The european court of justice and international courts

305 Pages·2015·3.046 MB·English

by  Lock, Tobias

INTERNATIONAL COURTS AND TRIBUNALS SERIES
General Editors:
Ruth Mackenzie, Cesare P.R. Romano, and Philippe Sands
The European Court of Justice
and International Courts
INTERNATIONAL COURTS AND TRIBUNALS SERIES
General Editors:
Ruth Mackenzie, Cesare P.R. Romano, and Philippe Sands
A distinctive feature of modern international society is the increase in
the number of international judicial bodies and dispute settlement and
implementation control bodies; in their case-loads; and in the range and
importance of the issues they are called upon to address. These factors reflect
a new stage in the delivery of international justice. The International Courts
and Tribunals series has been established to encourage the publication of
independent and scholarly works which address, in critical and analytical
fashion, the legal and policy aspects of the functioning of international courts
and tribunals, including their institutional, substantive, and procedural
aspects.
The European Court of Justice
and International Courts
Tobias Lock

1
1
Great Clarendon Street, Oxford, OX2 6DP,
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To Jennifer

Preface
This book started out as a doctoral thesis many years ago at my alma mater in
Erlangen. I passed my viva almost to the day five years ago and the topic has stayed
with me since. With the benefit of hindsight it was perhaps a little foolish to write
it in German—the language in which the book first appeared. At the same time,
however, the five additional years leading to its publication in English allowed the
book to grow with me academically. The passage of time made a number of updates
necessary and enabled me, I would hope, to improve its substance. Literature and
case law are accurate as of the end of August 2014. I was able to include a few
late coming cases and articles after that date, in particular the Court of Justice's
Opinion 2/13 on EU accession to the ECHR.
While research and writing, in the legal field at least, are solitary activities, their
quality is considerably improved by a good support network. I have been fortunate
enough to have profited from working in inspiring environments: at the University
of Erlangen, where I learnt my trade and where I made the decision to become
an academic; at University College London, where I had my first job in the UK as
DAAD-Lecturer, and where most of the research for this book was carried out; at
the University of Surrey, where I met some of my best academic friends; and at the
University of Edinburgh, where I have the privilege of being based in outstanding
academic surroundings and where this work was completed. I have profited enor-
mously from exchanges with colleagues, from talks and lectures, workshops and
conferences organized at these institutions and I am very grateful for this.
I would in particular like to thank my doctoral supervisor Bernhard W. Wegener,
who inspired me to write a thesis around the (then pending) MOX Plant case. In
addition, I would like to thank those friends and colleagues who have read and
commented on various parts of this book: Filippo Fontanelli, Apolline Roger,
Konstanze von Papp, Neil Walker, as well as Ariadne Panagopoulou, who provided
valuable research assistance. Thanks are also due to the team at OUP, in particular
Merel Alstein and Emma Endean, for their excellent support.
Finally, I am eternally grateful to my parents for supporting me in whatever
I have done and am doing and, in particular, to my wife Jennifer, to whom this
book is dedicated. I am sure she knows why.
TL
Edinburgh, June 2015

Table of Contents
Table of Cases  xiii
Table of International and European Legal Materials xxv
List of Abbreviations  xxxi
Chapter 1 Introduction  1
I. Aim of this Book  1
II. Basic Theoretical Assumptions  2
III. Defining International Courts  5
IV. Background: The Proliferation
of International Courts and Tribunals  7
A The development of international adjudication:
from humble beginnings to the proliferation
of international courts  7
B The potential dangers of proliferation  12
Chapter 2 The Relationship between International Courts  25
I. Introduction  25
II. Conflicts of Jurisdiction  25
A Characterizing conflicts of jurisdiction  26
B Solving conflicts of jurisdiction  32
III. Parallel Proceedings  58
A Res judicata  58
B Lis alibi pendens  63
C Forum non conveniens?  68
IV. Conclusion  70
Chapter 3 The Court of Justice and International Courts:
Jurisdictional and Procedural Issues  74
I. Introduction  74
II. The Two Faces of the CJEU  75
III. The Exclusive Jurisdiction of the CJEU: Basic Tenets  77
A The autonomy of the European
Union’s legal order  77
B Autonomy and the CJEU’s jurisdiction  80
C Conclusions  91