Three academics from The City Law School – Elaine Fahey, Panos Koutrakos and Jed Odermatt – have contributed to a new edited volume The EU and its Member States’ Joint Participation in International Agreements (Hart 2022). The volume is based on contributions presented at a workshop held at the University of Geneva in November 2020.
EU law has developed a unique and complex system under which the Union and its Member States can both act under international law, separately, jointly or in parallel. International law was not set up to deal with such complex and hybrid arrangements, which raise questions under both international and EU law. Thie book assesses how EU law has been adapted to cope with the constraints of international law in situations in which the EU and its Member States act jointly in relations with other States and international organisations. Each chapter was jointly written by a team of two authors. The various contributions offer new insights into the tension that continues to exist between EU and international law obligations in relation to the (joint) participation of the EU and its Member States in international agreements.
Nomen est Omen?: The Relevance of ‘EU Party’ in International Law
This chapter, written by Sabrina Schaefer, (Humboldt Universität Berlin) and Jed Odermatt, (City Law School) examines the notion of ‘EU party’ in international agreements. The term ‘EU Party’ has found its way into the text of a number of bilateral mixed agreements concluded by the EU and its Member States with third States. Where used, it appears to underline the perception of the EU and its Member States as one party rather than as individual parties. Based on an extensive analysis of 36 trade agreements, the chapter explores patterns behind the use of the term ‘EU Party’ and the legal effects of such a designation under international law. Is it a merely linguistic simplification, or does it imply a combined party status of the EU and its Member States? The chapter argues that the term ‘EU Party’ does not denote a collective treaty party status. Instead, the EU and its Member States remain individual parties under international law, their consent covering all parts of the mixed agreements. The chapter shows, however, that it is precisely such ‘full’ conclusion that enables the specific use of ‘EU Party’: As a linguistic device, translating the EU’s dynamic division of competences onto the international plane. Instead of referring to the EU or its Member States individually, treaty provisions address the ‘EU Party’, accommodating internal shifts of competences. At the same time, the status of the EU and its Member States as ‘full’ individual parties places limits on the interpretation of the term ‘EU Party’: Where international law requires action by all treaty parties, a reading of ‘the EU Party’ as the EU and its Member States is mandatory.
Critical Perspectives on Social and Legal Relevance of Sincere Cooperation in EU External Relations Law in an Era of Expanding Trade: The Belt and Road Initiative in Context
The chapter written by Elaine Fahey (City Law School) and Julija Brsakoska Bazerkoska (Ss. Cyril and Methodius University) examines how much the EU Member States increasingly disrespect the duty of sincere cooperation within trade and at its margins by focussing upon its most complex international opponent and potential partner, China and its Belt and Road Initiative (BRI). The BRI is not an international organisation, yet its scale, span and ambitions increasingly impact upon understandings of international law, regions and nation states vis a vis China. BRI thrives upon soft law instruments and relies on processes outside of traditional frameworks for protection and promotion of investments. The chapter focuses on the EU Member State engagement with the Belt and Road Initiative of China which is highly significant and it also represents a key study of joint participation, sincere cooperation and the ostensibly irrelevance of EU action. The BRI engagements by the Member States appear imperilled by the very engagements themselves to the detriment of the EU’s deepening relations with China. There is a distinctly law-light dimension to sincere cooperation where rules, if they are that, are often more regarded in their breach. The chapter critically explores gaps in the reality of EU MS joint participation and its excessive formalism which is argued to be mismatched with practice. It considers how sincere cooperation is chronically under and over-enforced; creates unnecessary power imbalances, with minimalist case law which favours larger states.
The Future of the Istanbul Convention before the CJEU
The starting point for this chapter, written by Panos Koutrakos (City Law School) and Viktorija Soneca (Sorainen Latvia) is the signing and conclusion of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). This is only the second international human rights treaty that the Union has signed and the first gender-focused and binding instrument on violence against women. Its signature and conclusion as a mixed agreement has been marred by tension and discord, inter-institutional conflict within the Union and wildly divergent approaches amongst the Member States, all of which have led to Opinion 1/19 that the European Court of Justice handed down in October 2021. Written prior to the Opinion, the chapter analyses the controversy about the EU’s accession to the Convention in terms of competences, procedure, and political disagreements, and reflects on its implications for the role of the EU as an international actor, in general, and the functioning of the phenomenon of mixity, in particular.