Tutorial 3
Tutorial 3
Tutorial 3
ch. 1.6
ch. 2.1 t/m 1.1.6
ch. 2.7
1.6 International Law Fundamentals
● Importance of international law fundamentals
○ It reaches out to citizens in a state in order to provide protection against
organs and institutions of the said state.
● International (public) law
○ Relates to all rules and principles between interactions of internationally
recognized legal persons
■ Internationally recognized legal persons: states and international
organizations
Legal Persons
● Relates to all rules and principles between interactions of internationally
recognized legal persons
● Internationally recognized legal persons: states and international
organizations
To be a legal person:
○ Agreements (treaties),
○ Establish international organizations,
○ Be held responsible for wrongful acts, and
○ Be held accountable for violations of the same international legal
standards such as treaties and customary law.
Main features International Public Law
● States operate as sovereign entities
○ Therefore cannot be sued
○ Therefore cannot be disciplined with an (international) police force
○ Cannot be kept to their obligations under international law by force or might
This shows a difference between National Public Law and International Public
Law
● Obligations can be enforced internally by the state
○ Reason: same state sovereignty
● United Nations
○ Related to them are, WHO, UNHCR, UNESCO
○ Others such as, WTO (for trade issues), ILO (for labour issues)
● The United Nations consists of
○ A General Assembly
■ All states-members meet
○ An important forum for resolving disputes in a peaceful manner
○ The International Court of Justice (ICJ)
■ Can give advisory opinions, they are authoritative, but not binding international law
Constituting Treaty: EU scale p.47?
Important examples are the EU, NATO and the Council of Europe
● When the Council takes decisions with respect to threats to the peace, breaches of
the peace and acts of aggression, these decisions may include boycotts or the use
of force (by one or more of its members under UN mandate)
Permanent members are: Chine, France, Russia, the UK and the US.
They have a right of veto.
Federal states can be held responsible for unlawful acts or omissions by their States
● To the extent that a state may be responsible despite the government not being in a
position to prevent it.
○ Exceptional cases are when the individual is held responsible in the international domain,
○ International domains
■ e.g. International Criminal Court,
○ Special international tribunals
■ e.g. former Yugoslavia tribunal
Military
● Military conflicts and the conduct of war are separate issues
● National constitutions separate competences to different actors to
○ declare war
○ engage in military conflicts
○ defend the nation in military circumstances and emergencies
○ commit military and armed troops to situations abroad
■ e.g. Security Council mandated military missions
Union’s victory over Confederates in the Civil War, have set up a permanent federal
system of government for the entire country where its power is defined in its
Constitution.
1.1.3. Popular versus State Sovereignty
● US
○ Civil war
○ Pertinent case law of the Supreme Court
■ Denied the right of independence for individual States
● Germany
○ Basic Law
■ Explicitly based on sovereignty of German people
○ No constitutional right of secession
● Scottish referendum
○ A right to independence/ secession of part of the territory of a state
■ Only with permission of UK legislature
■ Outcome would have been respected and honoured.
Also happening in Spain with Catalonia.
Spain: not a federal but a unitary state
1.1.4. Parliamentary Sovereignty
● The United Kingdom has a ‘King/Queen-in-Parliament’
○ Construction whereby bills are adopted by Parliament, then receive royal assent from
monarch
○ Sovereignty of Parliament
■ Legislative supremacy
○ Acts of Parliament are the highest law of the land
■ Statues made by Parliament with royal consent
■ Nothing invalidates the law
■ Only King/Queen-in-Parliament can undo previous legislation
1.1.5. The Absence of Sovereignty
● Netherlands
○ Constitutional law does not occupy itself with sovereignty in whatever meaning
○ In order not to get involved with the
■ Republicans
■ Royalists
■ Clericals
○ Dutch Constitution does not hold any preambles
○ Functions as a democratic constitutional monarchy with a parliamentary system
governed by the rule of law.
1.1.6. Sovereignty and European Integration
● EU compromises out of states
● EU Law
○ Generated direct effect in member states
○ Has supremacy over conflicting national provisions, irrespective of how member states
otherwise treat international treaty commitments.
● European Court of Justice case law
○ Member states give up their state power
○ US Supreme Court use likewise phrases and claimed supremacy of federal laws
● EU only holds power that the member states have conferred upon
○ TEU Art. 5(2)
○ A treaty all voluntarily and unanimously ratified
1.1.6. Sovereignty and European Integration
● European framework
○ Treaties have domestic constitutional implications
○ Some constitutions have a ‘Europe Clause’
■ e.g. Germany & France
● From national perspective
○ Europe-friendly constitution can be a supreme constitution
○ To reconcile EU claims to supremacy with national claims to sovereignty
■ Arguments: meaning of sovereignty
○
2.7. The European Union
TEU, TFEU and EMU
1. Copenhagen criteria
a. Admission criteria for new member states, rule of law, viable market economies
2. Participation
a. ≥2 years in the European Exchange Rate Mechanism
3. Admission to the euro
i. 20 members adopted the use of euro
b. Under obligation to strive for the third stage
● European Parliament
○ 705 members
■ Directly elected by EU citizens every 5 years
○ Plays a role in EU lawmaking
■ Budget
■ Holding the Commission accountable
■ exercising oversight over other EU institutions
○ TEU
■ Art. 14
○ TFEU
■ Art. 233 to 234
2.7. The European Union
EU institutions
● The Council
○ Consists of representatives of the member states (Ministers)
○ Operates with qualified majority decision-making
○ The joint legislator with the European Parliament
○ TEU
■ Art. 16
○ TFEU
■ Art. 237 to 243
2.7. The European Union
EU institutions
● The Commission
○ 27 members
○ Supervises the execution of EU law
■ Ensures external representation of the EU
○ Exclusive right to initiative of lawmaking
○ Operate independently from member states
○ Promotes general interest of EU
○ Appointment
■ President and members are appointed by the European Council, after involvement and agreement of
European Parliament
● Parliament may adopt a motion of censure, leads to dismissal of the Commission
○ One member is entrusted with task of conducting foreign affairs and security policy
○ TEU
■ Art. 17 & 18
○ TFEU
■ Art. 224 to 250
2.7. The European Union
EU institutions
● The Judiciary of the EU comprises the Court of Justice
○ General Court & specialized courts
○ One member per member state
○ TEU
■ Art. 19
○ TFEU
■ Art. 251 to 281
2.7. The European Union
EU institutions
● The European Central Bank (ECB)
○ Compromised out of
■ National central banks
■ The European System of Central Banks (ESCB)
○ Conduct the monetary policy of the EU
○ ESCB led by ECB
■ ECB has the monopoly over issuing euro coins and notes
○ Consists of
■ Six members of the Executive Board
● Executive Board, appointed by European Council for 8 years, without re-apointments
■ Presidents of central banks of the euro states
○ TFEU
■ Art. 282-284
2.7. The European Union
EU institutions
● The Court of Auditors
○ To check EU funds are collected and used correctly, improve EU financial management
○ Members are appointed by the Council, serve 6-year term (renewable)
○ TFEU
■ Art. 285 and following
2.7. The European Union
Eurozone
● EU member states that have adopted the euro as their currency
● Eurozone members represented by
○ Their finance ministers
○ Heads of state/heads of government
● Eurogroup
○ To take political decisions for the Eurozone and the euro
○ Legal basis of Eurogroup
■ Lisbon Treaty, Protocol No. 14
○ Select their own president for renewable term of 2 ½ years
○ TFEU provides, when dealing with Eurozone issues in Council formation ECOFIN, only 20
minister of euro countries may vote
■ TFEU
● Art. 136
2.7. The European Union
EU Charter
● TEU: Article 6
○ Refers to Charter of Fundamental Rights as a Bill of Rights
■ Which is binding upon the EU and member states when they operate within EU law
○ Human Rights protected by ECHR
○ Found in common constitutional traditions of the member states are also part of EU law as general
principles of law
○ Proclaims, EU will accede to ECHR and its supervisory mechanism
○ Accession treaty was negotiated between EU and Council of Europe
■ 2015, Court of Justice issued negative opinion
● Further negotiations will be necessary
● Accession in immediate future not likely
2.7. The European Union
Supremacy of EU law
● No specific reference to supremacy of EU law
○ But, TFEU Art. 288
■ Regulations are binding and applicable in all member states
■ Directives are binding as to the result achieved
■ Decisions are binding
○ Court of Justice
■ Possesses variety of powers to decide on infringement of EU law and validity of secondary
EU law
● Preliminary rulings in this respect are requested by national courts in the course of
national court proceedings
○ TFEU Art. 267
2.7. The European Union
Supremacy of EU law