I. Introduction
There has been a great deal of discussion in recent years about the way in which the Court of Justice of the European Union (CJEU) approaches issues of public international law, especially in light of the landmark Kadi judgment as well as judgments in which the Court has sought to safeguard the ‘autonomy’ of the EU legal order. This discussion has focused on the way in which international law is given effect within the EU legal order. A more subtle way in which the Court has given effect to public international law is through the application of international treaty law. On numerous occasions the Court has employed the international law of treaties in its judicial reasoning, including references to the provisions of the 1969 Vienna Convention on the Law of Treaties (VCLT)Footnote 1 and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLT-IO).Footnote 2 Although the Court applies the rules enshrined in the VCLT, it often does so in a way that deviates somewhat from the accepted approach in public international law, developing a ‘European’ approach to law of treaties.
The present article examines the case law of the CJEU in which it has applied principles of international treaty law. This includes questions such as the definition of an agreement under EU law, the application of principles of treaty interpretation, and the effects of invalidity, termination and suspension of treaties. At first glance, the CJEU’s use of the Vienna rules may demonstrate fidelity towards international law. By applying the VCLT rules, the CJEU can be seen as contributing to the ‘strict observance and the development of international law’.Footnote 3 Upon closer examination, however, one finds that the Court applies these rules in a fashion that often deviates from the way in which other courts and bodies have applied the same principles. For instance, the Court employs Article 31 VCLT to examine the ‘object and purpose’ of a treaty at the expense of other methods of treaty interpretation. This article shows how the Court’s approach to international treaty law is highly influenced by its approach to EU law. Its emphasis on the ‘object and purpose’ of a treaty, and its reluctance to examine preparatory work or subsequent practice of the parties, for example, mirrors the approach in EU law that favours more teleological reasoning.
This article focuses on the use the VCLT rules with regard to international agreements and, therefore, does not look at the application of these rules to the EU Treaties or EU law. The CJEU has rejected the proposition that the VCLT applies to the EU’s founding treaties, emphasising their special character.Footnote 4 Yet the Court has applied the provisions of the VCLT to the extent that they represent customary international law.Footnote 5 Part II examines how the CJEU identifies the primary source of international law: treaties. Although the Court purports to use the VCLT definition of a treaty to define ‘agreement’ under international law, the Court’s definition is somewhat wider than that under international law. Part III examines the Court’s approach to the interim obligation that applies before a treaty enters into force. Part IV examines how the Court has used principles of international treaty law in its judicial reasoning, often in a novel fashion. Part V discusses an example where the Court developed a particularly novel approach to treaty law through its application of the pacta tertiis principle. Part VI looks at the end of a life of a treaty, examining how the Court has dealt with the termination and suspension of international agreements. Part VII discusses why this use of international treaty law by the CJEU is problematic. While the Court is free to apply the VCLT in a manner that it feels appropriate, at times the Court uses the VCLT in a rather ‘selfish’ manner. This misuse of international treaty law, it is argued, goes against the principles of respect for international law enshrined in the EU Treaties.Footnote 6
II. What is a Treaty?
The CJEU has been called upon to determine whether the instrument before it should be regarded as an international treaty, mostly for the purposes of EU institutional law. While the Court purportedly follows the Vienna Convention definition of ‘treaty’, it has developed a slightly broader definition in its case-law.
Article 218 TFEU sets out the procedure for the negotiation and conclusion by the Union of ‘agreements between the Union and third countries or international organisations.’Footnote 7 Yet the EU Treaties do not define an ‘agreement’ for these purposes. The EU adopts a variety of instruments at the international level, but which of these are to be considered ‘agreements’ under EU law? Although in most cases it will be clear that the instrument is an international agreement, the Court has been called upon to decide whether certain instruments can be considered ‘agreements’. In doing so, it has relied partly on the public international law definition of a ‘treaty’.
The precise definition of a ‘treaty’ in international law has long been a point of academic discussion, and was the subject of debate at the International Law Commission when drafting the VCLT.Footnote 8 Article 2 defines a treaty, for the purposes of that convention, as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’ International practice shows that there is a wide and varied nomenclature used for international treaty,Footnote 9 and the title of an instrument cannot be relied upon alone when determining whether it is a treaty. Rather, elements such as the intentions of the parties and the content of the instrument itself are examined.
The first part of the definition is that a treaty is between two or more subjects of international law. A state may make a unilateral binding commitment under international law, but this does not fall within the definition of a treaty. The treaty must also be in written form, but this criterion is not applied restrictively. The third element is that the agreement is governed by international law, and not, for example, by the municipal law of one of the states. Above all a treaty requires the intention of the parties to enter into a legal agreement. This requirement distinguishes treaties from other kinds of non-binding instruments. The UN Treaty Handbook stresses that ‘[a] treaty or international agreement must impose on the parties legal obligations binding under international law, as opposed to mere political commitments.’Footnote 10 There must be more than a commitment to enter into obligations, but an intention to enter into legal obligations subject to international law.
The TEU/TFEU give little guidance on what can be considered an ‘agreement’ for the purposes EU law, referring simply to ‘agreements between the Union and third countries or international organisations.’Footnote 11 It may be assumed that the term ‘agreement’ in EU law was intended to carry the same meaning as a treaty under international law. The term ‘agreement’ rather than treaty avoids confusion with the EU Treaties. Yet there are subtle differences between the Court’s definition of ‘agreement’ in EU law and the term ‘treaty’ in international law.
In Opinion 1/75Footnote 12 the Court discussed the meaning of ‘agreement’, defining it as ‘any undertaking entered into by entities, subject to international law which has binding force, whatever its formal designation.’Footnote 13 The agreement at issue was the draft ‘Understanding on a Local Cost Standard’ developed under the auspices of the Organisation for Economic Co-operation and Development (OECD). It was held that the Standard fulfilled these conditions since it contained ‘a rule of conduct, covering a specific field, determined by precise provisions, which is binding upon the participants.’Footnote 14 The Court’s definition has two elements: (i) subject to international law; and (ii) binding legal force on its participants.
The Court also examined the question of what constitutes an ‘agreement’ in France v Commission Footnote 15 regarding a bilateral cooperation agreement between the European Commission and the United States in the field of competition law.Footnote 16 The Commission argued that the instrument constituted an ‘administrative agreement’, and that it had competence to conclude it under EU law. The Court found, however, that the instrument fell within the definition of an international agreement concluded between an international organisation and a State according to Article 2(1)(a)(i) of the 1986 Vienna Convention.Footnote 17 One of the relevant factors was that the agreement produced legal effects,Footnote 18 since the Community would incur responsibility at the international level in the event of non-performance of the agreement.Footnote 19 The administrative agreement between the European Commission and the US Antitrust Division was therefore an ‘agreement’ for the purposes of EU law.
The Court further elaborated on the meaning of an ‘agreement’ in Opinion 1/13.Footnote 20 This involved a request by the European Commission for an Opinion on whether an envisaged agreement is compatible with the Treaties. The question put to the Court was whether the acceptance of the accession of third States to the 1980 Hague ConventionFootnote 21 (to which the EU is not a party) falls within the exclusive competence of the Union. In determining whether the request was admissible, the Court had to decide whether a ‘declaration of acceptance of accession’ should be regarded as an ‘agreement’ under Article 218 TFEU. The Court acknowledged that under Article 2(1)(a) of the VCLT, an international agreement may be formed, not only by a formal agreement between the parties, but also by the ‘expression of the ‘convergence of intent’ on the part of two or more subjects of international law, which those instruments establish formally.’Footnote 22 The Court found that such a convergence of intent existed. The act of accession on the one hand, and the declaration of acceptance on the other, represent such a meeting of minds, and therefore creates an ‘international agreement’ upon which the Court could provide its opinion.
Similarly in Venezuelan Fishing Rights here was disagreement over whether the instrument before the Court constituted an ‘agreement’ under Article 218 TFEUFootnote 23 . The instrument in question was a Council Decision granting fishing opportunities to Venezuelan fishing vessels off the coast of French GuianaFootnote 24 . On the face of it, the Decision in question does not look like a typical bilateral treaty. According to Advocate General Sharpston (AG), it was a ‘unilaterally binding declaration’. While it is not uncommon for a state to express its consent to be bound through a unilateral statement,Footnote 25 there is little, if any practice of unilateral binding statements being made by international organisations.Footnote 26 To the AG, this created problems because the EU Treaties do not explicitly govern the adoption of such ‘unilateral’ instruments.Footnote 27 The AG concluded that the EU Declaration ‘is an instrument emanating from the EU that is intended to produce legal effects under international law and to be a basis on which Venezuelan vessels can rely to apply for fishing authorisations.’Footnote 28 However, this does not mean that it is an international agreement.Footnote 29 The AG found that while the Declaration was intended to produce legal effects, Venezuela, the country who benefits under the Declaration, had not accepted to be bound by the Declaration.Footnote 30 The AG stressed that:
However wide the definition of the term, it is clear that (in whatever context) an agreement presupposes the meeting of minds of at least two parties. It thus does not cover the circumstance where the EU expresses its intention to be bound by the terms of its declaration without the need for acceptance by the third State in whose favour that declaration is made. Nor does it apply to instruments whereby no binding commitment is entered into.Footnote 31
For the AG, it was not sufficient that the instrument produced legal effects, it also had to include the meeting of minds between two parties. Since this second requirement was not fulfilled, the instrument could not be considered to be an ‘agreement’ under EU law.
The Court disagreed with the AG’s assessment. It recalled its previous case law including France v Commission on what constitutes an ‘agreement’ in EU lawFootnote 32 and found that the EU decision was an agreement, the conclusion of which is governed by Article 218 TFEU. This assessment turned on a different interpretation of the facts. To the Court, a ‘meeting of minds’ was established by the parties, since there had been both an ‘offer’ and ‘acceptance’. The declaration at issue was regarded as an ‘offer’ made by the EU on behalf of the coastal state to Venezuela,Footnote 33 which had then ‘accepted’ the offer through its subsequent conduct.Footnote 34
The Court’s approach to what constitutes an ‘agreement’ is broad and non-formalistic and is arguably wider than that under international law.Footnote 35 Delano Verwey concluded that when determining whether something is an ‘agreement’ under EU law ‘[w]hat matters, is that it has to be an agreement between the [Union] and one or more subjects of international law, governed by international law and legally binding on the parties concerned.’Footnote 36 First, the definition in the two Vienna Conventions is primarily concerned with whether the agreement is governed by international law. While this is also a criterion in the Court’s definition, it also takes into account whether the instrument has ‘binding force’ on the parties or ‘produces legal effects’. Moreover, the Court is less concerned with the type of entity that has entered into the agreement. Whereas the two Vienna Conventions apply to treaties between states and international organisations and other subjects of international law, the CJEU views an international agreement as an ‘undertaking entered into by entities.’Footnote 37
Another difference is the importance placed on the intention to establish legal relations. Under international law, not only must there be consensus ad idem (‘meeting of the minds’) but an intention to enter into legal relationship.Footnote 38 It is difficult to argue that Venezuela intended to create legal obligations vis-à-vis the Union in Venezuelan Fishing Rights. On the contrary, Venezuela rejected the establishment of a formal binding agreement. Had the Court determined the instrument to be a unilateral declaration, as the AG had recommended, it would have been faced with the complex task of determining which EU rules should apply to adoption of such instruments. Yet the Court, rather conveniently, found the instrument to be an ‘agreement’ falling under Article 218 TFEU.
III. Conclusion and Entry Into Force
In some cases, the CJEU has been called upon to examine the scope of the international law obligations that exist during the period before an international agreement enters into force. Before an agreement enters into force a state or international organisation is under an interim obligation ‘to refrain from acts which would defeat the object and purpose of a treaty’.Footnote 39 This principle is enshrined in Article 18 VCLT and VCLT-IO and represents a rule of customary international law. It is a manifestation of the general principle of good faith,Footnote 40 and establishes an interim obligation for parties that have committed themselves to a treaty text, but have not yet become formally bound by the instrument.
The Article 18 interim obligation was dealt with incidentally by the Court in Opel Austria. Footnote 41 In this case Austria argued that the Council had acted in breach of the principle of good faith in international law, as recognised in Article 18 VCLT. The Council had adopted a Regulation imposing a duty on gearboxes produced by General Motors Austria. Opel sought to annul the regulation on the basis inter alia that it violates the obligation under international law not to defeat the object and purpose of a treaty before its entry into force. The Court found that the principle of good faith was a rule of general international law and thus binding upon the European Union. It found the principle of good faith to be the public international law corollary of the EU law principle of the protection of legitimate expectations. The Court referred in this context to the decision of the Permanent Court of International Justice in Certain German Interests in Polish Upper Silesia in which the Permanent Court indicated that a signatory state may be ‘under an obligation to abstain from any action likely to interfere with [the treaty’s] execution when ratification has taken place.’Footnote 42
There was a legitimate expectation on the part of traders such as Opel that the Council and other parties to the EEA Agreement would not act so as to defeat the object and purpose of that agreement. Interestingly, it was not the principle in Article 18 that gave rise to actionable rights, but the equivalent Union law principle regarding the protection of legitimate expectations. The Regulation was not annulled due to a deficiency stemming from public international law, but a violation of a Union law principle. The Council argued that Article 18 VCLT and VCLT-IO only applied between sovereign states and international organisations and since they do not confer rights upon individuals, they could not be invoked in order to challenge the validity of EU acts.Footnote 43
From a public international law perspective, one may question the way in which the Court applied the principle in Article 18 VCLT. It is an interim obligation not to defeat the object and purpose of the treaty; it is not intended to allow the provisions of the treaty to be valid prior to the treaty has legally entered into force.Footnote 44 As Oliver Dörr put it, ‘the States concerned are not bound to comply with the treaty, but not to destroy its very essence, thus not to render its entry into force de facto meaningless.’Footnote 45 The interim obligation is concerned with acts that would make the performance of the treaty difficult or impossible. Did the Regulation in question really defeat the object and purpose of the EEA Agreement? One of the purposes of the Agreement was ‘[to establish] a dynamic and homogeneous European Economic Area.’ It cannot be said that the EU’s behaviour threatened the Agreement in such a manner.Footnote 46 Although Opel Austria is one of the very few judicial pronouncements on Article 18 VCLTFootnote 47 it is not a good application of the interim obligation, but would be better categorised as an application of the more general principle of good faith.Footnote 48
Other cases demonstrate that the principle of good faith, not the Article 18 obligation is applied by the CJEU. A week and half before its entry into the EU, Sweden introduced a new tax on sugar. In Danisco Sugar, a company sought to annul Sweden’s hefty sugar tax.Footnote 49 It sought to rely on Opel Austria, arguing that the sugar law contravened the ‘principle of good faith’, and amounted to a violation of the interim obligation.Footnote 50 Again, the principle being invoked was actually that of the protection of legitimate expectations under EU law, rather than the principle in Article18 VCLT. The facts are quite different from those of Opel Austria, however. Danisco Sugar’s expectations under the Treaty were not frustrated by an act of the EC, but by a national act of Sweden. At the intergovernmental level, between Sweden and the EC, neither party was of the view that the sugar law defeated the object and purpose of the Treaty. On the contrary, the sugar tax was designed to prevent speculation and the accumulation of excessive stock. In such a situation it would be difficult to find that the ‘legitimate expectation’ of a private company was frustrated by the national law. The Court found it unnecessary to touch upon the issue of the interim obligation,Footnote 51 resolving the issue on other grounds. Yet the case demonstrates the difficulty of applying the principle of Article 18 VCLT to the situation where it is a private entity, not a party to the agreement, relying on the interim obligation.Footnote 52
The Court also dealt with the interim obligation in Case T-231/04, Greece v Commission. Footnote 53 The European Commission had entered into a Memorandum of Understanding (MOU) with certain Member States related to the sharing of the costs of their representations in Abuja, Nigeria. The Commission took steps to recover amounts that it believed were due to be paid by Greece under the MOU. Greece disputed this amount. The Commission relied, inter alia, on the conduct of Greece and the principle of good faith in international law.Footnote 54 The Court found that Greece, ‘as a signatory of the additional memorandum, was bound to act in good faith as regards the other partners.’Footnote 55 Not only had Greece not informed the other parties of its intention to withdraw from the agreement, it continued to act as a full participant in the project. Therefore, ‘by reason of the principle of good faith, the Hellenic Republic could not evade its financial commitments by pleading that it had not ratified the additional memorandum.’Footnote 56 Once again, while the Court explicitly refers to Article 18 VCLT, this is really another application of the principle good faith.
Jan Klabbers has argued that in these cases, and others ostensibly involving the interim obligation, what is actually being applied is a ‘manifest intent’ test. This is outlined in the following way:
if behavior seems unwarranted and condemnable, it may be assumed to have been inspired by less than lofty motivations and ought to be condemned, regardless of whether anyone’s legitimate expectations are really frustrated or can reasonably be said to have been frustrated, regardless of actual proof of bad faith.Footnote 57
It should be remembered that the obligation under Article 18 VCLT is primarily one between states. While there are cases where the interim obligation has been invoked before the Court, the Court is really applying a principle of good faith, or perhaps even a ‘manifest intent’ test, rather than a true judicial application of Article 18 VCLT.
IV. Treaty Interpretation
Articles 31–33 VCLT concern the general rules of treaty interpretation. While the Court has made use of these provisions on numerous occasions, it often does so in a ‘European’ manner.
A. General rule of interpretation
The main way in which the Court has applied the law of treaties is through its application of general rules of interpretation, as set out in Article 31 of the VCLT and VLCT-IO. The VLCT famously states that ‘[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.’ The CJEU has made use of Article 31 extensively in interpreting agreements before it, especially by invoking this rule to examine the ‘object and purpose’ of the agreement.
1. Interpreting the provisions of an international agreement
In Case C-344/04 IATA and ELFAA Footnote 58 the Court used Article 31 VCLT to examine the object and purpose of the Montreal Convention. The Court looked at the object and purpose of that convention, particularly with reference to the preamble,Footnote 59 which refers to ‘equitable balance of interests’ and the desirability of ‘collective State action for further harmonization.’Footnote 60 The Court found that the drafters had not intended ‘to shield [air] carriers from any other form of intervention’ than those in the Convention and found that the Regulation at issue could not be considered to be inconsistent with the Montreal Convention.Footnote 61 While the two instruments shared similar objectives, they essentially regulated different legal issues arising from flight delays and hence there was no inconsistency.Footnote 62 The case was criticised for its ‘selective’ use of the preamble to the Montreal Convention.Footnote 63 It was argued that Article 29 of that convention provides for the exclusivity of the remedies in respect of passengers. This article had been interpreted by the UK House of LordsFootnote 64 and US Supreme CourtFootnote 65 in a way that confirmed such exclusive nature of this Convention.Footnote 66 While the preamble of a convention may be used to identify its object and purposeFootnote 67 it cannot be used to defeat the text of the article itself. The CJEU failed to examine the way in which the Convention had been interpreted by other Courts, focusing on what it considered to be the object and purpose of the agreement. In doing so, it arguably deviated from the established international judicial practice on the Montreal Convention.
In Walz v Clickair Footnote 68 the Court found that the term ‘damage’ in Article 22(2) of the Montreal Convention must be interpreted in accordance with the Article 31 rules of interpretation.Footnote 69 The Court had to determine the meaning of ‘damage’, examining whether this included purely material damage, both material and non-material damage, or some other combination thereof. The Court stressed the need for a ‘uniform and autonomous interpretation’ of the term. In order to determine the ordinary meaning of the term, the Court employed Article 31(2) of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (‘ASR’)Footnote 70 . According to the Court, the ASR, which are non-binding under international law, aim ‘to codify the current state of general international law’.Footnote 71 This is another example of the Court employing Article 31 VCLT to examine the ‘wider context’ of international law, including principles of customary international law, to interpret an agreement.
2. International agreements which resemble EU law
The Court has also employed Article 31 VCLT when examining whether to interpret a provision of an agreement in the same manner as a similar rule under EU law, mostly when examining the object and purpose of association agreements.Footnote 72 In Jany and Others it was argued that the term ‘economic activities as self-employed persons’ in the Association Agreements should be interpreted differently from the term ‘activities as self-employed persons’ in Article 52 of the EC Treaty (Maastricht). The question arose whether prostitution could be conceived as an ‘economic activity.’ The Court looked at the preamble of the agreements and found that their purpose was to promote ‘expansion of trade and harmonious economic relations between the Contracting Parties in order to foster dynamic economic development and prosperity.’Footnote 73 The Court found that there was nothing in the object and purpose of the agreements to lead the Court to interpret the two terms differently.Footnote 74 When finding the ‘ordinary meaning’ of a term in an international agreement, the Court conveniently found that it was the same as the meaning used in EU law.Footnote 75
In Pabst & Richarz KG v Hauptzollamt Oldenburg, the Court found it relevant that the provision of an association agreement with Greece on non-discriminatory taxation ‘fulfils … the same function as that of Article 95 [EC Treaty].’Footnote 76 Looking at the objective and nature of the association agreement, the Court found no reason to interpret the provision differently from the corresponding EU law.Footnote 77 Similarly in Administration des Douanes v Legros and Others the Court was faced with the meaning of ‘charge having equivalent effect’ in an agreement between the EC and Sweden.Footnote 78 It found that the agreement ‘would be deprived of much of its effectiveness if the term ‘charge having equivalent effect’ contained in Article 6 of the [EC Sweden] agreement were to be interpreted as having a more limited scope than the same term appearing in the EEC Treaty.’Footnote 79 The Court did not do so automatically from the identical wording in the two treaties. Rather, it looked at the provision of the agreement in the light of its object and purpose and its context.Footnote 80
More troubling is the Court’s use of the object and purpose of an international agreement to stress the ‘exceptional nature’ of the EU and EU law. In Polydor the Court made use of the object and purpose of an agreement to find that a different interpretation should be given to that under EU law.Footnote 81 The Court looked at the object and purpose of the agreement, including reference to the preamble, to find that it was aimed at consolidating and extending economic relations between the EC and Portugal.Footnote 82 The provisions of that agreement were expressed in terms that were almost identical to those in the EEC Treaty regarding the abolition of restrictions on trade within the European Community. The Court found, however, that there was a relevant difference between the EC–Portugal agreement and the EEC Treaty. As the Court found in Opinion 1/91, the fact that an international agreement and provisions of EU law use similar or identical words does not mean that they must be interpreted in the same manner.Footnote 83 The Court found that the EEA Treaty ‘merely creates rights and obligations as between the Contracting Parties’Footnote 84 whereas the EEC Treaty ‘constitutes the constitutional charter of a Community based on the rule of law.’Footnote 85 In these two cases the Court distinguishes the EEC Treaty, which includes primacy and direct effect, from a ‘normal’ international treaty.Footnote 86
In Metalsa, the Court was asked to decide whether an article of a free trade agreement between the EEC and Austria should be interpreted in the same way as Article 95 EC Treaty.Footnote 87 The Court again found that in order to decide whether to extend the European interpretation to the article of a separate agreement, one must examine the aim pursued by that provision, taking into account the object and purpose of the agreement.Footnote 88 The Court found that the EEC Treaty aims to establish a common market, whereas the EC–Austria FTA was to progressively eliminate obstacles to trade, in accordance with the provisions of the GATT concerning free trade areas. The Court was faced with a similar issue in Eddline El-Yassini, where it was asked to apply its case law concerning the rules governing EEC–Turkey Agreement to the EEC–Morocco Agreement.Footnote 89 Again, the Court used Article 31 VCLT to examine these agreements in light of their object and purpose. Upon comparing the two agreements, the Court found that they had different goals and objectives. One difference was that, unlike the EEC–Turkey agreement, the EEC–Morocco agreement did not intend progressively to secure the free movement of workers.Footnote 90 The Court’s case law relating to the EC–Turkey agreement could therefore not be applied by analogy to the second agreement.Footnote 91
Richard Gardiner is critical of the Court’s approach to the interpretation of agreements in these cases. While the Court states that it is applying the principles of the Vienna Convention, it does so in a slightly different manner: ‘in Polydor the Court’s approach was much closer to the purposive approach of the Harvard draft than to the Vienna rules.’Footnote 92 As Pieter Jan Kuijper noted, the Court’s use of Article 31 VCLT is interesting in these cases since ‘it constitutes an attempt to base the exceptional character of the Community legal order on normal rules of treaty interpretation.’Footnote 93 Even though the provisions of the agreement and the EU Treaties are similar in these cases, the Court found that the ‘object and purpose’ of the agreements differ, using Article 31 VCLT as justification. Kuijper is critical of this (mis)use of Article 31, since the Court is essentially using its own case law on the EU as a ‘new legal order’ to interpret the provisions of an international agreement.Footnote 94 The Court’s use of the ‘object and purpose’ in these cases presents a serious divergence from the use under international law:
In general international law, the reference to the object and purpose of the treaty is frequently understood to allow for a progressive, evolutive interpretation which potentially decouples a treaty from the original will of the states parties. For the ECJ, however, the reference to the object and purpose of the EEA agreement served to underline the limitations of traditional international agreements as compared to the dynamic nature of Community law.Footnote 95
Although the Court sees the EU Treaties as having developed a distinctive legal order, this should not be taken into account as a contextual element under Article 31(2) VCLT.
3. Legal basis of concluding an agreement
The Court has made use of Article 31 VCLT when determining the appropriate legal basis for the conclusion of an agreement under EU law. Opinion 2/00Footnote 96 concerned inter alia the proper legal basis for the conclusion by the Union of the Cartagena Protocol to the Convention on Biological Diversity.Footnote 97 The Court was called upon to determine the legal basis of the agreement: was it principally an environmental agreement with aspects of trade, a trade agreement with aspects of environmental issues, or were the two issues inextricably linked? In order to answer this question the Court found that it was required to interpret an international agreement, and it should make use of Article 31 VCLT.Footnote 98 This allowed the Court to take into account the ‘wider context’ in which the Protocol was adopted. This included the Convention on Biological Diversity, which had been concluded by the Community on the basis of Article 130s EC. Taking this wider context into account, the Court found that the Protocol ‘pursues an environmental objective, highlighted by mention of the precautionary principle, a fundamental principle of environmental protection referred to in Article 174(2) EC.’Footnote 99 Its main purpose therefore is the protection of biological diversity.
In the Energy Star case, the Court also looked at the object and purpose of an agreement, although without explicitly mentioning Article 31 VCLT.Footnote 100 The Court referred to the preamble of the Energy Star AgreementFootnote 101 and found that it intended to promote energy efficiency and therefore pursued an environmental objective.Footnote 102 However, the Court came to a different conclusion in this case, finding the commercial objective of the agreement to be predominant. In Daiichi Sankyo Footnote 103 the Court examined the object and purpose of the TRIPS AgreementFootnote 104 including reference to its preamble, to determine that the agreement was aimed at ‘reducing distortions of international trade.’Footnote 105 Since the TRIPS agreement seeks to facilitate international trade, the relevant sections of the TRIPS agreement could fall within the Common Commercial Policy for the purposes of EU law.
Despite the fact that the Court refers to context as a method of treaty interpretation under Article 31 VCLT, international law really does not play a large role in the case law on identifying the appropriate legal basis.Footnote 106 This remains an internal issue for the EU legal order, on which treaty law principles have not had a decisive influence.
4. Other means of interpretation in Article 31
The Court has made use of Article 31 VCLT on a number of occasions in order to examine the object and purpose of the treaty under examination.Footnote 107 Yet there are fewer examples of the Court using the other elements of treaty interpretation found in Article 31.Footnote 108 The Court often employs Article 31 to ‘bring in’ other principles of international law as part of the ‘wider context’ in which an agreement should be read, such as the pacta tertiis principle in Brita (discussed below) or applying customary rules regarding damage in Walz. The Court has made very little use of other elements of treaty interpretation in Article 31. For example, subsequent agreement between the parties on the interpretation of the agreement;Footnote 109 or subsequent practice in the application of the agreementFootnote 110 are rarely employed by the Court in a decisive manner.
B. Supplementary means of interpretation
Article 32 VCLT sets out supplementary means of interpretation. These are intended to be used as means of interpretation when interpretation according to Article 31 VCLT leads to an obscure or ambiguous result, or one which is manifestly absurd or unreasonable.Footnote 111 They may also be used to confirm a meaning resulting from the application of Article 31 VCLT.
1. Preparatory work
In this regard the Article 32 VCLT acknowledges that preparatory work (travaux préparatoires) may be used as a supplementary means of interpretation in certain instances. The CJEU has generally been reluctant to examine, when interpreting the EU Treaties and EU law, the work that took place in negotiating and drafting those instruments. Whereas other international and domestic courts have examined preparatory work in order to further interpret the provisions of a treaty, EU law is ‘somewhat hostile to the principle of historical interpretation’Footnote 112 favouring ‘autonomous interpretation’. One reason for this may simply be that there is often little in the way of documentation that could be relied upon when determining the drafter’s intentions. The EU Treaties went through a complex and drawn-out drafting process, including multiple revisions and language versions, in a process that was largely outside the public’s gaze. Identifying the intention of drafters though examination of preparatory work is always difficult; doing so in the context of the EU Treaties would be particularly complicated. Another reason may be more ideological: the Court sees the EU Treaties as living instruments to be interpreted according to their plain meaning, the context and their object and purpose. As the Court states, ‘every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.’Footnote 113 The Court may not wish to be bogged down in debates, such as in American constitutional law, regarding ‘originalism’ and the intention of the drafters.Footnote 114
There have been some instances where the Court has employed supplementary work in its reasoning. In Pringle, the CJEU was asked to interpret the meaning of Article 125 TFEU, the so-called ‘no-bail-out’ clause.Footnote 115 In order to determine the objective pursued by that article, the Court looked at the preparatory work relating to the Treaty of Maastricht, in particular the Bulletin of the European Communities.Footnote 116 By examining this preparatory work, the Court found that the original objective of the ‘no-bailout’ clause was to encourage sound budgetary policies in the Member States of the Euro: ‘that the Member States remain subject to the logic of the market when they enter into debt, since that ought to prompt them to maintain budgetary discipline.’Footnote 117
The Court has subsequently applied Pringle to assert that ‘[t]he origins of a provision of European Union law may also provide information relevant to its interpretation.’Footnote 118 In Inuit Tapiriit Kanatami the Court examined the travaux préparatoires of articles of the proposed treaty establishing a Constitution for Europe, which are identical to the relevant parts of the TFEU under consideration.Footnote 119 In these cases the Court used the preparatory work as a primary means of interpretation in order to find the objective of the provisions in question, rather than as a supplementary means of interpretation to confirm the meaning of the provision or to remove ambiguity, as set out in Article 32 VLCT. It is not yet clear whether the reference to preparatory work by the Court in these cases is an anomaly, or whether it marks a turn away from its usual reluctance to examine the drafting history of the Treaties.Footnote 120 As more preparatory documentation becomes publicly available, the Court may decide to use it as a means of interpretation in more cases.Footnote 121
When it comes to the interpretation of international agreements, the Court remains reluctant to examine travaux préparatoires. In Bolbol, AG Sharpston went into quite some detail examining the drafting history behind the Geneva Convention of 28 July 1951 Relating to the Status of Refugees.Footnote 122 The Court, having found the wording of Article 1D of that convention to be sufficiently clear, did not examine the preparatory work of that convention.Footnote 123 The Court’s reluctance to refer to preparatory work likely stems from its inclination towards teleological reasoning in EU law.Footnote 124 The CJEU’s reluctance to examine travaux when interpreting EU law seems to apply equally to international agreements.
C. Subsequent practice
Courts may also take into account the subsequent practice of the parties when interpreting a treaty. Article 31(3) VCLT allows the interpreting body to take into account ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.’Footnote 125 The Court has rejected the notion that ‘subsequent practice’ is of relevance when interpreting EU primary law, stating that ‘mere practice cannot override the provisions of the Treaty.’Footnote 126 While the Court can and does adapt to changes that take place over time, it seeks to ensure that the Court’s interpretation of the Treaties guide the actions of the Member States, not the other way round: ‘its function is to ensure that the law is observed and that the Treaty, not the practice of the Member States, predominates.’Footnote 127
The CJEU is also reluctant to take into account subsequent practice when interpreting international agreements.Footnote 128 In Cayrol v Rivoira the Court employed the ‘settled practice of the parties to the agreement’ to confirm its interpretation of an agreement.Footnote 129 In Anastasiou the Court noted that, in accordance with Article 31 VCLT, ‘substantial importance properly attaches to the object and purpose of a treaty and any subsequent practice in its application …’Footnote 130 The Court found in this case that the practice of the parties, in particular the de facto acceptance of certificates issued by the Turkish Republic of Northern Cyprus (TRNC), did not ‘warrant a departure from the clear, precise and unconditional provisions’ of the 1977 Protocol. The Court seems equally reluctant to give importance to subsequent practice when interpreting international agreements as it is when interpreting EU law.Footnote 131 A key difficulty in employing subsequent practice is determining which practice is relevant in interpreting the agreement. In Anastasiou, the practice had been accepted by the European Commission and by the UK, but certainly not by other Member States, particularly Greece.
Georg Nolte, Special Rapporteur on the ILC Study Group on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’ identified that the CJEU has been reluctant to employ subsequent practice in interpreting the EU Treaties. This reluctance to employ subsequent practice also applies to the interpretation of agreements concluded between the Union and third states.Footnote 132 Nolte contrasts the CJEU’s reluctance to employ subsequent practice with that of the European Court of Human Rights, and argues that the difference may stem from the ‘special nature of Union law as it has been developed by the Court.’Footnote 133 Nolte points out that for the CJEU the attainment of the Treaty objectives is of great relevance and therefore ‘any practice is potentially regarded as a threat and should consequently only be taken into account with great care and reluctance.’Footnote 134 In public international law, subsequent practice can be used to identify the intentions of the parties to the agreement. In the EU context, ‘subsequent practice’ is treated with much more suspicion.
V. Treaties and Third States
It is a well-established principle of treaty law that a treaty only applies to the parties to the agreement, and cannot bind a third state. The Court has applied the principle of pacta tertiis nec nocent nec prosunt (‘a treaty binds the parties and only the parties; it does not create obligations for a third state’) enshrined in Article 34 VLCT.Footnote 135 In Poulsen, the Court found that EU law could not apply in respect of a vessel outside of the EU’s jurisdiction.Footnote 136 The vessel in question was registered in Panama and flew the Panamanian flag. Since Panama is not a party to the EU Treaties, EU law cannot be applied to its vessels and an EU regulation could not be applied to it in relation to conduct outside of the EU or EU waters.
The Court also applied the pacta tertiis principle in Brita, although in more tangential fashion.Footnote 137 Brita, a German company, imported drinks makers from an Israeli supplier, Soda Club Ltd. The German authorities refused to give preferential treatment to Brita under the EC–Israel Association Agreement on the grounds that it could not be established conclusively that the imported goods fell within the scope of the agreement. This is because Brita had stated that the goods’ country of origin was Israel, although they were manufactured in Mishor Adumim, in the West Bank. The question was whether the goods should have been given preferential treatment in any event, since they would have fallen under the EC–Israel Association Agreement or EC–PLO Association Agreement. The Court was therefore called upon to interpret the provisions of an international agreement, and referred to Article 31 VCLT in in order to employ ‘relevant rules of international law applicable in the relations between the parties.’Footnote 138 One of the rules that to which the Court sought recourse was the pacta tertiis principle.
The Court sought to interpret Article 83 of the EC–Israel Association Agreement, which defines the territorial scope of that agreement, in a manner that is consistent with the pacta tertiis principle. The Court considered that if it were to interpret Article 83 in a way that allowed Israeli customs authorities to enjoy competence in respect of products originating in the West Bank, this would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the EC–PLO Protocol. Such an interpretation, according to the Court, would create an obligation for a third party without its consent, and therefore would thus be contrary to the pacta tertiis principle.
Here the Court used Article 31, a rule of treaty interpretation, to have recourse to Article 34 VCLT, a rule about the relative effect of treaties. The case is an example of the Court applying international law, as Jan Klabbers stated, ‘in ways which are all but unrecognizable to the international lawyer.’Footnote 139 The Court’s application of the pacta tertiis principle in order to interpret the treaty led to critical response from some international lawyers. Enzo Cannizzaro is critical of the Court’s use of the pact tertiis rule:
In spite of its persuasive force, this approach can hardly have a legal basis in the international principles on treaty interpretation, which limit the relevance of other international rules to those applicable between the parties. One fails to see how the agreement between the EC and the Palestinian authority can be taken into account in the interpretation of another unrelated agreement between the EC and Israel.’Footnote 140
The Court has been criticised for misusing the principle: ‘the result of their application is somewhat stretching the scope of the pacta tertiis rule.’Footnote 141 One can understand that the Court did not want to weigh in on the politically sensitive topic of the territorial application of treaties with Israel and reliance on the pacta tertiis rule was a convenient way to avoid dealing with this thorny issue.
VI. Invalidity, Termination and Suspension
Section 3 of the VCLT deals with issues related to the invalidity, termination and suspension of the operation of treaties. Unlike the rules on interpretation, there have been only a few occasions where the Court has applied these provisions. Nevertheless, the Court’s few judgments are particularly illuminating regarding the way it deals with international law.
A. Fundamental change in circumstances
Article 62 VCLT sets out that a fundamental change in circumstances may not be used to terminate or withdraw from a treaty, unless two conditions are fulfilled:
(a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.Footnote 142
As the International Court of Justice stated in Gabčíkovo-Nagymaros: ‘The negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.’Footnote 143 The reason for the restrictive approach to the principle of fundamental change in circumstances is clear. If parties were able to use a change in circumstances to avoid obligations arising from a treaty, this could potentially destabilise treaty relations. The principle is an exception to the fundamental rule of pacta sunt servanda underlying treaty law. The rebus sic stantibus principle in Article 62 VCLT is therefore a controversial one,Footnote 144 particularly since
It would be an intolerable offense against the international rule of law if a party could unilaterally relieve itself of treaty commitments which according to its own subjective interpretation had turned out to be overly burdensome.Footnote 145
There is relatively little international judicial or other practice where the principle set out in Article 62 VCLT has been employed, making the Court’s use of the rebus sic stantibus principle particularly interesting. The principle was famously applied in Racke, concerning the termination of an agreement with Yugoslavia based on the outbreak of armed conflict in that country.Footnote 146 The issue gives rise to two questions before the Court: first, whether the conditions for the application of rebus sic stantibus were fulfilled; second, whether an individual could rely on the application of this doctrine in proceedings. The Court found that the outbreak of hostilities was a fundamental change in circumstances under Article 62 VCLT which would allow for the termination of the treaty. At first sight, it may appear that the outbreak of hostilities would constitute the very type of change in circumstances envisaged by Article 62. However, it would be highly problematic if the outbreak of war or civil unrest in a country were all that was needed to allow a third state to terminate a treaty.Footnote 147 Indeed, the issue of ‘Effects of armed conflicts on treaties’ is a complex topic, one that has been considered by the International Law Commission.Footnote 148 Yet the Court accepts that the outbreak of armed conflict sufficed to trigger rebus sic stantibus principle.
A related question was whether it was permissible to suspend the Cooperation Agreement without adhering to the procedural requirements, including prior notification and a waiting period, as required by Article 65 VLCT.Footnote 149 The Court notes that, prior to termination, the Community had made it clear that it would terminate the Cooperation Agreement if a ceasefire were not observed. However, the Court argues that the procedural requirements in the VCLT do not apply to the EU in any event: ‘[e]ven if such declarations do not satisfy the formal requirements laid down by Article 65 of the Vienna Convention, it should be noted that the specific procedural requirements there laid down do not form part of customary international law.’Footnote 150 Although the International Court of Justice has not found Article 65 to represent customary international law, it found that the procedural aspects ‘at least generally reflect customary international law and contain certain procedural principles which are based on an obligation to act in good faith.’Footnote 151 The US Restatement of the Law claims that these procedural requirements apply ‘with special force where the right to suspend or terminate is claimed on grounds of rebus sic stantibus, since that basis for termination is particularly subject to self-serving and subjective judgments by the state invoking it.’Footnote 152 The Court gives no support for its conclusion that the procedural requirements in Article 65 do not represent customary international law. The termination of a treaty is a highly political act, closely related to issues of foreign policy. The Court evidently did not want to stand in the way of the Community on this issue. As in Brita, the Court’s reluctance to deal with sensitive political issues led it to use international law to avoid grappling with delicate legal issues. Rosalyn Higgins argued that in Racke, the correct approach under international law was not the principle of a fundamental change in circumstances, but the law of counter-measures.Footnote 153 Even if international lawyers criticise the Court’s application of the principle in this case, the judgment is one of the few applications in practice.Footnote 154
VII. Conclusions
The present article has discussed the Court’s approach to a number of issues under international treaty law, demonstrating how it often does so in a novel or selfish manner. This gives rise to a separate question: why is this problematic? Is the Court, as the highest court of a domestic legal order, not free to develop its own interpretation of the VCLT in a way that feels appropriate? Is the Court’s ‘selfish’ approach any more problematic than the use of the VCLT by other domestic courts?
First, the CJEU, as an organ of the EU, is required to respect international law, a principle enshrined in the EU Treaties. When the CJEU diverges from the established international law approach to a certain issue, it does not contribute to the strict observance and development of international law, but undermines it.Footnote 155 By utilising the VCLT in such a manner, the Court may also contribute to the fragmentation of international law. International law by its nature is interpreted and applied by a multitude of international, regional and domestic courts and other bodies, which risks varying interpretations of international law principles. With its ‘pick and choose attitude’, the Court is contributing to the fragmentation of international law.Footnote 156 This is even more problematic given the fact that it is dealing with the VCLT, a highly important instrument in international law. The Court does this at the same time that it seeks to safeguard the autonomy of EU law, seeking to ensure that EU law is interpreted in a consistent and uniform manner.
There is in principle nothing wrong with the Court developing an autonomous meaning for certain terms. For instance, it was argued that the Court’s definition of an ‘agreement’ under EU law differs somewhat from a ‘treaty’ under international law.Footnote 157 The Court is free to develop its own definition of ‘agreement’ for the purposes of EU law. In doing so, however, it needs to bring in public international law. By seeking to ground the meaning of an EU law term in international law, the Court risks undermining the latter.
Second, as the highest court of a regional organisation, the interpretation and application of international law is highly influential. In a recent study on treaty interpretation by domestic courts, for example, the CJEU is examined alongside the Supreme Courts of Mexico and the United States.Footnote 158 Although the CJEU is viewed as a domestic court, it is being called upon to interpret and apply international law more than ever, and in doing so plays an important role in the development of international law. Its approach to the VCLT rules can have a wider effect outside the EU legal order. This is another reason for the Court to demonstrate greater fidelity to the established meaning of international law terms.
The final observation of this article is that the Court’s approach to the VCLT appears to be highly influenced by its approach to EU law generally, especially with regard to the issue of interpretation. While it has applied the rules of interpretation in Article 31, it has done this mostly in order to examine the ‘object and purpose’ of the agreement. It remains reluctant to employ other methods of interpretation, particularly examination of subsequent practice or the preparatory work. It should not be surprising that the Court’s approach to international treaty law would be influenced in such a manner. Each court develops its own legal traditions, cultures and approaches, and we can expect the CJEU to do so in a similar way. The problem arises, however, when a ‘European’ approach to the VCLT turns into a misuse of the VCLT. Its application of the rebus sic stantibus and pacta tertiis principles are examples of such practice. Lastly, the use of the VCLT in this way may tell us something more about how the Court sees itself more generally in the wider international legal order. The Court does not to refer to leading case law on the interpretation of international treaties given by the highest courts in other contracting States to the treaty. It feels free to use the VCLT in a way that diverges from its use in wider international law without acknowledging how other Courts have interpreted and applied those principles.
