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How then does Schilling deal with the "Decisive Question" of the ultimate power to invalidate ultra vires Community law? And how does he reach the conclusion that an "... international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the ultimate umpire of the system ..." from which he believes that it follows that "... the Member States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community"?[174 ] It is worth following his reasoning with some care.
His first argument, referring to Kelsen's 1952 treatise,[175 ] is to claim, somewhat surprisingly, that "[g]eneral international law does not provide any guidance on this question because it does not know of international institutions."[176 ] He then relies on a 1953 essay by Leo Gross[177 ] to support his thesis that "[t]he accepted method for the interpretation of international treaties, in the absence of treaty institutions, is autointerpretation."[178 ] We doubt whether either of these statements is an accurate reflection of their authors' intentions[179 ] or, in any event, of international law in the 1990s. When we offer our alternative construct, we shall return to these points.
First, we think that Schilling mischaracterizes the issue of autointerpretation. Even in treaties without centralized institutions, which is not the case of the European Treaties, autointerpretation, by each state individually, is mostly accepted as a practical inevitability with little, if any, normative value. The very article by Leo Gross on which Schilling seems to rely[180 ] is most eloquent on this issue. Gross explicitly avoids giving any normative spin to autointerpretation and clearly labels it as a de facto stand-off when he denies it any binding force. It is useful to quote Gross more extensively.
This interpretation [of the individual states], however, is not a "decision" and is neither final nor binding upon the other parties ... [We] may never know ... which autointerpretation was correct. A controversy, in other words, may remain unsettled forever or for a long time.[181 ]
It can be shown, I believe, that states have the right of autointerpretation but not the right to decide questions of international law, that is, to make binding decisions for others.[182 ]
In a dispute regarding the interpretation of a bilateral treaty, the competent authority is the composite organ formed by the two contracting parties, or a tribunal instituted by the parties with the power to settle the dispute. To attribute to one party alone the capacity of an organ, that is, the right to decide the meaning of a treaty, would amount to conferring on it the right to create a norm binding on the other state, that is, juridically speaking, subordinate the other state to the jurisdiction of the former. If no other principle of international law then certainly the principle of equality militates against such an attribution. Obviously, autointerpretation has no binding character. In autodecision, such a character is implied, but without any justification in general international law.[183 ]
The same consideration applies in multilateral treaties. Each contracting party has a right of autointerpretation, but not of autodecision. The right of authentic interpretation is vested in the composite organ formed by all the contracting parties. Unless the treaty provides for an alternative procedure, an authoritative interpretation can result from negotiations leading to an agreement, or from arbitration or adjudication.[184 ]
It is part of the principle of pacta sunt servanda that the right of authentic interpretation belongs to the composite organ which created the treaty and not to any of the states members of that organ.[185 ]
Arbitration and adjudication appear to be among the classic methods for seeking and obtaining an authoritative interpretation on questions arising from the autonomous application and interpretation of international law.[186 ]
Gross warns explicitly against Schilling's mistake:
Autointerpretation is easily presented, or rather misrepresented, as autodecision for want of a compulsory procedure leading to a heteronomous and binding decision. But appearances are misleading ... [187 ]
Presupposing the absence of any mechanism of dispute resolution, we consider autointerpretation as a factual inevitability in a realm of little legal sophistication, and equally little shared goals and coordination.[188 ] It is not by accident that Gross discusses the issue of autointerpretation in reference to Kelsen's theory that states act as organs of the international community,[189 ] which is closely related to the problem of bellum justum.[190 ] Neither is it by accident that the most notable and recent case on the subject touched upon the unilateral re-interpretation of a cold war arms control treaty between the US and the Soviet Union.[191 ] Yet even to say that autointerpretation under these conditions would be an "accepted method" proves too much.[192 ] Both jurisprudential[193 ] and functional[194 ] arguments are powerful enough to cast more than a shadow of doubt on a normative claim to autointerpretation.
These difficulties with autointerpretation, both jurisprudential and pragmatic, have increasingly induced States to create a variety of mechanisms to settle disputes -- ranging from voluntary arbitration to the creation of international tribunals and a binding commitment to judicial dispute resolution. The extensive experience with international institutions in the last four decades, while it has become part of general international law, has also revealed the intricate problem of quis judicabit -- who is competent to decide upon measures adopted by international organizations?[195 ] While we expect that the Messiah will have to arrive before total consensus among international lawyers can be reached on any issue, state practice confirms the overwhelming view that when a treaty sets up a procedure for binding dispute resolution, particularly judicial organs, autointerpretation is legally squelched.[196 ] Tribunals do have jurisdiction to determine their own competence by interpreting their constitutive instruments.[197 ] Likewise, under general international law, the competence of a tribunal to determine the illegality of the actions of an international organization presumptively includes all grounds of illegality, including, we would submit, this international organization's lack of competence to act.
When the stakes are sufficiently high and states do not want to risk the outcome of a binding resolution, these states can use well-established and widely-practiced techniques to preserve their position. Instead of binding judicial resolution, states can, for instance, empower panels or committees to issue recommendations and help in conciliation.[198 ] But as a general proposition, practically self-evident, it would empty binding judicial dispute resolution of its meaning if States subject to such procedures, were then, in law, free to resort to "autointerpretation" and disregard the decision of the international tribunal.
We do not wish to minimize the "hard case" scenario. Arguably, a state is not obligated by an otherwise-binding resolution if this resolution was adopted ultra vires. But why limit this result to resolutions adopted ultra vires? Arguably, a state is not obligated by an otherwise-binding resolution if it was illegal for whatever reason, e.g. a procedural failure or a conflict with jus cogens. The nature of a mechanism providing for binding judicial resolution is that a state has to live with the risk of an adverse decision.
Under general international law, the state does have certain options. It can, for example, seek to convince all parties to the treaty to adopt its position. If successful, as masters of the treaty, the member states can jointly modify the treaty provision or the measure in question to remove the alleged illegality. A state can, if allowed, withdraw from the organization.
Of course, it can also decide to follow its own understanding of the law and disregard the tribunal, as states have sometimes done, but by doing so it would be violating international law and incurring state responsibility. While such a violation is a pragmatic option, in that states can, in fact, take this course of action, this option should not be cloaked with the mantle of legality.
Therefore, general international law does give us some guidance, and the guidance it gives us runs counter to Schilling's argument. Be that as it may, Schilling does not stake his claim on general international law, but on an international law interpretation of the EC Treaties. We must therefore turn to these. Do the European Treaties create some exception to the thrust of general international law?
Faithful to his internationalist approach, Schilling brushes aside the rather particularized hermeneutics, developed and applied for years within the European legal order,[199] and exhorts us to return to article 31(1) of the Vienna Convention on the Law of Treaties. Interpretation is to follow "... the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."[200]
The relevant provisions, according to Schilling, are EC art. 164 and EC arts. 169 - 183. In particular, he focuses on EC art. 171, which states that "[i]f the Court of Justice finds that a Member State has failed to fulfill an obligation under this Treaty, [it] ... shall be required to take the necessary measures to comply with the judgment of the Court of Justice." Schilling finds the ordinary meaning of this provision to indicate that the Court "... is the ultimate umpire of the European system."[201 ] We concur, reading the plain language of the article -- which does not restrict the duty of obedience ratione materiae. If a Member State were to decide that it did not have to follow a measure it viewed as ultra vires but the ECJ thought otherwise, article 171 would require that the Member State obey the ECJ. But Schilling tries to overturn his own understanding of the ordinary meaning of the words by demonstrating that such a plain meaning would be inconsistent with the context of the provision and the object and purpose of the European Treaties.
Before we turn to his analysis of context, object and purpose, we must raise a more fundamental question: should Schilling have focused solely (or even principally) on EC Treaty art. 171 in his international law interpretation of the European Treaties on the issue of judicial Kompetenz-Kompetenz? We think that art. 173 and 177 are also worthy of special mention.
Taking an internationalist, voluntarist, positivist approach, we recall that the High Contracting Parties to the European Treaties set up a court, the ECJ, to settle disputes arising under the Treaties. In their wisdom, they granted that Court wide jurisdiction, including jurisdiction to review the legality and validity of Community measures.[202] They even set out the criteria which the Court was to employ when engaging in such review.[203] They could have restricted the competence of the Court to review, for example, infringements of procedural requirements. They also could have given wide grounds of review in some fields while excluding others entirely. Schilling claims that a correct internationalist interpretation of the Treaties gives the individual supreme courts of the Member States, acting separately, the final say on the competences of the EC. The Member States could have spelled that out, but they did not. In fact, they appear to have spelled out the opposite. In article 173, the grounds for review are listed as "... lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers."[204]
The first ground for declaring the illegality of an act of a Community institution is lack of competence. This lack of competence might be internal, i.e., if the competence belongs to another institution,[205] or external, i.e., the Community, as such, lacks competence.[206 ]
But why read art. 173 as making the European Court the "ultimate" umpire? This is what Schilling would have us believe is a correct international law interpretation of this provision: the High Contracting Parties set up the ECJ and gave it explicit jurisdiction to adjudicate challenges to Community measures by, among others, Member States on the grounds of lack of competence. That is, a Member State in dispute with a Community institution or with other Member States regarding the observance of Community law, if it believes that it may disregard a Community measure because it was taken ultra vires, is given a specific judicial remedy before the ECJ. But according to Schilling, the High Contracting Parties intended with this provision that the state challenging the legality of a community measure, if it lost in front of the ECJ, could nonetheless disregard the Community measure in question by using its right to "autointerpretation." "Heads I Win, Tails You Lose," is what we used to call that form of adjudication in kindergarten. This, we think, flies against the ordinary meaning and the entire judicial review context of the provision.
It also flies against the purposes of the treaties which include, according to art. 2, harmonious and balanced development, social cohesion, and solidarity among Member States.[207] Consider, as just one example, the pragmatic nightmare that would ensue in a treaty as long, complex, and, by its own terms, open-textured as the EC Treaties if such an interpretation were adopted. State A, in the face of an unfavorable judicial decision, unilaterally abrogates Treaty provision x on the grounds that it is, in its eyes, ultra vires. The international law principle of reciprocity would mean that that particular obligation would cease to be operative between A and all the other Parties B - Z. So now there would be two co-existing regimes in relation to provision x; x is applied as among Parties B - Z, but inapplicable in the relationship of B - Z with A. Now imagine that State B abrogates, on the same grounds, Treaty provision y, and that State C does likewise with Treaty provision z. Some harmonious relations; Garry Kasparov would, we think, have difficulties in sorting out the permutations.
The Vienna Convention, in article 32(b) suggests that when the ordinary meaning leads to a result manifestly absurd or unreasonable, we may resort to subsidiary means of interpretation, including the travaux préparatoires.[208] The travaux préparatoires of the EC Treaties have not been published and are not pleaded before the Court.[209 ] Fortunately, we do not need them. In our view, this absurdity does not result from the ordinary meaning of the treaty, but rather from the extraordinary meaning that Schilling's construct would put on this provision.
Is it not more reasonable to imagine that, given the wide economic and social catch of the European Treaties and their unprecedented institutional scope, the delicate compromises which the various substantive obligations must have entailed, and the temptation by states to find excuses to escape the results of hard bargains, the High Contracting Parties established such elaborate provisions for centralized judicial review in order to, among other reasons, escape the pragmatic nightmare just mentioned, and not in order to place their multilateral bargains hostage in the hands of oft-partisan national courts?
In addition, the European Treaties, as Schilling himself points out, have been amended frequently and "re-ratified" on each instance of enlargement. For Schilling, this practice is a reminder of the international law character of the Community. So be it. But if the High Contracting Parties disagreed with the Court's understanding of its role and powers, wouldn't they have used these repeated occasions to "set the record straight" on what they had in mind?[210 ] After all, they used these occasions to set the record straight on other issues.[211 ] Instead, not only did the Member States fail to introduce any clarification in the sense argued by Schilling, they also amended the treaty in the opposite way. Rather than mentioning the right to disobey the ECJ through autointerpretation of measures taken ultra vires, the Member States modified art. 171 to allow for imposing penalties against Member States who disobey the ECJ. And note that we are talking about the very practice which, to Schilling, confirms the international legal character of the Treaties.
Consider next the most celebrated legal provision in the Treaty, EC Treaty art. 177.[212 ] The High Contracting Parties envisaged a role for national courts in the interpretation and application of Community law and in determining questions of its validity -- not excluding, one may assume, a challenge to a Community measure alleged to be ultra vires. But as hardly needs reminding, when it comes to the highest national courts, against whose decisions there is no judicial remedy (which on any reading of art. 177 would include the highest courts in the land, those courts to which Schilling would give the final say on the jurisdictional limits of the Community), Community law obligates them to make a preliminary reference to the ECJ.[213 ] That is the text. Its ordinary meaning is quite clear. Moreover, the purpose of this provision is the same as the purpose of the comparable provisions in domestic constitutional systems such as Germany[214] and Italy,[215] namely to ensure uniform interpretation of treaty provisions throughout the jurisdiction.[216 ]
Schilling, who champions the rule of law, insists that art. 177 has to be "scrupulously respected."[217 ] He would, however, have us believe, in accordance with his understanding of the ordinary meaning of this provision and other international legal rules of construction, that art. 177 and the duty to refer are "scrupulously respected" when the highest national Court makes a reference to the ECJ but, once this was done, presumably after saying a polite thank you, "... the Member States can use autointerpretation,"[218 ] meaning the national court can go on to do what it wished to do anyway. Again, "Heads I Win" (if the Preliminary Ruling finds in my favor), "Tails You Lose" (if it does not, but then I get to invoke autointerpretation). This, following Schilling, is to be considered a scrupulous observance of art. 177 according to international law? And this is also to be considered the basis from which the German Federal Constitutional Court is to give the ECJ lessons in observing the rule of law?
Schilling's interpretation hardly squares with the ordinary meaning of the words of EC Treaty art. 177. It contradicts the object and purpose of art. 177 without the need to invoke any of the rhetoric, presumptions, or hermeneutics of European constitutionalism. It is, perhaps, not surprising that Schilling decides to stake his claim on EC Treaty art. 171 and to somehow leave arts. 173 and 177 in the shadows.
We now come to one of the most puzzling passages in the entire Schilling argument, the one which uses the object and purpose of the European Treaties as a way to negate the ordinary meaning of EC Treaty art. 171. It is worth citing in extensu.
The purposes of the EC Treaty, as stated in article 2, relate to the activities of an economic community and, therefore, are arguably restricted to these activities. It follows that the European Treaties should not be interpreted as granting the Community unrestricted powers, in particular Kompetenz-Kompetenz. But such a conclusion is at odds with a Kompetenz-Kompetenz of the ECJ over questions of the respective competences of the Community and the Member States.[219 ]
In part, we believe the problem comes from the language, in particular from a possible conflation of the term Kompetenz-Kompetenz, which means two different things when applied to the Community and the Court. In part, the statement is simply misconceived.
Let us take the argument step by step.
First, it should be noted that the object and purpose of the European Treaties, even of the rather narrow Treaty of Paris establishing the European Coal and Steel Community, are by no means economic only. While preambles do not create positive legal obligations, they can help in understanding the purpose of a treaty, as expressly provided for in art. 31 of the Vienna Convention on the Law of Treaties.[220 ] Entire chunks of the politically-charged and visionary Schuman Declaration are written into the Preamble of the Treaty of Paris.[221 ] And the Treaty of Rome commences with that highly economic objective of laying the foundations "... of an ever closer union among the peoples of Europe."[222] Do these texts have no hermeneutic significance in international law? We have always believed that the genius of the Treaties was to have political ends achieved by economic means.
Even in art. 2 EEC Treaty, which Schilling privileges in his view as to where one should look to determine the object and purpose of the EC Treaties, he glosses over the explicit task of creating closer relations among the States of the Community which takes place alongside the more economic tasks.[223 ] Maastricht rejects any claim that the Treaties are aiming, "basically" or otherwise, purely at economic goals. As one example undermining the claim of a "basic" economic community, it is sufficient to note that the Maastricht Treaty introduces a European citizenship.[224 ] The alleged "basic" economic nature of the EC Treaties is a tired old horse that should be let out to graze.
Nonetheless, let us assume, quod non, that the objects and purposes of the European Treaties were basically economic. Independently of that assumption, we can agree that the EC Treaty should not be interpreted in such a way as to give the Community organs unrestricted powers, in particular Kompetenz-Kompetenz. This would be true regardless of whether the purposes of the Treaties were broad or narrow. For let us be clear: n this context, Kompetenz-Kompetenz takes its meaning from its traditional usage in German Constitutional law. This is the power of the Community to determine (or enlarge) its own competences.[225 ] We agree that the competences of the Community, however broadly or narrowly defined, should remain attributed -- i.e., limited by the explicit or implicit grants in the Treaty, as interpreted by the rules of international law.[226 ]
The crunch comes at this point in the Schilling text. Even if all the above is true, why does this imply that the ECJ, charged with adjudicating disputes arising from the Treaties and seeing that in the interpretation and application of the Treaty "... the law is observed,"[227] cannot also decide disputes over the jurisdictional reach of the Community between the various actors? And why can it not be the ultimate umpire of such disputes? Why does it follow that if one of the purposes of the Treaties was to create an international organization with limited powers, the Community, and with no legislative Kompetenz-Kompetenz (i.e. without the power to extend its own jurisdiction), the Treaties cannot establish a court, the ECJ, with judicial Kompetenz-Kompetenz (i.e. the power to be the ultimate arbiter of disputes concerning the extent of those limited competences), giving one decisive answer, valid for everyone, which would ensure that the same measure of Community law is not considered legal in one jurisdiction and illegal in another?
The assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with judicial Kompetenz-Kompetenz is at the core of Schilling's argument. It is not self-evident. In fact, we think it is false. Because Schilling assumes it without proof, Schilling's reasoning is, in our view, a classical non-sequitur, presuming that which he needs to prove and resting on assertion rather than reason.
Imagine a far-narrower treaty than the European Treaties, for instance, a treaty setting up among several states a transnational regime with law-making institutions empowered to regulate all matters affecting, say, migratory birds. Inevitably, by the very nature of language and law, there will be a "twilight zone" where the precise jurisdictional limit of which matters affect migratory birds will be disputed. Imagine further that the High Contracting Parties of this hypothetical organization set up a Court with judicial review provisions identical to those of the ECJ. Schilling himself admits that the ordinary meaning of the EC Treaty provisions clearly points to that Court being the ultimate umpire on the jurisdictional limit of the organization. Why does the fact that the purpose of this hypothetical organization is rather narrowly defined necessarily lead one to the conclusion that the ordinary meaning is to be overturned? Given that any jurisdictional limit is going to have a gray zone, why not, in the interest of avoiding otherwise insoluble disputes, empower a centralized Court to be the ultimate umpire? This question is even more legitimate in the light of the fact that the law-making institutions envisioned by the Treaty legislate by majority voting, and that the Treaty has notoriously open-textured provisions such as art. 100 and its progeny, and art. 235.
Once again, the specter of Alice hovers. If at all, it is just the other way around: the narrower the purposes and jurisdiction, the more willing the parties will be to entrust adjudication to judicial organs because the stakes, even if the Court were to err, would not be so high. By contrast, if the organization was given broader powers, states may hesitate to entrust to a transnational court such power. Proof of this may be found in the EU Treaties. The Maastricht Treaty expanded the reach of the Union in a few notable areas.[228] The Member States were quick to seek to disenfranchise the ECJ when engaging in foreign policy, security, and their immigration policies.[229 ] Likewise, in drafting the UN Charter with its extremely broad objectives and jurisdiction, the Member States were careful not to enfranchise the International Court of Justice.[230 ]
Schilling raises one last argument to "buttress" the presumptive will of the Member States in entering into the European Treaties. He cites Advocate General Warner in the ICRA case:
No Member State can ... be held to have included, in [the partial] transfer [of sovereignty to the Community] power for the Community to legislate in infringement of rights protected by its own constitution.[231 ]
Warner was writing in the context of European Community protection of fundamental human rights. He also makes clear the consequences of his statement:
... a fundamental right recognized and protected by the Constitution of any Member State must be recognized and protected also in Community law.[232]
If not, it would indeed mean that a Member State would have transferred to the Community the power to violate its constitution.
A seductive proposition but, alas, not good law. With all respect to former A.G. Warner, his construct has been flatly rejected by the ECJ, and for good reasons. In Hauer, decided after ICRA, the ECJ forcefully states:
[T]he question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the Common Market and the jeopardizing of the cohesion of the Community.[233 ]
Schilling may argue that he finds the Advocate General more persuasive than the Court. Advocate Generals often are! But not here. Grogan,[234 ] the celebrated abortion rights case, provides a classic illustration of why the approach of Warner was rejected and why it cannot, both as a matter of policy and logic, be accepted in most instances. What if the constitution in one member state guaranteed the near absolute right of the fetus to life, yet in another Member State, the "opposing" right of a woman to autonomy over her body was constitutionally guaranteed, including the right to abort a fetus in certain circumstances? Which of the two rights would Warner have the ECJ choose to recognize as a Community right? In the case of abortion, how can the ECJ recognize the near absolute right of the unborn in the Irish constitution[235] and at the same time uphold a woman's right to self-determination?[236] Even for a Court guilty of constitutionalism run amok, this would be one twist too far.[237 ]
Two further things ought to be mentioned in this context. First, it seems that Schilling is moving beyond the limited proposition that the final say on issues of competences and ultra vires rests with the highest jurisdictions of the Member States, and is expanding the proposition to any rule or principle of national constitutional law. That conclusion would logically follow from his reasoning. If the proposition is that the Member States could not delegate to the Community matters reserved to them by their respective constitutions, surely this could not be limited to issues of jurisdiction but would extend to all material conflicts with a national constitution. The practical nightmare would be considerable.
But most surprising, and most telling, is that Schilling endorses the view of Warner from an international law point of view. The general rule of international law does not allow, except in the narrowest of circumstances which do not prevail here,[238 ] for a state to use its own domestic law, including its own domestic constitutional law, as an excuse for non-performance of a treaty. That is part of the "abc..." of international law and is reflected in the same Vienna Convention on which Schilling relies.[239] The authoritative treatise, Oppenheim's International Law is clear:
It is firmly established that a state when charged with a breach of its international obligations cannot in international law validly plead as a defense that it was unable to fulfill them because its internal law ... contained rules in conflict with international law; this applies equally to a state's assertion of its inability to secure the necessary changes in its law by virtue of some legal or constitutional requirement ... [240 ]
In the PCIJ Decision on Treatment of Polish Nationals in Danzig,[241 ] the World Court held explicitly that a state cannot adduce its own constitution in order to evade obligations incumbent upon it under international law.
International law, thus, turns out to be a broken reed for the propositions advanced by Schilling. Indeed, after all his advocacy of an international law approach, at the end of the day, it is national constitutional authority which seems to animate him.
[174] Schilling, supra note 1, at 407 (emphasis added).
[ ]175 HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW (1952).
[176] Schilling, supra note 1, at 404.
[177] 1 LEO GROSS, States as Organs of International Law and the Problem of Autointerpretation, in ESSAYS ON INTERNATIONAL LAW AND ORGANIZATION 367, 382-96 (1993).
[178] Schilling, supra note 1, at 404.
[179] While Schilling's text conveys the impression that "general international law" is to be understood in contrast to "Community law," this is not what Kelsen had in mind. Kelsen was describing the difference between international and national law, characterizing the former as "a relatively decentralized" and the latter as a "relatively centralized" coercive order. KELSEN, supra note 52, at 402-03. For example, Kelsen talks about custom and treaties as "decentralized methods," and mentions that "there are under general international law no special organs for the application of the law and especially no central agencies for the execution of the sanctions," the implication being that national legal orders typically have a special organ to enforce the law. Even more revealing, however, is the fact that Kelsen, writing in 1952, observes that international law is moving towards international institutions. He calls the law of international organizations, which in 1952 was far from being fully-developed, "particular international law," as opposed to general international law: "But under particular international law, the creation as well as the application of the law may be -- and actually is -- centralized; and this process of centralization is steadily increasing by the establishment of international organizations instituting international tribunals and international executive agencies." KELSEN, supra note 52, at 403.
[180] It seems that Schilling draws on the following quote from Gross: "It is generally recognized that the root of the unsatisfactory situation in international law and relations is the absence of an authority generally competent to declare what the law is at any given time, how it applies to a given situation or dispute, and what the appropriate sanction may be. In the absence of such an authority, and failing agreement between the states at variance on these points, each state has a right to interpret the law, the right of autointerpretation, as it might be called." Gross, supra note 54, at 386.
[181] Id.
[182] Id.
[183] Id. at 390 - 91.
[184] Id. at 391.
[185] Id. at 392.
[186] Id. at 393.
[187] Id. at 394.
[188] Schilling himself acknowledges this: "The accepted method for the interpretation of international treaties, in the absence of treaty institutions, is autointerpretation by the contracting states." Schilling, supra note 1, at 404.
[189] Gross' article originally appeared in a volume devoted to Kelsen's theory of international law, LAW AND POLITICS IN THE WORLD COMMUNITY: ESSAYS ON HANS KELSENS' PURE THEORY AND RELATED PROBLEMS IN INTERNATIONAL LAW (George A. Lipsky ed., 1953).
[190] It would be interesting to analyze the theory of autointerpretation as conceived of by Leo Gross and also Hans Kelsen in relation to the claim that the right of self-defense is self-judging. Such an undertaking, however, goes beyond the limits of this article. Cf. Paul W. Kahn, From Nuremberg to The Hague: The United States Position in Nicaragua v. United States and the Development of International Law, 12 YALE J. INT'L L. 1 (1987) (concluding that the claim that, under international law, self-defense is a self-judging function that resists third-party review is incompatible with modern developments in international law).
[191] In 1985, the Reagan administration attempted to re-interpret the Anti-Ballistic Missile Treaty of 1972. See Robert Johnson, Recent Development, Arms Control: Re-interpretation of the Anti-Ballistic Missile Treaty of 1972, 27 HARV. INT'L L. J. 659 (1986).
[192] Cf. Ebere Osieke, The Legal Validity of Ultra Vires Decisions of International Organizations, 77 AM. J. INT'L L. 239, 254 (1983) [hereinafter Legal Validity] (noting that "[t]he right of member states to reject decisions they consider unconstitutional in the absence of a legal determination by a review body to that effect has not been generally accepted by international lawyers").
[193] A jurisprudential argument would rely on the principle of pacta sunt servanda. See, e.g., Abram Chayes & Antonia Handler Chayes, Testing and Development of "Exotic" Systems under the ABM Treaty: The Great Reinterpretation Caper, 99 HARV. L. REV. 1956, 1970 (1986) (stating that treaty provisions cannot be altered unilaterally since they "represent a solemn engagement between nations, binding at international law").
[194] A functional argument would stress the fact that self-interpretation places the very objectives of a treaty in danger. See, e.g., Donald G. Gross, Negotiated Treaty Amendment: The Solution to the SDI-ABM Treaty Conflict, 28 HARV. INT'L L. J. 31, 51 - 52 (1987) ("In an atmosphere where each side felt free to reinterpret treaties to its own advantage, agreement on strategic matters would be exceedingly difficult to attain. Engaging in strained legal interpretation makes a mockery of the negotiating process ... A strained unilateral interpretation dilutes the legal validity of the Treaty and undermines the mutual intention of controlling arms proliferation which lies at the base of the document ... [T]he cost of unilateral reinterpretation would be high. If observed in practice, without the prior acquiescence of the Soviets, reinterpretation could trigger a complete breakdown of arms control. Both parties would be forced to reassess the value of treaties -- fragile legal instruments -- for controlling nuclear arms in a world where deft manipulations of language can alter previously understood meanings.").
[195] This problem should not be confused with the undisputed proposition that member states of an international organization have the right to challenge the acts and decisions of the organization. Only the competence to decide on these challenges is in question. Osieke, Legal Validity, supra note 69, at 240 - 41. This competence could lie either with the organization that has already acted, or with the challenging member state, or with a different organ, most likely judicial, either part of the organization or independent of it. We must first distinguish between two scenarios, one in which the parties to the treaty or the member states of the organization have not provided for a mechanism to settle disputes arising out of the treaty (Scenario 1), and one in which they have (Scenario 2). If no dispute-settlement mechanism was created, the problem of nemo debet esse judex in propria causa (no person should judge his or her own case) arises. Since there is no (judicial) institution to rule on challenges to the actions of the international organization, the competence to judge those actions must lie either with the organ itself or with the challenging member state. Both would be judging their own case. In addition, surveys of state practice have led to the result that it was always the organ whose act had been challenged that decided the claims of unconstitutionality. For example, in relation to the International Labor Organization Ebere Osieke concludes, "[s]ome very interesting principles seem to emerge from the foregoing examination of the practice of the International Labour Organization in the determination of claims of illegality or unconstitutionality concerning the acts of its organs... The fact which emerges from the study is that all the claims of unconstitutionality were decided by the organs whose acts were challenged." Ebere Osieke, Ultra Vires Acts in International Organizations: The Experience of the International Labour Organization, 48 BRIT. Y.B. INT'L L. 259, 273 - 74 (1977) [hereinafter Osieke, ILO]. The organs whose acts were challenged decided their claims not only when those claims arose in the Governing Body of the International Labor Office but also when they arose at the International Labor Conference. Osieke, ILO, id. at 262 - 73. In a different study on the ICAO, Osieke finds that even organizations that have established a review mechanism tend to decide their own case, at least in the first instance. Under Art. 84 of the Chicago Convention, contracting States may appeal to an arbitral tribunal or to the ICJ against a decision of the Council on any disagreement between two or more contracting States relating to the interpretation or application of the Convention. Osieke finds that "[i]n all the cases examined in the present study, the objects were decided, in the first instance, by the organ whose competence or jurisdiction was challenged." Ebere Osieke, Unconstitutional Acts in International Organisations: The Law and Practice of the ICAO, 28 INT'L & COMP. L. Q. 1, 23 - 24 (1979) [hereinafter Osieke, ICAO]. Again, this is true both for objections raised in the Council of the ICAO and for those raised in the Assembly of the ICAO. "This [the result that all claims of unconstitutionality were decided by the organs whose acts were challenged] appears to be the position in international organisations generally ..." Osieke, ILO, supra, at 274. Furthermore, "[t]his principle appears to have been generally accepted in the law of international organizations ..." Osieke, ICAO, supra, at 24. This view is supported by the Certain Expenses case:
In the legal systems of States, there is often some procedure for determining the validity of even a legislative of governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction.
Certain Expenses of the United Nations, 1962 I.C.J. 151, 168 (July 20). The state practice privileges the organization rather than the individual member states for practical reasons. Denying international organizations the competence to decide claims challenging its authority would "seriously impede the effective attainment of [the] objects and purposes [of those international organizations] because all that a member state would have to do to create an impasse or prevent the adoption of a decision is to challenge the competence of the organ or the organization, or indeed the legal validity of the decision." Osieke, Legal Validity, supra note 69, at 242. However, we do not wish to take final sides on this question. Indeed, there also seems to be some state practice to the contrary. See, e.g., DAN CIOBANU, PRELIMINARY OBJECTIONS: RELATED TO THE JURISDICTION OF THE UNITED NATIONS POLITICAL ORGANS 175 - 79 (1975) (stating that the member states of an international organization have a "right of last resort," because they may claim that their interpretation of the constituent documents is the correct one. He also states that they may refuse to comply with decisions if they think that those decisions are ultra vires). While Ciobanu argues in favour of such a right of last resort for the member states, he also acknowledges that "what might be called the right of autointerpretation of what international law prescribes has not found unanimous, and perhaps [not] even general, support in the doctrine." CIOBANU, id. at 173 n.58. From the realist point of view, this is not satisfactory. The solution, according to the overwhelming majority, is the establishment of legal organs competent to make such decisions. See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Nothwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 2998 (June 21) (dissenting opinion of Judge Sir Gerald Fitzmaurice). This is scenario 2. Of course, once such an organ is established, it holds, under general public international law, the competence to decide upon the legality of the acts of the international organization. Even if we acknowledged, arguendo, the right of an alleged member state to determine the validity of the act of the international organisation, this right would have been transferred to the judicial organ through the act of establishing it. See SCHERMERS & BLOKKER, supra note 25, §_600, at 408, who, in this context, assert that this transfer to a judicial organ would bring about "an important restriction on the states' right of autointerpretation which many states do not wish to accept."
[196] See disscussion supra note 72. It should also be mentioned that in the rare cases where this right is claimed a central judicial organ had not been established. Cf. Certain Expenses of the United Nations, 1962 I.C.J. 151, 232 (Winiarski, B., dissenting); Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 1980 I.C.J. 73, 104 (Dec. 20) (Gros, A., separate opinion); CIOBANU, supra note 72, at 162 - 79 (distinguishing between "judicial determination" and "political determination", with his examples of autointerpretation illustrating the latter category). Even where non-judicial organs of the international organization have interpreted the constituent document of that organization, their interpretations have been recognized as binding upon the State concerned. See, e.g., Ervin P. Hexner, Interpretation by Public International Organizations of Their Basic Instruments, 53 AM. J. INT'L L. 341, 352 - 56 (1959) (providing as early as 1959 telling examples relating to the IMF and the World Bank on the one hand and the Federal Communications Commission on the other). For examples referring to the U.N., see supra note 25.
[197] This principle has been long established in international arbitration. See, e.g., Nottebohm Case (Liechtenstein v. Guatemala), 1953 I.C.J. 111, 119 - 20 (Nov. 18)(preliminary objection) ("Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. This principle was expressly recognized in Articles 48 and 73 of the Hague Conventions of July 29th, 1899, and October 18th, 1907, for the Pacific Settlement of International Disputes... The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, presented by him as being `of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function.' This principle has been frequently applied and at times expressly stated. This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation ..."). See also IBRAHIM F.I. SHIHATA, THE POWER OF THE INTERNATIONAL COURT TO DETERMINE ITS OWN JURISDICTION - COMPéTENCE DE LA COMPéTENCE (1965).
[198] Consider, for instance, the dispute settlement mechanism established by the United States--Israel Free Trade Area Agreement, April 22, 1985, 24 I.L.M. 653 (1985) (entered into force August 19, 1985) [hereinafter FTAA]. Article 19 establishes a hierarchy of intra-FTAA fora: informal consultations, referral to the Joint Committee, and referral by the Joint Committee to a conciliation panel. This panel will then try to get the parties to sign an agreement to resolve the dispute. A report containing the finding of facts will be drawn up and a resolution will be proposed. The report is non-binding. FTAA art. 19, id. at 664-65. It has been uniformly concluded that this dispute settlement mechanism "has the advantages of informality and administrative ease." Nicholas A. Aminoff, The United States-Israel Free Trade Area Agreement of 1985: In Theory and Practice, 25 J. WORLD TRADE 5, 23-24 (1991).
[199] We do not wish to deal, in extensu, with the highly complex debate about the different hermeneutics in European law, as opposed to general public international law. When we talk, hereinafter, about "international law interpretation", we mean a hermeneutics that pays great deference to the text and to the presumed intentions of the High Contracting Parties, and that is not informed by the teleology of European integration.
[200] Vienna Convention, art. 32(b), supra note 26, 1155 U.N.T.S. at 340.
[201] Schilling, supra note 1, at 405.
[202] See EC Treaty art. 173-77.
[203] See, e.g., EC Treaty art. 173(1).
[204] EC Treaty art. 173 (emphasis added).
[205] Of course, that situation would also be illegal because it would be an infringement of the Rule of Law relating to the application of the Treaty.
[206] See, e.g., SCHERMERS & WAELBROECK, supra note 44, at 194-95; Hans Krück, Artikel 173, in KOMMENTAR ZUM EWG-VERTRAG, supra note 7, at para. 73; and HARTLEY, supra note 7, at 428.
[207] TEU Treaty art. 2.
[208] Vienna Convention, supra note 26, 1155 U.N.T.S. at 340.
[209] Which also throws doubt on the applicability of the Vienna Convention rules of interpretation to the European Treaties.
[210] J.W.R. REED, POLITICAL REVIEW OF THE EUROPEAN COURT OF JUSTICE AND ITS JURISPRUDENCE (Harvard Jean Monnet Working Paper No. 13/95, 1995).
[211] As they did in the so-called Barber Protocol, supra note 22.
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
EC Treaty art. 177.
[213] Case 283/81, CILFIT v. Italian Ministry of Health, 1982 E.C.R. 3415. Further important decisions on the obligation to ask for a preliminary ruling are Case 6/64, Flaminio Costa v. ENEL, 1964 E.C.R. 585; Joined Cases 28/62-30/62, Da Costa en Schaake et al. v. Nederlandse Belastingadministratie, 1963 E.C.R. 31.
[214] Cf. GG arts. 93-94, 99-100.
[215] Cf. Costituzione art. 134-37. For an exposition of the different conceptions of centralized and decentralized judicial revew, see MAURO CAPPELLETTI, THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE 117-49 (1989).
[216] See, e.g., SCHERMERS & WAELBROECK, supra note 44, at 393 - 94; Hans Krück, supra note 83, paras. 10 - 14. The European Court of Justice, in the Second Rheinmühlen Case, held, "Article 177 is essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all States of the Community. ... [I]t thus aims to avoid divergences in the interpretation of Community law which the national courts have to apply ..." Case 166/73, Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1974 E.C.R. 33, 38.
[217] Schilling, supra note 1, at 408.
[218] Id., at 408.
[219] Id., at 406 (footnotes omitted).
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: ...
Vienna Convention, art. 31(1)-(2), supra note 26, 1155 U.N.T.S. at 340 (emphasis added). See also Case Concerning the Rights of Nationals of the United States of America in Morocco, 1952 I.C.J. 176, 196 (Aug. 27), where the ICJ had regarded the preamble of certain treaties as showing their object and purpose.
The principle that preambles can be used for the contextual and purposive interpretation of treaties is not only a principle of general international law but is also part of the hermeneutics of Community law. The European Court of Justice has referred to the Preamble of the EEC Treaty for the interpretation of that Treaty several times. E.g., Van Gend en Loos, supra note 8, at 12; Case 32/65, Italy v. Council and Commission, 1966 E.C.R. 389, 408. See also Stefan Schepers, The Legal Force of the Preamble to the EEC Treaty, 6 EUR. L. REV. 356 (1981) (arguing that parts of the preamble to the EEC Treaty enjoy the same legal force as specific articles of the Treaty); Manfred Zuleeg, Präambel, in KOMMENTAR ZUM EWG-VERTRAG, supra note 7, para. 3 (arguing that the commitment to democracy and the fundamental rights and freedoms laid down in the Preamble to the Single European Act form part of the Community law as unwritten principles).
The Heads of Government and State,
... Considering that world peace can be safeguarded only by creative efforts commensurate with the dangers that threaten it,
Convinced that the contribution which an organised and vital Europe can make to civilisation is indispensable to the maintenance of peaceful relations,
Recognising that Europe can be built only through practical achievements which will first of all create real solidarity, and through the establishment of common bases for economic development,
Anxious to help, by expanding their basic production, to raise the standard of living and further the works of peace,
Resolved to substitute for age-old rivalries the merging of their essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts, and to lay the foundations for institutions which will give direction to a destiny henceforward shared,
Have decided to create a European Coal and Steel Community ...
Preamble to the ECSC Treaty.
[222] Preamble to the EEC Treaty.
[223] Also, most people would consider the more explicit economic objectives part of a political-economic vocabulary. For example, EEC Treaty art. 2 reads as follows:
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing the common policies or activities referred to in Articles 3 and 3a, to promote throughout the Community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
EEC Treaty art. 2.
1. Citizenship of the Union is hereby established.
Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
TEU, art. 8.
[225] This is the meaning the German Constitutional Court gave to "Kompetenz-Kompetenz" in the Maastricht Decision in relation to TEU art. F(3). 89 BVerfGE 155, 194 - 199, english translation in 33 I.L.M. 395, 428 - 432 (1994). (we believe that the English translation of this part of the decision is misleading because the Court's notion of Kompetenz-Kompetenz has been transformed into "exclusive competence for jurisdictional conflicts" and this is exactly what it does not mean, as used by the Bundesverfassungsgericht). On the history of "Kompetenz-Kompetenz" see Peter Lerche, "Kompetenz-Kompetenz" und das Maastricht-Urteil des Bundesverfassungsgerichts, in VERFASSUNGSRECHT IM WANDEL 409 (Jörn Ipsen et al. eds. 1995).
[226] International law accepts that powers of an organization can be implied. In its Advisory Opinion of 11 April 1949, Reparations for Injuries Suffered in the Service of the United Nations, the ICJ held that "[u]nder international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties." 1949 I.C.J. 182. For writing on the implied powers doctrine in relation to international organizations, see references in SCHERMERS & BLOKKER, supra note 25, at § 232 - § 236.
[227] EC Treaty art. 164.
[228] See, e.g., TEU arts. J-J.11 (providing for a common foreign and security policy); TEU arts. K-K.9 (providing for cooperation "in the fields of justice and home affairs").
[229] According to TEU art. L, the common policy in foreign affairs and security matters is not subject to the jurisdiction of the ECJ. Although Neuwahl argues that the Court's jurisdiction is not as restricted as it may seem at first sight, it is fair to say that judicial review of Community acts in the field of the CFSP is limited. Nanette Neuwahl, Foreign and Security Policy and the Implementation of the Requirement of "Consistency" under the Treaty on European Union, in LEGAL ISSUES OF THE MAASTRICHT TREATY 227 (David O'Keeffe & Patrick M. Twomey eds. 1994) (arguing that the Court's jurisdicition also covers, inter alia, questions as to the compatibility with Community Law of the CFSP acts of the Council). Also, Article L TEU excludes jurisdiction of the Court of Justice over justice and home affairs (with the exception of conventions concluded under Article K.3(2)(c) TEU), leaving the Third Pillar structure essentially without judicial review. For reform proposals, see, e.g., David O'Keeffe, Recasting the Third Pillar, 32 COMMON MKT. L. REV. 893, 909 - 11 (1995). See also J.H.H. Weiler, Neither Unity Nor Three Pillars -- The Trinity Structure of the Treaty on European Union, in THE MAASTRICHT TREATY ON EUROPEAN UNION: LEGAL COMPLEXITY AND POLITICAL DYNAMIC 49 (Jörg Monar et al. eds., 1993).
[230] During the UN Conference on International Organization in 1945, Belgium repeatedly suggested that the World Court should play a significant role in the peaceful settlement of disputes and proposed that the World Court be given the power of judicial review. The Conference rejected these proposals and, instead, adopted the report of the Legal Committee IV/2. With this report, it renounced the idea of setting up a specific mechanism for interpreting the Charter provisions, and recognized that each organ would inevitably interpret from day to day those provisions of the Charter which concerned its activities. It also invited the Organization and States to consider themselves legally bound by any ´generally accepted' interpretation, pragmatically leaving the question of an authoritative interpretation of the Charter open for the time being. In addition, a ´committee of experts' was entitled to make suggestions for the creation of a special organ for giving official interpretations of the Charter. Geoffrey R. Watson, Constitutionalism, Judicial Review and the World Court, 34 HARV. INT'L LAW J. 1, 1-14 (1993).
The Lockerbie Decision, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie, 1992 I.C.J. 114, has stirred up the debate over whether or not the ICJ has the power of judicial review within the UN legal system. See, e.g., Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM. J. INT'L L. 83 (1993); Thomas Franck, The ´Powers of Appreciation': Who Is the Ultimate Guardian of UN Legality?, 86 AM. J. INT'L L. 519 (1992); Christian Tomuschat, The Lockerbie Case before the International Court of Justice, 48 INT'L COMMISSION OF JURISTS REV. 38 (1992); José Alvarez, Theoretical Perspectives on Judicial Review by the World Court, in PROCEEDINGS OF THE 89TH ANNUAL MEETING 85 (Am. Soc'y Int'l L. ed., 1995); Vera Gowlland-Debbas, The Relationship Between the International Court of Justice and the Security Council in Light of the Lockerbie Case, 88 AM. J. INT'L L. 643 (1994). Even though the focal point of the discussion was the relationship between the Court and the Council, no one suggested that the member states had the power to make the final decision on the legality of a Council measure.
[231] Case 7/76, Industria Romana Carni e Affini, S.p.A. v. Amministrazione delled Finanze dello Strato, 1976 E.C.R. 1213, 1230 (Opinion of Advocate-General Warner of June 22, 1976 on the preliminary ruling requested by the Ufficio di Conciliazione). Schilling refers to a critique of that statement in Michael Akehurst, The Application of General Principles of Law by the Court of Justice of the European Communities, 52 BRIT. Y.B. INT'L L. 29, 44 (1981). Schilling cites A.G. Warner. Schilling, supra note 1, at 407.
[232] Industria Romana Carni e Affini, supra note 108, at 1237 (opinion of Advocate-General Warner).
[233] Case 44/79, Hauer v. Land Rheinland-Pfalz, 1979 E.C.R. 3727, 3744 (emphasis added).
[234] Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd. v. Stephen Grogan et al., 1991 E.C.R I-4685, reported in Dena T. Sacco & Alexia Brown, Recent Developments, Regulation of Aborion in the European Community: Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, Judgment of the European Court of Justice of 4 October 1991 in Case C-159/90 (1991), 33 HARV. INT'L L. J. 291 (1992).
[235] Irish Constitution art. 40, §3(3). See also Caroline Forder, Abortion: A Constitutional Problem in European Perspective, 1 MAASTRICHT J. EUR. & COMP. L. 56 (1994) (discussing the restrictive interpretation of this article by the Irish Supreme Court and the other constitutional problems of Ireland).
[236] J.H.H. Weiler & Nicolas J.S. Lockhart, "Taking Rights Seriously" Seriously: The European Court and its Fundamental Rights Jurisprudence, 32 COMMON MKT. L. REV. 51, pt. 2, 579, 598 (1995).
[237] For a full discussion, see J.H.H. Weiler, Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights, in THE EUROPEAN UNION AND HUMAN RIGHTS 51 (Nanette Neuwahl & Allan Rosas eds., 1995); Weiler & Lockhart, supra note 113.
[238] One cannot rely on Vienna Convention art. 46, supra note 26, 1155 U.N.T.S. at 343, for this proposition. First, a minor violation of the Constitutional law of each Member State concerning the jurisdictional reach of the Community could hardly be said to be manifest and objectively evident. The fracas following the Maastricht Decision of the German Constitutional Court within the public law community in Germany itself would testify to that. See also the analysis of Mendelsohn as to the non-applicability of the decision in the Community context, M.H. Mendelson, The European Court of Justice and Human Rights, 1 Y.B. EUR. L. 125, 155 (1981). But more importantly, Article 46 can be invoked when a State claims that its very consent to be bound was given in violation of its constitution. Schilling is arguing for a far more comfortable position: he affirms the consent to be bound, but allows the State to pick and choose what it consented to in relation to specfic EC provisions.
[239] Vienna Convention, art. 27, supra note 26, 1155 U.N.T.S. at 343. See also, e.g., LOUIS HENKIN ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 149-53 (3d ed. 1993).
[240] OPPENHEIM'S INTERNATIONAL LAW, supra note 17, at 84-85.
[241] Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territories, 1932 P.C.I.J. (ser. A/B) No. 44, at 24 (Feb. 4) (advisory opinion).