Week 5

Question 1

Treaty of Westphalia

Answer 1

*Established that the state is sovereign, is the only entity that can enter into treaties, and decide how to apply international law domestically
* Treaty-making powers afforded solely to the state as it is sovereign
*Treaties should not be seen as limitations to state’s sovereignty, rather as an extension of their sovereignty as the ability to enter into treaties comes from the sovereignty of a state and its right to choose for itself

Question 2

The horizontal separation of powers and treaty-making

Answer 2

• Between the executive and legislative
  *Executive: Traditional way used by states. Presidents and PM’s will enter into treaties themselves.Art 7 VCDR points to executive powers in treaty-making. In this sense, foreign affairs (thus, the wing that mainly focuses on treaties) is controlled by the executive
• Legislative: If the treaty affects legislative power-making, creates, or sets aside legislation, and/or effects the citizens of a country by which the legislature is directly elected to represent them, then the legislative wing of the state may/must get involved

Question 3

Treaty-making powers within the US

Answer 3

• In the US, Art 1(1) of the Constitution stipulates that no state can enter into any treaty, alliance, or confederation
  *Thus, while sub-units in the US federation have a great deal of power, they cannot on their own enter into external treaties
  *Usually, the executive of the federal country can make a treaty about the legislative powers of the sub-units, but not about the legislative powers of the federal legislature itself

Question 4

Treaty-making powers within Germany

Answer 4

• In Germany, Art 32(3) of the German Basic Law affords states treaty-making powers, but must have the consent of the Federal Government, thereby ensuring Germany still has one unified foreign policy

Question 5

Treaty-making powers within Belgium

Answer 5

*In Belgium, Art 128(1) of the Constitution allows the French-speaking Community (states) to engage in their own treaties, and the Flemish-speaking Community can conclude their own as well
* So, in Belgium you may have to conclude more than one treaty
*One with the federal government, and one with the Community it may concern
*This is the only example where states can conclude their own international treaties without the consent of the government

Question 6

How to conclude a treaty?

Answer 6

• To conclude a treaty, and thus, for it to have effect in the country, you must first sign then ratify the treaty
• Treaty only enters into force after ratification
  *Signing and ratifying is usually done by the executive - e.g., Art 146(4) Polish Constitution gives power to the “Polish government” to sign and ratify a treaty

Question 7

How to approve a treaty?

Answer 7

• This is usually where the legislature gets involved
  *Art 2(2) of the US Constitution stipulates that “President shall have the power, by and with the advice and consent of the Senate, to make Treaties, provide two-thirds of the Senators present concur”
• Executive can sign the treaty, but before ratifying it, must get consent of two-thirds of senate (approval)
  *Legislative plays a key role here in the approving of treaties in the country
• Note executive agreement: something President can agree on without consent from legislation

Question 8

How to ratify a treaty?

Answer 8

• Back to (usually) the executive power, only after legislature approves the treaty
• E.g., Art 133 Polish Constitution
• President of the Republic […] shall ratify and renounce international agreements and shall notify the ‘Sejm’ and Senate thereof; The President of the Republic, before ratifying an international agreement, may refer it to the Constitutional Tribunal with a request to adjudicate upon its conformity to the Constitution

Question 9

Monism

Answer 9

• In a pure monist state, international law does not need to be translated into national law
• International law is simply incorporated into national law of a country one ratified, and thus has automatic effect
• Customary international law also has direct, automatic effect
• International law can be directly applied by a national judge, and can directly be invoked by citizens, just as if it were national law
• A judge can declare a national rule invalid if it contradicts international rules because, in some states, international rules have priority
  *In other states, like Germany, treaties have same effect as legislation, and by the principle of lex posterior derogat priori (later law > earlier law), treaties only take precedence over national legislation enacted prior to their ratification (but later legislation cannot conflict with the already-made treaty law)

Question 10

Dualism

Answer 10

• Dualists emphasize the difference between national and international law and require that international law be made into national law - thus, without creating international law as national law, it does not exist in the country’s system
• International law has to be national law as well, or it is no law at all
• If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law
• But one cannot claim that the treaty has become part of national law
• Citizens cannot rely on it and judges cannot apply it
• National laws that contradict it and remain in force
• Thus, all these make it that the state violates international law
• According to dualists, national judges never apply international law, only international law that has been made into national law
• International law and national law are different spheres, and so international law must be made into the national law sphere

Question 11

Transformation

Answer 11

• Agrees with dualist view of how international law must be transformed into the national sphere
• Transformism translates treaties ‘as such’
  *Can be literal translations or dynamic translations
• Basically, transformism directly translates the treaty into national law (transformation/translation into a national ‘Act’)
• For e.g., ECHR in Britain has been translated into the Human Rights Act
• So, citizens in the UK cannot invoke the ECHR, but rather the Human Rights Act that has just literally translated (i.e., transformed) the ECHR into the HRA
  *Essentially, transformism is a system where international law isn’t applicable as such in the legal order, citizens can’t be bound by international law itself nor international treaties themselves, but rather by the national acts that make those treaties into domestic law
• No application of international norms domestically as they are translated/transformed into the domestic legal norm of the country (by way of a national act)
  *No lex posterior (higher law [treaty] over lower law [national law]) exists in this view
  *Thus, in this system you can override treaty law
• E.g., new legislation can be made that contradicts the national act
• Also, transformism is unclear about how CIL is to be applied in such a country

Question 12

Incorporism

Answer 12

*Constitution gives basis to international norms
* Less extreme version of dualism, extra step for monism - somewhere in the middle of these two
* International law is applied domestically because the constitution says so, and with the exceptions the constitution says to apply
*Constitution may give rank to how the international law applies in the hierarchy of legal norms in the domestic legal system, or it may not give rank
* Essentially, incorporist systems recognize that international treaties, norms, and obligations are applicable domestically, but by the Constitution that allows it to be and places it in the domestic hierarchy of legal norms
* Thus, problems may exists in regard to the hierarchy and conditions of the international law
*Constitutions may also give (conditional) precedence to the application of international law
*See Estonian and French Constitutions
* Difference to monism: Constitutions claims to have authority in incorporism, while in monism the treaty itself is the authority

Question 13

Difference between monism and incorporism

Answer 13

• Monism stipulates that the international law is directly applicable while incorporism stipulates that international law need to be applied via the constitution that gives it a basis and outlines it rules for application
• Thus, under both systems, international rules have domestic legal effect and can override national provisions
  *However, they differ in that incorporism requires the constitution to give legitimacy and basis for the international law while monism requires nothing of the sort and international law is directly applicable once ratified
  *Further, under incorporism, if the constitution provides so, then not all international provisions may have domestic effect given the constitutional rules and basis
  *Moreover, in monism the executive signs and ratifies the treaty without Parliament (given the treaty does not affect legislation or citizens), while in incorporism, as the constitution is being (re)written to include the international law, Parliament must get involved

Question 14

Treaty-conform interpretation

Answer 14

• A treaty conform interpretation means that a judge would try to interpret the national law in conformity with the treaty law so it can be applied somehow.
• In an incorporist system, the treaty law itself is applied domestically with the Constitution allowing so, and thus accounting for the treaties place in the domestic system as an international norm.
• In the transformist system, the law is translated into the domestic system via legislation and made an equal part of the domestic legal system, thereby disallowing even applying international norms itself, and so there is no real treaty-conform interpretation as it is a regular domestic Act for judges to apply.
  *Transformism only works in the UK as they have parliamentary supremacy that allows the parliament to create new acts in conformity with older treaties

Question 15

Application of EU law in member states

Answer 15

• Constitutional law of member states is put aside if it conflicts with EU law
  *Monist view

Question 16

Explain the monist view/application of EU law

Answer 16

• EU law is its own autonomous legal order
  *Must have unity and effectiveness
  *EU law must be the higher norm to achieve unity and effectiveness
• EU law must be applied everywhere in the same way as well
  *EU law has its own ‘complete’ constitutional framework that is higher than the constitution of the member states
• EU law thus has primacy and direct effect
  *The CJEU is the ‘ultimate arbiter’
  *The EU says member states have given away parts of their sovereignty when they created it, and now it is an autonomous law-creating body.
• The EU makes laws, and those laws are directly applicable in all member states (basically, monism).

Question 17

Explain the EU self-limiting clause in Art 4(2) TEU

Answer 17

• EU law won’t apply if it clashes with an eternity clause in the constitution, identity of a country’s constitution
  *But must also pass the proportionality test that the CJEU decides on whether in this particular case a country can invoke Art 4(2) TEU
• There must be a “genuine and sufficiently serious threat to a fundamental interest of society” for EU law to be set aside under the self-limiting clause

Question 18

CJEU process for determining if EU law under self-limiting clause Art 4(2) TEU

Answer 18

• The CJEU cannot interpret national law itself, but only how EU law is applied in the member states
  *National courts must decide if a constitutional provision in question is part of the national identity
  *CJEU cannot determine what the constitutional identity of a member state is
  *So, they don’t have any say in this - if the national court says this provision that clashes with EU law has constitutional identity, then the CJEU must take it as is, and decide on…whether or not the concerns involved are serious enough to deviate from EU law
  *In a proportionality test, CJEU may decide that it is indeed part of your constitutional identity, but it is not serious enough to deviate from EU law or the opposite may happen

Question 19

Conformist responses to application of EU law

Answer 19

• Belgium, NL, Luxembourg
• Set aside constitution automatically
  *Primacy of self-executing treaties over national (constitutional) law

Question 20

Sovereigntist responses to application of EU law

Answer 20

*Germany, France, Poland
*Member state sovereignty is the basis of the applicability of EU law
* Fundamentally, EU law is not independent
*Limits to EU law exist such as sovereignty, democracy, human rights, rule of law
*These are all ultimately decided upon by the member state actors themselves on how to apply EU law

Question 21

UK Supreme Court application of EU law

Answer 21

*Sovereignty of parliament - parliament cannot be bound by previous acts of parliament, parliament rules are the highest norms, no court can set aside acts of parliament
*European Communities Act (1972): whatever law the EU creates is to be applied domestically, and thus you can go to Court for it
*This is the ‘treaty’ act that made the UK join the EU
* Most obvious version of an act of parliament that sets aside the later acts of parliament
* Creates very strong presumption that parliament wants to abide by the EU, and the courts should do their very best that no provisions collide with EU law
*Basically, parliament (which is sovereign) can make or unmake any law
* It has made the European Communities Act
* Thus, creating a new source of domestic law
*Case law could not entrench EU law within national law
*As long as it is applied, EU law was not actually independent

Question 22

German Constitutional Court application of EU law

Answer 22

• The EU is ‘an association of sovereign states’
• When Germany enters and makes decisions in the EU and the EU makes decisions for Germany, it is based on the will of the German people
  *To protect the constitutional identity of Germany and keep EU law in check, German constitutional courts have afforded themselves the right of ultra vires review and identity review
• The German constitutional court says we have given the EU the power to legislate, but we have not given away the constitutional court’s power to check if things are in accordance with the constitution

Question 23

GCC Ultra vires review

Answer 23

*If EU law goes past its limits, firstly it is up to the CJEU to police its own authority, but because German law is based on the constitution and GCC are guardians of the constitution, then it is up to the GCC to review the EU law and possibly scrap it (for example, if it clashes with an eternity clause in the constitution)
*German Constitutional Court gives itself the authority if the EU law is out of bounds only after check with the CJEU first
*Issue: This puts into question the supremacy of international norms and the limitation of sovereignty states agree to when joining the EU. As the EU legal order is autonomous, it should not be subject to ultra vires review by member states

Question 24

GCC Identity review

Answer 24

*Identity review is when a court determines if a treaty/rule is in correlation or violates the nation’s identity
*Essential characteristics of a country’s constitution
GCC will police the identity of the German Constitution
*Here, it is an absolute test
*If EU law were to violate any form of the German constitutional identity, then EU law has overstepped, and it is up to the GCC to decide this
* Opposite of proportionality test the EU gives when assessing if EU law collides with Constitutional identity of member states
*Thus, according to GCC, EU law has primacy primacy and direct effect, but limits exist in the identity review