Lowe, Vaughan --- "Overlapping Jurisdiction in International Tribunals" [1999] AUYrBkIntLaw 11; (1999) 20 Australian Year Book of International Law 191
[*] Chichele Professor of Public International Law and Fellow of All Souls College, University of Oxford.
[1] See, eg, the position of the US courts, the ICJ, and the Iran-US Claims Tribunal: G Wegen, ‘Discontinuance of International Proceedings: The Hostages Case’ (1982) 76 American Journal of International Law 717.
[2] See, eg, the Southern Bluefin Tuna Case (1999) 38 ILM 1624.
[3] See also the Statute of the Central American Court of Justice, ch II <http://www.ccj.org.ni/> .
[4] See V Rodríguez-Cedeño, First Report on Unilateral Acts of States, UN Doc A/CN 4/486 (1998) [115]-[116].
[5] See B Cheng, General Principles of International Law (1987) 25-26; G G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and other Treaty Points’ (1957) 33 British Yearbook of International Law 236; Lord McNair, The Law of Treaties (1961) 219; Sir R Jennings and Sir A Watts, Oppenheim’s International Law (9th ed, 1992) 1280; D P O’Connell, International Law (1970) 12-13.
[6] See, eg, Chemin de fer Zeltweg (Austria v Yugoslavia) (1934) 3 RIAA 1795, 1803; Mavrommatis Palestine Concessions (Jurisdiction) PCIJ [1926] (ser A), No 2, 30-31; Chorzów Factory (Jurisdiction) PCIJ (ser A), No 9, 30; European Commission of the Danube, PCIJ (ser B), No 14, 23; Rights of Passage Case (Merits) [1960] ICJ Rep 6. Cf J L Simpson and H Fox, International Arbitration (1959) 75.
[7] This leaves open the question whether the tribunal has jurisdiction which it may not exercise, or does not have jurisdiction at all.
[8] It is not clear that the premise is necessarily sound. It might be argued that, for example, a certain dispute that arises between two OSCE states has a particular inherently ‘OSCE’ character that renders the OSCE Convention a lex specialis in relation to that dispute, prevailing over the jurisdiction of the ICJ. I do not pursue that possibility here.
[10 ] See the declarations set out at <http://www.un.org/Depts/los/los_decl.htm> . The details given are as at 14 March 2000. Comparable overlaps may arise in other fields, such as human rights, where both international bodies such as the UN Human Rights Committee, and regional bodies such as the Inter-American Commission and Court of Human Rights, may both have competence in respect of a given dispute.
[11] PCIJ (ser A), No 9, 30.
[12] There are, it is true, instances in which a tribunal has turned away litigants in cases in which it appeared to have both personal and subject-matter jurisdiction, despite the evident lack of an alternative forum: see, eg, Islamic Republic of Iran v Pahlavi, 464 NYS 2d 487 (1983); 81 International Law Reports 557. But this is rare and plainly undesirable — and, by definition, not a case that falls within the category of instances of overlapping jurisdiction.
[13] And it is in any event usual to insist that a defendant objecting to the hearing of a case in the forum court establish that it is amenable to the jurisdiction of a more appropriate tribunal elsewhere.
[14] See the comments of the ICJ in the Tunisia/Libya Continental Shelf Case [1982] ICJ Rep 18, 21, 38.
[15] L Collins (ed), Dicey and Morris on the Conflict of Laws (12th ed, 1993) 395 (fns omitted).
[16] See Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.
[17] See Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197.
[18] P Prince, ‘Bhopal, Bougainville and Ok Tedi: Why Australia’s Forum non Conveniens Approach is Better’ (1998) 47 International and Comparative Law Quarterly 573; J E S Fawcett, ‘Trial in England or Abroad: The Underlying Policy Considerations’ (1989) 9 Oxford Journal of Legal Studies 205.
[19] There are exceptional cases. The Bosnian Genocide Cases in the ICJ hold the prospect of several hundred witnesses being called.
[20] In re Union Carbide Corp. Gas Plant Disaster at Bhopal India in December[1987] USCA3 92; , 1984, 634 F Supp 842 (1986); (1986) 25 ILM 771.
[21] PCIJ (ser A), No 6, 20.
[22] See the comments of Lord Brandon in The Abidin Daver [1984] AC 398, 423.
[23] The question of what ‘substantial identity’ might be is important and difficult. There is much relevant practice and analysis to be found in municipal courts, not only in civil cases but also in contexts such as the application of the non bis in idem principle in criminal law and the ‘double criminality’ requirement in extradition law. See, eg, C Van den Wyngaert and G Stessens, ‘The International Non Bis in Idem Principle: Resolving Some Unanswered Questions’ (1999) 48 International and Comparative Law Quarterly 779.
[24] ‘The policy of the law must … be to favour the litigation of issues only once, in the most appropriate forum,’ as Bingham LJ put it in Du Pont v Nemours [1987] 2 Lloyd’s Rep 585, 589. The reference to the ‘appropriate forum’ invites the application of the doctrine of forum non conveniens to the municipal cases with which he was concerned.
[25] The application of the doctrine is by no means unproblematic in the context of international tribunals: see V Lowe, ‘Res Judicata and the Rule of Law in International Arbitration’ (1996) 8 African Journal of International Law 38-50.
[26 ] The question of double recovery in damages is not considered in this paper, but does not in any event touch the jurisdiction of the tribunals to hear the multiple claims.
[27 ] [1956] ICJ Rep 89. Cf Jennings J in the Lockerbie Case (Preliminary Objections) [1998] ICJ Rep 102.