THE OVERLAPPING OF DISPUTE SETTLEMENT REGIMES: AN EMERGING ISSUE OF INTERNATIONAL LAW

in The Italian Yearbook of International Law Online
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References

Treves, Le controversie internazionali. Nuove tendenze, nuovi tribunali, Milano, 1999. 2 For the view that international adjudication is of scarce relevance in international law, see BILDER, "International Dispute Settlement and the Role of International Adjudication", in DAMROSCH (ed.), The International Court of Justice at a Crossroads, Dobbs Ferry NY, 1987, p. 155-180. The most important case concerning the overlap of dispute settlement regimes is the Electric Company of Sofia and Bulgaria case, PCIJ Series A/B, No. 77, 1939, pp. 64-149. 4 Unilateral action is allowed under specific circumstances established in the treaties and cannot concern any dispute. For example, Arts. 290 and 292 of the UNCLOS provide for unilateral action aimed at asking, respectively, provisional measures and the prompt release of vessels. 5 Done in Montego Bay on 10 December 1982, ILM, 1982, p. 1261. 6 Understanding on the Rules and Procedures Governing the Settlement of Disputes, attached, as Annex 2, to the Agreement Establishing the World Trade Organization, signed in Marrakesh on 15 April 1994.

7 See, for example, the research project currently carried out by the New York University entitled "Project on International Courts and Tribunals", at www.pict-pcti.org (visited on 5 February 2002). 8 FRANcioNi, "Environment, Human Rights and the Limits of Free Trade", in ID. (ed.), Environment, Human Rights and International Trade, Oxford, 2001, pp. 1-26. 9 ROMANo, "The Proliferation of International Judicial Bodies: The Pieces of the Puzzle", New York University Journal of International Law and Politics, 1999, p. 709 ff., pp. 713-715.

10 This new trend of international adjudication is stressed by ROMANO, ibid., pp. 738-746; ALFOttn, "The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance", ASIL, 2000, p. 160 ff., p. 162; and IW vcsauRY, "Foreword: Is the Proliferation of International Courts and Tribunals a Systematic Problem?", New York University Journal of International Law and Politics, 1999, p. 679 ff., pp. 680-681. �� The present writer has already shown her interest in the issue of the effects of international treaties on third States: see Vigni, "The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area", Max Planck UNYB, 2000, pp. 481-542. Nevertheless, this issue seems to concern the substantive effects of treaty regimes rather than the interaction of procedural norms, which is the matter that we intend to analyse in this article. 12 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Requests for provisional measures, Order of 27 August 1999, reproduced in ILM, 1999, p. 1624 ff. For a

preliminary analysis see TROVES, "The International Tribunal for the Law of the Sea (1996- 2000)", IYIL, 2000, p. 233 ff., pp. 237-239; KWIATKOWSKA, AJIL, 2000, p. 150 ff.; and CHRESTIA, RGDIP, 2000, pp. 523-525. �3 Southern Bluefin Tuna, Jurisdiction and admissibility, Award of 4 August 2000, reproduced in ILM, 2000, p. 1359. For some preliminary comments see Kwiatkowska, AJIL, 2001, p. 162 ff., and WECKEL and HEL�t.t, RGDIP, 2000, p. 1037-1045. 14 For some examples of other international treaties that provide for dispute settlement means, which are similar to those established by Art. 16 of the 1993 Bluefin Tuna Convention (cf. infra note 15), and that, therefore, can interact with the UNCLOS dispute settlement regime, see the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, done in London on 13 November 1972, ILM, 1972, p. 1291, and the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, done in November 1993, FAO Conference Resolution 15/93, at www.fao.org/legaUtreaties/012T-e.htm (visited on 4 February 2002). 15 Done in Canberra, on 10 May 1993, at sedac.ciesin.org/pidb/texts/acrcBluefin.txt.html (visited on 4 February 2002). 16 Under Art. 287 of the UNCLOS, States can choose among four competent fora to deal with the disputes related to the sea. See infra section 3.2 of this article. Among the 26 States which have made a declaration under Art. 287, 13 have accepted the jurisdiction of ITLOS. Two States (plus 2 which did not make a choice, but rejected the ICJ jurisdiction) are subject to arbitration under Annex VII. The other 9 States declared their preference for the ICJ jurisdiction. This means that more than 100 States Parties to the UNCLOS have not made any choice and that their disputes will be submitted to arbitration under Annex VII, cf. www.un.org/Depts/los/settlement_of_disputes/choice�rocedure.htm (visited on 4 February 2002). For a comment to these declarations see TREVES, "Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice", New York University Journal of International Law and Politics, 1999, p. 809 ff., p. 818. Australia, New Zealand and

Japan have not yet made any choice of jurisdiction. Thus, the BFT case could only be subject to arbitration under Annex VII. 17 See supra note 13. The case will be analysed in its most significant parts in the following sections of this article. For a thorough analysis of the facts and the arbitral award see Oxon, "Complementary Agreements and Compulsory Jurisdiction", AJIL, 2001, p. 277 ff. and ROMANO, "The Southern Bluefin Tuna Dispute: Hints of a World to Come... Like It or Not", Ocean Development and International Law, 2001, p. 313 ff. 18 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community), Orders of 20 December 2000 and 15 March 2001, available at www.itlos.org/start2 en.htmi (visited on 4 February 2002). Cf. also infra in this Yearbook, TREVES, "The International Tribunal for the Law of the Sea (2001)", section 4. �9 Chile - Measures Affecting the Transit and Importation of Swordfish, WT/DS 193.

20 See infra section 4 of this article. 21 KWIATKOWSKA, cit. supra note 13, p. 169. 22 See supra section 2 of this article. 23 For example, Art. 311 of the UNCLOS allows the application of other international treaties provided that such treaties do not violate the fundamental principles of the UNCLOS. Therefore, one must ascertain what are the fundamental principles of the UNCLOS and to what extent other international treaties can be applied in accordance with such principles. 24 For a thorough analysis of the general principles of international law concerning the law of treaties see JErrKS, "The Conflict of the Law-Making Treaties", BYIL, 1953, p. 401 ff., p. 438.

25 Done in Vienna on 23 May 1969, ILM, 1969, p. 679. 26 Art. 30(3) states: "When all the parties to the earlier treaty are parties also to the later treaty, [...] the earlier treaty applies only to the extent that its provisions are compatible with those of the latter treaty". Legal tenets justify the application of the lex posterior principle to resolve the overlaps and conflicts between treaty norms on the basis of the assumption that treaties are legal sources such as State legislation and, thus, are subject to the same rules. For this view see also the Mavrommatis case, PCIJ Series A, No. 2, 1924, p. 3. 27 For the view that the application of the lex posterior principle has a residual character in the Vienna Convention see SINCLAIR, The Vienna Convention on the Law of Treaties, Manchester, 1984, p. 97. 28 Art. 59(2) states: "The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the Parties". For the view that Art. 59 limits the effectiveness of Art. 30 see Sa·rCLAIR, ibid., p. 184. 9 Against the effectiveness of the lex posterior principle see Jertxs, cit. supra note 24, p. 446, and VtEtt�nc, "The Time of the Conclusion of a Multilateral Treaty: Art. 30 of the Vienna Convention on the Law of Treaties and Related Provisions", BYIL, 1988, p. 75 ff., p. 110. 30 ROUSSEAU, "De la compatibilit6 des normes juridiques contradictoires dans 1'ordre international", RGDIP, 1932, p. 132 ff., p. 163.

3� The lex prior principle is supported by those legal tenets that believe that international treaties have the same nature as contracts. Thus, States Parties cannot infringe a former treaty by concluding a later one the same as private persons cannot transfer rights or take on duties that have already transferred or taken on through a former transaction. For this view see also the Austrian-German Custom Union case, PCIJ Series A/B, No. 41, 1931, p. 3. 3z For a view in favour of the hierarchic prevalence of the treaties concerning human rights over others see MERON, "On a Hierarchy of International Human Rights", AJIL, 1986, p. 1 ff., p. 22. Another Author upholds the hierarchic superiority of law-making treaties over other agreements by reason of the fact that the former intend to create permanent rules. See MCNAIR, Law of Treaties, Oxford, 1961, p. 221. Against a hierarchy between treaty regimes on dispute settlement see CHARNEY, "Is International Law Threatened by Multiple International Tribunals?", RCADI, 1998, Vol. 271, p. 101 ff. 33 Art. 31(1) of the Vienna Convention states: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".

3° For a view supporting the idea that the effectiveness of an international regime must be determined under a problem-solving approach see YOUNG and LEVY, "The Effectiveness of International Environmental Regimes", in YOUNG (ed.), The Effectiveness of International Environmental Regimes, Cambridge, 1999, p. 1 ff., p. 4. 35 For the relevance of the behaviour of States to determine the effectiveness of a treaty regime see STOKKE and ViDAs, "Effectiveness and Legitimacy of International Regimes", in ID. (eds.), Governing the Antarctic, Cambridge, 2000, p. 13 ff., p. 16. 36 For a view supporting the theory of the robustness of treaty regimes see YOUNG, "The Effectiveness of International Institutions: Hard Cases and Critical Variables", in ROSENAU and CZEMPIEL (eds.), Governance without Government: Order and Change in World Politics, Cambridge, 1992, p. 160 ff., p. 180.

3� The distinction between arbitration under Annex VII and arbitration under Annex VIII to the UNCLOS is due to the fact that the former can deal with any type of dispute. Arbitration under Annex VIII is only suitable for specific disputes such as those relative to the regulation of fisheries and research activities, the protection of the environment, and the prevention of pollution from vessels. 8 Para. 5 of Art. 287. See CHURCHILL, "Dispute Settlement in the Law of the Sea - The Context of the International Tribunal for the Law of the Sea and Alternatives to It", in EVANS �ed.), Remedies in International Law. The Institutional Dilemma, Oxford, 1998, p. 85 ff., p. 86. 9 Para. 3 of Art. 287. See MENSAH, "The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea", Max Planck UNYB, 1998, p. 307 ff., p. 314. 40 As far as the possibility of making reservations to the UNCLOS dispute settlement regime is concerned, see infra in this section.

41 Art. 282 states: "If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree". Art. 288(2) provides that "[a] court or tribunal referred to in Art. 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement". °3 For this view see TREVES, cit. supra note 1, p. 114; ROSENNE, "Establishing the International Tribunal of the Law of the Sea", AJIL, 1995, p. 806 ff., pp. 812-813; BOYLE, "Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks", in STOKKE (ed.), Governing High Seas Fisheries, Oxford, 2001, p. 91 ff., p. 95. 44 See para. 57 of the award, cit. supra note 13. 45 Art. 281(1) states: "If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where

no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure". For an overall analysis of Art. 281, see Vittzo, "L'interpretazione dell'Art. 281 UNCLOS nelia sentenza arbitrale 'Southern Bluefin Tuna Case"', RDIPP, 2001, pp. 633-644. 46 See para. 62 of the award, cit. supra note 13. 47 Ibid., para. 38(e). aa Ibid., para. 52.

49 For a view supporting the feasibility of the simultaneous violation of both general and special law, see also the Dissenting Opinion of Judge Schwebel in the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. United States ofAmerica), ICJ Reports, 1986, p. 14 f£, paras. 91-96. 50 Pam. 54 of the award, cit. supra note 13. 51 See supra section 3.1. sz Electric Company of Sofia and Bulgaria case, cit. supra note 3, p. 76.

s3 In this sense see para. 8 of the Dissenting Opinion of Judge Keith to the BFT arbitral decision, cit. supra note 13. 54 Bluefin tuna is included in Annex 1 to the UNCLOS, which mentions some migratory species that need special protection. 55 VIGNI, cit. supra note 11, p. 515. 56 In this sense see OXMAN, cit. supra note 17, p. 287. Judge Keith supported this argument in parma. 22 of his Dissenting Opinion to the BFT arbitral decision, cit. supra note 13. four this view see ODA, "Some Reflections on the Dispute Settlement Clauses in the United Nations Convention on the Law of the Sea", in Essays in International Law in Honour ofJudge Manfred Lachs, Dordrecht, 1984, p. 645 ff., p. 651.

58 Para. 62 of the award, cit. supra note 13. 59 See RoMANo, cit. supra note 17, p. 332. 60 For a view supporting the scarce relevance of the restrictive interpretation of unequal treaties see CONFORTI, Diritto internazionale, 5th ed., Napoli, 1997, p. 103 and BROWNIE, Principles of Public International Law, 5th ed., Oxford, 1998, p. 636. In support of the theory of the restrictive interpretation of unfavourable treaty clauses see QUADRI, Diritto internazionale pubblico, Napoli, 1968, p. 189. See also McNAIR, cit. supra note 32, p. 470; ROSENNE, Developments in the Law of Treaties 1945-86, Cambridge, 1989, p. 76 and REU'rER, Introduction to the Law of Treaties, London, 1989, pp. 76-77. 61 For this view see also STARACE, "Il sistema di soluzione delle controversie istituito dalla convenzione delle Nazioni Unite sul diritto del mare e I'affare Southern Bluefin Tuna", in Il diritto internazionale del mare fra usi antichi e nuove forme di utilizzazione, Proceedings of the VI Meeting of the Italian Society of Intemational Law, Napoli, 2002, p. 55 ff., p. 59; MENSAH, cit. supra note 39, p. 322. 62 Adopted in New York on 8 September 1995, ILM, 1995, p. 1547.

� See para. 71 of the arbitral award, cit. supra note 13. The Agreement entered into force on 11 I December 2001. 64 For a view in favour of the approach adopted by the 1995 Agreement see OXMAN, cit. supra note 17, pp. 306-308. This author regrets that the Arbitral Tribunal of the Bluefin Tuna case did not take into account the purpose on which Art. 30 of the Agreement is based, that is, the intent to avoid leaving disputes unsettled. 65 For this view see KINGSBURY, cit. supra note 10, p. 683. 66 For this view see the PCIJ judgement in the Case of Certain German Interests in Polish Upper Silesia, PCIJ Series A, No. 6, 1925, pp. 20-21.

67 The character of a legal dispute can be distinguished from a political one. Only when disputes have a legal character can they be submitted to adjudication. Thus, if two disputes of different character arise from the same circumstances, such disputes cannot be dealt with through the same dispute settlement mechanisms. Political disputes are better resolved by diplomatic means. 68 See supra notes I8-20 and accompanying text. 69 For the view that differing interpretations are the most common inconvenience provoked by the proliferation of judicial bodies see ALFOtt�, cit. supra note 10, pp. 160-16 1. 70 For this view see CHARNEY, cit. supra note 32, p. 235, and JACKSON, "Fragmentation or Unification among International Institutions: The World Trade Organization", New York University Journal of International Law and Politics, 1999, p. 823 off, pp. 828-829. The latter affirms that the WTO dispute settlement regime has conformed its interpretation and conclusions to the general principles of international law. 71 Against the general optimism on the uniformity of the interpretation of the different judicial bodies see KltvcssuRV, cit. supra note 10, p. 686. 72 See Case Concerning the Gabdikovo-Nagymaros Project, ICJ Reports, 1997, p. 6 ff., paras.

113-115. �3 For this view see KINGSBURY, cit. supra note 10, p. 682. See also the Separate Opinion of Judge Treves in the Bluefin Tuna case brought before the ITLOS, cit. supra note 12. Judge Treves stresses the importance of the precautionary approach with respect to this case. See ? arans. 8-9 of his Opinion. 4 United States - Restrictions on Imports of Tuna. The first case involved the US and Mexico, cf. ILM, 1991, p. 1594. The second dispute concerned the EC complaint against the US statute on restrictions on the importation of tuna, cf. ILM, 1994, p. 839. 75 For a critical view of the GATT panels decisions, see Francioni, "Extraterritorial Application of Environmental Law", in MEESSErr (ed.), Extraterritorial Jurisdiction in Theory and Practice, The Hague, 1996, p. 122 ff. �6 European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, Panel Report, 18 September 2000, WT/DS135/R and Report of the Appellate Body, 12 March 2001, WT/DS135/AB/R.

77 For the innovative approach adopted in the WTO dispute settlement organs see Francioni, cit. supra note 8, pp. 14-15. 78 As an example, see Art. 293 of the UNCLOS which establishes that the UNCLOS judicial organs can only apply the Convention and the norms of international law that are not incompatible with the Convention itself. See also Art. 3 of the Understanding on Rules and Procedures Governing the Settlement of Disputes annexed to the WTO Agreement that states that WTO judicial organs are only competent to deal with disputes concerning the interpretation and the application of the WTO agreements. 79 See supra section 3. l.

80 For this view see Francioni, "La tutela dell'ambiente e la disciplina del commercio internazionale", in Diritto e organizzazione del commercio internazionale dopo la creazione della Organizzazione Mondiale del Commercio, Proceedings of the II Meeting of the Italian Society of International Law, Napoli, 1998, p. 147 ff., p. 168. 81 See ROMANO, cit. supra note 9, p. 750 and JACKSON, cit. supra note 70, p. 828. 82 For this view see KINGSBURY, cit. supra note 10, pp. 688-691. For an overall picture see TEUBNER, Law as an Autopoietic System, Oxford, 1993.

83 For the view that treaty norms can have peremptory character see Gala, "Jus Cogens Beyond the Vienna Convention", RCADI, 1981, III, Vol. 172, p. 271 ff., pp. 279-289. 84 Art. 53 states: "A treaty is void if [...] it conflicts with a peremptory norm of general international law". 85 For the view that the proliferation of international dispute settlement organs strengthens the solutions reached through diplomatic instruments, see ALFORD, cit. supra note 10, pp. 164-165. This Author affirms that when States resort to diplomatic instruments, they are conscious of the fact that the only possible alternative is to submit the dispute to a judicial body, which deals with the dispute under legal principles and not on the basis of the particular interests of the parties.

86 See FRANCIONI, cit. supra note 80.

87 In order to provide a "political" justification for the Arbitral Tribunal's decision concerning the BFT case one Author has argued that, since this organ was the first one appointed under Annex VII to the UNCLOS (that means that its functions were limited to deal with this sole dispute), it correctly declined to resolve the first case of overlap between international dispute settlement regimes (probably considering that, in these circumstances, the decision of a permanent judicial body such as, for example, the ITLOS, would have been more highly regarded). For this view see ROMANO, cit. supra note 17, p. 334. However, considering that the majority of States Parties to the UNCLOS have not chosen any specific means of compulsory jurisdiction and that, in these circumstances, arbitration under Annex VII would take place (para. 5 of Art. 287 of the UNCLOS), it is unlikely that many cases of this type will be brought before the ITLOS, which has a very residual competence. Being aware of this, the Arbitral Tribunal should not have declined its jurisdiction in the Bluefin Tuna case.

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