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In this article the author responses on the comments made on the article "National Courts, Domestic Democracy, and the Evolution of International Law" by Eyal Benvenisti and George Downs. The author discusses the relationship between national and international courts, their contracting parties and governments. The author focuses on how proliferation of international courts and tribunals has been used by judicial bodies to remodel the international law of Europe.

The wider issues raised by the Brazilian Tyres case are discussed in this contribution. Regarding the institutional aspects, this case examines the difficulties between regional dispute settlement systems and the global WTO dispute settlement system. In particular, the WTO Appellate Body showed no deference towards the prior report of the MERCOSUR Arbitral Tribunal. Indeed, the WTO Appellate Body is espousing a supremacy of WTO law – not only vis-à-vis regional dispute settlement bodies, but also regarding WTO panels. It is argued that this attitude is not sustainable in the light of the increasing proliferation of international courts and tribunals, which inevitably results into disputes being adjudicated by different courts and tribunals at different levels. Regarding the substantive aspects, this case is a prime example of the difficulties of balancing non-trade interests and trade interests. At the end, trade interests superseded the nontrade interests. It is argued that the way Article XX GATT has been interpreted and applied by the WTO Appellate Body leaves states insufficient room to address urgent environmental and health problems by restricting trade. It is argued that in this case Brazil's non-trade interests should have been given preference over the trade interests of the EC and Uruguay. [ABSTRACT FROM AUTHOR]

In the judgment in Case C-459/03, Commission v Ireland, the ECJ for the first time explicitly determined the scope of its exclusive jurisdiction based on Article 292 EC. The ECJ interpreted its jurisdiction very expansively in order to protect its exclusive jurisdiction to interpret and apply Community law. Accordingly, EU Member States involved in a dispute that potentially raises issues of Community law are not allowed to bring the case before a dispute settlement body other than the ECJ. Furthermore, Member States have the duty to inform and consult the Community institutions prior of bringing a case before another dispute settlement body. Otherwise, the ECJ claims, the danger arises that the autonomy of the Community legal order and its exclusive jurisdiction may adversely be affected by rulings of other international courts or tribunals in disputes that also touch on EC law. With this judgment the ECJ substantially restricted the right of the EU Member States to select a dispute settlement system of their choice. Moreover, this expansive interpretation by the ECJ of its exclusive jurisdiction limits the exercise of the jurisdiction of other international courts and tribunals that are called upon to adjudicate on a dispute that possibly involves Community law. It is submitted that with this extensive understanding of its exclusive jurisdiction, the ECJ is unduly restricting the sovereign right of the Member States to select the dispute settlement system of their choice as well as interfering in the exercise of the jurisdiction of the other international courts and tribunals. [ABSTRACT FROM AUTHOR]

The European Court of Justice has tried to protect as much as possible its exclusive jurisdiction by making clear to the Member States that it is the only and final dispute settlement body that has the jurisdiction to adjudicate on all aspects of Community law, including international law aspects that are part of the Community legal order. This article outlines the MOX case and analyses the high price which would have to be paid for the limitation of the freedom of the Member States to select the dispute settlement system of their choice and by the limitation of the exercise of the jurisdiction of the other international courts and tribunals to provide the maximum protection of the exclusive jurisdiction of the ECJ. [ABSTRACT FROM AUTHOR]

While states increasingly have the possibility to settle environmental disputes before various international courts and tribunals, the right of the EC Member States to use these fora is progressively restricted due to the expanding jurisdiction of the ECJ - at least as far as intra-EC Member States disputes are concerned. Thus, the possibility that the same environmental dispute could come before an international court/tribunal and the ECJ at the same time is rising. Accordingly, a concurrence between the jurisdiction of international courts/tribunals on the one hand and the ECJ on the other hand arises, which increases the possibility of conflicting judgments regarding the same dispute. In the first part of this two-part article ([2005] EELR 213–25) the author discusses two developments in international law in detail. First, the aspect of institutionalisation of international law and second, the danger of fragmentation of international law. He then turns to the developments in European law. In particular, this section analyses the precise extent of the jurisdiction of the ECJ in regard to international environmental law, the jurisprudence of the ECJ on international law issues and its effect on the competence of the EC Member States to utilise dispute resolution mechanisms outside the EC Treaty. As an illustration of the problems associated with the concurrence of jurisdiction, the author discusses the MOX plant and Ijzeren Rijn disputes. This second instalment of the article analyses the consequences of the concurrence of jurisdiction on the basis of the MOX plant and Ijzeren disputes and wraps up the discussion by presenting a number of possible solutions. As a caveat, it should be noted that this paper does not deal with arbitration proceedings involving private parties and their relationship with Community law and international law. [ABSTRACT FROM AUTHOR]