Anthony Aust. Handbook of International Law
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approach of some of the judges who felt that the role of the Court was to make decisions, not to
develop the law. That is now changing, although, as the 2004 Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory
142
shows,
sometimes the reasoning can be rather brief (although in practice this may reflect deep
disagreements on politically-charged issues).
143
Compliance and enforcement
144
Each UN Member is obliged to comply with a judgment of the Court in any case in which it is a
party. If it fails to comply, the other party may ask the Security Council to take action (Article 94). If
the Council determines that the non-compliance is a threat to international peace and security, it can
adopt a binding measure under Chapter requiring compliance and, if necessary, imposing
sanctions.
145
The Council has not yet exercised this power. In 1986, the United States twice vetoed
draft resolutions calling on it to comply with the Court’s judgment in Nicaragua v. United States.
146
Security Council Resolution 915 (1994) established an observer group to monitor Libyan withdrawal
from a previously disputed area in accordance with an agreement by the parties on implementation
of the Court’s judgment in Libya v. Chad (Territorial Dispute).
147
Advisory opinions
Article 65 authorises the Court to give ‘an advisory opinion on any legal question’ at the request of
whatever body may be authorised by, or in accordance with, the Charter to make such a request. If
the matter is urgent the Court can give an opinion quickly, even within a couple of months as in the
PLO case (see below).
Under Article 96 of the Charter, the General Assembly and the Security Council may request
advisory opinions. Other UN organs and specialised agencies, if so authorised by the General
Assembly, may also request advisory opinions ‘on legal questions arising within the scope of their
142. ICJ Reports (2004), paras. 13–65; ILM (2004) 1009.
143. See p. 227, n. 69 above on the mishandling of the self-defence issue.
144. See C. Schulte, Compliance with Decisions of the International Court of Justice, Oxford, 2004.
145. See further p. 214 above.
146. See S/18250 and records of meetings 2704 and 2718.
147. ICJ Reports (1994), p. 4; 100 ILR 1.
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activities’. The request of the World Health Organization for an opinion on the legality of the use by
a state of nuclear weapons, because of the effects on the environment and health, was declined by
the Court since the WHO was not authorised to deal with matters of legality, only with the effects, of
the use of such weapons.
148
But the Court did accept and advise on a similar request from the
General Assembly.
149
The Court has so far given twenty-five advisory opinions.
A state cannot ask for an advisory opinion, but all states are entitled to address the Court in
writing or orally about a request, and any international organisation considered by the Court as likely
to be able to furnish information on the question is notified of the request. They can then file with
the Court written statements or make oral statements at a public hearing of the Court. They may also
comment, in writing or orally, on the statements of others (see Article 66).
Requests for opinions may concern disputes between states or between a state and an international
organisation. The Court’s approach to requests was discussed comprehensively in the 2004 Advisory
Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory.
150
Article 68 provides that in exercising its advisory functions the Court shall further be guided by
the provisions of the Statute which apply in contentious cases to the extent that it recognises them to
be applicable. Article 102(2) of the Rules of Court requires the Court to ‘above all consider whether
the request . . . relates to a legal question actually pending between two or more states’. But the
Court has not refused to give an opinion even when the rights of a state were in issue. Provided the
request is about a legal question, the political context in which the request is made is relevant only to
the ‘propriety’ of giving the opinion.
151
An opinion given to the United Nations is to help it in its
work, so there must be ‘compelling reasons’ to decline a request.
152
But the fact that in the Legality
of Nuclear Weapons Advisory Opinion the Court split evenly on the most difficult question (which
was then decided only by the casting vote of the President)
153
illustrates the
148. ICJ Reports (1996), p. 66, para. 20; 110 ILR 1.
149. See p. 203 above.
150. ICJ Reports (2004), paras. 13–65; ILM (2004) 1009.
151. Western Sahara, ICJ Reports (1975), p. 12, paras. 23–74; 59 ILR 14.
152. Legality of Nuclear Weapons, ICJ Reports (1996), p. 226, para. 14; 110 ILR 163; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (2004),
paras. 43–65; ILM (2004) 1009.
153. Ibid., para. 105(2) E.
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difficulties inherent in asking the Court to advise on matters which are unlikely to be resolved by
any formal legal process. The legal issue may well be only one aspect of a multifaceted dispute, and
the question may lack balance. The fact that it requires only a simple majority of those voting in the
UN General Assembly (abstentions not counting) means that the question will often not reflect a
consensus of the membership.
154
Unless the basis for the request provides otherwise,
155
an advisory opinion is not binding, but is
usually influential with the states that are directly affected by it, as was the case with the PLO
opinion.
156
It may also result in steps being taken by the General Assembly or the Security Council.
Although there are other permanent universal international courts or tribunals, in contrast to the
ICJ their jurisdiction is restricted by their constituent instruments to more specific areas of
international law.
154. See UNGA Res. ES-10/14 of 8 December 2003.
155. See Difference relating to Immunity from Legal Process, ICJ Reports Cumaraswamy (1999), p. 62;
121 ILR 405. The request was under section 30 of the General Convention on the Privileges and
Immunities of the UN 1946, which provides that if the Tribunal is asked to give an advisory opinion on a
dispute between the UN and a Member, the opinion ‘shall be accepted as decisive’.
156. ICJ Reports (1988), p. 12; 82 ILR 225; ILM (1988) 808.
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23 The European Union
The immense popularity of American movies abroad demonstrates that Europe is the unfinished negative
of which America is the proof.
1
Wyatt and Dashwood’s European Union Law, 4th edn, London, 2000
Hartley, The Foundations of European Community Law, 5th edn, Oxford, 2003
Lasok and Lasok, Law and Institutions of the European Communities, 7th edn, London, 2001
Barnard, The Substantive Law of the EU, Oxford, 2004
European Communities Legislation: Current Status, Butterworths, London, 3 vols., looseleaf
www.europa.eu.int
Beginning in 1958 with only six member states, the European Union had by 2004 developed into a
partnership of twenty-five. In 2003, the then fifteen member states had a total population of 380
million and a total gross domestic product (GDP) of US$10.5 trillion. The equivalent figures for the
United States in 2003 were a population of 280 million and a GDP of US$11 trillion. By 2004, the
GDP of the previous fifteen member states had just overtaken the US GDP, and the (now twenty-
five) member states had a combined population of 456 million.
2
Just as a basic knowledge of the
complexities of the US Constitution and how it works is necessary for anyone concerned with
international relations, so an understanding of the EU and its procedures is important. Any company
exporting to, or selling within, the EU must comply with EU law. Many non-EU states and some of
their regions have offices in Brussels, as do many large, non-EU companies. Given the population of
the EU, and the collective economic power wielded by its member states, the EU has been for some
time an important player in international relations. Having established itself as an international
organisation worthy of being a party
1. Mary McCarthy, New York Times, 16 February 1980, p. 12.
2. Figures from the EU Statistical Office, Eurostat (www.europa.eu.int/comm/eurostat/).
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in its own right to certain universal treaties, it is of particular interest as a subject of international
law.
A brief history
The EU has grown relentlessly from the modest proposal in 1950 of the French Foreign Minister,
Robert Schumann, for a fusion of the French and German coal and steel industries as a first step in
building (as he envisaged it) an eventual European federation that would make a future war between
France and Germany impossible. The first governing treaty, to create the European Coal and Steel
Community (ECSC) and to establish a common market in coal and steel, came into being in 1952
with France, Germany, Italy and the Benelux countries (Belgium, Luxembourg and the Netherlands)
as the initial members. On 25 March 1957, the so-called Treaty of Rome, establishing the European
Economic Community (EEC), and a treaty establishing the European Atomic Energy Community
(Euratom), were signed, both entering into force the following year. The Treaty establishing a Single
Council and a Single Commission of the European Communities 1965 (Merger Treaty) resulted in
the three
3
European Communities being served by the same institutions.
The (Maastricht) Treaty on European Union 1992 (TEU) entered into force in 1993. It created a
new overarching entity, the European Union, and clumsily expressed it to be ‘founded on the
European Communities, supplemented by the policies and forms of co-operation established by’ the
TEU, that is Title , Common Foreign and Security Policy (CFSP), and Title , Police and Judicial
Co-operation in Criminal Matters (PJCCM).
4
The Treaty of Amsterdam 1997 entered into force in
1999, its main successes being reform of the legislative process and the consolidation and
renumbering of the separate texts of the EC Treaty and the TEU.
A Treaty establishing a Constitution for Europe (‘the Constitution’) was formally adopted on 29
October 2004. If it should enter into force, it will affect what follows, including the numbering of
Articles. (See the end of the chapter for a summary of the main changes.)
Member states
3. With the expiry of the ECSC Treaty in 2002, the EC Treaty now applies also to coal and steel.
4. Previously described as co-operation in the fields of justice and home affairs (JHA), but the Treaty of
Amsterdam transferred visas, immigration, refugees and judicial co-operation in civil matters to Title of
the EC Treaty.
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Denmark, Ireland and the United Kingdom
5
joined the original six members of the European
Communities in 1973, Greece in 1981, Portugal and Spain in 1986, Austria, Finland and Sweden in
1995, and Cyprus,
6
the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland,
Slovakia and Slovenia in 2004.
7
Bulgaria and Romania are due to join on 1 January 2007. Croatia
and Turkey are possible applicants. An applicant state must conclude a treaty of accession with the
existing members, which all the states must then ratify before the applicant can become a member.
The treaty of accession makes necessary institutional changes and certain agreed modifications,
including transitional provisions, to the obligations of the new member to accommodate its
particular needs and situation.
8
European Communities, European Community or European Union?
Given the complex arrangements outlined above, it is small wonder that there is some confusion as
to what to call this European organisation. It began as three separate organisations: the ECSC, EEC
and Euratom (the three then being referred to collectively as the European Communities). Following
the Merger Treaty 1965, the ECSC and Euratom became much less important as separate
organisations. The TEU 1992 reflected this by renaming the EEC
5. French President de Gaulle had previously vetoed the UK’s accession in 1963 and 1967.
6. Since the northern part of Cyprus is still under Turkish occupation (see p. 19 above), at present only the
southern part, controlled by the Government of the Republic of Cyprus, is in fact within the EU.
7. Apart from Iceland, Liechtenstein, Norway and Switzerland, all the other members of the European Free
Trade Area (EFTA) established in 1960 (Austria, Denmark, Finland, Sweden, Portugal and the United
Kingdom) have left it and joined the EU.
8. For example, Denmark was exceptionally allowed to keep its important prohibition on ownership of land
by foreign nationals, including EU nationals.
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the European Community (EC). The TEU also established the superior entity, the European Union
(EU), but it did not replace the European Communities. Rather, it supplemented them by two new
processes: the Common Foreign and Security Policy (CFSP) and the Police and Judicial Co-
operation in Criminal Matters (PJCCM). It has generally been the EC that has been party to treaties
with third states.
9
The structure created by the TEU has been likened to a (rather badly designed) Ancient Greek
temple having only three pillars surmounted by a pediment. The middle pillar (and certainly the
fattest) represents the European Community (EC), flanked by rather thin second and third pillars
representing the CFSP and the PJCCM respectively.
10
The pediment contains the common
institutions, political values, objectives, and amendment and accession procedures. However, this
deceptively simple image hides the fact that the common institutions operate with different powers,
procedures and legal consequences, depending on the substance of the matter, so the image of a
Gothic cathedral might be closer to the complex reality.
But the heart of the EU remains the first pillar, the European Community, without which the
edifice would collapse. Unlike the CFSP and the PJCCM, the work of the EC covers several large
subject areas, and the resulting acts by the Council of Ministers are subject to the sophisticated legal
order created by the EC Treaty and the judgments of the European Court of Justice, in particular the
primacy of EC law and its direct effect.
But should the new Constitution for Europe ever enter into force, the correct term will then be the
European Union, or simply, the Union. Therefore, in a spirit of optimism, the rest of this book refers
primarily to the EU, even though, as a matter of law and in contrast to the EC, the EU is not yet
generally accepted as having international legal personality.
11
The EC is referred to when dealing
with a treaty to which the EC is a party or to legislation which only the EC can make.
(Article numbers are of the Nice consolidated versions of either the amended EC Treaty or the
Treaty on European Union (TEU) prepared after the Nice Treaty 2001 by the European Commission
for illustrative purposes (see www.europa.eu.int, go to ‘The EU at a glance’, and then ‘Treaties and
law’). Unless otherwise indicated, Articles cited are of the EC Treaty.)
The fundamental aim of the EU is to bring its member states closer together economically,
socially and politically. The EU has become an extraordinarily complex regional organisation, in
terms of the treaties governing it, its procedures and its legislation. But, although it has a certain
degree of supranational power, it is not a federation. This chapter will outline the structure of the EU
and how it works. It will not attempt to describe the substantive law developed by the EU over
nearly fifty years in the areas of, for example, a customs union, the single market,
9. Although see p. 265, n. 22 above for a recent exception.
10. For an unforgettable image, see Wyatt and Dashwood’s European Union Law, 4th edn, London, 2000,
p. 172.
11. See n. 9 above.