International and Supranational Law (2024)

There was a time when international law was considered a minor and separate subject in the study of law.

For instance, fundamental rights are not only part of the national constitution, but can also be invoked based on the European Convention on Human Rights (ECHR) and—since 2009—based on the Charter of Fundamental Rights of the European Union (CFREU). Next to these human rights instruments many treaties have been concluded under international law on other subjects (e.g. the Cybercrime Convention (CC), the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, and an entire body of supranational law (i.e. the law of the European Union (EU), such as the Copyright Directive, the Unfair Commercial Practices Directive, the Machinery Directive, which has become part of national jurisdiction in the Member States of the EU.

Clearly, the relevance of law for computer scientists—the architects of our new onlife world—cannot be reduced to that of one national jurisdiction. The combination of networked computational systems and the hyperconnectivity of the current information and communication infrastructure call for a keen acuity with regard to national, international, and supranational law.

In this book we will focus on international law in the context of the Council of Europe (CoE, forty-seven contracting states) and on supranational law in the context of the EU (twenty-seven Member States). As this book aims to provide insight in ‘how lawyers think’ and ‘what law does’, not a comprehensive overview (which would be entirely undoable), we restrict ourselves to the most relevant legal instruments within the jurisdictions of Europe, as a good point of entry. I believe this does not make the book less interesting for, for example, US, Australian, or even Asian computer scientists. On the contrary, this book aims to provide a coherent framework for understanding how law operates, combining analytical rigour and interpretive salience with concrete examples to demonstrate the relevance of the distinctions made and the perspectives taken. It would be great to add other jurisdictions as new examples, enriching the conversation at the global level on how to order our interactive, dynamic, and potentially turbulent world. Besides that being impossible in the context of one book, we must note that this book also takes a normative perspective on how law ought to operate, as part of a constitutional democracy, rejecting both instrumentalist or moralistic conceptions of law (see above, section 2.2.2). Even though European law is not in any way perfect, the European attempt to institute, sustain, and reinvent a moderate government that respects human rights is a good example of what law and the rule of law ‘do’.

In this chapter, we first discuss the concept of jurisdiction and its formative status in national, international, and supranational law, after which we provide a more in-depth overview of international law and supranational law.

4.1 Jurisdiction in Western Legal Systems

The concept of jurisdiction first appears in the early fourteenth century, and though it has tied in with the concept of territory, the latter term first appeared in the early fifteenth century. Even if Western legal systems equate jurisdiction with territorial jurisdiction this is not necessarily correct.

In Anglo-American discourse the term ‘power’ is used where Europeans use ‘competence’. Very simply defined, we could say that jurisdiction refers to legal power and to where such power is applicable. This raises challenging questions, such as to what extent a state can decide the limits of international or supranational jurisdiction on its own territory, and to what extent an international court gets to decide this. In other words: where must we situate the competence to decide the attribution, content, and limits of competence? Because German scholarship has worked on this, we call this the question of Kompetenz-Kompetenz.

4.1.1 An example

To sensitize the reader to issues of Kompetenz-Kompetenz I will take them through some of the issues encountered in international private law, which is in point of fact national law. What happens if Alies (Dutch) marries Bob (a US citizen) in Japan, but they will live in Russia? What law applies to the marriage: Dutch, US, Japanese, or Russian law? If they want to get divorced, which court is competent: a Dutch, a US, a Japanese, or a Russian court? What if they want their Dutch divorce to be recognized in Iran?

The questions regarding applicable law ask which national law determines the legal consequences of the marriage. This may depend on choice, on a treaty, and in the end, it will always depend on national law, as the national law must recognize the choice (which may be guaranteed in a treaty signed by the relevant state). Note that the primacy of national law implies that a person may be married according to the national jurisdiction of the country where she lives, even after obtaining a valid divorce in another national jurisdiction.

The second type of questions concerns jurisdiction in the sense of adjudicatory competence. If one gets married in Russia, under Japanese law, which court is competent to decide on a divorce? Does this depend on the applicable law, on one’s residence, nationality, or on the country where the marriage took place?

The third type of questions concerns recognition and enforcement, asking under what conditions a court’s divorce decision will be recognized and enforced in another country.

All these questions apply to issues of family law, as in the given example, but also to international sale of goods or services, capital investment, to labour conditions in transnational companies, or to keeping bank accounts in various countries. The complexity of the potential answers to these questions highlights the necessity of international treaties to reduce the uncertainty that evolves from this complexity. This regards questions of family law, property law, contract law, and tort law, and the global economy would be substantially disrupted without international treaties that bind the contracting parties (states), thus achieving a higher level of trust and legitimate expectations between citizens, companies, and other institutions that interact at the transnational level.

In the case of the marriage, one could wonder whether all this matters, or why we should care. Since a valid marriage has legal effects the answers to questions of international private law make a substantial difference. In some jurisdictions the default is that one marries on equal terms, which means that creditors of one partner have a legal remedy against the assets of the other partner. In other jurisdictions the default is that one marries under a separate estate arrangement, meaning that creditors of one partner have no legal remedy against the assets of the other partner. These defaults, as well as the possibility to opt for one or the other marital regime, differ in alternative national legal systems, and the same goes for the requirements for overruling the default regime (such as involving a notary public and the registration of prenuptial agreements).

4.1.2 National jurisdiction

What if the Netherlands want to delete the first article of their Constitution? What if the Netherlands wish to protect their citizens against internet activities undertaken in Russia or the United States by means of remote hacking by Dutch police officers? What if the Netherlands wish to abide by an overall minimum term of imprisonment of not more than one day and by Article 9a of the Netherlands Criminal Code (NCC);1 can the Netherlands resist, for example, EU legislation that imposes higher minimum sanctions?

This section will discuss the primacy as well as the limits of national jurisdiction and its relationship to international and supranational law. To ensure legal certainty, lawyers need priority rules to determine the validity of legal norms whenever they are incompatible. The simplest way to achieve this is to assume that law is a hierarchical system of legal rules, where higher rules overrule lower rules. For instance, rules derived from the Constitution will overrule rules derived from Acts of Parliament, which in turn overrule rules derived from other public authorities with rule-making competences (e.g. municipalities, supervisors). This hierarchy works relatively well within the context of a single state. The reason is that each state has both internal and external sovereignty. The concept of sovereignty in this particular sense, stems from the 1648 treaty that introduced the so-called Peace of Westphalia. This treaty brought an end to a long and devastating period of European wars during the sixteenth and seventeenth centuries. These wars were both intra- and interstate and were entangled with religious wars between Roman Catholic and Protestant rulers, aiming to consolidate their own power over their subjects, based on adherence to their own religious allegiance. The Peace of Westphalia basically declared religion a matter of private faith and private consent, establishing the idea of a nation state with consolidated borders, where the sovereign holds the power to legislate, govern, and adjudicate within their territory (internal sovereignty), while respecting all other sovereigns as exclusively competent within their territory (external sovereignty or the principle of non-interference). Note that ‘the sovereign’ is not a person, but an office. It is this office that is competent, not the person that takes office. This institutionalization of sovereignty as an abstract entity that rules over an abstract geographical space still forms the root of the current system of sovereign states.

From 1648, one could say, the nation state takes centre stage, grounded by the idea of internal and external sovereignty—which form two sides of the same coin: without external sovereignty the sovereign cannot hold on to their internal sovereignty; without internal sovereignty the sovereign cannot ensure external sovereignty. The result is that international law becomes the law between independent sovereign states and thus depends on consensus between these states. This is where supranational law fundamentally differs from international law, as supranational law depends on a partial transfer of sovereignty (conferral).

4.2 International Law

It should be clear from the previous section that the actors in the domain of international law are, first of all, sovereign states. However, by now, other actors are recognized as such: international organizations (e.g. World Trade Organization (WTO), the UN), multinational companies (e.g. Shell, Google), non-governmental organizations (NGOs) (e.g. Greenpeace), and even individuals as bearers of rights under international law.

4.2.1 Sources of international law

In international law, as in domestic (national) law, the sources of law determine the identification of the applicable legal norms. Because—in principle—international law is dependent on the consent of sovereign states, treaties are an obvious source of international law. Examples of international treaties are the Cybercrime Convention (CoE) 2001, the Berne Convention (copyright) 1971, the Paris Convention (patents etc.) 1883, the TRIPs Agreement (WTO) 1994, the International Covenant on Civil and Political Rights (UN) 1966, and the ECHR (CoE) 1950.

Treaties, however, are not the only source of international law. Article 38 of the Statute of the International Court of Justice in The Hague, states the following:

The International Court of Justice (ICJ) was established by the UN Charter, which was signed immediately after the Second World War, in 1945. It is composed of fifteen judges and settles legal disputes between states and gives advisory opinions on legal issues to organs and agencies of the UN. Only states may appear before and apply to this Court and the Court can only settle disputes if both parties have recognized its jurisdiction by way of a declaration ‘that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court’ (Article 36, para. 2, of the Statute of the ICJ). Most textbooks on international law will summarize the sources of international law as:

4.2.2 Monism and dualism in international law

How does international law bind a state that is subject to its jurisdiction? And under what conditions does international law have direct effect, that is, direct legal effect for citizens in the form of providing them with legal rights?

Legal doctrine makes an analytical distinction between two approaches to the relationship between national and international law: a monist approach and a dualist approach.

The distinction is analytical and helps to understand the messy reality of overlapping national and international jurisdictions from the perspective of national law, which ultimately decides on the force of international law within its jurisdiction. In practice these approaches are both ends of a spectrum, with for instance the United Kingdom taking a dualist perspective and the Netherlands taking a mitigated monist (or a mitigated dualist) perspective.

The choice for a monist/dualist and mitigated perspective has far-reaching implications, which can be best understood in terms of legal effect. For instance, if we ask about the legal effect of a treaty that has come into force but has not been transposed into national law, the answer is that under a monist legal system national courts will have to apply the treaty, and the state may become liable to its citizens to the extent that it does not comply with the treaty. It thus has direct effect in the national legal order. Under the dualist legal system, the answer would be that national courts can only apply national law, and the state will become liable to the other contracting parties for non-compliance. The treaty will not have any direct effect in the national legal order.

As an example, let’s check the Netherlands Constitution, Article 93:

The phrasing of ‘binding on all persons by virtue of the content’ is equivalent with the concept of ‘direct effect’. The Netherlands Constitution basically states that any legal norm (of international law) which directly addresses legal subjects (corporations, natural persons) has legal effect for those legal subjects, who can invoke that norm in a national court of law. For legal norms with ‘direct effect’, the Netherlands implements a monist approach. Such ‘direct effect’, however, does not apply when a legal norm of international law addresses the contracting states instead of their citizens, thus imposing an obligation on states to enact the norm. In that case, the Netherlands employs a dualist approach. Article 93 thus follows the intent expressed in a treaty, identifying whether or not the treaty intends to directly create rights for citizens of the contracting parties.

Article 94 of the Netherlands Constitution clarifies even more clearly the hierarchical implications of its monist approach (in case of ‘direct effect’):

A prime example of a treaty with ‘direct effect’ is the ECHR.2 Article 94 clearly shows that the ECHR must be applied by Dutch Courts, even if that results in the inapplicability of national law. This has wide-ranging consequences for the competence of Parliament, whose Acts can thus be overruled to the extent that they conflict with the human rights treaty. This is especially interesting due to the prohibition to test Acts of Parliament against the Constitution itself, as stipulated in Article 120 of the Netherlands Constitution:

In the end, national legislation may be tested against provisions in international treaties with direct effect—but not against the Constitution. As one can imagine, this prohibition has been controversial and many attempts have been made to remove it from the Constitution. The argument in favour of this prohibition is that it clarifies the prerogative of the democratic legislature who should be the ultimate judge of whether an Act violates the Constitution.

Obviously, the Netherlands cannot be bound by international treaties unless its democratic legislature has consented. After a treaty is agreed and signed by the contracting parties, Parliament will have to decide whether or not the Netherlands will be bound by it. If Parliament consents, the head of state (the King) will ratify, binding the state to the treaty once it comes into force. This is worded in Article 91 of the Netherland Constitution:

A prime example of a treaty without direct effect is the Cybercrime Convention (CC), which addresses the contracting states of the CoE and the other signatories, obliging them to enact a number of criminal offences and criminal law investigative measures in order to harmonize the criminal law enforcement measures against cybercrime. Neither the police nor individual defendants can invoke the CC directly, both will have to rely on the national implementation of its content by way of, for example, amendments of their Criminal Code and their Code of Criminal Procedure.

An important question with regard to the application of treaties, whether they have direct effect or require national implementation, is their interpretation and who gets to decide it: an international court, national court, or—to make things more complicated—both. If a treaty is concluded within a specific international jurisdiction, national courts may be bound to interpret the treaty in alignment with the case law of the relevant international court or tribunal. We can, for example, think of the ECtHR (relevant for contracting parties of the CoE) or of the ICJ (relevant for contracting parties of the UN). The interpretation of treaties will often involve the use of preparatory documentation that clarifies the intentions of the contracting parties and the underlying goals the treaty aims to support. An important source of law is constituted by the preamble of a treaty, consisting of the so-called ‘recitals’ that articulate shared assumptions, goals, and explanations concerning the treaty. The articles of the treaty are considered binding law, they have legal effect (either direct effect for citizens of contracting parties, or direct effect for the contracting states). Such binding effect is missing for the recitals, but they are nevertheless an important source of law, as they provide authoritative information about how the articles should be read. Since international treaties are often the result of compromise, articles may be formulated in less clear terms, as this is often the only way to obtain agreement from all parties. The more radical text of previous drafts is sometimes moved to the recitals, thus leaving it up to the courts to decide the meaning of the article.

4.3 Supranational Law

Supranational law differs from international law. In the case of supranational law, a set of Member States (MSs) have agreed to transfer parts of their sovereignty to a supranational organization. In practice, supranational law refers to the law of the EU. Supranational law is not merely law between MSs (as in international law) but also law between the bodies of the EU and the citizens of the MS, who are also EU citizens. Some of the legal instruments of the EU have ‘direct effect’ for EU citizens, and due to the supranational nature of the EU jurisdiction, this ‘direct effect’ does not depend on whether a MS takes a monist or a dualist approach to international law. Even the United Kingdom, which has an outspoken dualist approach, had to accept that EU Regulations have direct effect within their national jurisdiction and might overrule Acts of Parliament. That is, as long as they were part of the EU.

The history of the EU goes back to the Second World War. In its aftermath, attempts were made to ensure economic interdependency between European states, thus hoping to contribute to the prevention of a new war. This led six states (the German Federal Republic (West Germany), France, Italy, the Netherlands, Belgium, and Luxembourg to the institution of the European Coal and Steel Community (ECSC) in 1952, followed by the European Economic Community (EEC) in 1958, which aimed to institute a common internal market, enabled by ‘four freedoms’: the free movement of goods, persons, services, and capital. In 1992, the ECSC and the EEC were integrated into the EU, then comprising of twelve MSs.

For a long time, the main purpose of the EU was to harmonize the legislation and the policies of its MSs in order to prevent obstruction and disruption of the internal economic market. If the sale of washing machines is subject to different legal requirements in different MSs, it becomes more difficult for manufacturers and retailers to produce and sell such machines across national borders. The same goes for, for example, data protection legislation; if the constraints for the processing of personal data differ per MS, cross border data processing becomes a problem that will, for example, reduce cross-border eCommerce.

4.3.1 Transfer of sovereignty

As one can imagine, a transfer of sovereignty implies a substantive and substantial interference with national sovereignty. The idea that MSs have transferred part of their sovereignty to a new entity with its own jurisdiction was consolidated in the case law of the highest court of the (then) EEC. In the seminal ‘Van Gend en Loos’ case of 1963,4 the highest Court of the EU, the Court of Justice of the European Union (CJEU) considered that:

This firmly establishes the transfer of specified sovereign rights, followed by a transformative ‘speech act’ that in fact declared and instituted the EEC as a supranational legal order:

This has consequences for the freedom of MSs with regard to accepting ‘direct effect’ within their national legal order, as explained in the seminal Costa/ENEL case of 1964,5 where the court states:

The consequences—indeed the legal effect—of this judgment can hardly be overestimated. In accepting this judgment, the MSs have accepted that the EEC, which is now the EU, constitutes a legal order in its own right, with jurisdiction over aspects of the national legal orders of the MSs.

It remains important to note that the Constitution of a MS must allow for the transfer of sovereign power. In the Netherlands Constitution, the competence for such transfer can be found in Article 92, referring back to the conditions stipulated in Article 91(3), which has been quoted above, states:

An arduous issue nevertheless remains: who determines the boundaries of EU legislative competence when a national constitutional court of a MS disagrees with the position taken by the CJEU? This has been coined as the issue of Kompetenz-Kompetenz, as it concerns the competence to decide on competence. On several occasions this issue has arisen, notably when the German Constitutional Court (GCC) was asked to decide the legislative competence of the EU regarding issues that may infringe the German Constitution. So far, even though the GCC claims the competence to decide on these issues,6 it has not invalidated any judgment of the CJEU.7 Clearly, the CJEU is of the opinion that it is the only authority on the competences of the EU. Thus, by avoiding a disagreement, the GCC has saved the day, since competition over competence between the two highest courts could initiate the disintegration of the EU.

4.3.2 Sources of EU law

In the context of the EU, lawyers speak of the so-called ‘acquis’ (French for what has been achieved, established). This is the body of common rights and obligations that is binding on all the MSs of the EU.

We end this chapter with the presentation of two types of legislative instruments that are core to EU law, and feature prominently in the second part of this book (as they regulate, e.g. data protection law, cybercrime, and copyright). Article 288 of the Treaty of the Functioning of the European Union (TFEU) specifies:8

We focus on regulations and directives as legislative instruments.

The difference between regulations and directives marks the challenges of the EU, which is neither a superstate nor a form of collaboration based on international law. On the one hand, some legislation is formulated in one and the same way and applies unilaterally in all MSs (regulations). On the other hand, some legislation has to be adapted by the MSs, taking into account how it could best fit with and within their legal order (directives). The latter leaves more room for different uptake in the different MSs, which may be confusing for transnational players on the internal market, but will be better adapted to local circ*mstances. Nevertheless, even regulations may be interpreted differently across different national jurisdictions, thus jeopardizing the goals of harmonization that are core to the EU.

4.3.3 Case law of the CJEU

To prevent contradictory interpretations of EU law, courts in the MSs may consult the CJEU in a so-called ‘preliminary proceeding’, inviting the Court to provide an authoritative interpretation of EU law for the case at hand. Such preliminary rulings bind all the MSs and thus further the harmonization of law in the EU, including the harmonization of legal protection against violations of fundamental rights. In section 2.1.2.1, we have already encountered a landmark case of the CJEU on the validity of the Data Retention Directive, in the light of the CFREU. We can now understand the relevance of the fact that this concerned a directive, since directives must be implemented in national law. The Court’s judgment that declared the directive invalid, did not necessarily affect its national implementation. All MSs had to check whether their national law—based on the directive—complied with the relevant legal conditions identified by the Court for valid data retention duties for the telco operators. We reiterate these legal conditions as recounted in section 2.1.2. To qualify as lawful restrictions of the rights to privacy and data protection, measures enacted as an implementation of the Data Retention Directive must, even if they have a legitimate aim and are appropriate to achieve this aim, nevertheless be proportional.

To assess whether the transposition of the directive complies with the Court’s interpretation, each MS had to check their legislation and policies against these criteria. In some MSs, the legislature found that they were compliant, whereas in other MSs, courts found the relevant transposition to be in violation of Articles 7 and 8 CFREU. In point of fact, two cases were referred to the CJEU, asking whether or not national transposition was in violation, notably Tele2 Sverige AB v. Post- och telestyrelsen and Secretary of State for the Home Department v. Watson.9 In both cases the CJEU found that the national legislation was indeed in violation. The reasoning concerns the fact that such national legislation must comply with Article 15 of the ePrivacy Directive, which protects the confidentiality of electronic communication. Article 15 of the ePrivacy Directive allows MSs to restrict the applicability of some articles, based on national legislation, if such national legislation is restricted to the goals stipulated in Article 15, contains proper safeguards, and is necessary in a democratic society (the proportionality requirement).

Such proportionality, according to the CJEU, is absent in the case of national legislation:10

We should note that, as in the case of international treaties, the legislative instruments of the EU often contain a number of recitals, which are not legally binding in the way that articles are, but nevertheless pivotal for the interpretation of these articles. For instance, in the judgment of Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v. Watson, the Court states in paragraph 87:

And, in paragraph 95 the Court states that:

4.4 International Rule of Law

International law depends on national law. First, because national law determines to what extent states are bound by international law. Second, because enforcement of international law depends on national bodies (legislature, courts, administration). This implies that international law, to a large extent, depends on states willing to bind themselves. There are some exceptions, for example, with regard to ius cogens, which applies whether or not states recognize its force. But, generally speaking, one may be tempted to assume that states act as legal subjects in the realm of international law, free to negotiate treaties and free to subject themselves to whatever they deem to be in their own interest.

However, national law also depends on international law. First, because the system of sovereign states is based on mutual recognition of each other’s internal and external sovereignty. As discussed in sections 1.4 and 4.1.2, sovereignty is an artificial construct, a historical artefact. Without external sovereignty, which depends on the international legal order, we cannot ‘have’ internal sovereignty. In the words of Jeremy Waldron:

The latter implies that from the perspective of the rule of law, states are not free to act in their own interests but bound by a legality principle at the level of international law. In the context of national law, the rule of law means that citizens are not there to serve the state, but the state is there to serve its citizens. In the context of international law, the rule of law means that states serve as the trustees of their citizens, bound to the rule of international law not for the sake of their own sovereignty, but for the sake of the people whose well-being they are entrusted with. Because this fiduciary position of states depends on the international legal order, to some extent they are also officials of the international legal order. Ultimately, this may entail a responsibility of states for subjects of other states.

References