FACULTY OF LAW
Stockholm UniversityTransforming our World
- The Legal Value of the 2030 Agenda for Sustainable Development in the EU Legal Order
Erika Hanses
Thesis in European law and International Public law, 30 HE credits Examiner: Claes Granmar
Stockholm, Autumn term 2016
Abstract
The aim of this thesis is to explore the legal value of the 2030 Agenda for Sustainable Development, adopted by the United Nations General Assembly in September 2015, within the EU legal order. For being able to carry out this research the Agenda is compared to the established sources of
international law, clarified in Article 38 of the ICJ Statue, and due to its characteristics and fora of adoption it is concluded that the Agenda constitutes a soft law instrument and by nature is legally non-binding.
The research further attempts to define soft law and its legal value with an emphasis on terms of legitimacy, opinio juris, legal value and compliance. It is concluded that soft law instruments in general, and resolutions adopted by the United Nations General Assembly in particular, can have a great influence on the development of international law, since they can be seen as an expression of the common will of the international society and thus are likely to function as an instrument from which customary international law can derive.
The methodology applied to make these conclusions are most and foremost the European legal method, with an emphasis on the teleological and doctrinal method. Case law has been used as the primary source in the research, accompanied by doctrine, for establishing the relation between different sources of international law and the EU legal order. Since the thesis also explores how international law is developed, two theories of international law, the New Haven School and the theory of New International Legal Process, is applied to the research.
The importance of policy coherency in the international legal order, and in the EU’s external policies whilst implementing the Agenda, is emphasised due to the risk of fragmentation caused by the amount of different sources in international law. Ultimately, the Agendas actual legal value within the EU legal order is explored and is considered to be fairly limited so far. It is not
impossible that its aspirations will be reflected in State practise and that its aims and objectives will be translated into norms applied by international and domestic Courts. In theory the Agenda has the legal value of an instrument which international customary law might emerge from, yet we will have to wait for the final determination of its legal value.
Abstract 1
List of abbreviations 5
1. Introduction 6
1.1 Background 6
1.2 Aims and research questions 8
1.3 Materials and method 8
1.3.1 European legal method 10
1.3.2 The New Haven School 11
1.3.3 New International Legal process 13
1.4 Delimitations 14
1.5 Outline 14
2. The 2030 Agenda as a source of international law 15 2.1 The general relationship between EU law and International law 16
2.1.1 The Kadi case 16
2.2 International conventions and Treaties 19
2.2.1 Definition 19
2.2.2 International treaties in EU law 20
2.2.3 The 2030 Agenda as potential international treaty law 21
2.3 International customary law 23
2.3.1 Definition 23
2.3.2 International customary law in EU law 25
2.3.3 The 2030 Agenda as potential international customary law 25
2.4 General principles of international law 26
2.4.1 Definition 26
2.4.2 General principles of international law in EU law 27 2.4.3. The 2030 Agenda as a potential general principle 28
2.5 Effect of international law in EU law 29
2.5.1 Pacta sunt servanda 29
2.5.2 The principle of consistent interpretation 30
3. Soft law 32
3.1 Definitions of soft law 32
3.1.1 Hard law versus soft law 34
3.1.2 The continuum of normativity between hard law and soft law 34
3.2 The legitimacy of soft law 36
3.2.1 The concept of legitimacy 36
3.2.2 Legitimacy in the context of soft law 37
3.2.3 Elementary legitimacy and the doctrine of implied powers 38
3.2.4 The ultra vires doctrine 40
3.3 International organisations’ effect on soft law 41 4. The EU’s approach to the 2030 Agenda as a soft law instrument 43 4.1 The EU’s subjective aspects of legitimacy and legal value 44
4.2 The EU’s implementation of the Agenda 46
4.2.1 The Anti Tax Avoidance Package 46
4.2.2 The legal value of the Agenda in the EU legal order 48
4.2.3 The importance of policy coherency 49
5. Conclusion and final comments 52
Bibliography 56
List of abbreviations
EU ICJ Statute TEU TFEU UN
European Union
The Statue of the International Court of Justice
Consolidated version of the Treaty on European Union
Consolidated version of the Treaty on the Functioning of the European Union United Nations
1. Introduction
On the 25th of September 2015, the Heads of State and Government from the 193 Member States of the United Nations gathered in New York at the 70th Session of the United Nations General Assembly. They assembled to adopt the 2030 Agenda for Sustainable Development, an agenda for the coming 15 years of sustainable economic, social and environmental development. The Agenda consists of 17 Sustainable Development Goals and 169 targets, all connected to the eradication of poverty. The 2030 Agenda is described as a “comprehensive, far-reaching and people-centred set of universal and transformative Goals and targets” which will “stimulate action over the next fifteen years in areas of critical importance for humanity and the planet”. 1
The EU is not per se an addressee of the 2030 Agenda, since the Union is not a member of the United Nations, but the Commission has declared that the Union aims to implement the Agenda in respect to the principle of subsidiarity. However, the actual legal value of the Agenda is uncertain 2 with regard to the specific features of the document and its relation to other sources of international law in the global society. The fora where the Agenda is adopted, the United Nations General Assembly, certainly affects its legal value since the General Assembly cannot adopt legally binding acts. Further, the EU’s approach to different sources of international law also affects the legal value 3 of the Agenda, as a potential source of international law, within the EU legal order. It is clear that acts on the international arena can be more or less legally binding, and what role the 2030 Agenda plays ought therefore to be explored.
1.1 Background
The European Union (EU) interacts closely with international law. Due to Treaty provisions and principles established in case law by the Court of Justice of the EU, the Union must relate to the international legal order. Article 3(5) in the Treaty on European Union (TEU) sets out that the EU shall contribute ”to the strict observance and the development of international law, including respect for the principles of the Charter of the United Nations” in its relations with the wider world.
General Assembly, A/RES/70/1, Transforming our world: the 2030 Agenda for Sustainable Development,
1
25 September 2015.
European Commission, Sustainable Development: EU sets out its priorities, Press release, Strasbourg, 22
2
November 2016.
Article 10 and 13(1) of the Charter of the United Nations.
3
Resolutions adopted by the United Nations General Assembly are one example of international law that the EU interacts with and the EU’s respect for United Nations’ legals acts is confirmed by Article 21(1) TEU, where ”respect for the principles of the Charter of the United Nations and international law” is stated as guiding principles for the EU’s actions on the international arena.
The outcome document of the United Nations Sustainable Development Summit, leading up to the adoption of the Agenda, had been adopted by consensus in August 2015, after months of intergovernmental negotiations. The Agenda is an ambitious political declaration consisting of 17 4 Sustainable Development Goals and 169 targets together with tools for implementation and follow- up and review mechanisms. The follow-up and review mechanisms are effective and transparent 5 but yet voluntary. These 17 Sustainable Development Goals outline a policy framework aiming to 6 mobilise efforts at the international, regional and national level around a number of common priorities and shared values relating to sustainable development. The Agenda addresses challenges as diverse and ambitious as ending hunger and poverty, battle inequalities, building peaceful and inclusive societies, promoting human rights and ensuring the protection of the planet and its natural resources. The goals are integrated and indivisible, balancing the three dimensions of sustainable 7 development; economic, social and environmental. For the possibility to reach these goals within the following 15 years, no one can be left behind. There is thus a need for every addressee, i.e. 8 every participating member of the resolution, to implement the Agenda into its own domestic sustainable development policy.
The resolution is with no doubt the most comprehensive action plan ever adopted in the field of sustainable development and it is adopted to complete what the Millennium Goals did not achieve.
Sam Kutesa, President of General Assembly, Outcome Document of Summit for Adoption of the Post 2015
4
Development Agenda, 12 August 2015. Online: https://www.un.org/pga/wp-content/uploads/sites/
3/2015/08/120815_outcome-document-of-Summit-for-adoption-of-the-post-2015-development-agenda.pdf, last accessed 2016-12-31.
Kommittédirektiv, Dir 2016:18, Genomförande av Agenda 2030 för hållbar utveckling, Beslut vid
5
regeringssammanträde den 10 mars 2016, p. 2.
United Nations General Assembly Resolution, A/RES/70/1, Transforming our world: the 2030 Agenda for
6
Sustainable Development, (25 September 2015), paras 71-91.
Pavoni, Riccardo; Piselli, Dario, ’Sustainable Development Goals and International Environmental Law:
7
Normative Value and Challenges for Implementation’, Veredas do Direito, Vol. 13, No. 26, (2016).
General Assembly, A/RES/70/1, Transforming our world: the 2030 Agenda for Sustainable Development,
8
(25 September 2015).
The achievement of sustainable development in accordance with the aims and objectives of the Agenda is crucial for the future development for the humanity and the planet. 9
1.2 Aims and research questions
The legal status of the Agenda is unclear. If these 17 Sustainable Development Goals are to be achieved the Agenda must have some legal value if it is to induce compliance in its addressees, i.e., the participating States of the resolution.
The Commission has declared in the newly published Communication entitled ’Next steps for a sustainable European future European action for sustainability’ that ”the EU is fully committed to be a frontrunner in implementing the 2030 Agenda … together with its Member States, in line with the principle of subsidiarity”. The thesis sets out to explore the potential legal value of the 2030 10 Agenda in the EU legal order. The legal value of the Agenda may affect the future development of international law and EU law in the field of sustainable development. The question pertaining to the legal value of the Agenda also raises questions about, inter alia, the Agenda as a potential source of international law and its potential relationship to EU law as such. Further, questions about the legitimacy of soft law instruments and how the sense of legitimacy may affect the legal value of such instruments needs to be discussed. Finally, the EU’s approach to the Agenda needs to be emphasised for being able to determine the legal value of the Agenda in the EU legal order. The question of how international law develops is also analysed with a main focus on the emergence of international customary law and how institutional settlement might affect this process.
1.3 Materials and method
In order to answer the research question the first section of the theses analyses the different sources of international law and their relationship with the EU legal order. The legal framework of the research consists of the sources of international law with an emphasis on international treaties and 11
Pisano, Umberto; Lange, Lisa; Berger, Gerald, The 2030 Agenda for Sustainable Development Governance
9
for SD principles, approaches and examples in Europe, ESDN Quarterly Report No. 38, Vienna University of Economics and Business, Vienna, October 2016, p. 10.
European Commission, Communication from the Commission to the European Parliament, The Council,
10
The European Economic and Social Committee and the Committee of the Regions, Next steps for a sustainable European future European action for sustainability, Strasbourg, (22 November 2016).
See Article 38(a-c) of the ICJ Statue.
11
conventions. These ought to be seen as an expression of the elementary legitimacy for the bodies 12 to adopt further legislative acts based on State consent. General principles of international law, 13 such as pacta sunt servanda and the principle of consistent interpretation are also fundamental for the analysis of the coherency in the international legal order.
Case law and doctrine are secondary sources of international law and are used to interpret the primary sources. Since this thesis aims to explore the sources of international law in relation to 14 each other to conclude, in an abstract manner, the substance of the norms and their relationship to each other, doctrine and case law, i.e., secondary sources of international law, account for a significant part of the legal framework of the research. When exploring the Agenda as a potential source of international law and each sources’ relationship to EU law, the European legal method is used to define the coherency between the two international legal orders. The European legal method is also used to determine the effect of internationally binding instruments, such as treaties, custom and principles in the EU legal order. 15
Moreover, since the thesis discusses the legal value of soft law, i.e., legally non-binding instruments, case law and doctrine are the main sources of information for exploring the legitimacy and the legal value of such acts in general and the Agenda in particular. When exploring the legal value of the Agenda in the EU legal order in the last section of the thesis, communications and press releases from the Commission constitute the primary source of material together with doctrine.
Systemising and exploring the sources of international law in relation to each other is fundamental in order to be able to carry out the analysis of the process of how international law may develop.
The methods used in this thesis are thus the European legal method and two theories of public international law: The New Haven School and New International Legal Process. With the help of the latter two theories, the emergence of new international law through non-binding instruments is explored with regard to the relationship between international law and EU law.
The Charter of the United Nations, The Treaty on the European Union, The Treaty on the Functioning of
12
the European Union and the Statue of the International Court of Justice.
See further in chapter 3.2.3.
13
Article 38(d), ICJ Statue.
14
Koskenniemi, Martti, ’Hierarchy in International Law: A Sketch’, European Journal of International Law,
15
Vol. 8, No. 4, Oxford, (1997), p. 569-570.
1.3.1 European legal method
The main aspects of the European legal method are teleological interpretation and the doctrinal method. The method varies depending on what area of EU law is explored. In the present case the interpretations by the Court of Justice of the EU of inter alia the relationship between international law and EU law, and the statements by the EU institutions, for example communications of the European Commission, are highly influential. In the Court's interpretation of EU law, it is taking 16 into account the fundamental objectives and purposes of the particular act of legislation, which is the definition of a teleological interpretation. The teleological method is substantial when sources 17 of international law are explored in relation to EU law, and the interpretation of international conventions and principles are often codified in case law. However, there is yet no case law from the Court of Justice of the EU on the implementation of the Agenda and its legal status, and therefore Communications from the Commission are used together with doctrine to apply a more general perspective with the doctrinal method while case law is used to make analogies from a teleological perspective.
Within the scope of the European legal method, the teleological interpretation is thus combined with the doctrinal method. Since the EU legal order is unique in its systematic structure, another doctrinal method is required than the one used when exploring domestic legal orders. For example, the principle of conferral of powers and the principle of consistency, are central for understanding the EU legal system. It means that the Union can only act within the limits of the competences conferred upon it by its Member States and the principle of consistency is crucial to avoid 18 fragmentation between the different policy areas within the EU legal order. 19
These two principles are relevant for the ability to derive coherent and logical conclusions from treaty law and case law that are compatible with the EU legal order. The central element of the
van Gestel, Rob; Micklitz, Hans-W., ’Revitalizing Doctrinal Legal Research in Europe: What About
16
Methodology?’ in: Neergard, Ulla; Nielsen, Ruth; Roseberry, Lynn, European Legal Method, DJOF Publishing, Copenhagen, (2011), p. 77.
Neergard, Ulla; Nielsen, Ruth, ’Where Did the Spirit and Its Friends Go? On the European Legal
17
Method(s) and the Interpretational Style of the Court of Justice of the European Union’, in: Neergard, Ulla;
Nielsen, Ruth; Roseberry, Lynn, European Legal Method, DJOF Publishing, Copenhagen, (2011), pp.
108-110.
Article 5, TEU.
18
Article 7, TFEU.
19
doctrinal method is to carry out ”a critical conceptual analysis of all relevant legislation and case law to reveal a statement of the law relevant to the matter under investigation”. Historically, the 20 doctrinal method has been described as a process of steps, including assembling facts, identifying the legal issue and analysing the issue from a legal perspective, i.e., searching for the law in the background and primary material, then substantialise all the issues in context and coming to a tentative conclusion. These steps, and the method in general, fluctuate depending on the legal 21 discipline that is subject for the particular research. In this thesis the doctrinal method is used for 22 exploring the legal value of the Agenda as a soft law instrument in EU law. For example, the doctrinal method is prominent when exploring the effects of sources of international law in EU law and the analysis is based on treaty law and case law.
There is a general consensus on the sources of international law, further discussed in chapter two.
Yet there are still doctrinal disagreements about what actually counts as international law and what is not, and other issues related to e.g. the importance of opinion juris in the development of international law. Kant has stated that a theory makes us understand the world by making data 23 comprehensible through providing a structure for the organisation of a particular discipline or body. Since the aim of the thesis partly is to explore how international law develops, the two 24 theories, that will be describes in the following, are used in this thesis when exploring the Agenda as an instrument for the emergence of new international customary law.
1.3.2 The New Haven School
The New Haven School was created during the Second World War. When the American law schools reopened after the war the theory was established as a refinement of the American Legal Realist school of jurisprudence and the intertwining of law and the social sciences. Realism stresses the social consequences of the law, which should be taken into account in judicial decisions. The New
Hutchinson, Terry, ’Vale Bunny Watson? Law Librarians, Law Libraries and Legal Research in the Post-
20
Internet Era’, Law Library Journal, Vol. 106, No. 4, (2014), p. 584.
Hutchinson, Terry, Researching and Writing in Law, 3rd edition, Lawbook Co./Thomson Reuters, Sydney
21
(2010), pp. 41-42.
Hutchinson, Terry, ’The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the
22
Law’, Erasmus law review, No. 3, (2010), p. 132.
Scobbie, Ian, ’Wicked Heresies of Legitimate Perspectives?’, in: Evans, Malcolm, International Law, 3rd.
23
ed., Oxford University Press, New York, (2010), pp. 65-66.
Kant, Immanuel, ’On the Common Saying: ”This May be True in Theory, But it Does Not Apply in
24
Practice”’, in: Reiss, Hans, Kant’s Political Writings, Cabringde University Press, Cambridge, (1970), p. 61.
Haven school is built on this tradition but rejected that the law was merely a system of rules. Instead the law was approached as a normative social system, revolving around decisions made by authorities, including, but not restricted to, judges. Law was seen as an ongoing process of decision- making that could be created outside the court room, where the main aim is to reach human dignity. 25
One of the essences in the New Haven School is the aspect that one cannot completely avoid the element of choice. In that sense, the theory takes the same perspective to law-making as the natural law, the one of the decision maker. From a positivist perspective, the primarily jurisprudential task is to identify what it is that must be obeyed, and therefore the reoccurring issue is to find the correct sources of law. From the perspective of the New Haven School, the main focus is to make social choices. New Haven theory seeks to be as expansive as possible by including all various factors that affects a decision, in contrary to conventional legal theories, and it is a jurisprudence in which law is seen as a process where human beings are trying to influence the way social choices are made about the production and distribution of the things that they require. Therefore, action and practice, together with what actors think, feel and do, has to be taken into account as well written words on documents, when exploring the international law from this perspective. The range of material is thus broader than in conventional legal theory. 26
The New Haven School provides a framework of values in pursuit of the ideal values, democracy and human dignity, that it favours. These values affect every authoritative decision. In turn, the values that stem from these decisions contribute to secure a common public order that maximise the realisation of human dignity. Through this process, international law in created and is usually referred to as custom. The theory of New Havel School is therefor used in this thesis when 27 exploring how new international customary law may develop and emerge from soft law instruments such as the 2030 Agenda. The Agenda could be seen as an expression of common values of the international society, which might develop into international customary law. This process is emphasises in the sub-sections 4.1 and 4.2.3.
Scobbie, Ian, ’Wicked Heresies of Legitimate Perspectives?’, in: Evans, Malcolm, International Law,
25
(2010), p. 72.
Reisman, Michael, The View from the New Haven School of International Law, Faculty Scholarship Series,
26
Yale Law School Faculty Scholarship, (1992), pp. 120-121.
Ibid, pp. 122-123 and Scobbie, Ian, ’Wicked Heresies of Legitimate Perspectives?’, in: Evans, Malcolm,
27
International Law, (2010) p. 74.
1.3.3 New International Legal process
The main focus of theory of international legal process is to understand how international law works. It was established as theory in the 1968 casebook International Legal Process, by Ehrlich, Chayes, and Lowenfeld, in which the American Legal Process method was reformed to create an International Legal Process. The classic International Legal Process studies how international law is applied to, and functions within, international policies, as well as how it can be improved. Due to 28 criticisms of the lack of normative qualities in this theory, new International Legal Process emerged.
The main focus of the new International Legal Process would be to solve the international societies expanding issues by valuing institutional settlement in line with the values of the international society, e.g. human rights, peace and protection of the environment. 29
Its perspective of international law-making is fundamental: it is seen as a process that should adapt to the evolution of values of the international society and thus be flexible. According to this theory, law can be considered as established if actors start to behave according to a certain value, even if it is not outspoken as legally binding. International lawmaking is seen as a process and a democratic dialogue of value-creation in which courts, institutions and the people engage. It is, therefore, a need for purposive and dynamic decision-making by institutions in accordance with the theory of new International Legal Process. Hence, the theory is applied to the research to explore the 30 elements of international customary law in sub-section 2.3.1 and the principle of implied powers’
impact on the development of new international customary law through institutional settlement, emphasised in the discussion about the ultra vires doctrine in sub-section 3.2.4. The effect of institutional settlement on the development of new international customary law is also discussed in sub-section 3.3 by applying this theory. The adoption of the Anti Tax Avoidance Directive by the EU is analysed, in sub-section 4.2.1, as a potential expression of behavioural change in accordance with the certain values stated in the Agenda. The theory of new International Legal Process is also applied when emphasising the importance of policy coherency in sub-section 4.2.3 when the values promoted by the Agenda are compared to the ideal values of the theory and how this might effect the emergence of new international customary law.
O’Connell, Mary Ellen, ’New International Legal Process’, The American Journal of International Law,
28
Vol. 93, No. 2, (1999), pp. 79-87.
Ibid. p. 85.
29
Ibid.
30
1.4 Delimitations
The 2030 Agenda is founded upon a framework of different resolutions and declarations touching upon, more or less, similar policy areas as the Agenda. Yet, these instruments will not be mentioned if it is not fundamental for the understanding of a certain aspect of the Agenda. The same year as the adoption of the Agenda, the Paris Climate Agreement (COP 21), the Addis Ababa Action Agenda, as an integrated part of the 2030 Agenda focusing on the finical aspects of its implementation and the Sendai Framework for Disaster Risk Reduction were also adopted. These instrument will not be mentioned either, since the main aim of the theses is to explore the legal value of the 2030 Agenda in the EU legal order.
The thesis will explore the theoretical implications of the Agenda in the EU legal order with a minor focus on its practical implementation, due to the lack of empirical elements in the research. The adoption of the Anti Tax Avoidance Directive by the EU is discussed merely as an example of expression of the legal value of the Agenda and the legal impacts on the EU’s internal policies will not be discussed. From the perspectives of the above-mentioned theories of international law, the emergence of new international customary law is explored and the importance of subjective legitimacy and its effect on the legal value of soft law instrument is analysed. Any financial aspects of the implementation of the Agenda will not me mentioned. The main focal point is thus to determine the legal value of the 2030 Agenda in the EU legal order.
1.5 Outline
In chapter two, the 2030 Agenda is analysed as a potential source of international law by comparing it to the defined sources of international law in Article 38 of the ICJ Statute. The role of the different sources in relation to EU law is also emphasised in the second chapter before it ends with a discussion of the applicability of the principles of pacta sunt servanda and consistent interpretation.
In chapter three the main focus is soft law and its role in international law. The chapter defines non- binding instruments and discusses the legitimacy and effect of such instruments in the international legal system and how international organisations may affect the legal value of soft law.
In chapter four, the EU’s approach to the 2030 Agenda is explored by the emphasis of the relationship between international soft law instruments and the EU legal order. An analysis of the
EU’s implementation of the Agenda and its potential expression of the subjective aspect of the Agendas’ legal value as a soft law instrument follows. The chapter ends with a discussion of the importance of policy coherence in the international legal order and in EU external relations. Finally, the thesis ends with conclusions and final comments in chapter five.
2. The 2030 Agenda as a source of international law
The aim of this chapter is explore if it is possible to classify the Agenda as a source of international law in regard to its features and to identify the relationship between the different sources of international law and EU law. Initially, the general relationship between EU law and international law will be emphasised by an analysis of the Kadi case. Further, different sources of international law will be investigated and the relationship between each source of international law in the EU legal order will be described. The Agenda is then compared to each source of international law to conclude if it is possible that the Agenda is to be considered as a source of international law. The 31 effect of international law in the EU legal order is then emphasised by discussing the relevance of the principles of pacta sunt servanda and consistent interpretation.
There are three recognised sources of primary international law stated in the Statute of the International Court of Justice: international conventions, international customary law and general principles of international law. What kind of source the Agenda is in the system of international law is therefore relevant whilst investigating its legal value. The following three sub-sections (2.2, 2.3 and 2.3) will therefore emphasise the first three sources of international law with a main focus on its relevant role in EU law and the character of the Agenda as a potential source of international law in the international legal framework. Doctrine that can be classified as ”teachings of the most highly qualified publicists of the various nations”, is stated as a fourth source of international law in the ICJ Statue, which is secondary to the three primarily sources: ”as subsidiary means for the determination of rules of law”. Whether the Agenda is to be considered as doctrine or not, and the 32 role of doctrine as a source of international law in the EU, seems rather irrelevant since it is clear that the Agenda, in regard to its character, not to any extent can be equated with the definition of doctrine in Article 38(d) in the ICJ Statute.
Article 38, ICJ Statue.
31
Article 38(d), ICJ Statute.
32
2.1 The general relationship between EU law and International law
There are various forms of international law and thus they have various legal effects. Article 38 of the ICJ Statue refers to international conventions, international custom, general principles of law, judicial decisions and teachings of the most highly qualified publicists as sources of different sources of international law. Not all of these sources are equally relevant for the EU, but is has to 33 be noted that the EU is confronted with international agreements it has not itself concluded. The EU is an international organisation composed of its Member States and not a sovereign entity, and its Member States are sovereign entities bound by international conventions, agreements and treaties which do not have the EU as a contracting party, questions arises as to the legal effects of such agreements. Moreover, the EU is also interacts with international custom, general principles of international law and international judicial decisions.
In general, one can see from Article 3(5) TEU that there is a receptive attitude towards international law within the EU legal order, which has an important political dimension and reflect the EU’s on going and ever-growing involvement in international relations. The Union is an exporter of international co-operation and is actively involved in international law-making and multilateral negotiations, such as the ones preceding the 2030 Agenda.
2.1.1 The Kadi case
In the international arena, it is not unusual that conflicts arise between norms from different regimes or sub-systems within the international realm. The Court of Justice of the EU have a fundamental role in determining the effects of international law in EU law since the provisions of the treaties are relatively unclear and not particularly precise. The Kadi case was brought to the Court of First Instance (now the General Court), by a person suspected of supporting terrorism, and he was also listed as such in an EU common position and in an EC regulation freezing his assets, which was adopted to the United Nations Security Council resolution on the issue. The person subject for the 34
Article 38, Statue of the International Court of Justice.
33
Council Regulation 881/2002 [2002] Official Journal of the European Communities (OJ), L 139/9, 29 May
34
2002.
asset freeze sought to repeal the regulation on the grounds of, inter alia, breach of fundamental rights under EU law. 35
In Kadi, the Court of First Instance considered the challenged regulation as falling outside the scope of its executive competence and could thus not call the lawfulness of the regulation in question in the light of EU law, even if the Court was dealing with a regulation adopted according to the now Article 263 in the Treaty on the Functioning of the European Union (TFEU). The fundamental 36 argument for this conclusion was that, from the standpoint of international law, the legal obligations of the EU Member States under the Charter of the United Nations prevail over every other obligation, including the ones under EU law and domestic law. That the Charter of the United 37 Nations shall prevail over other international obligations can be read explicitly in Article 103 in the Charter, and that it prevails over domestic law follows, according to the Court, from Article 27 of the Vienna Convention on the Law of Treaties, stating that a party cannot invoke the provisions of its internal law to justify a potential failure of complying to a treaty. The Court of First Instance concluded that, both in regard to general principles of international law and to the specific provision of the Treaty , any provision of the EU law that interfered with the performance of their obligations 38 under the Charter of the United Nations should be left unapplied. 39
Thus, the Court reasoned that it did not have jurisdiction to review regulation on grounds of general principled of EU law since it was within the scope of the United Nations Security Council, nevertheless, the Court reasoned that it was empowered to review the lawfulness of the resolutions with regard to jus cogens. 40
Kadi v. Council and Commission, T-315/01, [2005] ECR II-3649, para. 30 ff.
35
Article 263(4) TFEU: ”Any natural or legal person may, under the conditions laid down in the first and
36
second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.”
Kadi v. Council and Commission, T-315/01, para. 181.
37
Article 351 and Article 347 TFEU.
38
Kadi v. Council and Commission, T-315/01, para. 190.
39
Ibid, para. 226.
40
The Court of Justice annulled the particular EC Regulations as they imposed sanctions on Kadi, and Al-Barakaat (the cases were now joined) since the Court found that they constituted an unjustified 41 restriction of the right to be heard, the right to property and the right to an effective legal remedy.
The Courts reasoning was strictly dualistic, emphasising the autonomy of the EU legal order from the general international legal order and that the EU’s fundamental rules should be prioritised. The Court declared that the Union is an ”internal” and ”autonomous legal system which is not to be prejudiced by an international agreement”. However, it was still emphasised by the Court that the 42 EU must respect international law in the exercise of its powers and that EU measures should be interpreted in the light of international law and undertakings in the context of the United Nations or other international organisations. 43
The decisive point of the case is that international law, including the Charter of the United Nations and the United Nations Security Councils Resolutions, cannot affect the meaning, nature or primacy of the fundamental principles of EU law. Which these principles are was not clarified by the Court, but it appears that all ”fundamental rights” recognised by the EU legal order belong to the superior category of normative instruments. The Court even stated that if the Charter of the United Nations 44 were to be seen as a part of the EU legal system, it would still be ranked as lower than the Treaties and the general principles of EU law, in which ”fundamental rights” are included. 45
This case might be seen as merely a reaction to these specific circumstances, but considering the broad language and cautiously carried out reasoning in the judgement, it suggests that the Court seized this moment to codify the relationship between EU law and international law in general, and emphasise the autonomy of the European legal order. This case is relevant for the research carried 46 out in this thesis since the main aim is to explore the legal value of a soft law instrument adopted by
I will only discuss the facts of the Kadi case, although it was later on joined with the Al-Barakaat case
41
since the legal analysis was identical in its essence; Joined Cases C-402/05 P and C-415/05 P, Yassin
Abdullah Kadi v Council of the EU and Commission of the EC, and Al-Barakaat International Foundation v Council of the EU and Commission of the EC, judgment of 3 September, 2008.
Kadi v Council and Commission, C-402/05 P, [2008] ECR I-6351, EU:C:2008:461, para. 316.
42
Ibid, paras. 291-294.
43
See ibid paras. 303-304 and De Búrca, Graínne, ’The EU, the European Court of Justice and the
44
International Legal Order after Kadi’, Harvard International Law Journal, Vol. 1, No. 51, (2009), p. 28.
Kadi v Council and Commission, C-402/05 P, 305-308.
45
De Búrca, Graínne, ’The EU, the European Court of Justice and the International Legal Order after Kadi’,
46
(2009), p. 4.
the United Nations General Assembly within the EU legal order. Thus the general relationship between these two international regimes is a starting point for the analysis, even if the circumstances are different from the ones in the Kadi case. The conclusion that the EU must act in accordance with its international obligations in its internal, and external, policies is of particularly importance for the research.
However, there are various forms of international law with a various legal effects within the EU legal order. Each source of international law will therefore be explored in the following with a declaration of the legal effects of each source in the EU legal order. An analysis which is exploring the possibility of the Agenda as a source of international law in accordance with the ICJ Statute will end each sub-section.
2.2 International conventions and Treaties
2.2.1 Definition
International conventions are the first source of international law to be mentioned in the article:
”whether general or particular, establishing rules expressly recognised by the contesting states”. 47
”Treaties” is the generic term for international conventions, but the name of a particular instrument is of limited value in the process of defining its legal nature. To define a legal instrument as a 48 treaty is not problematic since the definition in the Vienna Convention on the Law of Treaties appears to be the one established in international law in general through the ICJ. Thus, a 49
”’[t]reaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” 50
Article 38(a), ICJ Statute.
47
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
48
Jurisdiction and Admissibility, Judgement of 1 July 1994, I.C.J. Reports 1994, p. 112.
See inter alia Qatar v. Bahrain, Jurisdiction and Admissibility (1 July 1994), para. 23 and Land and
49
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 30, para. 263.
Article 2.1(a), Vienna Convention on the Law of Treaties, (1969).
50
One of the main principle of international law, pacta sunt servanda, is the legal basis of the binding nature of treaties. The principle is found in Article 26 in the Vienna Convention on the Law of Treaties according to which ”[e]very treaty is binding upon the parties to it and must be performed by them in good faith” 51
2.2.2 International treaties in EU law
The EU is made up of Member States all of which are sovereign entities with international legal personalities. The Member States may thus enter into binding agreements with other States, members of the EU or not. Initially, Article 3(5) TEU sets out that the EU shall contribute ”to the strict observance and the development of international law, including respect for the principles of the Charter of the United Nations” in its relations with the wider world. This commitment is also confirmed by Article 21(1) TEU, where ”respect for the principles of the Charter of the United Nations and international law” is stated as guiding principles for the EU’s actions on the international arena. Further on, Article 347 TFEU permits the Member States to set their EU law obligations aside ”in order to carry out obligations…accepted for the purpose of maintaining peace and international security”.
Article 216 TFEU states that treaties concluded by the EU are binding upon the Union and its Member States. Moreover, the General Court concluded in the Kadi case that the EU, as an institution, was indirectly bound by its Member States obligations under international law as a consequence of EU Treaty law. . 52
As stated in the Treaty, the Union also has legal personality The EU is therefore a subject to 53 international law and can thus inter alia conclude and negotiate international agreements in accordance with its external commitments and also become a member of international organisations. The competence, or power, is conferred upon the Union by the Treaties and these international agreements have legal value in the internal law of the EU and in its Member States. 54 It is however of great importance that the external obligations of the Union do not interfere with its
Article 26, Vienna Convention on the Law of Treaties, (1969).
51
Kadi v. Council and Commission, T-315/01, para 221.
52
Article 47 TEU.
53
Article 216 TFEU, Article 3 TEU.
54
internal rights and obligations, such as fundamental principles of human rights, free movement of 55 people and goods etc.
The effect of international treaty law within the EU legal order was established by the Court in the cases Haegeman v Belgium and Kupferberg. Before the Kadi case, where the Court took a 56 strongly dualist approach, the EU’s monist approach towards international law and direct application was unquestioned and to ensure uniform application of throughout the Union the Court recognised its jurisdiction to give preliminary rulings on the interpretation of international agreements concluded by the EU. In the Kupferberg case the Court took the view that 57 international agreements by nature are an act of the ”Institutions of the Community” and are too be seen as an integral part of EU law, in accordance with Article 267(b) TFEU, and further that international agreements ought to be seen as supreme over EU law. 58
2.2.3 The 2030 Agenda as potential international treaty law
The Vienna Convention does not require a treaty to have a specific form or title. If there is a dispute concerning the legal status of a document, an objective test is used, taking into account the actual terms and the specific circumstances in which the agreement was concluded. 59
The 2030 Agenda was adopted by the United Nations General Assembly, an institution with broad powers to address any issue within the scope of the Charter of the United Nations. The 60 environment and sustainable development are not specifically mentioned in the Charter, but due to the competences included in the scope of the Articles 1 and 55, especially in Article 55 (a) of the Charter of the United Nations which is referring to the improvement of the standard of living and Article 55 (b), referring to a “solution of economic, social health and related problems”, it can be
Kadi v Council and Commission, C-402/05 P, paras 281 ff.
55
R. & V. Haegeman v Belgian State, Case 181/73, [1974] ECR 449, EU:C:1974:41 and Hauptzollamt Mainz
56
v C.A. Kupferberg & Cie KG a.A, Case 104/81, [1982] ECR 3641, EU:C:1982:362.
R. & V. Haegeman v Belgian State, Case 181/73, para. 6.
57
Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A, Case 104/81, paras. 11-14.
58
Qatar v. Bahrain, Jurisdiction and Admissibility (1 July 1994), para. 27.
59
Article 10, Charter of the United Nations.
60
argued that the United Nations have competence in environmental and sustainability matters, based on the doctrine of implied powers. 61
The General Assembly lacks however the competence to adopt legally binding instruments but may instead promote progressive development and codification of international law. It may also make recommendations to Member states. Resolutions adopted by the General Assembly, even by a broad majority of states or by consensus, are not legally binding but have often been highly influential in the international arena. For example, some notable resolutions have had the function of ”filling in 62 the gaps” of international law and have been transformed into legally binding norms. The resolution on the peaceful use of outer space is an example of this, since within only ten years from its 63 adoption, three multilateral treaties entered into force where provisions from the resolutions were particularly included. Nevertheless, resolutions adopted by the United Nations General Assembly 64 have an effect in world politics merely due to their political influence rather than to the legal obligations they impose. 65
It must be an intention among the contracting States to create legally binding obligations when adopting a treaty, since the adoption of a treaty is a method to create legally binding norms. If the intention with the 2030 Agenda was to create a document with legally binding force as a treaty, the fora for its adoption should have been another than the United Nations General Assembly. The choice of fora indicates that a there was no such intention amongst the contracting States. There are other international acts that may assume the form of international agreements, or treaties, but which were never adopted with the intention of creating legal obligations. 66
Friedrich, Jürgen, International Environmental ‘‘soft law” The Functions and Limits of Nonbinding
61
Instruments in International Environmental Governance and Law, Springer, Berlin, (2013), p. 23.
According to Article 18 (2) and (3) of the Charter of the United Nations, recommendations of the General
62
Assembly can be adopted by simple majority or two-thirds majority for important questions which are enumerated or determined by the Assembly.
General Assembly, A/RES/48/39, International cooperation in the peaceful uses of outer space, 10
63
December 1993.
Joyner, Christopher C., ’U.N. General Assembly Resolutions and International Law: Rethinking the
64
Contemporary Dynamics of Norm-Creation’, California Western International Law Journal, Vol.11, (1981), pp. 463-469.
Hurd, Ian, International Organizations: Politics, Law, Practice, Cambridge University Press, Cambridge,
65
(2011), p. 105.
See inter alia the 1975 Final Act of the Conference on Security and Cooperation in Europe, the 1972
66
Stockholm Declaration on Human Environment and the 1992 Rio Declaration on Environment and Development.
2.3 International customary law
2.3.1 Definition
Traditionally, customary law is described as ”usages generally accepted as expressing principles of law” that have emerged from uniform state practice. Yet, the mere fact of consistent state practice 67 of a certain international norm is not enough to create a legally binding rule of law. The creation of a norm of customary international law requires a combination of two elements: partly the actual, established and widespread state practice, and partly the psychological element known as the opinio juris sive necessitatis (opinion as to law or necessity), generically known as opinio juris. It is the 68 element of opinion juris that turns the practice into custom and a source of international law. It means that States will behave a certain way because they are persuaded that they have to due to legally binding norms. 69
Along with this two-element theory a frequently pointed out dilemma in the doctrine follows: how can a practice ever develop into a customary rule if States have to believe the rule already exists before their acts of practice can be significant for the creation of the rule? Opinio juris can be regarded as a cognitive state, and it is thus by nature a hard attribute for an entity like a State. If so, it could be argued that the only way to deduce the opinio juris from a State should reasonably be through its practice. Therefore, the development of new international customary law, with an emphasis on the element of opinion juris, should be seen as a process in which States behave in a certain way in the belief that it is according to law. If other States follow, a new customary law rule is established. If the behaviour is rejected by the international society it will surcease and the original rule will prevail. Resolutions adopted by the United Nations General Assembly have been 70
Permanent Court of International Justice, The Case of the S.S. ”Lotus”, Judgement of 7 September 1927,
67
PCIJ Series A – No. 10, at 18.
As concluded by the Court in the North Sea Continental Shelf Cases Judgment (North Sea Continental
68
Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgement of 20 February 1969, I.C.J. Reports 1969, p. 3, para 77: ”Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.”
Shaw, Malcolm, International Law, 7th ed., Cambridge, Cambridge University Press, (2014), p. 60.
69
Ibid. p 62.
70
treated as evidence for opinio juris by the Court under specific circumstances, taking into account the content of the specific resolution and the conditions of its adoption. The key aspect is however 71 the attitude taken by the participating States in the adoption of the resolution. The Court has 72 referred to the work of the International Law Commission and to major codification conventions 73 for guidance in this issue. 74
State practice, the second essential element for the customary rule to be applicable to States , refers 75 to the action, on inaction, of States in relation to each other or to other recognised international organisations. The practice required for establishing a customary rule does not have to be the practice of every State, the fact that it is widespread and consistent is enough. Thus, merely voting for the adoption of an international instrument is insufficient for establishing a customary law rule, and furthermore, customary law is not simply made by majority either; whether there is an 76 opposition to a certain norm or not might stop the creation of a new customary rule, even if it is favoured by the majority. According to the theory of new International Legal Process, law can be 77 considered as established if actors start to behave according to a certain value, even if it is not outspoken as legally binding. 78
The most distinct difference between customary law and treaty law is that customary law is applicable to all subjects of international law, while treaty law only applies to those who are parties to the specific treaty. International customary law is thus of universal application and it often develops as a reflection of a common need in the international society. This reflects the
Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America),
71
Merits Judgment of 27 June 1986, I.C.J. Reports 1986, p. 14, paras 184 and 188 and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, p. 226, para. 70.
Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America),
72
Merits Judgment of 27 June 1986, paras. 99-100.
See e.g. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, paras.
73
38-42.
Shaw, Malcolm, (2014), p. 63.
74
Military and Paramilitary Activities in und against Nicaragua, ICJ Reports 1986, p. 14, para. 184.
75
Thirlway, Hugh, ’The Sources of International Law’, in: Evans, Malcom, International Law, (2010), p.
76
105.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 70.
77
O’Connell, Mary Ellen, (1999), p. 85.
78
decentralisation of the international legal order. Provisions in a treaty between parties might 79 though transform into customary law through State practice by non-contracting parties, if the particular rule is ”of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law”. 80
2.3.2 International customary law in EU law
International customary law is universally applicable, and it therefore applies to all subjects of international law, including the EU. It has been concluded by the Court that the EU must respect international law in the exercise of its powers and that customary international law ”concerning 81 the termination and the suspension of treaty relations by reason of a fundamental change of cir- cumstances” are binding upon the Union and its institutions and thus shall be seen as a part of EU law. International customary law thus have a great impact in the EU legal order when the custom 82 is deriving from a treaty, since it is binding on all subjects of international law, including the EU.
2.3.3 The 2030 Agenda as potential international customary law
As can be understood from this sub-section, customary law is established where there is, to some extent, widespread State practice and a belief that this practice is obligatory to an already existing rule, i.e., opinio juris. Resolutions adopted by the United Nations General Assembly have been treated as evidence for opinio juris by the Court under certain circumstances. If these certain 83 circumstances are fulfilled in the case of the Agenda is uncertain, but the fact that its outcome document was adopted by consensus can contribute to the possibility that the Court would considerate Agenda as an evidence of opinio juris. 84
Whether there is established and widespread State practice equal to the aims and objectives stated in the Agenda, as a whole or to some extent, is unclear and the limited scope of this thesis precludes a
Shaw, Malcolm, (2014), p. 52.
79
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of
80
Germany/ Netherlands), Judgement of 20 February 1969, para 71.
Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp, C-286/90, [1992] ECR I-6019,
81
EU:C:1992:453, para. 9.
A. Racke GmbH & Co. v Hauptzollamt Mainz, C-162/96, [1998] ECR I-3655, EU:C:1998:293, para. 46.
82
Military and Paramilitary Activities in und against Nicaragua, ICJ Reports 1986, p. 14, paras 184 and 188
83
and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 70.
Pavoni, Riccardo; Piselli, Dario, (2016), p. 42.
84
comprehensive scrutiny of all the 193 participating States practice in the extensive area that constitutes the scope of the Agenda. It could be argued that if the States already acted in global cooperation according to the Agenda, there would not be a need for the adoption of the Agenda in the first place.
One should however not decline the possibility that a customary rule can emerge in the future.
Since the mere existence of the Agenda is enough to form opinio juris, at least in theory, the resolution might shape State practice. The Agenda has a codifying function that contributes to a more transparent process of creation of new customary law, which could eventually result in the emerging of new customary law deriving from the Agenda. 85
2.4 General principles of international law
2.4.1 Definition
General principles in international law have been described by Dworkin as ”standards that are to be observed because they are a requirement of justice or fairness or some other dimension of morality”. Yet, neither the ICJ, nor the Permanent Court of Justice, have up to the present based a 86 decision upon general principles of international law. This third source of international law was created by the Commission of Jurists, when Article 38 of the Permanent Court of Justice was being drafted, in case of disputes being brought in front of the future Court could not be solved by rules and principles governed by established treaty or customary law. It was considered as undesirable for the Court to be obliged to deliver a non liquet, i.e. a decision that cannot be upheld or rejected due to lack of any existing applicable rule. 87
Arbitral bodies have relied on the concept of these principles, even if Article 38 of the ICJ Statute is not directly applicable to such institutions. However, there is no distinct definition amongst scholars as to of what nature a principle must be to lie within the scope of Article 38. In the Rome Statute of
Charney, Jonathan, ’Universal International Law’, American Journal of International Law, Vol. 87, (1993),
85
529-551. See also Friedrich, Jürgen, (2013), p. 144-149.
Dworkin, Ronald, The Model of Rules, The University of Chicago Law Review, Vol. 35, No. 1, Article 3,
86
(1967), p. 23.
Thirlway, Hugh, in: Evans, Malcom (2010), p. 108-109.
87
the International Criminal Court there is a definition of principles that might be interpreted as that the principles can be derived from a comparison of different systems of municipal law and are shared by all, or at least a majority, of them. Another perspective of the definition of international 88 principles could be that principles applicable in legal relations in general are included, such as pacta sunt servanda, lex specialis and lex superior. However, some of these principles fall within the scope of customary law and others are applied unquestioningly as self-evident. Despite this, even if the reason of its application is not perfectly clear, the fact that international principles of law are a source of international law remains, and thus the Court will take judicial notice without requiring argument. This is nevertheless merely of theoretical relevance for distinguishing the legal sources 89 of international law and though it remains partly unclear what actually constitutes an international principle, general principles that can be helpful for the interpretation of a treaty seem to be included in the definition. 90
2.4.2 General principles of international law in EU law
Since general principles of international law are listed as a source of international law in Article 38.1(c) of the ICJ Statute, and therefor form part of international law, they are binding upon the European Union for the same reasons explained in chapter 2.2.2 above, i.e. with respect to Article 3(5) and 21(1) TEU. The binding nature of international law has been recognised by the Court of Justice of the European Union several times, and thus the EU's actions have to be adopted in 91 conformity with these principles. The main objective in EU's external relations is to achieve conformity with international law and principles, e.g. the principles of the Charter of the United Nations, mentioned in Article 21(3). Yet, the external principles binding upon the EU cannot 92
Ibid. and Article 21(1)(c) Rome Statute of the International Criminal Court; …”general principles of law
88
derived by the Court from national laws of legal systems of the world”.
Fuentes, Carlos Iván, Normative Plurality in International Law - A Theory of the Determination of
89
Applicable Rules, Ius Gentium: Comparative Perspectives on Law and Justice, Springer, New York, (2016) p. 71.
Golder v. The United Kingdom, European Court of Human Rights, 21 February 1975, the ECHR refers to
90
access to a court a general principle of law when interpreting Article 6 of the European Convention of Human Rights.
See International Fruit Company NV and others v Produktschap voor Groenten en Fruit, Joined Cases
91
21-24/72, [1972] ECR 1219, EU:C:1972:115, para. 6; Anklagemyndigheden v Poulsen Diva Navigation C-286/90, para 9 and A. Racke GmbH & Co. v Hauptzollamt Mainz C-162/96 paras 45-46.
Firma Brita GmbH v Hauptzollamt Hamburg-Hafen, C-386/08, [2010] ECR I-0000, EU:C:2010:91, paras
92
39-45.
