Abstract
This chapter will assess the consistency of the ICS with the requirements set in the ECJ’s case law concerning the principle of autonomy , with a view to examining whether the model designed in EU investment agreements can constitute a general paradigm for the settlement of disputes against the EU as far as EU law is concerned. This general paradigm will then be examined through the lens of international law, in particular in light of the body of secondary norms of general international law that the said paradigm is meant to replace. This will include an assessment of the possible obstacles posed by international law to a generalisation of the model dispute settlement designed by EU investment agreements (so-called internalisation model). This part will contain an assessment of whether such a model can be successfully extended beyond the field of investment law and adopted in other fields. The chapter will argue that a generalisation of the internalisation model is indeed possible owing to the principle of lex specialis and the traditionally consent-based structure of international law, which allow a great deal of flexibility to the parties to an agreement. It will conclude that a generalised adoption of this model may give rise to international practice recognising the special features of the EU as an actor in international relations and ultimately its federal ambitions .
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Notes
- 1.
See Odermatt 2018a, p. 5.
- 2.
See Odermatt 2018a, pp. 36–37.
- 3.
See Ziegler 2011, p. 270.
- 4.
See also the considerations made by Rosas and Armati 2018, pp. 7–17.
- 5.
As far as international agreements are concerned, this is neatly clarified by Article 27 VCLT , which states that domestic law cannot serve as a justification for failure to comply with a treaty provision.
- 6.
See, in particular, Sect. 2.3.
- 7.
See Articles 30 and 31 ARIO . In some cases, however, a declaratory judgment acknowledging the violation of an international obligation may be sufficient.
- 8.
See Sect. 5.2.4.
- 9.
See Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 221.
- 10.
See Sect. 3.3.
- 11.
See Sect. 3.2.
- 12.
On the need to distinguish these decisions, and in particular Opinion 1/09 , because of the specific features of the Patent Court see also the considerations made by Contartese 2017, p. 1657.
- 13.
See Permanent Court of International Justice, Case Concerning Certain German Interests in Polish Upper Silesia (The Merits), Judgment of 25 May 1926, p. 19.
- 14.
See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 77.
- 15.
See, in particular, Castellarin 2017, pp. 437–453.
- 16.
See, on this point, Hindelang 2015, pp. 74–76.
- 17.
On this practice, see the thoughtful analysis carried out by Cremona 2010.
- 18.
For a critical view on the possibility to include a disconnection clause within the ECHR system, see Eeckhout 2015, pp. 977–978.
- 19.
For an overview of the sanctions adopted by the EU that are currently in force see European Commission, Service for Foreign Policy Instruments, Restrictive Measures (sanctions) in Force, available at http://ec.europa.eu/dgs/fpi/documents/Restrictive_measures-2017-08-04-clean_en.pdf (accessed on 23 June 2018).
- 20.
For an overview of these cases, see Pantaleo 2016.
- 21.
See Ghodoosi 2014, p. 1783.
- 22.
See, for example, Article 18 of the US Model BIT. It should be noted that the same self-judging language is used in the relevant provisions of EU investment agreements, such as Article 28.6 CETA.
- 23.
See Dupont 2015, pp. 203–207.
- 24.
As observed by Halberstam, the ECJ may have been moved by a desire to prevent the creation of a perception that the ECtHR would become, de facto if not de iure, a sort of court of last resort in matters concerning the CFSP . See Halberstam 2015, p. 142. More generally, the findings of the ECJ on this point are a consequence of what can certainly be considered an anomaly of the EU legal order. Namely, the fact that its own courts are deprived of jurisdiction in relation to a whole branch of EU law.
- 25.
See Court of Justice, Draft Agreement on the Creation of a unified patent litigation system, para 77.
- 26.
- 27.
See Odermatt 2018b, p. 296.
- 28.
See Weiler 1991, pp. 2422 et seq.
- 29.
See Klabbers 2011, p. 13.
- 30.
For an overview of different treaty regimes having their own secondary rule, see the classic studies carried out in Barnhoorn and Wellens 1995.
- 31.
See Kuijper 2013, pp. 59–65.
- 32.
See Koskenniemi 2006, paras 123–190.
- 33.
See ILC , ‘Draft articles on the responsibility of international organizations, with commentaries’ [2011] Yearbook of the International Law Commission, vol. II, Part Two, p. 103.
- 34.
See ILC , ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ [2001] Yearbook of the International Law Commission, vol. II, Part Two, p. 140.
- 35.
See Cannizzaro 2013, p. 300.
- 36.
See ILC , ‘Draft articles on the responsibility of international organizations, with commentaries’ [2011] Yearbook of the International Law Commission, vol. II, Part Two, pp. 102–103.
- 37.
See Contartese 2017, p. 1654.
- 38.
See Eeckhout 2015, p. 981.
- 39.
See Contartese 2017, p. 1654.
- 40.
See Sect. 2.2.
- 41.
This case concerned Karl-Heinz and Walter Bernhard LaGrand, two German citizens convicted of murder and sentenced to death in the United States . In violation of the Vienna Convention on Consular Relations, the LaGrands were not granted the right to consular assistance from their State of nationality by Arizona State courts. The LaGrands were executed by Arizona authorities despite Germany having initiated proceedings before the International Court of Justice and obtained a provisional order requiring the United States to delay the execution pending resolution of the dispute. See International Court of Justice, LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466.
- 42.
Among the many scholarly contributions to this debate, special mention deserves here the exchange of views occurred in a recent edited volume between two giants of the field, namely Bruno de Witte and Joseph Weiler. In his contribution to the volume, Bruno de Witte argued that it makes little sense to conceptualise the EU by referring to the federal analogy or to a vague construction such as the sui generis legal subject. He based his conclusions, in essence, on two main arguments. On the one hand, he observed that the Member States’ practice—including the practice relating to the revisions of EU treaties—confirms that they never intended to endorse the view that the EU’s legal nature has evolved from an international organisation proper into something else. Secondly, he emphasised that the ECJ itself has always refrained from formulating any objection regarding the legal nature of the EU as an international organisation. See de Witte 2011, pp. 21–42. In his conclusions to the same volume, however, Joseph Weiler made a strong case in favour of the federal evolution of the EU by arguing that one need not to look at its formal origins—i.e. the EU being based on an international treaty concluded among States—but on its content and its substantive meaning. By means of an illuminating genealogical analogy, he observed the following: “there were apes. Then there were apes with a lot less hair—but they are still apes with a lot less hair. Then they stood up straight. These are apes which stand up straight. Then they developed a power of reasoning greater than the primitive power of reasoning of even so-called ‘intelligent apes’—these are simply apes with superior power of reasoning. Genealogically, all this is correct. It is possible to describe humans as ‘advanced apes’, as ‘experimental apes’, but at a certain point, genealogy notwithstanding, it begins to make sense and there seems to be a substantive and substantial (rather than lexical) pay-off to speak of ‘humans’ rather than ‘apes’”. While recognising that the EU cannot be considered a federal state proper, he argued that the normative value of EU acts and their binding nature make it to some extent indistinguishable from a federal state despite originating from an instrument of international law. See Weiler 2011, pp. 266–269.
- 43.
See the considerations made in Sect. 5.2.1.
- 44.
See Sect. 2.2.
References
Barnhoorn LANM, Wellens KC (eds) (1995) Diversity in Secondary Rules and the Unity of International Law. T.M.C. Asser Press, The Hague.
Cannizzaro E (2013) Beyond the Either/Or: Dual Attribution to the European Union and to the Member State for Breach of the ECHR. In: Evans MD, Koutrakos P (eds) The International Responsibility of the European Union. Hart Publishing, Oxford/Portland, OR, pp. 295–312.
Castellarin E (2017) La participation de l’Union européenne aux institutions économiques internationales. Editions Pedone, Paris.
Contartese C (2017) The Autonomy of the EU Legal Order in the ECJ’s External Relations Case Law: From the “Essential” to the “Specific Characteristics” of the Union and Back Again. Common Market Law Review 54:1627–1671.
Cremona M (2010) Disconnection clauses in EU law and practice. In: Koutrakos P, Hillion C (eds) Mixed Agreements Revisited: The EU and its Member States in the World. Hart Publishing, Oxford, pp. 160–186.
d’Aspremont J (2011) The Multifaceted Concept of the Autonomy of International Organizations: A Challenge to International Relations Theories? In: Collins R, White ND (eds) International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order. Routledge, London, pp. 63–86.
De Witte B (2011) The European Union as an International Legal Experiment. In: de Búrca G, Weiler J (eds) The Worlds of European Constitutionalism. Cambridge University Press, Cambridge, pp. 19–56.
Dupont PE (2015) The Arbitration of Disputes Related to Foreign Investments Affected by Unilateral Sanctions. In: Marossi AZ, Bassett MR (eds) Economic Sanctions under International Law. T.M.C. Asser Press, The Hague, pp. 197–217.
Eeckhout P (2015) Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky. Fordham International Law Journal 38:955–992.
Ghodoosi F (2014) Combatting Economic Sanctions: Investment Disputes in Times of Political Hostility, A Case Study of Iran. Fordham International Law Journal 37:1731–1785.
Guzman AT (2013) International Organizations and the Frankenstein Problem. European Journal of International Law 24:999–1025.
Halberstam D (2015) It’s the Autonomy, Stupid! A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward. German Law Journal 16:105–146.
Hindelang S (2015) Repellent Forces: The CJEU and Investor-State Dispute Settlement. Archiv des Völkerrechts 53:68–89.
Klabbers J (2011) Contending Approaches to International Organizations: Between Functionalism and Constitutionalism. In: Klabbers J, Wallendahl Å (eds) Research Handbook on The Law of International Organizations. Edward Elgar, Cheltenham, pp. 3–30.
Koskenniemi M (2006) Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. U.N. Doc. A/CN.4/L.682.
Kuijper PJ (2013). Attribution – Responsibility – Remedy. Some Comments on the EU in Different International Regimes. Revue Belge de Droit International 47:57–77.
Odermatt J (2018a) Unidentified Legal Object: Conceptualising the European Union in International Law. iCourts Working Paper Series, No. 129.
Odermatt J (2018b) The Principle of Autonomy: An Adolescent Disease of EU External Relations Law? In: Cremona M (ed) Structural Principles in EU External Relations Law. Hart Publishing, Oxford/Portland, OR, pp. 291–316.
Pantaleo L (2016) Sanction Cases in the European Courts. In: Happold M, Eden P (eds) Economic Sanctions and International Law. Hart Publishing, Oxford/Portland, OR, pp. 171–196.
Rosas A, Armati L (2018) EU Constitutional Law: An Introduction. Hart Publishing, Oxford/Portland, OR.
Weiler J (1991) The Transformation of Europe. Yale Law Journal 100:2403–2483.
Weiler J (2011) Dialogical Epilogue. In: de Búrca G, Weiler J (eds) The Worlds of European Constitutionalism. Cambridge University Press, Cambridge, pp. 262–309.
Ziegler K (2011) International Law and EU Law: Between Asymmetric Constitutionalism and Fragmentation. In: Orakhelashvili A (ed) Research Handbook on the Theory and History of International Law. Edward Elgar, Cheltenham, pp. 268–327.
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Pantaleo, L. (2019). EU Investment Agreements as a Possible Paradigm for the Participation of the EU in International Adjudication. In: The Participation of the EU in International Dispute Settlement. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-270-5_6
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