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General international law in the European Court of Justice: from hypothesis to reality?*

Published online by Cambridge University Press:  07 July 2009

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There is a considerable amount of literature on the place within the European Community legal order of international agreements concluded by the European Community as well as those concluded by the Member States, and this includes the case-law of the European Court of Justice (hereafter ‘the Court’) on the matter. Similarly, much has been written on the relationship between European Community law and the legal systems of the Member States and on the relationship between international law and national legal systems. In contrast, the place of non-treaty international law within the Community legal order has not been the subject of such extensive analysis, whether in the literature or in the case-law of the Court. It is the treatment by the Court of this kind of international law that is the subject of this paper.

Copyright © T.M.C. Asser Press 2000

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1. See e.g., Petersmann, E.-U., ‘Application of the GATT by the Court of Justice of the European Communities’, 13 CMLRev. (1983) p. 397Google Scholar; Hartley, T., ‘International Agreements and the Community Legal System: Some Recent Developments’, 8 ELRev. (1983) p. 383Google Scholar; Bebr, G., ‘Agreements Concluded by the Community and their Possible Direct Effect: from International Fruit Company to Kupferberg’, 20 CMLRev. (1983) p. 35Google Scholar; Völker, E.L.M., ‘The Direct Effect of International Agreements in the Community's Legal Order’, 1 Legal Issues of European Integration (1983) p. 131Google Scholar; Bourgeois, J., ‘Effects of International Agreements on European Community Law: Are The Dice Cast?’, 82 Michigan LR (1984) p. 1250CrossRefGoogle Scholar; Rideau, J., ‘Les accords internationaux dans la jurisprudence de la Cour de Justice des Communautés européennes: Réflexions sur les relations entre les ordres juridiques international, communautaire et nationaux’, 94 RGDIP (1990) p. 289Google Scholar; Cheyne, I., ‘International Agreements and the European Community Legal System’, 18 ELRev. (1994) p. 581Google Scholar; Hancher, L., ‘Constitutionalism, the Community Court and International Law’, 25 NYIL (1994) p. 259CrossRefGoogle Scholar; Kuyper, P. J., ‘The Community and State Succession in Respect of Treaties’, in Curtin, D. and Heukels, T., eds., Institutional Dynamics of European Integration: Essays in Honour of H. G. Schermers (Dordrecht, Martinus Nijhoff 1994) Vol. II, p. 640Google Scholar; Grimes, J.M., ‘Conflicts Between EC Law and International Treaty Obligations: A Case Study on the German Telecommunications Dispute’, 35 Harvard ILJ (1994) p. 535Google Scholar; Kaddous, C., ‘L'arrêt France c. Commission de 1994Google Scholar (accord concurrence) et le contrôle de la légalite des accords externes en vertu de l'art. 173 CE: la difficile réconciliation de l'orthodoxie communautaire avec l'orthodoxie internationale’, Cahiers de droit Européen (1996) p. 613Google Scholar; Eeckhout, P., ‘The Domestic Legal Status of the GATT: Interconnecting Legal Systems’, CMLRev. (1997) p. 11Google Scholar; Klabbers, J., ‘Re-inventing the Law of Treaties: The Contribution of the EC Courts’, 30 NYIL (1999) p. 45CrossRefGoogle Scholar; Hilf, M., Jacobs, F. G. and Petersmann, E.-U., eds, The European Community and GATT (Deventer, Kluwer 1986)Google Scholar; Macleod, I., Hendry, I. and Hyett, S., The External Relations of the European Communities: A Manual of Law and Practice (Oxford, Clarendon 1996) Chs. 4, 5 and 9Google Scholar; McGoldrick, D., International Relations Law of the European Union (London, Longman 1997) Ch. 7Google Scholar; Lenaerts, K. and van Nuffel, P., Constitutional Law of the European Union (London, Sweet & Maxwell 1999) pp. 550561.Google Scholar

2. This term, as used hereafter, includes both the Court of Justice and the Court of First Instance as described in Arts. 220, 221 and 225, formerly Arts. 164, 165 and 168a respectively, of the consolidated version of the Treaty Establishing the European Communities (hereafter ‘the EC Treaty’). Following the changes made in the Maastricht Treaty (1992), the jurisdiction of the Court was limited to matters arising out of the EC Treaty. Despite the Treaty of Amsterdam conferring jurisdiction on the Court over European Union decisions on police and judicial co-operation in criminal matters, the Court still deals mostly with the law relating to the EC Treaty. Therefore the reference in this paper will be to European Community law rather than European Union Law.

3. There are a few significant exceptions, but even those often involve greater consideration of treaties than general international law. See e.g., van Panhuys, J., ‘Conflicts between the Law of the European Communities and Other Rules of International Law’, 3 CMLR (1965/1966) p. 420Google Scholar; Meessen, K., ‘The Application of Rules of Public International Law Within Community Law’, 13 CMLRev. (1976) p. 485Google Scholar; Schermers, H., ‘Community Law and International Law’, 12 CMLRev. (1975) p. 77Google Scholar; Schermers, H. and Waelbroeck, D., Judicial Protection in the European Communities, 5th edn. (Deventer, Kluwer Law and Taxation Publishers 1992) pp. 100107Google Scholar; Lenaerts and van Nuffel, loc. cit. n. 1, at pp. 561–564.

4. The term ‘general international law’, has been the subject of criticism; see e.g., Weil, P., ‘Towards Relative Normativity in International Law’, 77 AJIL (1983) p. 413CrossRefGoogle Scholar. In this paper it is used to refer to international law other than treaty rules, and it includes includes customary law, judicial decisions, rules of jus cogens and resolutions of organs of the United Nations.

General principles of law, either within the meaning of Art. 38(1)(c) of the Statute of the International Court of Justice or as applied in the jurisprudence of the Court, are not treated separately in this paper, for two reasons. Firstly, the application of general principles by the Court derives not from international law but from ‘the constitutional traditions’ of the Member States of the Community and from the ‘inspiration’ provided by international treaties to which the Member States are parties, notably the European Convention on Human Rights. For discussion of the Court's treatment of general principles, see e.g., Lenaerts and van Nuffel, loc. cit. n. 1, at pp. 534–550. Secondly, the distinction between general principles of law in international law (to the extent that they form a distinct category of international law), and customary international law may be difficult to draw; see Elias, O. and Lim, C., ‘General Principles, ‘Soft’ Law and the Identification of International Law’, 28 NYIL (1997) p. 3.CrossRefGoogle Scholar

5. Hartley, T.C., Constitutional Problems of the European Union (Oxford, 1999) Ch. 7, especially at pp. 136137Google Scholar: ‘Three reasons may be suggested: first, the Court probably regarded international law as a weak and ineffective system, and wanted to distance Community law from it so that it would be possible to develop doctrines, such as direct effect and supremacy, that would make Community law more effective than international law had ever been; secondly, it wanted to avoid having to apply rules of international law in proceedings before it; thirdly, it thought that the methods of ‘interpretation’ [that it has applied] could be more easily put into practice if Community law were not regarded as part of international law’. For a rather passionate description of the superiority of community law over international law, see Pescatore, P., ‘International Law and Community Law: A Comparative Analysis’, 7 CMLRev. (1970) p. 167.Google Scholar

6. Meessen, loc. cit. n. 3. See also van Panhuys, loc. cit. n. 3, at pp. 424–426.

7. Meessen, loc. cit. n. 3, at p. 486.

8. Meessen, loc. cit. n. 3. For example, the Court has applied the principle that a Member State may not plead its internal law as an excuse for failure to comply with its obligations under the EC Treaty, see e.g., Commission v. Belgium (the Wood case), case 77/69 [1970] ECR 243, in which the Belgian government had argued that its failure to adapt its national law that imposed a tax on imported wood contrary to a provision of Community law was due to in ability to get a newly elected parliament to bring the law into line with Community law. No reference was made to the well-established principle of international law to the same effect, which was codified in Art. 27 of the Vienna Convention on the Law of Treaties (1969).

9. Case 26/62 [1963] ECR 1.

10. Ibid., at p. 12. The case also serves as an example of those cases involving an ‘innocent reference’ to international law. It had been argued before the Court that, in international law, treaty provisions were not self-executing in domestic legal orders to the extent that individuals could rely on those provisions before national courts, unless such a result was intended by the parties. In a ruling confirming the teleological approach adopted by the Court in its interpretation of the EC Treaty, the Court rejected that submission stating that it was necessary to consider ‘the spirit, general scheme and wording of those provisions’ in order to determine their effect. On this, it has been written that this conclusion is hardly disquieting for an international lawyer; see Schermers, loc. cit. n. 3, at pp. 78–79. This is so given that there are no non-derogable rules on the direct effect of international law (treaty provisions) in national legal orders. It is wellknown that practice on the status of international law within national legal systems varies from jurisdiction to jurisdiction. See e.g., SirJennings, R. and Watts, A., Oppenheim's International Law, 9th edn., Vol. 1 (London, Longman 1999) pp. 5481.Google Scholar

11. Case 6/64 [1964] ECR 585.

12. Ibid., at p. 593.

13. Commission v. Belgium and Luxembourg, cases 90–91/63 [1964] ECR 1217, at pp. 1232–1232. On this, Schermers, loc. cit. n. 3, at pp. 78–79, wrote that ‘this reasoning seems in conformity with international law. The same would apply to any other international community which has its own procedure for determining and adjudicating upon violations against its rules.’

14. Joined cases 21–24/72 [1972] ECR 1219.

15. As will be seen later, the significance of this case is not diminished for present purposes because the international law in question was a treaty rule, as the Court has applied this first condition in cases involving customary international law; see the discussion of Racke v. Hauptzollamt Mainz case in section 3.2.3 below.

16. Schermers, loc. cit. n. 3, at pp. 80–81.

17. See section 3.2.3 below.

18. See e.g., Schermers, loc. cit. n. 3, at p. 79.

19. Case 41/74 [1974] ECR 1337.

20. Simmonds, K., ‘Van Duyn v Home Office: The Direct Effectiveness of Directives’, 24 ICLQ (1975) p. 419, at p. 437.CrossRefGoogle Scholar

21. Meessen, loc. cit. n. 3, at pp. 485–486.

22. It should be noted that the same criticism is often made of other courts and tribunals applying international law. See e.g., the criticism by Sir Humphrey Waldock of the ruling by the International Court of Justice in the Anglo-Norwegian Fisheries case (ICJ Rep. (1951) p. 116Google Scholar) 28 BYIL (1951)Google Scholar and that of the same Court in the Military and Paramilitary Activities in and against Nicaragua (ICJ Rep. (1986) p. 14Google Scholar) by Mendelson, M. H., ‘The Nicaragua case and Customary International Law’, 26 Coexistence (1989) p. 85Google Scholar. This observation does not, however, diminish the truth of the proposition in the text above.

23. ICI v. Commission, case 48/69 [1972] ECR 619.

24. See para. 57 of his Opinion.

25. See para. 130 of the judgment.

26. See also Béguelin Import Co v. SACL Import Export, case 22/71 [1971] ECR 949; Walrave v. Union Cycliste Internationale, case 36/74 [1974] ECR 1405, at p. 1420, where the Court held that ‘a rule of Community law was applicable to legal relationships if ‘the place where they take effect’ is within the territory of the Community’.

27. Åhlström Osakehtiö v. Commission, Joined cases 89, 104, 114, 116 & 125–129/85 [1988] ECR 5193. For discussion of this case, see Lange, D.G.F. and Sadange, J.B., ‘The Wood Pulp decision and its implications for the scope of EC competion law’, 26 CMLRev. (1989) p. 137Google Scholar; Mann, F.A., 38 ICLQ (1989) p. 375CrossRefGoogle Scholar; Vedder, C., ‘A Survey of Principal Decisions of the European Court of Justice Pertaining to International Law’, 1/2EJIL (1990) pp. 365377.CrossRefGoogle Scholar

28. On the effects doctrine in international law, see Jennings and Watts, loc. cit. n. 10, at pp. 466–478.

29. At para. 18, p. 5243.

30. Vedder, loc. cit. n. 27, at p. 370, states that ‘The Court does not differentiate between the fulfilment of the conditions of Article 85 and the applicability of that rule under international law, the former being only the prerequisite of the latter. It does not clearly separate [sic] between the elements of an infringement of Article 85 under Community law and the question whether or not Article 85 applies to undertakings based outside the Community's territory. The Court is obviously of the understanding that ‘effects’ fall under the territorial jurisdiction because they are already a part of Article 85 of the Treaty, which it simply then applies.’ Thus the question of whether or not the Community has jurisdiction under international law is reduced to the mere application of Article 85 of the treaty.

31. See e.g., Craig, P. and de Burca, G., EU Law: Text, Cases and Materials, 2nd edn. (Oxford, Oxford University Press 1998) at p. 86.Google Scholar

32. See Plender, R., ‘The European Court as an International Tribunal’, Cambridge LJ (1983) p. 279.Google Scholar

33. See e.g., MacGoldrick, loc. cit. n. 1, at Chapter 10.

34. See text accompanying n. 7 above.

35. Anklagemyndigheden v. Paulson and Diva Navigation, case C-286/90 [1992] ECR I-6019)

36. Ibid., at p. 6052, para. 9.

37. Ibid., at p. 6053, para. 11 (emphasis added).

38. There the International Court of Justice stated there that certain provisions of the Convention on the continental shelf and the exclusive economic zone may ‘nevertheless be regarded as consonant with the general international law on the question’; ICJ Rep. (1984) p. 246, at p. 294, para. 94.Google Scholar

39. The International Court stated that ‘… it cannot be denied that the 1982 Convention is of major importance, having been adopted by the overwhelming majority of States; hence it is clearly the duty of the Court, even independently of the references made to the Convention by the Parties, to consider in what degree any of its provisions are binding upon the Parties as a rule of customary international law; ICJ Rep. (1985) p. 30, para. 27.Google Scholar

40. ‘The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law’; ICJ Rep. (1986) p. 111, para. 212.Google Scholar

41. At paras. 12–16, p. 6054. In relation to the question whether the regulation could be applied to members of the crew on the grounds that they were national of a Member State regardless of the country of registration of the vessel, the Court did not make any explicit reference to rules of international law. In contrast, the Advocate-General referred to Art. 14 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, and also to the judgment in the North-West Atlantic Fisheries case, XI UNRIAA (1910) p. 167Google Scholar et seq. as authority for the proposition that the nationality of the crew, as distinct from the nationality of the vessel, was irrelevant.

42. Ibid., at paras. 25–26, p. 6056.

43. Ibid., at paras. 35–39, pp. 6058–6059.

44. See section 4 below on the significance of the procedure for preliminary rulings under Art. 234 (formerly Art. 177) of the EC Treaty (through which this and other cases considered in this section came before the Court) as far as the Court's treatment of international law is concerned.

45. See also, on the law of the sea, The Queen v. The Secretary of State for Transport, ex parte Factortame Ltd and Others, case 221/89 [1991] ECR I-3905, paras. 15–17, at pp. 3963–3964, and more recently, Commission v. Greece, case 62/96 [1997] ECR I-6725, at para. 22. For other cases in which the Court has taken account of rules of written and non-written international law, as well as decisions of international organizations, in interpreting community law, see e.g., Bakels v. Oberfinanzdirektion München, case 14/70 [1970] ECR 1001, paras. 6–11 at pp. 1008–1009; Interfood v. Hauptzollamt Hamburg, case 92/71 [1972] ECR 231, para. 6 at p. 242; Nederlandse Spoorwagen v. Inspecteur der Invoerrechten en Accijnzen, case 38/75 [1975] ECR 1439, at p. 1451; Enka v. Inspecteur der Invoerrechten en Accijnzen, case 38/77 [1977] ECR 2203, paras. 24–29 at pp. 2214–2215; Beer Purity case (Commission v. Germany), case 178/84 [1986] ECR 1227, paras. 44 and 52, p. 1276. See further Lenaerts and van Nuffel, loc. cit. n. 1, at p. 563, nn. 17 and 18 and accompanying text, and Schermers and Waelbroeck, loc. cit. n. 3, paras. 175–177, pp. 100–101.

46. Compare Commission v. Italy (the Radio Tubes case), case 10/61 [1962] ECR 1, at p. 10, in which the Court had simply referred to the principle of international law that ‘by assuming a new obligation which is incompatible with rights held under a prior treaty a State ipso facto gives up the exercise of these rights to the extent necessary for the performance of its new obligations’. This principle has been codified in Art. 30 of the Vienna Convention on the Law of Treaties (1969). The Court's simple statement of this rule stands in clear contrast to the approach it has taken in the more recent cases considered in this section.

47. The Queen v. Minister of Agriculture, Fisheries and Food, ex parte Anastasiou (Pissouri) Ltd and Others, case C-432/92 [1994] ECR I-3087.

48. Ibid., see pp. 3095–3098 (Opinion of the Advocate-General) for a description of the situation on the island of Cyprus.

49. Art. 5 of the Association Agreement provided that the ‘rules governing trade between the Contracting Parties may not give rise to any discrimination between … nationals or companies of Cyprus’.

50. Ibid., at paras. 43–54, pp. 3132–3134. The Convention has not been ratified by all the Member States of the Community (see the Opinion of the Advocate-General in Racke v. Hauptzollamt case (case 162/92 [1998] ECR I-3655, at p. 3664, para. 20; accession is open only to States); but the status of Article 31 (1) as customary law is well-established; see e.g., Jennings and Watts, loc. cit. n. 10, pp. 1271–1272, para. p632.

51. See e.g., Competence of the ILO to Regulate Agricultural Labour case, PCIJ Rep. Ser. B, Nos. 2 and 3 (1922) p. 23Google Scholar; Free Zones of Upper Savoy and Gex case, PCIJ Rep. Ser. A/B, No. 46 (1932) p. 140Google Scholar; Air Transport Services Agreement (USA v. France) 38 ILR (1963) pp. 182, 228229Google Scholar; Italy-United States Air Transport Arbitration 45 ILR (1965) pp. 393, 412413.Google Scholar

52. Ibid., at para. 50.

53. See e.g., Competence of the ILO to Regulate Agricultural Labour, PCIJ Rep., Ser. B, No. 2 (1922) p. 39Google Scholar; Corfu Channel case, ICJ Rep. (1949) p. 25Google Scholar; Arbitral Award of the King of Spain case, ICJ Rep. (1960) p. 206Google Scholar; Young Loan arbitration, 59 ILR p. 495 at pp. 541543Google Scholar; Air Transport Services Agreement arbitration (USA v. France), loc. cit. n. 50, at pp. 245–248.

54. This ruling is even more significant when one considers that the Court had uncharacteristically gone further than the Advocate-General, who had not referred to rules of treaty interpretation contained in the Vienna Convention on the Law of Treaties in his Opinion in this case. On the relationship between the role of the Advocates General and the typically exhaustive nature of their opinions compared to the judgments of the Court, see Craig and de Burca, loc. cit. n. 31, at p. 83.

It should also be noted that the Court responded to an argument based on a ruling of the International Court of Justice in the Namibia advisory opinion, concerning the consequences of non-recognition. This matter is dealt with at greater length in section 3.4 below.

55. Case T-115/94 [1997] ECR II-39, at paras. 37–60, pp. 70–81.

56. Certain German Interests in Polish Upper Silesia, PCIJ Rep., Ser. A, No. 7 (1926) pp. 30 and 39.Google Scholar

57. See also Danisco Sugar AB v. Allmänaa Ombudet, case 27/96 [1997] ECR I-6653, at para. 20, p. 6682, and para. 31, at p. 6686.

58. As will be seen below (in section 3.2.3), an Advocate-General has suggested a limit to the operation of international law as applied in this case. Klabbers, loc. cit. n. 1, at pp. 53–56, notes that the application of Art. 18 of the Vienna Convention on the Law of Treaties in this case is quite unorthodox. However, the Court was not applying Art. 18 or any other international law as such; once it had found the corollary of the applicable principle in Community law, the rest of the judgment was not couched in terms of the law of treaties. This may be considered to result in the unorthodox application of international law by the Court in cases where there are related or similar principles in Community law, so that the obligations undertaken by members of the Community may be more stringent than those undertaken by other parties that are not Member States. This point should not be disquieting from the point of view of international law, which, as illustrated in Art. 27 of the Vienna Convention on the Law of Treaties for example, is concerned with breaches of international law rather than the intricacies of internal (in casu Community) law that do not breach international obligations.

59. Case C-162/96 [1998] ECR I-3655.

60. Ibid., at para. 76 of the Opinion, p. 3679.

61. Ibid., at para. 24, p. 3700. The Court was referring to the judgement of the ICJ in the Fisheries Jurisdiction case, ICJ Rep. (1973), p. 3 at para. 36.Google Scholar

62. Ibid., at para. 45–46, pp. 3704–3705.

63. ICJ Rep. (1997) para. 104, at p. 64.Google Scholar

64. Ibid., at para. 52, at p. 3706.

65. Loc. cit. n. 14.

66. See Grieg, D., International Law, 2nd edn. (1976) pp. 820822Google Scholar; Lauterpacht, E., ‘The Legal Effect of Illegal Acts in International Organizations’, in Jennings, R., ed., Cambridge Essays in International LawGoogle Scholar; Osieke, E., ‘The Legal Validity of Ultra Vires Acts of International Organizations’, 77 AJIL (1983) p. 239CrossRefGoogle Scholar. These works all relate to the question of invalidity based on ultra vires acts.

67. Ibid., at paras. 82–90.

68. See section 4 below.

69. Ibid., at para. 85, p 3682.

70. Ibid., at para. 90.

71. See for example, the wealth of case-law cited in Jennings and Watts, loc. cit. n. 10, at p. 1307, para. 8.

72. See Elias, O. and Lim, C., The Paradox of Consensualism in Interational Law (The Hague, Kluwer Law International 1998), Chapter 9.Google Scholar

73. Jennings and Watts, loc. cit. n. 10, at p. 1307, para. 651, referring, inter alia, to the Free Zones case (PCIJ Rep. Series A/B, No. 46 (1932) p. 158) and the Fisheries Jurisdiction case, loc. cit. n. 51.

74. Formerly Art. 173, on actions for annulment of acts of the institutions.

75. This issue is discussed further, in section 4 below, in the context of a discussion of the ‘direct effect’ of customary law rules. The discussion above is based on general principle rather than the peculiarities of the Community legal order.

76. At paras. 53–57.

77. The preamble to the decision suspending the application of the Agreement referred expressly to Security Council resolution 713 (1991), in which the Security Council expressed concern that the prolongation of the crisis in Yugoslavia constituted a threat to international peace and security. The Council of the European Communities had made it known, as noted by the Court, that it would terminate the Agreement if the ceasefire agreed by the parties to the conflict was not upheld. For the view that the Court's application of the rebus sic stantibus principle was significantly more lenient than is understood to be the case in traditional international law, see Klabbers, loc. cit. n. 1, at pp. 56–59.

78. Case C-177/96 [1997] ECR I-5673.

79. Ibid., at paras. 18–21, pp. 5679–5680.

80. Ibid., at para. 22, p. 5680.

81. Ibid., at para. 23.

82. Ibid., at para. 25, p. 5681.

83. See e.g., Jennings and Watts, loc. cit. n. 10, at p. 236.

84. See section 3.2.1 above. Only Turkey has recognized the ‘Turkish Republic of Northern Cyprus’. Security Council resolution 541 (1983) states that the declaration of secession of the northern part was ‘legally invalid’, and called for its withdrawal, while resolution 551 (1984) reiterated ‘the call on all States not to recognize the purported state of the ‘Turkish Republic of Northern Cyprus’ set up by secessionist acts’, and called upon States ‘not to facilitate or in any way assist the aforesaid secessionist entity.

85. Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276, ICJ Rep (1971) at para. 125.

86. Ibid., at para. 58, p. 3109.

87. For this reason, it seems that the description of the Court's judgment as ‘a retrograde step’ (Dixon, M. and MacCorquodale, R., Cases and Materials on International Law (London, Blackstone Press 1995) p. 189)Google Scholar, is somewhat harsh; surely there is a balance to be struck between the requirements of public policy pursuant to Security Council resolutions requiring non-recognition on the one hand, and the interests of the population on the other, a balance that the Court can be seen to have attempted to strike in this case.

88. Ibid., at para. 47, pp. 3133–3134.

89. Case T-102/96 [1999] ECR II-753.

90. See text accompanying nn. 23 and 27 above.

91. Ibid., at paras. 76–88.

92. Ibid., at para. 90.

93. Loc. cit. n. 27, at paras. 19–20.

94. Ibid., at paras. 102–108. This may be compared to the recognition of the principle of non-intervention in the Anastasiou case, discussed in section 3.2.1 above.

95. ‘The exercise of jurisdiction because of the effects of an act within the state may amount to no more than an “objective” application of the territorial principle of jurisdiction, but where the effects relied on are not a constituent part of the offence in question but are mere consequences or repercussions of the acts done, the legitimate bounds of the territorial principle are overstepped, particularly if the effects are only incidental and insubstantial; in this lies the danger of impropriety in resort to the “effects” principle as a basis for jurisdiction and the doubtful consistency of that principle with international law. Concern expressed by many other states has led certain United States courts to have some regard to the legitimate interests of other states, by requiring not only that the foreign conduct of aliens must have actual or intended effects within the United States, causing sufficient injury there, but also that “the interests of, and links to, the US – including the magnitude of the effects on American foreign commerce – are sufficiently strong, vis-à-vis those on other nations, to justify the assertion of extraterritorial authority”’; Jennings and Watts, loc. cit n. 10, para. 139, pp. 475–476 (quoting from a leading American case on the issue, Timberlane Lumber Co v. Bank of America).

96. See text accompanying nn. 23–30 above.

97. Formerly Art. 234.

98. Formerly Art. 224.

99. Art. 4 of the Charter of the United Nations provides that membership of the organization is open to States only.

100. See Gilsdorf, , ‘Les réserves de securité du traité CEE, à la lumière du traité sur l'Union européene’, Revue du Marché Commun et de L'Union Européenne (1994) p. 17, at p. 21.Google Scholar

101. See e.g., the Anastasiou case, section 3.2.1 above, and the Racke case, section 3.2.3 above.

102. Case C-177/95 [1997] ECR I-1111.

103. Ibid., at paras. 17–18, pp. 1138–1139.

104. Ibid., at paras. 23–26, pp. 1140–1141.

105. Ibid., at para. 37, p. 1143.

106. Ibid., at para. 38, p. 1143.

107. Case 84/95 [1996] ECR 3953.

108. Ibid., at para. 25. See paras. 19–27. See also Dorsch Consult Ingenieurgesellschaft mbH v. Council and Commission, case T-184/95 [1998] ECR II-667, at para. 74, p. 694, for the proposition that loss or damage suffered as a result of the Community acts adopted pursuant to resolutions of the Security Council are not attributable to the Community.

109. Case 124/95 [1997] ECR I-81.

110. Canor, I., ‘“Can Two Walk Together, Except They Be Agreed?” The Relationship between International Law and European Law: The Incorporation of United Nations Sanctions Against Yugoslavia into European Community Law Through the Perspective of the European Court of Justice’, 35 CMLRev. (1998) p. 137, at p. 187Google Scholar. ‘…[e]xamination of the way the Court analysed the text of the resolution reveals that it was strongly influenced by the way it applies these very measures of interpretation domestically. Indeed, the United Nations Resolution was not perceived B and should not have been perceived B by the Court, as being in itself part of “the law of the land” but, was applied since it was incorporated into European law by the Regulation. But that is not sufficient to justify the interpretation of the United Nations Resolution being conceived as a matter of Community act interpretation’ (at p. 150).

111. See e.g., Rasmussen, H., ‘Between Self-Restraint and Judicial Activism’, 13 ELRev. (1988) p. 28Google Scholar; Weiler, J., ‘The European Court of Justice on Trial’, 24 CMLRev. (1987) p. 555.Google Scholar

112. See e.g., Amerasinghe, C.F., Principles of the Institutional Law of International Organizations (Cambridge, Cambridge University Press 1996) pp. 5963.Google Scholar

113. ‘Moreover, instead of supporting an activist and influential line of reasoning [the judges] were demonstrating bias to the international activity’; Canor, loc. cit. n. 110, at p. 187. The author also suggest that there may have been other considerations of pragmatism that may have been behind the Court's reasoning.

114. The marked increase in the number of Security Council resolutions adopted since the end of the Cold War will no doubt have played a role. Between 1990 and 2000, the Security Council has adopted more than twice as many resolutions as it adopted between 1946 and 1989. See also Klabbers, loc. cit. n. 1, at pp. 66–68.

115. Formerly Art. 173.

116. See e.g., Alcan v. Commission, case 69/69 [1970] ECR 385; Bock v. Commission, case 62/70 [1971] ECR 897; Piraiki-Patraiki v. Commission, case 11/82 [1985] ECR 207; Comité central d'enterprise de la Société générale des grandes sources, case T-96/92 [1995] ECR II-1213; Comité central d'enterprise de la Société anonyme Vittel v. Commission, case T-12/93 [1995] ECR II-1247; Plaumann v. Commission, case 25/62 [1963] ECR 95; Toepfer v. Commission, cases 106–107/63 [1965] ECR 405; Zunis Holdings SA v. Commission, case T-83/92 [1993] ECR II-1169; Stichting Greenpeace Council v. Commission, case T-585/93 [1995] ECR II-2205. But see Parti Ecologiste ‘Les Verts’ v. Parliament, case 294/83 [1986] ECR 1339.

See also Art. 232 (formerly Art. 175), concerning judicial review for failure to act. Access to the Court for individuals is similarly restricted; see e.g., Bethell v. Commission, case 246/81 [1982] ECR 2277; Lütticke v. Commission, case 48/65 [1966] ECR 19; Star Fruit Co v. Commission, case 247/87 [1989] ECR 291. Similarly, Art. 241 (formerly Art. 184), which provides that ‘any party may, in proceedings in which a regulation adopted jointly by the European Parliament and the Council, or a regulation of the Council, of the Commission, or of the ECB is at issue, plead the grounds specified in the second paragraph of Article 230 in order to invoke before the Court of Justice the inapplicability of that regulation’, is subject to the same restrictions as to standing for individuals.

For critique of the restrictive approach taken by the Court, see e.g., Harlow, C., ‘Towards a Theory of Access for the European Court of Justice’, 12 YEL (1992) p. 213Google Scholar; Craig, P., ‘Legality, Standing and Substantive Review in Community Law’, 14 Oxford Journal of Legal Studies (1994) p. 507CrossRefGoogle Scholar; Arnull, A., ‘Private Applicants and the Action for Annulment under Article 173 of the Treaty’, 32 CMLRev. (1995) p. 7.Google Scholar

117. Formerly Art. 177. For discussion, see e.g., Watson, , ‘Asser Institute Colloquium on European Law 1985: Experience and Problems in Applying Article 177 EEC’, 23 CMLRev. (1986) p. 207Google Scholar; Arnull, A., ‘References to the European Court’, 15 ELRev. (1990) p. 375.Google Scholar

118. On the preliminary reference procedure in Community law, see e.g., Bebr, G., ‘The Reinforcement of the Constitutional Review of Community Acts under Article 177 EEC’, 25 CMLRev. (1988) p. 684Google Scholar, and Arnull, loc. cit. n. 117, at p. 375.

119. Loc. cit. n. 59, at paras. 25–27.

120. Loc. cit. n. 14.

121. See the Van Gend en Loos case, loc. cit. n. 9; the International Fruit case, loc. cit. n. 14. On the doctrine of direct effect generally and its development and treatment by the Court, see Craig and de Burca, loc. cit. n. 31, Ch. 4.

122. ‘Are the rules of customary international law such as to create rights in favour of individuals … such as to permit an individual to challenge a political decision by the Community to suspend the operation of an international agreement?’; para. 77 et seq., p. 3679.

123. Ibid., at paras. 83–85, pp. 3681–3682.

124. See text accompanying nn. 67–69 above.

125. Ibid., at paras. 89–90, p. 3683.

126. Ibid., at paras. 44–51, pp. 3704–3706.

127. See section 3.2.3 above.

128. Ibid.

129. Of course, the problem is that the novelty of this pronouncement makes it difficult to know whether the Court was dealing with direct effect or other issues.

130. Klabbers, loc. cit. supra n. 1, especially pp. 53–59, notes, in relation to aspects of the law of treaties, the (realized?) potential of Community law as applied by the Court to ameliorate the position of non-State actors in international law in general, albeit resulting in some unorthodoxy as far as some traditional notions of international law are concerned.

131. Hartley, loc. cit. n. 5, Ch. 7, on the question whether the Community legal system can be described as (i) separate and (ii) independent of the international legal system. See also Weiler, J.H.H. and Haltern, U.R., ‘The Autonomy of the Community Legal Order B Through the Looking-Glass’, 37 Harvard JIL (1996) p. 411.Google Scholar

132. See sections 3.2.3 and 4 above.

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