The legal effect of community agreements: Maximalist treaty enforcement and judicial avoidance techniques

European Journal of International Law

Volumn 21, Issue 1, 2010, Pages 83-104

  Mendez, Mario ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77953582613     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq007     Document Type: Article

References (97)

1. Recent examples of a burgeoning literature include U. Beyerlin et al. (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia (2006).
2. G. Ulfstein (ed.), Making Treaties Work (2007).
3. Hathaway, 'Between Power and Principle: An Integrated Theory of International Law', 72 U Chicago L Rev (2005) 469.
4. Goodman and Jinks, 'Incomplete Internalization and Compliance with Human Rights Law', 19 EJIL (2008) 725.
5. B. Conforti and F. Francioni (eds), Enforcing International Human Rights in Domestic Courts (1997).
6. Heyns and Viljoen, 'The Impact of the United Nations Human Rights Treaties on the Domestic Level', 23 Human Rights Q (2001) 483.
7. Thomas et al., 'The Use of International Labour Law in Domestic Courts: Theory, Recent Jurisprudence, and Practical Implications', in J.-C. Javillier and B. Gernigon (eds), Les Normes Internationales du Travail: un patrimoine pour l'avenir (2004), at 249.
8. United Nations Environment Programme, Manual on Compliance with and Enforcement of Multilateral Environmental Agreements (2006).
9. M. Anderson and P. Galizzi (eds), International Environmental Law in National Courts (2002).
10. A call associated most closely with the work of Petersmann. Early examples include his Constitutional Functions and Constitutional Problems of International Economic Law (1991).
11. 'National Constitutions, Foreign Trade Policy and European Community Law', 3 EJIL (1992) 1.
12. A recent example is Petersmann, 'Multilevel Judicial Trade Governance without Justice: On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System', in M.E. Janow et al. (eds), WTO: Governance, Dispute Settlement and Developing Countries (2007), at 959.
13. B. Conforti, International Law and the Role of Domestic Legal Systems (1993), at 9.
14. Community law is treated differently where the relevant state is a member.
15. It is not confined to current or former Commonwealth states. The Scandinavian countries are usually considered representatives of non-automatic treaty incorporation: see Buergenthal, 'Self-executing and Non-Self-Executing Treaties in National and International Law', 235 Recueil des Cours (1992) 303, at 363-367.
16. US Constitution 1789, Art. VI, cl. 2.
17. An early account of this development was provided by Cassese, 'Modern Constitutions and International Law', 192 Recueil des Cours (1985) 335.
18. A brief overview following the collapse of the Soviet Union was provided in Vereshchetin, 'New Constitutions and the Old Problem of the Relationship between International Law and National law', 7 EJIL (1996) 29.
19. Danilenko, 'Implementation of International Law in CIS States: Theory and Practice', 10 EJIL (1999) 51.
20. See L. Henkin, Foreign Affairs and the US Constitution (1996), at 209-211.
21. Paust, 'Self-Executing Treaties', 82 AJIL (1988) 760, at 766.
22. On the Vienna Convention litigation see Simma and Hoppe, 'From LaGrand and Avena to Medellin - a Rocky Road Toward Implementation', 14 Tulane J Int'l and Comp L (2006) 7.
23. The litigation has recently culminated in the Supreme Court rejecting the self-executing nature of Art. 94 of the UN Charter (Medellín v. Texas, 128 S Ct 1346 (2008)).
24. For a recent contribution see Vazquez, 'Treaties as Law of the Land: the Supremacy Clause and the Judicial Enforcement of Treaties', 122 Harv L Rev (2008) 599.
25. To give merely one example, Belgian courts have traditionally been considered to adopt a bold stance on the direct effect determination. However, a detailed study of judicial practice identified a spate of Supreme Court rulings rejecting the direct effect of various provisions of human rights conventions on the basis that the obligations are created only for the contracting parties. The authors conclude that Belgian courts use the direct effect test in a non-transparent manner: Vandaele and Claes, 'L'effet direct des traités internationaux - Une analyse en droit positif et une théorie du droit axée sur les droits de l'homme', 34 Revue belge de droit international (2001) 411, at 451.
26. Case 181/73, Haegeman [1974] ECR 449.
27. Case 6/64, Costa v. ENEL [1964] ECR 585.
28. Hartley, 'International Agreements and the Community Legal System: Some Recent Developments', 8 ELRev (1983) 383, at 390-391.
29. A stronger textual argument would be to hold that for preliminary rulings jurisdiction we are still dealing with interpretation of the Treaty within the meaning of Art. 234(1)(a) as the ECJ would be interpreting the requirements resulting from Art. 300(7), namely what it means for a Community Agreement to be binding on the Member States.
30. They would at least still be able to draw to the Commission's attention alleged Member State breaches for the purposes of infringement proceedings.
31. Case 26/62, Van Gend en Loos [1963] ECR 1.
32. This phrasing is borrowed from Bourgeois, 'The Effects of International Agreements in European Community Law: Are the Dice Cast?', 82 Michigan L Rev (1984) 1250, at 1260.
33. Case 87/75, Bresciani [1976] ECR 129.
34. Case 270/80, Polydor [1982] ECR 329 (five Member States intervened).
35. Case 17/81, Pabst & Richarz [1982] ECR 1331.
36. Case 104/81, Kupferberg [1982] ECR 3641.
37. P. Koutrakos, EU International Relations Law (2006), at 226.
38. P. Eeckhout, External Relations of the European Union (2004), at 286.
39. Case C-192/89, Sevince [1990] ECR I-3461.
40. Respectively Art. 2(1)(b) of Decision 2/76 and Art. 6(1) of Decision 1/80, and Art. 7 of Decision 2/76 and Art. 13 of Decision 1/80.
41. Indeed the Commission agent suggested that it served exactly this objective and that both the Council and Commission had considered the applicability of Association Council Decisions to require adoption of a legal act, that is transposition, to produce their effects: Gilsdorf, 'Les organes institués par des accords communautaires: effets juridiques de leurs décisions', Revue du Marché Commun (1992) 328, at 331-332.
42. Case C-18/90, Kziber [1991] ECR I-199.
43. Case 2/74, Reyners v. Belgium [1974] ECR 63.
44. This took place with respect to the Algeria Cooperation Agreement in Case C-103/94, Krid [1995] ECR I-719 and vis-à-vis the Turkey Agreement in Case C-262/96, Sürül [1999] ECR I-2685 in the face of staunch opposition from the five intervening Member States. It has been noted that the effect of the Kziber ruling was that the Member States refused to include the social security non-discrimination clause in other bilateral agreements (with the exception of EFTA country agreements): Maresceau, 'Bilateral Agreements Concluded by the European Community', 309 Recueil des Cours (2006) 125, at 262.
45. The relevant provisions were maintained in the Euro-Med Agreements, and the ECJ has confirmed the direct effect of the provision in the Moroccan Euro-Med Agreement: Case C-336/05, Echouikh [2006] ECR I-5223.
46. Case C-416/96, El-Yassini [1999] ECR I-1209.
47. Case C-265/03, Simutenkov [2005] ECR I-2579.
48. Case C-415/93, Bosman [1995] ECR I-4921.
49. Case C-438/00, Kolpak [2003] ECR I-4135.
50. The ECJ had underscored that to accept the nationality clauses would deprive Art. 39 TEC 'of its practical effect and the fundamental right of free access to employment which the Treaty confers individually on each worker in the Community [would be] rendered nugatory'. Neither the Europe Agreements nor the Russia Agreement confer a fundamental right of free access to employment.
51. Hillion, 'Case C-265/03, Igor Simutenkov v. Ministerio de Educación y Cultura, Real Federación Española de Fútbol', 45 CML Rev (2008) 815, at 832-833.
52. Case C-213/03, Pêcheurs de l'Etang de Berre v. Electricité de France [2004] ECR I-7357. Infringement proceedings arose out of the same factual background: see Case C-239/03, Commission v. France [2004] ECR I-9325 where France was held in breach of its obligations under the Barcelona Convention and the Mediterranean Sea Protocol, and accordingly Art. 300(7) TEC.
53. A recent ruling may well however have implications for the Common Visa List Regulation (Council Reg. 539/2001), OJ (2001) L81/1. In Case C-228/06, Soysal, judgment of 19 Feb. 2009, not yet published, the ECJ held that a directly effective standstill clause in an Additional Protocol to the Turkey Agreement precluded the imposition of a visa requirement on Turkish nationals seeking to provide services in Germany where no such requirement previously existed. The complication this poses for the Common Visa List Regulation arises because it lists Turkey as a country whose nationals must obtain a visa when crossing the EU's external borders and the German law implemented the Reg.
54. Case C-149/96, Portugal v. Council [1999] ECR I-8395; Joined Cases C-27/00 and C-122/00, Omega Air [2002] ECR I-2569; Case C-491/01, British American Tobacco [2002] ECR I-11453.
55. See Case C-377/02, Van Parys [2005] ECR I-1465, and Joined Cases C-120/06 P and C-121/06 P FIAMM & Others v. Council and Commission [2008] ECR I-6513.
56. Griller, 'Judicial Enforceability of WTO Law in the European Union: Annotation to Case C-149/96, Portugal v. Counci', 3 J Int'l Econ L (2000) 441.
57. Lavranos, 'The Chiquita and Van Parys Judgments: An Exception to the Rule of Law', 32 LIEI (2005) 449.
58. Van Den Broek, 'Legal Persuasion, Political Realism, and Legitimacy: The European Court's Recent Treatment of the Effect of WTO Agreements in the EC Legal Order', 4 J Int'l Econ L (2001) 411.
59. Chapters in part I of G. Zonnekeyn, Direct Effect of WTO Law (2008).
60. Eeckhout has criticized the refusal to review where DSB decisions are involved: see Eeckhout, 'Does Europe's Constitution Stop at the Water's Edge? Law and Policy in the EU's External Relations', Walter Van Gerven Lectures (2005), at 14-17.
61. For a recent defence see Antoniadis, 'The European Union and WTO Law: A Nexus of Reactive, Coactive and Proactive Approaches', 6 World Trade Review (2007) 45.
62. See Jackson, 'The WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligation', 91 AJIL (1997) 60.
63. Jackson, 'International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to " Buy-Out" ?', 98 AJIL (2004) 109.
64. In particular the views of Schwartz and Sykes, 'The Economic Structure of Renegotiation and Dispute Settlement in the World Trade Organization', 31 J Legal Stud (2002) 179.
65. The temporary nature of countermeasures was first noted by the ECJ in Van Parys, at para. 44.
66. See the Opinion of Colomer AG in Case C-431/05, Merck [2007] ECR I-7001, at para. 79.
67. As noted by Bourgeois, 'The European Court of Justice and the WTO: Problems and Challenges', in J.H.H. Weiler (ed.), The EU, the WTO, and the NAFTA: Towards a Common Law of International Trade (2000), at 71, 121.
68. Art. 21.3 DSU.
69. For consideration of the extent to which this is so see J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003), at 218-236.
70. Davey, 'The WTO Dispute Settlement System: the First Ten Years', 8 J Int'l Econ L (2005) 17, at 45-48.
71. Case T-45/06, Reliance Industries v. Council and Commission [2008] ECR II-2399.
72. Case C-310/06, FTS International [2007] ECR I-6749.
73. Bronckers, 'From " Direct Effect" to " Muted Dialogue" : Recent Developments in the European Courts' Case Law on the WTO and Beyond', 11 J Int'l Econ L (2008) 885, at 889-890.
74. Council Decision 94/800/EC, OJ (1994) L336/1.
75. Case C-377/98, Netherlands v. Parliament and Council [2001] ECR I-7079.
76. For the narrow and broad readings see P. Craig and G. de Búrca, EU Law: Text, Cases and Materials (2008), at 269-270.
77. Lenaerts and Corthaut, 'Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law', 31 EL Rev (2006) 287, at 298.
78. Cremona, 'External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law', in X. Xenopoulos (ed.), FIDE 2006 National Reports (2006) 319, at 352-353.
79. Case C-344/04, IATA [2006] ECR I-403.
80. An interpretation which has come in for criticism: Balfour, 'Further Comment on Case C-344/04, The Queen ex parte International Air Transport Association, European Low Fares Airline Association v. Department for Transport, Judgment of the Court (Grand Chamber) of 10 January 2006', 44 CML Rev (2007) 555.
81. Case C-308/06, Intertanko [2008] ECR I-4057.
82. European Parliament and Council Directive 2005/35/EC, OJ (2005) L255/11.
83. Mensah, 'Sovereign Rights in Legislation of Member States under UNCLOS and MARPOL', the Eighth Cadwallader Memorial Lecture (2005).
84. Joined Cases 21-24/72, International Fruit [1972] ECR 1219.
85. Denza, 'A Note on Intertanko', 33 EL Rev (2008) 870, at 875.
86. Arts 17, 19, and 211(4).
87. Albeit UNCLOS is a vastly broader Agreement to which few states are not party.
88. Boelaert-Suominen, 'The European Community, the European Court of Justice and the Law of the Sea', 23 Int'l J Marine and Coastal L (2008) 643, at 709.
89. A view bolstered by extrajudicial observations from a judge of the ECJ: see Everling, 'The Law of the External Economic Relations of the European Community', in M. Hilf et al. (eds), The European Community and GATT (1986), at 85, 98.
90. Case C-280/93, Germany v. Council [1994] ECR I-4973.
91. Based on the fact that successful infringement proceedings were brought against Germany for non-compliance with a Community concluded GATT Agreement: Case C-61/94, Commission v. Germany [1996] ECR I-3989.
92. This possibility is arguably confirmed by Case C-459/03, Commission v. Ireland [2006] ECR I-4635 and especially by the assertion at para. 121 of jurisdiction to assess Member State compliance with UNCLOS. Thanks go to Marise Cremona for drawing my attention to this point.
93. de Búrca, 'The European Court of Justice and the International Legal Order after Kadi', Jean Monnet Working Paper (2009), at 57.
94. In the wake of the recent Kadi ruling (Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council and Commission [2008] ECR I-6351).
95. Goldsmith and Posner produced a comment piece entitled 'Does Europe Believe in International Law? Based on the Record, it has no Grounds to Criticize the U.S.', Wall Street J, 25 Nov. 2008.
96. Upon the execution of Mr Medellin the EU called on the US to introduce a moratorium on the death penalty and for the federal and state level to take the necessary legislative measures to give effect to ICJ decisions: EU Presidency Declaration 12431/08 Brussels, 11 Aug. 2008.
97. Slaughter, 'A Global Community of Courts', 44 Harvard Int'l LJ (2003) 191.