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Jan Klabbers. Treaty conflict and the European Union. Cambridge: Cambridge University Press, 2009. Pp. 260. £23.99. ISBN: 9780521728843.

Reviewd by Maja Smrkolj, LL.M., Max Planck Institute for Comparative Public Law and International Law, Heidelberg.

 

The monograph under review aims to contribute to the study of the relationship and conflict between the obligations of EU Member States arising under international treaties and their obligations under EU law. In the preface Jan Klabbers admits that when he began to write he did not have a thesis but rather “an intuition: the intuition that the EC Court usually makes things too simple for itself by ignoring the international law aspects”. When reading these lines, some of the latest instances confirming such uneasiness, such as the 2008 Kadi, Interanko and FIAM cases, immediately come to mind.

 

In Part I (Setting the Scene) he stresses that it is not just a peculiarity of the EJC that it is not taking into account conflicting norms from other treaty regimes, but that this is common to other (international) courts as well (at 4). This practice has thus rightly been put at the centre of the debate on fragmentation of international law (at 7). Within this debate however, the relationship between international legal obligations of the EU Member States and their EU obligations has so far not gained as much attention from international lawyers as it deserves and has mainly remained a topic of Community lawyers. That is why the author’s intent to address this relationship from both perspectives, the European Union and the international one, distinguishes this publication from other recent contributions on the topic and fills an important gap in the relevant literature.

 

Klabbers makes two main arguments in his study: Firstly, that the law of treaties is not very well equipped when it comes to solving difficult treaty conflicts and that at the end of the day only a political decision can solve the conflict. Secondly, that EU or EC law cannot always prevail over international law.

 

The premise of these two arguments is the distinction betweenconflicts between higher values and coordination problemswhich both may result in treaty conflicts (at 12). For treaty conflicts that are an expression of value conflict, such as in the case of a clash between a human rights and a trade treaty, the provisions of the 1969 Vienna Convention on the Law of Treaties (VCLT) cannot offer any helpful guidance.

 

Under the title “Understanding treaty conflict” Klabbers gives an overview of different approaches to treaty conflict, concluding that neither doctrine nor jurisprudence offer a “ready-made” method to deal with treaty conflict (at 18 et seq). He concludes that the legal order can accommodate diverging values, and create methods for conciliation and discussion and debate but it “cannot place one value systematically over another one without becoming incoherent” (at 46).

 

Part II (International Law) deals with the international law perspective on treaty conflicts. Here Klabbers first sketches the pre-VCLT regime, then the drafting of the VCLT and finally assesses the post-VCLT developments. By discussing the classic (pre-VCLT) cases he concludes that the courts approached treaty conflict quite similarly to the classis authors, as for instance Grotius and Vattel, meaning that they generally accepted the co-existence of conflicting treaties and then looked for ways to reconcile them via interpretation. The courts were inconsistent in deciding whether the earlier or later treaty should prevail and whether a hierarchy between treaties can be established. Consequently doctrine ever since has been trying to find solutions how to deal with the issue that also VCLT eventually left unresolved.

 

For the author most convincing and also adhering to the VCLT is the 1977 proposal by Zuleeg,[1] to apply the principle of political decision. This means that a state must choose which of the conflicting commitments it will honor and incur state responsibility towards the state towards whom it violates its treaty obligations. For Klabbers the distinctive benefit of the principle of political decision is that it allows states and decision-makers (including courts) to choose the treaty that responds best to the circumstances. It also permits other actors, as civil society, to advocate for the right choice and thus to influence the international decision-making processes so that this can respond to the political actuality (at 90).

 

At the end of this part he welcomes the ILC`s proposal in its fragmentation report on the “principle of systemic integration” in interpreting treaties: meaning that according to article 31 (3) (c) of the VCLT “any relevant rules of international law applicable in the relations between parties” should be taken into account - rather than claiming that certain regimes or (common) values should be given automatic preference (at 111).

Finally he stresses that the relative inefficiency of the VCLT in addressing treaty conflicts may not be such a bad thing because it “opens up space for politics and civil society.” Only within the sphere of politics serious treaty conflicts can be solved (at 112).

 

In Part III (EC Law) Klabbers tries to show that the ECJ and the Court of First Instance (CFI) have not yet internalized the principle of systemic integration, as they mostly limit themselves to applying EC law. He first deals with anterior treaties, i.e. treaties concluded by the Member States prior to their membership. With respect to these treaties the EC has laid down its political decision in Article 307, which says that the rights and obligations deriving from these treaties will remain untouched in case of conflict with EC law (Art. 307 para 1). The Member States however must in cases of incompatibilities take all appropriate steps to eliminate them (art. 307 para 2). The ECJ made clear that para 1 applies only to rights of the third states parties and the corresponding obligations of EC Member States, meaning that the Member States are allowed only to invoke their obligations towards third states against the EC treaty but not their rights. For Klabbers such an assumption that treaties can always be divided into bundles of rights and corresponding obligations between the parties is most troublesome (at 121; such view ignores that some treaties are concluded to protect interests of the international community, such as human rights treaties, environmental or disarmament treaties); equally disturbing is the general assumption of the prevalence of the EC treaty (at 122).

 

Klabbers further notices a shift in the jurisprudence of the ECJ: Whereas in previous cases the court was concerned with the question whether Article 307 para 1 applies, and the pre-Community agreements remain valid, the emphasis in the decisions has now moved to para 2, namely the obligation to modify the agreements or even to denounce them (at 135 ff.).

In search for explanations for such a Eurocentric approach on the part of ECJ Klabbers identifies two possible explanations: a sociological one and a technical one (at 140 et seq.). The sociological one refers to the establishment of a firm interpretative community among EU lawyers (not only at the courts but also academics, officials, private practitioners) who all identify with the European project, intellectually and socially. This means that despite their international law background such lawyers within the EU interpretative community limit their international law perspective. The technical reason and the most prominent argument among EU lawyers, however, is that EC courts lack jurisdiction to interpret and apply other instruments than EU instruments. The most worrisome consequence of such an argument can be best illustrated with reference to the MOX Plant case (at 147). In this case the ECJ had claimed its exclusive jurisdiction to decide disputes that might affect the EC legal order. If at the same time the argument was sustained that EC courts lack jurisdiction to apply other law than EC law this would lead to a gap in the system of legal protection with regard to those elements of the case that are not covered by EC law.

 

Klabbers deals separately with the UN Charter and the European Convention on Human Rights, claiming that strong arguments exist that in case of conflict EU law should step aside. However, here too he identifies the same attitude of the EC courts, namely that their first and foremost concern is the primacy of EU law and that even if the two instruments are given priority, this is claimed to be done by virtue on the basis of EC law. He illustrates this point with the UN economic sanction cases (at 141). He does however admit that while in general it would be desirable to be open to UN law, there is also some “room for finding that a more receptive attitude towards international law […] is not without its dangers” (at 159). Regarding the European Convention he is bothered by the methodology behind applying the Convention rights, namely as an exception or as a justification for the restriction of common market freedoms. What astonishes him even more is the fact that if one looks at the Bosphorus case it appears that also the European Court of Human Rights seems to place EU law above human rights (at 172).

 

In a resigned manner he concludes that probably the only way out of this case law that “seems to have neither a natural starting point nor a natural point of conclusion” would be a strict, traditional dualism, that would “radically dismiss one of the normative orders involved” as advocated by Advocate General Maduro in his Kadi opinion. This would close the European legal order from external influences, unless these have become part of EU law (at 174 et seq).

 

In the next chapter Klabbers turns to a topic that has so far received even less attention then the pre-Community treaties, that is the treaties that Member States have concluded after they became members. Surprisingly it is here, on page 176 out of 230, that Klabbers for the first time suggests that conflicts between EC law and international treaties are better understood as conflicts between international law and municipal law and not as treaty conflicts. Paradoxically, this does not provide the Community with a leeway under international law but ties it even more firmly to the law of treaties since article 27 VCLT does not allow parties to international agreements to invoke provisions of their internal law as a justification for their failure to perform a treaty unless they have been in clear violation of their internal distribution of competence (art. 46 VCLT). In other words: the more the Community legal order emancipates itself from general international law the more the Community and its Members are bound by it. Recalling the clear position of the ECJ that it has no jurisdiction to interpret the provisions of international treaties that do not form part of EC law (with the known GATT 1947 exception) one has to wait whether Klabbers’ diagnosis will ever be reflected in the Court’s practice.

 

At the end of this monograph he describes the actual practice regarding posterior treaties, drawing mostly from Finish and Community treaty practice. The most problematic here are of course treaties with third parties. Again he warns that in such cases the Court tends not even to mention international law or to consider that despite being found in violation of Community law such a treaty may still be binding on the Member States (at 218).

 

In conclusion Klabbers does admit that as a matter of political choice the EU is of course allowed to fence itself from international law, but warns that some of the examples would be much more criticized or not even tolerated if they came from a state. He illustrates this by pointing to the criticism of similar practices by the US. For sure there is some irony in this, since the EU does enjoy a lot of support for its claim that it supports international law and to a great extent it represents a model of international cooperation for the non-European world. However, Klabbers stresses, the more the EU is approaching a regular state, the less its non-observance of international law will remain without consequences (at 226).

 

At the end of the book, one gets the impression that not much is left from Kelsen’s pyramide of norms, that instead the relationship between international and EU law is better reflected by Escher’s surreal picture of stairways on its famous lithograph “Relativity”, as the author himself suggests with regard to the relationship between EU, UN and European Human Rights law (at 173). This for sure is not due to a failure of the author to properly reconstruct the field but a reflection of the field as it currently is.

 

Although the relationship between international law and European law has been a popular topic in the last years, among the inflation of the literature the book is a valuable introduction into more neglected questions. It is also a good example of what might be called a more holistic approach to the overlap of EU and international law. However, in order to call the book a duography (as the author suggests), several aspects are missing: For instance an account of the international practice with regard to those issues, that is, how international courts and tribunals deal with questions of EU law, like investment arbitration tribunals, ITLOS, etc.

 

One is also missing more discussion on the means to facilitate the procedure for political decision in the EU as a solution for conflicts between international and EU norms. Here, probably, the main contradiction of this book is hidden. On the one hand Klabbers advocates a doctrine of political choice, on the other hand he is not very frank about the political nature of the EU (or better say EC) since he sees it more as an international organization[2] than as a polity. This is probably also the reason he has abstained from dealing with more theoretical issues with regard to the nature of the EU, something one might have expected given the theoretical part of the book on international law, especially since one cannot insist on a political choice without addressing the foundations of the relevant legal order or polity. All in all the book is a very valuable read which affords insights into several issues of this complicated relationship and spurs further research on the topic.

 

 

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