Friday, May 12, 2006

More navel-gazing and some lawyer-nerdyness

First of all, a quick-round of self-congratulations to our blog for having passed the 1.000 visitor mark – I am sure only about 300-400 of those visits where by Tobi, Nicki and me…

Now for some more ICC-related, if somewhat “lawyer-nerdy” content:

On 10 April, the International Criminal Court and the European Union adopted the “Agreement between the International Criminal Court and the European Union on Cooperation and Assistance”, which entered into force on 1 May.

The content of this agreement, while certainly very welcome for the Court and a sign of the widespread acceptance it enjoys in Europe, is probably not very revolutionary: The agreement lays down a general obligation of mutual cooperation and assistance as well as more detailed rules on assistance (mostly) given to the Court by the EU, such as the provision of documents and information, the testimony of EU officials before the Court, the provision of personnel, facilities and services, and the lifting of privileges and immunities of EU officials who are suspects before the Court.

The question that this agreement poses for me is rather one of general public international law – it concerns the public international law status of the EU. I am not fully up to date on this discussion, but I know that at least a couple of years ago, the prevailing view was that the EU, lacking its own organs that could arrive at a “EU will” separate from that of the member states, was lacking international legal personality – despite its treaty-concluding powers laid down in Arts. 24 and 38 EU Treaty, which it had already used to conclude treaties with several “ex-Yugoslav” states. The other view was that, precisely because of this treaty-making power, the EU was already, or was on the way to becoming, an international organisation with legal personality. (For a rather recent view on this question, see e.g. a short paper presented to the Founding Conference of the European Society of International Law by Carmela Pérez Bernárdez, available here)

All the while, the ECJ has begun breaking down the barrier between the EC and the realm of intergovernmental cooperation under the framework of the EU (“second and third pillar”) – e.g. in the 2005 Pupino judgment (Case C-105/03), where the Court found that Member States are obligated to interpret national laws in conformity with EU framework decisions, thus approximating framework decisions to EC directives.

Given this background, what does the conclusion of an agreement with the ICC – which surely possessed international legal personality (Art. 4 (1) Rome Statute) – tell us with regard to the question of the EU’s status?
Does it mean that the EU must by now have attained international legal personality? Or is it another step on the way towards gradual acceptance as a subject of international law?
And in case the EU still does not have legal personality, what is the status of the agreement? Could it be an agreement with the EU Member States on question concerning their work in the context of the EU?

All questions that I am not going to answer today – it’s Friday afternoon, after all – but interesting questions nonetheless. As usual, comments are very welcome.


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