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Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information TREATY CONFLICT AND THE EUROPEAN UNION Jan Klabbers questions how membership of the European Union affects treaties concluded between the Union’s member states and third states, both when it concerns treaties concluded before EU membership and treaties concluded after joining. Following a discussion of the public inter- national law rules on treaty conflict, the author analyses the case-law of the European Court of Justice and examines how such conflicts are approached in state practice. jan klabbers studied international law and political science at the Uni- versity of Amsterdam, before teaching international law and EU law at the same university. Since 1996 he has taught international law at the University of Helsinki. He was visiting professor at Hofstra University (New York) in 2007 and at the Graduate Institute of International Stud- ies and Development (Geneva) in 2008. He also directs the Academy of Finland Centre of Excellence in Global Governance Research. © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information TREATY CONFLICT AND THE EUROPEAN UNION JAN KLABBERS © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao˜ Paulo, Delhi Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521728843 c Jan Klabbers 2009 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2009 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library ISBN 978-0-521-45546-6 hardback ISBN 978-0-521-72884-3 paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information CONTENTS Preface page ix Table of cases and official materials xii Table of treaties and instruments xx part i Setting the scene 1 1 Introduction 3 Opening words 3 Treaty conflict and fragmentation 7 Article 307 TEC and international law 10 The argument of this book 12 An assumption and a caveat 15 2 Understanding treaty conflict 18 Introduction 18 Theory in international law 19 A single general theory? 20 Normative conflict in jurisprudence 24 Clashing values 33 Systems theory? 35 Different approaches 39 Conclusion 45 part ii International law 47 3 The pre-Vienna Convention regime 49 Introduction 49 The classics 52 The classic cases 55 Doctrine 61 Conclusion 67 v © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information vi contents 4 Drafting the Vienna Convention 69 Introduction 69 Lauterpacht’s ambivalence 70 Fitzmaurice’s analysis 74 Waldock’s approach 77 The ILC’s apprehensions 79 The Vienna Conference’s acceptance 85 Conclusion: ambivalence 87 5 Post-Vienna Convention developments 88 Zuleeg and the principle of political decision 88 Narrowing the scope 90 A different option: hierarchy? 94 A different option: lex specialis?96 Inescapable 98 Avoidance strategies: conflict rules 101 Avoidance techniques: judicial escapism 104 A. Using discretion 104 B. Alternative options 105 C. Non-conflict 105 D. Declining jurisdiction 106 Courts and the principle of political decision 108 Conclusion 110 part iii EC law 113 6 The EC and anterior treaties 115 Introduction 115 Article 307 116 Setting the standard: Commission v. Italy 120 Application between member states inter se 125 Application involving actual, non-abstract rights 126 Anterior treaties with new member states 130 Multipolar treaties 131 When is a treaty concluded? 133 A separate story: the second paragraph 135 Possible explanations 140 To conclude: some general issues 148 © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information contents vii 7 The UN Charter and the European Convention 150 Introduction 150 The UN Charter before the EC Court 151 The European Convention before the EC Court 163 The Strasbourg attitude 167 Escherian images 173 Conclusion 174 8 Posterior treaties: conceptual issues 175 Introduction 175 The time of conclusion 177 Classifying the problem 178 Powers and institutional law 183 A domestic law paradigm? 194 Conclusion 198 9 Posterior treaties: practice 200 Introduction 200 A (brief) methodological note 201 Nordic cooperation 203 Inter se agreements 205 Posterior treaties with third parties 211 The disconnection clause 219 Community agreements 223 Conclusion 225 10 Conclusions 227 Bibliography 232 Index 249 © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information PREFACE This book aims to address treaty conflict in international law, and to illu- minate in particular the situation with respect to the EU. The relationship between international law and EU law is a source of great confusion, yet is, despite its importance, analysed and discussed only relatively rarely. The present monograph (or ‘duograph’, if you will) aims to contribute to the study of this relationship by concentrating on one small, highly specialised, aspect thereof: the relationship between obligations arising under treaties concluded by EU member states, and those member states’ obligations under EU law. The interest is this: treaties are, under general international law, binding upon the parties to them, and not capable of creating rights or obligations for third parties. Should conflicting treaties be concluded, either by design or – more likely perhaps – as a result of ignorance, then ideally a conflict rule kicks in. International law does indeed have such a conflict rule; in fact, it has several, but none of these seems to work to great satisfaction. The EU has its own conflict rule as well, one which appears at first sight to be rather generous towards international law and which is often indeed held to be so. Yet, its scope is limited: it applies only to treaties concluded by member states before they joined the EU (and, as we shall see, the Court of Justice has been less than fully generous in its interpretation). Hence, it remains an open question what happens to treaties concluded by member states after they join the EU: are these by definition – and by exclusion – governed by Community law, as the Court of Justice would seem to think? Are they instead governed by general international law? Is, indeed, the relationship best seen as one of conflict between treaty obligations, or should other views be adopted? This study originated in an invitation by Pieter Jan Kuijper, my one time law professor at the University of Amsterdam and then Director of the External Relations division at the Legal Service of the EU Commission, to conduct a seminar with his staff on the topic of ‘successive treaties’, in March 2005. While preparing my presentation, I noticed that I had ix © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-72884-3 - Treaty Conflict and the European Union Jan Klabbers Frontmatter More information x preface read much of the relevant work. Moreover, having written a few smaller pieces on the topic, I always had the frustration of not being able to approach the topic in all its richness. When writing on EU law, I would usually have to sacrifice most of the international law background; and while writing on international law, some of the EU aspects would have to remain unmentioned. With this in mind, I started to wonder whether it would not be possible to write a short monograph on treaty conflict and the EU, and whether it should not be possible to do so in six months or so. That was almost three years ago . For, while writing, it dawned on me that while it was all very well to know what I wanted to write about, I didn’t have a clue yet as to what message I wanted to send out. I had a topic, but not yet a thesis. What I did have, however, was an intuition: the intuition that the EC Court usually makes things too simple for itself by ignoring the international law aspects. This study then aims to test this intuition and make some sense of it. It makes the general point that there is no readily available mechanism to solve the difficult treaty conflicts (as opposed to the easy ones), and that the ECJ’s insistence that there is such a general formula when EC law is concerned may well be understandable from the EC’s point of view, but is bound to do an injustice to treaty partners and to natural and legal persons, on occasion. The book has benefited enormously from the feedback received during that seminar in Brussels, in March 2005. Apart from substantive points, the feedback also made clear to what extent the Commission’s lawyers have adopted the EU law perspective as paradigmatic; if nothing else, this sent a forceful message that I would have to make a strong effort to convince them of the availability (and perhaps even plausibility or desirability) of other perspectives.