III of the GATT 1994 that were before it.”113 The WTO Appellate Body continued by agreeing with Mexico’s claim that “WTO panels have certain powers that are inherent in their adjudicative function.”114 According to the Appellate Body, “WTO panels have the right to determine whether they have jurisdiction in a given case, as well as to determine the scope of their jurisdiction.”115 In this regard, the [WTO] Appellate Body has previously stated that it is a widely accepted rule that an international tribunal is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it. Furthermore, the [WTO] Appellate Body has also explained that [WTO] panels have a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated. For example, [WTO] panels may exercise judicial economy, that is, refrain 110. Id. ¶ 44. 111. Id. (citation omitted). 112. Id. (citations omitted). 113. Id. 114. Id. ¶ 45. 115. Id. 2008] The Solange-Method 295 from ruling on certain claims, when such rulings are not necessary to resolve the matter in issue in the dispute.116 But at the same time, “the [WTO] Appellate Body has cautioned that to provide only a partial resolution of the matter at issue would be false judicial economy.”117 In the WTO Appellate Body’s view, it does not necessarily follow, however, from the existence of these inherent adjudicative powers that, once jurisdiction has been validly established, WTO panels would have the authority to decline to rule on the entirety of the claims that are before them in a dispute.118 On the contrary, the WTO Appellate Body noted that, while recognizing WTO panels’ inherent powers, it has previously emphasized that: Although panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU. . . . Nothing in the DSU gives a panel the authority either to disregard or to modify . . . explicit provisions of the DSU.119 Indeed, the “fact that a [WTO] Member may initiate a WTO dispute whenever it considers that any benefits accruing to that Member are being impaired by measures taken by another Member implies that that Member is entitled to a ruling by a WTO panel.”120 According to the WTO Appellate Body, “[a] decision by a [WTO] panel to decline to exercise validly established jurisdiction would seem to ‘diminish’ the right of a complaining Member to ‘seek the redress of a violation of obligations’ within the meaning of Article 23 of the DSU, and to bring a dispute pursuant to Article 3.3 of the DSU. This would not be consistent with a panel’s obligations under Articles 3.2 and 19.2 of the DSU.”121 116. Id. ¶ 45 (internal quotes and citations omitted). 117. Id. (internal quote and citation omitted). 118. Id. ¶ 46 (emphasis added). 119. Id. (citing Appellate Body Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, ¶ 92, WT/DS50/AB/R (Dec. 19, 1997)) (emphasis in original). 120. Id. ¶ 52 (internal citations omitted). 121. Id. ¶ 53 (citations omitted). See also Understanding on Rules and Procedures Governing the Settlement of Disputes, art 3.2, 19.2, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU]. 296 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 Finally, with regard to the issue of jurisdictional competition, the WTO Appellate Body, like the WTO Panel, did not express a view as to whether there may be other circumstances in which legal impediments could exist that would preclude a panel from ruling on the merits of the claims that are before it.122 Thus, the WTO Appellate Body saw no reason to disagree with the Panel’s decision.123 4. Analysis The Mexico Soft Drinks case appears to be the first case in which the issue of jurisdictional competition between dispute settlement systems established by regional trade agreements (RTAs) and the global WTO dispute settlement system was explicitly raised. The WTO Panel and Appellate Body, however, were able to avoid dealing with this issue mainly on factual grounds arguing that the dispute before the WTO was a different one than that raised before NAFTA. Regardless of whether that argument is true or not, the general approach of the WTO Panel and Appellate Body shows little consideration for comity. The WTO Appellate Body seems to argue that if a WTO panel has jurisdiction in a case, it must exercise it by rendering a ruling, regardless of whether or not other courts or tribunals might have jurisdiction or have been seized by the dispute. Of course, a different approach is imaginable in which a WTO panel or Appellate Body relinquishes its jurisdiction and orders the parties to resolve their dispute before another dispute settlement body, or alternatively, the WTO panel or Appellate Body could stay the proceedings until that other body renders its decision. In this way, the WTO panel or Appellate Body could take that decision into account when adjudicating the dispute. In sum, both the WTO Panel as well as the WTO Appellate Body carefully circumvented the issue by not expressing any clear view on the topic of jurisdictional competition. 122. Mexico Appellate Body Report, supra note 103, ¶ 54. 123. Id ¶ 57. 2008] The Solange-Method 299 2. The WTO Panel Ruling The WTO Panel accepted that it was only after the MERCOSUR arbitral tribunal found Brazil’s ban on the importation of remolded tires to constitute a new restriction on trade prohibited under MERCOSUR that Brazil exempted remolded tires originating from MERCOSUR countries from the application of the import ban.140 For the WTO panel, the MERCOSUR exemption “does not seem to be motivated by capricious or unpredictable reasons [as it] was adopted further to a ruling within the framework of MERCOSUR, which has binding legal effects for Brazil, as a party to MERCOSUR.”141 The WTO Panel added that the discrimination arising from the MERCOSUR exemption was not “a priori unreasonable,”142 because this discrimination arose in the context of an agreement of a type expressly recognized under Article XXIV of the GATT 1994 that “inherently provides for preferential treatment in favour of its members, thus leading to discrimination between those members and other countries.”143 According to the WTO Panel, the MERCOSUR arbitral tribunal ruling provided a reasonable basis to enact the MERCOSUR exemption, with the implication that the resulting discrimination is not arbitrary.144 The WTO Panel indicated, however, that it was not suggesting that “the invocation of any international agreement would be sufficient under any circumstances, in order to justify the existence of discrimination in the application of a measure under the chapeau of Article XX.”145 The WTO panel concluded that the “MERCOSUR exemption” had not resulted in the import ban being applied in a manner that would constitute arbitrary or unjustifiable discrimination.146 Finally, the WTO Panel explicitly stated that it was not in a position to assess in detail the choice of arguments by Brazil in the 140. Id. ¶ 7.272. 141. Id. 142. Id. ¶ 7.273. 143. Id. 144. Id. ¶ 7.281. 145. Id. ¶ 7.283. The Panel also considered that it was not contrary to the terms of Article XXIV: 8(a) of the GATT 1994—which specifically excludes measures taken under Article XX from the requirement to liberalize “substantially all the trade” within a customs union—to take into account, as it did, “the fact that the MERCOSUR exemption was adopted as a result of Brazil’s obligations under MERCOSUR.” Id. ¶ 7.284. 146. Id. ¶ 7.289. 300 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 MERCOSUR proceedings or to second-guess the outcome of the case in light of Brazil’s litigation strategy in those proceedings.147 Indeed, the WTO Panel considered it inappropriate to engage in such an exercise.148 Moreover, the Panel underlined that while the particular litigation strategy followed in that instance by Brazil turned out to be unsuccessful, it is not clear that a different strategy would necessarily have led to a different outcome.149 Hence, the WTO Panel sided on these points with the position of Brazil. 3. The WTO Appellate Body Ruling The EC appealed the Panel’s ruling to the WTO Appellate Body.150 The WTO Appellate Body’s started by pointing out that even though the discrimination between MERCOSUR countries and other WTO Members in the application of the import ban was introduced as a consequence of a ruling by a MERCOSUR arbitral tribunal, that ruling is not an acceptable rationale for the discrimination.151 That ruling is not an acceptable rationale because it bears no relationship to the legitimate objective pursued by the import ban that falls within the purview of Article XX(b).152 Accordingly, the WTO Appellate Body found that the “MERCOSUR exemption” had resulted in the import ban being applied in a manner that constitutes arbitrary or unjustifiable discrimination.153 The WTO Appellate Body also stated that, like the WTO Panel, it does not consider Brazil’s decision to comply with the MERCOSUR arbitral tribunal ruling as “capricious” or “random.”154 Indeed, according to the WTO Appellate Body, “[a]cts implementing a decision of a judicial or quasi-judicial body–such as the MERCOSUR arbitral tribunal—can hardly be characterized as an act that is ‘capricious’ or ‘random.’”155 According to the WTO Appellate Body, however, discrimination can result from a rational decision or behavior and still be 147. Id. ¶ 7.276. 148. Id. 149. Id. 150. Brazil Appellate Body Report, supra note 11. 151. Id. at 90, ¶ 228. 152. Id. 153. Id. 154. Id. at 91, ¶ 232. 155. Id. 2008] The Solange-Method 301 “arbitrary or unjustifiable” if it is explained by a rationale that bears no relationship or opposes any objectives of Article XX of GATT.156 Thus, the Appellate Body concluded that the “MERCOSUR exemption” had resulted in the import ban being applied in a manner that constitutes arbitrary or unjustifiable discrimination.157 The WTO Appellate Body then turned to Brazil’s defense strategy before the MERCOSUR arbitral tribunal. It noted that Brazil could have sought to justify the challenged import ban on the grounds of human, animal, and plant health under Article 50(d) of the Treaty of Montevideo.158 Brazil, however, decided not to do so. The WTO Appellate Body again explicitly stated, like the WTO Panel, that it would not be appropriate for it to second-guess Brazil’s decision not to invoke Article 50(d).159 At the same time, however, the WTO Appellate Body inferred from this that Article 50(d) of the Treaty of Montevideo, and the discrimination associated with the “MERCOSUR exemption” does not necessarily result from a conflict between provisions under MERCOSUR and the GATT 1994.160 In sum, the WTO Appellate Body reversed the findings of the WTO Panel on this point. 4. Analysis The Brazilian Tyre case can be considered an evolution from the Mexican Soft Drinks case since the WTO Panel and Appellate Body could not circumvent the fact that the basis of this dispute was the MERCOSUR arbitral tribunal’s ruling. This dispute is particularly interesting because it shows the opposite approach adopted by the WTO Panel and the Appellate Body regarding the weight that should given to the MERCOSUR arbitral tribunal’s ruling. The WTO Panel accepted Brazil’s defense that the measure was adopted in order to implement the MERCOSUR arbitral tribunal’s ruling (i.e., to fulfill its international obligations). Since 156. Id. at 91-92, ¶ 232. 157. Id. at 92, ¶ 233. 158. Id. at 92, ¶ 234. See also 1980 Montevideo Treaty Establishing the Latin American Integration Association (ALADI) art. 50(d), Aug. 12, 1980 [hereinafter 1980 Montevideo Treaty] (“No provision under the present Treaty shall be interpreted as precluding the adoption and observance of measures regarding . . . [p]rotection of human, animal and plant life and health.”). 159. Brazil Appellate Body Report, supra note 11. 160. Id. at 92, ¶ 234. 304 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 other dispute settlement bodies is the most cooperative answer to this problem. E. The ICJ’s Genocide Ruling 1. The Facts The war and killings in the Balkans were so widespread that a special court, the International Criminal Tribunal for the former Yugoslavia (ICTY), was established by the United Nations to prosecute individuals responsible for those acts.165 Accordingly, the ICTY has rendered numerous judgments in which it has punished individuals responsible for the horrendous crimes that were committed during the 1990s, such as ethnic cleansing and mass rapes.166 In one of the most discussed cases, Tadic,167 the ICTY was not concerned with a question of state responsibility, but with the nature of armed conflicts.168 In order to ascertain whether the conflict was international, however, the ICTY Chamber needed to look into the rules on state responsibility.169 The ICTY Chamber identified two degrees of control, the ICJ’s Nicaragua “effective control” test170 and the previously established “overall control” test.171 The ICTY Chamber noted that the former is more applicable to private individuals engaged by a state to perform specific illegal acts in the territory of another state and the latter is more applicable to organized and hierarchically structured groups.172 The ICTY Appeals Chamber took the view that acts committed by Bosnian Serbs could give rise to international responsibility of the Federal Republic of Yugoslavia (FRY—as it then was) on the basis of the overall control exercised by the FRY over the Republika Srpska and the VRS (army of the Republika Srpska).173 Their view remained without there being any need to 165. See S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (establishing the ITCY). 166. See International Criminal Tribunal for the former Yugoslavia [ICTY], http://www.icty.org (last visited Jan. 26, 2009). 167. Prosecutor v. Tadic, Case No. IT-94-1-l, Appeals Judgment, 34-75 (July 15, 1999) [hereinafter Tadic Appeals Judgment]. 168. See id. at 34, ¶¶ 84-85. 169. Id. at 42, ¶ 105. 170. Id. at 40, ¶¶ 99-100. 171. Id. at 56, ¶ 131. 172. Id. at 50, ¶¶ 124-25. 173. Id. at 69, ¶ 156. 2008] The Solange-Method 305 prove that each operation was carried out on the FRY’s instructions, or under its effective control. Accordingly, in its Tadic judgment, the ICTY expressly adopted a conflicting view on the issue of use of force in customary international law.174 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.” From there, it went on to declare that the law was contrary to the ICJ’s ruling.175 In a subsequent case, the ICTY Appeals Chamber further declared that this contrary statement of the law had to be followed notwithstanding its asserted differences with the point of view of the ICJ.176 It could be argued that the test of “overall control” is flexible, as in the Celebici177 case where the ICTY Appeals Chamber held that “[t]he ‘overall control’ test could thus be fulfilled even if the armed forces acting on behalf of the ‘controlling State’ had autonomous choices of means and tactics although participating in a common strategy along with the controlling State.”178 In separate proceedings before the ICJ, Bosnia-Herzegovina, relying in particular on the Convention on the Prevention and Punishment of the Crime of Genocide 1948, argued that Serbia shared with the Republika Srpska the vision of a “Greater Serbia.”179 Consequently, they argued that Serbia gave its support to those persons and groups responsible for the crimes, which allegedly constitute genocide.180 Bosnia-Herzegovina submitted that Serbia armed and equipped those persons and groups throughout the war and, therefore, should be held responsible.181 174. See MOHAMED SHAHABUDDEEN, Consistency in Holdings of International Tribunals, in LIBER AMICORUM JUDGE SHIGERU ODC 633, 633-50 (Nisuke Ando et al. eds., 2002). 175. Tadic Appeals Judgment, supra note 167, at 47, ¶ 115. 176. Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Judgment, 92 (Mar. 24, 2000) [hereinafter Aleksovski Appeals Judgment]. 177. Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-A, Appeals Judgment (Feb. 20, 2001) [hereinafter Delalic Appeals Judgment]. 178. Id. at 15, ¶ 47. 179. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 12, ¶ 237. 180. Id. 181. Id. ¶ 239. 306 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 2. The ICJ’s Genocide Judgment182 The massacre committed at Srebrenica in July 1995 had been found to constitute the crime of genocide within the meaning of Articles II and III, paragraph (a) of the Convention on the Prevention and Punishment of the Crime of Genocide (1948).183 The ICJ’s starting point was the question of whether the massacre was attributable in whole or in part to the Respondent, Serbia, alone at the time of the judgment. This question may be broken down into two parts.184 The first question is whether organs of the Respondent perpetrated the acts committed at Srebrenica, i.e., whether the acts were committed by persons or entities whose conduct is necessarily attributable to the Respondent because they are in fact the instruments of its action.185 If this question is answered in the negative, the next question is whether the acts in question were committed by persons who were not organs of the Respondent, but did, nevertheless, act on the instructions or under the control of the Respondent.186 The first question was answered in the negative by the Court on the basis that the persons (Scorpions, Mladic) and entities (Republika Srpska and VRS) that committed the acts of genocide at Srebrenica did not have such ties with the FRY that they could be deemed to have been “completely dependent” on it.187 The Court also found that neither the Republika Srpska nor the VRS were de jure organs of the FRY since none of them had the status of organ of that state under its internal law. This conclusion was reached by looking into Article 4 of the ILC Articles on state responsibility.188 182. Id. See generally Vojin Dimitrijevic & Marko Milanovic, The Strange Story of the Bosnian Genocide Case, 21 LEIDEN J. OF INT’L L. 65, 65-94 (2008). 183. Article II states, “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such: (a) Killing members of the group . . . .” Article III states, “The following acts shall be punishable: (a) Genocide . . . .” 184. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 12, ¶ 384. 185. Id. 186. Id. 187. Id. ¶¶ 386, 395. 188. Id. ¶ 388. Article 4 of the ILC states as follows: Conduct of organs of a State - 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ 2008] The Solange-Method 309 By rejecting the ICTY’s unauthorized “overall control” test and applying the “effective control” test, the ICJ was left with no option but to find that it had not been established that the massacres at Srebrenica were committed on the instructions, or under the direction, of organs of the Respondent state, or that the Respondent exercised effective control over the operations.207 3. Analysis The disagreement between the ICJ and ICTY on such a fundamental point of general international law, while operating under the same UN umbrella, seriously undermines the consistency and uniformity of international law. The ICJ’s Genocide judgment further fragments the already divergent jurisprudence on this point. It is highly questionable whether the ICJ is competent to limit the jurisdiction of the ICTY. In so doing, the ICJ is preventing an independent tribunal from expressing its own views on fundamental questions of general international law. The ICTY considers such expression of views a necessary part of rendering its judgments. The ICJ is not in a position to establish a hierarchy by imposing itself as the highest UN court regarding issues of general international law. Unlike the hierarchy that exists between the ECJ and national courts of the EC member states, there is no hierachy between the ICJ and ICTY. Rather, any international court charged with applying a specific body of international law is authorized to apply rules belonging to other bodies of international law. This authority is part and parcel of the inherent jurisdiction of any international court or tribunal.208 Accordingly, as Antonio Cassese, the first President of the ICTY, has rightly pointed out, the ICJ was wrong to argue that the ICTY Appeals Chamber was outside the confines of its jurisdiction by dealing with an issue of state responsibility.209 In order to preserve the unity and consistency of international law, it is preferable that these courts and tribunals issue their judgments in accordance with the jurisprudence of the ICJ. Nevertheless, there may be good reasons to develop and apply 207. Id. ¶ 413. 208. Antonio Cassese, The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18 EUR. J. INT’L L. 649, 662 (2007). 209. Id. 310 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 different interpretations of international law in specific cases or areas of law which deviate from the ICJ’s point of view. The ICJ should respect the existing jurisdiction and expertise of specialized courts by showing more deference. According to Cassese, international courts like the ICJ are entitled to challenge the validity of the ICTY’s tests.210 When they do, he suggests that they should “assail” judgments like Tadic on the merits.211 He writes that the ICJ “should not be confined to the flimsy argument that Tadic was about the nature of armed conflicts whereas Nicaragua revolved around state responsibility and therefore the two tests may coexist in that they relate to different subject-matters.”212 Finally, ICJ judge and Vice-President Al-Khasawneh presented another view in his dissenting opinion.213 He did not consider the Nicaragua case’s “effective control” test suitable to questions of state responsibility for international crimes committed with a common purpose.214 According to him, the “overall control” test for attribution established in the Tadic case by the ICTY is more appropriate when the commission of international crimes is the common objective of the controlling state and the non-state actors.215 The ICJ’s refusal to infer genocidal intent from consistent conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY.216 Al-Khasawneh went on to say that the ICJ applied the “effective control” test to a situation different from that presented in the Nicaragua case. In the present case, there was a unity of goals, unity of ethnicity and a common ideology, such that “effective control” over non-state actors would not be necessary.217 The ICJ’s rejection of the standard in the Tadic case fails to address the crucial issue raised therein, namely, that different 210. Id. at 663. 211. Id. 212. Id. (emphasis in original). 213. Dissenting Opinion of Vice-President Al-Khasawneh, http://www.icj- cij.org/docket/files/91/13689.pdf (last visited Jan. 26, 2009). See also Dissenting opinion of Judge Ad Hoc Mahiou, http://www.icj-cij.org/docket/files/91/13706.pdf (last visited Jan. 26, 2009). 214. Dissenting Opinion of Vice-President Al-Khasawneh, supra note 213, pmbl. 215. Id. 216. Id. 217. Id. at 10, ¶ 36. 2008] The Solange-Method 311 types of activities, particularly in the ever evolving nature of armed conflict, may call for subtle variations in the rules of attribution.218 In his conclusion, Al-Khasawneh stated that the ICJ required too high a threshold for control—one that did not accord with the facts of this case nor with the relevant jurisprudence of the ICTY.219 In sum, by bashing the ICTY, the ICJ increased the divide between the already deeply divergent approaches of international courts regarding the issue of responsibility. In fact, it would not be surprising if the ICTY or another court felt even less inclined to close this gap in future judgments. Therefore, it can only be hoped, together with Cassese, that in the future, the ICJ will look into state practice and case law instead of simply reiterating its own previous decisions.220 Nevertheless, such a hope may be shattered if one agrees with South African judge and international war crimes prosecutor, Richard J. Goldstone, and international law scholar, Rebecca J. Hamilton, that “the ICJ was fairly measured in its response to the issue in Serbia v. Bosnia.”221 F. The Bosphorus Case222 1. The Facts The Bosphorus case concerned the implementation of UN sanctions against former Yugoslavia. Bosphorus was leasing an airplane from the state-owned Yugoslav airline JAT.223 Due to UN sanctions, which were implemented by a European Community (EC) regulation, the plane was impounded by Irish authorities.224 Bosphorus started proceedings against that measure which eventually reached the ECJ. The ECJ ruled that the measures were acceptable in order to attain the objectives of the UN sanctions.225 Following that ruling, Bosphorus started proceedings 218. Id. at 11, ¶ 39. 219. Id. at 17, ¶ 62. 220. Cassesse, supra note 208, at 668. 221. Richard J. Goldstone & Rebecca J. Hamilton, Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia, 21 LEIDEN J. INT’L L. 95, 101 (2008). 222. Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transp., Energy & Commc’ns, 1996 E.C.R. I-3953. 223. Id. ¶ 2. 224. Id. ¶¶ 3-4. 225. Id. ¶¶ 23-27. 314 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 3. Analysis It appears to be the first time that the ECtHR explicitly applied the Solange-method in order to delimit its jurisprudence vis-à-vis the ECJ’s jurisdiction. In this way, the ECtHR was able to solve a very sensitive and delicate issue, at least for the time being, very elegantly. The issue was to determine which court was the supreme court for reviewing human rights in Europe. Rather than answering that question the ECtHR displayed comity towards the ECJ by applying the “as long as’’ approach. At the same time, the ECtHR kept a reserve jurisdiction towards the ECJ by asserting that it will apply and enforce the CPHRFF vis-à-vis Community law if necessary.236 In return, the ECJ has given the CPHRFF a special place within the Community legal order and even applied the CPHRFF directly in its jurisprudence.237 In its Schmidberger-judgment the ECJ accepted a restriction even of primary EC law (one of the four freedoms of the internal market were at issue) in order to give full effect to CPHRFF rights.238 In other words, under certain circumstances the ECJ will give primacy to the CPHRFF above Community law. In this way, the ECJ showed comity by sending a clear message to the ECtHR that it takes the CPHRFF very seriously. Accordingly, both European courts displayed comity towards each other by allowing each court to “reign over their own kingdoms” without having to fear any interference from each other, apart from exceptional cases. It will be interesting to see whether this seemingly harmonious coexistence can be sustained once the EU accedes to the CPHRFF, as stipulated in the new European Constitution, thereby submitting the ECJ to the final authority of the ECtHR. 236. See generally I. Canor, Primus Inter Pares. Who is the Ultimate Guardian of Fundamental Rights in Europe?, 25 EUR. L. REV. 3, 3-21 (2000); Sionaidh Douglas-Scott, A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, 43 COMMON MKT. L. REV. 629, 629-65 (2006). 237. See, e.g., Case C-413/99, Baumbast v. Sec’y of State for the Home Dep’t., 2002 E.C.R. I-7091; Case C-60/00, Carpenter v. Sec’y of State for the Home Dep’t., 2002 E.C.R. I-6279. 238. Case C-112/00, Schmidberger v. Austria, 2003 E.C.R. I-5659. 2008] The Solange-Method 315 III. THE SOLANGE-METHOD AS A TOOL FOR REGULATING COMPETING JURISDICTIONS The case studies discussed above illustrate that among different judicial bodies, the issue of competing jurisdictions is approached quite differently, resulting in either more fragmenting or more unifying effects. At one end of the spectrum are cases such as the OSPAR arbitral tribunal award, the ECJ’s judgment in the MOX Plant dispute, the WTO Panel and Appellate Body rulings in Mexico Soft Drinks, the WTO Appellate Body ruling in Brazilian Tyres, and the ICJ’s Genocide judgment, each of which show little comity towards the possible jurisdiction of other courts or tribunals involved in the respective disputes.239 The other end of the spectrum is comprised of cases such as the UNCLOS arbitral tribunal award and the WTO panel ruling in Brazilian Tyres. The WTO panel ruling respected the jurisdiction of the other court or tribunal by either staying the proceedings to allow the other body to express its view regarding jurisdictional competition or accepting the decision rendered by the other court or tribunal as a fact of the case and taking the decision fully into account.240 The ECtHR’s Bosphorus judgment also falls within this second category by showing comity towards the ECJ, while at the same time reserving jurisdiction in order to intercede in ECJ matters if necessary.241 The IJzeren Rijn arbitral tribunal falls in the middle of the spectrum. While discussing the possibility that the ECJ might have jurisdiction in the dispute, the tribunal eventually concluded, based on a flawed analysis, that the ECJ had no jurisdiction and thus, rendered its award.242 The IJzeren Rijn arbitral tribunal, however, did acknowledge the idea of comity.243 The Solange-method, illustrated in the Bosphorus judgment will be examined in more detail in the following sections. The first 239. See OSPAR Final Award, supra note 6, ¶ 143; Comm’n v. Ireland, 2006 E.C.R. I- 4635, ¶ 177; Tax Measures Panel Report, supra note 10, ¶ 7.1; Mexico Appellate Body Report, supra note 103, ¶ 57; Brazil Appellate Body Report, supra note 11, ¶ 228; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 12, ¶ 403. 240. See MOX Plant (No. 3) (Ir. v. U.K.), supra note 38, ¶¶ 28-30; Brazil Panel Report, supra note 124, ¶¶ 7.272-7.278. 241. See Bosphorus, 2005-VI Eur. Ct. H.R. ¶¶ 155-56. 242. See Iron Rhine Arbitration (Belg. v. Neth.), ¶¶ 103, 119, 137 (Perm Ct. Arb. 2005), available at http://www.pca-cpa.org/showpage.asp?pag_id=1155. 243. See id. ¶¶ 102-103. 316 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 section will summarize the origins of the Solange-method, while the second section will identify the legal basis for the Solange- method. On that basis, the third section will illustrate how the application of the Solange-method in the various cases would have produced a different result by regulating the jurisdictional competition more adequately. A. The Origins of the Solange-Method and Solange-Jurisprudence of the BVerfG The Solange-method was developed by the German Federal Constitutional Court (Bundesverfassungsgericht) (hereinafter BVerfG) in order to regulate its jurisdiction vis-à-vis the ECJ.244 For the purposes of this article, several key aspects of the BVerfG’s Solange-jurisprudence will be discussed.245 It should be noted that the development of this jurisprudence, which originated in the first Solange judgment in 1974 (hereinafter Solange I),246 has not been linear, but rather, has taken the form of waves, with corresponding high and low points. The high points reflect times in which the BVerfG was prepared to relinquish more of its “reserve jurisdiction.”247 The low points indicate when the BVerfG assumed or reassumed more jurisdictional powers.248 It should also be noted that the Solange-method was introduced because the supremacy claim of the ECJ coupled with the expanding development of Community law collided with the protection of fundamental rights as guaranteed by the national constitutions of the member states.249 In particular, the BVerfG 244. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 445 (2003). 245. See Nikolaos Lavranos, Towards a Solange-Method Between International Court and Tribunals, in THE ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: ESSAYS IN HONOUR OF PROF. R. LAPIDOTH (Youval Shany & Tomer Broude eds., 2008) [hereinafter Lavranos, Towards a Solange-Method]; NIKOLAOS LAVRANOS, DECISIONS OF INTERNATIONAL ORGANISATIONS IN THE EUROPEAN AND DOMESTIC LEGAL ORDERS OF SELECTED EU MEMBER STATES, 148-54 (Europa Law Publishing 2004) [hereinafter LAVRANOS, DECISIONS OF INTERNATIONAL ORGANISATIONS]. 246. Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] May 29, 1974, 37, 271 (F.R.G.) [hereinafter Solange I]. 247. Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court ] Oct. 22, 1986, 73, 339 (F.R.G.) [hereinafter Solange II]. 248. Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] Oct. 12, 1993, 89, 155 ¶ 106 (F.R.G.) [hereinafter Solange III]. 249. Mark Killian Brewer, The European Union and Legitimacy: Time for a European Constitution, 34 CORNELL INT’L L.J. 555, 567 (2001). 2008] The Solange-Method 319 components of the Treaty—the EMU and the Euro, Common Foreign and Security Policy and Police and Justice Cooperation— were too much for the BVerfG to accept. Hence, in its Solange III judgment, the BVerfG de facto overturned its Solange II jurisprudence by allowing for the non-application of EC law in Germany under certain conditions (the so-called ausbrechender Gemeinschaftsakt).265 In its third Solange judgment on the Maastricht Treaty, the BVerfG made clear that the future development of the EU remains under conditional approval of the BVerfG while allowing the ratification of the Maastricht Treaty by Germany.266 Thus, the BVerfG reasserted its “reserve jurisdiction” and signaled to the ECJ that it was prepared to question the doctrine of supremacy of EC law and consequently, the authority of the ECJ. In other words, the BVerfG challenged the ECJ’s self-declared supremacy over national laws and institutions, whose impact largely depends on voluntary submission by national courts. At that time, the relationship between the BVerfG and the ECJ had become frosty, to say the least. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. [. . .] Article 46 reads as follows: The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty: [. . .] (d) Article 6(2) [TEU] with regard to action of the institutions, in so far as the Court has jurisdiction under the Treaties establishing the European Communities under this Treaty; [. . .] 265. See Solange III, supra note 248, ¶ 106, where the BVerfG defined the conditions of “ausbrechender Gemeinschaftsakt” as follows: If European organs would apply and develop the EU Treaty in a way that is not covered anymore by the German Act ratifying the EU Treaty, than the measures resulting thereof would not be binding in Germany. The German organs would be prevented by reason of German Constitutional law to apply them. Accordingly, the BVerfG reviews whether the acts of European organs remain within the limits of the German ratification act or go beyond that (translation by author). 266. Solange III, supra note 248. 320 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 The vigilant attitude taken by the BVerfG towards the ECJ was justified, at least from the perspective of the BVerfG (as well as large parts of the German academia), by the position adopted by the ECJ and the Court of First Instance (CFI) towards the EC “banana regulation” and its alleged conflict with WTO law.267 In short, German importers claimed that the EC banana regulation completely disrupted their import opportunities because the regulation made imports from Central and South America much more expensive. This, the importers argued, constituted a violation of their fundamental rights over property. Moreover, they argued that the inconsistency of the banana regulation, specifically the interaction of a lower norm (EC banana regulation) with a higher norm (EC Treaty, ECHR), could not be accepted on the basis of the rule of law and the ECHR. However, the ECJ and CFI were not prepared to review the compatibility of the EC banana regulation with WTO law or fundamental rights protected by the ECHR and/or national constitutions.268 Thus, the ECJ/CFI left the EC banana regulation intact. Moreover, in parallel proceedings before German courts, the importers claimed that this also constituted a violation of the German ratification act of the EC Treaty and, therefore, should have been qualified as an “ausbrechender Gemeinschaftsakt” within the meaning of Solange III. Yet, by the time the BVerfG was finally called upon by the Frankfurt Administrative Court to remove the banana regulation (by qualifying it as “ausbrechender Gemeinschaftsakt”), the BVerfG’s composition, in the wake of the Solange III ruling, had changed. Apparently, the BVerfG now found that the time was right to offer the ECJ a “peace treaty” by essentially giving up the concept of “ausbrechender Gemeinschaftsakt.”269 As a result, the 267. For a detailed discussion, see Ulrich Everling, Will Europe Slip on Bananas? The Bananas Judgment of the ECJ and National Courts, 33 COMMON MKT. L. REV. 401, 401-37 (1996). See generally Nikolaos Lavranos, Die Rechtswirkung von WTO Panel Reports im Europäischen Gemeinschaftsrecht Sowie im Deutschen Verfassungsrecht, 34 EUROPARECHT 289, 289-308 (1999) [hereinafter Lavranos, Die Rechtswirkung von WTO Panel Reports]. 268. See Nikolaos Lavranos, The Communitarization of WTO Dispute Settlement Reports: An Exception to the Rule of Law, 10 EUR. FOREIGN AFF. REV. 313, 313-38 (2005) [hereinafter Lavranos, Communitarization]. 269. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] June 7, 2000, 102 147 (F.R.G.). See generally I. Pernice, Les Bananes et les Droits Fondamentaux: La Cour Constitutionnelle Allemande Fait le Point, 37 CASHIER DE DERIOT EUROPEEN 427, 427-40 (2001); Constance Grewe, Le ‘traite de paix’ avec la Cour de Luxembourg: 2008] The Solange-Method 321 BVerfG held in its Solange IV judgment that it would review EC law measures only if the minimum level of fundamental rights protection would no longer be guaranteed by the EC organs on a general level.270 So, even though the possibility of declaring an EC law measure as an “ausbrechender Gemeinschaftsakt” still remains possible, the necessary conditions for this are extremely difficult to meet. In effect, only an act of the EC that goes completely against basic fundamental rights on a general level—and not only in one or several specific cases—would meet these criteria. Hence, the BVerfG reverted back to its second Solange decision, thereby fully accepting the jurisdiction of the ECJ while also limiting its own “reserve jurisdiction.” This honeymoon, however, did not last long because the ECJ trespassed on another “holy ground”: member states’ criminal law. While member states had accepted that criminal law was an important and necessary component of the EU, as illustrated by its third pillar (Justice and Home Affairs, renamed Police and Justice Cooperation), member states clearly did not intend to bring criminal law into the first pillar (the Community) and delegate to the EC the ability to impose criminal law obligations with supranational force (that is, endow it with supremacy over the national laws of the member states). Yet, the ECJ apparently thought otherwise, by rendering groundbreaking judgments in Pupino271 and Commission v. Council.272 L’arret de la Cour Constitutionnelle Allemande du 7.6.2000 Relatif au Reglement du Marche de la Banane, 37 REVUE TRIMESTRIELLE DE DROIT EUROPEEN [REV. TRIM. DR. EUR.] 1, 1-17 (2001) (Fr.). 270. See Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] June 7, 2000, 102 147 (F.R.G.), where the BVerfG defined the conditions as follows: Thus even after the decision in Solange III, requests by national courts before the BVerfG are inadmissible if they do not argue that the required level of fundamental rights protection within the EC, including ECJ case-law, has fallen below the standard as determined in Solange II. Accordingly, a request must prove in detail that a violation of fundamental rights by secondary EC law measures is general and that the level of protection has fallen below the minimum level as determined by the German Constitution (translation by author). The crucial condition is that a violation of fundamental rights by secondary EC law (such as the EC bananas regulation) must be specifically proven by showing that the absolute minimum level of fundamental rights is generally not guaranteed anymore. 271. Case C-105/03, Pupino, 2005 E.C.R. I-5285. See also Eleanor Spaventa, Opening Pandora’s Box: Some Reflections on the Constitutional Effects of the Decision in Pupino, 3 EUR. CONST. L. REV. 5, 5-24 (2007). 324 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 As discussed above, the ECtHR applied the Solange method in its Bosphorus judgment for regulating its horizontal jurisdictional relationship vis-à-vis the ECJ. Accordingly, by using the Solange method, the ECtHR expanded the scope of application of the Solange method towards the horizontal relationship between two international (regional) courts (i.e., the ECJ and ECtHR). This raises two questions: first, what is the legal basis of applying the Solange method at the international level and, second, to what extent are international judges and arbitrators obliged to apply the Solange method when confronted with competing jurisdictions? Before answering these questions, it should be noted that the Solange method is considered to be an example of judicial comity. Accordingly, it is necessary to get a clear understanding of judicial comity. For this we turn to Professor Yuval Shany, who has extensively analyzed this term.280 According to Professor Shany, comity can “create a framework for jurisdictional interaction that will enable courts and tribunals to apply rules originating in other judicial institutions. This, in turn, will encourage cross-fertilization and may result in increased legitimacy of international judgments [by] utilizing the authority of other international courts and tribunals. . . . [I]n the application of the ‘best available’ rule, [this will reflect] not merely the narrow interests of the parties and the law-applying regime at hand but also those of the international community at large.”281 Professor Shany defines comity as follows: According to this principle, which is found in many countries (mostly from common law systems) courts in one jurisdiction should respect and demonstrate a degree of deference to the law of other jurisdictions, including the decisions of judicial bodies operating in the jurisdictions.282 In this context, it should be noted that the terms “comity,” “international comity,” or “judicial comity” are often used interchangeably; they are amorphous and applied in varying contextual settings.283 280. SHANY, COMPETING JURISDICTIONS, supra note 1. 281. Id. at 261. 282. Id. at 260. 283. See Michael D. Ramsey, Escaping International Comity, 83 IOWA L. REV. 893, 893-952 (1998); Antonio F. Perez, WTO and UN Law: Institutional Comity in National Security, 23 YALE J. INT’L L. 301, 301-79 (1998); Ayelet Ben-Ezer & Ariel L. Bendor, The 2008] The Solange-Method 325 The type of comity we are looking at in this contribution can be traced back to the U.S. Supreme Court, which, in Hilton v. Guyot (1895), reasoned that “‘[c]omity,’ in the legal sense, is neither a matter of absolute obligation nor of mere courtesy and good will” with respect to foreign acts, but it is the recognition that “one nation allows within its territory the legislative, executive or judicial acts of another nation.”284 More recently, the U.S. Supreme Court emphasized the need to extend judicial cooperation to quasi-judicial international tribunals as well.285 Accordingly, comity is not considered as a legal principle stricto senso, but rather a sort of “gentlemen’s agreement” between courts and tribunals. In other words, every court or tribunal is totally free to decide whether or not to apply comity in a certain case and what consequences it attaches to it. If one, however, looks to basic international law instruments, which is appropriate since we deal here with comity between international courts and tribunals, one can find a legal basis for comity. For example, Article 1 (1) of the UN Charter explicitly notes that the Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. . .286 This directly applies to all courts and tribunals established by the United Nations (e.g., the ICJ, ICTY), but arguably also to all other international courts and tribunals that are called upon to apply the UN Charter. Constitution and Conflict-of-Laws Treaties: Upgrading the International Comity, 29 N.C. J. INT’L L. & COM. REG. 1, 1-34 (2003); Daniel Tan, Anti-Suit Injunctions and the Vexing Problem of Comity, 45 VA. J. INT’L L. 283, 283-356 (2005). See generally S. Foster Halabi, The Comity of Empagran: The Supreme Court Decides that Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, 46 HARV. INT’L L.J. 279, 279-293 (2005). 284. Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). 285. Intel Corp. v. Advanced Micro Devices, 542 U.S. 241, 246 (2004). 286. U.N. Charter art. 1, ¶ 1 (emphasis added). 326 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 Similarly, the Preamble of the Vienna Convention on the Law of the Treaties (VCLT) 1980 explicitly states: Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law . . .287 Since the VCLT is generally considered to be an expression of customary international law,288 the principles of justice and international law applies to all international disputes. Hence, when international courts and tribunals are called upon to resolve an international dispute, they must do so in conformity with the principles of justice and international law. It is submitted that comity (including the Solange method) is part of the principles of justice. More specifically, it is argued that comity must be understood as being an inherent part of the tasks and functions of a judge or arbitrator to resolve disputes in conformity with the principles of justice and international law.289 Thus, comity can be qualified as being an integral part of the obligation of all international courts and tribunals and should be applied when such courts and tribunals are determining whether or not to exercise their jurisdiction in a specific case brought before them. In other words, as Professor Petersmann recently (and convincingly) argued, judicial comity must be considered to be part of the rule of law and of delivering justice by judges and arbitrators when resolving a dispute.290 Besides, it is submitted that all international courts and tribunals have an obligation to ensure the efficiency and coherence of the international legal order when executing their functions.291 In short, applying comity (i.e., the Solange method) must be considered an inherent and fundamental legal duty of every judge or arbitrator.292 287. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Preamble, 1155 U.N.T.S. 331 (emphasis added). 288. MALCOLM N. SHAW, INTERNATIONAL LAW 811 (5th ed. 2003). 289. See Ernst-Ulrich Petersmann, Do Judges Meet Their Constitutional Obligation to Settle Disputes in Conformity with Principles of Justice and International Law?, EUR. J. OF LEGAL STUD., 34-35 Dec. 2007 [hereinafter Petersmann, Constitutional Obligation to Settle Disputes]. 290. Id. 291. Christian Leathley, An Institutional Hierarchy to Combat the Fragmentation of International Law: Has the ILC Missed an Opportunity?, 40 N.Y.U. J. INT’L L. & POL. 259, 298-99 (2007). 292. Id. at 299. 2008] The Solange-Method 329 obliged to apply the Solange-method when confronted with competing jurisdictions. C. The Application of the Solange-Method at the International Law Level Accordingly, it seems an interesting exercise to apply the Solange-method in those case studies in which it was not applied to determine what the effects of its application would have been. Thus, in this section, the Solange-method is tested hypothetically in all the case studies with the exception of the UNCLOS arbitral award in the MOX Plant dispute and the Bosphorus judgment of the ECtHR, where the Solange-method was already applied. In the MOX Plant dispute, instead of seizing its jurisdiction, the ECJ could have opted for declining its jurisdiction by applying the Solange-method and referring the parties back to the UNCLOS arbitral tribunal for a final decision. In this way, the ECJ could have respected the existing jurisdiction of the UNCLOS arbitral tribunal and stopped the parties from re-litigating the dispute before the ECJ, where there would be a danger of potentially conflicting rulings. This would also have considerably shortened the length of proceedings.297 Such a move by the ECJ would have been particularly risk-free in this case, since the UNCLOS arbitral tribunal showed so much consideration for the ECJ jurisdiction that it can be assumed that it would have shown similar consideration to the relevant ECJ jurisprudence. Thus, the risk of a possible divergent or conflicting ruling by the UNCLOS arbitral tribunal would have been very low. Similarly, there was no reason for the ECJ to worry about the uniform application of EC law within the EC member states. As discussed above, however, the ECJ did not show any signs of applying the Solange-method towards the UNCLOS arbitral tribunal or any other international court or tribunal. Instead, the ECJ opted for claiming maximum exclusive jurisdiction.298 297. It should be noted that even though the ECJ judgment in the MOX Plant dispute in which it seized jurisdiction regarding UNCLOS dates back to May 30, 2006, the UNCLOS arbitral tribunal terminated the proceeding only on June 6, 2008 without discussing the merits of the case. See Order No. 6, Termination of Proceedings, Permanent Court of Arbitration, The MOX Plant Case (Ir. v. U.K.) (June 6, 2008), http://www.pca- cpa.org/upload/files/MOX%20Plant%20Order%20No.%206.pdf. 298. Comm’n v. Ireland, 2006 E.C.R. ¶ 135. 330 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 30:275 Similarly, the OSPAR arbitral tribunal was not inclined to apply the Solange-method. If it had applied the Solange-method and consequently declined its jurisdiction, the parties’ next option would have been the ECJ. Relevant Community law would have been applied, which would have ensured the uniform application of EC law. At the least, the OSPAR arbitral tribunal was obliged to take relevant EC law and ECJ jurisprudence fully into account rather than adopting a divergent approach. The application of the Solange-method in the IJzeren Rijn dispute would have clearly made a huge difference in the outcome of the case. By applying the Solange-method, the IJzeren Rijn arbitral tribunal would have declined its jurisdiction in favor of the ECJ. Since EC law was obviously applicable in this case, EC law would have been the only appropriate solution. As a result, the ECJ would have been called upon to adjudicate this dispute, thereby ensuring the proper and uniform application of EC law (especially the Habitats Directive) within the EC member states.299 This would have prevented the IJzeren Rijn arbitral tribunal from formulating its inventive, but flawed line of argument to justify its jurisdiction. It would have also sent a strong message to EC member states that they should stop trying to circumvent the ECJ when they think it is in their interest to do so. In this way, the authority of the ECJ would have been strengthened instead of weakened. In the Mexico Soft Drinks case, the Solange-method could have been applied by the WTO Panel and Appellate Body in order to force the parties to find a solution within the NAFTA dispute settlement body rather than litigate the dispute again before yet another dispute settlement body.300 As mentioned above, the Mexico Soft Drinks dispute is closely related to the much broader and long-standing sugar dispute between the United States and Mexico. The WTO Panel and Appellate Body already found Mexico in breach of similar measures,301 so there was no need to re- litigate the dispute before the WTO. This is particularly relevant to 299. Lavranos, The MOX Plant, supra note 1. 300. Final NAFTA Panel Decision, Antidumping Investigation on Imports of High Fructose Corn Syrup, Originating from the United States of America, MEX-USA-98-1904- 01 (Apr. 15, 2002), available at http://registry.nafta-sec-alena.org/cmdocuments/2b2b0d9a- 570f-4f8c-bd47-a66bf4553ba2.pdf [hereinafter Corn Syrup Panel Decision]. 301. Appellate Body Report, Mexico—Antidumping Investigation of High Fructose Corn Syrup (HFCS), WT/DS132/AB/R, ¶ 136 (Nov. 21, 2001). 2008] The Solange-Method 331 Mexico, which has been trying to establish a NAFTA panel (but has thus far been blocked by the U.S.).302 If the establishment of a NAFTA panel could be induced by applying the Solange-method, this would also strengthen the authority of the NAFTA dispute settlement system. The Brazilian Tyre case is particularly interesting because it uses one dispute to illustrate the consequences of both the application and non-application of the Solange-method. On the one hand, the WTO panel applied the Solange-method by acknowledging that Brazil adopted the disputed measure in order to implement the MERCOSUR arbitral tribunal’s ruling.303 Moreover, the WTO Panel accepted the findings of the MERCOSUR arbitral tribunal as a fact of the case and did not review Brazil’s defense strategy before that tribunal.304 In other words, even though the WTO Panel exercised its jurisdiction in this case, it respected the jurisdiction of the MERCOSUR arbitral tribunal and took its award adequately into account by concluding that Brazil did not violate its WTO obligations when implementing the MERCOSUR arbitral tribunal’s decision. Thus, the WTO Panel showed comity and delivered justice. On the other hand, the WTO Appellate Body’s approach towards the MERCOSUR arbitral tribunal’s decision was quite the opposite. Although the WTO Appellate Body avoided reviewing the award of the MERCOSUR arbitral tribunal, it did discuss and reject Brazil’s implementation of that award. The WTO Appellate Body further criticized Brazil’s defense strategy, suggesting which provision Brazil ought to have relied upon before the MERCOSUR arbitral tribunal. Had the WTO Appellate Body applied the Solange-method, it could have ensured a more consistent resolution of the dispute and would have ensured that the MERCOSUR and WTO law obligations remained congruent. The ICJ’s Genocide Convention judgment also illustrates how the application of the Solange-method would have resulted in a different and preferable outcome. Even though the ICTY never challenged the ICJ’s jurisdiction and competence regarding general international law issues, the ICJ considered it necessary to 302. See Joost Pauwelyn, Adding Sweeteners to Softwood Lumber: The WTO-NAFTA ‘Spaghetti Bowl’ is Cooking, 9 J. INT’L ECON. L. 197, 198 (2006). 303. Lavranos, The MOX Plant, supra note 1, at 234. 304. Id.
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