Appunti - EU Constitutional Law

EU constitutional law

Foundations of international law

We are going to talk about the “rules of the game”, meaning the foundations of international law, upon which we assume that EU law has been developed and is evolving. The international law is conceived as “a set of rules made by the subjects of the international community to regulate the legal relations between them”. The idea lying behind is that the subjects of the international community themselves are also the legislators of that community, meaning that they are able to adopt binding rules.

In order to properly understand the basic notions and features of international law, a comparison between international law and municipal law — national, domestic, or internal law of a sovereign State defined in opposition to international law — may be useful:

Comparison between municipal law and international law

• Municipal law

  In the case of municipal law, meaning at the national level, there are:

  • Constitutional bodies that have been established with a specific mandate — some of these, in order to legislate, to produce laws, regulations, binding rules for the subjects of the national community.
  • Authorities that are able to force the subjects — individuals, but also legal persons — to fully respect the law.
  • Institutions that may be triggered to solve disputes among individuals or other subjects concerning the proper implementation of a law or the exact meaning of a law. In these cases, it is possible to ask an authority — normally a judge, a tribunal, or a court — to intervene and unilaterally define the proper implementation or the exact meaning of a law to solve in a definite and binding way the dispute. It is important to notice that, at the municipal level, the jurisdiction of a court may be triggered unilaterally, meaning that if you have a dispute with another individual, you can decide to bring that individual before a judge without his/her consent. These are the main features characterising the way in which national legal orders have been conceived.

• International law

  In the case of international law, meaning at the international level, there are some major differences, starting from the law-making procedure:

  • At the national level, there are specific legislators — national or regional parliaments are devoted to the lawmaking. On the contrary, at the international level, we do not have a universal legislator, we lack a parliamentary assembly that legislates, prescribing rules binding upon all the subjects. Even if we consider the universal international organisation par excellence — the UN — it does not have a body that may be understood as a parliament able to adopt rules binding upon all the States participating in the cooperation under the umbrella of the UN. Indeed, the UN General Assembly is not able to adopt binding rules, except for some very specific and limited cases, and therefore cannot be considered a sort of parliament. The lawmaking is considered in an atomistic way, meaning that each subject of international law may participate in the lawmaking — with its behavior or the decision to enter into contractual relations with other subjects by means of a treaty or an agreement. It means that each State may participate in the production of international law. If we transfer this picture into the national dimension, we should conceive a national legal order where all the citizens may participate in the law-making process and therefore produce binding rules with their behavior and will. This is a first relevant difference due to the atomistic conception of international law.
  • At the national level, we have authorities that may be triggered in order to enforce the law — i.e. the police. On the contrary, at the international level, we do not have such authorities and mechanisms due to the atomistic nature of international law: Each subject of international law may participate in the enforcement of international law. An example to describe this situation is the possibility — in the case of a breach or violation of international law attributed to a State — for the other interested States to adopt countermeasures to convince the State in breach to change its behavior. We do not have an international police or authority that may be asked to intervene. So, we lack a centralised mechanism of law enforcement. The States themselves have to try to solve the situation and force the State in breach to change its mind.
  • At the national level, there are judicial mechanisms that may be triggered to solve disputes on the correct implementation or the exact meaning of a law. Also at the international level there are judicial mechanisms — i.e. international courts and tribunals — to solve disputes. However, there is a major difference: The jurisdiction of those courts and tribunals may be triggered provided that there is the consent of all the parties to the dispute. As you can imagine, it is quite unlikely that one of these parties to the dispute will be willing to give its consent, which means that it is quite difficult to trigger such mechanisms at the international level, due to the atomistic nature of international law, meaning the fact that all these functions are in the hands of the subjects of international law. So, we lack a centralised mechanism of law enforcement.

Effectiveness and legal force of international law

In light of the above features, it is clear that there is strong scepticism about the effectiveness and legal force of international law, since it is in the hands of the States and other subjects of international law. However, before concluding that international law is completely useless, we have to consider the following elements:

• If we consider the daily behaviour of States and other international subjects, we may conclude that the majority of international rules are fully respected. So, the cases of breach of international law do not represent the majority of cases, but a minority — although a relevant one.
• Since international law is usually respected by States, we can conclude that the degree of effectiveness of international law is not that different from the effectiveness of the domestic legal order.
• International law is not suspended in a sort of limbo. It is often enforced at the national level. Once a State concludes a treaty with another State, the rules of that treaty are incorporated into their municipal legal orders. This also means that the settlement of disputes — the resolution — available at the national level will be available — in principle — also for a treaty that has been incorporated into the municipal legal order. It means that, thanks to the incorporation into the municipal legal order, international law may enjoy the mechanisms of enforcement and settlement of disputes that are normally used to ensure the effectiveness of municipal law. So, globally speaking, it is true that international law is weaker than national law, but not that much, also in terms of effectiveness.

The subjects of the international community

According to international law, the main subjects of the international community are the States. States are de facto subjects, meaning that they do not have to be recognised by the other subjects in order to become States. The constitutive elements of statehood are:

• The existence of a territory with identified borders;
• A population permanently living in that territory;
• A government able to exercise in an independent and effective way a sovereign power over the community of people living in that territory.

Once we have these three elements together, this territorial entity may be considered a State, even if there is no recognition by the other States. So, what is the role of recognition? It is first a political act by means of which the State or subject recognising another State expresses its desire to establish diplomatic relations with that State. Of course, the recognition is also an element that demonstrates that the recognised subject is considered a member of the international community. It is an element that may strengthen the statehood and speed up the process leading to the establishment of the State. However, it is not strictly required in order to create a State.

Principles governing the interaction among states

There are two major principles governing the interaction among States:

• The principle of sovereign equality: It is related to the way in which States are established in the international community. We have seen that the establishment of a State is a de facto process, meaning that there is no authority in charge of declaring that there is a new State in the international community. It means that all States are equal. If recognition were a constitutive act leading to the constitution of a State, we should assume that there are some States that are more important than others, because they are able to decide which are the other States of the international community. This cannot be the case. So, all States are equal. This principle traces back to the big bang of international law — the Westphalian Treaty in 1648, which established new entities — the States — without any superior authority. Of course, we are not naive and are perfectly aware of the fact that States are not equal. We are speaking of formal equality — not of substantive equality.
• The principle of non-interference in internal affairs: In principle, States cannot say a word on the way in which the internal dimension of powers in another State is organised. In practice, due to treaties that have been concluded during the time, the domestic jurisdiction of a State — the dimension that cannot be influenced by international law — has been significantly reduced. It means that nowadays, it is possible to consider some developments which take place within a State to assess whether or not the State is enforcing and respecting international law. We will see this situation in particular when considering the respect by EU countries of the EU fundamental values, especially the rule of law. Its scope has been significantly reduced due to the expansion of international law.

EU law and principles

When it comes to EU law — and in particular to primary law — Art. 4 TEU recognises that “the Union shall respect the equality of Member States before the Treaties as well as their national identities” and in particular “the Union shall respect their essential State functions, including ensuring the territorial integrity of the State”. So, Art. 4 TEU is an expressed reference of the two general principles that we have just illustrated.

Example: When Catalonia declared its independence in 2017, the Spanish authorities responded by means of force. How did the EU react? The EU authorities — in particular the then President of the European Commission Jean-Claude Juncker, the President of the European Council, and the Presidency of the EU — decided to respect the essential functions of Spain and not to interfere in its internal affairs. Therefore, they did not say a word — just “please, respect the fundamental rights”, meaning that the Spanish reaction shall be consistent with the fundamental rights and proportionate. Some commentators have strongly criticised the neutrality of the EU. However, you have to consider that also at the EU level, there is this idea that the essential elements of a State cannot be subject to interference. We will see that this idea may be reshaped, but it is not that easy to argue that it is possible to interfere in a huge way into the internal affairs of a State. It is possible, but difficult. We will see in particular the reaction of the EU to the breach of the rule of law in Poland and Hungary.

Other subjects of the international community

Another subject of the international community are individuals. In this respect, there has been an evolution: Under classical international law — before the establishment of the UN with the UN Charter / the San Francisco Charter in 1945 — individuals were conceived as subjects of national law and had no possibility of being relevant subjects of international law. Before 1945, international law dealt with individuals with regard to the protection of aliens — foreign citizens — which was however conceived in terms of obligations among States. In other words, aliens did not have any right which could be enforced at the international level in the case of a breach or violation of their prerogatives. They could only ask for protection — in particular, for diplomatic protection — to their national State. However, that was nothing but a request, meaning that protection was not a right.

After 1945, thanks in particular to the human rights movement and the codification of human rights, the landscape changed and individuals became subjects of international law, in particular with regard to the protection of human rights. Individuals are rights holders, meaning that if a fundamental right is violated in a given country — and this right is recognised in a given treaty to which that country is a party — individuals may trigger the monitoring bodies of the treaty in order to assess the behaviour of that country. The European Convention of Human Rights is a clear example: It provides for a monitoring jurisdictional body — the European Court of Human Rights — and in the case of a violation of rights, individuals may bring a State before the court.

At the same time, individuals are duty bearers, which means that they are obliged to respect some human rights obligations. This is particularly relevant when it comes to criminal international law — i.e. gross violations of international law, international crimes, genocides, crimes against humanity, etc. In all these cases, individuals committing such crimes may be considered responsible under international law. There are some international courts and tribunals that may be triggered in order to assess the behaviour of individuals. So, the current situation is different thanks to human rights law, under which individuals are considered rights holders and duty bearers, meaning that the international personality of individuals is limited, as it relates only to the human rights dimension.

What we have just said concerning individuals may be applied by way of analogy also to non-governmental organisations (NGOs) and corporations, even multinational corporations. Under international law, these subjects are considered individuals.

Last but not least, another subject of the international community are international organisations (IOs). An international organisation is “a derivative subject created by means of international law by States to institutionalise a cooperation in a given domain”.

• A derivative subject: Contrary to States, IOs are not originally subjects of international law, but are created by other subjects. In other words, they are not the result of a factual process.
• By means of international law: Normally, IOs are created by means of international law, meaning that they are based on an international law instrument. In particular, they are normally created by means of a treaty concluded among other entities. A treaty also has other names — i.e. agreement, constitution, convention, chart, etc. — but it does not change in nature.
• By States: Normally, States are the subjects that establish IOs.
• To institutionalise: Why are IOs created? Because States decide to create a common field of cooperation by introducing an institutional framework.
• In a given domain: An IO is created with a given mandate. In other words, while States have a complete jurisdiction — at least in theory — IOs have a very limited jurisdiction or in any case a limited jurisdiction. They may only act within their mandate, which is given by States and contained in the treaty establishing the IO.

Taxonomy of international organisations

As regards the taxonomy of IOs, we can distinguish six different categories of IOs:

• Universal IOs: They are created by States and are conceived as organisations where — in theory — all the States of the international community may be collected, meaning that all the States may decide to accede to that IO. The classical example of universal IO is the UN: It is conceived as an “open club”. Of course, this does not mean that it is always possible to become a member State, as there are criteria and procedures that must be followed, but in theory there is the possibility.
• Regional IOs: They are created by some specific States on given criteria. They are not conceived to give the possibility to all the States of the international community to become part of it. It is not an “open club”, but this does not mean that it is completely closed. It is still possible to become a member of the IO, but the criteria are stricter. In particular, the political decision to give the possibility to a new State to become a member is taken with particular attention by the other parties. Do not make the mistake to consider regional IOs as organisations that are based only on a geographical dimension. Of course, there are some with a geographical dimension — i.e. the EU, the Council of Europe, the African Union, etc. — but there are also those that are not based on a geographical criterium — i.e. the NATO.
• Political IOs: The mandate of political IOs is normally large — i.e. the UN, which may act within the field of human rights, economic cooperation, the use of force, social protection, etc.
• Technical IOs: The mandate of technical IOs is normally strict, narrow — i.e. the WHO, which has a specific mandate.
• Intergovernmental IOs ≠
• Supranational IOs: The distinction between intergovernmental IOs and supranational IOs has been created in order to distinguish the EU from all the other IOs. Indeed, the EU is a very peculiar IO due to the fact that it has been created to integrate the legal orders of Member States, which have transferred power to the EU. On the contrary, in the case of intergovernmental IOs, there is no share of power. Think about the UN: The Security Council of the UN may exercise binding powers in the field of use of force, meaning that in the case of an act of aggression or violation of peace or security, the Security Council could decide to adopt binding resolutions. This does not mean that the Member States of the UN have completely transferred their prerogatives in terms of use of force to the UN. They can still decide to use force, in particular when it comes to self-defence, national security, or public order.