Connected or Disconnected? The EU and International Law

1
Connected or Disconnected?The EU and
International Law
Prof. Pieter Jan KUIJPER

• Lecture 2 Position of International Law in EU
  Legal Order

2
The Importance of the Subject

• The classical problem of Monism/Dualism (?)
• How separate/open is EC legal order from/to
  international legal order?
• Effectiveness of international law.
• Issue of democratic legitimacy.
• Issue of the relation to the Member States.
• Issue of separation/balance of powers.
• Are there certain recognizable historical trends?

3
Different aspects of the subject

• ECJ and international agreements (co-) concluded
  by the EC.
• Pure Community agreements
• Mixed agreements
• ECJ and decisions of int. organizations
• ECJ and international agreements of the MS
• ECJ and customary international law
• ECJ and judgments of international courts

4
ECJ and Community Agreements 1

• Is the Agreement law of the land has it become
  part of Community law?
• In principle yes (Case 104/81, Kupferberg)
• This has important consequences for MS the
  constitutions of which were dualist.

5
ECJ and Community Agreements 2

• Can the agreement be invoked before the Court by
  an individual is there direct effect or
  self-executingness?
• What are the conditions?
• For the agreement as a whole? (treatment of the
  GATT, WTO and Law of the Sea Convention, see
  Cases 21-24/72 International Fruit, C-62/98
  Portugal v. Council, C-308/06, Intertanko)
• For the individual provision? (Case 12/86
  Demirel)
• Considerations behind the conditions
• Courts want to avoid sitting in the chair of the
  legislator or the executive separation of
  powers.

6
ECJ and Community Agreements 3

• If there is no direct effect, what then?
• Harmonious interpretation insofar as possible.
• Motivated by a desire of courts not to place
  ones country or the EC in a position of having
  breached an international agreement (see cases
  C-53/96 Hermes and C-300 and 392/98 Dior
  Assco).
• Sometimes harmonious interpretation can come very
  close to direct effect Case C-89/99
  Schieving/Nystad
• Again a question of separation of powers.

7
ECJ and mixed agreements

• When does the ECJ have no right to rule on them?
• Case C-431/05 Merck Genericos. If there is truly
  no Union law on the matter.
• Case C-239/03 Commission v France (Etang de
  Berre). Area largely covered by Community Law,
  though not the precise subject matter (pollution
  by effluents). Preventing France from causing
  joint liability? Hidden application of Union
  loyalty?

8
ECJ and customary intl law

• Is customary international law law of the land?
• Yes. The Community cannot be the vehicle by which
  MS escape the limits of customary international
  law. See case C-286/90 Poulsen law of the sea.
• Can it have direct effect?
• Very doubtful. Problems of (democratic)
  legitimacy. Court comes to nuanced conclusions in
  Cases T-115/94 Opel Austria and C-162/96 Racke
• Harmonious interpretation extremely important.
• Possible consequence ultra vires. See Poulsen
  case.

9
ECJ and decisions of Intl Organizations

• Are they law of the land?
• Yes, if they are binding. (Case C-192/89 Sevince)
• Can they have direct effect?
• On the same conditions as international
  agreements. See Sevince case.
• Even if they are not published (Case C-277/94
  Taflan-Met)

10
ECJ and Treaties of the Member States

• Article 351 TFEU Old MS Treaties
• In principle respect for earlier treaties of
  Member States (Para. 1).
• On the other hand Member States have a duty to
  adapt these treaties, if incompatible with
  Community law (Para. 2).
• They may even be obliged to revoke them, if
  negotiation for adaptation does not work. (ILO
  Convention case against Austria C-203/03)).
• Demonstrates the tension between the EU being a
  new legal order of international law and being
  its own constitutional order.

11
ECJ and Treaties of the Member States 2

• Succession?
• In exceptional cases GATT(Case 21-24/72
  International Fruit)
• Refused in all other casesUN Environmental
  cases Law of the Sea (Cases c-420/05P Kadi,
  C-308/06 Intertanko, C-188/07 Commune de Mesquer,
  C-301/08 Bogiatzi Warsaw Convention)
• If no succession, no direct effect is possible.

12
ECJ and Treaties of the Member States 3

• Relevant elements
• Human Rights Treaties reference in Art. 6 TEU
  (old) standing case law of the Court. Full
  application. Situation changed in Art. 6 TEU
  (new).
• Geneva Convention on Refugees 1951 Protocol of
  1967 (Art. 78(1) TFEU) Case C-31/09, Bolbol.
• European Social Charter (Art. 151 TFEU).
• MS Treaties that have been implemented in
  Community law ex. CITES taken account of
  (ex. Intertanko a contrario Commune de
  Mesquer). NB less than harmonious interpretation.
  Cf. also UNSC resolutions (C- 402/05P Kadi and
  C-340/08 M and others).
• Treaties concluded by MS on behalf of the EC, if
  they are all parties. Situation unclear.

13
ECJ and Judgments of International Courts

• Not a question of direct effect, but a question
  of binding authority of the judgment on EC ( Cf.
  Case C-377/02 Van Parys).
• This is true for WTO panels and AB, and other
  dispute settlement mechanisms in Community
  Treaties (e.g. Kyoto mechanism). Special
  situation EFTA Court.
• Special situation for ECtHR, whose case law is
  normally followed (see above).
• Judgments of other international courts are
  referred to as helpful authority in the
  interpretation of international law (cf.
  references to ICJ case law e.g. in Case C-286/90
  Poulsen above).

14
ECJ and Judgments of International Courts 2

• What are the implications for the ECJ of a
  binding judgment?
• Only very seldom will a case before the ECJ be
  (virtually) identical to a case decided by e.g.
  WTO Appellate Body.
• If there is no identity, nevertheless the Court
  should take account of it. It has to argue with
  the case. Cf. German Constitutional Court in
  Görgülü case. Cf. CFI in Ritek ,T-274/02
• Court sometimes just follows WTO AB without
  saying so and on the basis of application of EC
  law principles. Cf. German case on bananas Ikea
  case (C-351/04).

15
Conclusions

• Community system in principle very open to
  international law.
• In reality great differences between the
  individual rights sphere (human rights, rights of
  third country workers under bilateral treaties)
  and economic rights sphere (in particular
  GATT/WTO). Why?
• ECJ has become over time more cautious in
  granting direct effect. EC legal order has become
  less permeable to international law.
• ECJ has also been cautious in its approach to
  judgments of international courts.

16
Comparative Perspective

• Supreme Court of US seems to be subject to the
  same kind of developments
• Legislator has explicitly excluded self-executing
  character of certain treaties, such as WTO.
• Has added the requirement of a cause of action
  to law of the land and self-executingness
  criteria.
• Has been unwilling to recognize binding character
  of certain judgments of international courts.
  Medellin case.
• Appeals Courts have even denied the benefit of
  harmonious interpretation to WTO agreements.