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Re-inventing the law of treaties: the contribution of the EC Courts1

Published online by Cambridge University Press:  07 July 2009

Jan Klabbers
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Extract

The European Community and the law of treaties together represent a rather vast topic, which can be approached from various angles. In this article, the topic will be studied from the angle of the law of treaties rather than that of Community law, and the reason is largely that recent developments in Community law shed an interesting perspective on the law of treaties.

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Articles
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Netherlands Yearbook of International Law , Volume 30 , December 1999 , pp. 45 - 74
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Copyright © T.M.C. Asser Press 1999

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References

3. Thus, the reader will look in vain for some of the more popular staples of the Community's foreign relations discourse. I will not address such issues as treaty-making competence, treaty-making procedure, mixed agreements, direct effect, or the muddled relationship between the Community and GATT/WTO.

4. Opel Austria GmbH v. Council, case T-115/94 [1997] ECR II-39.

5. A. Racke GmbH & Co v. Hauptzollamt Mainz, case C-162/96 [1998] ECR I-3655.

6. For more details, see Klabbers, J., ‘Protection of legitimate expectations in EC law deriving from an international agreement prior to its entry into force: the Opel Austria decision of the Court of First Instance’, 95 Lakimies (1997) pp. 732–742Google Scholar, as well my annotation to the Racke case, in 36 CMLRev. (1999) pp. 179–189.Google Scholar

7. I will usually refer to the law of treaties in a generic sense. Where codified provisions are mentioned, the reference is usually to the 1969 Vienna Convention on the Law of Treaties, in the full realization that the Community is neither a party to this convention nor to its 1986 counterpart, the Vienna Convention on the Law of Treaties concluded with or between International Organizations.

8. Indeed, international law as a whole plays but a minimal role in internal Community matters. See Timmermans, C., ‘The EU and public international law’, 4 EFAR (1999) pp. 181–194.Google Scholar

9. This is entirely justifiable under Art. 5 of the 1969 Vienna Convention, which leaves international organizations free to develop their own internal rules. Art. 5 is not relevant for the Community's external relations, nor for treaties concluded between Member States and third parties.

10. But see de Witte, B., ‘Retour à ‘Costa’: la primauté du droit communautaire à la lumière du droit international’, 20 Rev.trim.dr.Eu (1984) pp. 425–454.Google Scholar

11. Kuyper observes a certain irony, or so it seems, in the attempts ‘to base the exceptional character of the Community legal order on normal rules of treaty interpretation.’ See Kuyper, P.J., ‘The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969’, 25 Legal Issues of European Integration (1998) pp. 1–23, at p. 3 (emphasis in original).Google Scholar

12. For a recent example, see Ojanen, T., The European way: the structure of national court obligation under EC law (Helsinki, diss. Univ. of Helsinki 1998)Google Scholar. On interpretation of constituent documents generally (but excluding the EC), see Sato, T., Evolving constitutions of international organizations (The Hague, Kluwer Law International 1996).Google Scholar

13. de Witte, B., ‘Rules of change in international law: how special is the European Community?’, 25 NYIL (1994) pp. 299–333.CrossRefGoogle Scholar

14. Compare also the comprehensive analysis of GATT by Kuyper, P.J., ‘The law of GATT as a special field of international law’, 25 NYIL (1994) pp. 227–257.CrossRefGoogle Scholar

15. For an excellent analysis of this aspect of Art. 60 of the Vienna Convention, see Hutchinson, D.N., ‘Solidarity and breaches of multilateral treaties’, 59 BYIL (1988) pp. 151–215.Google Scholar

16. For an example, see Lijnzaad, L., Reservations to UN-human rights treaties: ratify and ruin? (Dordrecht, Martinus Nijhoff 1994).Google Scholar

17. This felicitous term was coined by Neff in order to pinpoint the status in law of what used to be CoCom. See Neff, S.C., Friends but no allies: economic liberalism and the law of nations (New York, Columbia University Press 1990) at pp. 145–146.Google Scholar

18. See e.g., Toth, A., ‘The legal status of the declarations annexed to the Single European Act’, 23 CMLRev. (1986) pp. 803–812.Google Scholar

19. Leaving aside treaties concluded by other entities, such as belligerents or liberation movements.

20. A history of the law of treaties has yet to be written, to my knowledge, but a possible indication is that, e.g., Grotius's handling of the law of treaties hardly appears outdated or unfamiliar. While some of the contents may have changed, the underlying structure of the law of treaties is readily recognizable. Cf., Grotius, , On the law of war and peace, Kelsey, transl., first published 1625, Book II (Oxford, Clarendon 1925)Google Scholar. See generally also Bederman, D.J., ‘Reception of the classical tradition in international law: Grotius' De Jure Belli ac Pacis’, 10 Emory ILR (1996) pp. 1–49.Google Scholar

21. It has been argued that due to its unitary, closed nature, the sovereign state emerged as the dominant form of political organization. See Spruyt, H., The sovereign state and its competitors (Princeton, Princeton University Press 1994).Google Scholar

22. As Weiler could still put it in 1983, ‘the non-unitary actor is an irritating nuisance from the point view of international law and the international legal order, dominated as they are by unitary states.’ See Weiler, J.H.H., ‘The external relations of non-unitary actors: mixity and the federal principle’, reprinted in his The constitution of Europe (Cambridge, Cambridge University Press 1999) pp. 130–187, at p. 159.Google Scholar

23. Most conspicuously so, perhaps, Fernando, Tesón, ‘The Kantian theory of international law’, 92 Columbia LR (1992) pp. 53–102Google Scholar. Compare also Slaughter, A.-M., ‘International law in a world of liberal states’, 6 European JIL, (1995)pp. 503–538.Google Scholar

24. Slaughter, A.-M., ‘The real new world order’, 76 Foreign Affairs (1997) pp. 183–197CrossRefGoogle Scholar. Weiler describes much the same phenomena within the Community under the heading of infranationalism. See Weiler, , The Constitution, op. cit. n. 22, esp. at pp. 96–99.Google Scholar

25. For further discussion and references, see Klabbers, J., ‘Executing Mr Breard’, 67 Nordic JIL (1998) pp. 357–364.Google Scholar

26. Case concerning the Vienna Convention on Consular Relations (Germany v. USA), Order, 3 March 1999 (not yet published), para. 28.

27. At the risk of stating the obvious, this ought not to be confused with the time-honoured notion that a state is generally responsible in international law for the behaviour of its organs and officials. The point is rather that the state is no longer the only addressee; sub-entities and officials (here the Governor of Arizona) are also directly spoken to.

28. The closest analogy is probably that of assignment, which finds a closer international counterpart however in the creation of rights for third parties.

29. See e.g., Carty, A., The decay of international law?: a reappraisal of the limits of legal imagination in international affairs (Manchester, Manchester University Press 1986)Google Scholar; also van Panhuys, H.F., ‘Conflicts between the law of the European Communities and other rules of international law’, 3 CMLRev. (1965–1966) pp. 420–449, at p. 422 (warning against a too facile assimilation of treaties and statutes).Google Scholar

30. Rosenne, S., ‘Is the constituent instrument of an international organization an international treaty?’, in his Developments in the law of treaties 1945–1986 (Cambridge, Cambridge University Press 1989) pp. 181–258, at p. 187.Google Scholar

31. In addition, as Atiyah has observed, with contracts involving the creation of, e.g., companies and therewith involving a large number of parties (as, indeed, is the case with multilateral treaties), ‘[c]ontract law has had a lot of trouble…’ Atiyah, P.S., Essays on contract (Oxford, Clarendon Press 1986) at p. 7.Google Scholar Multiparty transactions other than those creative of some institution or other, he notes, are ‘not common.’ (at p. 6). Treitel too treats multipartite agreements as special cases, acknowledging that they do not fit into traditional categories. Treitel, G.H., The law of contract, 9th edn. (London, Sweet & Maxwell 1995) esp. at p. 46.Google Scholar

32. Compare e.g., Brölmann, C., ‘The 1986 Vienna Convention on the Law of Treaties: the history of draft article 36bis’, in Klabbers, J. and Lefeber, R., eds., Essays on the law of treaties: a collection of essays in honour of Bert Vierdag (The Hague, Martinus Nijhoff 1998) pp. 121–140.Google Scholar

33. So, for instance, Hancher, L., ‘Constitutionalism, the Community Court and international law’, 25 NYIL (1994) pp. 259–298.CrossRefGoogle Scholar

34. The phrase (perhaps the concept as well) is borrowed from Deirdre, Curtin & Ige, Dekker, ‘The EU as a ‘layered’ international organization: institutional unity in disguise’, in Paul, Craig and Gráinne, de Búrca, eds., The evolution of EU law (Oxford, Oxford University Press 1999) pp. 83–136.Google Scholar

35. See e.g., Hauptzollamt Mainz v. Kupferberg, case 104/81 [1982] ECR 3641. Even where direct effect is absent, there may still be a duty to interpret in conformity with international law, as the Court held in Commission v. Germany, case C-61/94 [1996] ECR I-4006 esp. para. 52. See generally Heukels, T., ‘Von richtlinienkonformer zur völkerrechtskonformen Auslegung im EG-Recht: Internationale Dimensionen einer normhierarchiegerechten Interpretationsmaxime’, 2 Zeitschrfit für Europarechtlichen Studien (1999) pp. 313–333.Google Scholar

36. See generally Charme, J.S., ‘The interim obligation of Art. 18 of the Vienna Convention on the Law of Treaties: making sense of an enigma’, 25 George Washington Journal of International Law and Economics (1991) pp. 71–114.Google Scholar

37. Some doubts can be found by comparison to Lord, McNair's formulation of the principle, The law of treaties (Oxford, The Clarendon Press 1961) at p. 200Google Scholar. Compare also Philippe, Cahier, ‘L'obligation de ne pas priver un traité de son objet et son but avant son entrée en vigeur’, 1 Mélanges Fernand Dehousse (1979) pp. 31–37.Google Scholar

38. Arguably, inadvertently as much was realized by those authors who attempted to condemn certain practices after the conclusion of the comprehensive 1982 UN Law of the Sea Convention as being difficult to reconcile with the interim obligation. Instead of focussing on the object and purpose of the Convention as a whole (which was imperative given the delicate balance of rights and obligations contained therein), they felt compelled to focus on the object and purpose of individual treaty provisions, and in doing so effectively presumed the entry into force of the convention upon signature. An example is McDade, P.V., ‘The interim obligation between signature and ratification of a treaty: issues raised by the recent action of signatories to the Law of the Sea Convention with respect to the mining of the deep seabed’, 32 NILR (1985) pp. 5–47.CrossRefGoogle Scholar

39. For further elaboration, see Klabbers, J., ‘Strange bedfellows: the ‘interim’ obligation and the 1993 Chemical Weapons Convention’, in Myjer, E., ed., Issues of arms control and the Chemical Weapons Convention: obligations inter se and supervisory mechanisms (The Hague, Kluwer Law International 2000) forthcoming.Google Scholar

40. For a more detailed analysis, see Klabbers, loc. cit. n. 6. The interim obligation was also raised (but left undiscussed) in Danisco Sugar AB v. Allmänna Ombudet, case C-27/96 [1997] ECR I-6653.

41. Opel Austria, supra n. 4, para. 123.

42. Ibid.

43. In addition, whether applying a bad faith test or a legitimate expectations test, it seems farfetched to suggest (as the Court does) that Council's behaviour was such as to defeat the object and purpose of a agreement as large, comprehensive and complicated as the EEA agreement. See Klabbers, loc. cit. n. 6. Compare also Fischer's, P. annotation to Opel Austria in 35 CMLRev. (1998), pp. 765–781, at pp. 779–780.Google Scholar

44. Compare e.g., para. 92, where the Court observes, not without some innuendo, that the Communities were well aware what they were doing. See also Kuyper, loc. cit. n. 11, at p. 16.

45. Perhaps the most extensive discussion is by SirLauterpacht, Hersch, in his ‘First report on the law of treaties’Google Scholar. He neatly captured our problem by holding that the purpose of the interim obligation ‘is to prohibit action in bad faith deliberately aiming at depriving the other party of the benefits which it legitimately hoped to achieve from the treaty and for which it gave adequate consideration.’ See ILC Yearbook (1953/II) at p. 110.

46. See e.g., McDade, loc. cit. n. 38.

47. See Klabbers, loc. cit. n. 6.

48. See e.g., Erich, Kaufmann, Das Wesen des Völkerrechts und die Clausula Rebus Sic Stantibus (Tübingen, J.C.B. Mohr 1911) pp. 25–31.Google Scholar

49. So also the International Law Commission in the Commentary to its final draft articles on the law of treaties, ILC Yearbook (1966/II) esp. at p. 258.

50. The International Law Commission listed five such conditions: ‘(1) the change must be of circumstances existing at the time of the conclusion of the treaty; (2) that change must be a fundamental one; (3) it must also be one not foreseen by the parties; (4) the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty; and (5) the effect of the change must be to radically transform the scope of obligations still to be performed under the treaty.’ For good measure, the Commission decided to emphasize the exceptional character of the doctrine by framing it in negative form. Ibid., at p. 259.

51. See the Fisheries jurisdiction case (UK v. Iceland) ICJ Rep. (1973) p. 3, para. 45.

52. This is not to deny that the doctrine may be successfully invoked in diplomatic negotiations. See e.g., Lehto, M., ‘Succession of states in the former Soviet Union - Arrangements concerning the bilateral treaties of Finland and the USSR’, 4 Finnish YIL (1993) pp. 194–228Google Scholar. Still, if both parties agree to terminate a treaty due to a change of circumstances, there is little to distinguish the doctrine from termination by mutual consent. A similar point relating to material breach is made by Simma, B., ‘Termination or suspension of treaties: two recent Austrian cases’, 21 GYIL (1978) pp. 74–96.Google Scholar

53. See Racke, supra n. 5. For more detailed comments, see my note, loc. cit. n. 6 (CMLRev.).

54. For background, see Kuyper, P.J., ‘Trade sanctions, security and human rights and commercial policy’, in Marescau, M., ed., The European Community's commercial policy after 1992: the legal dimension (Dordrecht, Martinus Nijhoff 1993) pp. 387–422, esp. pp. 413–417.Google Scholar

55. Racke, supra n. 5, para. 57.

56. Perhaps more in line with the ideas of the ILC (compare supra n. 50), the International Court of Justice analyzed the doctrine in some detail in the Case concerning the Gabcíkovo-Nagymaros project (Hungary/Slovakia), decision of 25 September 1997, nyr, esp. para. 104, and placed considerable weight on the idea that the change of circumstances must have been unforeseen. Moreover, it confirmed that the negative and conditional wording of Art. 62 of the Vienna Convention meant that ‘the plea of fundamental change of circumstances be applied only in exceptional cases.’

57. Cf., Racke, supra n. 5, para. 56. For a critique, see Kuyper, supra n. 11, esp. at pp. 18–22.

58. Cf., the Fisheries jurisdiction cases, supra n. 51, and in particular the Gabcíkovo-Nagymaros case, supra n. 56.

59. See the ILC's final commentary, supra n. 49.

60. So e.g., Vierdag's, E.W.pre-advies to the Dutch Society of International Law under the title Spanningen tussen recht en praktijk in het verdragenrecht (Mededelingen No. 99) (Deventer, Kluwer 1989) pp. 74–87.Google Scholar

61. After all, unilateral sanctions demand either individual injury on the part of the Community, or put a premium on the existence of erga omnes obligations. Collective sanctions are of course possible, but the problem with this option was that the Community's suspension took place half a year before the UN Security Council ordained a trade embargo. For more details, see Klabbers, loc. cit. n. 6.

62. The Court claims as much in paras. 48 and 49, and therewith puts the case on its head.

63. Indeed, it is worthy of note that the Council itself was not terribly convinced of the viability of the rebus sic stantibus plea, presenting it only as an alternative argument. See the conclusion of Advocate-General Jacobs in Racke, supra n. 5, para. 51. Incidentally, Yugoslavia did initiate dispute settlement proceedings in GATT: see Kuyper, op. cit. n. 54, at p. 417.

64. The classic study when it comes to conflict between treaty norms is Binder, G., Treaty conflict and political contradiction: the dialectic of duplicity (New York, Praeger 1988)Google Scholar. Useful recent studies include Mus, J., Verdragsconflicten voor de Nederlandse rechter (Zwolle, Tjeenk Willink 1996)Google Scholar and Wilting, W.H., Vertragskonkurrenz im Völkerrecht (Cologne, Heymans 1996)Google Scholar. See also, more generally, Czaplinski, W. and Danilenko, G., ‘Conflict of norms in international law’, 21 NYIL (1990) pp. 3–42.CrossRefGoogle Scholar

65. This is Binder's central argument, op. cit. n. 64.

66. So e.g., Mus, op. cit. n. 64, at pp. 62–63.

67. On this latter point, see Vierdag, E.W., ‘The time of the conclusion of a multilateral treaty: Art. 30 of the Vienna Convention on the Law of Treaties and related provisions’, 59 BYIL (1988) pp. 92–111.Google Scholar

68. E.g., SirWaldock, Humphrey, ‘Third report on the law of treaties’, ILC Yearbook (1964/II) at p. 37Google Scholar; more explicitly also Mus, op. cit. n. 64, at p. 37.

69. Case concerning questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libya v. United Kingdom), request for the indication of provisional measures, [1992] ICJ Rep. 3, para. 38.

70. It finds confirmation in Art. 59 of the Vienna Convention, holding that a later treaty may serve to terminate an earlier one. But see Vierdag, loc. cit. n. 67.

71. For a wonderful example of such classification problems, see the 1992 Heathrow Airport User Charges arbitration (United States/United Kingdom), as reported in 88 AJIL (1994) pp. 738–744.Google Scholar

72. In a subtle way, it may also matter whether one looks at conflicting treaties through Community glasses or through the prism of the other treaty involved. For a demonstration, see Schermers, Henry G., ‘Constituent treaties of international organisations conflicting with anterior treaties’Google Scholar, in Klabbers and Lefeber, eds., op. cit. n. 32, at pp. 19–30.

73. See generally MacLeod, I., Hendry, I.D. and Hyett, S., The external relations of the European Communities: a manual of law and practice (Oxford, Clarendon 1996) pp. 229–231Google Scholar. See also Grimes, J.M., ‘Conflicts between EC law and international treaty obligations: a case study of the German telecommunications dispute’, 35 Harvard ILJ (1994) pp. 535–564.Google Scholar

74. Commission v. Italy, case 10/61 [1962] ECR 1.

75. Ibid., at p. 10.

76. The word ‘bipolar’ has been coined for such situations. See Bleckmann, A., ‘Zur Wandlung der Strukturen der Völkerrechtsverträge’, 34 Archiv des Völkerrechts (1996) pp. 218–236.Google Scholar

77. As amended at Amsterdam, the opening sentence now recognizes the dates of accession as the critical dates for those states who joined later.

78. Commission v. Italy, supra n. 74, at p. 10.

79. In a similar vein, Van Panhuys, loc. cit. n. 29, at p. 428.

80. Levy, case C-158/91 [1993] ECR I-4287, para. 13.

81. Ibid., para. 14.

82. Ibid., paras. 15–17.

83. Ibid., paras. 18–20.

84. It is, of course, not the Court's task to see to it that member states uphold their own international obligations (although it came close in Commission v. Germany, supra n. 35). Still, if at issue is whether an agreement contains obligations for the member states which may affect Community law, some discussion of the agreement concerned would not seem out of place.

85. Levy, supra n. 80, at p. 4292, reflecting the Commission's argument.

86. As Dashwood has observed, Hohfeldian analysis has only a limited value in public law. See Dashwood, A., ‘The limits of European Community powers’, 21 ELR (1996) pp. 113–128, at p. 114, n. 5Google Scholar. From this one may almost go so far as to say that where Hohfeldian analysis seems plausible, the underlying relationship is most likely of a contractual nature.

87. But see the discussion of Burgoa below, text accompanying notes 92–94.

88. As Vedder and Folz perceive it, there was a bit of an intellectual struggle in Levy on whether Art. 234 could also be usefully applied in non-reciprocal situations (such as with the ILO agreement in question). Advocate-General Tesauro tried to introduce an element of reciprocity, while the Court ‘sidestepped’ the debate by simply positing that Art. 234 applies to all treaties. See Vedder, C. and Folz, H.-P., ‘A survey of principal decisions of the European Court of Justice pertaining to international law in 1993’, 5 EJIL (1994) pp. 448–463, esp. at pp. 460–461.CrossRefGoogle Scholar

89. T. Port GmbH & Co. v. Hauptzollamt Hamburg-Jones, joined cases C-364/95 and C-365/95 [1998] ECR I-1023. See also the highly surprising decision in case Germany v. Council, C-280/93, [1994] ECR I-4973, in which the Court found itself precluded from taking GATT into consideration in assessing the legality of Community law, and Germany v. Council, case C-122/95, [1998] ECR I-973. For an extensive analysis of the former, see Österdahl, I., ‘Bananas and treaty-making powers: current issues in the external trade law of the European Union’, 6 Minnesota Journal of Global Trade (1997) pp. 473–532, esp. pp. 493–514.Google Scholar

90. T. Port, supra n. 89, para. 41. The same bipolar approach still underlies other recent decisions involving Art. 234 EC, such as ex parte Evans Medical Ltd and MacFarlan Smith Ltd case C-324/95, [1995] ECR I-563, RTE/ITP v. Commission, joined cases C-214/91 P and C-242/91 P [1995] ECR I-743, and Ex parte Centro-Com Srl v. HM Treasury and Bank of England, case C-124/95 [1997] ECR I-81.

91. This in turn would, of course, presuppose the direct effect of the treaty or provisions concerned. The Court, however, did not enter into the question of GATT's direct effect.

92. Attorney General v. Burgoa, case 812/79 [1980] ECR 2787.

93. Ibid., Advocate-General Capotorti's conclusion, at pp. 2811–2812.

94. Ibid. (Court), para. 11.

95. And it is this formula which is usually referred to, both by the Court and in scholarly works. See e.g., MacLeod et al., op. cit. n. 73, at p. 230.

96. Wolff, C., Jus gentium methodo scientifica pertractatum, Drake, transl., first published 1764 (Oxford, Clarendon 1934) at p. 193.Google Scholar

97. As De Witte puts it, treaties are rarely ‘purement intergouvernementaux’, supra n. 10, at p.428.

98. And provided always that they are cast in mandatory terms; compare Legal consequences for states of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), advisory opinion, [1971] ICJ Rep. 16, paras. 113–116.

99. These are to be distinguished, of course, from cases where neither Community law nor Charter law prescribe anything at all but a member state wishes to take unilateral action. On such cases, see the highly instructive conclusion of Advocate-General Jacobs in Commission v. Greece, case C-120/94 [1996] ECR I-1513, outlining a political question doctrine.

100. Compare Bohr, S., ‘Sanctions by the United Nations Security Council and the European Community’, 4 EJIL (1993) pp. 256–268.CrossRefGoogle Scholar

101. There are two ways to solve this particular problem. One is to argue that Community law obligations are not to be considered as obligations under a treaty, but rather obligations stemming from an autonomous source: the Community legislator. This puts perhaps too much of a premium on linguistic niceties, but has the benefit of being reconcilable with the supposed primacy of Community law. The other is to deny that the Community is anything more than the mouthpiece of its members, in which case the members themselves are fully responsible for acting in contravention of the Charter or Security Council resolutions.

102. Puissochet, J.-P., ‘The Court of Justice and international action by the European Community: the example of the embargo against the former Yugoslavia’, 20 Fordham ILJ (1997) pp. 1557–1576, at pp. 1570–1571Google Scholar. Compare also Jean-Pierre, Puissochet, ‘La place du droit international dans la jurisprudence de la Cour de Justice des Communautés Européennes’, in Ami, Barav et al. , Scritti in onore di Giuseppe Federico Mancini (Milan, Dott. A. Giuffrè Editore 1998) Vol. 2, pp. 779–807Google Scholar. Timmermans, loc. cit. n. 8, suggests much the same.

103. Perhaps it is relevant to observe here that as a Community institution, the Court is ‘institutionally disposed to uphold the validity of community measures against rules of international law’. See McGoldrick, D., International relations law of the European Union (London, Longman 1997) at p. 118.Google Scholar

104. Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others, case C-84/95 [1996] ECR I-3953.

105. Ebony Maritime SA & Loten Navigation Co Ltd v. Prefetto della Provincia di Brindisi & others, case C-177/95 [1997] ECR I-1111.

106. See in particular Bosphorus, supra n. 104, paras. 14 and 15, and para. 20 of Ebony Maritime, supra n. 105.

107. Ex parte Centro-Com, supra n. 90, para. 28.

108. On the necessity of such a ‘volonté distincte’ for much of the theory on international organizations, see Jan, Klabbers, ‘Presumptive personality: the European Union in international law’, in Koskenniemi, M., ed., International law aspects of the European Union (The Hague, Kluwer Law International 1998) pp. 231–253Google Scholar. See also Bederman, D.J., ‘The souls of international organizations: legal personality and the lighthouse at Cape Spartel’, 36 Virginia JIL (1996) pp. 275–377.Google Scholar

109. These are to be distinguished from cases where third parties are also involved, even if not directly affected, such as in Commission v. Italy, discussed above (text accompanying nn. 74–79). Similarly, see Henn & Darby, case 34/79 [1979] ECR 3795; Conegate Ltd v. HM Customs & Excise, case 121/85 [1986] ECR 1007, and Deserbais, case 286/86 [1988] ECR 4907.

110. Procureur Général v. Arbelaiz-Emazabel case 181/80 [1981] ECR 2961.

111. For an overview and analysis, see Churchill, R.R. and Foster, N.G., ‘European Community law and prior treaty obligations of Member States: the Spanish fishermen's cases’, 36 ICLQ (1987) pp. 504–524.CrossRefGoogle Scholar

112. The Court, interestingly, turned the question around, stating to have been asked ‘whether the international commitments … assumed by France affect the validity, and enforceability against Spanish nationals, of the Community regulations’ at issue. See Arbelaiz-Emazabel, supra n. 110, para. 11. This shift of focus may have made it easier for the Court to reach the conclusion that France's international commitments did not affect the validity of the Community regulations.

113. Ibid., para. 13.

114. Ibid., paras 17–19.

115. Churchill and Foster, loc. cit. n. 111, list five possible justifications: retrospective application of the 1980 agreement, a fundamental change of circumstances terminating the earlier ones, or modification by either a new customary rule, by informal agreement, or by subsequent practice. They conclude that none seems convincing (at p. 518).

116. Moreover, in the earlier Burgoa decision (supra n. 92, para. 24), the Court used the more neutral (or more nebulous, perhaps) phrase that the Community regime had been ‘superimposed’ on the earlier regime.

117. It is perhaps no coincidence that the Court refers to Kramer, joined cases 3, 4 and 6/76, [1976] ECR 1279, in which it had specified in para. 44 that during such interim periods, Member States may arrange their own international commitments but are under a duty not to enter into any commitment which could, as Advocate-General Capotorti formulated it, hinder the Community in the subsequent execution of the tasks entrusted to it. Arbelaiz-Emazabel, supra n. 110, paras. 8 & 9, and at p. 2988. The Court itself tersely claimed that the Member States' powers were ‘purely transitional’ and ‘lapsed upon expiry’ of the transitional phase (para. 9); there is no consideration whatsoever for the position of others.

118. Under Art. 30, para. 4(a), of the Vienna Convention, when a later treaty does not include all parties to the earlier one the earlier treaty applies only to the extent that it is compatible with the later treaty. Much the same would follow from applying the lex specialis rule which, while not codified in the Vienna Convention, is often held to form part of the customary law of treaties. See e.g., McNair, op. cit. n. 37, at pp. 219–220.

119. Exportur SA v. LOR SA and Confiserie du Tech, case C-3/91 [1992] ECR I-5529.

120. Ibid., conclusion of Advocate-General Lenz, para. 11.

121. A less than wholesale embrace would require, it seems, a justification as to why some treaties would be excluded from the lex posterior rule, and this would amount to proclaiming the supremacy of the excluded treaties, thus bringing the same circularity back in: EC law reigns supreme because, well, EC law reigns supreme.

122. Art. 41 of the 1969 Vienna Convention. The related phenomenon of anticipatory inter se application of a treaty prior to entry into force was one of the issues in the Oscar Chinn case before the Permanent Court of International Justice, [1934] PCIJ Ser. A/B, no. 63.

123. Perhaps for this reason, several authors have advocated the use of a provision à la Art. 307 EC (ex Art. 234), protecting the rights of third states as well as, one might add, those of individuals or companies where applicable. Compare e.g., Krück, H., Völkerrechtliche Verträge im Recht der Europäischen Gemeinschaften (Berlin, Springer 1977) at p. 136CrossRefGoogle Scholar. See also Churchill and Foster, loc. cit. n. 111, at p. 523.

124. Supra n. 4.

125. Supra n. 5.

126. Supra n. 92.

127. Supra n. 80.

128. Supra n. 110.

129. Supra n. 119.

130. Supra n. 89.