Connected or Disconnected? The EU and International Law Lecture I – Introduction/EU Foreign Affairs Governance Prof. Pieter Jan KUIJPER

Connected or Disconnected?The EU and International LawLecture I – Introduction/EU Foreign Affairs Governance

Prof. Pieter Jan KUIJPER

Lecture I: Introduction & Foreign Affairs Governance

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Connected or Disconnected: the Question.

Where does the EU stand on the continuum?

“A new legal order of international law” Case 26/62 Van Gend en Loos

“A new legal order” Case 6/64 Costa – ENEL

A legal order outside international law? Case C-402/05 P Kadi v Council

Case C-459/03 Comm v Ireland (MOX Plant)


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To answer that first question, what other questions to ask?

Has the EU legal order evolved in a way so as to keep itself separate from international law? What is the place of international law in the EU legal order? (internal aspect). Lecture 2-3.

Has the EU insisted on special treatment in international legal relations and have other actors accepted that claim? Has the EU gone too far in its exceptionalism? Lecture 3-6.


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What are the preliminary issues?

What are the characteristics of the EU system? In general? In the field of “foreign affairs”?

From which perspective? The relationship EU - MS : “Federalism” The relationship between the Institutions: The “Trias

Politica” The special character of foreign relations. The evolution of foreign relations over 50 years of EC/EU.


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The characteristics of the EU system.

Where does the EU stand on a federalism scale? Compare with the US.

Separate “federal”/EU law?

Separate “federal”/EU institutions?

How is EU law implemented and by whom? By “EU

institutions” or by Member State institutions?

The leading principle: subsidiarity –art 5 TEU L

How is the unity of “federal”/EU law secured?


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The characteristics of the EU system 2

Articles 2+3 TEU L. The ideals of the EU. Normally they require a separation of powers. Does such separation exist in Int. Organizations? ECJ always very circumspect: “balance beteen institutions” This is no longer justified, if you look at the Treaty of Lisbon. New provision on delegation of legislative power (art. 290

TFEU) and conferral of implementing powers(art. 291 TFEU) Sufficient separation between the legislative, the executive,

and the judiciary? Link with “federalism”….


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The special character of foreign relations.

Foreign Relations and Federalism US v Curtiss-Wright Export Corp. (1936) “The two classes of powers are different, both in tespect of their origin and their

nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs……”

“The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.”

“The President is the constitutional representative of the United States with regard to foreign nations.”

No full parallel with EU situation intended; just strong pronouncement on an important problem.


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The special character of foreign relations 2

Foreign Relations and the Trias Politica Goldwater v Carter (1979)

“I am of the view that the basic question presented by petitioners in this case

is ‘political’ and therefore, non-justiciable because it involves the authority of

the President in the conduct of our foreign relations and the extent to which

the Senate or the Congress is authorized to negate the action of the

President” (Rehnquist) “Prudential considerations persuade me that a dispute between Congress

and the President is not ready for judicial review unless and until each branch

has taken action asserting its constitutional authority… If Congress…. had

[formally] challenged the President’s authority to terminate the treaty with

Taiwan……it would be the duty of this Court to resolve the issue.” (Powell)


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The foreign relations revolution

Character of Foreign Relations has changed Information revolution

Expansion of expertise – Think tanks etc.

Greater coverage: no longer “high politics” alone. For the

EU this meant no longer “low politics” alone: CFSP

Democratization of foreign relations: e.g. Trade policy.

One “political line” more difficult to hold: Coherence!


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Interim Summary

Influence of the following factors on the historical development of EC/EU foreign relations.

Executive and co-operative federalism

Separation of powers

The special character of foreign affairs

Separation “high” and “low” foreign affairs

“Revolution” in foreign affairs


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The Lisbon Treaty

Article 1 TEU By this Treaty, the HIGH CONTRACTING PARTIES establish among

themselves a EUROPEAN UNION, hereinafter called "the Union" on which the Member States confer competences to attain objectives they have in common.………

The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as "the Treaties"). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.

Article 47 TEU “The Union shall have legal personality.”

Other Fundamentals

Recall Articles 2 and 3 TEU (discussed earlier). Article 4 TEU: Respect for the Member States,

their national identities, fundamental structures and essential State functions.

Principles of conferral, subsidiarity and proportionality (Article 5 TEU).

Charter of Human Rights incorporated (Art. 6). Accession to the ECHR (Art. 7 TEU). Consequences of all this for Foreign Relations?


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Coherence between all aspects of foreign relations.

Article 21 embodies this aspiration. The World a bigger EU? (para. 1)

Mixture of CFSP goals (para. 2a,b.c and h) and “old

EC” objectives (para. 2d,e,f,g, and h).

To be carried out under “this Title” of the TEU and by

the new Part V of the TFEU.


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CFSP Broad power covering all aspects of foreign policy and

progressive development of common defence policy. Binding decisions, strong loyalty clause, but… Unanimity. No legislation, no preemption. No infringement procedure Reduced roles of Commission and Parliament No judicial control by the Court (Art. 24(1) TEU)

Except: Border line between TEU and TFEU (Art. 40 TEU)

Sanctions against individuals (Art. 275 TFEU


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The “Institutions” of the CFSP

The European Council. The President of the European Council. The Council of Ministers. Political and Security Committee. The High Representative. Special Representatives. European External Action Service. Union delegations.


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Fundamentals of the TFEU (art. 2 and 3)

Exclusive, shared and supportive powers. Preemption in the area of shared powers.

No harmonization in areas of supportive powers.

Exclusive powers in foreign relations. Monetary policy

Common commercial policy

Conservation of the marine biological resources in the

common fisheries policy.


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Additional Exclusive Power in Treaty-making Article 3(2) TFEU:

“The Union shall also have exclusive competence for

the conclusion of an international agreement when its

conclusion is provided for in a legislative act of the

Union or is necessary to enable the Union to exercise

its internal competence, or in so far as its conclusion

may affect common rules or alter their scope.”

Taken from existing case law Case 22/70 (AETR), Opinions 1/76 and 1/94


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The Union’s External Action TFEU Part V

Common Commercial Policy Development Cooperation Economic, Financial and Technical Cooperation Humanitarian Aid Restrictive Measures International Agreements Union’s Relations with I.O.’s, Third Countries and

Union Delegations.


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Treaty-making power

Article 216 TFEU: “The Union may conclude an agreement with one or

more third countries or international organisations where

the Treaties so provide or where the conclusion of an

agreement is necessary in order to achieve, within the

framework of the Union’s policies, one of the objectives

referred to in the Treaties, or is provided for in a legally

binding Union act or is likely to affect common rules or

alter their scope.”

What is the relation with Article 3(2) TFEU ?


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Characteristics of the EU External Action. Normal “Community” governance.

“Normal” role Commission + external representation

QMV in the Council in principle.

Increased and now “normal” role of Parliament.

“Normal” role of the EU Courts

Legislation.

In areas of shared competence, there is preemption through the

AETR doctrine as codified.

Agreements are binding on the Member States.


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Tension between CFSP and rest of External Action in the age of coherence.

Best expressed in the Treaty-making procedure of Article 218 TFEU.

Provisions on the opening of the negotiation (Article

218, para 3).

Provisions on the conclusion of the agreement (art. 218,

para. 6).

Relation with Article 40 TEU?

Binding agreements. Role of the Court?


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Conclusions on the post –Lisbon in foreign affairs.

Executive Federalism placed into sharper focus. Separation of powers has become clearer. The special character of foreign affairs, especially

“high” foreign affairs continues to be emphasized by the “One Union; two treaties situation.”

“Revolution in foreign affairs” has had a pervasive influence on all of it.


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Documents

Connected or Disconnected? The EU and International Law Lecture I – Introduction/EU Foreign Affairs Governance Prof. Pieter Jan KUIJPER