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Schilling goes to great lengths to debunk the alleged constitutional foundations of the Community legal order. One could, of course -- and, in our view, one should -- call into question the very dichotomy between "the international" and "the constitutional." implicit in Schilling's argument. The blurring of this dichotomy is precisely one of the special features of the Community legal order and other transnational regimes.[146 ] But our critique of the Schilling piece does not go, as stated, to his whole argument. We are willing to share with him the constitutional-international distinction and even go further and share with him much of his critique of the constitutional-foundation thesis.
The European legal order was begotten from public international law in the normal way that these things happen: there was a communion among some States -- the High Contracting Parties -- which negotiated, signed, and subsequently ratified the constituent Treaties which brought into being, first the nascent European Coal and Steel Community and then, its twin siblings, the European Economic Community and Euratom. We know their progeny today as the three-pillared European Union. This manner of conception would, in the normal course of international life, determine the genetic -- as well as legal -- code of the new infant: an international organization with a separate legal personality but with no measure of independence or power to eradicate its subordination to its States parents and its subjection to the classical laws governing the States' treaty relations. The States, like the Olympian Gods, would forever remain ultimate Masters of their creation. The Germans have a nice phrase for this: the Member States are called the "Herren der Verträge."[147 ]
This mastery of the States over their offspring does not prevent, as with other Almighties, acts of self-limitation: In the begetting of an international organization through an international treaty, the High Contracting Parties may decide to bestow on their offspring the power to make decisions which will bind them. They may even privilege a few States in the process.[148 ] But, at any point, as long as the Member States act in unison, they may change the status or the capacities of the organization. The basic principles of the law of treaties would apply to privilege the makers of the treaty at all critical junctures in the life of a treaty -- treaty-making, amendment, interpretation and termination. As masters of the treaty, states are also masters of the organization. Thus, for example, not infrequently will states amend a treaty -- including one setting up an international organization -- in violation of its specific amendment procedures. As long as the amendment is in accord with the collective will of all parties, it would be considered valid.[149 ] Likewise, should there be a disagreement over the interpretation of a clause within a treaty, an agreement of all parties will normally be the final word as either an authentic interpretation[150 ] or a de facto amendment.[151 ]
There is a different manner in which disparate states may bring into being a new legal order, by "constitutional" fusion. Birth may take different forms, from constitutional convention[152 ] to treaty.[153 ] Arguably each new creature inherits a genetic and legal code altogether different from that of their parents. The constitutive act may explicitly or implicitly extinguish the separate existence of the constituent units,[154 ] but, in any event, it will subordinate the constituent units to the new creation. Thus, it is sometimes thought that whereas the subjects of a treaty (or a treaty-based international organization) are the states composing it, the subjects of, say, a federal constitutional order are not only its constituent states, but also its common citizenry. This difference is thought to create a different level of legitimacy for the constitutional order, one where its legitimacy does not come only from the consent of sovereign states but from the broader and more direct consent of the citizens of those constituent units. Typically, the international organization is governed by international law and the constitutional order by its own municipal law.
There is no doubt that the European legal order started its life as an international organization in the traditional sense, even if it had some unique features from its inception.[155 ] This original internationalism was evident in, for example, the attitude of the institutions of the Communities themselves, including the vaunted ECJ,[156 ] as well as in the attitude of the Member States receiving expression in, for example, early instances of Treaty amendment.[157 ] We entirely share, then, Schilling's critique of those who hold that the Community legal order was born as a constitutional order.[158 ] It should be stated that few would ascribe original constitutionalism to the Community legal order.
Nevertheless, one of the great perceived truisms, or myths, of the European Union legal order is its alleged rupture with, or mutation from, public international law and its transformation into a constitutional legal order.[159 ] This mutation takes place, allegedly, from 1963 onwards and is reflected in landmark cases of the ECJ -- in dialogue with national courts. The Court talks first of a "New Legal Order of International Law"[160 ] and then of a "New Legal Order" simpliciter. The "newness" of the legal order is characterized as "constitutional" and the process as "constitutionalization." The subjects of the new order are said to be not only states, but also individuals. Most commentators focus on the legal doctrines of supremacy of European law, the direct effect of European law, implied powers and preemption, and on the evolution of the protection of fundamental human rights as hallmarks of this "constitutionalization."[161 ]
Whether or not, from the perspective of legal theory, these specific legal doctrines constitute real hallmarks of a constitutional order, as distinct from a classical international law order, can be -- and has been -- open to debate.[162 ] Assuming the distinction between an international and a constitutional order makes any sense at all -- and this too can be doubted! -- we would prefer to focus on the following features which distinguish the European legal order from public international law: the different hermeneutics of the European order, its system of compliance which renders European law in effect a transnational form of "higher law"[163 ] supported by enforceable judicial review, as well as the removal of traditional forms of State Responsibility from the system.[164 ] We shall deal with these issues extensively in a separate article.[165 ]
However flawed the "constitutionalization" thesis may be from the perspective of legal theory, it has enjoyed huge success in the discourse of European law, and this from all actors concerned. The evidence is everywhere, both sublime and ridiculous -- let the reader be the judge of which is which.
For its part, the ECJ did not hesitate to abandon the New Legal Order vocabulary in favor of an explicit constitutional rhetoric. [166 ] And whatever European law is called elsewhere, it has been treated frequently and consistently by national courts differently from most other treaty law and from the decisions of most other international organizations.[167 ] Not surprisingly, Community law is often practiced, taught, and studied by different sets of professionals. In what many consider the preeminent English-language international legal journal, The American Journal of International Law, you will hardly find articles dealing with European law, ever since Eric Stein published his celebrated article consecrating the European legal order in federal constitutional terms,[168 ] for the simple reason that the journal does not consider it international law! Even that cheeky upstart rival, The European Journal of International Law, treats the European Union as a polity in whose internal law it has little interest, for, again, it is not considered international law. By contrast, this last journal takes trouble to publish the European Union's "State Practice" in international fora for the benefit of its readers, in the way international law journals occasionally publish surveys of the state practice of the nation from which they publish. Furthermore, at most institutions of higher learning, knowledge of international law is not a requisite for the study of European Law. It has, in our view, become increasingly artificial to describe the legal structures and processes of the Community with the vocabulary of international law.
Schilling himself is not impressed by the "constitutionalization" thesis. Even if the Community, like a precious metal, has some of the characteristics of a constitutional legal order, it lacks the most fundamental property: legitimation through a popular constituent power which in this case can only be the European people(s). From a purist, Kelsenian, perspective, Schilling argues, European constitutionalism is ersatz gold. Schilling thus reverts back to the origins of the Community and places his bet on international law.[169 ]
But what of the realist perspective? In light of the overwhelming practice of the last three or four decades, if the Community order is treated as constitutional who cares what it "really" is? Schilling does not shy away from the realist perspective, which he calls the Hartian perspective.[170] His critique is more refined. He claims that if one takes the realist approach one buys a European constitutional construct by compromising the legitimacy of the European public sphere.[171 ]
We cannot accept the purist approach. We do not think that a reversion to public international law is any less artificial than the constitutional characterization. The Community lacks, in our view, some of the fundamental properties of internationalism. We are, however, very sympathetic to Schilling's assessment of the realist perspective. We too have characterized this system as a constitutional order without constitutionalism.[172 ] We think that the legitimacy gap is for real. The Community has adopted constitutional practices without any underlying legitimizing constitutionalism. Yet, attempts such as those by the German Constitutional Court[173 ] and by Schilling to try to push the toothpaste back in the tube by asserting that the Community is nothing more than an International Organization are self-serving (to the Court) and unhelpful in addressing the real problem of legitimacy. The legitimacy problem that Schilling points out will not go away if we change the theoretical foundation of the legal order from a constitutional one to an international one. Be this as it may, the implication of the internationalist premise on the "Decisive Question" is of greater interest.
[146] See JOSé DE AREILZA, SOVEREIGNTY OR MANAGEMENT?: THE DUAL CHARACTER OF THE EC'S SUPRANATIONALISM -- REVISITED (Harvard Jean Monnet Working Paper No. 2/95, 1995).
[147] See, e.g., German Constitutional Court, Judgment of Oct. 12, 1993, 89 BVerfGE 155, 190 (F.R.G.). But see Markus Heintzen, Die "Herrschaft" über die Europäischen Gemeinschaftsverträge - Bundesverfassungsgericht und Europäischer Gerichtshof auf Konfliktkurs?, 119 ARCHIV DES öFFENTLICHEN RECHTS 564 (1994).
[148] The UN Charter empowers a small number of States in the Security Council to make decisions binding on the international community as a whole. U.N. CHARTER arts. 23 - 32. The Charter further privileges some States by giving them permanent membership in the Council and veto power. Id. Other organizations privilege States by according their votes more weight. Henry G. Schermers & Niels M. Blokker give some examples including the International Monetary Fund (IMF, art. 12, sec. 5(a)), the World Bank (World Bank, art. 5, sec. 3), the International Fund for Agricultural Development (IFAD, art. 6(3); Schedule II), the International Sugar Council (International Sugar Agreement, art. 25 and Annex), the Multilateral Investment Guarantee Agency (MIGA, art. 39), the Common Fund for Commodities (UNCTAD, Fundamental Elements of the Common Fund, para. 24), the International Energy Agency (IEA, art. 62), and the International Maritime Satellite Organization (INMARSAT, art. 14(3)). HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW, §§ 799 - 812 (3d ed. 1995).
[149] This so-called "freedom of form" rule seems to be confirmed by art. 39 of the Vienna Convention. U.N. Convention on the Law of Treaties, opened for signature May 23, 1969, art. 39, 1155 U.N.T.S. 331, 340 [Vienna Convention] ("A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide." Part II deals with the conclusion (and entry into force) of treaties.). Art. 11, which is part of Part II, provides that the consent of a State to be bound can be expressed in any form agreed between the parties. However, art. 39 subjects this freedom to the condition that the treaty does not provide otherwise. We find an interpretation contrary to the "freedom of form" rule unconvincing. There are two arguments clearly confirming the freedom of form. First, special revision clauses are intended to facilitate, not to complicate, the ordinary amendment process. The special amendment procedure, then, bars single States from insisting on amendment by consensus if the treaty provides for a more efficient procedure. There is, however, no reason why in cases in which all parties agree to consensus procedure they should not be able to do so. Second, argumentum a maiore ad minus ex Vienna Convention art. 54. If treaties can be terminated at any time by the consent of all the parties, then the parties must also be able to employ the less significant measure, the amendment or revision of the treaty by the consent of all the parites. Both arguments are put forward by WOLFRAM KARL, VERTRAG UND SPäTERE PRAXIS IM VöLKERRECHT 341 - 43 (1983); Bruno de Witte, Rules of Change in International Law: How Special is the European Community?, 25 NETH. Y.B. INT'L L. 299, 313 (1994).
[150] See, e.g., 1 OPPENHEIM'S INTERNATIONAL LAW, supra note 17, § 630, at 1268 - 69; ALFRED VERDROSS & BRUNO SIMMA, UNIVERSELLES VöLKERRECHT: THEORIE UND PRAXIS § 775, at 490 - 91 (3d ed. 1984); KNUT IPSEN, VöLKERRECHT 120 - 21 (3d ed. 1990). See also Vienna Convention art. 31(3)(a), supra note 26, 1155 U.N.T.S. at 340.
[151] It may be difficult to draw a clear line between the two. Authentic interpretation, along the lines of art. 31(3)(a) of the Vienna Convention, can, substantially, be conceived of as a material amendment to the Treaty. Vienna Convention, supra note 26, 1155 U.N.T.S. at 340 [Vienna Convention]. This may have decisive implications, especially in municipal law. While amendments to international treaties generally have to be ratified by a competent body under national law, one could well argue that interpretive declarations do not have to be so ratified. This question arose, for example, under German law when the Bundesverfassungsgericht had to decide upon the constitutionality of the deployment of German armed forces "out of area." Judgment of July 12, 1994, BVerfGE, 90 BVerfGE 286; see Wolff Heintschel von Heinegg & Ulrich R. Haltern, The Decision of the German Federal Constitutional Court of 12 July 1994 in Re Deployment of German Armed Forces "Out of Area", 41 NETH. INT'L L. REV. 285, 305 - 07 (1994).
[152] Consider, for example, the constitutional convention founding the United States. See, e.g., MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (1913); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776 - 1787 (1969).
[153] Consider the Einigungsvertrag of Aug. 31, 1990 [F.R.G. - G.D.R.: Treaty on the Establishment of German Unity] 1990 Bundsgesetzblatt Teil II [BGBl. II] 889, translated and reprinted in 30 I.L.M. 457 (1991)(leading to German unification). See, e.g., Peter E. Quint, Constitution-Making by Treaty in German Unification: A Comment on Arato, Elster, Preuss, and Richards, 14 CARDOZO L. REV. 691 (1993). As far as German law is concerned, according to GG art. 23, unification was implemented by the accession of the German Democratic Republic to the Federal Republic of Germany.
[154] On October 3, 1990, the G.D.R. ceased to exist. Its territory became part of the Federal Republic of Germany. The five states (Länder) that formed the G.D.R. became states of the Federal Republic. See, generally Jochen Abr. Frowein, The Reunification of Germany, 86 AM. J. INT'L L. 152 (1992).
[155] These unique features are so well known as to obviate extensive description. We content ourselves to point to EEC Treaty art. 189, the possibility of binding decision-making and majority voting under EEC, and the extraordinary powers of the High Authority under ECSC.
[156] See, e.g., Dineke Algera v. Common Assembly of the European Coal and Steel Community, supra note 8.
[157] In 1956 and 1957, the six original Member States of the European Coal and Steal Community twice modified the ECSC Treaty by informal agreement, disrespecting the formal procedure laid down in ECSC Treaty art. 36. See de Witte, supra note 26, at 316; Werner Meng, Artikel 236, in KOMMENTAR ZUM EWG - VERTRAG, supra note 7, para. 31, at 5844. See also J.H.H. Weiler & James Modrall, Institutional Reform: Consensus or Majority?, 10 EUR. L. REV. 316 (1985); J.H.H. Weiler & James Modrall, La création de l'Union européenne et sa relation avec les traités CEE, in PERSPECTIVES EUROPéENNES - L'EUROPE DE DEMAIN 173 (Commission des Communautés Européennes ed., 1985).
[158] Schilling, supra note 1, discussion part II.A. (at 390-95).
[159] Literature on this subject is endless. For a recent contribution see THE EUROPEAN CONSTITUTIONAL AREA (Roland Bieber & Pierre Widmer eds., 1995), and references therein.
[160] Van Gend & Loos v. Nederlandse, supra note 8.
[161] E.g., G. Federico Mancini, The Making of a Constitution for Europe, 26 COMMON MKT. L. REV. 595 (1989); Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 75 AM. J. INT'L L. 1 (1981).
[162] See Derrick Wyatt, New Legal Order, or Old?, 7 EUR. L. REV. 147 (1982); Bruno de Witte, Retour à "Costa": La primauté du droit communautaire à la lumière du droit international, 20 REVUE TRIMESTRIELLE DE DROIT EUROPéEN 425 (1984).
[163] Mauro Cappelletti & David Golay, The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration, in 1 INTEGRATION THROUGH LAW - EUROPE AND THE AMERICAN FEDERAL EXPERIENCE: METHODS, TOOLS AND INSTITUTIONS NO. 2, POLITICAL ORGANS, INTEGRATION TECHNIQUES AND JUDICIAL PROCESS 261 (Mauro Cappelletti et al. eds. 1986).
[164] Weiler, supra note 7, at 2422.
[165] We are aware that this issue is disputed. See, e.g., Christian Tomuschat, Völkerrechtliche Schadensersatzansprüche vor dem EuGH, in EUROPARECHT - ENERGIERECHT - WIRTSCHAFTSRECHT, FESTSCHRIFT FüR BODO BöRNER 441 (Jürgen F. Baur et al. eds., 1992); Bruno Simma, Self-Contained Regimes, 16 NETH. Y.B. INT'L L. 111, 123 - 29 (1985).
[166] Parti Ecologiste "Les Verts" v. European Parliament, 1986 E.C.R. 1339.
[167] This situation becomes most obvious in Member States with a (mitigated) dualist system, above all Germany and Italy. In Germany, the Bundesverfassungsgericht in the German Handelsgesellschaft Case held that "[t]his Court - in this respect in agreement with the law developed by the European Court of Justice - adheres to its settled view that Community law is neither a component part of the national legal system nor international law, but forms an independent system of law flowing from an autonomous legal source." German Constitutional Court, judgment of May 29, 1974, BVerfGE 37, 271, translated in English in 1 DECISIONS OF THE BUNDESVERFASSUNGSGERICHT - FEDERAL CONSTITUTIONAL COURT - FEDERAL REPUBLIC OF GERMANY: INTERNATIONAL LAW AND THE LAW OF THE EUROPEAN COMMUNITIES 1952 - 1989 (pt. I) 270, 274 (1992) (emphasis added). The Italian Corte Costituzionale in the Italian Frontini Case held, "Fundamental requirements of equality and legal certainty demand that the Community norms, which cannot be characterised as a source of international law, nor of foreign law, nor of internal law of the individual States, ought to have full compulsory efficacy and direct application in all the Member States ..." Judgment of Dec. 27, 1973 (Italian Frontini Case, No. 183) Corte Cost., translated in 2 COMMON MKT. L. REP. 386, 387 (1974)(our emphasis). The different treatment of Community law and other international treaty law is confirmed in the Granital decision. Judgment of June 8, 1984 (Granital v. Amministrazione delle Finanze dello Stato, No. 170), Corte Cost., translated in 21 COMMON MKT. L. REV. 756 (1984). See FRANCESCO P. R. LADERCHI, THE EUROPEAN COURT AND NATIONAL COURTS, DOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT, REPORT ON ITALY (EUI Working Paper RSC No. 95/30, 1995). See also HENRY G. SCHERMERS & DENIS WAELBROECK, JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES 127 - 138 (5th ed. 1992). However, the issue of Kompetenz-Kompetenz has led the German Constitutional Court to seek distance from the rhetoric of an "autonomous legal order" and to retreat to "international law" rhetoric, as in the German Maastricht decision, supra note 16. See on this development JULIANE KOKOTT, THE EUROPEAN COURT AND NATIONAL COURTS, DOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT, REPORT ON GERMANY (EUI Working Paper RSC No. 95/25, 1995) 9 - 13, 23 - 25.
[168] Stein, supra note 38.
[169] Schilling, supra note 1, at 397-98 ("There are, in fact, some indicators that point in the opposite direction, away from constitutionalization. Importantly, the European Treaties continue to be amended by treaties and provide for future amendments. The minor role that Maastricht Treaty art. N(1)(2) gives the European Parliament in preparing the draft of amending treaties cannot be an indication that the European people has adopted the treaties as a constitution. In addition, it cannot be be claimed that there is, with the European people, a custom supported by a common opinio juris that regards the European Treaties as the constitution of an autonomous Europe. While some Europeans take this view, there are as many who do not share it. This is not enough to create a custom.").
[170] E.g., Schilling, supra note 1, at 398-400.
[171] Id. at 399-401.
[172] J.H.H. Weiler, "... We Will Do, And Hearken" (Ex. XXIV:7): Reflections on a Common Constitutional Law for the European Union, in THE EUROPEAN CONSTITUTIONAL AREA, supra note 36, at 413.
[173] See Weiler, supra note 16, at 1669 - 70.