Week 5B - Domestic Applicability of International and European Law

what are the 2 dimensions of sovereignty?

• internal sovereignty = supreme authority within a state’s territory

• external sovereignty = independence from outside authority

what does external sovereignty mean in international law

a state is an independent actor that cannot be forced to follow rules against its will

3 main sources of international law and how does external sovereinty apply to them?

1. Treaty = states are only bound by treaties they concluded

2. Customary law = if state implicitly accepted the customary law, if state consistenly objects to customary rule while it is following they are not bound by it

3. General principles of law = reeflect the concept of universal consent among sovereign nations

pacta sund servanda relevance to external sovereignty

• once a sovereign state chooses to sign a treaty it must honour it

what is a constitutional tension in treaty conclusion?

• in most countries the executive is responsible for international negotiates globally and sign treaties

• problem = if the executive can sign a treaty alone, they could theoretically bypass democratically elected parliament, and bypass domestic law through international law

• solution = most national constitutions state that before the executive can ratify a treaty they must get parliamentary approval

is approval of federal states necessary when concluding treaties?

• usually if a central government signs an international treaty concerning a topic that usually belongs to the regions (e.g., education or regional environment)

• the constitution often mandates that the federated states must also approve the treaty before the country can fully commit to it

does international law apply domestically out of its own motion?

1. International law = no, because of external state sovereignty but pacta sunt servanda

2. Constitutional law = no, because of external sovereignty

monist system

• international law and national law are one sphere

• international law is applicable in domestic legal system

dualist system

• international law and national law are two separate spheres

• international law needs to be transformed into the domestic legal system in order to be applicable in domestic law

conditional monism

• in between pure monism and dualism

• international law applies to the extent that the constitution permits it

what are 2 capacities of a state in external sovereignty?

• capacity to conclude treaties

• decide on internal applicability of international law = sovereign state has right to decide how and when international rules take effect within own borders (but pacta sunt servanda)

which international norms apply domestically in a dualist system?

• international law norms do not apply domestically

• both international treaties and unwritten international customary law need transformation into the domestic legal system

how is an international treaty transformed in a dualist system?

• case by case basis, each treaty has a specific act

• example = ECHR → human rights act UK

how is unwritten customary international law transformed in a dualist system?

• unwritten international law can be given precedence over national law in the constitution

• each specific provision of unwritten law does not need to be transformed,

• they are handled by general constitutional transformation

• example = art. 25 German Basic Law = The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws...

what is the difference between transformation of a treaty and transformation of customary international law in a dualist system?

• Treaties in a dualist system require a case-by-case transformation

• customary international law is often handled via a general, standing constitutional transformation so that judges can apply it automatically without waiting for Parliament to pass a specific statute for it

what is the reasoning behind the dualist model?

• external sovereignty = because the state is externally sovereign, no outside legal order like international law has the inherent authority to cross into the domestic realm on its own momentum

• only the state is bound = in dualism the only subjects of international law are states (and international organizations), not individual citizens, therefore an international treaty cannot be used in a domestic court by a citizen

what happens when domestically applicable international law collides with national law

• treaty transforming legislation ranks below the constitution

• treaty conforming interpretation = judges interprety domestic statute so htat it alligns with international treaty obligations

• lex posterior = transfomed treaty law has same rank as regular domestic statutes so it is subject to lex posterior

what is the problem with lex posterior in terms of transformed international law in dualist system

• If a domestic court applies a newer domestic law over an older transformed treaty, it solves the internal problem for the domestic judge

• However, it creates a massive external problem: the state is now in breach of international law on the global stage, violating the principle of pacta sunt servanda

example of a conditional monist system

NL

why does international law apply to the conditional monist model?

because the constitution allows it

what is another term for conditional monism

incorporist model

What happens when domestically applicable international law collides with national law in a conditional monist model?

• constitution determines hierarchy, conditions and effect

why does EU law apply domestically?

• EU law has direct effect (Van Gend and Loos)

• EU law is superior (Costa v ENEL)

• because the EU is a new legal order, which does not rely on national constitutions to give it power

• When EU member states signed EU treaties they limited their sovereign rights and created an independent body of law

what if EU law collides with member states constitutional law?

• EU law takes prescedence, because if national constitutions could overrule EU law the unity and effectiveness of the EU would fall apart

German constitutional court view on EU law prescedence over member state constitution

• argue that EU law only applies because their national constitution allows it to

• meaning the national constitution remains the ultimate supreme law acting as a safeguard in case EU oversteps its boundaries

how does supremacy of EU law relate to Member state sovereignty

• in international law external sovereignty allows the state to control its internal legal order

• EU challenges this traditional concept, if the CJEU is the ultimate arbiter and EU law can override national constitutions, do member states still possess absolute sovereignty

which system does EU law fit into (monism or dualism)?

neither

Internationale Handelgesellschaft 1970 case

• german court asked whether a piece of EU law can be struck down if it violated fundamental rights protected by the German Constitution

• The CJEU said no

• because EU law is an independent source of law, it does not flow from national constitutions

• if member states were able to choose when to ignore EU law, the entire legal basis of the EU would collapse

Opinion 2/13 (2014) Contitutional Autonomy of the EU

• the Eu was attempting to accede (join) the ECHR

• the CJEU blocked this accession protecting the EU legal order

• stating that the EU is not a typical organization, nor is it a traditional state

• CJEU ruled that it must preserve the specific features of EU law

• if the EU joined the ECHR an outside international court (ECtHR) would get the power to rule on EU obligations

• the CJEU argued this would destroy the autonomy of EU law and the fact that the CJEU is the ultimate arbiter and sole guardian of the EU legal order

EU’s absolute supremacy is…

pure monism

art. 4(2) TEU

• serves as the legal limit to the applicability of EU law within a member state

• acknowledges that the EU has primacy and direct effect

• when a member state believes that EU law violates its deepest constitutional values it can invoke art. 4(2), however the conditions in the article mist be fulfilled

• however, the CJEU is the “ultimate arbiter”, therefore the member state must convince the CJEU to agree and grant an exception based on art. 4(3)

derrogation clause of applicability of EU law

art. 4(3) TEU

CJEU is the…

ultimate arbitrer

what is the tension with concluding autonomous treaties in EU law?

• EU independent, autonomous legal order with its own supreme framwork

• this raises the question of whether a national constitution permits local leaders to sign a treaty that claim to override the national constitution itself

superentrenchment in the context of concluding EU treaties

• refers to core constitutional provisions that are legally impossible to alter or destroy even by a unanimous parliamentary vote

• prevents the government of the member state from giving away certain values of the constitution to the EU

eternity clauses

permanent unamendable parts of the constitution (superentrenchment)

example = human dignity or democracy in Germany

that can never be signed away by an EU treaty

what special procedures do national constitutions use before approving a new EU treaty?

• special majorities = requiring supermajority in parliament (2/3rd) instead of a simple majority

• referendums = forcing a public vote by the citizen before the executive can legally ratify major changes to EU treaties

what is the task of the constitutional courts when a new EU treaty is concluded?

• closely review the EU treaty before or immediately after the executive signs it

• to ensure the treaty does not violate eternity clauses, bypass parliamentary power or illegally overstep what the national constitution permits

which member states have accepted the autonomy of EU law

• NL, Belgium, Luxembourg

which states have had a condition when accepting autonomy of the EU law

• Germany, France (and more)

• sovereignty

• the power to conclude EU treaties is based on member states constitutions

• when making the treaties, MS governments and parliaments must inherently have been limited by their constitutions

• especially where eternity clauses are present

• EU law not fundamentally independent

German federal constitutional court argument against CJEU’s claim to absolute supremacy or pure monism

• after the Maastricht Treaty 1992 was signed, it was challenged by the German Constitutional Court

• the EU is an association of sovereign states rather than a single federal power

• authority was delegated to the EU by the member states through treaties

• EU does not apply in Germany out of its own motion, it only applies inside German territory because the German parliament passed a domestic law permitting it to do so

Reasons for why the German Constitutional Court goes against EU pure monism

1. Popular Sovereignty

• popular sovereignty is part of Germany’s eternity clause in art. 20(2)

• because all power belongs to the German people, the German government cannot just give that power away permanently to an unelected body in Brussels

• therefore, EU law is only legitimate because it tracks back to the will of the German people, who agreed to it through their democratically elected parliament.

2. Limited Specific attribution

• because of popular sovereignty Germany cannot hand over blank check to the EU

• When Germany signs an EU treaty, it can only transfer limited, specific, and clearly defined powers

• If the EU ever tries to pass a law that goes outside of these strictly defined boundaries, it has no democratic legitimacy from the German people, and it violates the German Constitution

ultra vires review

when a court determines whether an authority figure, government body, or corporation has acted outside the legal boundaries and powers explicitly given to them by law

what is the EU law friendliness article?

• german constitution art. 23

• accept that EU law has supremacy and direct effect over ordinary German legislation

• respect for the role of CJEU as primary arbitrer

• but this clause cannot be used to bypass eternity clauses

can the eu law friendliness article (art. 23) be used to violate eternity clauses?

no