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Longo, Michael --- "Reconceptualising Public International Law: Convergence with the European Union Model?" [2002] UNSWLawJl 3; (2002) 25(1) UNSW Law Journal 71

[*] BA, LLB (Melb); LLM (Monash). Lecturer, School of Law, Victoria University; Fellow, Contemporary Europe Research Centre, The University of Melbourne. The views expressed in this article are those of the author alone.

[1] (C-26/62) [1963] EUECJ R-26/62; [1963] ECR 1.

[2] The Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958) is also commonly known as the Treaty of Rome. The Treaty on European Union, opened for signature 7 February 1992, [1992] OJ C 224/1, title II art G (entered into force 1 November 1993) (‘TEU’ or ‘Maastricht Treaty’) dropped the word ‘Economic’ from the title in order to establish a European Community (reflecting the now broader scope of EC activity). This article refers to the consolidated version of the Treaty Establishing the European Community [1997] OJ C 340/173 (entered into force 10 November 1997) (‘EC Treaty’) which incorporates amendments effected by the Single European Act [1987] OJ L 169/1, the TEU and the Treaty of Amsterdam, opened for signature 2 October 1997, [1997] OJ C 340/1 (entered into force 1 May 1999).

[3] In Van Gend, direct effect was taken to mean that Community law (assuming it fulfils certain conditions) gives rights to individuals who are then entitled to invoke such rights before the national courts of the Member States. The ECJ has not drawn a clear distinction between direct effect and direct applicability (ie, that the provision of Community law is incorporated into national law without the need for national legislation) which was also contemplated in Van Gend. This article recognises that the ECJ’s construction of direct effect contemplates both concepts and their meanings. Thus, both the manner in which Community law is received in the Member States and the individual rights which arise from such laws are encapsulated within the ECJ’s broad construction of direct effect. As the capacity of individuals to assert their legal rights in a national court without reference to national laws (direct effect) is the consequence of the direct application of certain Community provisions in national law, the former may be viewed as the consequence of direct applicability. This article will, unless otherwise stated, adopt the broader understanding of direct effect.

[4] (C-41/74) [1974] EUECJ R-41/74; [1974] ECR 1337.

[5] Broader than the concept of Community law, the acquis communautaire comprises the whole body of rules, norms, standards, principles, objectives, agreements, declarations, resolutions, opinions and practices concerning the European Community, whether binding in law or not. Community institutions and Member States, including new members, necessarily accept the acquis communautaire.

[6] Trevor C Hartley, Constitutional Problems of the European Union (1999).

[7] The term ‘EU’ was introduced by the TEU. The term describes the union of Member States in various contexts, including the geographic, demographic, economic and political contexts, as well as its representation in international affairs. It does not replace the term ‘EC’ if the context has to do with matters of law relating to the EC Treaty or in respect of events predating the entry into force of the TEU.

[8] Knud-Erik Jørgensen, ‘Europe: Regional Laboratory for a Global Polity?’ (Paper presented at the 2000-01 European Forum Weekly Seminar ‘Between Europe and the Nation State’, Robert Schuman Centre for Advanced Studies, European University Institute, 23 November 2000) 14.

[9] See, eg, Jean Monnet, ‘A Ferment of Change’ (1962) 1 Journal of Common Market Studies 203; James Richardson, ‘The Concept of Atlantic Community’ (1964) 3 Journal of Common Market Studies 1; Friedrich Von Krosigk, ‘A Reconsideration of Federalism in the Scope of the Present Discussion on European Integration’ (1970) 9 Journal of Common Market Studies 197.

[10] The 1980s were characterised by initiatives to complete the internal market. Jørgensen, above n 8, 5, observes that the single market program and the resulting expansion of EU regulatory and policy competence can be explained by ‘the playing out of the EU's “everyday politics”’. He contrasts this period with the 1960s and the present period where European integration was, and is, often conceived as a stimulus to regional integration.

[11] Derek Bowett states that the ability of EC institutions, specifically the Commission of the European Communities (‘the Commission’), to make decisions that bind states without the intervention of the states is a hallmark of a supranational authority: Derek Bowett, The Law of International Institutions (4th ed, 1982) 211.

[12] Jørgensen, above n 8, 5.

[13] Ibid.

[14] Ibid 9.

[15] Ibid 14.

[16] Many volumes have been written on the question of governance beyond the nation-state: see, eg, Daniele Archibugi, David Held and Martin Köhler (eds), Re-Imagining Political Community Studies in Cosmopolitan Democracy (1998); Charles Sampford and Tom Round (eds), Beyond the Republic: Meeting the Global Challenges to Constitutionalism (2001); Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000); Michael Th Greven and Louis Pauly (eds) Democracy Beyond the State? The European Dilemma and the Emerging Global Order (2000). Similarly, the important issue of the constitutionalisation of the EU regime has been the subject of extensive analysis. See Philip Alston and Joseph Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ (Jean Monnet Working Paper No 1/99, Harvard Law School, 1999) <http://www.jeanmonnetprogram.org/papers/99/990101.html> at 26 April 2002; Christian Joerges, Yves Mény and J H H Weiler (eds), What Kind of Constitution for What Kind of Polity? Responses to Joschka Fisher (2000) <http://www.jeanmonnetprogram.org/papers/00/symp.html> at 9 July 2002; Michael Longo, ‘The European Union’s Search for a Constitutional Future’ (Working Paper No 3/2001, Contemporary Europe Research Centre, The University of Melbourne, 2001).

[17] Jean Monnet is regarded as the architect of the EC system. The so-called ‘Monnet (Community) method’ creates procedures for the adoption of Community legislation pursuant to the activities of three supranational institutions: the Commission, the Council of the EC and the European Parliament (formerly Assembly). The method provides a means to arbitrate between different interests within a framework of joint institutions and cooperative institutional processes.

[18] Jørgensen, above n 8, 7.

[19] Particularly the notion that domestic constitutional law determines the relationship between international and national law.

[20] Hartley, above n 6, 24–6; Francis G Jacobs, ‘Introduction’ in Francis G Jacobs and Shelley Roberts (eds), The Effect of Treaties in Domestic Law (1987) xxii, xxiv, cited in Hartley, above n 6, 25.

[21] Hartley, above n 6, 31 (fn 33).

[22] Ibid 25–6.

[23] (C-26/62) [1963] EUECJ R-26/62; [1963] ECR 1, 16–30, see especially 23–4.

[24] That is, they impose clear and precise obligations on the Member States to abstain from something such as an increase in customs duties: Van Gend (C-26/62) [1963] EUECJ R-26/62; [1963] ECR 1, 12–13.

[25] See, eg, Internationale Handelsgesellschaft mbH v Einfuhr – Und Vorratsstelle fur Getreide und Futtermittel [1974] 2 CMLR 540, in which the German Constitutional Court declared that it would check Community rules against the standards of fundamental rights protection set out in the German Constitution. In Re the Application of Wünsche Handelsgesellschaft [1987] 3 CMLR 225, the German Constitutional Court ruled that it would no longer subject Community rules to constitutional review in light of the improvements to fundamental rights protection under Community law. In Brunner v The European Union Treaty [1994] 1 CMLR 57, the German Constitutional Court, warning the ECJ and the political institutions about the excesses of judicial activism, declared that if the EU were to develop in a form other than that envisaged by the Act of accession to the European Union, ‘the resultant legislative instruments would not be legally binding within the sphere of German sovereignty’: [49]–[99]. Finally, in Frontini v Ministero delle Finanze [1974] 2 CMLR 372 the Italian Constitutional Court ruled that it would continue to review the exercise of power by European Economic Community (‘EEC’) organs to ensure the continuing compatibility of the EEC Treaty with the fundamental principles of the Italian constitutional order.

[26] The articles in the EC Treaty were renumbered by the Treaty of Amsterdam, opened for signature 2 October 1997, [1997] OJ C 340/1 (entered into force 1 May 1999). In view of this, the old numbers are inserted in curly brackets after the new ones throughout this article.

[27] Van Gend (C-26/62) [1963] EUECJ R-26/62; [1963] ECR 1, 12.

[28] Ibid (emphasis added).

[29] Lassa Oppenheim, International Law (A Treatise), rev H Lauterpacht (first published 1912, 8th ed, 1955) 636–42.

[30] See the judgment of the ad hoc International Criminal Tribunal for the former Yugoslavia in The Prosecutor v Kunarac, Kovac and Vukovic (2001) (International Criminal Court for the Former Yugoslavia, Judges Mumba, Hunt and Pocar, 22 February 2001, IT-96-23-T and IT-96-23/1-T) <http://www.un.org/icty/foca/trialc2/judgement/index.htm> at 7 May 2002. In this case, the rape and sexual enslavement of Muslim girls and women by three Bosnian Serbs in the town of Foca in 1992 was treated as a crime against humanity. Thus, while the ICJ deals exclusively with disputes between states, rather than criminal acts perpetrated by individuals against humanity, the establishment by the UN Security Council of ad hoc Criminal Tribunals for the former Yugoslavia (and Rwanda) indicates a preparedness to prosecute individuals for breaches of international human rights law. A new International Criminal Court to try persons charged with genocide, or other crimes of similar gravity against humanity, has now been established. The Rome Statute of the International Criminal Court entered into force on 1 July 2002.

[31] Jean-Victor Louis, The Community Legal Order (1993) 110.

[32] Henry G Schermers, ‘Community Law and International Law’ (1975) 12 Common Market Law Review 77, 89.

[33] See, eg, Van Duyn v Home Office [1974] (C-41/74) ECR 1337; Defrenne v SA Belge de Navigation Aérienne Sabena (C-43/75) [1976] EUECJ C-43/75; [1976] ECR 455; Politi v Ministry for Finance of the Italian Republic (C-43/71) [1971] ECR 1039; F lli Variola SpA v Amministrazione Italiana delle Finanze (C-34/73) [1973] ECR 981; Becker v Finanzamt Münster-Innenstadt (C-8/81) [1982] ECR 0053; Francovich v Italy (C-6/90) and Bonifaci v Italy (C-9/90) [1991] ECR I-5357 (‘Francovich’); Marshall v Southhampton and South West Hampshire Area Health Authority (C-271/91) (No 2) [1993] ECR I-4367; Grad v Finanzamt Traunstein (C-9/70) [1970] ECR 825.

[34] (C-6/64) [1964] EUECJ C-6/64; [1964] ECR 585. In this case, the Giudice Conciliatore di Milano, acceding to a request by Costa, had referred a matter to the ECJ for a preliminary ruling under the EC Treaty, [1997] OJ C 340/173, art 234{177} (entered into force 10 November 1997). Italy had, by law and subsequent decrees, nationalised the production and distribution of electricity and created a company (ENEL) to take care of the administration. Costa argued that his interests had been adversely affected by the nationalisation and refused to pay an electricity invoice to ENEL. He denied the validity of the Italian nationalisation law, arguing that it constituted an infringement of the EC Treaty. He requested interpretation of various articles of the EC Treaty, which he alleged had been infringed by the Italian nationalisation law. The Italian Government and ENEL submitted that the application for a preliminary ruling was inadmissible and that there were no grounds for raising the questions referred, as the Italian court was obliged to apply the national law. The ECJ ruled that the article was to be applied regardless of any domestic law.

[35] Costa (C-6/64) [1964] EUECJ C-6/64; [1964] ECR 585, 593.

[36] Louis, above n 31, 136.

[37] Neil MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1, 16.

[38] (C-6/64) [1964] EUECJ C-6/64; [1964] ECR 585, 594.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] (C-106/77) [1978] EUECJ R-106/77; [1978] ECR 629.

[44] Ibid 645.

[45] The question of whether EC law takes precedence over national constitutions is a controversial matter. In Internationale Handelsgesellscaft mbH v Einfuhr-und Varratsstelle für Getreide und Futtermittel [1970] (C-11/70) ECR 1125, 1134 the ECJ stated that ‘the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure’. Thus, neither can be invoked to challenge a directly effective Community law.

[46] Such as Germany and Italy: see above n 25.

[47] European Communities Act 1972 (UK).

[48] Paul Craig and Gráinne de Búrca, EU Law Text, Cases and Materials (2nd ed, 1998) 281.

[49] (C-213/89) [1990] ECR I-2433. The case confirms that any Act of the British Parliament passed since Britain joined the Community in 1973 must be read as subject to directly enforceable rights under Community law.

[50] Even where a directive does not have direct effect, national courts are still required to interpret national laws adopted to implement it in conformity with the wording and purpose of the directive. Thus the ECJ has developed the concept of ‘indirect effect’ to ensure the better implementation of directives not having direct effect. Von Colson and Kamann v Land Nordrhein-Westfalen (C-14/83) [1984] EUECJ R-14/83; [1984] ECR 1891 dealt with the provisions of a national law introduced to implement Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions [1976] OJ L 39/40. The ECJ ruled that in applying national laws, national courts are required to give an interpretation which best achieves the result referred to in the EC Treaty, [1997] OJ C 340/173, 249{189} para 3 (entered into force 10 November 1997) - a ‘directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.

[51] Francovich (C-6/90), (C-9/90) [1991] ECR I-5357.

[52] Alberta Sbragia, ‘Introduction’ in Alberta Sbragia (ed), Euro-Politics: Institutions and Policy-Making in the ‘New’ European Community (1992) 1, 12–13.

[53] Derrick Wyatt, ‘New Legal Order, or Old?’ (1982) 7 European Law Review 147.

[54] As long as the designation of the Community legal order as sui generis does not impede rigorous analysis and comparison with other systems, the term may be considered inoffensive. Even accepting the sui generis nature of the polity and legal system of the EU, the pertinent inquiry must surely be: can it be reproduced to any significant degree at a broader international level? If so, can it help to make international law more effective by qualifying the reliance of international law on domestic acceptance and implementation?

[55] Michael Longo, ‘The European Union: A “Ferment of Change” in the World’ [1998] GriffLawRw 6; (1998) 7 Griffith Law Review 124, 127.

[56] Wyatt, above n 53.

[57] Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

[58] [1932] PCIJ (ser A/B) No 44.

[59] Ibid 24.

[60] Longo, above n 55, 128.

[61] Pierre Pescatore, ‘International Law and Community Law: A Comparative Analysis’ (1970) 7 Common Market Law Review 167, 168.

[62] The ICJ can only contribute to the development of international law if it is given the opportunity to do so. There is a scarcity of judicial pronouncements in international law. Article 36 of the Statute of the International Court of Justice sets out the principal means by which a state can submit to the ICJ’s jurisdiction as follows:

  1. by states referring any matter to the court;
  2. on all matters specially provided for in the UN Charter or in treaties in force; or
  3. by states declaring that they expressly recognise the court’s jurisdiction.

[63] The ICJ cannot enforce its own judgments and has to rely upon the good faith of states to uphold its authority. Article 94 of the Charter of the United Nations (‘UN Charter’) states that its members undertake to comply with the decision of the ICJ in any case to which they are a party (the decision is binding between the parties – an arrangement confirmed by the ICJ Statute art 59). Non-compliance constitutes violation of the UN Charter, which permits the other party to seek recourse to the Security Council. The Security Council may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. Only a Security Council decision will be binding and failure to comply therewith may, in certain circumstances, give rise to enforcement measures under the UN Charter arts 39, 41, 42. Enforcement measures are, however, subject to the veto power of the permanent members. Thus, action will only be taken in cases in which the permanent members can agree to force compliance with the ICJ’s judgment. Ultimately, enforcement cannot be disassociated from politics.

[64] See especially Pescatore, above n 61, 170.

[65] A real legislative process is absent from the system, which has to rely instead on ‘a clumsy and ineffectual apparatus of negotiated treaties’: ibid.

[66] Jens Steffek, ‘The Power of Rational Discourse and the Legitimacy of International Governance’ (Working Paper No RSC 2000/46, European University Institute, 2000), 9 <http://www.iue.it/RSC/WP-Texts/00_46.pdf> at 9 June 2002.

[67] See, eg, Michael Th Greven, ‘Can the European Union Finally Become a Democracy?’ in Michael Th Greven and Louis W Pauly (eds), Democracy Beyond the State? The European Dilemma and the Emerging Global Order (2000) 35.

[68] (C-6/90), (C-9/90) [1991] ECR I−5357.

[69] See, eg, Wyatt, above n 53; Anna Bredimas, Methods of Interpretation and Community Law (1978) 23. Bredimas cites The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Rep 16 as an example of the ICJ’s commitment to a teleological approach.

[70] References to the EC Treaty, [1997] OJ C 340/173, art 234{177} (entered into force 10 November 1997) have provided the ECJ with around half of the total number of cases and have provided the means for developing core areas of Community law, including direct effect and supremacy of Community law over national law. See Mads Andenas, Article 177 References to the European Court Policy and Practice (1994) 3.

[71] The provision in the EC Treaty, [1997] OJ C 340/173, art 230 {173} (entered into force 10 November 1997) should not be confused with the rights given to individuals to take action for non-compliance with Community law in a national court, the consequence of direct effect. In addition, see arts 232{175}, 241{184}, 235{178}, 288{215}.

[72] It is apparent from the restrictive wording of the EC Treaty, [1997] OJ C 340/173, art 230{173} para 4 (entered into force 10 November 1997) that judicial review by individual applicants is quite limited. Natural or legal persons are able to:

[I]nstitute proceedings [generally within two months of publication of the measure or of its notification to the plaintiff] against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

The ECJ’s rulings in this area have tended to confirm the restrictive criteria regarding standing (see Plaumann & Co v Commission of the European Economic Community (C-25/62) [1963] ECR 95). More recently the Court in Codorníu SA v Council of the European Union (C-309/89) [1994] EUECJ C-309/89; [1994] ECR I-1853 demonstrated greater receptiveness to the idea of a wider principle of individual standing before the ECJ.

[73] See Vienna Convention, opened for signature 23 May 1969, 1155 UNTS 331, art 60 (entered into force 27 January 1980).

[74] (C-90/63) [1964] ECR 625.

[75] (C-31/77) [1977] ECR 921.

[76] Ibid 924.

[77] Commission of the European Economic Community v Luxembourg and Belgium (C-90/63) [1964] ECR 625, 631.

[78] Schermers, above n 32, 78.

[79] See, eg, Sir Ninian Stephen, ‘The Growth of International Environmental Law’ (1991) 8 Environmental and Planning Law Journal 183.

[80] [1950] ICJ Rep 128.

[81] Ibid 176.

[82] Ibid.

[83] Richard Falk, Reviving the World Court (1986) 183.

[84] Ibid 184.

[85] Recent works include: Longo, above n 55; Jørgensen, above n 8.

[86] Jørgensen, above n 8, 7.

[87] Gary Marks et al, ‘Competencies, Cracks and Conflicts: Regional Mobilization in the European Union’ in Gary Marks et al (eds), Governance in the European Union (1996) 40, 41.

[88] Jørgensen, above n 8, 7.

[89] Ibid.

[90] Francis Snyder, ‘Globalisation and Europeanisation as Friends and Rivals: European Union Law in Global Economic Networks’ (Working Paper No Law 99/8, European University Institute, 1999) 4, <http://www.iue.it/LAW/WP-Texts/law99_8.pdf> at 9 July 2002.

[91] Ibid 57–8.

[92] It is generally accepted that globalisation puts states in competition with each other for investment capital. States attract capital by providing the most attractive inducements, which often take the form of low taxes and limited governmental intervention in the market place. While the process of globalisation is said to generate wealth, opinion is divided as to its economic and sociological merit and its value as a normative model.

[93] See, eg: Archibugi, Held and Köhler (eds), above n 16; Anne-Marie Slaughter, ‘Government Networks: the Heart of the Liberal Democratic Order’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 199.

[94] Jan Zielonka, ‘Enlargement and the Finality of European Integration’ in Christian Joerges, Yves Mény and J H H Weiler (eds), What Kind of Constitution for What Kind of Polity? Responses to Joschka Fisher (2000) 151, 160 <http://www.jeanmonnetprogram.org/papers/00/symp.html> at 9 July 2002. There is a growing body of literature addressing the evolving WTO system and the applicability of its rulings within domestic legal orders and the EC legal order itself. Legal analysts have detected ‘a degree of convergence’ or at least ‘some degree of mutual influence’ between the EC and the WTO, which is perhaps not surprising given that both organisations were ‘established primarily to promote trade between states’. Greater convergence is envisaged as the WTO appellate body ‘begins to develop its jurisprudence through the disputes coming before it’: see Gráinne de Búrca and Joanne Scott, ‘The Impact of the WTO on EU Decision-Making’ (Jean Monnet Working Paper 6/00, Harvard Law School, 2000) 2−3, <http://www.jeanmonnetprogram.org/papers/00/000601.html> at 9 July 2002. Without engaging in a detailed analysis of the question of the spill-over of WTO law to the EC legal order, it is worth noting that certain EC directives have been amended to make specific legislative provisions WTO compliant. For instance, Council Directive 76/768/EEC on the Approximation of the Laws of the Member States Relating to Cosmetic Products [1976] OJ L 262/169 has been amended numerous times for this purpose. This highlights the growing potential for global organisations to influence domestic (and in the case of the EU, regional) legal systems and supports the Snyder conception of Europeanisation and globalisation as complementary, mutually reinforcing, though perhaps also competing, processes: see Snyder, above n 90.

[95] Zielonka, above n 94, 160.

[96] The concept of the sovereign nation-state was legally recognised by the Treaty of Westphalia (signed 24 October 1648), the Peace Treaty between the Holy Roman Emperor and the King of France and their respective allies. It was concluded at Munster in Westphalia. More information can be obtained at The Avalon Project: Treaty of Westphalia, Yale Law School, <http://www.yale.edu/lawweb/avalon/westphal.htm> at 13 August 2002.

[97] See, eg, MacCormick, above n 37.

[98] W Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 239, 244.

[99] Ibid 252.

[100] Zielonka, above n 94, 161.

[101] Slaughter, above n 93, 217.

[102] The theory assumed that certain rights inhered in every individual, such as religious freedom, freedom of speech, freedom to acquire property and freedom against unfair criminal procedures. Governments were incapable of taking them away since the rights were derived from elsewhere. The theory postulated that governments had to be organised in such a way as to effectively protect the individual’s rights. This was to be achieved largely through the separation of legislative, executive and judicial functions. See John Locke, Two Treatises of Government (first published 1690, 1988 ed).

[103] Joseph Weiler, ‘Epilogue Fischer: The Dark Side’ in Christian Joerges, Yves Mény and J H H Weiler (eds), What Kind of Constitution for What Kind of Polity? Responses to Joschka Fisher (2000) 235, 239 ,http://www.jeanmonnetprogram.org/papers/00/symp.html> at 9 July 2002.

[104] Gregory Fox and Georg Nolte, ‘Intolerant Democracies’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 389, 390.

[105] Ibid; Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; Reisman, above n 99; James Crawford, ‘Democracy and the Body of International Law’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 91; Susan Marks, ‘International Law, Democracy and the End of History’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 532; Brad Roth, Governmental Illegitimacy in International Law (2000).

[106] Franck, above n 105, 89.

[107] Ibid 91.

[108] Tom Round and Charles Sampford, ‘Introduction: Globalisation and Constitutionalism’ in Charles Sampford and Tom Round (eds), Beyond the Republic: Meeting the Global Challenges to Constitutionalism (2001) 1, 2.

[109] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Under the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’), specific rights are prescribed to freedom of thought, conscience and religion, expression and association: arts 18, 19(2), 22. It establishes rights of political participation and an entitlement to equal protection of the law: arts 25, 26. The United Nations Human Rights Committee was established under art 28 of the ICCPR to study reports submitted by parties to the ICCPR (art 40) and to receive and consider communications in accordance with arts 41, 42. It has ‘repeatedly found that States have a duty to investigate and prosecute those committing disappearances, summary executions, ill-treatment, and arbitrary arrest and detention’ notwithstanding the absence of a specific treaty-based duty to prosecute and punish abusers of human rights: see Steven Ratner, ‘Democracy and Accountability: The Criss-Crossing Paths of Two Emerging Norms’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 449, 462. Relevantly, the UN Human Rights Committee considers individual communications under the Optional Protocol (only when the state party to the ICCPR also becomes a party to the Optional Protocol, thereby enabling its citizens to bring individual petitions) involving alleged violations of any of the rights set forth in the ICCPR. For instance, in Mpaka-Nsusu v Zaire (Communication No 157/1983) (1986) 94 ILR 411 the UN Human Rights Committee ruled that Zaire had violated the political rights set out in art 25 of the ICCPR by denying the petitioner the right to run for President, notwithstanding his entitlement to do so under Zairian law. The views of the UN Human Rights Committee are not legally binding on states, although most will attempt to comply.

[110] Longo, above n 55.

[111] Ibid 138.

[112] Ibid fn 61.

[113] Subject to the rather vague reference to the direct applicability of regulations in EC Treaty, [1997] OJ C 340/173, art 249{189} (entered into force 10 November 1997).

[114] See above n 80 and accompanying text.

[115] Longo, above n 55.

[116] Such as International Labour Organization Conventions and the International Convention for the Unification of Certain Rules Relating to International Carriage By Air 1929, opened for signature 1 December [1933] LNTSer 29; 1959, 137 LNTS 11 (entered into force 13 February 1933).

[117] An example of this is the mandatory sentencing laws of the Northern Territory and Western Australia, which are allegedly in breach of international conventions to which Australia is a party, such as the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 1 (entered into force 2 September 1990) and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). The Australian government is reluctant to override the offending laws, despite condemnation by the UN Committee for Elimination of Racial Discrimination and the United Nations Human Rights Committee. The UN Human Rights Committee has called on Australia to review the mandatory sentencing laws, among other things: see, eg, Simon Mann and Kerry Taylor, ‘Work With Us On Rights, Pleads UN’, The Age (Melbourne), 22 July 2000, 9; Simon Mann, ‘UN Fires Another Salvo Over Blacks’, The Age (Melbourne), 23 July 2000, 3; Rob Taylor and Trevor Marshallsea, ‘Canberra Opposes UN Rights Report’, The Age (Melbourne), 30 July 2000, 2.

[118] See, eg, Slaughter, above n 93.

[119] Some of the features of this alternative legal order were briefly described in Longo, above n 55, 138–9.

[120] It should be recalled that the vesting of power in the supranational institutions of the EU has been carefully circumscribed by the Member States of the EU and that the Member States remain nation-states. The EU is therefore not a form of ‘government’ but rather a form of ‘governance’ that includes multiple actors. Similarly, this article does not advocate an international government, as such, but rather a more effective form of international governance.

[121] Illustrated by the fact that individuals are increasingly being treated as subjects of international law in the field of human rights: see above n 30.

[122] Hartley, above n 6, 29.

[123] An EU of 27 or even 33 members will be a very important player in world politics. Internationally, the EU would be expected to enjoy greater clout than it does today. Commensurate with its increased influence in the geopolitical sphere, the opportunity to contribute to and even shape global governance structures may well be enhanced.

[124] See, eg, Martti Koskenniemi, ‘Whose Intolerance, Which Democracy?’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (2000) 436.

[125] Falk, above n 83, 181.