Abstract
In recent years the European Union (EU) has entered into an increasing number of international agreements. Due to lack of parliamentary and judicial scrutiny, EU international agreements raise serious human rights concerns. This may be illustrated by reference to the agreements on extradition/mutual legal assistance between the EU-US, the treaty on the transfer of Passenger-Name-Record data to Homeland Security or the agreement on the transfer of persons suspected of piracy off the Somali coast. The framework is complex: following the de-pillarisation of the Treaty of Lisbon (TL), and the assimilation of Police and Judicial Co-operation in Criminal Matters to the “Community” model of the former first pillar, the acquis that has been built up under Police and Judicial Co-operation in Criminal Matters merges with that of the “Community”, changing the structure of the Treaties, and turning Police and Judicial Co-operation in Criminal Matters into an entirely supranational affair. In contrast to the integration logic (supranational model), decision-making in the area of Common Foreign and Security Policy is “subject to specific rules and procedures” (Article 24 TEU), a manifestation of executive politics, and remains dominated by intergovernmental elements, with the use of an intergovernmental method of cooperation. Despite their growing importance, EU agreements (CFSP and PJC (by now FSJ) agreements) and their tendency to generate derogations from fundamental rights safeguards have received surprisingly little academic attention. Their legal effects are largely unknown; while the amount of studies exploring fundamental rights and Police and Judicial Co-operation in Criminal Matters has seen an enormous increase in the past years, less academic attention has been paid to the notion of fundamental rights in the external policies of the European Union.
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Notes
- 1.
Agreements on mutual legal assistance between the European Union and the United States of America [2003] OJ L181/34 and on extradition between the European Union and the United States of America [2003] OJ L181/27.
- 2.
Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement) [2007] OJ L204/18.
- 3.
Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer [2009] OJ L79/49 and the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) [2009] OJ L202/84.
- 4.
Intergovernmentalism/supranationality and consequences of international co-operation for individuals, Bernd Meyring, ‘Intergovernmentalism and supranationality: two stereotypes for a complex reality’ (1997) 22 ELRev. 221, 242.
- 5.
See, generally, Steve Peers, ‘EU criminal law and the Treaty of Lisbon’ (2008) 33 ELRev. 507 and id., ‘Finally ‘Fit for Purpose’? The Treaty of Lisbon and the End of the Third Pillar Legal Order’ (2008) 27 YEL 47.
- 6.
Member States may invoke fundamental aspects of their national systems, e.g. criminal matters and social security, known as the emergency-brake procedure to accommodate national diversity. Articles 48, 82 and 83 TFEU and Article 31 TEU. See, generally, Estella Baker and Christopher Harding, ‘From past imperfect to future perfect? A longitudinal study of the third pillar’ (2009) 34 ELRev. 25, 26 and 44.
- 7.
To a certain extent supranationalised, ‘(...) A “sellout of the state’s very own competences” is alleged to have taken place. The Common Foreign and Security Policy is alleged to be supranationalised because measures in this area are assigned to the European Union, which is vested with its own legal personality and is no longer represented on the international level by the foreign ministers of the Member States but by the High Representative of the Union for Foreign Affairs and Security Policy (...)’. 2 BvE 2/08 Gauweiler v Treaty of Lisbon (Judgment of 30 June 2009), para 103.
- 8.
Please note that the abolition of the possibility of constitutional reservations (Article 24 (5) TEU) challenges the notion of a purely intergovernmental co-operation in CFSP.
- 9.
Paul Craig, ‘The Treaty of Lisbon, process, architecture and substance’ (2008) 33 ELRev. 137, 149; Laurent Pech, ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 EuConst 359, 389.
- 10.
Editorial Comments, ‘The Union, the Member States and international agreements’ (2011) 48 CMLR 1 and the synthesis by Christine Kaddous, ‘Effects of International Agreements in the EU Legal Order’ in Marise Cremona and Bruno de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Essays in European law, Hart, Oxford 2008) 291.
- 11.
The literature on direct effect (self-executing nature) of WTO rules is voluminous. For comprehensive studies: Judson Osterhoudt Berkey, ‘The European Court of Justice and direct effect for the GATT: a question worth revisiting’ (1998) 9 E.J.I.L. 626–657; Thomas Cottier, ‘Dispute Settlement in the World Trade Organization: Characteristics and Structural Implications for the European Union’ (1998) 35 CMLR 325, 367–369; Piet Eeckhout, ‘The domestic legal status of the WTO Agreement: Interconnecting legal systems’ (1997) 34 CMLR 11, 29–32; Miquel Montañá I Mora, ‘Equilibrium: A Rediscovered Basis for the Court of Justice of the European Communities to Refuse Direct Effect to the Uruguay Round Agreements?’ (1996) 30 JWT 43–59; Philp Lee and Brian Kennedy, ‘The Potential Direct Effect of GATT 1994 in European Community Law’ (1996) 30 JWT 67–89; Pieter Jan Kuijper, ‘The New WTO Dispute Settlement System—The Impact on the European Community’(1995) 29 JWT 49, 62–65. The problem of direct effect of EU agreements (CFSP and PJC (by now FSJ) agreements) is well known, yet unresolved. For a general analysis (direct effect and interpretation): Robert Schütze, ‘European Community and Union, Decision-Making and Competences on International Law Issues’ in Wolfrum, Rüdiger (et al, eds), Encyclopedia of Public International Law (OUP, Oxford 2011), paras 22–23 and id., ‘European Community and Union, Party to International Agreements’ in Wolfrum, Rüdiger (et al, eds), Encyclopedia of Public International Law (OUP, Oxford 2011), paras 36–39. Francis G. Jacobs, ‘Direct effect and interpretation of international agreements in the recent case law of the European Court of Justice’ in Alan Dashwood and Marc Maresceau (eds), Law and practice of EU external relations: salient features of a changing landscape (CUP, Cambridge 2008) 13–33 for a constitutional evaluation that the Court is favourably disposed towards direct effect. In his study, Francis G. Jacobs examines the following cases: Case C-63/99 Gloszczuk EU:C:2001:488, [2001] ECR I-6369 (Europe Agreement (EA) with Poland); Case C-235/99 Kondova EU:C:2001:489, [2001] ECR I-6427 (EA with Bulgaria); Case C-257/99 Barkoci and Malik EU:C:2001:491, [2001] ECR I-6557 (EA with the Czech Republic); Case C-268/99 Jany and Others EU:C:2001:616, [2001] ECR I-8615 (EA with Poland and the Czech Republic); Case C-162/00 Pokrzeptowicz-Meyer EU:C:2002:57, [2002] ECR I-1049 (EA with Poland); Case C-502/04 Torun EU:C:2006:112, [2006] ECR I-1563 (EEC-Turkey Association); Case C-265/03 Simutenkov EU:C:2005:213, [2005] ECR I-2579 (Communities-Russia Partnership Agreement); Case C-23/02 Alami EU:C:2003:89, [2003] ECR I-1399 (EEC-Morocco Cooperation Agreement); Case C-97/05 Gattoussi EU:C:2006:780, [2006] ECR I-11917 (Association Agreement with Tunisia). His analysis relies most heavily on Pokrzeptowicz-Meyer and Simutenkov.
- 12.
Christine Kaddous (n 10) 299 ‘[t]he legal effects of such agreements are largely unknown because of the lack of relevant case law. The Court has not rendered rulings similar to those of Haegeman or Commission v Ireland’; Thym does provide a useful insight when states that: ‘rechtliche Parallele besteht nur dahin gehend, dass Verträge der Gemeinschaft und der Union gleichermaßen ein integrierender Bestandteil der Gemeinschafts- bzw. Unionsrechtsordnung sind [legal parallel exists only to the extent that agreements concluded by the Community and the Union equally form an integral part of the Community, or Union legal order]’ Daniel Thym, ‘Die völkerrechtlichen Verträge der Europäischen Union’ (2006) 66 ZaöRV 863, 900–01.
- 13.
For a detailed analysis, Steve Peers, ‘Human Rights and the third pillar’ in Philip Alston (ed), The EU and Human Rights (OUP, Oxford 1999) 167. The question of the bite of fundamental rights – the institutional scheme of the Treaties and a critical view of the judicial arrangements in pre-Lisbon’s third pillar: Eleanor Spaventa, ‘Opening Pandora’s Box: Some Reflections on the Constitutional Effects of the Decision in Pupino’ (2007) 3 EuConst 5, 6–8; and Steve Peers, ‘Salvation outside the Church: Judicial protection in the third Pillar after the Pupino and Segi judgments’ (2007) 44 CMLR 883, 885–902. The status of fundamental rights in EU law, before and after Lisbon, Dorota Leczykiewicz, ‘“Effective judicial protection” of human rights after Lisbon: should national courts be empowered to review EU secondary law?’ (2010) 35 ELRev. 326–348. Fundamental rights gap(s) created by the exercise of powers by executives, Eleanor Spaventa, ‘Counter-terrorism and Fundamental Rights: judicial challenges and legislative changes after the rulings in Kadi and PMOI’ in A Antoniadis, R Schütze & E Spaventa (eds), The European Union and Global Emergencies: A Law and Policy Analysis (Hart, Oxford/Portland 2011) 105–123 with a focus on the EU regimes (both the UN-derived and the EU-own). See, further, Alicia Hinarejos, ‘Recent human rights development in the EU courts: the Charter of Fundamental Rights, the European Arrest warrant and terror lists’ (2007) 7 HRL Rev. 793, 795–811.
- 14.
E.g. Barbara Brandtner and Allan Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’ (1998) 9 E.J.I.L. 468, 469. For a general analysis, Martine Fouwels, ‘The European Union’s Common Foreign and Security Policy and Human Rights’ (1997) 15 NQHR 291.
- 15.
The selection of languages (English, German, French) mirrors those the author is able to read.
- 16.
Article 2, Section 2, of the Constitution (that is, the constitutional provision conferring power to make international agreements) provides: ‘[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.’ The U.S Constitution entrusted making agreements with other states – bilateral or multilateral – to the President (that is, a principal Presidential power to make international agreements).
- 17.
See Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs “Essays … from the Cooley lectures delivered at the University of Michigan Law School in November 1988” – Pref. (Columbia University Press, New York 1990) 60.
- 18.
See Louis Henkin, Foreign Affairs and the United States Constitution (2nd edn OUP, Oxford 1996) 219–224. As indicated by Henkin, the President’s power to make sole executive agreements is not without limits – Limits are difficult to determine and to state: ‘The Supreme Court has not held any sole executive agreement to be ultra vires the President and, as indicated, has upheld several agreements of particular character, but it has not laid down principles or given general guidance to define the President’s power to act alone’ (at 222).
- 19.
Louis Henkin (n 18) 198–204. Henkin discusses the difference between self-executing (that is, a treaty that ‘operates of itself’. Executive and the courts give effect to the treaty without awaiting Congressional action) and non-self-executing treaties; whether a treaty is self-executing or not, it is legally binding on the US and it is supreme law of the land (see at 203).
- 20.
Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).
- 21.
Louis Henkin (n 18) 202.
- 22.
Ibid, at 215–218.
- 23.
Ibid, at 219–224.
- 24.
Ibid, at 225. Henkin deals here with suggested limitations on the power to make executive agreements (related limitations on the status of executive agreements in national law are considered at 177, 226–8).
- 25.
Louis Henkin (n 17) 51.
- 26.
Reid v. Covert, 354 U.S. 1, 16–17 (1957).
- 27.
Louis Henkin (n 18) 185–189 (that is, ‘Limitations on Treaties’). The role of the Court in Constitutional interpretation was firmly established in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–178 (1803). See Michael A. Genovese, The Supreme Court, the Constitution and Presidential Power (University Press of America, 1980 Washington) 45–82. Marbury v. Madison rested on two principles. The first principle which the Court tried to establish was the Court’s duty to interpret the law. The second principle which the Court tried to establish was that the Constitution was the supreme law of the land, see at 45–51.
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Zipperle, N. (2017). General Introduction. In: EU International Agreements. Springer, Cham. https://doi.org/10.1007/978-3-319-64078-5_1
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