PUBLIC INTERNATIONAL LAW IN THE EU COURTS British Institute of International and Comparative Law 28.2.2006

1. PUBLIC INTERNATIONAL LAW IN THE EU COURTSBritish Institute of International and Comparative Law28.2.2006 Allan Rosas Judge

2. 1. The EU Judicial System • Court of Justice of the European Communities (1952) • Court of First Instance (1988) • Civil Service Tribunal (2005) • - - - - - • National courts • - application of EU law • - questions of interpretation: Article 234 EC

3. 2. Sources of EU Law • Basic Treaties and other primary law • General principles of Community law • International agreements/customary international law • Secondary legislation • Implementing regulations and decisions

4. 3. The EC/EU as a Subject of International Law • Conclusion of international agreements • Explicit powers: Articles 111, 133, 152, 164, 174, 181, 181aEC; see also Article 300 EC (procedures) • Implied powers: AETR/ERTA, Case 22/70, [1971] ECR 263; Opinion 1/76 [1977] ECR 741; Opinion 1/03 of 7 February 2006 • Membership of international organisations

5. Respecting and influencing customary international law The Community "must respect international law in the exercise of its powers", Case C-286/90 Poulsen [1992] ECR I-6048; see also Case C-162/96 Racke [1998] ECR I-3655. Party to dispute settlement The Community's capacity to conclude international agreements "necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards the interpretation and application of its provisions", Opinion 1/91 EEA [1991] ECR I-6102.

6. 4. International agreements Direct applicability (monism) Case 181/73 Haegeman [1974] ECR 449 Direct effect ("self-executing") Example: Case C-265/03 Simutenko, judgment of 12 April 2005 No direct effect: WTO agreements, e.g. Case C-377/02 Van Parys, judgment of 1 March 2005; concerning Council of Europe Convention No 87 (Protection of Animals Kept for Farming Purposes), Case C-1/96 [1998] ECR I-1251 Primacy over secondary law Judgment of 10 January 2006, International Air Transport Association, C-344/04, para. 35: "In accordance with the Court's case-law, those agreements prevail over provisions of secondary Community legislation (Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 52, and Case C-286/02 Bellio F.lli [2004] ECR I-3465, paragraph 33)."

7. Mixed agreements Community law? Case C-239/03 Commission v France [2004] ECR I-12013 Pending Case C-459/03 Commission v Ireland International responsibility Duty of co-operation Case C-25/94 Commission v Council [1996] ECR I-1469 EC succession GATT: Joined Cases C-21-24/72 International Fruit Company [1972] ECR 1219 UN Charter: Cases T-306/01 Yusuf and T-315/01 Kadi, judgments of 21 September 2005, pending before ECJ

8. 5. Deference to international courts and tribunals ? EFTA Court Case C-192/01 Commission v Denmark [2003] ECR I-9693 (citing EFTA Court judgment of 5 April 2001 in Case E-3/00): 52. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (see, to that effect, EFTA Surveillance Authority v Norway, paragraph 31). 53. Such measures must not be allowed unless they are non- discriminatory and objective (see, to that effect, EFTA Surveillance Authority v Norway, paragraph 32).

9. ECHR Different phases: - fundamental rights outside the competence of the ECJ - fundamental rights as part of the general principles of Community law (since 1969) - explicit reference to the ECHR (since 1974-75) - characterisation of the ECHR as having "special significance" (since 1989) - reference to individual judgments of the Court of Human Rights (since the mid-1990s)

10. Case C-94/00 Roquette Frères [2002] ECR I-9011: 29. For the purposes of determining the scope of that principle in relation to the protection of business premises, regard must be had to the case-law of the European Court of Human Rights subsequent to the judgment in Hoechst. According to that case-law, the protection of the home provided for in Article 8 of the ECHR may in certain circumstances be extended to cover such premises (see, in particular, the judgment of 16 April 2002 in Colas Est and Others v. France, not yet published in the Reports of Judgments and Decisions, § 41) and second, the right of interference established by Article 8 (2) of the ECHR might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case.

11. ICJ Case C-286/90 Poulsen: 10. In this connexion, account must be taken of the Geneva Conventions of 29 April 1958 on the Territorial Sea and the Contiguous Zone (United Nations Treaty Series, vol. 516, p. 205), on the High Seas (United Nations Treaty Series, vol. 450, p. 11) and on Fishing and Conservation of the Living Resources of the High Seas (United Nations Treaty Series, vol. 559, p. 285), in so far as they codify general rules recognized by international custom, and also of the United Nations Convention of 10 December 1982 on the Law of the Sea (Third Conference of the United Nations on the Law of the Sea ° Official Documents, vol. XVII, 1984, Document A/Conf. 62/122 and corrections, hereinafter "the United Nations Convention on the Law of the Sea"). It has not entered into force, but many of its provisions are considered to express the current state of customary international maritime law (see judgments of the International Court of Justice in the Delimitation of the Maritime Boundary in the Gulf of Maine Region Case, Canada v United States of America, ICJ [1984], p. 294, paragraph 94; Continental Shelf Case, Libyan Arab Jamahiriya v Malta, ICJ [1985], p. 30, paragraph 27; Military and Paramilitary Activity in and against Nicaragua Case, Nicaragua v United States of America, substantive issues, ICJ [1986], p. 111-112, paragraphs 212 and 214).

12. Case C-162/96 Racke: 24. By way of a preliminary observation, it should be noted that even though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62, reflect the rules of international law which lay down, subject to certain conditions, the principle that a change of circumstances may entail the lapse or suspension of a treaty. Thus the International Court of Justice held that '[t]his principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances' (judgment of 2 February 1973, Fisheries Jurisdiction (United Kingdom v Iceland), ICJ Reports 1973, p. 3, paragraph 36). 49. The rules invoked by Racke form an exception to the pacta sunt servanda principle, which constitutes a fundamental principle of any legal order and, in particular, the international legal order. Applied to international law, that principle requires that every treaty be binding upon the parties to it and be performed by them in good faith (see Article 26 of the Vienna Convention). 50. The importance of that principle has been further underlined by the International Court of Justice, which has held that `the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases' (judgment of 25 September 1997, Gabcíkovo- Nagymaros Project (Hungary v Slovakia), at paragraph 104, not yet published in the ICJ Reports).

13. Case T-306/01 Yusuf: 233. As regards, second, the relationship between the Charter of the United Nations and international treaty law, that rule of primacy is expressly laid down in Article 103 of the Charter which provides that, '[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'. In accordance with Article 30 of the Vienna Convention on the Law of Treaties, and contrary to the rules usually applicable to successive treaties, that rule holds good in respect of Treaties made earlier as well as later than the Charter of the United Nations. According to the International Court of Justice, all regional, bilateral, and even multilateral, arrangements that the parties may have made must be made always subject to the provisions of Article 103 of the Charter of the United Nations (judgment of 26 November 1984, delivered in the case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports, 1984, p. 392, paragraph 107).

14. 234. That primacy extends to decisions contained in a resolution of the Security Council, in accordance with Article 25 of the Charter of the United Nations, under which the Members of the United Nations agree to accept and carry out the decisions of the Security Council. According to the International Court of Justice, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement (Order of 14 April 1992 (provisional measures), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), ICJ Reports , 1992, p. 16, paragraph 42, and Order of 14 April 1992 (provisional measures), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), ICJ Reports, 1992, p. 113, paragraph 39).

15. 282. The indirect judicial review carried out by the Court in connection with an action for annulment of a Community act adopted, where no discretion whatsoever may be exercised, with a view to putting into effect a resolution of the Security Council may therefore, in some circumstances, extend to determining whether the superior rules of international law falling within the ambit of jus cogens have been observed, in particular, the mandatory provisions concerning the universal protection of human rights, from which neither the Member States nor the bodies of the United Nations may derogate because they constitute intransgressible principles of international customary law' (Advisory Opinion of the International Court of Justice of 8 July 1996, The Legality of the Threat or Use of Nuclear Weapons, Reports 1996, p. 226, paragraph 79; see also, to that effect, Advocate General Jacobs's Opinion in Bosphorus, paragraph 239 above, paragraph 65).

16. WTO Case C-245/02 Anheuser-Busch [2004] ECR I-10989: 49. The effect of Article 70(1) of the TRIPs Agreement is merely to exclude the imposition of obligations under that agreement in respect of acts which occurred' before its date of application but it does not exclude such obligations in respect of situations which continue beyond that date. By contrast, Article 70(2) of the TRIPs Agreement states that the obligations arising from that agreement apply in respect of all subject-matter existing ... and which is protected' on the date of application of that Agreement to a Member of the World Trade Organisation (the WTO'), so that, from that date, such a member is required to fulfil all the obligations arising from that agreement in respect of that existing subject-matter (see also, to that effect, the Report of the WTO Appellate Body, issued on 18 September 2000, Canada - Term of Patent Protection (AB20007), WT/DS170/AB/R, paragraphs 69, 70 and 71). 67. Article 16 of the TRIPs Agreement confers on the proprietor of a registered trade mark a minimum standard of exclusive rights agreed at international level which all the members of the WTO must guarantee in their domestic legislation. Those exclusive rights protect the proprietor against any infringements of the registered trade mark that may be committed by non- authorised third parties (see also the Report of the WTO Appellate Body, issued on 2 January 2002, United States - Section 211 of the Omnibus Appropriations Act (AB20017) WT/DS/176/AB/R, paragraph 186).