Supranational Law as International Law and Vice Versa

• Author: Tanel Kerikmäe
• Pages: 43-47

Tanel Kerikmäe

Supranational Law as International Law and Vice Versa

European Community (EC) law is a well-discussed topic in Estonian society today. Several European training programmes have been launched which contain a description of the EC legal system. Presently, it is a legal system which is yet in its developing stages, and however uniformly interpretable the EC rules may be, there is still room for interpretation; and not only for the European Court of Justice (ECJ).

In my Introduction to EC Law course, I have started lectures with a warning that upon launching into the problems of European law, a certain shift of one’s former legal thinking is necessary for adaptation. EC law attempts a rather aggressive integration based on specific economic/political interests. This is the main difference between the EC legal system and the changing construction of national law and the elegant but often unenforceable international law. EC law is developing rapidly; maybe even too fast. There are many legal questions that remain unanswered or that can be offered a multitude of answers. Examples include the principle of subsidiarity, the relationship between international law and EC rules, and the value of rulings of the ECJ among rulings of international judicial bodies.

Interestingly, Estonian legislation already contains references to EC law. For example, §11(2) of the Energy Act¹ provides as follows: "Quality requirements on energy, liquid fuel and network gas must be in conformity with EU directives"². While this may be a disputable legal or political reference, §11(2) of the Radiation Act³ uses a delegation provision in order to implement a specific directive with the following: "The values of the radiation factor and tissue factor specified in Council Directive 96/29/Euratom of 13 May 1996 shall be implemented by a directive of the Minister of Environment".

The Association Agreement between Estonia and the European Communities and Member States⁴ certainly gives rise to direct legal obligations. Without a long discussion of the agreement, one example is Part III ("Free Movement of Goods") which establishes a free trade area in accordance with the provisions of the agreement, the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO). Article 28 of the agreement provides as follows:

Where one of the Parties finds that trade with the other Party is related to dumping within the meaning of Article VI of GATT, that Party may take appropriate measures against such action, in accordance with the agreement on the implementation of Article VI of GATT, appropriate national legislation and the conditions and procedure provided in Article 32.

With regard to the agreement, it is not pure EC law, as this is an association agreement which has the status of an international treaty. However, in certain cases, the ECJ may act as the interpreter of agreements concluded with third countries.

In this regard, the main issue is the differentiation between two legal systems: international law and EC law. It seems that among all other matters, the extreme positivism of EC law is its strength. While the International Court of Justice (ICJ) has been balancing between positivism and naturalism in its rulings, the ECJ is much more consistent and less contradictory in its activities. In many of their rulings, judges of the Republic of Estonia have demonstrated an ability to interpret provisions of national law through Estonia’s international obligations. However, while international law is indeed "inter-national" law, EC law is by its character supranational and excludes choices of implementation, which can per se give rise to conflicts at the national level. The greatest difference between EC law and international law is the absolute supremacy of EC law. Nevertheless, when discussing EC secondary legislation already in force in Estonia, the legal contents and scope of these rules, with regard to the legal order of a country yet in the association stage, are rather problematic.

EC law is interpreted and defined by the ECJ. Even now, with the EC well on its way to developing a unique legal system, one must be well-informed of rulings that define the position and scope of international law rules in or through this legal system. For the Estonian legal system, particular importance can be attributed to the rulings related to the status of the association agreements, to GATT and to general international law.

EC law is certainly not a form of regional international law but is sui generis, recognising international law in appropriate circumstances. The relationship of international and supranational law has been often discussed and there are different views inside and outside the Community. It must be remembered that EC law developed from an international treaty. However, as explained by T.C. Hartley "though engendered by international law, Community law does not share all its characteristics; and the techniques and doctrines of Community law have more in common with branches of national law such as constitutional and administrative law than those of international law"⁵. Also however, the approach of the ECJ to the interpretation of treaties is generally consistent with the rule of international law derived from the Vienna Convention on the Law of Treaties⁶.

To begin with a current issue, classical illustrations include the judgement in the Van Gend en Loos⁷ case in which it was declared that the "Community constitutes a new legal order of international law". The subsequent case of Costa v. ENEL⁸ avoided making direct references to international law, using the phrase "its own legal system".

There have been several cases concerning the position of international agreements in Community law⁹. In the famous ERTA case,¹⁰ the Court declared that the powers of the Community extend to relationships arising from international law, and "hence involve the need in the sphere in question for agreements with the third countries concerned".

One of these agreements has been GATT¹¹. In cases from 1972 and 1975,¹² it was necessary to examine whether GATT has a direct effect in the Community system. Although the ECJ denied the direct effect of GATT provisions (mostly because of the great flexibility of the provisions),¹³ it declared important lines of reasoning. Firstly, the ECJ stated that "before the incompatibility of a Community measure with a provision of international law can affect the validity of that measure, the Community must first of all be bound by that provision". This seems to be recognition of the supremacy of general international law norms, but is still a very conditional recognition. Direct effect has been the means by which the Court has decided the appropriate circumstances for using international law provisions. The Court also demonstrated its independence from any influence (international or national) in deciding the direct effect of an international agreement.

The ECJ has continued to recognise the direct effect of certain international agreements, being influenced by political reasons, as most of these agreements are association agreements with potential Member States of the Community (recognising even the direct effect of the Councils of Association decisions)¹⁴. It is important to note that association agreements traditionally consist of several references to international texts (some of them legally binding). For example, the so-called Europe Agreement between the Community and Estonia¹⁵ makes references to undertakings made within the context of the Conference on Security and Co-operation in Europe (CSCE) and the Organisation for Security and Co-operation in Europe (OSCE), the Helsinki Final Act, the Charter of Paris for a New Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms¹⁶ (ECHR), the European Energy Charter Treaty, GATT, WTO principles, and so on.

Another area in dispute concerns the protection of fundamental rights and freedoms. The E...