The Jean Monnet Program
Professor J.H.H. Weiler
European Union Jean Monnet Chair

in cooperation with the 

Max Plank Institute for Comparative Public Law and International Law

Professor Armin von Bogdandy
Director of the Max Planck Institute for Comparative Public Law and International Law

European Integration: The New German Scholarship

Jean Monnet Working Paper 9/03

Robert Uerpmann

International Law as an Element of European Constitutional Law:    

International Supplementary Constitutions

Max Planck Institute for Comparative Public Law and International Law

Heidelberg, 24-27 February 2003

All rights reserved.
No part of this paper may be reproduced in any form
without permission of the author.

This project was funded by the Fritz Thyssen Foundation. 

ISSN 1087-2221
© Robert Uerpmann 2003
New York University School of Law and
Max Planck Institute for Comparative Public Law and International Law

Abstract
This paper deals with the attitude of European constitutional law towards international treaty systems. EU law disposes of efficient means to comply with international legal standards: accession, legal succession, autonomous references (e.g. Art. 6 [2] EU), and general principles of law. The Community institutions are, however, quite reluctant to limit their scope of action and to compromise the autonomy of EU law. The ECJ has excluded automatic internal effects of WTO law. Autonomous references and the concept of general principles make the compliance with ECHR standards a matter of EU institutions alone. Even though or perhaps just because the EU is relatively young, it sticks to concepts of sovereignty which European nation states have overcome.

International Law as an Element of European Constitutional Law:
International Supplementary Constitutions

Prof. Dr. Robert Uerpmann

I.	A Constitutional Question: The Exposure of a Legal Order to   International Law	3
II.	Accession	8
1.	WTO	8
a) Art. 300 (7) EC as a starting point	9
b) The Theory of Direct Effect	10
c) Limitation of the Internal Effect by means of the Principle of Reciprocity	19
d) Limitation of the Internal Effect through the Council of the European Union	22
e) Internal Effect without Direct Effect	24
f) Monism and Dualism revisited	26
2.	ECHR	28
III.	Legal Succession by virtue of Functional Succession	31
1. 	Legal Succession in International Law	31
a) 	GATT 1947	31
b) ECHR	32
(1) The Member States’ Responsibility to Guarantee the Observance of Human 
     Rights by the European Community	33
(2) Legal Succession in a narrower sense	34
(3) Direct Responsibility of EC Member States	35
2. 	Legal Succession under Community Law	37
IV.	Express Incorporation in Primary Law – in particular Art. 6 (2) EU	38
V.	General Principles of Law	41
VI.	Assessment	43

I.	A Constitutional Question: The Exposure of a Legal Order to   International Law*
An international supplementary constitution is an international treaty system that acts along side the constitutional order of a community. Christian Tomuschat coined the phrase with regard to German constitutional law in 1977 when he presented a paper to the Association of German Constitutional Law Teachers. There he described the international instruments for the protection of human rights as the main example of supplementary constitutions of the Federal Republic of Germany. In a later article he applied the concept even exclusively to codifications of human rights. Ernst-Ulrich Petersmann took up the concept in 1989 in order to describe the function of GATT. Both Tomuschat and Petersmann employed the German term “völkerrechtliche Nebenverfassungen”. This is best translated as “international supplementary constitutions”.

International supplementary constitutions can fulfil various functions. Sometimes national constitutional law contains gaps, which are closed by reverting to international law. This is especially the case in areas of basic and human rights. Thus the European Convention on the Protection of Human Rights (ECHR) has taken on a gap-filling role in several European countries. For example, the Convention compensates in different ways for deficiencies in the national protection of basic rights in Austria, in the United Kingdom and also in France. In contrast to these countries Germany possesses an almost complete and legally defensible catalogue of basic rights, which are enshrined in the German constitution. Consequently the ECHR’s gap-filling function scarcely shows itself in Germany. Here the ECHR takes on a more motivational role for the development of internal law.

International supplementary constitutions are also an expression of “openness of the state” (“offene Staatlichkeit”). The community does not retreat from international influences; rather it fits itself, as a section, into an international community and accepts international constitutional law as part of its own constitution. The internal constitution is thus no longer restricted to an internal document; instead it opens itself up to international specifications. International treaty systems on human rights and the Charter of the United Nations form the hard core of international constitutional law. According to some authors the law of the World Trade Organisation (WTO) also has a constitutional quality, although others deny this.

Whether or not a community incorporates international constitutional law as international supplementary constitutions into its constitutional system implies certain ideas about its position in the world. Tomuschat’s theme in 1977 was: “The Constitutional State within the Network of International Relations” (“Der Verfassungsstaat im Geflecht der internationalen Beziehungen”). He was able to base his argument on Klaus Vogel, who in 1964 described the question of the integration of an individual state into the international community as a question of constitutional law. The following paper details how the EC behaves within the network of international relations. A community that wants to emphasise its independence and autonomy will have a reserved attitude towards international law. It will not be inclined to integrate international supplementary constitutions into its own constitution. The situation is different for a community that sees itself as a part of the international community. In this case it is to be expected that the community’s constitution will be characterised quite strongly by components of international law.

The ECHR comes primarily into consideration when deliberating about international supplementary constitutions of the European Community. Its guarantees represent a common European standard of basic rights. Meinhard Hilf described it as the “agreed heart of a common European constitutional order” (“konsentierten Kern einer gesamteuropäischen Verfassungsordnung”). Even though the EC has not acceded to the ECHR, the Convention is unquestionably of significance to Community law as a reference text on human rights. Originally Community law completely lacked a human rights catalogue. The ECHR was an important aid in rectifying this deficiency. In this way the Convention fulfils the gap-filling function of an international supplementary constitution. The treaty system of the WTO shall be examined as a second example of an international supplementary constitution. Its constitutional quality is far less certain but this is not of importance for the present analysis. This paper does not intend an abstract determination of which international treaty systems have a constitutional quality. It is European constitutional law that this project is concerned with. Consequently this paper is about the international treaty systems, which the EU and EC integrate into their own legal regime so that they become parts of European constitutional law. From this point of view the law of the WTO is particularly interesting because it has severely struggled to establish its position in Community law in recent years. However, the Charter of the United Nations can be disregarded. The Charter is part of international constitutional law. Nevertheless it affects Community law only indirectly and only in connection with certain points via the two-tiered mechanism for the adaptation of UN sanctions according to Art. 301 EC and Arts. 11 et seq. EU. Association agreements in accordance with Art. 310 EC also remain to one side. Their aim is to bring non-member states closer to the EU. The extension of Community law regulatory content to non-member states is thus to the fore. This is also the case for the agreement on the European Economic Area, which associates the EFTA-countries. By contrast this paper has as its theme the import of external, foreign regulatory content into the law of the Community.

The aim of the following is to determine whether or not the law of the Community has absorbed the ECHR and the law of the WTO into its constitutional order as international supplementary constitutions. For this purpose it must be investigated which mechanisms Community law provides for the incorporation of international law. The classical mechanism of compliance with an international treaty is accession. This will be dealt with first (see II). Nevertheless, this mechanism was used neither with the ECHR nor with GATT 1947. As a result of this the question of further incorporative mechanisms is raised. The contracting states, the European Court of Justice (ECJ) and academics have developed various mechanisms for this purpose. The different mechanisms can be assigned into three basic concepts, which are to be considered consecutively. Following on from accession the concept of legal succession will be dealt with next (see III), then incorporation by means of express reference, as found in Art. 6 (2) EU for the ECHR (see IV), and finally, the concept of general principles of law (see V). The original question will be returned to in a concluding evaluating section on how the Constitution of the EC and EU relates to international supplementary constitutions.

To begin with two terminological comments:

(1.) The relationship between the EC and the EU cannot be and need not be clarified in this paper. The EC acts within the framework of the WTO. Likewise it is the EC that is of prime importance in relation to the ECHR. The EC and Community law will consequently be discussed first and foremost below. However, the reference to human rights incorporated in Art. 6 (2) EU shows that the EU is also concerned. Therefore, the way terms are used will not be quite uniform. Euroatom and the former ECSC need not be considered in this paper.

(2.) The big discussions about the internal effect of international law have been conducted with regard to nation states. If the EC now integrates international law into its internal system of laws, the law of the Community, it takes on a role that was previously reserved for the states. The effects of international law within national law and within Community law are accordingly seen as parallel phenomena. If both effects are inferred, the concept of internal law is given priority as the generic term. Nevertheless, it is sometimes difficult to use state-centred vocabulary in this way so that the EC automatically follows. If the language here is about the states and national law it should subsequently always be noted that the EC could also be conceived.

II.	Accession

1.	WTO
The normal way to make an international treaty binding is via accession. The EC complied with the WTO in this way. The EC is one of the founding members for which the agreements establishing the World Trade Organisation came into force on 1st January 1995. Subsequently the parties to the agreements are obliged in international law to keep to the contractual rules. International law leaves the means by which they manage this to the contracting parties. In particular there are no general international law rules to determine whether and how the parties have to incorporate a treaty into their internal law. The parties to a treaty can regulate together whether they require a direct effect within internal law or whether they want to exclude it. This corresponds to the freedom of contract, which rules international relations. In the case of the WTO though this did not occur. The decision remained with the individual parties to the treaty. Art. 1 (1) (3) TRIPS clarifies this. For the EC Art. 300 (7) EC stipulates that the WTO agreements are binding on the institutions of the Community and on the Member States. It is questionable what this means.
a)	Art. 300 (7) EC as a starting point
Using the wording of Art. 300 (7) EC as a starting point, it is initially unclear what the legal nature of the binding effect is. The international legal obligation of the EC as such follows directly from the contractual conclusion according to Art. 300 (2) EC. Community law has no influence on this binding effect. Art. 300 (7) EC can, therefore, only signify an obligation of the individual Community institutions, which goes beyond the international obligations of the Community.

The obligation of the institutions under Art. 300 (7) EC is not restricted. The institutions are consequently also bound when they are active as the Community’s legislator. The internal position of international treaties within the Community arises from this. As a result of the fact that international treaties derive their binding effect from primary law, they rank below primary law within the Community legal order. On the other hand the fact that Art. 300 (7) EC binds the Community’s legislator shows that it allocates to international treaties a place above secondary law. The treaties, therefore, fit in between primary law and secondary law within the Community legal order.

The internal primacy of international treaties over secondary law is no self-evident truth. In Germany, for example, Art. 59 (2) (1) of the Basic Law allocates international treaties merely the rank of an ordinary federal law. If a constitution places international law above ordinary law it takes the freedom to pass laws that do not comply with international law away from the internal legislator. This is becoming the norm more and more in Europe. Both Art. 55 of the French Constitution and Art. 94 of the Dutch Constitution are examples of this. Amongst the candidates for membership, Art. 91 (2) of the Polish Constitution can be cited. Art. 300 (7) EC also elects for this solution, which is particularly friendly to international law.

This is in principle broadly acknowledged. The academics are not the only ones to derive the primacy for international treaties over secondary Community law from Art. 300 (7) EC. The ECJ also recognises this primacy by means of its willingness to review secondary Community legislation according to the standard set by international treaties. Yet, the ECJ hesitates to do so in the sphere of WTO law. The legitimacy of this reserved attitude towards WTO law is still to be tested.

In short, international treaties are binding within the Community legal order and rank between primary and secondary law. However, it has not yet been clarified under which circumstances international treaty norms can regulate the legal relationships of individuals within the Community. This is calculated according to the theory of direct effect.
b)	The Theory of Direct Effect
Although international law does not regulate its own internal effect, a general concept about its direct internal effect has been developed. This concept is common to many countries. Following the leading decisions of the ECJ in the cases of Haegemann and Kupferberg, the academics of European Law quite predominantly assume that these rules are equally valid within the framework of Art. 300 (7) EC. The concept of direct effect is also described as the theory of self-executing treaties. One particular shaping of this theory was found in the theory of direct effect of Community law within its Member States. However, the law of the Community constitutes a special development in comparison with general international law. It is closer in many respects to internal law rather than international law. If the internal effect of international law is questioned here, it is consequently of prime importance to look at the general theory of self-executing treaties.

Self-Executing Treaty Norms

Criteria
	Precision
	Unconditionality
	Addressee: not only the Contracting Party as such

Background
No legislative appropriation necessary
Contracting Parties do not intend to exclude direct effect

The diagram shows the requirements of direct effect as an overview. Accordingly a self-executing norm is a norm that is adequately certain and absolute to be used internally in national courts. In this sense the ECJ examines whether the purpose of the agreement “contains a clear, precise and unconditional obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure”. The German Federal Administrative Court emphasises the comparability with an internal legal act. If the international norm requires appropriation through state legislation before it can be applied, it is not a self-executing norm. In this situation the international norm allows the state a normative scope, which the national courts cannot execute. The segregation of competences between the political organs of the first and second powers on the one hand and the judiciary on the other hand stands as a background to the theory of direct effect. Norms are on the whole only self-executing if the courts can interpret and apply them without taking on political functions. An international treaty can, through its formulation, also express that it requires normative implementation. This is to be assumed if an international norm expressly addresses the states as such and requires them to act in a certain way. The answer as to whether a norm has direct effect can, therefore, turn out quite differently for different provisions from one and the same treaty.

Yet, direct effect does not depend on whether a norm confers an individual right. It is true that the right of action will frequently depend on the assertion of an individual right. It is not necessary, however, that this right arises from the international treaty. For example if an administrative act, which is contrary to international law, intervenes in a constitutional human rights norm, the constitutional norm confers the required right of action.

If these principles are used in relation to the law of the WTO, directly effective provisions can be found effortlessly. There is hardly any doubt, for example, that Art. 50 TRIPS, which contains rules on provisional legal protection through the courts, has direct effect. The norm is directly addressed to the courts. It does not need a further normative appropriation. Each court can remedy possible doubts about the content of WTO law by means of legal interpretation. Other rules, such as the ban on non-tariff trade barriers according to Art. XI GATT and the exceptions that are laid down in Art. XX GATT, are much less precise. Von Bogdandy has referred to the legal uncertainty, which could arise for market participants in the application of such complex rules. However, these rules also allow the individual states no scope for appropriation. According to the WTO Dispute Settlement Understanding any state can initiate a procedure with the assertion that another state has violated its GATT obligations. In this case a panel and, should the situation arise, the appellate body decide whether GATT has actually been violated. The panel and appellate body are not political institutions. Rather they decide using a court-like procedure. If the panel and appellate body are in a position to make a legally formed decision, the same must be true for the state courts. Piet Eeckhout indicates that it could be asking too much of the national courts if they must apply WTO law directly. However, the courts are frequently required to apply complex law. In Europe the ECJ is the court most concerned with the application of WTO law. Even more so than the other courts, the ECJ should be in a position to adapt to working with the legal system of the WTO in an adequate way.

Of course it is often difficult to determine how judicial instances will finally interpret and apply a norm of WTO law. Divergences between decisions of the different national courts or between national decisions and later decisions within the WTODispute Settlement Procedure might often arise, if the national courts were to directly apply WTO law. However, this problem is not limited merely to WTO law. National constitutional law is often uncertain to a degree in that constitutional court decisions are frequently unpredictable. It is no oddity for decisions of the constitutional courts to deviate from earlier decisions of the lower courts. Other international treaties also allow considerable scope for interpretation. This is aimed principally at the European Convention for the Protection of Human Rights. The danger that judgements of the European Court of Human Rights differ from earlier national decisions on the ECHR has been well known for a long time. Nevertheless more and more countries are deciding to integrate the ECHR into their internal law as a yardstick for judicial review.

Markus Krajewski considers it to be an essential difference between the ECHR and the WTO that the law of the WTO contains no mechanisms to regulate conflicts between decisions within the framework of WTO dispute settlement and decisions of national courts. As a result of this deficiency, he claims that it ought to be concluded that the contracting states wanted to exclude the direct effect of WTO law. In contrast the ECHR regulates the relationship of the jurisdictions with the so-called local remedies rule as laid down in Art. 35 (1) ECHR. This argument is not completely convincing. Art. 35 (1) ECHR does not avoid diverging decisions. Rather the rule guarantees that the European Court of Human Rights (ECrtHR) can essentially only judge cases in which national courts have unquestionably denied an infringement of the law. Whenever the ECrtHR then detects an infringement this results in conflict with national decisions. Under these circumstances, it cannot be concluded from the silence of WTO law that the Member States of the WTO wanted to exclude the direct effect of WTO law in the interest of avoiding conflicts. Rather this silence abides by the conclusion that the law of the WTO has not decided the question of its internal effect.

Von Bogdandy wishes to explain the differences in the internal effect of WTO law on the one hand and of human rights norms on the other hand apparently with the special structural features of human rights. However, the theory of direct effect applies to all types of treaties. It even has effect on some treaties for which there are no international judicial institutions that could achieve a certain standardisation. Rules in double taxation agreements are being used internally just as frequently as the international rules about international mutual legal assistance. The fact that frequently merely a judgement in the WTO Dispute Settlement Procedure can authoritatively determine the use of WTO law in a concrete case is, therefore, no reason against the direct internal effect of WTO law.

Von Bogdandy argues that the problem of divergent judicial decisions is one of legal equality. In view of strict legal analysis this is open to doubt. There is no equality principle, which would oblige the courts of different countries to interpret the same legal text in the same way. The uniformity in the application of laws across country borders is certainly a legitimate matter of concern both politically and legally. Provided that uniformity in the application of laws cannot be established, it actually appears to be beneficial if legal equality at least consists of standardised legal texts even if the interpretations in individual cases deviate from each other. An argument against the direct effect of uniform legal texts cannot be derived from this.

Something similar applies for the language problem, which is mentioned by von Bogdandy. It can indeed be a problem if an individual must observe rules that are only produced in a foreign language. However, this difficulty arises not only for international commercial law but also for all multilateral treaties. It seems to be less problematic in international commercial law than elsewhere because many of the firms affected have to operate using the world’s business language, English, in any case. Finally, the countries who acceded to the agreement may publish a translation as an aid in the country’s own language in their Official Journal, just as the EC has done.

The ECJ cites the fact that the law of the WTO allows the Member States a broad scope for negotiations as an argument against direct effect. In particular Art. 22 (2) of the Dispute Settlement Understanding (DSU) provides that if a member cannot remedy a violation that has been determined by the Dispute Settlement Body within a reasonable period of time, it ought to negotiate and subsequently agree on compensation with the state concerned. The ECJ gives no theoretical foundation for its argument. The theory of direct effect brings the criterion of a lack of unconditionality into consideration. A norm may only have direct internal effect if its requirements are unconditional. If the EC were free to decide whether it should follow rules of the WTO or instead supply compensation, this would result in the rules of the WTO actually lacking unconditional application. Such an understanding of WTO law is, however, hardly tenable. Art. XVI (4) of the WTO agreement underlines the obligation of adhering to the law of the WTO. Art. 22 (1) (2) DSU confirms that a member is always ultimately obliged to harmonise its law with its obligations that arise from the WTO agreements. Consequently the argument of the ECJ appears to be untenable.

Von Bogdandy appeals to a deciding point when he refers to the relationship between law and politics in his criticism of direct effect. He explains that the courts usually apply rules, which could be altered at any time by a democratically responsible legislature. The WTO lacks such a legislative assembly. The democratic deficit that has been ascertained here is real. However, this concerns the entirety of classical international law and does not limit itself to the level of internal effect. If von Bogdandy is followed the problem arises that the countries have entered into international commitments that they can only alter with the consent of all of the contracting states. Whoever wishes to solve this problem by denying the internal effect of international obligations, ultimately questions international law itself.

A final argument of von Bogdandy also questions the international obligations as such of the EC in the context of the WTO. He considers there to be two ways to achieve the liberalisation of world trade that is intended by WTO law: either products from abroad should be imported even if they do not meet internal standards, or the product standards worldwide must be harmonised. Von Bogdandy rejects the second possibility because the WTO is not an integrated organisation that is geared towards harmonisation. He judges the first possibility to be inadmissible reverse discrimination. If this is taken seriously it questions not only the direct internal effect of the corresponding WTO rules but also WTO law itself. Those who engage themselves in the reduction of non-tariff trade barriers, just as the members of the WTO did, must choose between harmonisation and reverse discrimination. The way in which the members proceed is up to them. Reverse discrimination does not represent a legal problem of equality. The general principle of equality forbids discrimination without a sufficient reason. Those who intend to liberalise world trade must reduce non-tariff trade barriers and admit foreign goods even if they do not meet with their own national standards. If the participating states take on corresponding international obligations they would then have a sufficient reason for reverse discrimination.

Therefore, if the binding nature of WTO law is accepted and Art. 300 (7) EC is seen in the light of the theory of self-executing treaties there is no reason to deny direct internal effect to most parts of WTO law.

c)		Limitation of the Internal Effect by means of the Principle of Reciprocity
The ECJ continues to reject the internal effect of WTO law. Since its decision in the case of Portugal v. Council it supports this view substantially with the argument of a lack of reciprocity. Indeed, the important trade partners of the EC likewise grant WTO law no internal effect.

This argument is not convincing within the context of international law. If another country violates WTO law the EC can initiate dispute settlement proceedings and, should the situation arise, suspend its own obligations in a precisely regulated procedure according to Art. 22 DSU. Such a suspension of international law can also be carried out internally. The doctrine of direct effect is no obstacle to this. If a rule is suspended in international law the parallel internal effect does not apply either. However, outside of the special procedures of the DSU the EC cannot make its own legal compliance with international law dependent on the faithfulness of other states to international law.

Admittedly, the internal effect of WTO law is not established by international law anyway. Internal law is crucial. Here reciprocity can be raised perfectly as a requirement for direct effect, as verified by Art. 55 of the French Constitution. Nevertheless the French example shows that the pre-condition of reciprocity is problematic. French courts increasingly restrict the application sphere of this pre-condition. If the international treaty itself provides for a dispute settlement and implementation mechanism, the reservation of reciprocity as a form of pressure could be refrained from. If this were to be followed the WTO dispute settlement mechanism would exclude the reservation of reciprocity even in French Law. Above all though Community law lacks a rule that would correspond to Art. 55 of the French Constitution. Art. 300 (7) EC does not recognise a proviso of reciprocity. Certainly Art. 300 (7) EC does not offer any indication that reciprocity is required only from a specific type of agreement. This is, however, what the ECJ does. The argument’s inconsistency is further illustrated by the fact that the ECJ does not apply the reciprocity argument to association agreements, although Art. 310 EC expressly demands reciprocal rights and obligations for this type of agreement.

Some academics object that direct effect would deprive the Community of a means of political pressure in negotiations with other states. According to Helen Keller’s analysis such a reasoning is based on a politico-diplomatic understanding of international law. Although the legal character of international norms is not completely denied, compliance with international law becomes ultimately a question of political choice. In this school of thought the ECJ does not feel entitled to divest the legislative and executive Community institutions of the scope, which the corresponding institutions of trading partners of the Community have at their disposal. The loss of this form of political pressure is, nevertheless, inherent in the theory of direct effect. If a constitution arranges direct effect within the state it decides in favour of a comprehensive observance of international law. It does this without making its own faithfulness to international law dependent on the behaviour of other states. This decision is particularly friendly towards international law. Many national constitutional orders and also Art. 300 (7) EC have made this decision. The case law of the ECJ indicates that this friendliness towards international law is not sought after politically. Typically, Art. 300 (7) EC is not once referred to by the ECJ.

From the silence regarding Art. 300 (7) EC it may be possible to infer that the ECJ does not construct its arguments around substantial law. The ECJ might prefer instead to use procedural arguments. The wording of the ECJ in stating that the WTO agreements “are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions”, may also speak in favour of this. If this statement is understood procedurally the ECJ does not doubt that the Community institutions are substantially bound by WTO law. Rather the scope of review of the ECJ is limited so that the substantial obligation cannot be updated procedurally. However, this procedural approach is not satisfactory either. It merely shifts the problem from the substantial law level to the procedural level. The scope of review of the ECJ is in principle just as broad as the substantial obligations laid down in Community law. Dealing with public international law in International Fruit Company and in Racke, the ECJ confirmed that its jurisdiction cannot be limited by the grounds on which the legality of a Community act is contested. Even more, neither Art. 230 (2) EC nor Art. 234 (1) (b) EC permit any distinction in the scope of judicial review depending on the type of international treaty at issue.

d) 	Limitation of the Internal Effect through the Council of the European Union
Some authors discuss whether the Council of Ministers has excluded the internal effect of the WTO agreements by using its decision of approval. According to the eleventh and last recital in the preamble of the decision “by its nature, the Agreement establishing the World Trade Organisation, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member State Courts.”

It is recognised that the contracting parties have the authority to limit or exclude the internal effect of an agreement by means of a provision that is enacted at international level. This qualifies the principle that the internal effect of a treaty is a question for internal law and complies with the freedom of contract in international law. The decision of the Council of the European Union is, however, a purely internal act, which produces no effect in the sphere of international law. At international law level the EC accepted the WTO agreements on 30 December 1994. According to the notification issued by the Director-General of the WTO it did so without reservation or other additional declarations.

Because of this the question arises as to whether the Council of the European Union can take the internal effect away from a treaty through an act that belongs to Community law alone. This is a question of primary EC law. Art. 300 (2) EC grants the Council of the European Union the authority to decide on the international obligations of the Community. The Council can adopt a treaty, reject it or limit its scope by a reservation under public international law. In so far as the Council accepts the international obligation, Art. 300 (7) EC, however, arranges its internal effect. At this level the Council has no freedom. In fact international law leaves the determination of the internal effect up to the respective contracting party, i.e. the EC in this situation. In Community law, however, the question is regulated at primary law level in Art. 300 (7) EC and is subsequently binding for the Council of the European Union. Werner Meng refers to the contrast with German law. In Germany the order of internal application of a ratified treaty (“Rechtsanwendungsbefehl”) is not contained in the constitution itself, rather in the assenting law, which the German federal legislator enacts according to Art. 59 (2) (1) of the Basic Law. In this way the German legislator is theoretically capable of excluding the internal effect. In Community law, nevertheless, primary law enacts the order of internal application. The EC Treaty is in this respect friendlier towards international law than the German Basic Law. Under these circumstances the above mentioned consideration of the preamble in the decision of accession of the Council of the European Union qualifies only as a mere expression of opinion. If the ECJ cites the recital of the preamble in Portugal v. Council as confirmation of its argumentation, this is consequently a political justification of its decision according to Thomas von Danwitz.

e) 	Internal Effect without Direct Effect
In view of the persistence with which the ECJ denies WTO law direct effect it is of special importance to consider those internal effects, which can befit the international treaties to which the EC accedes without direct effect. Some German authors deal with these effects under the concept of internal validity (“interne Geltung”). According to these authors a treaty becomes automatically internally valid as soon as it has been incorporated into the domestic legal order. This internal validity does not depend on a treaty’s self-executing nature. Therefore, a treaty may be valid within Community law even if it produces no direct effect. Even though this is true the concept of internal validity seems to be too narrow to cover all cases of internal effect. For instance consistent interpretation of domestic law with international law is possible even if the international norm is only internationally binding but does not come into force internally. The mere interest to avoid a responsibility under international law can be a sufficient motive for an interpretation of internal law that concurs with international law. French academics list the various forms of internal effect under the generic term of invocabilité. Von Danwitz translates this concept as “cause to sue” (“Einklagbarkeit”). However, this could restrict its understanding too much to the perspective of procedural law. That is why internal effect should be spoken of here in a way that is as neutral as possible.

As a means of avoiding getting bogged down in the precedents of the ECJ some authors refer to the previously mentioned interpretation that complies with international law. According to this theory internal law should be construed as far as possible in conformity with international law (“völkerrechtsfreundliche Auslegung”). The ECJ initially cautiously approached this method in Werner and Leifer and confirmed it in Hermès. This method has the potential to become a highly effective means of avoiding conflicts between International and European law and of integrating international standards into the European legal order. Yet, its success depends on whether the norms of Community law open up a corresponding scope for interpretation. In this the Community’s legislator remains master of the internal effect of WTO law.

In addition such rules that do not have direct effect could also function as yardsticks for internal law. This is recognisable from the relationship between Community law and national law. An EC directive, which is not directly effective as a result of its contents, is, nevertheless, able to put contradictory internal law out of application. WTO law also ought to be able to annul a contradictory EC regulation by means of its internal validity according to Schroeder/Selmayr even if it is not directly effective. The concept is coherent. As Jan Klabbers observes, legality and direct effect are logically unrelated. The ECJ recognised it with regard to the Convention on Biological Diversity of 5 June 1992. Yet, in WTO law the Court has not proceeded in this way. According to Fediol and Nakajima the Court recognises WTO law only in exceptional cases as a yardstick for Community law. This occurs when Community law either implements a particular obligation that was entered into within the framework of the WTO or refers expressly to specific provisions of WTO law.,  Von Bogdandy points out that the internal effect here depends on a retractable act of the EU institutions so that the institutions do not bind themselves. WTO law, which is internationally binding on the EC, would, therefore, only have an internal effect in so far as and so long as the Community institutions wanted this.

f) 	Monism and Dualism revisited
The relationship between international law and internal law has been traditionally described in terms of monism and dualism. Art. 300 (7) EC has been said to express a monist view. This is only partially true. A strictly monist concept would imply that international law takes automatically precedence over all norms of internal law including constitutional law. By contrast, the legal scope of international law within Community law is determined by a norm of European Law and there is hardly any doubt about the internal primacy of primary EU law. Starting from French constitutional law, which is said to stand in a monist tradition, Denis Alland remarks that all constitutional concepts on the integration of international law are in essence dualist ones. What varies from one constitutional order to the other is the degree of monist influence. These observations are also true for EU law.

The well established reading of Art. 300 (7) EC is inclined to monism as it automatically integrates international treaties into the European legal order and gives them a rank above secondary law. Dealing with WTO law, the ECJ does not follow this line. Rather the Fediol and Nakajima case law turns out to be strongly inspired by dualism. It denies WTO law an automatic effect within the European legal order. The internal effect of WTO law depends on a specific Community act, which may be freely retracted by the relevant Community institutions. This is not compatible with the traditional understanding of Art. 300 (7) EC.

The disturbing lack of doctrinal coherence may be solved in different ways. The ECJ could give up Portugal v. Council and align its WTO case law according to the general doctrine of direct effect. As the Court does not seem inclined to go in this direction, another option would be to revise the established interpretation of Art. 300 (7) EC. Its wording is sufficiently open in order to permit a different reading. Such a revision cannot be limited to WTO law but it must take into account public international law as a whole. This does not exclude distinctions to be made between different types of international treaties. A new doctrine of direct effect could be limited to certain types of treaties. Some of the criteria proposed by Armin von Bogdandy, which have been discussed above, may help to build up such a new doctrine. The relationship of law and politics and the question of democratic legitimacy are of special importance in this context. This work cannot be undertaken here.

What has to be retained for the purpose of this chapter is the shift from monism to dualism. Whereas the Community legal order was thought to stand in a monist tradition, the ECJ chooses a strongly dualist approach with regard to WTO law. In this school of thought the autonomy of the EU legal order takes precedence over its integration into an overarching international legal order.

2.	ECHR
The EC has not as yet acceded to the ECHR. Therefore, it could be unnecessary to examine the mechanism of accession with regard to the ECHR. Nevertheless the ECHR is indisputably a central reference text for the protection of fundamental rights in Europe and also in the European Union. At the same time the European Court of Human Rights (ECrtHR) as protector of the ECHR occupies the position of the highest and ultimate guarantor of human rights in the states of the Council of Europe more and more. The European Union is the only important European public authority that stands outside this system. This could make an accession imminent. Hence, an analysis of the reasons that are against the accession promises further information about the attitude of the EC towards international law.

The first obstacles arise from international law. The ECHR is only open to accession by members of the Council of Europe and only states can join the Council of Europe. In order to make the accession of the EC possible an additional protocol to the ECHR or an amendment of the Charter of the Council of Europe is, therefore, required. Although this would be costly, it would be practicable. It is striking that the EC and its Member States have as yet made few efforts in this direction.

From the point of view of Community law it is doubtful whether the EC Treaty confers the competence to accede. It is well known that the ECJ has denied this. The Member States could have reacted to this without any problem by embedding the necessary competence expressly in the treaty at a revision conference as Finland suggested in September 2000. The majority attitude of denial of such an amendment to the Treaty which prevailed until recently may have had two reasons. The ECHR was created as a system to regulate state power. A community that accedes to this system would become increasingly similar to a state. The position as guarantor for civil rights and freedoms, from which a state derives part of its legitimacy, would then equally befit the EC. The significance of Member States would decrease. According to Sebastian Winkler it is especially because of this effect of integration that some of the Member States disapproved of accession to the ECHR. The alternative reason points in the opposite direction. A participant, who must be responsible before an international court, loses part of its self-righteousness. In the case of the ECrtHR the intervention is especially serious because this court does not merely judge relations between states. The ECrtHR is also of prime importance in internal occurrences. For states, which as born subjects of international law are sovereign, it has been settled for a long time that the subjection to an international jurisdiction is compatible with its sovereignty. Extensive ideas of absolute sovereignty have been overhauled. The EC as a non-state subject of international law has never been granted sovereignty anyway. Nevertheless it does not appear to be out of the question that opposition to an ECHR accession is based on the fear that subjection to the jurisdiction of the ECrtHR could impair the independence of the Community. This idea will be followed further.

If an amendment of primary law is not yet in sight, the question remains whether the necessary competence for an accession to the ECHR is actually lacking de lege lata. According to the opinion of the ECJ Art. 308 EC is not sufficient as a foundation for the competence because an accession would have “equally fundamental institutional implications for the Community and for the Member States” and, therefore, “would be of constitutional significance”. This has been interpreted as implying that the ECJ fears above all subjection to the ECrtHR. Krüger/Polakiewicz object that Community law does not exclude the establishment of an external judicial power as the first opinion of the ECJ on the European Economic Area and the ECJ opinion concerning accession to the WTO showed. Although the assessments are very different, they do agree on the starting point that the relationship of both European jurisdictions to each other constitutes the main problem. In essence the independence of the ECJ as the highest protector of Community law is at stake.

III.	Legal Succession by virtue of Functional Succession

1. 	Legal Succession in International Law
a) 	GATT 1947
A further mechanism that could make international law binding on the EC is the concept of legal succession. By taking over certain functions from its Member States the EC could participate in their obligations under international law. This possibility has been discussed above all in connection with GATT 1947. Schroeder/Selmayr talk of a “functional succession” (“Funktionsnachfolge”) that has established obligations of the EC in international law. Tomuschat describes what has happened as “functional legal succession” (“funktionelle Rechtsnachfolge”).

Public international law contains rules on the succession of states. Such a succession is not present, however, with the EC. The rules of state succession find application if the territorial sovereignty of an area is passed from one state to another. In the case of the EC it has not come to this. The EC is not a state. It has not ousted its Member States as territorial sovereignties, rather merely taken over certain of their functions. This substitution of Member States by the EC may be described as a functional succession. It could be considered whether such a functional succession also allows for the obligations of international law to be transferred. Yet, up to now such a functional succession has been recognised neither by international treaties nor by international customary law as a reason for a legal succession. Also the role that the EC has played in GATT 1947 hardly results in this being rated as a precedent. The EC was actually integrated into GATT 1947 as a member state under international law. However, consent to this existed amongst all of the participants. Consequently the position of the EC within GATT 1947 could be explained by the concept of implied accession.

Since the foundation of the WTO, which the EC formally joined in 1994, questions of the legal succession in GATT 1947 have played no real role anyway. The mechanism of legal succession by virtue of functional succession, however, remains interesting as a legal option for other cases. A succession of the EC in the duties that arise from the Geneva Convention on Refugees of 1951 and the accompanying Protocol of 1967 may be considered with regard to the planned harmonisation of the law on asylum. Under international law the Geneva Convention binds only the EU Member States as yet but not the EC. Nevertheless, the question of succession also has only a limited meaning here because Art. 63 (1) (1) EC makes the Geneva Convention on Refugees substantially binding under Community law. Even more interesting is a possible legal succession of the EC in the duties that arise out of the ECHR.

b) 	ECHR
Also with regard to the ECHR mechanisms have been discussed which can be assigned more or less to the concept of functional succession. They are based on the basic idea that it would not be acceptable if the Member States deprived individuals of the guaranteed protection of human rights via the ECHR by transferring important state functions to the EC.
(1)	The Member States’ Responsibility to Guarantee the Observance of Human Rights by the European Community
In M & Co. v. Germany the European Commission of Human Rights proposed a means to achieve the general respect of human rights. According to the Commission’s decision the ECHR accepts that the Member States in striving for co-operation and integration create supranational organisations. At the same time the ECHR States will only do justice to their own responsibility for human rights if they guarantee that the supranational organisation observes a human rights standard that corresponds to the ECHR. This extension is similar to the so-called Solange case law of the German Federal Constitutional Court concerning the relationship between EC law and German constitutional law. According to this it is incumbent on the German Constitutional Court not only to guarantee the protection of fundamental rights from the German authority of state but also to guarantee the comprehensive protection of fundamental rights in Germany. Thus EC law would also be measured against the German Basic Law. This requirement of effectiveness and control is, however, withdrawn as long as the EC guarantees a protection of fundamental rights, which is structurally comparable to that of the Basic Law. The European Commission of Human Rights argues in a similar way with regard to the applicability of the ECHR.

Strictly speaking, however, this is not concerned with legal succession by virtue of functional succession. The states alone remain obligated. They are required to ensure that the EC grants the protection of fundamental rights. The legal sources and texts on which this protection is based remain open.
(2)	Legal Succession in a narrower sense
A legal succession in a narrower sense is discussed in a similar way in connection with the ECHR as with GATT 1947. According to Hilf it is quite clear that the Member States can only transfer national jurisdiction by simultaneously passing on the related legal obligations. As maintained by this concept the national jurisdiction that the Member States transferred to the EC carries with it the obligation to adhere to human rights. This is a type of servitude (“Hypothek”). It is difficult to explain this in legal theory. First of all, the image referred to contradicts the general view that the EC exercises original jurisdiction and not a bunch of Member State jurisdictions. The creation of a new jurisdiction, however, does not necessarily stand in the way of a legal succession. In the case of dismemberment, of fusion or of secession, the rules on state succession also apply to a new, original jurisdiction, which is bound by the obligations of the predecessor state. More importantly, the temporal sequence of the ECHR is not as clear as that of GATT 1947. Although the ECHR is older than the EC, the ECHR only came into force in France in 1974, a long time after the EC Treaty. This means that in this respect no legal succession could occur at any rate until 1974. In opposition to a legal succession in 1974 it can be claimed that the transfer of sovereign rights to the EC had already taken place by this point. In 1974 there was a lack of a functional transition, which could have triggered a legal succession. Just as difficult to establish would have been how the EC should have been bound by additional protocols to the ECHR, which chronologically follow the conclusion of the EC founding treaties. The well-established concepts of the international succession of states would require considerable further development for this.

Moreover, Rodriguez Iglesias objected to a legal succession by stating that the EC could not be treated as an equal with contracting parties without their agreement. Indeed, international law in principle exempts treaties that establish membership to an international organisation from the succession of states. It is in accordance with this that the advocates of a legal succession limit this mostly to the substantial guarantees of the ECHR. Subjection to the control mechanism that includes the possibility of individual applications to the ECrtHR is reserved for the accession of the EC to the ECHR.
(3)	Direct Responsibility of EC Member States
The direct responsibility of EC Member States is another idea that has been increasingly discussed recently. According to this it should not be possible for the contracting states of the ECHR to evade their responsibility for human rights through the establishment of an international organisation as a form of inter-state co-operation. The Member States of the EC are, therefore, held fully responsible to the ECHR for the conduct of the EC institutions. This mechanism does not imply a legal succession in the strict sense. The Member States do not pass any of their duties to the EC. Rather the conduct of the Community institutions is attributed to the Member States. Even if this mechanism appears radical the underlying theoretical concept is simple. The EC is no longer seen as an independent subject of international law from the perspective of the ECHR. As soon as the EC does not apply as a responsible entity in international law anymore the conduct of the Community institutions is attributed to the Member States, which founded the EC and which support it. The EC’s “veil of legal personality” is lifted. Academics have drawn a parallel to indirect state administration. If a state transfers national jurisdiction to sub-state entities, international law ascribes the conduct of the entities to the state as its own. A similar mechanism is used with regard to the EC. So long as the EC itself has not acceded to the ECHR, the conduct of the Community institutions can be ascribed to the Member States from the point of view of the ECHR.

The ECrtHR has not as yet ventured to takes these steps. In the Matthews judgement of 1999 it explained that the transfer of competences to an international organisation, such as the EC, does not liberate the Member States from their responsibility under the ECHR. At the same time, however, the Court emphasised that legally relevant acts of the Community institutions could not form the subject matter of a procedure before the ECrtHR. In the end the decision did not depend on this question because the responsibility of the United Kingdom arose from its approval of a decision of the Member States meeting in the Council and of the Treaty of Maastricht.

It may be objected that it would be unpractical if individual or all EU Member States are held responsible for the conduct of the EC, which they can scarcely control. Such considerations of practicability can, however, hardly determine the legal extent of human rights protection. Besides the problems can be solved. For instance it might be possible for the EC Member States to allow themselves to be represented by a delegate of the EC in cases where acts of the EC are challenged. Should the ECrtHR actually follow the route of attributing EC acts completely to the Member States, this would also exert a considerable pressure to clear up the legal position by means of a formal accession of the EC to the ECHR.

2. 	Legal Succession under Community Law

The current level of development of international law may not yet be ready to accept the idea of functional succession and to derive from it a legal succession of the EC to the international ECHR obligations of the Member States. However, a legal succession under Community law may still be considered. This mechanism would likewise lead to the EC institutions being bound by the ECHR. Yet, the obligation would no longer be one of international law. Rather the EC institutions would only be bound under Community law. Rudolf Bernhardt thinks along these lines when he speaks of the phenomenon that the EC is materially bound to treaty rules without being a contracting party itself. He explains this by the principle that Community law must be interpreted and applied in accordance with the international commitments of the Member States. The starting point of such considerations is Art. 307 EC. Art. 307 (1) EC expresses the self-evident truth that accession to the EC did not affect the obligations under the ECHR that most Member States had previously taken over. As seen above these obligations can be understood in such a way that the Member States are also responsible for ensuring that the conduct of the EC conforms with the ECHR. Possible incompatibilities between the ECHR and the EC Treaty can be remedied in accordance with Art. 307 (2) EC. An amendment or even termination of the ECHR in favour of the EC Treaty is not at issue. The only means of solution is, therefore, to oblige the EC institutions to follow the ECHR in Community law so that it does not come to a Member State responsibility in international law.

The concept of a legal succession under Community law permits the obligations of the Member States to bind the institutions of the EC in Community law. It does this without needing to further develop the international rules on legal succession and without having to rely on the involvement of non-member states, as would be the case with the accession of the EC to the ECHR. At the same time the autonomy of the Community remains unaffected because the EC is not obligated in international law. However, this mechanism may turn out to be superfluous. It is not needed if the observance of the ECHR by the EC institutions can be guaranteed by an alternative means. Subsequently Art 6 (2) EU comes into consideration.

IV.	Express Incorporation in Primary Law – in particular Art. 6 (2) EU

A third way of incorporating international law into Community law is by the use of primary law references to international law. The most important example of this is Art. 6 (2) EU with regard to the ECHR. On examination of Art. 6 (2) EU it should first of all be noted that the mechanism is a purely European one. European Union law grants a text of international law the function of a yardstick without establishing an international obligation. Art. 6 (2) EU, therefore, facilitates the reception of international law standards without creating external obligations or subjecting the Community or the Union to the jurisdiction of an organ that is outside the Union. Art. 6 (2) EU consequently preserves the independence of the EC and its institutions.

Apart from this the scope of Art. 6 (2) EU is unclear. Some would like to see Art. 6 (2) EU make the ECHR binding at least within the Community. Hilf talks of “a substantial obligation” in this context. He emphasises that Art. 6 (2) EU does not refer generally to international human rights norms, rather specifically to the ECHR. He also stresses that the article mentions first the ECHR as an independent guarantee and only afterwards the constitutional traditions of the Member States. Others, however, emphasise once more the independence of Community law. Thus the Court of First Instance (CFI) states that the ECHR is “not itself part of Community law”; the ECJ and CFI merely allow themselves “to draw inspiration from the guidelines” that the ECHR provides. This leads German authors to the conclusion that the ECHR is not a source of law for the EC rather merely a source of legal knowledge (“Rechtserkenntnisquelle”).

Eckhard Pache assesses the ruling of the CFI by stating that it avoids the danger of an external domination of EC human rights protection by the ECrtHR. As an observation this may be true. However, this raises the question of why control by the ECrtHR should be considered to be a dangerous domination. It is not astonishing that Alber/Widmaier think in the opposite direction and consider a future provision in primary law, which could make the ECJ’s observance of the case law of the ECrtHR compulsory. If all EU Member States have voluntarily subjected themselves to control by the ECrtHR the same should not be too alarming for the EC anyhow.

The Charter of Fundamental Rights of the European Union shows once more the ambivalent attitude of the Community and the Union towards the ECHR as an international supplementary constitution. The basic decision to formulate a specific EU text on fundamental rights instead of incorporating international human rights texts formally into Community law corresponds with efforts to safeguard and emphasise the independence of Community law. As regards contents the references of the Charter of Fundamental Rights to the ECHR go further than Art. 6 (2) EU. Art. 52 (3) (1) of the Charter arranges the synchronisation of Charter guarantees with parallel guarantees of the ECHR. Moreover, Art. 53 of the Charter declares the ECHR to be the European minimum standard in connection with other guarantees of fundamental and human rights. However, this incorporation of the ECHR into Community law remains merely an agenda so long as the Charter of Fundamental Rights lacks a legal binding nature.

An essentially stronger incorporation at primary law level can be found in Art. 63 (1) (1) EC. The Treaty of Amsterdam added this rather concealed provision. It gives the European legislator the task of harmonising the law on asylum. At the same time it binds the legislator to the Geneva Convention on Refugees of 1951, to its Protocol of 1967 and also to other relevant treaties. Here an international treaty system is integrated at primary law level into Community law. Whilst Art. 6 (2) EU merely requires a more or less narrow orientation towards the ECHR, Art. 63 (1) (1) EC demands behaviour “in accordance with” international law. The Geneva Convention thus becomes a direct standard of decision. It is not just a source of legal knowledge. Rather it becomes a source of law by virtue of primary Community law references to it. This achieves practical meaning, however, only in the context of harmonisation of asylum law by Community legislation, which would have to comply with the Convention.

V.	General Principles of Law

A final approach to incorporating international law into Community law is the use of general principles of law. The ECJ had already started to use the ECHR as an expression of general principles of law well before Art. 6 (2) EU was adopted. According to some authors Art. 6 (2) EU simply confirmed this jurisprudence. The gaps in the written legal order of the Community are the starting point for this concept. As European integration reached a certain level an irrefutable need arose to guarantee fundamental rights protection against acts of the Community institutions. Fundamental rights had to be derived from other sources because there was a lack of these rights in written Community law. The use of general principles of law seemed practical. The ECHR, which guarantees a common European standard of fundamental rights, was employed as a reference text.

The ECJ nonetheless avoided making the ECHR directly binding. The Convention is not the point of reference rather the unwritten legal principles are. These are inferred from common constitutional tradition. German academics have described this method as one of comparing and evaluating systems of law (“wertende Rechtsvergleichung”). According to earlier leading decisions of the ECJ international agreements on human rights could provide “guidelines” for the unwritten principles of constitutional law. Later the ECJ emphasised the “particular significance” of the ECHR. As a result of this the independence of Community law evolution remains guaranteed despite the dominant function of the ECHR. Jürgen Schwarze talks of a “Reservoir” that the ECJ draws from.

The incorporation mechanism of general principles of law thus identifies itself not only by its great flexibility but also by the fact that it leaves the independence of the Community untouched. Obligations in international law are not established. The extent to which the standards of international law are gradually taken over within the Community depends on the Community institutions alone. The case law of the ECJ is of prime importance. The analysis, which is suggested in this paper from an external perspective that is shaped by international law, agrees with that which Jürgen Kühling emphasises in his contribution to this project from the viewpoint of EU fundamental rights protection.
VI.	Assessment

At the beginning of this paper it was asked how the constitution of the EC and the EU behaves towards international supplementary constitutions. The forthcoming results allow two interpretations that do not rule each other out. One explanatory approach concerns the rule of law within the Community. The other concerns the position of the Community in the world.

Because of the restrictive attitude of the ECJ towards WTO law it is frequently declared that the Court does not wish to restrict the scope of action of the Council of Ministers and the European Commission. Behind this is an understanding of the separation of powers, which exempts the exercise of external powers from judicial control. Josef Drexl describes this as a tension between judicial control on the one hand and adherence to the freedom to disregard the treaty on the other hand. He comes out in favour of judicial control as a result of policy-orientated reasons. Legal contemplation of European constitutional law leads to the same result. In national law the idea that external powers may be exempt from judicial control has been increasingly abandoned. In France the significance of international law in the judicial application of law in recent years has considerably increased. German courts have repeatedly emphasised that it is one of the tasks of national courts to avoid situations that could lead to an international responsibility of the state. Legal control of external powers is also laid down in the EC Treaty on the one hand in Art. 300 (7) and on the other hand in the rules on judicial control in Arts. 220 et seq. The Community institutions appear to have not yet achieved this state of legal development.

The restrictive attitude towards international law also concerns the EC’s position in the world. Naturally, the EC is a member of the international community and it is one of the important actors in the context of the WTO. The ECHR guarantees a common European standard for fundamental rights. It is obvious that the EC and the EU cannot in principle evade this standard. Nevertheless the EC consistently follows a route, which maintains as far as possible its independence from the international community and international law obligations. The EC has at its disposal mechanisms to efficiently incorporate the human rights standards of the ECHR into Community law as required. At first there was the concept of the general principles of law, which is now supplemented by the autonomous reference in Art. 6 (2) EU. The EC has, however, always avoided international obligations, which could have restricted its scope. An accession to the ECHR is not yet foreseen and the idea of a legal succession in international law has until now only been proposed by a few authors. The situation is similar with the WTO. The EC has formally acceded to this system in international law. The almost inevitable consequence of granting WTO law an extensive internal effect via Art. 300 (7) EC has, however, not been set up by the crucial institutions. As formulated by Berrisch/Kamann the ECJ decided in favour of the protection of the Community’s sovereignty within the WTO. A committee report of the European Parliament from 1997 toes exactly this line. It calls for the Community to provide for a “sovereignty shield” in the course of treaty amendments.

Thus the image of a European Community arises that preserves an idea of sovereignty, which modern European states overcame a long time ago. Many states are prepared to confer on international law an internal effect that noticeably restricts the scope of the state institutions. The constitutional courts of European states lost their roles as sole supreme protectors of fundamental rights long ago. The ECrtHR stands next to and above them. It seems odd that the European Community, which has never been regarded as a sovereign state, should have greater difficulty in subjecting itself to international obligations. Perhaps however an explanatory approach lies just here. Nation states such as Germany or France do not seriously jeopardise their identity if they subject themselves to international obligations and revoke their claim to autonomous legislation and application of the law. The situation is different with the EC. The EC is a relatively young construction that essentially understands itself to be a Community founded on law (“Rechtsgemeinschaft”). If Community law loses its autonomy, this could endanger the Community’s identity.

The Community’s aspiration for autonomy, therefore, appears to be an attempt to achieve and strengthen an identity of its own. The identity deficit of the EU and the EC is well known. The EU Treaty considers this in the context of the Common Foreign and Security Policy (CFSP). In the tenth preamble recital the EU Treaty describes the CFSP as a means of reinforcing the European identity and its independence. It is remarkable that identity and independence are expressly associated with each other here. Art. 2 (1) EU takes up the theme of the preamble recital in its second sub-paragraph. It declares the assertion of identity on an international level to be an objective of the European Union. Art. 2 (1) EU conceives the Union as a political actor on the international scene. This effort of European integration is intended to strengthen the European identity. A second strategy touches upon the emphasis of independence: marking differences and autonomy can also establish identity. The ECJ proceeded in this second way as long ago as 1964 in Costa v. E.N.E.L. Here the Court extracted Community law as an autonomous legal order from the legal orders of the Member States. The ambivalent attitude of the Community towards international supplementary constitutions maintains the same strategy. The Community institutions endeavour to make the legal order of the Community independent from international law. This aspiration for autonomy seems to a certain extent outdated since the nation states are increasingly prepared to withdraw prevailing ideas of sovereignty and to open their national constitutional orders to international influences. The counter adherence of the Community to this is explicable in that it has not yet found its permanent place in the international community.

According to this analysis the order that is examined in this project appears as a constitutional order in statu nascendi. It cannot do without international supplementary constitutions. However, as long as the European constitutional order has not established itself it will endeavour to play down the significance of international supplementary constitutions and to place its own claims to autonomy in the foreground.