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2. Opinion 1/91 (First EEA Opinion) [1991] E.C.R. 6079, esp. at para.211: “In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals.”Google Scholar

3. Preamble to the Treaty on European Union.

4. See Higgins, , “International Law and the Avoidance, Containment and Resolution of Disputes” (1991–V) 230Google Scholar Hag. Rec., also published as Problems and Process in International Law, chap.1, “The Nature and Function of International Law”; Louis, , The Community Legal Order, (2nd edn), chap.II, Section 1, “The Treaties as the Constitution of the Community”Google Scholar; Livingstone, , “Withdrawal from the United Nations—Indonesia” (1965) 14 I.C.L.Q. 637Google Scholar; Blum, “Indonesia's Return to the United Nations” (1967) 16 I.C.L.Q. 522Google Scholar; Akehurst, “Withdrawal from International Organizations” (1979) C.L.P. 143.Google Scholar

5. HL Hansard, Vol.573, cols.1450–1451 (3 July 1996).

6. See e.g. Case C-271/94 Parliament v. Council [1996] E.C.R. 1–1705, para.24Google Scholar and Case C-84/94 United Kingdom v. Council (Working Time Directive) [1996] E.C.R. 1–5755, The Times, 21 Nov. 1996, para.29: “It is settled case-law that what is merely Council practice cannot derogate from the rules laid down in the Treaty.”Google Scholar

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8. Case C-89/94 United Kingdom v. Council of the European Union [1996] E.C.R. 1–5755Google Scholar. See comments in (1997) E.L.R. 579 and in CELS Occasional Paper No.2 (1997).Google Scholar

9. Under Art.118A of the EC Treaty, as amended by the Single European Act.

10. Case concerning United Stales Diplomatic and Consular Staff in Tehran I.C.J. Rep. 1988, 3. Sanctions were agreed by EC Foreign Ministers within the framework of European Political Co-operation (with no explicit mention of Treaty base) and were implemented in the UK under the Iran (Temporary Powers) Act 1980. The powers were expressly linked in s.1(1) to “breaches of international law by Iran in connection with or arising out of the detention of members of the Embassy of the United States of America”.Google Scholar

11. On the precise legal basis under the UN Charter for the use of force pursuant to Security Council resolutions regarding Kuwait, see Higgins, op. cit. supra n.4, chap.XV.

12. EC Treaty Consolidated Version, Art.280 (ex Art.209a).

13. Treaty on European Union Consolidated Version, Art.30.2(a) (ex Art.K.2).

14. EC Treaty Consolidated Version, Art.245 (ex Art.188) and Art.256 (ex Art.192).

15. See Sinclair, , The International Law Commission (1987) for an account of the Commission's role in codification and progressive development of international law.Google Scholar

16. Art.II, Section 2: “He shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”

17. For accounts of procedures on treaties in several national parliaments see Cassese, , Parliamentary Control over Foreign Policy (1980)Google Scholar. For an account of the place of treaties under the German Basic Law of 1949 see Meyring, , “Intergovernmentalism and Supranationality: Two Stereotypes for a Complex Reality” (1997) E.L.Rev. 221.Google Scholar

18. EC Treaty Consolidated Version, Art.249 (ex Art.189).

19. Convention determining the State responsible for examining Applications for Asylum lodged in one of the Member States of the European Communities, Cm.1623.

20. Joined Cases C-6 and 9/90 Francovich v. Italy [1991] E.C.R. 1–5357Google Scholar; Joined Cases 46/93 and 48/93 Brasserie du Pêcheur v. Germany [1996] E.C.R. 1–1029Google Scholar; R. v. Secretary of State for Transport, ex p. Faaortame Ltd and Others (No. 4) [1996] E.C.R. 1–2553Google Scholar, [1996] Q.B. 404, The Times, 7 Mar. 1996.Google Scholar

21. On this see Nicoll, “Note the Hour and File the Minute” (1993) J. Common Market Studies 559.Google Scholar

22. See Multilateral Treaties Deposited with the Secretary-General, Status at 31 December 1996: declarations and reservations to the Covenant on Economic and Social Rights are at pp.111—116 and objections to them at p.116: reservations to the Covenant on Civil and Political Rights are at pp.121–130, objections to them at pp.131–134 and derogations from the Covenant at pp. 137–156. The longest lists of reservations come from the UK and the US. See also Human Rights as General Norms and a State's Right to Opt Out: Reservations and Objections to Human Rights Conventions (British Institute Publication, 1997).

23. See e.g. Arts.309 and 310 of the 1982 UN Convention on the Law of the Sea and comments on this practice made on behalf of the EU in the General Assembly, printed in (1996) B.Y.I.L. 754–755.

24. See Reservations to the Genocide Convention Case I.C.J. Rep. 1951, 23.Google Scholar

25. Advocate-General Warner indeed once stated categorically: “The Court never looks at travaux préparatoires as an aid to interpretation.” His position was made clear in Case 28/76 Milec v. HZA Freiburg [1976] E.C.R. 1639, 1664Google Scholar and in Case 136/79 National Panasonic v. Commission [1980] E.C.R. 2033, 2066.Google Scholar

26. (1928) P.C.I.J. Rep. Ser.B, No.15, pp.117–118Google Scholar. The opinion is discussed by Wyatt in “New Legal Order, or Old?” (1982) E.L.R. 147, 150–151.Google Scholar

27. The role of Parliament in the UK conclusion of treaties is described in detail in App.4 to the Report of the Select Committee on the European Communities, Political Unions-Law-making Powers and Procedures, 17th Report, 1990–1991 (HL Paper 80), p.56Google Scholar. On the effect of treaties in UK. domestic law see J H Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1989] Ch. 72Google Scholar; R. v. Secretary of State for the Home Department, ex p. Blind [1990] 1 All E.R. 469.Google Scholar

28. See e.g. the UK submissions in Case 41/74 Van Duyn v. Home Office [1974] E.C.R. 1337, 1343.Google Scholar

29. Following ICJ orders for interim measures in the Nuclear Tests Cases I.C J. Rep. 1974, 253.Google Scholar

30. Following assumption of jurisdiction by the ICJ in Nicaragua v. United States (Military and Paramilitary Activities) (Jurisdiction) I.C.J. Rep.1984, 602Google Scholar. For arguments on the issues raised by the judgment and the US withdrawal see (1985) A.J.I.L. 373, 379, 385, 423, 442, 652, 657, 682 and 992.Google Scholar

31. On this, see The Role and Future of the European Court of Justice, the 1996 Report of the EC Advisory Board of the British Institute chaired by Lord Slynn of Hadley. For comparison of the ECJ with the ICJ see White, The Law of International Organizations (1996), pp.118–131.Google Scholar

32. See e.g. Case 16/83 Prantl [1984] E.C.R. 1299Google Scholar; Case 222/82 Apple and Pear Development Council [1983] E.C.R. 4083Google Scholar; Case 272/83 Commission v. Italy [1985] E.C.R. 1057Google Scholar; Case 216/84 Commission v. France [1988] E.C.R. 793.Google Scholar

33. E.g. Sir Patrick Neill (as he then was) in his Memorandum on the European Court published and submitted to the House of Lords Select Committee on the European Communities said: “The European Court of Justice has engaged in ‘creative jurisprudence’ on many occasions.” Select Committee 18th Report 1994–95 The 1996 Inter-governmental Conference (HL Paper 88), p.219.Google Scholar

34. Some of the possibilities were in the Treaty from the beginning, but only after the entry into force of the Single European Act in 1989 did it become practice to use, or seriously threaten to use, them.

35. Although the Single European Act concluded in 1986 (Cmnd.9758) placed European co-operation in the sphere of foreign policy (then known as European political co-operation) on a treaty basis, no law-making powers were at that stage given to the Council.

36. Vignes, , “Communautés Européennes et Union Européenne, Trinité des Structures et Unité des Institutions Etablies par le Traité de Maastricht”, in International Law in an Evolving World (Liber Amicorum Jimenez de Arechaga), p.1329Google Scholar: Meyring, , op. cit. supra n.17, at pp.230–236.Google Scholar

37. C.68.

38. The same approach was followed by the UK with Title III of the Single European Act which, in the European Communities (Amendment) Act 1986, was not added to the definition of “the Community Treaties”.

39. For accounts of the ratification procedures in the various member States see (1993) and (1994) Rev. du Marché Commun. Meyring, op. cit. supra n.17, is deeply critical of the assessment by the German Constitutional Court of the implications of the establishment by the Treaty of the third pillar.

40. Under Art.73g or 228a of the EC Treaty.

41. Sec Usher, “Variable Geometry or Concentric Circles: Patterns for the European Union” (1997) 46 I.C.L.Q. 243.Google Scholar

42. See (1993) O.J. L340/41 and 43 (31 12); (1995) O.J. C213/22 (17 Aug.) and C230/4 (4 Sept.)Google Scholar. See also Case T-194/94 Carvel and Guardian Newspapers Ltd v. Council [1995] E.C.R. 11–2765 and Case T-174/95 Svenska Journalistförbundet v. Council, judgment of 17 June 1998, not yet rep.Google Scholar

43. 28th Report 1992–93 (HL Paper 124), paras.52–55, 66–68; Observations by the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Home Affairs, Cm.2471.

44. A further report of the Committee, Parliamentary Scrutiny of the Third Pillar, 6th Report 1997–98 (HL Paper 25) contains an account of work under the new system as well as suggestions for extending it. See also the 1998 Reports Evidence by the Minister of State, Home Office, on the United Kingdom Presidency Work Programme on Justice and Home Affairs, 12th Report 1997–98 (HL Paper 65) and Dealing with the Third Pillar The Government's Perspective, 15th Report 1997–98 (HL Paper 73).

45. EC Treaty Consolidated Version, Art.255.

46. Freestone, , “The Road from Rio: International Environmental Law after the Earth Summit”, inaugural lecture printed in (1994) J.Int.Env.L. 193.Google Scholar

47. Conferences in London were organised by the British Institute of International and Comparative Law in 1997 and by Oxfam in 1998.

48. On UK system see Denza, “Parliamentary Scrutiny of Community Legislation” (1993) Statute L.Rev. 56 and “La Chambre des Lords: Vingt Annies d'Enquêtes Communautaires” (1993) Rev. du Marché Commun 740. For more general accounts see European Parliament publication The European Parliament and the Parliaments of the Member States: Parliamentary Scrutiny and Arrangements for Co-operation (1994) and Weber-Panariello, Nationale Parlamente in der Europäischen Union (1995).

49. With the transfer by the Treaty of Amsterdam of the provisions relating to free movement of persons, visas and asylum into a new title within the EC Treaty, Title VI of the Treaty on European Union—the third pillar—has been renamed Provisions on Police and Judicial Co-operation in Criminal Matters and Art.K has become Arts.29 to 45 of the TEU Consolidated Version.

50. See debate on Treaties (Parliamentary Approval) Bill, HL Hansard, Vol.569, cols.1556–1562 (28 Feb. 1996). The new arrangements are explained in idem, Vol.576, WA 1101 (16 Dec. 1996). The minister's speech and reply are in (1996) B.Y.I.L. 746 and 753Google Scholar. More generally, see Riesenfeld, and Abbott, (Eds), Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (1994).Google Scholar

51. See Close, “Subordination Clauses in Mixed Agreements” (1985) 34 I.C.L.Q. 382Google Scholar; Macleod, , Hendry, and Hyett, , The External Relations of the European Communities, p.268.Google Scholar

52. Art.34 of the Treaty on European Union Consolidated Version.

53. E.g. the 1958 Geneva Conventions on the Law of the Sea and the 1961 Vienna Convention on Diplomatic Relations required 22 instruments of ratification, the 1965 Convention on the Settlement of Investment Disputes 20, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons instruments from all three Depositaries plus 40, the 1966 UN Covenants on Human Rights and the 1969 Vienna Convention on the Law of Treaties 35, the 1982 UN Convention on the Law of the Sea 60.

54. Cmnd.8941, Art.309.

55. Denza, , Diplomatic Law (2nd edn.), pp.5–6.Google Scholar

56. Art.2, amending the EC Treaty, para.58.

57. New Title IIIa added to the EC Treaty by the Treaty of Amsterdam (Title IV of the Consolidated Version), in particular Art.73q and the related Protocols on the position of Denmark, the UK and Ireland.

58. Treaty on European Union Consolidated Version, Art.17 (ex Art.J.7).

59. Idem, Art.34 (ex Art.K.6).

60. Idem, Title VII, Arts.43 to 45 (ex Title VIa, Art.K.15–17).

61. E.g. Delimitation of the Maritime Boundary in the Gulf of Maine (Canada/USA) I.C.J. Rep. 1984, 246Google Scholar; Tunisia v. Libya I.C.J. Rep. 1985, 192Google Scholar; Burkina Faso v. Mali I.C.J. Rep. 1986, 554Google Scholar; Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras) I.C.J. Rep. 1992, 351Google Scholar; Libya v. Chad I.C.J. Rep. 1994, 6; Case concerning the Cabcikovo-Nagymaros Project (Hungary v. Slovakia).Google Scholar

62. Letter of 28 02 1989 from Mr Shevardnadze, printed in (1989) A.J.I.L, 457.Google Scholar

63. Europol Convention (1995) O.J. C.316/1, Cm.3050; Protocol drawn up on the basis of Article K.3 of the Treaty on European Union on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the Establishment of a European Police Office, Cm.3465. This precedent was followed by other third-pillar conventions.

64. Art.35 (ex Art.K.7).

65. Arts.24 and 38 of the Treaty on European Union Consolidated Version.

66. Case 22/70 Commission v. Council (AETR) [1971] E.C.R. 263, esp. para.17: “In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these might take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules.”Google Scholar

67. On this sec Clapham, , “A Human Rights Policy for the European Community” (1990) Y.E.L. 309Google Scholar; House of Lords Select Committee on the European Communities 3rd Report 1992–93 Human Rights Re-examined (HL Paper 10); Case C-290/89 ERT [1991] E.C.R. 1–2925.Google Scholar

68. Treaty on European Union Consolidated Version, Art.7 (ex Art.F.1).