The Emergence of a European System of Public International Law: the EU and its MemberStates as Strange Subjects
Bruno de Witte[1]
1. Introduction
Is there a European system of public international law with distinctive features that differentiate the way in which international law is developed and practiced between European states from the way this is done in the rest of the world? There are many perspectives from which this question could be addressed. The main perspective chosen by the contributions to this volume is that of the relation between legal orders and dispute settlement. In this chapter, I propose a different but related perspective, which is that of the doctrine of subjects of international law.
The age-old subjects doctrine of international law is facing considerable uncertainties in recent decades[2], but there is one element of apparent stability, namely that states on the one hand, and international organisations on the other, are the main (even if not the only) subjects of international law. In the standard account, states possess full capacity to act on the international plane, including through the conclusion of international treaties in all domains of their activity, whereas international organisations (the other main category of subjects) possess a limited capacity to act, defined in their founding treaties, and only rarely conclude international treaties. The most common among such treaties are privileges and immunities agreements which the organisations conclude with the state that hosts them.
However, even this received textbook wisdom is shaky in the particular context of Europe today, where this neat picture is considerably more blurred, in two related respects: (a) there are 27 states with only a limited capacity to acton the international plane because of the European integration system in which they take part, and (b) there are two closely intertwined international organisations, the European Union and theEuropean Community, that have become important actors of international relations and conclude international agreements on a wide range of subjects. These two interrelated phenomena will be examined in turn, in the following sections.
2. The European Community and European Union as Prominent Subjects
The latter characteristic is well known. It is readily acknowledged that there is, in Europe, a peculiar international organisation (the European Community) that remains unlike any others, despite attempts in other continents to establish regional organisations based on the EC model. In fact, this organisation is so peculiar that many Community lawyers have argued that it is not even an international organization at all, but ‘something else’, a sui generislegal order. This sui generic qualification sits uneasily with the traditional doctrine of the subjects of international law and has therefore been largely ignored by international lawyers who continue to include the European Community (and a fortiori the European Union) within the category of international organisations, though only a few international lawyers have mounted a sustained argument as to why, despite all their special characteristics, the EC and EU are still to be considered as international organisations.[3]International legal practice also continues to deny the sui generis doctrine. There are many multilateral treaty provisions that use the terms ‘international organisation’ or ‘regional international economic organisation’ whereit is clear from the context that the (only) organisation that is intended by that term is the European Community.[4]
The European Community hasbeen an active treaty-maker for many years now. It has been joined, more recently, by its sister organization, the European Union. Thus, in the period between 1 January 2004 and 31 July 2006, the European Community signed 135 international agreements and the European Union 33 international agreements.[5] One agreement, the ‘Schengen acquis’ treaty with Switzerland, was signed by both the European Community and the European Union, thus providing a striking illustration of the fragmentation of the European Union’s external relations caused by the ‘pillar system’ created by the Treaty of Maastricht.[6]The conspicuous treaty-making activity of the European Union may seem curious to those who still deny that the European Union possesses international legal personality; in fact, this practice undoubtedly shows that the European Union does have such international legal personality even though the text of the EU Treaty does not say so explicitly.[7]However, the large numbers should not impress too much; EU agreements are often repetitive (i.e. they include identical agreements with several countries) and technical. Many of them deal, in fact, with the participation of third countries in EU-led crisis management operations.[8]
3. The EU Member States as Uncommon Subjects of International Law
The second specificity of Europe,in terms of the doctrine of the subjects of international law, isless widely acknowledged and will be the main focus of this contribution. It is the fact that 27 states on the European continent have accepted, more or less deliberately, to curtail their own capacity to act on the international plane in favour of, precisely, the European Community and European Union. This makes them states that are unlike all others from the point of view of international law. Member states of the EU have lost the capacity to conclude treaties with other states in some domains, such as trade in goods and fisheries, since these are now within the exclusive competence of the European Community. In other more numerous policy domains (trade in services, development co-operation, environment, immigration, crime, scientific cooperation, education, etc.), they share this capacity with the EC or the EU.[9]Even in those shared domains, the EC and EU often act on their own, and conclude international agreements without their member states. This happens when the international agreement is closely related to an internal act which was previously adopted by the EC,in which case the European Community’s competence may become exclusive through pre-emption; this phenomenon is ill-defined and causes considerable headaches in the institutional practice of the EU. Often the legal services of the Commission and Council are genuinely puzzled as to whether a particular area of external relations comes within shared or exclusive competence and may ask the European Court of Justice to decide it for them, as happened recently with the new Lugano Convention on recognition and enforcement of judgments.[10] In other cases, the member states have preserved their legal capacity to conclude treaties with third states but find it convenient that the EC should not only negotiate but also sign and ratify on their behalf (an example of this are the readmission agreements that are currently being negotiated and concluded by the EC).[11] In many cases of shared competence, though, the member states insist on being a formal party to the agreement alongside the EC. These are the famous mixed agreements.[12]
It is often argued that most important EC agreements, today, take the form of mixed agreements; if that is the case, it could be said that the member states have notabandoned the international scene to any major extent. It is certainly true that some major external agreements of the EC have been concluded as mixed agreements.[13] It is also true, however, that in quantitative terms the mixed agreements are far less numerous than the ‘pure’ EC agreements. In the period between 1 January 2004and31 July 2006, of the total number of 135 European Community agreements mentioned earlier, 33 were signed as mixed agreements. Thirty-three may seem like a high number, until one looks more closely at the list and finds that 26of them are ‘post-enlargement amendments’, that is, amendments of existing mixed agreements that had to be modified in order to accommodate the accession of the ten new member states of the EU as of 1 May 2004. Thus, for example, a Protocol to the Partnership and Cooperation Agreement with Russia was signed on 27 April 2004 to take account of the pending enlargement of the European Union.[14]
So, in fact, only seven genuinely new mixed agreements were signed in this period: one each with the USA, Israel and Ukraine on satellite navigation systems, one with Switzerland on combating financial fraud, a partnership and cooperation agreement with Tadjikistan, the stabilization and association agreement with Albania, and an amending protocol to the stabilization and association agreement with Macedonia.The sample is too small to draw any firm conclusions from it, but it could indicate that mixed agreements are an established phenomenon of the European Union’s external relations but that their number is no longer ‘steadily increasing’.[15]
It is worth remembering, in this regard, that when they participate in mixed agreements, the EU member states do not act as entirely autonomous subjects of international law. They are subject to a general duty of cooperation, between themselves and with the EC, and this duty extends to the negotiation, ratification and application phases of those agreements. There is thus a collective management of the international legal relationship, in which the European Community is often the ‘senior partner’ and the member states are little more than token contracting parties.[16] Take for example the Cotonou Agreement with the ACP countries. This is a mixed agreement, but the member states do not act as genuinely separate contracting parties. The negotiation of the agreement was led by the European Commission, implementation of financial aid under the Agreement, even when coming from member state budgets, is in hands of the Commission, and the decision to suspend the agreement (for instance, in the case of massive human rights violations in an ACP country) has been entrusted to the Council, that acts by qualified majority on behalf of both of the EU and of the member states. The recently concluded negotiations for a revision of the Cotonou Agreement[17] were similarly conducted by the Commission.
Not only the making of international treaties has been taken over, to some extent, by the EC and EU, but also the application of, and compliance with, international treaties by the Member States. Even in the case of mixed agreements, these ‘downstream’ matters of application and compliance by the member states are to a large extent monitored by the EU institutions, including through infringement actions brought by the European Commission.[18]Furthermore, if the European Community adopts internal legislation, this may cause existing treaties concluded between its member states and third states to become incompatible with the new internal Community rule, and the member states are then bound to try and discontinue the conflicting treaty rule, either by its unilateral denunciation or through negotiations with the third country.[19] This is another, less direct but practically important, way in which the member states’ international action is curtailed by their membership of the EU.
There are two further, less visible, effects of EU membership on the international treaty practice of states. First, EC-EU membership has given rise to the phenomenon of parallel agreements, that is, agreements to which all the member states are parties without the participation of any third states. These parallel agreements stand in a complementary relation to the activity of the European Union.[20]The most obvious and important example of such parallel agreements are the revision treaties, that is, the treaties through which the member states from time to time amend the founding treaties of the European Union.[21] There are other, less prominent examples of parallel agreements. For the same 2004-6 sample period mentioned above, the Council of Ministers database mentions eightsuch ‘member-state-only’ agreements: the Treaty on the Constitution of Europesigned in October 2004 (which, technically speaking, is a revision treaty), the agreements providing for the accession of ten new-coming member states to the Rome Convention on contractual obligations and to the Convention on double taxation, an agreement on claims between member states that may result from the participation in EU crisis management operations, two ‘internal agreements’ about the states’ contribution to financial aid for ACP countries under the Cotonou Agreement, and two ‘decisions of representatives’ (that are, in fact, international agreements in simplified form)[22] on the privileges and immunities of the European Defence Agency and of Athena[23].
The second indirect effect of EU membership is the virtual phenomenon of the ‘absent’ agreements: member states simply do not feel the need to conclude treaties among themselves that they might otherwise, in the absence of the European Union, have wanted to conclude. This is such a banal fact that we tend to overlook it. Considering the vast amount of matters that are dealt with today by EU legislation, it is likely that, if the European Union did not exist, many of these matters would have been the object of bilateral or multilateral treaties between the states of Western and Central Europe. Instead, there has been a decline in the importance of international agreements between single states of the EU,which have become relatively rare except in some niche areas such as double taxation, cultural cooperation, maritime boundaries and trans-frontier administrative cooperation.The role of these partial agreements between EU member states will be examined in the next section as a separate phenomenon characterizing the evolution of the EU member states towards becoming ‘strange subjects’ of international law.
4. Partial Agreements between EU Member States: Instrument of Neighbourly Relations and of Intra-EU Flexibility
When the EEC Treaty was concluded, back in 1957, it was clear to all that the new Community institutions would not provide the exclusive framework for the relations between the six member states. The EEC Treaty terminated none of the existing bilateral or multilateral treaties between them. During the negotiation of the EEC Treaty, and in the period immediately afterwards, several partial agreements were concluded, also on matters related to those covered by the EEC Treaty; a prominent example is the Treaty establishing the Benelux Economic Union which was concluded on 3 February 1958, that is, only one month after the entry into force of the EEC Treaty. In anticipation of this, Article 233 EC (today, Article 306) stated - and still states today - that the EEC Treaty does not preclude “the existence or completion of regional unions between Belgium and Luxembourg, or between Belgium, Luxembourg and the Netherlands...”.Benelux cooperation was not the only form of international cooperation between small groups of states; for many years, the hegemonic position of the EC was not well established, and, as Helen Wallace notes, the history of relationships between European countries was also one ‘of often vigorous regional groupings and intense special partnerships between neighbours.’[24] She adds that ‘it is only quite recently that the argument for conceiving of the EU as all-encompassing in terms of both countries and of functional cooperation has gained momentum’.
There areindeed numerous examples of international agreements concluded between member states of the EU ever since the 1950’s, in areas such as tax law, environmental protection, defence, culture and education. The most prominent example of a partial agreement was the Schengen cooperation regime, composed of a first Agreement signed in 1985, and an implementing Convention adopted in 1990. Schengen cooperation was started at a time when a general consensus on abolishing the controls on persons at the intra-Community borders could not be reached (as it still can not today, because of the position taken by the UK). The Schengen instruments were expressly presented as an interim arrangement in preparation of a final regime at the level of the European Community, rather than as a separate and rival co-operation regime. The same reasons which justified the rule of Article 233 EEC Treaty, whereby the Benelux countries could adopt more advanced measures of integration, could be applied to Schengen.
So, by the mid-1990’s, despite the much broader remit of EU activities since Maastricht, closer cooperation between smaller groups of countries outside the EU framework in matters of migration, border controls and police cooperation, became a prominent political reality, and was seen by some observers as a threat to the integrity of the European legal order. Indeed, the wish to avoid inter se agreements and to increase the incentives for making the EU framework predominant, was one of the strategic objectives pursued by those member states pushing for a new intra-EU flexibility mechanism during the 1996-97 IGC.[25]Yet, the establishment of a mechanism of enhanced cooperation by the Treaty of Amsterdam did not imply that international agreements between member states outside the EU institutional framework would henceforth be outlawed. Indeed, such agreements continue to be concluded, as illustrated by the recent example of the Prüm Convention, concluded on 27 May 2005 between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria, for developing their cross-border cooperation in combating terrorism, cross-border crime and illegal migration.[26]