The Relationship of the EC Courts with Other International Tribunals: Non-Committal, Respectful or Submissive?
27 Pages Posted: 26 Jan 2012
Date Written: January 26, 2012
The extent to which courts from different jurisdictions engage in a judicial dialogue with each other has become a topic of growing interest. In this article, I plan to tackle the topic from the perspective of the courts of the European Communities and inquire how they deal with judgments of other international courts and tribunals. As will be seen, the EC courts refer with varying frequency to other tribunals. They usually do so to bolster the persuasive force of their own rulings. Particularly in respect of judgments of the European Court of Human Rights (“ECtHR”), the EC courts show a large measure of deference. Yet, although they have acknowledged the possibility that they might be bound by the rulings of another tribunal, the EC courts have never accepted this in an actual case.
This article focuses on one question in particular: should the EC courts consider themselves bound by rulings of other international tribunals? While the ECJ in the early 1990s suggested that it might be so bound, to date it has never accepted this in an actual case. In fact, the reasons it has given in various decisions to object to the jurisdiction of another tribunal, or to deny the binding force of WTO dispute settlement rulings, suggest that it will accept being bound in very few, if any cases (perhaps the ECtHR will be the exception if and when the Community accedes to the European Human Rights Convention). Against the background of the broadly salutary trend towards more judicial dialogue this is a troublesome prospect, at least if the non-recognition of binding force means that the EC courts will ignore or trivialize the rulings of international tribunals set up by the international agreements to which the EC is a party. This would be a regrettable signal for the Community to give to its treaty partners, particularly the countries with which it desires to establish closer links through a network of bilateral and regional agreements. In recent agreements the EC has decided to shift to a (quasi-) adjudicative mode of settling disputes with these countries, following the model of the WTO dispute settlement mechanism. For the EC courts to discount the relevance of the rulings produced by these international tribunals on the grounds that they represent diplomacy rather than rule-based adjudication is ill-advised. The courts thereby weaken the Community’s credibility as a reliable negotiating partner. Fundamentally, the EC courts thus fail to make a distinction between the rulings themselves, which deserve their respect, and the implementation of these rulings by the EC, where the EC courts may have to allow the other EC institutions some room to maneuver. The article discusses ways to redress this unattractive situation.
Keywords: EU courts and international tribunals, judicial dialogue, European Convention on Human Rights, European Court of Human Rights, WTO, WTO Appellate Body
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