Abstract
The main point made in this article concerns arguments about applying international law method in the EFTA pillar of the EEA. General international law does not support any reading down of treaty obligations and EU secondary legislation in the EFTA States of the EEA or the institutions of the EEA. Preserving national sovereignty in the fields covered by the EEA Agreement is not the object and purpose of the EEA Agreement. There is no institutional balance of the kind developed in the EU institutions and between them and the member states. Under international law, EEA obligations may go further for the EFTA States of the EEA, to the extent EEA principles of homogeneity and reciprocity or principles of EU law do not ameliorate this. Under the EEA judicial constitution, the EFTA Court bears the burden of maintaining the EEA principles of homogeneity and reciprocity in treaty interpretation.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Lowe (2008), p. 77.
- 2.
At p 79.
- 3.
At p 84.
- 4.
See for the traditional position in international law Island of Palmas (Netherlands, United States of America) (1928) 2 RIAA 829; (1928) 4 ILR 3; Antoine Goetz & Others v Republic of Burundi ICSID ARB/95/3 (Weil, President; Bedjaoui; Bredin) at 65; Visscher (1929), p. 735; Guggenheim (1953), p. 2; Giuliano (1956), p. 79; Lowe (2008), p. 77. As to notions of sovereignty in domestic law, see for English law Sedley (2015), pp. 23–69; and for French law Blum (1910), pp. 274–284; Conseil d’Etat 11 March 1910 Compagnie générale française des tramways Case No 16178; Conseil d’Etat 2 February 1987 Société TV.
- 5.
See The Wimbledon (1923) PCIJ Series A No. 1. See Crawford (2008), pp. 351, 354.
- 6.
See Kolb (2017), p. 4.
- 7.
Opinion of the Court of 14 December 1991 delivered pursuant to the second subparagraph of Article 228(1) of the EEC Treaty—Opinion 1/91, ECLI:EU:C:1991:490. The ECJ held that the first EEA Agreement had different aims and context from those of Community law. The ECJ quickly went on address the court system. There was a limited scope of the obligation to interpret the rules of the agreement in conformity with the Court’s case-law on the corresponding provisions of Community law. The homogeneity of the rules of law throughout the European Economic Area was not guaranteed. The jurisdiction of the EEA Court to rule on the respective competences of the Community and the Member States had unacceptable adverse effect on the autonomy of the Community legal system. It was deemed to be contrary to the Community legal order to enter into a treaty creating a judicial institution delivering decisions binding on the Community. This first EEA Agreement, which was the subject of the ECJ’s opinion, created a system liable to condition the future interpretation of the Community rules on free movement and competition which was in conflict with the foundations of the Community. The possibility for courts EFTA States to ask the EEA Court to interpret the agreement raised other problems, not the least the lack of binding effect of the EEA Court’s answers which was not permissible.
- 8.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM 679. Article 31, entitled ‘General rule of interpretation’ provides: ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. e context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. there shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.’ It would take up too much space also to cite Arts 32–33.
- 9.
In Opinion 1/91 the ECJ developed the difference between general public international law and EU law as the major ground for rejecting the first EEA Agreement. That the provisions of that agreement relating to the creation of the EEA and the corresponding EU treaty provisions are identically worded did not mean that they must necessarily be interpreted identically. The ECJ then stated that an international treaty is to be interpreted not only on the basis of its wording, but also in the light of its objectives. The ECJ compared the objectives of the provisions of this first version of the EEA Agreement and those of Community law. The first version of the EEA Agreement was concerned with the application of rules on free trade and competition in economic and commercial relations between the Contracting Parties. In contrast, in the EU, the rules on free trade and competition have developed and form part of the Community legal order, the objectives of which go beyond that of the first version of the EEA Agreement. The EU treaties aim to achieve economic integration leading to the establishment of an internal market and economic and monetary union and the objective of all the Community treaties is to contribute together to making concrete progress towards European unity.
- 10.
See about the reference procedure at that time Andenas (1994).
- 11.
Also, incidentally, part and parcel of the traditional principles of traditional international law: see e.g. Competence of the International Labour Organisation to Regulate the Work of Employers (1926) Series B, No 13, p. 18; Free Zones (1929), Series A, No 22, p. 13; Acquisition of Polish Nationality Case (1923), Series B, No 7, pp. 16–17; Exchange of Greek and Turkish Populations Case (1925) Series B, No 10, p. 25; Reparation for Injuries Case, ICJ Rep (1949), p. 184; Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53, 231; Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 64 at [49]. I develop this point later in the article, and it is central to my general argument.
- 12.
The ECJ had in Opinion 1/92 accepted the new EEA Agreement with the EFTA Court. On its own, the ECJ’s reasoning in Opinions 1/91 and 1/92 should resolve the matter discussed here.
- 13.
Golder v United Kingdom (Case No 4451/70) of the European Court of Human Rights of 21 February 1975.
- 14.
The (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222.
- 15.
See e.g. Tyrer v United-Kingdom (1978) 58 ILR 339, 353, Wemhoff v Germany, 27 June 1968, Series A No. 7, having been an early forerunner.
- 16.
Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163, paragraph 28. By 1980 even Sir Gerald Fitzmaurice was prepared to hold that the ECHR ought to ‘be given a reasonably liberal construction that would also take into consideration manifest changes or developments in the climate of opinion which have occurred since the Convention was concluded’: Separate Opinion of Judge Sir Gerald Fitzmaurice, National Union of Belgian Police (1980) 57 ILR pp. 262, 295.
- 17.
- 18.
The European Court of Human Rights has developed a doctrine of a national margin of appreciation, ever spurred on by the Member States, see Schabas (2015), p. 78. The United Nations treaties have no margin of appreciation, and no UN body has adopted the ECHR margin of appreciation jurisprudence. For instance, the UN Human Rights Committee in its views expressly rejected the doctrine as it has confirmed in its General Comment No. 34, Article 19 Freedoms of opinion and expression, CCPR/C/GC/34, (2011). See Schabas (2015), p. 83. Under similarly worded provisions or even wholly identical one the UN Human Rights Committee and the European Court of Human Rights can reach different outcomes on the same facts. As indeed in several cases, the UN Human Rights Committee may find a breach where the European Court of Human Rights does not. So this is an example that general international law may leave less freedom to states that the European legal order.
- 19.
Sejersted et al. (2011), p. 115.
- 20.
See Lauterpacht (1949), p. 48.
- 21.
See in this regard the classic Lauterpacht (1927).
- 22.
- 23.
For a recent analysis of margins of appreciation, see Weatherill (2017), p. 102.
- 24.
Bjorge (2014).
- 25.
The International Law Commission (ILC) has taken up different aspects of the matter in its ongoing study on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation. See, e.g., First Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation (G Nolte, Special Rapporteur), 65th Session, ILC, 19 March 2013, UN Doc A/CN.4/660 and Fourth Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation (G Nolte, Special Rapporteur), 68th Session, ILC, 7 March 2016, UN Doc A/CN.4/694.
- 26.
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 213.
- 27.
Bjorge (2015a).
- 28.
Bjorge (2015b), p. 181.
- 29.
Crawford (2012a), p. 117.
- 30.
Ibid., p 124.
- 31.
Ibid., p 122.
- 32.
Iron Rhine (2005) 27 RIAA 35, 64–67 and Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 213.
- 33.
Crawford (2012b), p. 214, footnote 57.
- 34.
See also the analysis by Lowe (2008), p. 77.
- 35.
Kolb (2017), p. 156.
- 36.
Linderfalk (2007), pp. 281–282.
- 37.
River Oder case (1929) PCIJ, Series A, No. 23, p. 26.
- 38.
Kronprins Gustaf Adolf, AJIL, vol. 26, p. 834.
- 39.
Lenaerts et al. (2014).
- 40.
Tridimas (2007).
- 41.
Ibid., p. 183.
- 42.
- 43.
References
Andenas M (1994) Article 177 references to the European court: policy and practice. Butterworths
Andenas M, Bjorge E (2012) L'application de la convention européenne de droits de l'homme: quel role pour le judge interne. Revue international de droit compare, pp 383–415
Andenas M, Bjorge E (2013a) National implementation of ECHR rights. In: Follesdal A et al. (eds) Constituting Europe: the European court of human rights in a national, European and global context. Cambridge University Press, chapter 6, pp 181–262
Andenas M, Bjorge E (2013b) The Norwegian court applies the ECHR by building upon its underlying principles. Eur Public Law 19:214–246
Arnull A (2006) The European Union and its court of justice, 2nd edn. Oxford University Press
Berman F (1996) Community law and international law: how far does either belong to the other? In: Markesinis BS (ed) The clifford chance lectures volume I: bridging the channel. Oxford University Press
Bjorge E (2014) The evolutionary interpretation of treaties. Oxford University Press
Bjorge E (2015a) Domestic application of the ECHR courts as faithful trustees. Oxford University Press
Bjorge E (2015b) Been there, done that: the margin of appreciation and international law. Camb J Int Comp Law 4:181
Blum L (1910) Conclusions. In: Conseil d’Etat 11 March 1910 Compagnie générale française des tramways Case No 16178; reported in 17 Revue du droit public, pp 274–284
Crawford J (2008) Treaty and contract in investment arbitration. Int Arbitr 24(351):354
Crawford J (2012a) Sovereignty as a legal value. In: Crawford J et al (eds) The Cambridge companion to international law. Cambridge University Press, p 117
Crawford J (ed) (2012b) Brownlie’s principles of public international law. OUP, p 214
Guggenheim P (1953) Traité de Droit international public tome I, Librairie de l’Université, p 2
Giuliano M (1956) I diritti e gli obblighi degli stati. CEDAM, p 79
Guillaume G (2006) Methods and practice of treaty interpretation by the international court of justice. In: Sacerdoti G et al (eds) (2006) The WTO at ten: the contribution of the dispute settlement system. Cambridge University Press, p 468–469
Kolb R (2017) Good faith in international law. Hart, p 4
Lauterpacht H (1927) Private law sources and analogies in international law. Longman
Lauterpacht H (1949) Restrictive interpretation and the principle of effectiveness in the interpretation of treaties. Br Yearb Int Law 26:48
Lowe V (2008) Sovereignty and international economic law. In: Shan W et al (eds) Redefining sovereignty in international economic law. Hart, p 77
Lenaerts K et al (2014) EU procedural law, Oxford EU law library. Oxford University Press
Linderfalk U (2007) On the interpretation of treaties. Springer, pp 281–282
Schabas WA (2015) The European convention on human rights: a commentary. OUP, p 78
Sedley S (2015) Lions under the throne: essays on the history of English public law. Cambridge University Press, pp 23–69
Sejersted F (2008) Norges rettslige integrasjon i EU. In: Norge og EU – rett og politikk. Nytt Norsk Tidsskrift 4/2008
Sejersted F (2009) Rett og politikk i europeiseringens tid. In: Norge og EU – rett og politikk. Nytt Norsk Tidsskrift 3-4/2009
Sejersted F, Arnesen F, Rognstad O-A, Foyn S, Kolstad O (2011) EØS-rett. Universitetsforlaget
Slynn L (1994) They call it teleological. Denning Law J p 225
Tridimas T (2007) The general principles of EU law, 2nd edn. Oxford University Press, Oxford
Visscher F (1929) L’arbitrage de l’Île de Palmas (Miangas). Revue du droit international et de législation comparée 10:735
Weatherill S (2017) The internal market as a legal concept, OUP, p 102
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Andenas, M. (2017). Sovereignty. In: Baudenbacher, C. (eds) The Fundamental Principles of EEA Law. Springer, Cham. https://doi.org/10.1007/978-3-319-45189-3_5
Download citation
DOI: https://doi.org/10.1007/978-3-319-45189-3_5
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-45188-6
Online ISBN: 978-3-319-45189-3
eBook Packages: Law and CriminologyLaw and Criminology (R0)