Sovereignty

Lowe (2008), p. 77.

At p 79.

At p 84.

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.

See The Wimbledon (1923) PCIJ Series A No. 1. See Crawford (2008), pp. 351, 354.

See Kolb (2017), p. 4.

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.

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.

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.

See about the reference procedure at that time Andenas (1994).

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.

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.

The (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222.

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.

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.

See in this regard e.g. Berman (1996) and Guillaume (2006), pp. 468–469; Bjorge (2014).

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.

Sejersted et al. (2011), p. 115.

See Lauterpacht (1949), p. 48.

See in this regard the classic Lauterpacht (1927).

See the analysis developed in Andenas and Bjorge (2013b), pp. 181–262; Andenas and Bjorge (2013a), pp. 214–246; Andenas and Bjorge (2012), pp. 383–415.

For a recent analysis of margins of appreciation, see Weatherill (2017), p. 102.

Bjorge (2014).

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 213.

Bjorge (2015a).

Bjorge (2015b), p. 181.

Crawford (2012a), p. 117.

Ibid., p 124.

Ibid., p 122.

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.

Crawford (2012b), p. 214, footnote 57.

See also the analysis by Lowe (2008), p. 77.

Kolb (2017), p. 156.

Linderfalk (2007), pp. 281–282.

Lenaerts et al. (2014).

Tridimas (2007).

Ibid., p. 183.

Neither do Lord Slynn (1994), p. 225 or Arnull (2006).

Sejersted (2008, 2009).