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
https://drjorge.world
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