European exceptionalism in international law

European Journal of International Law

Volumn 19, Issue 3, 2008, Pages 463-490

  Ličková, Magdalena ^a,b  

^a UNIVERSITÉ PARIS 1 PANTHÉON SORBONNE   (France)

^b UNIVERSITY OF WEST BOHEMIA   (Czech Republic)

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[No Author keywords available]

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EID: 48349136427     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn028     Document Type: Article

References (158)

1. In this article, I will often refer to the EU as covering also the EC structure or to the EU/EC in aggregate, if appropriate, because in the field of foreign affairs, the legal basis for European action sometimes consists of a complex combination of acts issued in both, EC and EU framework. If appropriate, I will distinguish between the two. The supranational qualification is linked obviously only to the EC, whereas the EU is governed by the inter-governmental method of decision-making.
2. Charter of the UN, signed on 26 June 1945, entered into force 24 Oct. 1945, 59 Stat. 1031, 993 UNTS 1153.
3. Hoffmeister, 'Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirket v. Ireland. App. No. 45036/98', 100 AJIL (2006) 442
4. Kuijper and Paasivirta, 'Further Exploring International Responsibility: the European Community and the ILC's Project on Responsibility of International Organisations', 1 Int'l Orgs L Rev (2004) 111.
5. See Art. VI of the US Constitution or Arts 25 and 32(1) of the German Basic Law. Note, however, Art. 32(3): '[i]nsofar as the Länder have power to legislate, they may, with the consent of the Federal Government, conclude treaties with foreign states'. ('Soweit die Länder für die Gesetzgebung zuständig sind, können sie mit Zustimmung der Bundesregierung mit auswärtigen Staaten Verträge abschließen'.)
6. To recall a major example, the Massachusetts Burma legislation provoked an action within the WTO that the whole US federation had to face. See the complaint by the EC WT/DS88, denouncing the violation by the US of the General Procurement Agreement, which is one of the instruments administered by the WTO. The EC filed an official request for consultation on 20 June 1997 with respect to the Act regulating State Contracts with companies doing Business with Burma (Myanmar), enacted by the Commonwealth of Massachusetts on 25 June 1996. The panel proceedings were suspended at the request of the complainants, on 10 Feb. 1999, and have not been resumed since. More recently, comments have been triggered by a decision of the Texas Court of Criminal Appeals, which refused to obey a presidential memorandum requesting state courts to comply with a decision of the International Court of Justice (ICJ) in the Avena case (Avena and Other Mexican Nationals (Mexico v. US) [2004] ICJ Rep 128, at 12), Ex parte José Ernesto Medellín, Tex Crim App, 15 Nov. 2006, No. AP-75207.
7. In 1942 the US Supreme Court could announce that 'in respect of [the US] foreign relations generally, state lines disappear. As to such purposes the State[s ...do] not exist': US v. Pink, 315 US 203 (1942), at 331.
8. See Art. 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, 2001, available at: http://untreaty.un.org/ilc/texts/instruments/english/ draft%20articles/9_6_2001.pdf.
9. See also UN GA res. 59/35 of 2 Dec. 2004. For judicial decisions confirming the rule see quotations by the International Law Commission in the Draft Arts with commentaries, at 84-92, reproduced in Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10) and in the annex to UN GA res. 56/83 of 12 Dec. 2001.
10. Treaty establishing the European Economic Community, signed on 25 Mar. 1957 which entered into force on 1 Jan. 1958, 298 UNTS 11. See also the consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community, OJ (2006) C 321/1.
11. See De Witte, 'Retour à Costa. La primauté du droit communautaire à la lumière du droit international', 20 Revue trimestrielle de droit européen (1984) 425.
12. Supra note 8.
13. The legal personality is understood as an agglomerate of capacities to enter into binding agreements, to implement international obligations, and to carry out activities relating to right to receive and send diplomatic delegations (passive and active legation). The EC has been entitled to act with respect to all these powers. Their exercise is, however, constrained by the limited functions that the EC is permitted to carry out. In practice, the delimitation of external competences is rather a matter of degree than one of clear-cut solutions. It also depends on international rules that the EC is willing to subscribe to because some international conventions do not allow for the participation of the international organizations.
14. See Art. 5(1) EC. See generally F. Hoffmeister, The Contribution of EU Practice to International Law (forthcoming).
15. See also D.R. Verwey, The European Community, the European Union and the International Law of Treaties. A Comparative Legal Analysis of the Community and Union's External Treaty-Making Practice (2004).
16. For the EU external relations legal framework as conceived in the Treaty Establishing a Constitution for Europe see B. Martenczuk, 'The Constitution for Europe and the External Relations of the European Union', in S. van Thiel, K. de Gucht, and R. Lewis (eds), Understanding the New European Constitutional Treaty, Why a NO Vote Means Less Democracy, Human Rights and Security (2005), at 253.
17. For a recent manifestation of an international action by the EU Member States, prohibited under EC law, see the set of three decisions in the MOX Plant case: International Tribunal on the Law of the Sea The MOX Plant Case (Ireland v. UK), Request for provisional measures, 3 Dec. 2001, Case No. 10, 41 ILM (2002) 405
18. The Permanent Court of Arbitration, The MOX Plant Case (Ireland v. UK), order No. 3, Suspension of proceedings on jurisdiction and merits and request for further provisional measures, 24 June 2003, 42 ILM (2003) 1187
19. Case C-459/03, Commission v. Ireland [2006] ECR I-4635.
20. The multilateral treaties that under EC law qualify as mixed often contain provisions requiring the Member States and the EC to communicate and periodically update a list specifying the intra-European division of powers with respect to the given treaty. Powers not listed as supranational are automatically presumed to fall within the authority and under the international responsibility of the Member States: See Annex IX of the UN Convention on the Law of the Sea (UNCLOS) of 10 Dec. 1982, which entered into force on 16 Nov. 1996, 1833 UNTS 31363; 21 ILM (1982) 1261.
21. Supra note 8.
22. Case 6/64, Costa v. ENEL [1964] ECR 1141: '[b]y contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, ..., became an integral part of the legal systems of the Member States and which their courts are bound to apply'. In the French version, it is 'ordre juridique propre intégré au système juridique des Etats membres'.
23. Case 26/62, Van Gend en Loos v. Nederlandse Administratie des Belastingen [1963] ECR 3: '[t]he European Economic Community constitutes a new legal order of international law for benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only the Member States but also their nationals'.
24. Case 6/64, supra note 16.
25. The Vienna Convention was adopted on 22 May 1969, and entered into force on 27 Jan. 1980, 1155 UNTS 331. To date the Vienna Convention has 45 signatories and 108 parties. The majority of the EU states have ratified with the exception of France, Malta, and Romania. See generally P. Reuter, La Convention de Vienne sur le Droit des traités (1970), at 61.
26. See Art. 30 VCLT, supra note 19.
27. I. Sinclair, The Vienna Convention on the Law of Treaties (2nd rev. and enlarged edn, 1984). For the application of the Vienna Convention in the EC see Kuijper, 'The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties', 25 Legal Issues of European Integration (1998) 1.
28. See Report of the Study Group of the International Law Commission, finalized by M. Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, doc. A/CN.4/L.682, at 17-18, paras 21-22, at 129 ff, para. 253 ff.
29. 'A party may not invoke provisions of its internal law as justification for its failure to perform a treaty'. The rule of Art. 27 is mirrored in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which has not yet entered into force, adopted on 21 Mar. 1986, doc. A/ CONF.129/15. Neither the EU nor the EC has signed it and a minority of the EU states have signed or ratified.
30. Morgenstern, 'The Convention on the Law of the Treaties between States and International Organizations or between International Organizations', in Y. Dinstein International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne Martinus (1988), at 439. For a summary of discussion see UN Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 Feb.-21 Mar. 1986, Official Records, Vol. I, Summary records of the plenary meetings and of the Committee of the Whole, UN, New York, 1995, A/CONF.129/16, Vol. I.
31. Codified in Art. 26 VCLT. The customary nature of the pacta sunt servanda rule was affirmed by the ICJ in the Fisheries Jurisdiction Case (UK v. Iceland), Jurisdiction of the Court, Judgment [1973] ICJ Rep 3, at 18. See also the case law of the Permanent Court of International Justice (PCIJ) in SS Wimbledon (France v. Germany), 17 Aug. 1923, PCIJ, ser. A, No. 1, at 29-30
32. Case concerning certain German interests in Polish Upper Silesia (Germany v. Poland) (merits), 25 May 1926, PCIJ, ser. A, No. 7, at 19
33. Treatment of Polish nationals and other persons of Polish origin or speech in the Dantzig territory, 4 Feb. 1932, advisory opinion, PCIJ, ser. A/B, No. 44, at 24.
34. See also Case C-286/90, Anklagemyndigheden v. Poulsen and Diva Navigation Corp. [1992] ECR I-6019, at 6052, para. 9.
35. See Annex IX to UNCLOS, supra note 14.
36. See Koskenniemi, supra note 21, at 17-18, paras 21-22 and 129 ff, para. 253 ff.
37. See, e.g., Art. 103 of the UN Charter, supra note 2: '[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'. The provision is referred to in Art. 30(1) VCLT, supra note 19: '[s]ubject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs'.
38. See also Art. 20 of the Covenant of the League of the Nations (Treaty of Versailles, 28 June 1919) and Arts 103 and 104 of the North American Free Trade Agreement (NAFTA) of 8,11,14, and 17 Dec. 1992, 32 ILM (1993) 289.
39. 55 UNTS 194, TIAS 1700. In many aspects, the Treaty of Rome took inspiration from the GATT.
40. O. Blin, La Communauté européenne, le GATT, l'Organisation mondiale du commerce. Contribution à l'étude des rapports institutionnels entre la Communauté européenne et les organisations internationales, PhD thesis, University of Toulouse (1997)
41. M. Ličková, La Communauté européenne et le système GATT/OMC. Perspectives croisées (2005).
42. On Art. 307 see Klabbers. 'Moribund on the Fourth July The Court of Justice on Prior Agreements of the Member States', 26 ELRev (2001) 187
43. Cohen-Jonathan,' Article 234', in V. Constantinesco, R. Kovar, J.-P. Jacqué and D. Simon (eds), Traité instituant la CEE, Commentaire article par article (1992), at 1497, 1501.
44. Art. 307(3) reads as follows: '[i]n applying the agreements referred to in the first paragraph, member states shall take into account the fact that the advantages accorded under this Treaty by each member state form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other member states'.
45. See, e.g., Case 10/61, Commission v. Italian Republic [1962] ECR 1
46. Case 812/79, Attorney General v. Juan C. Burgoa [1980] ECR 2787
47. Case C-158/91, Ministère public and Direction du travail et de l'emploi v. Jean-Claude Levy [1993] ECR I-4287
48. Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649
49. Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533
50. Case T-70/89, British Broadcasting Corporation and BBC Enterprises Ltd v. Commission [1991] ECR II-535
51. Case 76/89, Independent Television Publications Ltd v. Commission [1991] ECR II-575
52. Case 69/89, Radio Telefis Eireann v. Commission [1991] ECR II-485
53. Cases 241/91 P and 242/91 P, Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission [1995] ECR I-743
54. Joined Cases C-364/95 and 365/95, T. Port GmbH & Co v. Hauptzollamt Hamburg Jonas [1998] ECR I-1023
55. Case C-377/98, Netherlands v. Parliament and Council [2001] ECR I-7079.
56. See, e.g., the Open Skies Agreements case of 5 Nov. 2002 involving 8 Member States: Case C-466/98, Commission v. UK [2002] ECR I-9427
57. Case C-467/98, Commission v. Denmark [2002] ECR I-95
58. Case C-468/98, Commission v. Sweden [2002] ECR I-9575
59. Case C-369/98, Commission v. Finland [2002] ECR I-9627
60. Case C-471/98, Commission v. Belgium [2002] ECR I-9681
61. Case C-472/98, Commission v. Luxembourg [2002] ECR I-9741
62. Case C-475/98, Commission v. Austria [2002] ECR I-9797
63. Case C-476/98, Commission v. Germany [2002] ECR I-9855.
64. See Arts 3-6 of the Act of Danish, Irish, Norwegian, and UK Accession (the First Accession Treaty), OJ (1973) L 73/14; the Act of Greek Accession, OJ (1979) L 291/17; the Act of Iberian Accession, OJ (1985) L 302/23. See Arts 4-7 of the Act of Accession of Norway, Austria, Finland, and Sweden, OJ (1994) C 241/21.
65. See Documents concerning the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and the Slovak Republic to the EU, OJ (2003) L 236/1; see especially the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and the Slovak Republic, OJ (2003) L 236/33, at Art. 6. See also the Treaty concerning the Accession of Bulgaria and Romania to the EU, OJ (2005) L 157/1 and especially the Act of Accession of Bulgaria and Romania, OJ (2005) L 157/203, Art. 6.
66. See Case 11/77, Patrick v. Ministre des Affaires culturelles [1977] ECR 1199. If the accession treaty creates a derogation from a Treaty provision, it is to be read restrictively: See, e.g., Case 77/82, Peskeloglou v. Bundesanstalt für Arbeit [1983] ECR 1085.
67. See Arts. 10(6) and 12 of the Act of Accession of the Czech Republic, etc., supra note 35.
68. See Council Dec 69/494/EEC of 16 Dec. 1969 on the progressive standardization of agreements concerning commercial relations between Member States and third countries and on the negotiation of Community agreements, OJ (1969) L 326/39.
69. The last exception so far was granted by Council Dec 2001/855/EC of 15 Nov. 2001 authorizing the automatic renewal or continuation in force of provisions governing matters covered by the common commercial policy contained in the friendship, trade and navigation treaties and trade agreements concluded between Member States and third countries, OJ (2001) L 320/13.
70. Proposal for a Council Dec amending Council Dec 2001/855/EC of 15 Nov. 2001 in order to take account of certain treaties and trade agreements concluded with third countries by new Member States prior to their accession to the European Union, COM(2004)0697 final.
71. One of the main devices of European integration is to create an 'ever closer union among the peoples of Europe': See the Preamble to the Treaty of Rome, supra note 8.
72. Otherwise, these dates would be easy to identify. For the original six members it would be the entry into force of the Rome Treaty, i.e., 1 Jan. 1958, for the other EU members the date of their respective accessions: See the first Accession Treaty, supra note 34
73. Greek Accession Treaty, supra note 34
74. Treaty of Iberian Accession, supra note 34
75. Treaty of Accession of Austria, Finland and Sweden, supra note 34
76. Treaty of Accession of Cyprus, Estonia, Hungary, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, and Slovenia, supra note 34
77. Treaty of Bulgarian and Roumanian Accession, supra note 35.
78. Art. 188 C of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, places foreign direct investment under the competence of the EU [2007] OJ C306/01.
79. Art. I of the GATT contains the most favoured nation clause.
80. XXX, 'L'examen par le G.A.T.T. du Traité de Rome instituant la Communauté européenne', 4 Annuaire Français du Droit International (1958) 621.
81. Haight, 'Customs Unions and Free-Trade Areas Under GATT. A Reappraisal', 8 J World Trade L (1972) 391. Art. XXIV was implemented for the first time during the review of the custom union established between South Africa and Southern Rhodesia: See Report II/190 adopted on 18 May 1949. The second agreement examined pursuant to Art. XXIV was the free trade zone agreement concluded between El Salvador and Nicaragua: See Dec II/32 of 25 Oct. 1951. After the adoption of a new review mechanism set up by the WTO in 1994, the regional agreements such as the EC treaty must be periodically reviewed.
82. ThW WTO dispute settlement documents list 21 cases: See at: www.wto.org/ english/tratop_e/dispu_e/gt47ds_e.htm.
83. The Final Act of the Uruguay Round was concluded on 15 Dec. 1993 and the World Trade Organization (WTO) agreement as well as its annexes entered into force on 1 Jan. 1994, 1867 UNTS 14. Art. XI(1) of the Agreement Establishing the World Trade Organization mentions the 'European Communities' and not the 'European Union' as the WTO member.
84. For the legal assessment of different aspects of the EC's participation within the GATT/WTO see. e.g., the decision in Case C-93/02, Biret International v. Council [2003] ECR I-10497 or Case T-90/03, Fédération des industries condimentaires de France and others v. Commission [2007], not yet reported.
85. See Cases WT/DS67, United Kingdom - Customs Classification of Certain Computer Equipment, WT/DS68, Ireland - Customs Classification of Certain Computer Equipment, and WT/DS62, European Communities - Customs Classification of Certain Computer Equipment, panel report circulated on 5 Feb. 1998, Appellate Body report circulated on 5 June 1998.
86. See also Cases WT/DS82, WT/DS83, and WT/DS115, Measures Affecting the Enforcement of Intellectual Property Rights concerning respectively Ireland, Denmark and European Communities, Mutually agreed solutions notified 13 June 2001 (Denmark) and 13 Sept. 2002.
87. See also Cases WT/DS124, European Communities - Enforcement of Intellectual Property Rights for Motion Pictures and Television Programmes and WT/DS125, Greece - Enforcement of Intellectual Property Rights for Motion Pictures and Television Programmes, Mutually agreed solutions notified 26 Mar. 2001. For other examples see Cases WT/DS172, European Communities - Measures Relating to the Development of a Flight Management System and WT/DS173, France - Measures Relating to the Development of a Flight Management System, requests for consultation 21 May 1999, WT/DS210, Belgium - Administration of Measures Establishing Customs Duties for Rice, mutually agreed solution notified on 2 Jan. 2002, and WT/DS316, European Communities and certain Member States - Measures Affecting Trade in Large Civil Aircraft, request for consultations received on 6 Oct. 2004.
88. Cases WT/DS315/1, European Communities - Selected Customs Matters, request for consultation by the US, 21 Sept. 2004
89. WT/DS315/AB/R, European Communities - Selected Customs Matters, Report of the Appellate Body, 13 Nov. 2006. For the analysis of the EC customs administration see paras 2.2-2.31 and 7.155 ff of Panel report WT/DS315/R, European Communities - Selected Customs Matters, Report of the Panel, 16 June 2006.
90. European Communities - Selected Customs Matters, request for establishment of a panel by the USA, 14 Jan. 2005, WT/DS315/8.
91. Ibid.
92. Panel Report, supra note 51, at para. 69.
93. Ibid., at para. 7.64 and Appellate Body Report, supra note 51, at paras 271-287.
94. Convention for the Protection of Human Rights and Fundamental Freedoms of 4 Nov. 1950, which entered into force on 3 Sept. 1953, ETS 5, 213 UNTS 222.
95. Supra note 2.
96. For the most recent example see the application lodged by Georgia against the Russian Federation on 27 Mar. 2007. The previous ones were Ireland v. UK (1978)
97. Denmark v. Turkey (2000),
98. and Cyprus v. Turkey (2001). A further 17 inter-state applications were dealt with by the European Commission of Human Rights, abolished in 1999.
99. See, e.g., App No 8030/77, CFDT v. European Communities, 13 D and R 231, at 239-240
100. see also App No. 13258/87, M & Co v. Germany, 64 D and R 138
101. App No. 24833/94, Matthews v. UK (Grand Chamber), 1999-I at 305
102. App No. 36677/97, SA Dangeville v. France, 2002-III at 71.
103. Matthews v. UK. supra note 59.
104. App No. 45036/98, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirket v. Ireland (Grand Chamber), judgment of 30 June 2005, 42 EHRR (2006) 1. See Hoffmeister, supra note 3.
105. See Dec 76/787 of the representatives of the Member States meeting in the Council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage, OJ (1976) L 278/1.
106. Matthews v. UK. supra note 59, at para. 26.
107. Ibid., at paras 32-34. The ECHR was adopted in 1950, but the Rome Treaty several years later in 1957.
108. Ibid., at paras 38-44.
109. See the dissenting opinions by Judges Sir John Freeland and Karel Jungwiert.
110. Ibid., at para. 50
111. see App No. 8364/78, Lindsay v. UK, 15 Decisions and Reports 247, and App No. 11123/84, Tête v. France, 54 Decisions and Reports 52.
112. See also SA Dangeville v. France, supra note 59, and App Nos 49217/99 and 49218/99, SA Cabinet Diot and SA Gras Savoye v. France 3 Sept. 2002.
113. See supra note 61.
114. Council Reg 990/93/EEC, of 26 Apr. 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro), OJ (1993) L 102/1.
115. Ch. XIII deals with regional agreements established to deal with the matters related to the maintenance of international peace and security.
116. On the issue of international responsibility of the EU/EC see generally Kuijper and Paasivirta, 'Does One Size Fit All?: The European Community and the Responsibility of International Organizations', 36 Netherlands Yrbk Int'l L (2005) 169
117. Kuijper and Paasivirta, supra note 3.
118. Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533, currently under appeal
119. Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649, currently under appeal. See 'Editorial Comments, Hegemonic International Law Revisited', 97 AJIL (2003) 87
120. S. Zašova, 'La lutte contre le terrorisme à l'épreuve de la jurisprudence du Tribunal de première instance des Communautés européennes', 74 Revue trimestrielle des droits de l'homme (forthcoming, 2008).
121. In the Lockerbie Case the ICJ held that prima facie the US and Libya had to respect SC resolutions notwithstanding any other legal obligation. Indication of provisional measures asked for by Libya would 'impair the rights ... enjoyed by the United State by the virtue of Security Council resolution 748 (1992)'. So far, the case has not advanced to the merits stage, so the ICJ has not yet had occasion to decide the question of possible review of the SC resolution.
122. EU Council Reg 467/2001 of 6 Mar. 2001 on the prohibition of the export of certain goods and services to Afghanistan, strengthening of the flight ban, and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ (2001) L 67/1
123. Commission Reg 2199/2001 of 12 Nov. 2001, OJ (2001) L 295/16 and Council Reg 2062/2001 of 19 Oct. 2001, OJ (2001) L 277/25; Council Reg 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network, and the Taliban, OJ (2002) L 139/9.
124. 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.' On this point see the commentary by Koskenniemi and Leino, 'Fragmentation of International Law? Postmodern Anxieties', 15 Leiden J Int'l L (2002) 553, at 559: 'if the UN Charter really was a constitution of mankind, its character as such could be derived neither from popular legitimacy nor sociological effectiveness. Even as Article 103 may seem like a constitutional provision, few would confidently use it to uphold the primacy of Security Council decisions over, for examples, human rights treaties.'
125. The United Nations Educational, Scientific and Cultural Organization. The Convention entered into force on 18 Mar. 2007, available at: http://portal.unesco.org/en/ ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html.
126. The EC acceded on 18 Dec. 2005: Council Dec 2006/515/EC of 18 May 2006 on the conclusion of the Convention on the Protection of the Diversity of Cultural expressions, OJ (2006) L 201/15. See Art. 27(3) of the Convention, detailing conditions upon which a regional organization may accede.
127. The provision was entitled 'Regional economic integration organizations': Archived document of the EU Council, 22 April 2005, 7962/ 05, JUR 156 CULT 21.
128. And which differentiates between the duties of the central governments with respect to the execution of the convention: '[r]ecognizing that international agreements are equally binding on Parties regardless of their constitutional systems, the following provisions shall apply to Parties which have a federal or non-unitary constitutional system: (a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those Parties which are not federal States; (b) with regard to the provisions of the Convention, the implementation of which comes under the jurisdiction of individual constituent units such as States, counties, provinces, or cantons which are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform, as necessary, the competent authorities of constituent units such as States, counties, provinces or cantons of the said provisions, with its recommendation for their adoption'.
129. Upon its ratification the EC issued the following declaration: '[a]s regards Community competences described in the Declaration ..., the Community is bound by the Convention and will ensure its due implementation. It follows that the Member States of the Community which are party to the Convention in their mutual relations apply the provision of the Convention in accordance with the Community's internal rules and without prejudice to appropriate amendments being made to these rules': Council Dec 2006/515 EC, supra note 78, Annex II.
130. Art. 27 of the Convention on Mutual Administrative Assistance in Tax Matters 1988 quoted in Koskenniemi, supra note 21, at 148, para. 289 in fine.
131. See also Goldsmith, 'The Unexceptional U.S. Human Rights RUDs', 3 U St Thomas LJ (2005) 311.
132. See Koskenniemi, supra note 21, at 148.
133. See Art. 30 VCLT, supra note 19.
134. See Koskenniemi, supra note 21, at 148 ff. For critical comments see Economidès and Kolliopoulus,' La clause de déconnexion en faveur du droit communautaire: Une pratique critiquable', 110 RGDIP (2006) 273.
135. See Koskenniemi, supra note 21, para. 289.
136. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, supra note 77.
137. Document of the EU Council 7962/05, supra note 79.
138. Art. 29bis of the Council proposal states: '[r]egional economic integration organizations: Notwithstanding the rules of the present Convention, those Parties which are member of a regional economic integration organization constituted by sovereign States to which their member States have transferred competence over matters governed by this Convention, shall apply in their mutual relations the common rules in force in that regional economic integration organization', supra note 79.
139. For another example see the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents, signed on 21 May 2003 in Kiev.
140. In a slightly different context, Warner AG suggested the utility of distinguishing between agreements the full execution of which can be achieved only by the mutual teamwork of all signatories on the one hand, and purely bilateral ones, on the other: Case 34/79, R. v. Henn and Darby [1979] ECR 3795, Opinion of Warner AG, at 3818. According to some commentators, the AG's first category implicitly referred to multilateral treaties establishing so-called objective regimes, even though this term has a specific meaning in the law of succession in treaties.
141. For a commentary see Cohen-Jonathan, supra note 30, at 1497-1508.
142. See EU Council Doc 8799/95 of 6 July 1995, JUSTCIV 40, from the (Spanish) Presidency to the Group Directeur III 'Conclusions du séminaire "Aspects internationaux de la séparation et du divorce: problématique dans l'Union européenne"'. Foreseeing the possible conclusion of a new convention on the subject by the EU States inter se (title VI of the EU Treaty), the Spanish presidency suggested, inter alia, that a disconnection clause be included in the new convention 'in order to ensure the compatibility' between the latter and the Brussels and other conventions ('d'assurer la compatibilité entre la Convention de Bruxelles II et d'autres conventions internationales par le biais de clauses de déconnexion').
143. See as one of the first examples Art. XI of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (New York Convention), available at: www.uncitral.org/uncitral/en/ uncitral_texts/arbitration/NYConvention.html. See generally Hollis, 'Executive Federalism: Forging New Federalist Constraint on the Treaty Power', 79 S California. L Rev (2006) 1327
144. Liang, 'Notes on Legal Questions Concerning the United Nations: Colonial Clauses and Federal Clauses in U.N. Multilateral Instruments', 45 AJIL (1951) 108.
145. Convention Against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), and the Protocol Against Smuggling of Migrants by Land, Sea and Air (Migrant Smuggling Protocol), 15 Nov. 2000, S. Treaty Doc. No. 108-16, UN Doc. A/Res/55/25, available at: www.unodc.org/unodc/en/crime_cicp_signatures.html
146. and quoted by Hollis, supra note 93, at 1361.
147. Case 181/73, Haegeman v. Belgium [1974] ECR 449
148. Case 104/81, Hauptzollamt Mainz v. Kupferberg [1982] ECR 3641
149. Case 12/86, Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719; Case C-312/91, Metalsa [1993] ECR I-3773; Case C-158/91, Ministère public et Direction du travail et de l'emploi v. Jean-Claude Levy [1993] ECR I-4306, para. 19
150. Case C-432/92, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte S.P. Anastasiou (Pissouri) Ltd [1994] ECR I-3134, para. 50
151. Case C-327/91, France v. Commission [1994] ECR I-3674, para. 25
152. Case T-115/94, Opel Austria GmbH v. Council [1994] ECR II-70, paras 90-91
153. Case C-286/90, Anklagemyndigheden v. P.M. Poulsen and Diva Navigation Corp [1992] ECR I-6052, at 6054, paras 16 and 26-27
154. Case C-316/91, Parliament v. Council [1994] ECR I-646, para. 69. With respect to international custom see Case 48/69, Imperial Chemical Industries v. Commission [1972] ECR 619.
155. See also Case C-162/96, A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-3655.
156. Art. 39(2) of the Convention. The Convention was signed on 23 Nov. 2001 and entered into force on 1 Jan. 2004, CETs No. 185. It is open only to states and not to international organizations. The text of the Convention is available at: http://conventions.coe.int/Treaty/EN/ Treaties/Html/185.htm or 41 ILM (2002) 282.
157. The proposition included not only the well known reference to the priority of the EC rules but equally of the EU ones, adopted pursuant to Title VI of the EU Treaty. In the same document, the Commission advocates the EC participation clause. The Commission acknowledges that the EC had not yet acquired powers in the field, which, according to the Commission, must however be just a matter of time. The Commission pointed to the precedent of an anticipatory clause in the Council of Europe convention 164 of 4 Apr. 1997: EU Council archived document 6643/ 01, obtained in French, of 27 Feb. 2001, CRIMORG 23, '[n]ote de transmission, Emetteur Bernhard Zepter, Secrétaire Général Adjoint de la Commission Européenne, destinateur Javier Solana, Secrétaire Général/haut représentant Projet de Convention du Conseil de l'Europe sur le Cyber-criminalité - adhésion de la CE et clause de déconnexion', Commission doc SEC(2001) 315 of 19 Feb. 2001, Document de travail des services de la Commission, Projet de Convention du Conseil de l'Europe sur la Cyber-criminalité - adhésion de la CE et clause de déconnexion.
158. Koskenniemi and Leino, supra note 76, at 578.