Legal Personality of the European Union - Essay Example

The International Law Name: Course: Tutor: Date: The international Law The independent states are discrete and main subject of the international law as well as the international persons. Though the there is no static political and territorial integrity. The secession, decolonization process, union, and all forms of reunification are a nonstop contribution to the making and breaking of 27 states as well as remaking of the same. This means that there is still the decolonization era, which is the creation of new states. Other than the colonial territories formation of new states, there has been the witnessing of emergent states by the international community from the existing ones1. For example, the Baltic States, Bangladesh and recently the Balkan states among them are Kosovo. This is as well on the way in Sudan. There is no exempt region that is free from this trend since there is much demand for independent state identity. They normally rise and operate under the arena of international community because of some encouraged factors, common destiny as well as shared expectation. Most of the time these states operate for a period of time unrecognized due to the fact that they are disruptive to the world order of existing states. This contributes greatly to their disadvantages in terms of international competence and personality2. The European treaties are very vocal when it comes to legal matters and internal contradictions that occur as a result of opposing views and precarious compromises. The best example of this matter is the European Union’s legal personality which requires some attention. Legal Personality of the European Union The term European Union began to be popular in when Leo Tindemans the prime minister of Belgian drafted a report on the concept where he described the Union as the qualitative change achievement of new phase in the unification of Europe’s history3. That was sometimes back in the mid seventies. This in turn lead to community matters and intergovernmental cooperation being brought together through strengthened institutions. The concept was not introduced to the European legal order until 1992 when the Maastricht treaty did it. The European Union treaty was therefore established by the Maastricht treaty and it was said to be the union that was very close to its people and was referred to as a new stage in the creation process. It was found in article A which is now article1 TEU and one of its fundamental aims to make known its identity to the international level through common foreign and security policy implementation. This is as well in article B which is now article 2TEU. Through the common sense, it is clear that in order to become an identity of the international scene, there is the need to be noticed as an international legal entity. There is the need to contact, contract and act with the rest of the international actors in order to implement a common foreign policy. However, it was a different case in the Maastricht where some people argued that there would be national sovereignty in foreign affairs incase the union is given a legal personality4. Others suggested that it could intrude on the community’s legal personality. The developments in EU have been covered until early 2007. The union officials came to an agreement after a short debate that it would not have legal personality and the positional contradictory was never settled. This contradiction was broadly recognized due to the negotiations that were to lead to the Amsterdam treaty. The intergovernmental conference reflection group report stated that there is a confusion state outside that limits its external role due to the reality that there is no existence of the union. There was a suggestion from the Dutch and Irish presidencies as well as the European parliament that the union should obtain a legal personality that could be able to swallow the existing three communities. The proposal had massive support but failed to be amended due to the opposition from the British and French5. However, the treaty had deep-rooted in the union and it gave it some form of treaty-making power and lead to the articles 24 and 38 TEU that permits common foreign and security policy agreements to be concluded (title V) and tile VI in the judicial cooperation and police fields. It is the council that concludes the agreements negotiated by the presidency. Note that the council is not an intergovernmental conference but a union’s institution. There are some forms of treaty-making power that were given out by the member states after refusing to recognize the union’s legal personality and that became one of the international characteristic of legal personality. The culmination of confusion which is the treaty of Nice added two modalities to article 24. The article’s third paragraph implies that the qualified majority in the council can approve an agreement in certain circumstances6. Paragraph six of the same indicates the obvious case by suggesting that the union is bound by the concluded agreements by the council. This was well observed in 2002 when the European convention met in Brussels and came to a decision that they had to create a legal personality-working group, it was chaired by Giuliani Amato and its final report was that the union must have its own single legal personality that should replace all the existing personalities. This could simplify and clarify the Union’s necessary external relations. The convention concluded the ratification and translated to article 6 of the draft treaty given out by the European council in mid 2003. The report had many consequences on the general constitutional treaty structure, which included the pillar structure of the treaties. Note that the short text became the treaty’s article I-7 signed in 2004 in Rome7. It was the summarized by article IV-438which is the international law that says; What the International Law Says The constitutional charter of an international organization should acquire an international legal personality and it was done specifically for the European communities establishing treaties in 1950s. The international public law already accepted the fact that the international organization can clearly understand the legal personality. There is an opinion that is advised by the International Court of Justice concerning the United Nations and was delivered about 60 years ago8. The court looked into the subsequent treaties, the UN charter and duties and obligations of the organization and concluded that the UN members through encompassing certain functions to it, they have covered it with competence that is necessary for enabling effective discharge of those functions through attendant duties and responsibilities. The arising questions after examining this case is whether the 1949 International Court of Justice reasoning concerning the UN could be effective to the European Union even today. The reasoning was that the duties and rights of the Union and other international entity depend on its constitutional purpose and functions as well as their practice. The implementation of the common foreign and security policy to the international scene assertion identity, there are some doubts on the Union’s tasking. The signatories issued the purpose of the Maastricht and it couched the international legal personality9. The union’s case was satisfied by the court’s first condition concerning its purpose and functions and its position was not disputed. There are three criterion opinions brought out by Brownlie that determine the international legal personality existence. To begin with, the European Union is undoubtedly an organ equipped permanent association of states. Secondly, there is the assertion that the union’s identity on the international scene is a purpose very different from the member states in terms of legal powers and purposes. Lastly, the legal powers according to articles 24 and 38 TEU are provided for exercise on the international plane. The only limitation about this issue is that the organization acquires the capacity to participate in actions concerning the international sphere but it fails to acquire the competence to participate10. This means that the competence varies from one organization to the other because it depends on the constituent texts. The Amsterdam 4 annexed declaration of treaty suggests that the articles 24 and 38 TEU that issues the Union with agreement conclusion capacity does not entail competence transfer. Legal Personality of the European Union in Practice .the function of the international legal system is to enhance operations and communication between an entity and other international actors and this makes practice very crucial. Once the entity has employed this communication and operation practice, it is very difficult for a legal personality to deny such entity recognition by the other international actors11. Practice leads to two main characteristics; the treaty-making power, which refers to the agreements contract capacity with other international actors and the active and passive legation right that is all about the bilateral diplomatic entertainment capacity. These two criteria are very crucial when it comes to the European Union international recognition as a legal personality. The treaty-making power is well attributed to the union by article 24 TUE. Such agreements have been winded up either with countries like Macedonia, Bosnia and Herzegovina, Indonesia or the Democratic Republic of Congo where the Union was active or with third countries like Chile, Morocco, Switzerland or New Zealand that participated in the Union’s peace keeping operations12. The decision of the council based on the article 24 TEU suggested that the Bosnia and Herzegovina and the European Union are all referred to as the participating parties. According to article 4, the EUPM shall be issued with a status similar to that of diplomatic mission. The personnel of the EUPM shall as well be given all the freedom and immunities similar to those of those of diplomatic agents and that are issued out under the convention of Vienna that took place in 1961. The EUPM no. 4 annexed declaration to the Amsterdam’s treaty final act as indicated in article 6 had the following arguments. The treaty’s article J.14 provision on European Union as well as any resultant agreement shall not involve any competence transfer from the Union’s member states13. This is well seen in articles 24 and 38 TUE and was judged by the ILO’s administrative court. The agreement approvals by the decision of the council contain number L293/1. It also displays the European Union’s flag on the Sarajevo, which is its main headquarters as it was the mission’s head decision. It is no doubt that the Bosnia and Herzegovina recognize the union as an international actor with legal personality. Another agreement was concluded in 2005 on the republic of Chile’s participation in the crisis of the European Union’s military operation that took place in Herzegovina and Bosnia. The generous use of the treaty-making power that is given out by article 24TEU is due to the EU practice and all countries globally accept its agreement conclusion capacity. The Role/Significance of Recognition This refers to the vague criteria used for establishment of existence of state whose crucial factor is the recognition though not of a new legal entity. The recognition act does not come up with its own rights or obligations and therefore it does not have a legal effect on itself14. This is an opposition to the 19th century views of scholars who thought that the states are created by recognition and this is wrong because of the following. The first question concerning this issue is who came up with the first state? This means that even the most effective entities that may have the whole control of over population and territory would not become states if not recognized15. Significance of present recognition There is the political importance since it enables the recognition of such a state to initiate the new states recognition16. The legal relevance is also a crucial point to note since it proves that the recognizing state takes into consideration the fact that the new entity has all the required conditions to be an international subject. Note that this fact is assumed by other states but it helps to pave the way. Still under the legal relevance, it should be clear that once a state has been recognized, it is not easy to go back and therefore it remains a position and entity of the statehood. The statehood factual conditions should be met first before the recognition is granted to a state because they may be in a civil war and it may as well lead to illegal interference in a state’s internal affaires. For example, in 1992, Croatia was recognized by the EC, Australia and Switzerland when it had control of only one-third of its territory. The realistic conditions required for a state recognition In order for a state to be recognized, it must have an effective or full control over the territory and human community. There are the new conditions that were added in 1930s that were able to enhance fundamental standards such as banning wars. This can be much effective since internal wars cause massive destructions and deaths of innocent people. There was a concern about the rights of individuals and minorities 1990s as well as respecting the existing international frontiers. For example, in 1991 the EC declared some guidelines to the recognition of new states in the Soviet Union that is found in Eastern Europe as well as the Arbitration commission decision in re Bosnia. Note that the state recognition is a process that takes quite along time other than once by the member states of the international community that is under the international law. When some particular states recognize an emerging state, they pave way for others to recognize it as well. This mostly happens in case of the super powers of the world such as the United States17. It is as well important to be recognized by all states because if not then it becomes a hindrance to some obligations towards non-recognized nations. For example, the respect of political sovereignty and territorial respect acquires duties to the non-recognizing states though not to attack or occupy its new state, subvert its system of politics, jeopardize its political independence or hinder its high seas sail rights. Sometimes it occurs that the state meets all the conditions required for its recognition such as control of territory and people but still fail to acquire the statehood18. Non-Recognition as the Withholding of a Legal Status The non-recognition of a factual emerging entity as a state goes on to be excluded in the state practice. This is because of the international exclude an outlaw regime does not mean that the emerging state is divested of its rights under the international law but also contains consequences that cannot be desired hence it can not be called to meet the responsibilities and obligations of the international community19. However, the international community itself would develop some sorts of interest in doing so in order to pass the equality of the international law. Therefore, non-recognition is given a consideration only when new state contains unreliable options as an international relation partner. This relation appears to be greatly considered by the states community on its self-image account as a legal community. It then keeps away from putting together the new state as well as keeping it away from the international community20. The new state can only acquire the sovereign states status through recognition under the international law as far as it is as well recognized by the third states. If the legal status were to be acquired independently of recognition by the existing states due to the traditional criteria factors of the statehood which include its population, territory and effective government. These are the same criteria that were employed by the Serbian Republic and Rhodesia in Bosnia-Herzegovina. It is very difficult to bring in the legal negative consequences that are non-recognition intentions meaning that the international law denies a state the legal status. The non-recognition was intended to prevent the legal personality under the international law that could have taken place and the non-recognition would then be useless and would as well be a political censure expression of the way the state came into existence without any significance legal consequences under the international law. Conclusion It is clear that the European Union has achieved the international legal personality though after receiving massive opposition by other states. This union fulfils the international law condition particularly the international court of justice for recognizing this status. According to the conclusion made by a large number of states and a confirmation from the international practice, there is no doubt that the Union was largely accepted and its representatives accepted as well. However, the reflection group that dealt with the negotiations in Amsterdam said that the European Union did not exist specifically on the international scene. That was in 1996 but that faded away with time and its no longer true today. This is because the union is well-recognized worldwide by almost all states including the non-member states. Its massive practice and effects on the member states as well prove this. In order for a state to be recognized, it must have an effective control over the territory and human community or population. References Books Rownlie, Principles of Public International Law, 6th edition (Oxford University Press, 2003), p.649. Martii Koskenniemi, The Place of Law in Collective Security, 17 MICH J. INT’L Hersch Lauterpacht, Recognition of States in International Law, 53 YALEL.J. 385, 419 (1944) (describing “[t]he orthodox constitutive view which deduces the legal existence of new States from the will of those already established”). Cases G. Miton & J. Keller –Noellet, op.cit., p. 54. Academia-Bruylant, 2007. Legislation L. 455, 469 n.54 (1996) (finding a “resuscitated ‘constitutive’ approach to the recognition of states”). Others Doehrtng. 'Effectiveness', In R. Bemhardt (eA), Ervyteptdla of Public International Law. VoL n (1995Ct J. Dugard. Recognition and the United Nations (1987). at 64 rt sea. H. Kdsen. The Law of the Untied Nations (1950). At 71.iq Reports (1996) 596. at 611. § 19. G. Miton & J. Keller –Noellet, op.cit., p. 54. Academia-Bruylant, 2007. J. A. Frowdn. Dasdtjacto-Rtgimclm VbTkartdil (1968), at 35-37 and 51-54; Brownlte, 'Recognition In R. Zacklln, The United Nations and Rhodesia (1974). at 45 et seq; Dugard. supra note 29. at 98 Theory and Practice'. In R. St MacDonald and D. M. Johnston (eds). The Process of International Law (1983) 627. at 638 Read More