Two legal orders: Divergent or convergent?

International and Comparative Law Quarterly

Volumn 48, Issue 2, 1999, Pages 257-284

  Denza, Eileen ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 85008230537     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300063193     Document Type: Article

References (83)

1. Case 26/62 NV Algemene Transport -en Expedtiie Ondememing van Cend en Loos v. Nederiandse Administratie der Belastingen [1963] E.C.R. 1.
2. Opinion 1/91 (First EEA Opinion) [1991] E.C.R. 6079, esp. at para.211: “In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals.” Preamble to the Treaty on European Union.
3. See Higgins, “International Law and the Avoidance, Containment and Resolution of Disputes” (1991-V) 230 Hag. Rec., also published as Problems and Process in International Law, chap.l, “The Nature and Function of International Law”
4. Louis, The Community Legal Order, (2nd edn), chap.II, Section 1, “The Treaties as the Constitution of the Community”
5. Livingstone, “Withdrawal from the United Nations–Indonesia” (1965) 14 I.CL.Q. 637
6. Blum, “Indonesia's Return to the United Nations” (1967) 16 I.C.L.Q. 522
7. Akehurst, “Withdrawal from International Organizations” (1979) C.L.P. 143.
8. HL Hansard, Vol.573, cols. 1450–1451 (3 July 1996).
9. See e.g. Case C-271/94 Parliament v. Council [1996] E.CR. 1–1705, para.24
10. Case C-84/94 United Kingdom v. Council (Working Time Directive) [1996] E.C.R. 1–5755, The Times, 21 Nov. 1996, para.29: “It is settled case-law that what is merely Council practice cannot derogate from the rules laid down in the Treaty.”
11. Legality of the Use by a State of Nuclear Weapons in Armed Conflict I.CJ. Rep. 1996, 66
12. Legality of the Threat or Use of Nuclear Weapons I.C.J. Rep. 1996,226.
13. See also Osieke, The Legal Validity of Ultra Vires Decisions of International Organizations” (1993) AJ.I.L. 239
14. Matheson, “The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons” (1997) AJ.I.L. 417.
15. Case C-89/94 United Kingdom v. Council of the European Union [1996] E.CR. 1–5755.
16. See comments in (1997) E.L.R. 579 and in CELS Occasional Paper No.2 (1997).
17. Case concerning United States Diplomatic and Consular Staff in Tehran l.CJ. Rep. 1988, 3. Sanctions were agreed by EC Foreign Ministers within the framework of European Political Co-operation (with no explicit mention of Treaty base) and were implemented in the UK under the Iran (Temporary Powers) Act 1980. The powers were expressly linked in s.l(l) to “breaches of international law by Iran in connection with or arising out of the detention of members of the Embassy of the United States of America”.
18. On the precise legal basis under the UN Charter for the use of force pursuant to Security Council resolutions regarding Kuwait, see Higgins, Tehran l.CJ. Rep. n.4, chap.XV.
19. See Sinclair, The International Law Commission (1987) for an account of the Commission's role in codification and progressive development of international law.
20. For accounts of procedures on treaties in several national parliaments see Cassese, Parliamentary Control over Foreign Policy (1980). For an account of the place of treaties under the German Basic Law of 1949 see Meyring, “Intergovernmentalism and Supra-nationality: Two Stereotypes for a Complex Reality” (1997) E.L.Rev. 221.
21. Convention determining the State responsible for examining Applications for Asylum lodged in one of the Member States of the European Communities, Cm.1623.
22. Joined Cases C-6 and 9/90 Francovich v. Italy [1991] E.C.R. 1–5357;Joined Cases 46/93 and 48/93 Brasserie du Pé
23. cheur v. Germany [1996] E.C.R. 1–1029
24. R. v. Secretary of State for Transport, ex p. Faaortame Ltd and Others (No. 4) [1996] E.C.R. 1–2553
25. [1996] Q.B. 404, The Tunes, 7 Mar. 1996.
26. On this see Nicoll, “Note the Hour and File the Minute” (1993) J. Common Market Studies 559.
27. See Multilateral Treaties Deposited with the Secretary-General, Status at 3I December 1996: declarations and reservations to the Covenant on Economic and Social Rights are at pp.111–116 and objections to them at p.116: reservations to the Covenant on Civil and Political Rights are at pp.121–130, objections to them at pp.131–134 and derogations from the Covenant at pp. 137–156. The longest lists of reservations come from the UK and the US.
28. See also Human Rights as General Norms and a State's Right to Opt Out: Reservations and Objections to Human Rights Conventions (British Institute Publication, 1997).
29. See e.g. Arts.309 and 310 of the 1982 UN Convention on the Law of the Sea and comments on this practice made on behalf of the EU in the General Assembly, printed in (1996) B.Y.I.L. 754–755.
30. See Reservations to the Genocide Convention Case I.CJ. Rep. 1951, 23.
31. Advocate-General Warner indeed once stated categorically: “The Court never looks at travaux preparatoires as an aid to interpretation.” His position was made clear in Case 28/76 Milec v. HZA Freiburg [1976] E.C.R. 1639, 1664
32. in Case 136/79 National Panasonic v. Commission [1980] E.C.R. 2033, 2066.
33. (1928) P.C.IJ. Rep. Ser.B, No.15, pp.117–118.
34. The opinion is discussed by Wyatt in “New Legal Order, or Old?” (1982) E.L.R. 147, 150–151.
35. The role of Parliament in the UK conclusion of treaties is described in detail in App.4 to the Report of the Select Committee on the European Communities, Political Union: Law-making Powers and Procedures, 17th Report, 1990–1991 (HL Paper 80), p.56.
36. On the effect of treaties in UK domestic law see J H Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1989] Ch. 72
37. R. v. Secretary of State for the Home Department, ex p. Brind [1990] 1 All E.R. 469.
38. See e.g. the UK submissions in Case 41/74 Van Duyn v. Home Office [1974] E.C.R. 1337,1343.
39. Following ICJ orders for interim measures in the Nuclear Tests Cases I.C J. Rep. 1974, 253.
40. Following assumption of jurisdiction by the 1CI in Nicaragua v. United Slates (Military and Paramilitary Activities) (Jurisdiction) I.CJ. Rep.1984,602.
41. For arguments on the issues raised by the judgment and the US withdrawal see (1985) AJ.l.L. 373, 379, 385,423,442, 652, 657, 682 and 992.
42. On this, see The Role and Future of the European Court of Justice, the 19% Report of the EC Advisory Board of the British Institute chaired by Lord Slynn of Hadley. For comparison of the ECJ with the ICJ see White, The Law of International Organizations (1996), pp.ll8–131.
43. See e.g. Case 16/83 Prantl [1984] E.C.R. 1299
44. Case 222/82 Apple and Pear Development Council [1983] E.C.R. 4083
45. Case 272/83 Commission v. Italy [1985] E.C.R. 1057
46. Case 216/84 Commission v. France [1988] E.C.R. 793.
47. E.g. Sir Patrick Neill (as he then was) in his Memorandum on the European Court published and submitted to the House of Lords Select Committee on the European Communities said: “The European Court of Justice has engaged in ‘creative jurisprudence’ on many occasions.” Select Committee 18th Report 1994–95 The 1996 Inter-governmental Conference (HL Paper 88), p.219.
48. Vignes, “Communautés Européennes et Union Européenne, Trinité des Structures et Unité des Institutions Etablies par lé Traité de Maastricht”, in International Law in an Evolving World (Liber Amicorum Jimenez de Arechaga), p.1329
49. Meyring, International Law in an Evolving World n.17, at pp.230–236.
50. The same approach was followed by the UK with Title III of the Single European Act which, in the European Communities (Amendment) Act 1986, was not added to the definition of “the Community Treaties”.
51. For accounts of the ratification procedures in the various member States see (1993) and (1994) Rev. du Marché Commun.
52. Meyring, Rev. du Marché Commun n.17, is deeply critical of the assessment by the German Constitutional Court of the implications of the establishment by the Treaty of the third pillar.
53. See Usher, “Variable Geometry or Concentric Circles: Patterns for the European Union” (1997) 46 I.C.L.Q. 243.
54. See (1993) O.J. L340/41 and 43 (31 Dec)
55. (1995) OJ. C213/22 (17 Aug.) and C230/4 (4 Sept.).
56. See also Case T-l 94/94 Carvel and Guardian Newspapers Ltd v. Council [1995] E.C.R. 11–2765
57. Case T-174/95 Svenska Journalistförbundet v. Council, judgment of 17 June 1998, not yet rep. 28th Report 1992–93 (HT_ Paper 124), paras.52–55, 66–68
58. Observations by the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Home Affairs, Cm.2471.
59. A further report of the Committee, Parliamentary Scrutiny of the Third Pillar, 6th Report 1997–98 (HL Paper 25) contains an account of work under the new system as well as suggestions for extending it. See also the 1998 Reports Evidence by the Minister of State, Home Office, on the United Kingdom Presidency Work Programme on Justice and Home Affairs, 12th Report 1997–98 (HL Paper 65) and Dealing with the Third Pillar The Government's Perspective, 15th Report 1997–98 (HL Paper 73).
60. EC Treaty Consolidated Version, Art.255.
61. Freestone, “The Road from Rio: International Environmental Law after the Earth Summit”, inaugural lecture printed in (1994) J.Int.Env.L. 193.
62. Conferences in London were organised by the British Institute of International and Comparative Law in 1997 and by Oxfam in 1998.
63. On UK system see Denza, “Parliamentary Scrutiny of Community Legislation” (1993) Statute L.Rev. 56
64. “La Chambre des Lords: Vingt Annies d'Enquêtes Communautaires” (1993) Rev. du Marché Commun 740.
65. For more general accounts see European Parliament publication The European Parliament and the Parliaments of the Member States: Parliamentary Scrutiny and Arrangements for Co-operation (1994)
66. Weber-Panariello, Nationale Parlamente in der Europäischen Union (1995).
67. See debate on Treaties (Parliamentary Approval) Bill, HL Hansard, Vol.569, cols.1556–1562 (28 Feb. 1996).
68. The new arrangements are explained in idem, Vol.576, WA 1101 (16 Dec 19%).
69. The minister's speech and reply are in (1996) B.Y.l.L. 746 and 753.
70. More generally, see Riesenfeld and Abbott (Eds), Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (1994).
71. See Close, “Subordination Clauses in Mixed Agreements” (1985) 34 I.C.L.Q. 382
72. Macleod, Hendry and Hyett, The External Relations of the European Communities, p.268.
73. Denza, Diplomatic Law (2nd edn.), pp.5–6.
74. E.g. Delimitation of the Maritime Boundary in the Gulf of Maine (Canada/USA) I.CJ. Rep. 1984,246
75. Tunisia v. Libya LCJ. Rep. 1985,192
76. Burkina Faso v. Mali I.CJ. Rep. 1986, 554
77. Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras) LCJ. Rep. 1992, 351
78. Libya v. Chad I.CJ. Rep. 1994, 6; Case concerning the GabcKovo-Nagymaros Project (Hungary v. Slovakia).
79. Letter of 28 Feb. 1989 from Mr Shevardnadze, printed in (1989) AJ.I.L, 457.
80. Europol Convention (1995) O J. C316/1, Cm 3050; Protocol drawn up on the basis of Article KJ of the Treaty on European Union on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the Establishment of a European Police Office, Cm.3465. This precedent was followed by other third-pillar conventions.
81. Case 22/70 Commission v. Council (AETR) [1971] E.C.R. 263, esp. para.17: “In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these might take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules.”
82. On this see Qapham, “A Human Rights Policy for the European Community” (1990) Y.E.L. 309 ;House of Lords Select Committee on the European Communities 3rd Report 1992–93 Human Rights Re-examined (HL Paper 10)
83. Case C-290/89 ERT [1991] E.C.R. 1–2925.