Countermeasures and Jurisdiction: Between Effectiveness and Fragmentation

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TABLE OF CONTENTS

I.  INTRODUCTION
II. FRAMING THE ISSUES: COUNTERMEASURES AND ADJUDICATORY
    JURISDICTION
   A. The Legal Role of Countermeasures in the Law of State
      Responsibility
   B. Jurisdictional Problems Raised by Non-Reciprocal
      Countermeasures in Adjudicatory Bodies of Limited
      Jurisdiction
III. CASE STUDY 1: COUNTERMEASURES, COMITY AND JURISDICTIONAL
     LIMITS
   A. The Use of Comity in the Regulation of Overlapping
      Jurisdiction
   B. A Role for Comity in the Treatment of Non-Reciprocal
      Countermeasures Defenses?
   C. Case Study 1: Summary
IV.  CASE STUDIES 2 AND 3: THE RELATIONSHIP BETWEEN
     APPLICABLE LAW AND JURISDICTION
   A. Applicable Law and Interpretation: The Frontiers of Systemic
      Interpretation
   B. A Case for Pendent Claims Jurisdiction in International
      Adjudication?
   C. Cases Studies 2 and 3: Summary
V. IMPLICATIONS OF JURISDICTIONAL LIMITS ON THE EFEECTIVENESS
   OF COUNTERMEASURES AS A CIRCUMSTANCE PRECLUDING
   WRONGFULNESS
   A. The Relationship Between Countermeasures and Dispute
      Settlement Procedures Under the ILC Articles
   B. Article 50 of the ILC Articles and the Meaning of "any
      dispute settlement procedure applicable"
VI. CONCLUSION

I. INTRODUCTION

A distinguishing feature of international adjudication is the lack of a general hierarchy among its various judicial constituents. That there is no international supreme court is a fact asserted early and often in the public international law syllabus. Over the past twenty years, roughly since the end of the Cold War, international adjudication has become characterized by a multiplicity of dispute settlement procedures created under bilateral and multilateral treaties, each with its own limited jurisdictional mandate, ordinarily addressed and confined to disputes in a particular subject-area or arising under a particular treaty. As these specialized adjudicatory bodies of limited jurisdiction have multiplied, the implications of the international legal system's horizontal equality have become more fully appreciated, and concerns have been raised for the coherence of international law generally.

The development of specialized adjudicatory bodies (2) with limited jurisdictional mandates reflects the general unwillingness of States to make use of dispute settlement mechanisms of general application--such as the Optional Clause jurisdiction of the International Court of Justice--in preference to mechanisms establishing adjudicatory bodies of more specialized and restricted jurisdictional scope. (3) Because the jurisdiction of international tribunals remains based upon the consent of States, (4) the scope of the jurisdiction or competence of international tribunals, be they courts (5) or arbitral tribunals, (6) derives directly from the scope of the consent granted. (7) In the international legal system, the scope of the consent to adjudication--and hence the scope of jurisdiction--is ordinarily found in compromissory clauses inserted into treaties or in submission agreements drafted by the parties themselves. (8) In municipal systems, by contrast, the jurisdiction of judicial bodies does not depend upon the direct consent of the parties. While there may be divisions of judicial competence within municipal legal systems, it is undoubtedly true that, "there will be one court or another before which can be brought every claim that can be formulated under the laws of the State in question." (9) Not so in the international system.

Much already has been written about the various ways in which specialized dispute settlement procedures may lead to a "fragmentation" of international law. (10) In its 2006 study, Difficulties A rising from the Diversification anal Expansion of International Law, (11) a study group of the International Law Commission analyzed how the expanding scope of international law through the establishment of specialized regimes creates the potential for normative conflicts, which in turn may lead to the fragmentation of international law. …