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THE PRINCIPLESLIST / Draw up a list with three parts. These could be honesty, loyalty, and respect, but these are quite generic concepts. I can NOW see that if I had stuck to my principle not only would I NOT be feel these things, I would.
Table of contents
By this perspective, the additional reference to ex Article 10 EC would not have been strictly required. Intertanko , therefore, firstly shows that good faith as a principle of public international law can apply within the Union, 90 and secondly that it can share one of the effects of loyalty. The principle of good faith is a general principle of public international law.
Good faith plays different roles in the law of treaties as codified by the Vienna Convention. Firstly, there is the notion of good faith in the context of treaty interpretation. Recommendations contained in General Assembly Resolutions must be considered in good faith based on the obligations of cooperation assumed by Members pursuant to Articles 1 3 , 2 5 and 56 of the UN Charter. Article 2 2 of the UN Charter has been deemed the culmination of a development considering good faith as a test of reasonableness for the interpretation of international instruments.
It appears that good faith in public international law has also been used as a sort of gap- filling principle. The Algiers Declarations, which settled the Iran-US hostage crisis in , had only provided on the satisfaction or enforcement of awards of the Iran-US p. This provision has been said to incorporate a specific principle of good faith in WTO law. It has furthermore been claimed that the loyalty principle in Union law was comparable to the notion of non-violation in the GATT.
Both serve the purpose to strike a balance between different measures, one time in order not to nullify benefits under the agreement, another time to balance rights and obligations under the agreement. Thus, good faith and pacta sunt servanda in public international law play a role both with regard to interpretation and with regard to conflict resolution in the broader sense.
The role of good faith in gap-filling and treaty interpretation, as acknowledged by the International Law Commission, arguably echoes the effet utile principle in Union law. This makes them close relatives to loyalty, as I have started to discuss its functions earlier and will continue to do in the chapters to come. Constantinesco has highlighted the similarity of loyalty with good faith, if we conceive the former also as a principle of non-contradiction.
Deconstructing Loyalty - Oxford Scholarship
He has argued that it is an exigency of pure logic that an actor should not act contrary to his own commitment to certain objectives and their realization, and that this would be anchored in ex Article 5 EEC. Loyalty thus is stronger even where it is similar, such as in the obligation not to frustrate binding commitments entered into by states a treaty before ratification in the case of international law, a directive before the expiry of the deadline for transposition in the case of EU law. Moreover, in the Union, loyalty not only ties the Member States to each other but also creates obligations towards the EU institutions, more than would be apposite in the intergovernmental setting that is the WTO.
Finally, loyalty in Union law has the earlier discussed pronounced constitutionalizing role that also finds no match in the WTO for principled reasons. As mentioned earlier, parts of the literature have always referred to the notion of fidelity when discussing duties flowing from now Article 4 3 TEU. In order to adequately deal with such analogies, we need to do two things.
First, we will discuss whether the European Union in its present state is a federation. The argument here would be as follows: If federal loyalty is inherent with federal systems, and if the EU is a federal construct, federal loyalty would be inherent with EU law. This should tell us whether concepts of loyalty in national states are similar to the concept of loyalty in Union law. There is a myriad of literature on federalism in general, on different federal systems in particular, and on the situation of the European Union in this respect.
The distinction between a federation and a confederation that is commonly made has its origins in the American experience, where the colonies went from forming a confederation p. Federal is therefore used in an adjectival sense: it attaches to a particular function exercised by the organization and is used to denote, as to that function, a hierarchical relationship between the Communities and their members.
When we look at the literature on federalism and the European Union, the first thing to note is that, while federalism with some nation states such as Austria connotes a decentralizing streak, with the EU it mostly implies a stronger role for the Union in its relationship with the Member States.
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It is not my intention to contribute to this highly sophisticated debate, as this would be beyond the limits of this book. The present purposes do not require us to deal with the question which kind of federation the European Union constitutes. If we assume that federalist is a relative or descriptive adjective, what would be the minimum threshold for federalism to exist in a certain constellation?
In other words, what is the principle unifying all different representations of a federation? Although all federal states require the subjection of the constituent states under the federal constitution, they cannot do without counterbalancing elements, such as the participation of the constituent states at the federal level in particular with regard to the federal constitution or the allocation of certain powers at constituent level. However, the position of loyalty in a federal legal system very much depends on the way the spheres of the entities are delimited.
It has been argued that all modern federal constitutions have adopted explicit or implicit rules to resolve a conflict between inconsistent or conflicting federal and provincial laws that are both valid. In the following short case studies on the federal systems of the United States of America, Australia, Canada, Belgium, Austria, and Germany we will focus on the legal mechanisms available for resolving norm conflicts between the federal and the state level.
Three related criteria can be distinstinguished here. Firstly, whether there is a clear delimitation between the competences of the two levels. Secondly, whether the legal system foresees concurrent powers, i. Thirdly, I suggest inquiring in this context whether federal law can invalidate state law.
Normally, it has been written, under such rules, the validly enacted federal law prevails over the provincial component-entity law. The US constitution provides for a supremacy clause in Article VI, which is the basis for a very sophisticated doctrine on the demarcation of competences between the federal and the state levels.
In Australian constitutional law, federalism is a central concept.
Loyalty & Respect
This means that only those aspects of a state law that are inconsistent become inoperative, and that the state law will revive if the Commonwealth law is repealed. Canada is commonly called a con federation and is another system where there appears to be no notable concept of federal loyalty. Express contradiction is assumed when dual compliance is impossible.
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The provincial power to enact the law is not lost; it continues to exist so does the provincial law , although it remains in abeyance until such time as the federal Parliament repeals the inconsistent federal law. We shall see later that this is a striking parallel to the discussion on the consequences of the exercise of shared competences and on pre-emption in Union law. Secondly, the powers allocated to each order of government have been mostly in the form of exclusive powers, with no p. Thirdly, there is a considerable measure of asymmetry between the units.
It has, however, been noted that this concept of loyalty is one of the most blurry in the institutional system of Belgium. The concept of a competing competence is very similar to shared competences in Union law, which I will discuss in Chapter 8. At the same time, federal loyalty has a long tradition in German law.
Bundestreue is contingent on the existence of competence, but it cannot change the order of competences. However, the Bundestreue has also been invoked by the BVerfG to establish the pre-emption of the state legislative powers when the federation has initiated a legislative procedure. Under Austrian constitutional law, the states are competent where the federal state is not competent.
The competence of the provinces is therefore residual. The dogmatic foundation of the principle of consideration is unclear and disputed. Federal loyalty does therefore not determine the conferral of competence as such in the Austrian legal order. This shows that norm conflicts are not inherent in the legal norms themselves, but may arise at the stage of the application of the law. This brief description of the federal systems of the US, Australia, and Canada has shown that all three regimes have strong rules of competence delimitation that reduce the potential overlap between federal and state powers.
There is no concurrency in the US and it is the exception in Canada. At least under the US constitution, the rule of invalidation applies to conflicts between federal and state legislation.
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The situation in Belgium also pairs a rather mutually exclusive separation of federal and state level with a very unclear concept of loyalty. In contrast, in the more centralized and more intertwined constitutional p.
In Austria, the principle of consideration, arguably in comparison has the strongest role with regard to competences. In contrast to the Bundestreue in Germany, it may even cause the invalidation of validly enacted laws of the provinces and, in theory, even of the federal state. I would suggest that this is a direct consequence of the absence of competing competences in Austrian law and of the equal hierarchical rank of state and provincial laws.
This brief overview arguably calls for a strong instrument for policing grey areas, which consequently exist between the spheres of the legal entities. Based on the above, we cannot really claim that a principle of federal loyalty applies in every federal system, nor that it is of a uniform or even comparable nature. Instead, the earlier discussion has shown that there is a wide divergence between the different legal systems in this respect.
This means, however, that even if we would qualify the European Union as a federal system, and if we would argue that this would entail the existence of a principle of federal loyalty, this would not tell us very much about its substance. Conversely, this finding also undermines the rather simplistic argument that because the Union is not a fully-fledged federal state, there cannot exist a principle of loyalty.
However, our findings go some way in explaining the prominence of loyalty in the EU. As I will explain in the course of this book and in Chapter 12 on Coordination especially, the legal territory for which the Union is competent, also after the Treaty of Lisbon, remains a moving target with various types of implied external competences constantly displacing the border between Union and Member State powers. Mixed agreements are a showcase for this lack of clarity in the delimitation of competences and it is small wonder that this area of law continues to be the focus of even the most recent publications on Article 4 3 TEU.