THE EUROPEAN COMMUNITY, THE EUROPEAN UNION AND THE INTERNATIONAL LAW OF TREATIES

Vol. 16 No. 9 (September, 2006) pp.672-675

THE EUROPEAN COMMUNITY, THE EUROPEAN UNION AND THE INTERNATIONAL LAW OF TREATIES: A COMPARATIVE LEGAL ANALYSIS OF THE COMMUNITY AND UNION'S EXTERNAL TREATY-MAKING PRACTICE, by Delano Ruben Verwey. The Hague: TMC Asser Press, 2004. 320pp. Paperback. $90.00/£50.00. ISBN: 9067041823.

Reviewed by Srini Sitaraman, Department of Government and International Relations,

Clark University. Email: ssitaraman [at] clarku.edu.

In the field of international relations, states are recognized to be the primary actors, and under the eyes of international law, states are said to possess legal personality to negotiate and enter into agreements and treaties with one another. However, there has been a proliferation of non-state actors, such as international organizations (IOs) and inter-governmental organizations (INGOs) that have the legal capacity to participate in treaty negotiations and also join them. In this book Delano R. Verwey analyzes the legal implications of European Community (EC) and European Union (EU) international treaty-making practice and its influence on the development of international law, particularly, the impact on the law of treaties.

The ability to enter into international treaties has traditionally been the prerogative of states. Only states are thought to possess intrinsic legal personality, which allows them to negotiate, conclude, sign, and ratify international agreements. Nevertheless, since the promulgation of the 1986 Vienna Convention on International Treaties, the ability to contract treaties is now extended to international organizations. Opinions of international legal experts widely diverge as to whether IOs possess such intrinsic legal personality and whether their international legal standing is equivalent to nation-states. Although the International Court of Justice (ICJ) has recognized the legal personality of international organizations and sees them bound by the same set of legal obligations that bind states, Verwey argues that many questions persist regarding the appropriate role and legal standing of European international organizations vis-à-vis international law. This legal conundrum aside, IO participation in treaty-making and treaty-acceptance process as legal co-equals is growing.

Over the last two decades, EC and EU have entered into a large number of bilateral and multilateral treaties. In some instances, the Community and the Union have acted as joint contracting parties along with the Member States, but in some cases they have acted as the sole representative while entering into international treaties with other states and international organizations. In this book, Verwey examines the international treaty-making powers of EC, EU, and its twenty-five Member States comprehensively. He finds that the international treaty making competence of these diverse, but legally entwined entities to be vexing from the [*673] international as well as the European legal perspective.

The interesting international legal conundrum that Verwey identifies is that the EU Member States have not lost their sovereignty or their legal personality, which affords them the right to participate in international legal regimes. However, at the same time, EU states have transferred some amount of sovereignty to the European Union. This means that the EU is empowered to sign treaties on behalf of its members, while the Member States possess all the privileges of statehood, including negotiating and signing international conventions. This issue raises questions about internal political arrangements and external treaty-making competency of the EU and EC. What are the specific policy areas that EU and EC are competent to enter into international agreements and what are the areas that are exclusively the domain of Member States? Verwey does not provide a clear and conclusive answer to this question. But, he points out that internal jurisdiction over policy domains and external treaty-making are determined by internal political arrangements agreed upon by EU, EC, and its Member States.

Verwey wonders whether the current international treaty law, governed by the 1969 and 1986 Vienna Convention on Law of Treaties, provide adequate guarantees to cover contractual relations among EU, EC, its Member States, and the third parties, which may involve states or other international organizations. His principal concern is that crosscutting international roles played by EC, EU, and the Member States not only produce legal complexity, but it also sows the seeds of doubt among contracting third parties about the Member States’ legal obligations and raises serious questions about the external treaty-powers of EC and EU. In addition, this issue of overlapping sovereignty raises questions about the ultimate repository of legal responsibility for international treaty obligations.

Principally, Verwey is concerned that contracting third parties may not enter into treaty relations with EU states because of the worry that it would be difficult to hold a Member State responsible for its legitimate international obligations because of legal complexities surrounding the external competency of European international organizations. This concern is also heightened by the fact that international treaty law governed by the two Vienna Conventions does not adequately correspond to the unique character of the European Union and the European Community. International legal relations entered into by the EU and EC will impact the development of treaty law. However, the concern over ambiguity and uncertainty regarding external treaty-making competence has not stopped non-EU states from signing bilateral or multilateral treaties with EC, EU, and its Member States. This is probably because there is sufficient confidence among the contracting third parties that the European international organizations and their members will not renege on agreements. Besides, as Verwey observes, states that enter into treaty relations with EU, EC, and its Member States can always include [*674] safeguard clauses to protect themselves. Hence, Verwey’s concerns are mostly theoretical, and it does not seem to pose any immediate problems to the conduct of day-to-day business and administration of policy matters. In addition, one also wonders whether the author overemphasizes the ambiguity and uncertainty generated by the unique legal charter of the EU and EC. After all, unlike municipal law, international legal relations are always fraught with legal ambiguities and uncertainties.

Verwey reveals the inadequacy of present-day international laws to comprehend fully the unique legal personality of EU and EC, and he concludes with a set of proposals for amending international law of treaties to accommodate the complicated legal relations produced by the emergence of new sovereign entities.

Analysis in the book is divided into two parts, including an introductory chapter. Part One contains two chapters that focus on the external treaty-making competence of EU and EC. Part Two consists of three chapters that investigate the substantive elements of international treaty law and its implication for EU and EC. Primarily, Part Two focuses on negotiation and conclusion of treaties, entry into force, application, termination, suspension, treaty interpretation, dispute settlements, and finally the effects of international agreements on the EU Member States. These chapters contain detailed analysis of treaty law issues, such as accession, exchange of instruments, arbitration, invalidation, and termination.

This book is clearly not intended for the lay reader. The primary audience will be advanced legal experts who are thoroughly familiar with complexities and the nitty-gritty of international laws, and the internal structure of EU and EC. Verwey focuses his analysis on European international legal relations, but he refrains from providing any political or policy context. The lack of substantive policy context and thick legal description makes the book at times hard to follow. But, most legal texts are not meant to be easily accessible or engaging; they aim to be objective, informative, and analytical. In this regard Verwey’s book succeeds.

Some of the contestable parts of the book are in the final recommendations. Verwey suggests that there are two ways of addressing the uncertainty and legal ambiguity generated by the emergence of sui generis IOs such as EU and EC. His first proposal is to alter the internal framework of EU and EC, and the second suggestion is to modify the international law of treaties to overcome the ambiguity and uncertainty in the external treaty-making competency produced by the emergence of multiple European institutions with international legal personality. However, he immediately dismisses the probability of altering the internal framework of EU and EC because it would hurt the sanctity of the EU integration process. Instead, he suggests that international treaty law should be modified to accommodate the unique roles of EU and EC. Verwey does concede that the possibility of international community renegotiating the Vienna Convention on Law of Treaties just to accommodate EU [*675] and EC is remote. Nevertheless, he goes on to propose a set of articles for inclusion in a modified law of treaties. There is no question that the international law of treaties is definitely in need of modification to welcome new developments brought about by the increased diversity of international organizations. However, one is not sure whether such modification should be exclusively motivated just to accommodate the peculiar legal ambiguities of EU and EC.

The superior solution, to which Verwey alludes, might actually lie in the ratification of the European Union Constitution by all its Member States, which would abolish EU and EC and create a supranational federal state in its place. It would possess all the trappings of a state such as flags, currency, state symbols, and a chief executive. This new EU Constitution would retain primacy over the laws and the national constitutions of its Member States, and it would enable the European Union to operate as the sole representative amidst the community of nation-states. Importantly, the EU Constitution would permanently end questions about its external treaty-making competency and international legal personality because it would arrogate all the treaty-making powers to itself. The passage of the EU Constitution was knocked of course because of negative referendums in France and Netherlands. However, presently 15 of the 25 Member States have ratified the EC Constitution. It is very likely that the EU Constitution will achieve fruition in the near future with the support of major actors such as France, Netherlands, and Germany. Presumably, it would also end the uncertainty and legal ambiguity generated by overlapping functions of EU, EC, and its Member States.

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