The EU’s International Legal Personality

Back in July, I wrote about U.S. treaty-making trends, noting that the Bush Administration was lagging when compared to previous administrations in terms of concluding treaties. Well, they’ve obviously been reading Opinio Juris, and now appear to be making up for lost time. In September 2006 alone, the President submitted 8 treaty packages to the Senate for advice and consent to ratification – the Patent Law Treaty, 3 tax treaties (with Germany, Finland and Denmark) and 5 other packages relating to extradition and mutual legal assistance treaties. With apologies to the IP folks, I find two of the extradition and mutual legal assistance treaties — the Agreement on Extradition between the United States of America and the European Union and another US-EU Agreement on Mutual Legal Assistance – noteworthy for several reasons (none of which ironically have anything to do with international criminal law).

First, these two treaties are the first US-EU treaties. Now, for those of you who find that result surprising it’s important to understand that the United States has for the last several decades concluded dozens of treaties with the European Community (EC). Indeed, there’s a long history of both bilateral and multilateral treaty-making by the European Community (usually through the negotiating efforts of the European Commission) in areas of so-called “Pillar 1” competencies – e.g., trade and commerce. But, after the 1992 Treaty of Maastricht, the Community was incorporated into a larger overarching political body, the European Union. The new EU, moreover, was assigned additional competencies for defense as well as justice and home affairs. Still, most treaty-making with the EU was done at the level of the EC and on matters that have long been within the EC’s competence. So, what’s interesting about the US-EU agreements is the implicit recognition by the United States that the European Union has international legal personality in its own right and can conclude treaties on subjects within its competencies. This also raises questions about what will happen to the EC – does it disappear and relegate all treaty-making over to the EU, or will it continue to conclude treaties in its own name on matters within its traditional competencies. So far, it appears the latter approach has been adopted, although that raises the possibility that you could actually have a treaty to which both the EU and the EC sought to be separate parties if the treaty engaged their respective competencies (as strange and far-fetched as that sounds, lawyers for the EU Secretariat have actually told me that this could happen).

Second, separate and apart from the question of how these treaties reflect the shift from the EC representing the Union to direct treaty-making by the EU itself, is the question of the impact of these treaties on EU member states and their own treaty-making capacities. Both treaties contain a provision in which the EU undertakes to ensure member state compliance with its terms. Article 3 of the US-EU MLAT thus provides,

The European Union, pursuant to the Treaty on European Union, and the United States of America shall ensure that the provisions of this Agreement are applied in relation to bilateral mutual legal assistance treaties between the Member States and the United States of America, in force at the time of the entry into force of this Agreement. . . .”

Interestingly, however, neither treaty lets the matter rest on that promise – both contemplate that EU Member States will individually confirm their willingness to modify the terms of their bilateral extradition and MLAT relationships with the US. Thus, in Article 3(3)(b) of the US-EU MLAT, the EU commits to ensuring that each “Member State acknowledges, in a written instrument between such Member State and the United States of America, the application of the provisions of this Agreement.” That suggests to me, at least, that we should not overstate the EU’s influence, even on matters specifically within its competence. It’s obvious that the United States was not entirely willing to take the EU’s guarantee of Member State compliance, but wanted to hear it from the Member States directly. Moreover, the fact that it took 3 years (the two US-EU treaties were concluded in 2003) to get the Member States to confirm their acceptance of the US-EU treaties’ modifications of their bilateral treaties with the United States suggests EU Member States retain sufficient internal authority to ensure the EU doesn’t act autonomously, even on matters that are, by Maastricht and the treaties that followed it, within the competence of the EU.

Finally, on a more pedestrian note, although sent to the Senate as two packages, I wonder whether you couldn’t argue that these are actually 49 separate treaties (2 new treaties on extradition and mutual legal assistance, plus 47 treaties amending existing bilateral extradition treaties and MLATs). The State Department’s report on the treaties isn’t available yet (you can only access the President’s transmittal letters), so I can’t say for sure how their treating the related Member State bilateral instruments. But, if I were looking to boost the President’s profile on the treaty-making front, it sure seems like this would’ve been an easy way to pump up the numbers for US treaty-making.