Territorial disputes: Brexit (6) [Post 206]

Brexit and European Union Law

In order to understand better the impact Brexit will have in the UK and the rest of the European Union it is important to see how UK and EU law are related. EU law is a type of international law, that is regional international law. The European Union has to do with EU law and 28 different national legal orders (one of these national legal orders is the UK).

For that reason, this time the series will introduce the relationship between national law and international law. From there, the relationship between the law in the United Kingdom and the European Union will be explored by presenting the notion of supremacy or primacy (in a nutshell, European Union law has priority over the national legal order of the Member States). Thereafter, the particular emphasis will be on free movement of people, European Union citizenship, free movements of goods, capital and services. These are the “four fundamental freedoms” that all Member States part of the European Union reciprocally recognize and that the United Kingdom, , will give up in a few weeks).

International law and national law

International law is created by and binding between States (and international organizations) on the international plane. Treaty law is based on the principle of pacta sunt servanda whereby treaty obligations freely concluded by a State must be respected by that State. The term means that “agreements must be kept” and, accordingly, obligations must be performed in good faith. States cannot invoke their national law as an excuse for failing to perform their Treaty obligations towards other Contracting States.

The status of international rules within the domestic legal order is determined by constitutional rules of a State. The internal effect of a treaty is a matter for national law.

Monism and dualism

Monism (advocated amongst others by Hans Kelsen) holds that national legal orders are “creatures” of international law. Monist countries (such as France, Spain, and many others) are those where the view prevails that international legal norms are, upon their ratification, “received” within the national legal order while preserving their nature of international law.

Dualism (advocated by Triepel and Anzilotti) holds that national legal orders are separate legal orders, able to resist the penetration of international norms. Dualist countries (such as the U.K., Germany and Italy) are those believing that international treaties cannot display legal effects within the municipal sphere. Their norms must be “transplanted” into national law before they can become operational. International treaty norms are not enforceable as international law but they become, after transformation, enforceable by courts as national law – the wording of the norm may or may not have been changed, but the result will be achieved.

What difficulties are posed by dualist States in respect of the primacy of international norms within their legal systems? May such difficulties exist in monist systems?

The E.E.C. Treaty had been transformed into national law in the dualist Member States, Germany and Italy, and thus nothing could prevent their courts from applying the norms contained in the individual cases brought before them.

However, the difficulty for dualist States was the question of primacy. Dualism does not admit the primacy of international law over national law. The relation between a norm of international origin and a purely national norm becomes, through the transformation of the former, a matter pertaining to the internal cohesion of the domestic legal order and conflicts are to ordinary conflict rules applying within that order. As treaties are transformed by an act of the legislator, they will take precedence over conflicting earlier legislative acts but will be superseded by later legislative acts according to the rule lex posterior derogate priori. This was the case in Germany and Italy at the time of the conclusion of the E.E.C. Treaty.

The other Member States belonged to the monist school. Only in the Netherlands and Luxembourg was the primacy of international law an established practice.

Tomorrow the blog will present the notion of supremacy or primacy of the European Union law.

NOTE: This post is based on Chapter 3 in Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Monday 11th February 2019

Jorge Emilio Núñez

Twitter: @London1701

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