Conflicting Rules & Clashing Courts: What Role for the WTO?

17 December 2010

With the proliferation of multilateral environmental agreements, as well as free trade pacts, how can we avoid conflicts and promote coherence in the highly complex relationship between global trade and environmental governance?

The dense web of global trade regulation is complemented by other international regimes addressing issues as diverse as labour standards, trade in diamonds from conflict regions and trade in counterfeit products.  All these legal galaxies are criss-crossing outwards in the universe of international governance, leading to a possible loss of cohesion and an increased potential for collisions: conflicts of norms set out in substantive rules, or conflicts of jurisdiction between different courts and tribunals.

Potential Consequences of Conflict

If the proliferation of rules in international agreements leads to clashes between different regimes, and there is no clarity under international law, or the specific agreements in question, on how to solve such conflicts, the authority and effectiveness of the law are in danger of being undermined. If, moreover, the courts and tribunals created under the agreements are involved in clashes over the competence and scope of their jurisdiction, the authority and the effectiveness of both the law and the courts themselves will suffer. These are big ifs, and they may not come to pass. If they do, however, all the great strides forward in international trade and environmental law that have been made over the last quarter century risk being undermined.

When jurisdictions clash, the law of the strongest dispute settlement system prevails. Strength is measured in such cases primarily in terms of whether the system is compulsory and binding, as is the case of the WTO system.

Imagine, for example, that a regional trade agreement (RTA) contains norms that largely parallel WTO rules, but its provisions on the treatment of tradeable waste within national jurisdictions are more advanced and detailed. Suppose further that the RTA's dispute settlement system is not fully compulsory, but all of its members belong to the WTO. Inevitably, tradeable waste cases will end up in the WTO with the consequence that the detailed rules laid down in the RTA will seldom be used and will atrophy.

In practice such problems seem to be most relevant to ‘second generation' multilateral environmental agreements (MEAs), such as the Convention on Biological Diversity and its progeny (the biosafety protocol and the recent protocol on access and benefit-sharing), as well as the UN Framework Convention on Climate Change and its offspring (the Kyoto protocol). More traditional MEAs, such as the Basel Convention, seem to be safe from legal challenge.

Tools to Address the Problem

In principle, an extensive tool box is available to treaty-makers, as well as to courts and litigants to solve such conflicts. One important tool is provided by principles of treaty interpretation. It starts with the general assumption that if treaties allow various interpretations, the one most compatible with other international norms should be taken as one cannot assume that countries meant to enter into conflicting obligations.

Recent agreements include a concept that appears to reach even further: the principle of ‘mutual supportiveness'. Many of the treaties have preambular and/or substantial clauses that evoke mutual supportiveness between two or more agreements, which could be considered as conflicting, at least in policy terms.

Although ambiguity currently prevails over what ‘mutual supportiveness' really means, it is a potentially useful principle that could promote balanced co-existence between the WTO and a large number of framework MEAs and other agreements. Without such a balance, the law of the strongest dispute settlement system risks working to the detriment of weaker agreements, potentially hurting sustainable development concerns that are traditionally less institutionally supported. Fortunately, there are no examples of this so far.

Closely linked with this principle are procedural rules available to courts when they determine their jurisdiction, i.e. their authority over a specific case. The application of the principle of mutual supportiveness between two agreements should lead to an outcome where a court ruling under Agreement A does not harm to the object and purpose of Agreement B.

This understanding is also a clear expression of procedural rules such as comity. This is the notion that, even in the absence of clear rules determining which court has jurisdiction in a particular international case, there are certain principles that should lead a court to cede jurisdiction to another tribunal rather than accept competing jurisdictions. In the Sellafield nuclear processing plant dispute between Ireland and the UK, the arbitral tribune referred inter alia to "considerations of mutual respect and comity which should prevail between judicial institutions" and recalled that "a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the parties."

In the interest of the stability of international rule-making and governance, international courts and tribunals in neighbouring fields, like trade, investment, the environment, etc. need to develop a doctrine of ‘forum non conveniens' between themselves, or at the very least use their inherent powers to abstain from exercising jurisdiction or rule on admissibility if there are serious reasons for doing so.

Pieter Kuijper teaches Law of International (Economic) Organisations at the University of Amsterdam. This article is based on his study Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO, commissioned by ICTSD.

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