Treaty Revision Research Articles

Controlling Covert Integration in EU Politics

Without the prospect of new treaty revisions, integration in the European Union is often believed to come at a standstill. However, recent research suggests that deepening integration still continues, albeit in more covert ways. The risk associated with such covert integration is that it is not mandated by the member states and may thus have a major backlash on the legitimacy of the European project. This paper argues that such fears may be unfounded. Building on prior insights of the principal-agent model in the context of European integration, we argue that any shift in the nexus of decision-making towards the supranational level is accompanied with the installation of control mechanisms. This takes the form of informal governance and increased oversight. The plausibility of this argument is probed on the EU’s propensity to negotiate deep and comprehensive trade agreements. Insights are complemented from the Open-Skies agreement and the role of the European Central Bank during the Eurozone-crisis.

The Bureaucratic Politics of Germany’s First Greek Bailout Package

The bureaucratic politics of the German decision to bailout Greece reveal that policy proposals from the Office of the Federal Chancellery and the Federal Ministry of Finance to cope with the crisis in Greece stood to benefit those specific ministries. Centered on a national/supranational cleavage, policy debates in the second Angela Merkel government revolved around whether the European Union should be delegated more power in terms of broader Eurozone macroeconomic governance. Angela Merkel rejected broader treaty revisions insisting on strict adherence to the Stability and Growth Pact and the large-scale participation of the IMF. Conversely, Federal Finance Minister Wolfgang Schäuble opposed IMF involvement and advocated for increased EU competency including support for the French proposal to institutionalize the Eurogroup. The policy positions of these two organizational actors remained deeply conditioned by organizational interests, rather than partisan or ideological divides over conceptions of “European Unity.”

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of national and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations—explicit or implicit— on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability—explicit or implicit—also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doctrine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed to be a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

The Meso Level: Means of Interaction between EU and International Law

The EU is bound by international law, in that when it adopts an act it shall observe international law ‘in its entirety, including customary international law, which is binding upon the institutions of the European union’.1 This commitment is expressed in Article 3(5) of the Treaty of European Union (TEU), which provides that ‘the EU shall uphold and promote … the strict observance and the development of international law’. Yet, despite the periodic treaty revision, EU law is still not explicit about the relationship between international law and EU law. It also omits to provide an account regarding the incorporation and effect of international law upon the EU legal order. The EU Treaties merely highlight the binding character of international treaties upon the Member States,2 and charge them (or at least the founding Member States) with the task of taking the necessary steps to eliminate any incompatibilities between international agreements signed before 1958 and the EU Treaties.3 In recent years, the CJEU has clarified the effect of international treaties upon the EU legal order and has adopted a dualist approach. While forming an integral part of EU law, international agreements are only binding on private individuals by virtue of an act of an EU institution (ie a decision or regulation formally concluding the agreement in question).4

The ‘Last’ Friendship Exchanges between Siam and Vietnam, 1879–1882: Siam between Vietnam and France—and Beyond

AbstractStudies of Siam's diplomatic relations from the mid-nineteenth century have been focussed on its troubled relations with Western colonial powers, often within a bilateral framework. While highlighting issues such as territorial losses and treaty revisions, scholarly interest tends to have overlooked Siam's relations with its neighbouring countries. Based on archival records at the National Archives of Thailand, this article aims to fill this gap by examining diplomatic exchanges between the Siamese and Vietnamese courts that took place between 1879 and 1882. In April 1879, a royal mission from the Vietnamese court bearing gifts and a royal letter from Tự Đức to Chulalongkorn arrived in Bangkok. It was allegedly the first formal mission from the Vietnamese court in almost half a century after the two countries had come into conflict in the 1830s. By examining how Siam and Vietnam sought to maintain and manipulate ‘traditional’ interstate relations in the face of treaty arrangements that France enforced upon Vietnam, this article reveals complex issues involved in the process of negotiations, such as the questions of maintaining the equality between the two monarchies and of the ‘translation’ of the concepts of sovereignty between Thai and Sino-Vietnamese languages, and suggests the necessity to pay more attention to historical and broader regional contexts in Asia.

European Union Law in the Jurisprudence of French Supreme Courts: Europe-Friendliness with a French Touch

This paper tries to explain the present day attitudes towards EU law of the three French Supreme Courts to a public of non-French lawyers, with the aim of revisiting the traditional view of a slightly sceptical jurisprudence in European Union matters, which dates from the 1970s; that former attitude could be compared to the present day attitude of the Bundesverfassungsgericht. Nowadays however, while the latter Court appears often to pay lip service to the development of European integration with its own concept of Europafreundlichkeit – which is repeatedly used in the Lisbon Judgment of 2009 of the German Constitutional court and in its following rulings – French supreme courts appear having a truly Europe-friendly attitude since a decade or so, because they have understood that the best way not to be overflown by the tide of EU law is to participate again in its further development, a point that lawyers such as Maurice Lagrange had well understood since the early 1950s.The paper starts with a summary presentation of the French judicial system, in order to clarify why it would not be accurate to concentrate comparisons on the sole constitutional court (section 1), before analysing French jurisprudence on the issue of treaty revision (section 2), and on the application of EU law in France, especially on the transposition of directives (section 3). As a conclusion, the paper tries to explain the intricacies of the apparently diverging jurisprudences of French supreme courts as to the compatibility between the recent system of ‘priority question of constitutionality’ as illustrated by the Melki and Abdeli case of 2010 (section 4).

Second chamber, ‘congress of ambassadors’ or federal presidency. Parliamentary and non-parliamentary aspects in the European Council's rules of procedure

SUMMARYThe development of the European Union (EU) regime, with the frequent changes of institutions and their competencies by treaty revisions, allows for new opportunities for parliamentary studies. This article discusses the role and competencies of the European Council (EC) in the EU regime, using the heuristic and methodological resources of procedural commentaries, parliamentary rhetoric, conceptual history and political regime analysis. This study is a textual analysis, based on the 2009 Lisbon Treaty and especially on the EC's rules of procedure. The Lisbon Treaty and the respective rules of procedure serve as key documents that fix the rules, the framework and the margin of manoeuvre for the EU's institutions. This is particularly relevant in the European Union as a ‘polity in the making’, as continuous changes in institutional competencies are the rule. These changes both leave room for and are shaped by acting politically between and within the institutions. Taking Quentin Skinner's thesis that ‘political life itself sets the problems for the political theorist’ as a point of departure, it is suggested that these ongoing challenges in power relationships between the EU institutions also lead to interesting theoretical and conceptual moves. From this perspective the authors discuss possibilities to extend the conceptual apparatus of parliamentary studies to such quasi-parliamentary institutions focusing especially on the EC.

Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision

The issue of unconstitutional constitutional amendments is extremely topical in the field of na-tional and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations – explicit or implicit – on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability – explicit or implicit – also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doc-trine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.

Fantasies of subjugation: a discourse theoretical account of British policy on the European Union

The decision by the UK government to hold a referendum on Britain’s membership of the European Union (EU) marks an important development in policy towards the EU. Policy changes of this kind must be understood in the historical and political context in which they occur. This includes the framing of the policy issues within public discourse. In the UK, policies are formed in a discursive environment which is overwhelmingly hostile towards the EU. Debates are structured by a predominantly Euroskeptic discourse which emphasizes the UK’s separation and heterogeneity from the rest of the EU. Drawing on the logics of critical explanation, this article examines the structure and affective power of Euroskeptic discourses which dictate the terms of the EU debate. It presents a case study of the recent EU treaty revision process, culminating in the Treaty of Lisbon. In so doing, it enables a deeper understanding of recent policy developments.

The logic of conformity: Japan’s entry into international society, by Tomoko T Okagaki; Völkerrechtsdenken und Außenpolitik in Japan, 1919−1960 (The discourse on international law and foreign policy in Japan, 1919−1960), by Urs Matthias Zachmann

Tomoko T Okagaki The logic of conformity: entry into international society Toronto: University of Toronto Press, 2013. 208pp., $43.73 (cloth) ISBN 978-1-4426-4188-4Urs Matthias Zachmann Volkerrechtsdenken und Ausenpolitik in Japan, 1919-1960 (The discourse on international law and foreign policy in Japan, 1919-1960) Baden-Baden: Nomos, 2013. 436pp., euro102.00 (paperback) ISBN 978-3-8329-6981-3Meiji rapid response to the West often viewed in terms of cultural borrowing, but a key theme addressed here how this process also had a broader transformative effect on the Westphalian system. According to Tomoko Okagaki (National Institute for Defense Studies, Japan), ramification of entry into international society in the late nineteenth century was the expansion of this regional European concept of sovereignty into a more global structure. Writing in German, the Urs Matthias Zachmann (University of Edinburgh, UK) focuses on the works of Japanese scholars in the twentieth century who contributed to exporting interpretations of international law beyond the West. These two studies thus provide useful counterpoints to our still predominantly Eurocentric outlook on the evolution of international law. As Zachmann points out in his English synopsis, existing work on the subject is deficient in that it neglects the perspective of a major participant in its (1). Okagaki even suggests that the enduring relevance of Westphalian sovereignty itself may be attributed to its endorsement by latecomer states such as Japan.The Logie of Conformity makes a concise and largely coherent argument to explain the dynamics that impelled Meiji Japan to aspire to and attain the standard of civilisation prevalent in nineteenth-century diplomatic relations following the positivist turn in international law. In a slim volume that aims to summarize rather than explore in depth, Okagaki creatively deploys a number of models from political science and international relations theory to incorporate both internal dimensions and the global context. She also neatly distills trends in historical research on Japan to present a society not so much predisposed to modernization as already equipped with functional equivalents of European domestic institutions and thus primed for state socialisation. Tokugawa Japan, for example, had long since boasted a sophisticated urban infrastructure, consumer society, high literacy rate, printing culture, and a nascent public sphere. Historians ranging from American proponents of modernization theory in the 1960s to more recent revisionist Japanese scholars thus trace the onset of modern development to long before the encounter with the West and increasingly emphasize continuity through the nineteenth century. As Okagaki puts it, Japan's 'modernisation' was a slow process, which had started centuries before the West arrived, while its 'Westernisation' was a rapid one (98).Three chapters then describe in turn the adoption, absorption, and adaptation of international law in Meiji Japan. Although engagingly succinct, at times the exposition tends toward a general narrative, and it proves to be the least convincing component of this study, barely scratching the surface of the tortuous negotiations on treaty revision. As Okagaki subsequently admits, some comparison with Turkey or China might have been useful, a dimension explored by Cassel, Kayaoglu, and others in recent works on extraterritoriality.1 One theme identified by Kayaoglu that does not feature here, for example, the importance of regime change in allowing the Meiji leaders to wipe the slate clean with a program of legal institutionalization unfettered by the cultural constraints experienced by their Ottoman and Qing counterparts.Some omissions and factual errors also undermine the otherwise generally solid scholarship. Even in such a concise summary there should be space for the Maria Luz-the case of some Chinese coolies who escaped from a Peruvian ship that docked at Yokohama in 1872-which constitutes a landmark event in terms of winning international recognition for Japanese jurisdiction. …

The Gordian Knot of European Union Competence: Commercial Aspects of Intellectual Property After the Judgment in Case C-414/11Daiichi Sankyo

The division of external competences between the European Union and the Member States is a long-standing object of contention for constitutional and practical reasons. The competence to negotiate and conclude international agreements in a given area has as many highly political implications as concrete policy-making ones. This tension is well illustrated by the field of the commercial aspects of intellectual property. Community, and later Union, competence over this area was established only gradually. After multiple Treaty revisions and legal disputes over competence, the Treaty of Lisbon now lists the field as one of the main elements of the Union's Common Commercial Policy (CCP). The CCP itself is one of the founding policies, dating back to the European Economic Community. It structures the Union's trade relations with third countries, encompassing bilateral and multilateral trade and tariff agreements, as well as unilateral trade defense measures such as anti-dumping and anti-subsidy instruments. Today, the Treaty of Lisbon expressly provides for exclusive Union competence over the CCP, codifying the case law of the Court of Justice.

Chinese interests in the global investment regime

China is rising as a major source of outward direct investment (ODI), but barriers to and protectionism against Chinese investment have been strengthened as well. This situation reflects inherent flaws in the architecture governing international investment. This article identifies three of China’s key interests in the global investment regime: (1) to reduce investment barriers and depoliticize foreign regulatory review processes; (2) to ensure better protection of its overseas investment; and (3) to secure international recognition of its unique identity in terms of institutional characteristics and development strategy. As China shows more and more interest in building the architecture governing international investment, we suggest that improving investment governance at the bilateral, regional, and multilateral levels is the best strategy for China to adopt. Strategies that China should pursue include (1) accelerating the negotiation and revision of bilateral investment treaties (BITs); (2) promoting regional and sub-regional cooperation; and (3) contributing to the architecture governing global investment.

Instrumental and Constitutional Differentiation in the European Union

AbstractDifferentiation has become a salient feature of European integration. Yet systematic empirical evidence is lacking about its origins, duration and variation across countries and policies. This article provides such evidence from a new data set on differentiation in European Union treaty law. In addition, it is argued that two logics of treaty‐based differentiation are at work. ‘Instrumental differentiation’ originates in enlargement and is motivated by efficiency and distributional concerns. ‘Constitutional differentiation’ has its origins in treaty revisions and is motivated by concerns about national sovereignty and identity. It is driven by Eurosceptic Member States that are opposed ideologically, or fear popular resistance, to the supranational centralization of core state powers.

EU External Trade and the Treaty of Lisbon: A Revised Neofunctionalist Approach

This article analyses the EU’s Common Commercial Policy (CCP) at the level of Treaty revision and particularly focuses on the last Treaty negotiations that led to the Treaty of Lisbon. The analysis is based on a revised neofunctionalist framework that the author developed in previous work. It draws on the following concepts: (i) functional spillover; (ii) cultivated spillover; (iii) social spillover; and (iv) countervailing forces. Insights into the dynamics and countervailing forces driving Treaty revisions considerably deepen our understanding of the Common Commercial Policy, as EU external trade policy-making is substantially affected by the parameters set by the Treaty. The analysis indicates that the revised neofunctionalist framework can broadly account for the changes of the Common Commercial Policy during the last Treaty revision. It is further suggested that integration in the area of trade policy cannot be explained exclusively by rational choice dynamics, such as utility maximizing actors with fixed preferences, but that socialization through deliberation also needs to be taken into account.

Towards a Revision of the UN Drug Control Conventions: The Logic and Dilemmas of Like-Minded Groups

Towards a Revision of the UN Drug Control Conventions: The Logic and Dilemmas of Like-Minded Groups

The Maastricht Treaty and the European Council: The History of an Institutional Evolution

Since its creation in 1974 the European Council has turned into the key institution in the institutional architecture of the EU polity. The Maastricht Treaty on the European Union was a history-making product of this body of heads of state or government. For the institutional evolution of the European Council itself the Maastricht Treaty confirmed and reinforced trends starting with the Hague summit in 1969. This article covers the pre-history of the European Council as well as the road from the birth of the European Council in Paris, 1974, to the Maastricht Treaty and the next steps via two treaty revisions and the constitutional convention to the Lisbon Treaty in 2009. This article will not only try to satisfy some historical curiosity, but point out fundamental factors, explaining why Union executive leaders have invested time and energy in the labour-intensive and partly frustrating exercise of the making and working of their club: this key institution helped them to emerge as powerful multi-level players in a multi-institutional architecture.

Towards revision of the UN drug control conventions: Harnessing like-mindedness

BackgroundAlmost all nations are currently parties to the UN international drug control conventions of 1961, 1971 and 1988; treaties that taken together form what can be usefully called the global drug prohibition regime. Despite interpretative tensions around some national policy approaches that deviate from punitive prohibition, the inherent flexibility within the conventions permit members of the regime some policy space at the national level. Should they wish to do so, however, states already pushing at the limits of the regime would only be able to expand such national policy space via an alteration in their relationship to the UN drug control conventions and the prohibitive norm at the regime's core. MethodThe article applies an international relations approach, including examples from the UN system in general and other issue areas in particular, to explore how the formation and operation of a group, or groups, of like-minded nations may offer a route towards some form of substantive treaty revision. ResultsAlthough common in other areas of international concern, the varied nature of dissatisfaction with the prohibitive ethos of the regime combines with the character of drug policy to generate specific dilemmas for the like-minded group (LMG) approach. Nonetheless, within the current policy environment it is plausible to foresee the construction of groupings around a number of themes: traditional and religious drug use, cannabis regulation, technical issues relating to inconsistencies within the conventions and UN system-wide coherence. These potential groups provide the basis for a number of possible scenarios for treaty revision and highlight essential commonalities of approach that should be considered whatever the route towards reform. ConclusionThe increasingly obvious weaknesses within, tensions around and negative consequences of the regime in its current form make a recalibration of the UN drug control conventions via an LMG approach an enterprise worthy of time and effort.

The rule of law in the EU: Understandings, development and challenges

This article examines the development and particular nature of the rule of law in the European Union against the background of the wider legal and political theoretical debate on the principle. It hence analyses the case law of the Court of Justice of the EU and the Treaty revisions on the rule of law. It argues that the principle has developed greatly since the first mention of it in the case law of the Court and contends that the principle has a particular focus in the EU on judicial protection in light of human rights. Nonetheless it is hard to apply the dichotomies running through the debates in legal and political theory to the development of the principle in the EU; an idiosyncratic mix of features seems to emerge. Moreover, this article also takes the case study of the external dimension of migration control to assess the current challenges to the rule of law in the EU. It thereby uncovers ways of working in the EU that are hard to reconcile with the rule of law requirements.

Chasing the European Court of Justice: On Some (Political) Attempts to Hijack the European Integration Process

Abstract This article gives some examples of State interference in the interpretative activity of the Court of Justice of the European Union (ECJ), looking at the 1990s, at the more recent past and, finally, at the clauses introduced by the Lisbon Treaty, which represents the latest link in the “semi-permanent Treaty revision process” (de Witte). The article is divided into three parts: the first part will introduce the peculiarities of the ECJ’s interpretative activity, briefly recalling the debate on the specificity of the interpretation of EU law. The second part will be devoted to some recent and less recent attempts to hijack of the acquis communautaire (“the past”), while the third part will focus on the recent novelties introduced by the Lisbon Treaty and on the Charter of Fundamental Rights of the EU (EUCFR) and its explanations (“the future”). Finally, some concluding remarks will be presented at the end of the article.

European Integration in the Aftermath of the Ratification of the Treaty of Lisbon: Quo Vadis?

On 2 October 2009, the Irish electorate, in a mandatory and legally binding referendum, approved the Treaty of Lisbon (hereinafter ‘Lisbon Treaty’).That vote, followed by the signing of the Lisbon Treaty by the Czech President on 3 November 2009, completed the ratification process of the Lisbon Treaty and paved the way for its entry into force. The corpus of literature on the ratification of EU Treaty revisions, particularly on national referenda on European integration, is growing. According to the taxonomy offered by Taggart, scholarship on national referenda on European integration can be classified into four broad categories. The first pertains to the broader normative issue of direct democracy; the second, to single-case, national studies; the third, to the dynamics of referenda in general; and the fourth, to models of turnout and of outcomes. The focus of this contribution is somewhat different. Its focal point is the two Irish referenda and other major milestones in the ratification process of the Lisbon Treaty in the other EU Member States. Yet its objective is to go beyond Irish socio-political borders and to probe the broad constitutional implications and ramifications of the ratification of the Lisbon Treaty for the future of European integration.