Why Do the EU and Its Court of Justice Fail to Protect “Strict Observance of International Law” (Article 3(5) TEU) in the World Trading System and in Other Areas of Multilevel Governance of International Public Goods?

Petersmann, Ernst-Ulrich

doi:10.1007/978-3-319-15690-3_11

Ernst-Ulrich Petersmann⁴

Part of the book series: European Yearbook of International Economic Law ((Spec. Issue))

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Abstract

I met Horst G. Krenzler the first time during my work as research fellow at the Max-Planck Institute for International and Comparative Public Law in the late 1970s at Heidelberg, where Krenzler campaigned for the Liberal Democratic Party in the first direct elections to the European Parliament. During our later meetings in EC institutions at Brussels where I represented Germany as legal advisor to the German Ministry of Economic Affairs, our discussions focused less on academic than on diplomatic conceptions of international trade law and policies. This contribution in honour of Krenzler begins with a short discussion of why economic and political theories of trade agreements fail to convincingly explain the reality of international trade law. It then discusses the five major legal narratives of conceptualising, designing and interpreting international trade agreements. The Lisbon Treaty differs from all other international trade agreements by its “constitutional approach” to the regulation of the EU’s customs union and by its “cosmopolitan guiding principles” (in Article 21 TEU) for the EU’s external policies. While the Kadi jurisprudence of the Court of Justice of the European Union (CJEU) and the Solange jurisprudence of the German Constitutional Court are successful examples of European leadership for promoting rule of law in the collective supply of international public goods (PGs) demanded by citizens, this contribution criticises the frequent disregard by political and judicial EU institutions for their legal WTO obligations to provide “security and predictability to the multilateral trading system”, including individual access to justice and judicial remedies in domestic courts. The treatment of EU citizens as mere objects rather than legal subjects of WTO trade rules illustrates a systemic failure to protect international rule of law for the benefit of EU citizens in mutually beneficial international trade, including “strict observance of international law” (Article 3(5) TEU) in conformity with the cosmopolitan legal principles prescribed by EU law (Articles 3 and 21 TEU) for the EU’s external actions.

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Notes

1.
Krugman (1997), p. 113.
2.
Cf. Regan (2006), p. 951; Ethier (2007), p. 605.
3.
Cf. Petersmann (1986), p. 405.
4.
On the need for reconciling the diverse economic and legal approaches in interpreting international economic law see my chapter IV on “Need for an Economic Analysis of International Economic Law”, in: Petersmann (1991), pp. 73–94.
5.
Cf. Cremona (2014), p. 155.
6.
Cf. the Introduction to Petersmann (2012).
7.
Cf. Sen (2000); Nussbaum (2011).
8.
The following survey is a brief summary of Petersmann (2012), chapter I.
9.
Cf. Petersmann (1983), p. 397.
10.
Morgenthau (1951), p. 224.
11.
Carr (1940), p. 249.
12.
Cf. Morgenthau (1951), p. 224 (discussing the PCIJ advisory opinion on the dispute over the German-Austrian Customs Union, PCIJ Ser. A/B, No. 41).
13.
Cf. Petersmann (2012), chapters V and VI.
14.
Cf. Garcia (2013), at pp. 67 et seq.
15.
Cf. the Preamble of the VCLT.
16.
Cf. Petersmann (2012); and Garcia (2003).
17.
Cf. Rawls (1999), pp. 59 et seq.
18.
Cf. Petersmann (2013), p. 45.
19.
The Latin term “commutare” means “to exchange”; “commutative justice” refers to agreements on functionally limited “treaty principles of justice” like reciprocal market access commitments and the economic efficiency principles underlying the legal ranking of economically ‘optimal trade policy instruments’ in GATT/WTO law (e.g. non-discriminatory domestic regulation and subsidies rather than border discrimination; tariffs rather than non-tariff trade barriers; sanitary regulations on the basis of science-based “risk-assessments” rather than on the basis of discriminatory protectionism). Due to the absence of universally agreed criteria of just results of economic exchange, IEL provides for more dispute settlement procedures than most other areas of international law.
20.
Cf. Garcia (2013), e.g. pp. 260 et seq. (describing US abuses of power in NAFTA and CAFTA dispute settlement procedures as illustrating “how US trade policy is not always consistent with notions of justice”, pp. 257, 324).
21.
The Greek term κοσμοπολίτης—kosmopolites refers to a “citizen of the world” recognising all human beings as morally equal and constituting a single world community that should avoid national prejudices.
22.
Cf. Petersmann (2012), pp. 145 et seq.
23.
On this emergence of a “new disaggregated world order” and “judges constructing a global legal system” see: Slaughter (2004), pp. 65 et seq.
24.
Cf. Petersmann (2012), chapters I to IV.
25.
Cf. Article 47 ECFR.
26.
Cf. Article 52(1) ECFR. On guarantees of “access to justice” in UN law, WTO law and EU law see: Francioni (2007); Cançado Trindade (2011); Petersmann (1997), pp. 194 et seq., 233 et seq.; European Union Agency for Fundamental Rights (2011). On the human right to justification: Forst (2012).
27.
Cf. Article 2 TEU.
28.
Cf. Article 3 TEU.
29.
The term “freedom of manoeuvre” continues to be used by both the political EU institutions and the CJEU (e.g. in Joined cases C-120 and C-121/06 P, FIAMM and Others v Council and Commission, [2008] ECR I, 6513, para. 119) as the only justification for their disregard of legally binding WTO rules and WTO dispute settlement rulings.
30.
On failures by the CJEU to protect the EU law requirement of “strict observance of international law” (Article 3(5) TEU) vis-à-vis EU violations of UN and WTO obligations to the detriment of EU citizens, without even demanding the EU institutions to prove how violations of international treaties ratified by all parliaments inside the EU are necessary for promoting legitimate “Community interests” as defined by the Lisbon Treaty, see Petersmann (2011), p. 214.
31.
On the need for respecting “methodological pluralism” in legal and democratic justifications of law, governance and “public reason” see: Petersmann (2012), p. 921.
32.
Article 21 TEU.
33.
On the characteristics of “legal systems” as a union of “primary rules of conduct” and “secondary rules of recognition, change and adjudication” see Hart (1994), chapter V.
34.
Article 3(5) TEU.
35.
Article 3(5) TEU.
36.
On competing claims by national, EU and WTO dispute settlement bodies to define the legal limits and responsibilities of EU institutions for violations of international law, see above.
37.
Cf. Article 126 TFEU.
38.
Cf. Petersmann (1991). On the diverse “atomistic” and “socially embedded” conceptions of individuals in economics, see: Davis (2003).
39.
For a recent overview, see: Slaughter (2013), p. 613.
40.
Cf. Petersmann (2013/2014), p. 15.
41.
Cf. Article 6 TEU.
42.
Davis (2003), p. 1.
43.
On the diversity of theories of justice justifying IEL and their common “constitutional core principles”, see Petersmann (2012), chapters I and VI.
44.
Cf. ECJ, C-402/05 P and C-415/05 P, Kadi and Al Barakaat Foundation v Council and Commission, [2008] ECR I, 6351; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi, Judgment of 18 July 2013, not yet reported, para. 131; see the discussion of this jurisprudence below.
45.
Cf. Thies (2013).
46.
Article 16 EU Charter of Fundamental Rights.
47.
cf. Article 28 TFEU and Article XXIV GATT.
48.
Cf. Petersmann (2014), p. 187.
49.
Cf. below and Pernice (2013), pp. 381, 589.
50.
On the distinction—as two dialectic thinking processes characteristic of human rationality—of “unconscious, intuitive fast thinking” from “conscious slow thinking” based on deductive reasoning double-checking the cognitive biases of human instincts and intuition, see Kahneman (2011). Modern theories of justice emphasise similarly the dynamic and dialectic nature of constitutional democracies depending on a “four-stage sequence” (cf. Rawls 1972, pp. 195 et seq.) of transforming agreed “principles of justice” into constitutional and legislative rules and their administrative and judicial enforcement subject to democratic accountability mechanisms and judicial remedies of citizens.
51.
Cf. Article 1 UN Charter.
52.
On the need for protecting private and public supply of PGs demanded by citizens through “cosmopolitan constitutionalism” recognising citizens as authors and addressees of constitutional rights (e.g. rights of access to justice and to public justification of governmental restrictions of equal liberties and social rights) that need to be progressively institutionalised (e.g. through constitutional, legislative, administrative and also international law-making, adjudication, “participatory” and “deliberative democracy”) in response to the “public reason” of citizens as “agents of justice” see Petersmann (2011), p. 9.
53.
On the emerging “human rights constitution” see: Petersmann (2006), p. 29.
54.
Cf. Hart (1994), chapter V.
55.
Preamble of the WTO Agreement. For a discussion of the different kinds of public goods—like ‘best shot PGs’ (like a medical invention), “weakest link PGs” (like nuclear non-proliferation), and “aggregate PGs” (like democratic peace)—and their diverse “production strategies” see: Barret (2007); Petersmann (2012).
56.
Cf. Petersmann (2012), chapter V. On “thin” and “thick” theories of rule of law see: Zürn et al. (2012).
57.
ECJ, C-294/83, Les Verts v Parliament, [1986] ECR, 1365.
58.
Cf. Pech (2010), p. 359.
59.
Cf. the detailed study by Pech (2012/2013).
60.
Cf. Article 3 of the Statute of the Council of Europe.
61.
Cf. Pech (2012/2013), pp. 30 et seq.
62.
Cf. ECJ, C-402/05 P and C-415/05 P, Kadi and Al Barakaat Foundation v Council and Commission, [2008] ECR I, 6351; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi, Judgment of 18 July 2013, not yet reported, para. 131.
63.
ECJ, Joined Cases C-584/10P, C-593/10P and C-595/10P, Commission and Others v Kadi, Judgment of 18 July 2013, not yet reported, para. 131.
64.
ECJ, Joined Cases C-584/10P, C-593/10P and C-595/10P, Commission and Others v Kadi, Judgment of 18 July 2013, not yet reported, para. 133.
65.
Cf. Kokott and Sobotta (2012), p. 1015.
66.
On the different judicial methodologies applied by the CJEU, the EFTA Court and the ECtHR (e.g. regarding national “margins of appreciation”) see: Petersmann (2013), p. 45.
67.
Cf. Article 19(4) German Basic Law.
68.
Cf. Article X GATT.
69.
Cf. Article 13 Anti-dumping Agreement.
70.
Cf. Article 11 Agreement on Customs Valuation.
71.
Cf. Article 4 Agreement on Pre-shipment Inspection.
72.
Cf. Article 23 Agreement on Subsidies and Countervailing Measures.
73.
Cf. Article VI GATS.
74.
Cf. Articles 41-50, 59 TRIPS.
75.
Cf. Article XX Agreement on Government Procurement.
76.
Article 9 Aarhus Convention.
77.
Cf. Opinion 1/00 on the establishment of a European Common Aviation Area and the “Discussion Document” adopted by the CJEU on 5 May 2010 suggesting to provide—in the negotiations on EU accession to the ECHR—for an explicit rule prohibiting the ECtHR to decide on applications against the EU without first allowing the CJEU to examine those complaints in the light of the EU’s HRL, cf. Lock, Walking on a Tightrope: The Draft ECHR Accession Agreement and the Autonomy of the EU Legal Order, CMLR 48 (2011), pp. 1025.
78.
Cf. Kuijper (2013), p. 589 and Bronckers (2007), p. 601.
79.
ECJ, Joined Cases C-21-24/72, International Fruit Company v Produktschap voor Groenten en Fruit, [1972] ECR, 1219.
80.
Article XVI:4 WTO Agreement.
81.
Article 22 Dispute Settlement Understanding (DSU).
82.
For a detailed discussion of the legally unconvincing GATT/WTO jurisprudence of the CJEU, see: Petersmann (2011), p. 214; and Thies (2013).
83.
Cf. Articles 21.1 DSU. See generally Articles 21-23 DSU.
84.
Article 3(5) TEU.
85.
Cf. ECJ, C-245/02, Anheuser-Busch, [2004] ECR I, 11018, para. 49.
86.
Cf. WTO press release of 8 November 2012 on “Historic Signing Ends 20 years of EU-Latin American Banana Dispute”, available at www.wto.org/english/news_e/news12_e/disp_08nov12_e.htm.
87.
See, e.g., the contributions by the former WTO Director-General, Lamy, and the former President of the European Parliament, Borell, as well as by numerous academics, to Petersmann (2012).
88.
Cf. the Preamble to the WTO Agreement: “determined to preserve the basic principles … underlying this multilateral trading system”.
89.
Article 3.2 DSU.
90.
Article 3.2 DSU.
91.
Article XVI:4 WTO Agreement.
92.
Article XVI:5 WTO Agreement.
93.
Cf. Article X GATT.
94.
Cf. Article 13 Anti-dumping Agreement.
95.
Cf. Article 11 Agreement on Customs Valuation.
96.
Cf. Article 4 Agreement on Pre-shipment Inspection.
97.
Cf. Article 23 Agreement on Subsidies and Countervailing Measures.
98.
Cf. Article VI GATS.
99.
Cf. Articles 41-50, 59 TRIPS.
100.
Cf. Article XX Agreement on Government Procurement.
101.
Article III:5 WTO Agreement.
102.
Cf. WTO (2013), p. 15. A recent illustration is the joint study by the WHO et al. (2013), notwithstanding its explicit disclaimer that it does not purport to present any authoritative legal interpretations of WTO rules that remain the exclusive authority of the WTO Ministerial Conference and the WTO General Council (cf. Article IX:2 WTO Agreement).
103.
For a detailed discussion, see: Kuijper (2013), p. 589.
104.
Cf. Tietje (2014), p. 543.
105.
Article 3 DSU.
106.
Article 3 DSU.
107.
Cf. Garcia (2013), criticising US attitudes of “regulating my market at home, and deregulating markets abroad in order to facilitate exploitation of other markets internationally”, as well as US power politics in NAFTA and CAFTA dispute settlement procedures (pp. 260 et seq.).
108.
WTO DS332/AB/R adopted on 17 December 2007 (the Appellate Body held that the national and MERCOSUR court decisions authorising imports of used tyres resulted in the import ban being applied in a discriminatory manner as Brazil had not invoked the environmental justifications in the national and MERCOSUR court proceedings that Brazil had invoked in the WTO dispute settlement proceedings).
109.
In the Mexico—Soft Drinks dispute, the WTO Appellate Body noted explicitly that NAFTA’s exclusive forum clause had not been exercised (cf. WTO DS308/AB/R, para. 54). On the problems of justifying a WTO panel decision declining jurisdiction in favour of an “exclusive jurisdiction” agreed among WTO Members in a regional trade agreement, see: Marceau and Wyatt (2010), p. 67. For a complete overview of GATT/WTO jurisprudence involving regional trade agreements, see: de Mestral (2013), p. 777.
110.
For the identification of 150 references in international dispute settlement proceedings outside the WTO to WTO rules and dispute settlement procedures, see: Marceau et al. (2013), p. 481.
111.
Cf. Chase et al. (2013).
112.
Article 3 DSU.
113.
Cf. Pitaraki (2014).
114.
Cf. Article XVI:4 WTO Agreement.
115.
Article 3 DSU.
116.
Preamble and Article 31 VCLT.
117.
Article 3 DSU.
118.
Cf. Article X GATT.
119.
Cf. Article 13 Anti-dumping Agreement.
120.
Cf. Article 11 Agreement on Customs Valuation.
121.
Cf. Article 4 Agreement on Pre-shipment Inspection.
122.
Cf. Article 23 Agreement on Subsidies and Countervailing Measures.
123.
Cf. Article VI GATS.
124.
Cf. Articles 41-50, 59 TRIPS.
125.
Cf. Article XX Agreement on Government Procurement. Cf. Petersmann (1997), pp. 194 et seq., 233 et seq.
126.
Legal duties of judicial cooperation among national and international courts are increasingly recognised beyond national, regional and functional legal systems (like human rights and economic integration law, international commercial, investment and criminal law), for instance in case of “overlapping jurisdictions” among international courts (e.g. in the Mox Plant dispute submitted to arbitration under the OSPAR environmental convention, the dispute settlement procedures of the UN Law of the Sea Convention and of EU law; in the Brazil—Retreaded Tyres dispute submitted to both MERCOSUR arbitration and WTO dispute settlement proceedings); cf. Petersmann (2012), chapter VIII.
127.
Cf. Lamy (2013).
128.
Article 1 Universal Declaration of Human Rights (UDHR).
129.
Vienna Declaration and Programme of Action adopted at the UN World Conference on Human Rights by more than 170 states on 25 June 1993 (A/CONF.157/24, para. 5). This “universal, indivisible, interrelated, interdependent and mutually reinforcing” nature of human rights was reaffirmed by all UN member states in numerous human rights instruments such as UN Resolution 63/116 of 10 December 2008 on the “60th anniversary of the Universal Declaration of Human Rights” (UN Doc A/RES/63/116 of 26 February 2009).
130.
Cf. Preamble and Article 31 VCLT.
131.
For example, Article 1 UN Charter.
132.
Article 38(1)(a) Statute of the International Court of Justice (ICJ Statute).
133.
Article 38(1) ICJ Statute.
134.
Chapter I EU Charter of Fundamental Rights (ECFR).
135.
Chapter II ECFR.
136.
Chapter III ECFR.
137.
Chapter IV ECFR.
138.
Chapter V ECFR.
139.
Chapter VI ECFR.
140.
Cf. Articles 52,53 ECFR.
141.
Cf. ECJ, C-402/05 P and C-415/05 P, Kadi and Al Barakaat Foundation v Council and Commission, [2008] ECR I, 6351; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi, Judgment of 18 July 2013, not yet reported, para. 131: and Petersmann (2014), p. 187.
142.
Cf. Ruppel (2012), p. 141.
143.
Cf. Lomba (2014), p. 97.
144.
For example, Articles 9-12 TEU.
145.
Cf. Petersmann (2013) 2, p. 47.
146.
Cf. Hafner-Burton (2009).
147.
Cf. Lamy (2013).
148.
See ECJ, C-402/05 P and C-415/05 P, Kadi and Al Barakaat Foundation v Council and Commission, [2008] ECR I, 6351; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi, Judgment of 18 July 2013, not yet reported, para. 131; and ECtHR, Saadi v Italy, Appl. No. 37201/06, Judgment of 28 February 2008, in which the ECtHR decided that the deportation by Italy of a Tunisian citizen to Tunisia would breach Article 3 ECHR and could not be justified by a presumption that Tunisia would respect its human rights obligations as confirmed in the human rights clause of the EU-Tunisia association agreement.
149.
Article 3(5) TEU.
150.
WTO Appellate Body Report, EC-Tariff Preferences, WT/DS246/AB/R, adopted 20 April 2004.
151.
Cf. Article 9 of Council Regulation 980/2005 of 27 June 2005 applying a scheme for generalised tariff preferences, OJ L 169/1.
152.
For example, in Article 1 of the EU-Korea Framework Agreement, 2010.
153.
Cf. Petersmann (2011), p 214.
154.
Cf. Petersmann (2013/2014), p. 15; and Golabek (2013), chapter 6.3.
155.
Preamble, UDHR.
156.
Articles 2, 3 and 21 TEU.
157.
Cf. WTO press release of 8 November 2012 on “Historic Signing Ends 20 years of EU-Latin American Banana Dispute”, available at www.wto.org/english/news_e/news12_e/disp_08nov12_e.htm.
158.
Cf. Article 126 TFEU.
159.
Article 19 TEU.
160.
As stated above, the term “freedom of manoeuvre” continues to be used by both the political EU institutions and the CJEU (e.g. in Joined cases C-120 and C-121/06 P, FIAMM and Others v Council and Commission, [2008] ECR I, 6513, para. 119) as the only justification for their disregard of legally binding WTO rules and WTO dispute settlement rulings. Since the 1972 International Fruit Company Case (ECJ, Joined Cases C-21-24/72, [1972] ECR, 1219), the justifications submitted by the EU Commission to the CJEU for denying citizens’ and EU Member States’ rights to invoke and enforce the EU’s GATT/WTO obligations—e.g. that GATT/WTO rules are less “precise and unconditional” than EU rules; that “reciprocity” and “safeguard clauses” require denying “direct applicability” of GATT/WTO obligations in European courts; or that WTO law accepts compensation and sanctions as alternative “options of compliance” with WTO obligations—continue to be obviously inconsistent with GATT/WTO law and reflect bureaucratic self-interests of EU politicians to avoid accountability for arbitrary violations of international legal obligations vis-à-vis EU citizens. Sadly, the CJEU’s endorsement of such “political question doctrines” seems to be likewise influenced by judicial self-interests in limiting the influence of international courts (e.g. WTO jurisprudence) on the CJEU and avoiding conflicts with the political EU institutions. In its recent case law, the CJEU has similarly refrained from applying UN conventions (like the UN Convention on the Law of the Sea, the ICAO Chicago Convention) as legal standards for reviewing the lawfulness of EU acts.
161.
Article 3 TEU.
162.
Cf. UN High Commissioner for Human Rights (2013).
163.
Cf. Kant (1991), p. 47.

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European University Institute, Via dei Roccettini 9, 50014, San Domenico di Fiesole, Italy
Ernst-Ulrich Petersmann

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Ernst-Ulrich Petersmann
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Correspondence to Ernst-Ulrich Petersmann .

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University of Passau, Passau, Germany
Christoph Herrmann
Iran-United States Claims Tribunal, The Hague, The Netherlands
Bruno Simma
Ludwig Maximilians University Munich, Munich, Germany
Rudolf Streinz

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Petersmann, EU. (2015). Why Do the EU and Its Court of Justice Fail to Protect “Strict Observance of International Law” (Article 3(5) TEU) in the World Trading System and in Other Areas of Multilevel Governance of International Public Goods?. In: Herrmann, C., Simma, B., Streinz, R. (eds) Trade Policy between Law, Diplomacy and Scholarship. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-319-15690-3_11

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DOI: https://doi.org/10.1007/978-3-319-15690-3_11
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