THE LISBON TREATY AND EU TREATY-MAKING POWER: THE NEXT EVOLUTIONARY STEP AND ITS EFFECT ON MEMBER STATES

AND THIRD-PARTY NATIONS I. INTRODUCTION ............................................................................... 795 II. BACKGROUND ............................................................................... 796 A. The Evolution of EU Foreign Policy and Treaty Power Pre-Lisbon.............................................................................. 797 1. The Single European Act..................................................... 797 2. The Maastricht Treaty and Common Foreign and Security Policy .................................................................... 798 3. Evolution of CFSP, Granting EC Legal Personality and Abandoning Unanimity ................................................. 801 B. The Lisbon Treaty and Explicit Treaty Power .......................... 803 III. ANALYSIS .................................................................................... 804 A. Treaty Power .......................................................................... 804 B. Implementation and Operation ................................................ 805 1. The Problems of Mixed Treaties.......................................... 806 2. The Problem of Conflict Between EU Treaties and the Treaties of Member Nations ................................................ 809 3. Supremacy Principle as Applied to Treaties ........................ 809 C. Treaty Interpretation, the ECJ, and the National Courts ......... 812 1. The Preliminary Ruling Action and Treaties........................ 813 2. Original Jurisdiction of EU Courts for Treaties .................. 814 3. Third Party Nations and Legal Certainty ............................ 816 IV. CONCLUSION ............................................................................... 817 I. INTRODUCTION The European Union (EU) overcame the final hurdle to the implementation of the Lisbon Treaty in October 2009 when, in the countrys second referendum on the treaty, a majority of Irish citizens voted for ratification.1 Following the vote, the Lisbon Treaty entered into effect on December 1, 2009.2 The Lisbon Treaty signals many changes

1. Lisbon TreatyA Fresh Start for the http://ec.europa.eu/news/eu_explained/091201_en.htm. 2. Id.

EU,

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for the EU, but this Note will focus on the formal treaty-making power that article 216 grants to the EU. 3 The explicit power raises issues as to the effect of treaties on individuals and member nations, the relationship between EU treaties and the existing treaties of the member states, the uniform legal interpretation of EU treaties, and the effect the answers to all these questions will have on foreign nations who are parties to the treaties. It would seem that the EU can look to existing practices to resolve questions of direct effect and supremacy of EU treaties. 4 However, to ensure uniformity of interpretation and result, and the effect of those on relations with third-party nations, the EU should adopt a more Eurocentric judicial paradigm. The EU can only guarantee consistency if the European Court of Justice (ECJ) and the courts of the EU have the exclusive power to make decisions regarding EU treaties. 5 Furthermore, this seems to be the most certain way for the EU to ensure that the treaty interests of the third party nations are adequately represented and respected. II. BACKGROUND The Lisbon Treaty brings many changes to the structure and operation of the EU,6 but the one of most interest to the United States and the rest of the world is likely the explicit grant of international legal personality and treaty-making power.7 It is this new power which will likely most affect foreign nations, though as this Note will show, the EU

3. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union art. 216, Apr. 30, 2008, 2008 O.J. (C 115) 1, available at http://www.consilium.europa.eu/showPage.aspx?id=1296&lang=en (select the hyperlink en under the heading Information Note) [hereinafter Lisbon Treaty]. 4. See infra notes 87-99 and accompanying discussion. 5. I must stress that I propose that the EU apply a more Eurocentric method only with regard to the interpretation and judicial review of treaties concluded by the EU. This method will not apply to pre-existing treaties that individual member nations have concluded with third-party nations, so long as those treaties are still valid and have not been superseded by EU treaties. This seems only proper, since the treaties of individual member nations will have been agreed upon with the understanding that they would govern relations between only the member state and the third party nation, and that any disputes would be resolved by the national courts of parties to the treaty. As long as the EU has not more recently concluded a treaty with the same third party nation on the same issue, the pre-existing treaty of the member nation should remain valid and in effect. As discussed later in this Note, I propose that an existing treaty of a member state may be superseded by an EU treaty if both treaties deal with the same issue. 6. See generally Lisbon Treaty, supra note 3. 7. Lisbon Treaty, supra note 3, art. 216.

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power is not nearly so new as its explicit grant in the Lisbon Treaty might suggest. A. The Evolution of EU Foreign Policy and Treaty Power Pre-Lisbon The present day EU traces its beginnings to the Treaty of Paris, concluded by the original six member nations to form the European Coal and Steel Community (ECSC).8 This treaty did not contemplate that the ECSC would need to be an independent actor with regard to third party nations; rather it was a way to ensure cooperation among the member nations and facilitate commerce between them. 9 The Treaty of Rome then continued and expanded these goals by forming the European Community (EC) in 1957.10 It would be twelve more years before, through the European Political Cooperation (EPC), the EC glimpsed the beginnings of cooperation on foreign policy. 11 It would be another seventeen years before the principles of the EPC formally and legally made their way into the EC.12 1. The Single European Act In 1986, the EC adopted the Single European Act (SEA). 13 The act was significant in many respects, as it was the first statement of many of the principles that form the foundation of the EU today. 14 In addition to those bedrock principles, the SEA created a legal basis for the EPC. 15 It provided that members of the EC shall endeavour jointly to formulate
8. Francis G. Jacobs, The State of International Economic Law: Re-Thinking Sovereignty in Europe, 11 J. INTL ECON. L. 5, 11-12 (2008). The original six members were France, West Germany, Italy, Belgium, Luxembourg and the Netherlands. 9. Id. See also Heinrich Klebes, Membership in International Organizations and National Constitutional Law: a Case Study of the Law and Practice of the Council of Europe, 99 ST. LOUIS-WARSAW TRANSATLANTIC L.J. 69 (1999). 10. See Malgorzata Lawrynowicz, Note, A Foreign Policy for Europe: Integration or Illusion?, 16 MICH. ST. J. INTL L. 691, 692-93 (2008). 11. See id. Though not incorporated into the EC treaty, the member nations formed the EPC through negotiations at the Hague. It was an informal and largely ineffectual step, but it laid the groundwork for changes to come. 12. See Pieter Jan Kuijper, Fifty Years of EC/EU External Relations: Continuity and the Dialogue Between Judges and Member States as Constitutional Legislators, 31 FORDHAM INTL L.J. 1571, 1572 (2008). 13. Id. 14. Dmitry Tuchinsky, Note, The Takeover Directive and Inspire Art: Reevaluating the European Unions Market for Corporate Control in the New Millenium, 51 N.Y.L. SCH. L. REV. 689, 697 (2006). The act first set out the bedrock principles of the current EU: free movement of goods, persons, services, and capital. 15. Lawrynowicz, supra note 10, at 693.

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and implement a European foreign policy...[and] to avoid any action or position which impairs their effectiveness as a cohesive force.16 In other words, the SEA aimed to require cooperation between the member states when it came to foreign policy. It further provided a method for that cooperation to take place by requiring regular meetings between representatives of the member states concerning the EPC.17 Despite the advances and legal basis for the EPC provided by the SEA, the EC primarily utilized these EPC procedures to facilitate cooperation between the member states rather than between the EC and third party nations. 18 Nevertheless, it represented an important first step 19 in the development of the competency of the EC to form agreements with third party nations on behalf of the European member nations. The next step would come with the Treaty on European Union, better known as the Maastricht Treaty.20 2. The Maastricht Treaty and Common Foreign and Security Policy The Maastricht Treaty represented a momentous step toward a unified Europe under a more powerful, supranational governmental body that would come to be known as the EU. 21 The treaty set up a three pillar organization of the EU institutions of government. 22 The first and most important pillar absorbed all of the previously existing European treaties and put them under the moniker of the European Community (EC). 23 The other two pillars were largely intergovernmental: the second pillar dealt with the Common Foreign and Securities Policy (CFSP) and the third dealt with issues regarding Justice and Home Affairs. 24

16. Single European Act, tit. III, art. 30(2)(a), (d), June 29, 1987, 1987 O.J. (L 169). 17. Id. art. 30(3)(a). 18. Ambassador Hugo Paemen, The European Union in International Affairs: Recent Developments, 22 FORDHAM INTL L.J. S136, S143 (1999). 19. Lawrynowicz, supra note 10, at 694. 20. The Treaty on European Union and the Treaty Establishing the European Community title V, Feb. 7. 1992, 1992 O.J. (C 191) 58-60, available at http://eurlex.europa.eu/en/treaties/dat/11992M/tif/JOC_1992_191__1_EN_0001.pdf [hereinafter Maastricht Treaty]. The Maastricht Treaty has undergone amendments by the Treaty of Amsterdam and the Treaty of Nice which have further expanded the competency of EU institutions with regard to foreign agreements and policy. However, the Maastricht Treaty laid the groundwork for these powers. See Lawrynowicz, supra note 10, at 695-99. 21. Kuijper, supra note 12, at 1573-74. 22. Frans G. von der Dunk, European Satellite Earth Observation: Law, Regulations, Policies, Projects, and Programmes, 42 CREIGHTON L. REV. 397, 408 (2009). 23. Id. 24. Lawrynowicz, supra note 10, at 695-96.

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The CFSP was essentially the next step in expanding the EPC which had existed previously. The principal thrust of the CFSP was to require that the member nations of the EU work together and consult each other when determining foreign and security policy. 25 The Maastricht Treaty put the responsibility for CFSP cooperation on the member nations as well as the EU governmental body of the European Council. 26 The significant provision on the operation of the CFSP stated: Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest in order to ensure that their combined influence is exerted as effectively as possible by means of concerted and convergent action.27 The effect of this language is that representatives from each of the member nations must meet and agree upon foreign and security policy in the European Council.28 Actions of the European Council require unanimity among the representatives, so each member state had veto power when it came to negotiations on foreign and security policy. 29 This ensured that no member state would be forced into any foreign policy measures it did not like. 30 Because of these provisions, the Maastricht Treaty clearly did not give competency or international legal personality to the EU or any branch of the EU with regard to foreign relations and treaties. 31 However, it did clearly provide a mechanism to establish a unified front among the member nations as they dealt with the rest of the international community.32 This is bolstered by the delegation of responsibility to the president of the European Commission33 for the implementation of
25. Maastricht Treaty, supra note 20, tit. V, art. J.1(1). 26. Id. art. J.2(1). 27. Id. 28. Lawrynowicz, supra note 10, at 696. 29. Id. International legal personality is the key element to be able to negotiate and conclude treaties with third party entities. The member states each have international legal personality, because it is a status they attain through their designation as independent states. The EU, however, must be given the status by a decision of the member states, as it is not an independent state. Rather, the EU is classified as a supranational organization, much like the UN. Up until the passage of the Lisbon Treaty, the EU member nations had not granted international legal personality to the EU. 30. Id. 31. Id. at 696-97. 32. Id. at 697. 33. The European Commission is a governmental body that operated under the first pillar, the EC pillar, of the EU. The president of the commission was the de facto president of the EU prior to the passage of the Lisbon Treaty. The commission is primarily charged with safeguarding and ensuring the application of the EU treaty, providing recommendations on treaty provisions if necessary, and helping shape the measures taken by the European Council. A summary of the structure and power of the

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common measures34 that were agreed upon by the member states in the European Council. 35 In other words, the president, a decidedly EU position, is responsible for representing to the rest of the world whatever measures the member nations agree upon. 36 Despite the appearance this may have given to other nations that the president had some power over foreign policy, the power truly still vested in the member nations. 37 This created problems in dealing with third-party nations and organizations because the president did not have any power or authority to negotiate. 38 The simple fact that power rested with the member nations also created problems for the EU in striving toward unification. 39 As long as CFSP proceedings required unanimity and every nation had veto power, the EU had to clear a high hurdle to accomplish anything.40 The process was further complicated by the fact that the ECJ did not have jurisdiction over any matter falling under the second pillar of the EU.41 Therefore, with regard to CFSP matters, the ECJ was powerless to hear cases, make rulings, and, most importantly, further EU integration on any CFSP resolution. 42 Nevertheless, this version of the CFSP represented an
European Commission is available at http://europa.eu/institutions/inst/comm/index_en.htm (last visited Jan. 9, 2011). 34. Maastricht Treaty, supra note 20, tit. V, art. J.5(2). The Troika, the previous member state and the next member state to hold the commission presidency, were to aid the current president in this process. This was another provision aimed at preserving unity and consistency with regard to CFSP, however its effectiveness in that regard was suspect. The EU no longer requires Troika involvement. Lawrynowicz, supra note 10, at 714 n. 19. 35. Lawrynowicz, supra note 10, at 697-98. 36. See id. 37. Kuijper, supra note 12, at 1575. 38. See generally Maastricht Treaty, supra note 20, tit. V. The treaty does not explicitly give the president any power to negotiate. His role is merely to present the CFSP matters that the member states agree on in the Council. He presents them not only throughout the EU, but also as the face, albeit the powerless face, of the EU to third party nations. Id. 39. See id. 40. See id. 41. Dieter Kugelmann, The Maastricht Treaty and the Design of a European Federal State, 8 TEMP. INTL & COMP. L.J. 335, 345 (1994). The ECJ still has no jurisdiction over CFSP matters under Article 275 of the Lisbon Treaty. 42. Id. While the decisions of the ECJ do not enjoy precedential value, they are significant measures of what is permissible under EU law and what is not. They also communicate the likely outcome of future litigation regarding an area of EU law. Furthermore, the decisions of the ECJ consistently prove to enhance the power of the EU and bring EU legislation from the realm of theory and bureaucracy into reality. The fact that the ECJ had no jurisdiction over CFSP matters is further evidence that the member states did not want or intend to surrender too much power to the EU through CFSP measures.

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important step toward foreign policy and treaty competency for the EU and showed the desire on the part of the member nations to have the EU handle some aspects of foreign relations.43 3. Evolution of CFSP, Granting EC Legal Personality and Abandoning Unanimity The Treaty of Amsterdam and the Treaty of Nice presented further advancements in the ability of the EU and its institutions to act on an international level. 44 The Treaty of Amsterdam created the position of High Representative of the CFSP.45 The purpose of this provision was to cure the problems of inconsistency that came with the president of the commission acting as the representative to third parties on CFSP matters.46 The treaty specifies that the secretary-general of the council will hold the post of high representative.47 He is responsible for assisting the council and the president on CFSP matters by aiding in every step of the evolution of policy decisions and meeting with third parties per the request of the president.48 The creation of the post of high representative was clearly a further indication that the member states desired to have more cohesion and unity on CFSP matters.49 In addition to this post, the Treaty of Amsterdam made subtle changes in the procedure of the Council on CFSP matters, seemingly aimed at making it easier to decide on any given CFSP issue. 50 While under the Maastricht Treaty all CFSP votes required unanimity, the
43. Kuijper, supra note 12, at 1575. 44. Id. 45. Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, tit. V, art. J.8(3), Oct. 2, 1997, 1997 O.J. (C 340), available at http://eurlex.europa.eu/en/treaties/dat/11997D/tif/JOC_1997 _340__1_EN_0005.pdf [hereinafter Treaty of Amsterdam]. 46. Helene Sjursen, The Common Foreign and Security Policy: an Emerging Voice in International Politics? 7 (Arena Working Papers WP 99/34, 1999), available at http://www.sv.uio.no/arena/english/research/publications/arenapublications/workingpapers/working-papers1999/wp99_34.htm (last visited Sept. 26, 2010). The Presidency of the European Commission is a semi-annually rotating position among the representatives of each member state. This is an attempt to ensure that no one member state will have too much power over the commission and the EU as a whole. It creates problems, however, when this position is in charge of representing a unified foreign policy to third parties, yet a different person comes before those third parties every six months. Id. 47. Treaty of Amsterdam, supra note 45, tit. V, art. J.8(3). 48. Lawrynowicz, supra note 10, at 700. 49. See Kuijper, supra note 12, at 1575-76. 50. Lawrynowicz, supra note 10, at 700.

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Treaty of Amsterdam allowed the Council to take a preliminary vote by Qualified Majority Vote (QMV)51 to decide whether the matter to be discussed needed unanimity to pass.52 By this method, the Council had the ability to designate a CFSP matter as one that could be passed without the unanimous agreement of all of the member state representatives.53 In theory, this would make it easier to pass foreign policy measures. 54 In practice, however, this procedural nuance had little effect, because representatives were able to prevent a QMV vote from taking place if even one stated that the CFSP matter conflicted with the national policy of his member nation.55 Nevertheless, this did not stop the council from increasing its CFSP activity and concluding a number of treaties through the most important grant of power in the Treaty of Amsterdam: international legal personality for the council. 56 The treaty was still ambiguous, though, on whether treaties concluded by the Council would bind all of the member states or only the EU governmental bodies (which did not have legal personality or treaty power).57 Still, the council pressed on in an effort to gain some recognition of the personality of the EU on the international stage. 58

51. Qualified Majority Voting is a similar concept to the super majority needed in the U.S. Senate to defeat a filibuster. However, it is more complicated. The EU has a formula for weighting the votes of the representatives depending on which member state they represent. The most important factor is the population of the member statesthe larger the population, the more weight that states representative has for his vote. So, in the current council, where there are 27 representatives, one from each of the 27 member states, there are 322 total votes. Those votes are distributed amongst the 27 representatives according to the formula. A Qualified Majority requires that 232 votes go the same way. This process accomplishes two goals. It allows the larger, more influential member states to protect their interests and advance those interests in the EU. It also lowers the bar that must be cleared to take action, ensuring that no single member state has pure veto power. A summary of Qualified Majority Voting is available at http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/qualified majorityvoting.htm (last visited Jan. 9, 2010). 52. Michael E. Smith, Understanding Europes New Common Foreign and Security Policy: A Primer for Outsiders (Inst. on Global Conflict and Cooperation, Policy Paper 52, 2000) available at http://igcc.ucsd.edu/pdf/policy papers/pp52.pdf. 53. Lawrynowicz, supra note 10, at 700. 54. See id. 55. Id. at 701. 56. See Kuijper, supra note 12, at 1574-75. 57. Id. at 1575-76. 58. Id. at 1574. The Treaty of Amsterdam also significantly gave legal personality and treaty-making power to the EC. However, the EC operates principally with regard to issues of trade and commerce, so this power had little effect on the governmental foreign policy of the EU. Id. at 1587.

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The Treaty of Nice provided more procedural advances aimed at enhancing CFSP. The most significant of these is to only require unanimity in the council on issues of CFSP for which unanimity is required for the adoption of internal decisions.59 This means that, at the discretion of the Council and without a preliminary vote, the council may decide issues of CFSP by the weighted voting system of QMV. 60 Admittedly, this is a small step on the path to treaty competency, but it is a further signal that the member nations desired to have the EU play a major role in foreign policy. 61 B. The Lisbon Treaty62 and Explicit Treaty Power The Lisbon Treaty took effect on December 1, 2009.63 Among other things, it does away with any uncertainty as to the legal personality and treaty power of the EU.64 Article 216 of the new treaty explicitly states: 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Unions policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.
59. Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community art. 24, Dec. 29, 2006, 2006 O.J. (C 321) 1, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0001:0331:EN:PDF [hereinafter Treaty of Nice]. The Maastricht Treaty, signed in 1992, has been amended by the Treaty of Amsterdam and the Treaty of Nice. While these amendments have left the Maastricht Treaty largely intact, they have made changes with regard to foreign relations. 60. Lawrynowicz, supra note 10, at 702. 61. Id. 62. Prior to the Lisbon Treaty, representatives of the member states came to an agreement on a Constitution of Europe. I do not deal with the proposed constitution here because it was not ratified and at no time has governed the operation of the EU. It did, however, lay the groundwork for the newly adopted Lisbon Treaty. The principal aim of this Constitution was to do away with the treaty basis for the EU and create a system more akin to that of the United States with the EU superstructure essentially acting as a federal government. This is, of course, a vast oversimplification of what the constitution sought to implement, and the EU would not have operated in exactly the same way that the US does had the constitution been ratified. Nevertheless, it is a helpful analogy. A copy of the European Constitution is available at http://eurlex.europa.eu/JOHtml.do?uri=OJ:C:2004:310:SOM:EN:HTML. 63. Lisbon TreatyA Fresh Start for the EU, supra note 1. 64. Lisbon Treaty, supra note 3, art. 216.

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2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.65 The treaty follows this article with several more which outline the method by which treaties must be concluded and what governmental bodies must be notified. 66 However, in one fell swoop, this provision of the Lisbon Treaty bestows legal personality on the EU and makes the EU competent to conclude treaties on behalf of all of the member nations. III. ANALYSIS The new explicit treaty power raises several questions. How will new EU treaties be implemented in the member states? What will happen if there is a conflict between a new EU treaty and an existing treaty of a member state? How can the EU ensure uniformity of interpretation of EU treaties in the governments and courts of the member states? And most importantly, to what degree can the United States and other nations expect to rely on the treaties they conclude with the EU? This Note will strive to provide possible answers to those questions and shed light on potential problems that will accompany the EUs treaty-making power. A. Treaty Power For the first time in its existence, the European Union as an entire governmental body has international legal personality through the provisions of the Lisbon Treaty. 67 Article 216 explicitly states that the EU shall have the power to enter into treaties with third party nations on behalf of the EU and all of the member states. 68 Through this provision, treaty-making powers which were formerly the exclusive preserve of the member states and, in some special circumstances, the European Community,69 will now consolidate to the EU superstructure as a whole. While this is certainly a momentous step in the evolution of the EU, it is largely only a symbolic and formalistic one. The fact that the member nations incorporated explicit language into the Lisbon Treaty granting treaty-making power to the EU signifies the increasing willingness of the citizens and member states of Europe to cede more and more governing power to the EU. However, it is little more than a
65. 66. 67. 68. 69. Id. Id. art. 217-19. See Lawrynowicz, supra note 10, at 695-701. Lisbon Treaty, supra note 3, art. 216. Lawrynowicz, supra note 10, at 701.

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symbol, because though the EU has not previously had the explicit or even implicit power to do so, it has already entered into several treaties with third-party nations.70 Notably, the United States has already concluded an extradition treaty and a cooperation of laws treaty with the European Union. 71 Nevertheless, the formal recognition and grant of treaty-making power to the EU is important in that it gives clarity and legal legitimacy to the EU as an international actor, capable of concluding treaties with third party nations. The resolution of one issue in the European Union always seems to bring up several more, and the grant of treaty-making power in the Lisbon Treaty is no exception. The new power and EU treaties such as the extradition treaty with the United States raise some important legal questions when it comes to their implementation, operation and legal interpretation among the member states of the EU. B. Implementation and Operation Implementation of new EU laws is always an issue with regard to whether the law will be directly effective, directly applicable, or each member nation has to adopt the law through its own national legislature.72 For the World Trade Organization treaties, which the EC pillar73 of the EU concluded, the trend of the decisions of the European Court of Justice (ECJ) seems to mostly hold that they are not directly

70. For a list of all of the treaties to which the European Union is a party, visit http://ec.europa.eu/world/agreements/searchByOrganization.do?countryId=30122&orgN ame=European%20Union (last visited Jan. 9, 2011). 71. Extradition Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25299215. Mutual Legal Assistance Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25297816. 72. See generally Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Admin., 1963 E.C.R. 1; Case C-166/99, Marthe Defrenne v. Sabena SA, 2000 E.C.R. I-06155. Both cases deal with the principle of direct effect. If legislation is directly effective in the EU, that means it can be relied upon by individuals in their nations courts. There are three factors to consider to determine whether a provision is directly effective: whether it is clear and unambiguous, unconditional, and does not require any new legislative action by the states. A law is directly applicable when no further action is required by the member states to make it law in those member states; however, it cannot necessarily be relied upon by an individual in the national courts. 73. The EC is the pillar of the EU that has been explicitly granted international legal personality and has the ability to enter into treaties. As indicated by the fact that the treaties here discussed regard the WTO, the treaties of the EC primarily deal with issues of trade and commerce.

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effective. 74 However, depending on the treaty and its specific provisions, the ECJ may find some limited direct effect. 75 It is perhaps telling that the ECJ has found direct effect when the WTO provision at issue benefits EU farmers by prohibiting imports that are potentially harmful economically and environmentally. 76 These decisions would seem to indicate that the ECJ will be more inclined to find a treaty to be directly effective when a citizen of the EU desires to rely on it to his benefit and less inclined to find direct effect if the treaty is detrimental to an EU citizen. Whether this trend will continue with new EU treaties concluded under the provisions of the Lisbon Treaty remains to be seen. But such decisions will determine the importance of EU treaties to individual EU citizens and the way those treaties are reviewed in a court of law, as discussed below in section C of this Note. 1. The Problems of Mixed Treaties In still other instances, such as the extradition treaty with the United States, the EU has tailored its treaty to work with the existing treaties of the member nations and required those nations to implement the treaty into their national laws.77 In the extradition treaty, the EU replaced some key provisions of the extradition treaties of the member states, allowed others to remain intact, and further allowed member states to negotiate any new terms with the United States as long as the issues were not covered by the EUs treaty.78 Prior to the Lisbon Treatys explicit grant of treaty-making power to the EU, this mixed treaty method had been the preferred choice of the

74. See generally Case C-149/96, Portuguese Republic v. Council of the European Union, 1999 E.C.R. I-08395 (WTO provisions did not confer rights to individual EU citizens, therefore not directly effective); Case C-181/73, R. & V. Haegeman v. Belgian State, 1974 E.C.R. 449. 75. See generally Case C-317/99, Kloosterboer Rotterdam BV v. Minister van Landbouw, Natuurbeheer en Visserij, 2001 E.C.R. I-09863 (direct effect of provisions to stabilize price of agricultural commodities); Case C-93/02 P, Biret International SA v. Council of the European Union, 2003 E.C.R. I-10497 (direct effect of prohibition on import of farm animals exposed to certain substances). 76. See Biret, 2003 E.C.R. I-10497. 77. Extradition Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25299215. 78. Id.

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EU. 79 The use of the mixed treaty likely speaks to the reality that the EU is not a single state for international law purposes.80 However, given the new explicit powers contained in the Lisbon Treaty, it is difficult to imagine that the EU will continue to follow the same course with many treaties going forward. Leaving so many variables open to the potentially disparate desires of each of the member nations flies in the face of one of the most important principles in the EU: uniformity of EU laws and their interpretation.81 Furthermore, doing so poses a danger to the integrity of such treaties and has the potential to jeopardize negotiations and relations with third party nations. What seems far more likely is that the EU will, given its legislative and judicial history, interpret the Lisbon Treatys grant of treaty-making power to the EU exclusive competency to conclude treaties. 82 The trajectory of EU law and the decisions of the ECJ have consistently been to interpret more and more power residing with the EU, as opposed to the courts and legislatures of the individual member nations.83 Even more than the supporting case law, 84 the fact that the EU
79. Rafael Leal-Arcas, Polycephalous Anatomy of the EC in the WTO: An Analysis of Law and Practice, 19 FLA. J. INT L L. 569, 573 (2007). 80. See id. Since the EU is not a state itself and, at the time of the extradition treaties and others, the member states had not explicitly given treaty power to the EU, the advent of the mixed treaty seems to be the EUs way of dealing with reality. The EU likely did not want to create conflict with the member nations by overstepping its bounds with regard to treaties. The mixed treaty is a compromisea way for the EU to exercise some power on an international level while, at the same time, keeping the member nations happy. Unfortunately, as with many compromises, mixed treaties create uncertainty as to form and application throughout the member states, which will likely extend the uncertainty to third party nations. 81. Treaty of Nice, supra note 59, art. 234. Article 234 covers preliminary rulings by the ECJ, one of the most important legal actions which promotes uniformity in EU law. Through this process, national courts certify a question of EU law to the ECJ for an initial determination of the general question of law. The ECJ then hands down a decision and the national court will make a determination on the facts before it based on the preliminary ruling of the ECJ. This is similar to a federal court certifying a question to a state supreme court on an issue of state law. However, it is much more common and much more important to the advancement and supremacy of EU law. 82. See Maastricht Treaty, supra note 20, art. 308. See also infra note 83. These cases are just a few that show how the ECJ has consistently ruled in favor of a stronger EU that EU laws and principles are superior to challenges rooted in the laws of the member states. The legislative trend toward EU power is also evident in the outline above of the progression of EU power in making foreign policy and concluding treaties. 83. See, e.g., Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 585 (arising over a conflict between Italian domestic law and EU law. The ECJ found partially for the Italian government, finding that the EU provision at issue had no direct effect. However, the ECJ also held that Costa could challenge the Italian domestic law as incompatible with EU law. The court said the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal

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has concluded treaties with third party nations without having the explicit authority to do so would seem to constitute ample evidence that the EU has no qualms about giving itself more power and authority. 85 Acting under a newly minted power explicitly given to the EU through the Lisbon Treaty, it would seem that the EU will continue on that trajectory and interpret the treaty-making power as one that now no longer resides with the member states, but solely with the EU. 86

provisions.); Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration, 1963 E.C.R. 1 [hereinafter Van Gend & Loos] (arising over a tariff charged by the Netherlands on imports from West Germany. Van Gend and Loos challenged the provision as contrary to EU law. The ECJ found in their favor, holding that the Netherlands tariff increase, whether through a new tariff or reclassification of goods, violated the EU treaty and was illegal.); Case C166/99, Marthe Defrenne v. Sabena SA, 2000 E.C.R. I-06155 (arising over gender discrimination of airline hostess as to rate of pay, article 119 of EU treaty at the time. The ECJ held that the provision was both horizontally and vertically directly effective, meaning it is directly effective both between parties and on governments. Therefore, Defrenne can rely on it and it is supreme to any contrary provision in domestic law.); Case 22-70, Commn of the European Communities v. Council of the European Communities, 1971 E.C.R. 263 [hereinafter ERTA] (arising over treaty negotiations by the EC. ECJ created soft parallelism, saying that if the EU has passed a law on an issue, the member states can no longer legislate or negotiate treaties on that point of law.); Case C-467/98, Commn of the European Communities v. Kingdom of Denmark, 2002 E.C.R. I-9519 [hereinafter Danish Bottles] (arising over a Danish regulation of drink containers. It was aimed at environmental protection, but also had a significant restraint on trade between the member states. The ECJ held that the regulation was not appropriately tailored to overcome the EU principle of free movement of goods between member states.). 84. See supra note 83. 85. See, e.g., Extradition Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25299215; Mutual Legal Assistance Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25297816. 86. See ERTA, 1971 E.C.R. 263. In this case, the ECJ prohibited member nations from concluding treaties with third party nations on any issue where there had been EU legislation. That was when the EU did not have any explicit treaty-making power. Article 219(4) of the Lisbon Treaty does preserve the right of member nations to enter into international agreements with third party entities; however, it does so without prejudice to the power of the EU to do the same. Lisbon Treaty art. 219(4). Following the doctrine of parallelism that started with the ERTA case, it would seem that this provision is largely meaningless, and any area where the EU has concluded treaties can be deemed off limits to the member nations. Now that the Lisbon Treaty explicitly grants that power, it would seem to follow that the ECJ will determine that the EU has virtual exclusive competency to conclude treaties. See also Costa, 1964 E.C.R. 585; Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1978 E.C.R. 629; Case C-213/89, The Queen v. Secy of State for Transport, ex parte: Factortame Ltd., 1990 E.C.R. I-02433 (These cases provide further support for the supremacy of EU law to the law of the individual member states).

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2. The Problem of Conflict Between EU Treaties and the Treaties of Member Nations Even if the EU does construe and act upon the power in this way, however, there is still the issue of what happens to the existing treaties that EU member nations may have with third-party nations. Again, the EU circumvented this problem in the extradition treaty with the United States by drafting it to work with the existing extradition treaties.87 However, for many of the same reasons stated aboveconsistency of interpretation, supremacy of EU law, direct effect, parallelismthat is unlikely to happen with every treaty the EU concludes. 88 What seems far more likely is that, in the future, the EU will conclude treaties that will have provisions which conflict with existing treaties in the member states. When it comes to treaty conflicts, the EU presents a novel legal problem. Usually, when there is an issue as to what to do with a preexisting treaty, it arises in a situation where a state has ceased to exist and a new state has surfaced in its place. 89 In such instances, new states can look for guidance to the clean slate doctrine, or instances of state absorption such as the combination of East and West Germany.90 But these traditional customary international law procedures for new states replacing old states and negotiating new treaties do not apply to the EU. 91 This is because the EU cannot currently be considered a state. 92 However, the EU already has a paradigm in place to deal with potential conflicts between EU treaties and the pre-existing treaties of the member states: the supremacy principle. 93 3. Supremacy Principle as Applied to Treaties In the United States, the founding fathers inserted the Supremacy Clause into the Constitution to address potential conflicts between the
87. Extradition Agreement with the European Union, U.S.-E.U., supra note 85. 88. See, e.g., ERTA, 1971 E.C.R. 00263; Costa, 1964 E.C.R. 585; Simmenthal, 1978 E.C.R. 629; Factortame , 1990 E.C.R. I-02433. 89. ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW 394-98 (2005). 90. Id. 91. Id. 92. See id. The EU has a definite population, it is a governmental body, and the Lisbon Treaty will give it the power to make treaties. However, it cannot be said to have a defined territory. The EU member nations have defined territories, but the land itself is not subsumed into the EU. Therefore, the EU does not satisfy the traditional requirements for statehood and cannot apply the traditional rules on how to deal with preexisting treaties. 93. Costa, 1964 E.C.R. 585.

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laws of the federal government and the laws of state governments. 94 It provides: This Constitution...and all Treaties made...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.95 However, the Lisbon Treaty contains no such provision for the EU to deal with potential conflicts between EU law and the laws of the member states.96 Instead, the ECJ has adopted the supremacy principle through its decisions, primarily in preliminary rulings under article 234 of the Treaty of Nice, beginning with Costa v. E.N.E.L.97 Whenever there has been a conflict between the laws of the EU and the laws of member states, the ECJ has held that the EU law prevails. 98 While these conflict-of-laws cases have primarily arisen in the realm of private law provisions having to do with commerce and economics between the member states, there is no reason the supremacy principle should be so limited and not extend to public law issues and treaties. The principle does not stem from the subject matter of the law, it stems from the power of the EU and must continue to be applied to preserve that power. It is only natural, then, that conflicts between EU treaties and those of member nations should be governed by the same principle. In fact, it may be more important for the supremacy principle to apply to treaties, because where past EU cases have primarily dealt with conflicts within the EU and its membership, treaties involve third party nations. It seems to be a matter of common sense that the international community would not continue to put much stock in the EU and its treaty-making powers if those treaties could be undermined by the member nations. As one commentator has put it: [P]erhaps most importantly, the designation of treaties as the supreme Law of the Land serves to protect against the international embarrassment and friction that would flow from subsequent interference by the legislatures or courts of the individual states...[T]he risk of international discord was a real

94. U.S. CONST. art. VI, cl. 2. 95. Id. 96. See Lisbon Treaty, supra note 3 (containing no such provision). 97. See, e.g., Costa, 1964 E.C.R. 585. See also Simmenthal, 1978 E.C.R. 629; Factortame, 1990 E.C.R. I-02433. The preliminary ruling action was previously authorized for the ECJ under article 234. In the Lisbon Treaty, the articles have been renumbered and the current article governing preliminary rulings is Article 267. Lisbon Treaty art. 267. 98. See discussion supra note 97.

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and immediate concern during the Framing Periodand one (although in a different aspect) that remains today.99 This observation about the American Supremacy Clause contains the same logic underlying the long held American principle that politics stop at the waters edge. When it comes to foreign powers, it is important that everyone is united so that the nation can maintain its position and power. However, if the EU enters into a treaty, and the United Kingdom, Germany, and France refuse to honor it, it would be nearly impossible for the EU to maintain its position. Admittedly, this may be an extreme and unlikely example, but here is a hypothetical analogy within the United States. Imagine that there was no Supremacy Clause written into the Constitution, and that each of the fifty states was able to enter into its own treaties in addition to and separate from the treaties that the federal government negotiated. It is not a stretch to think that Texas would want to negotiate very different treaties with Mexico from the ones Maine would negotiate. It is further reasonable to think that if the federal government then negotiated separate treaties with Mexico, with terms similar to the ones that Maine had negotiated, Texas would not be too keen to honor them. Texas would likely feel that the federal government had not adequately represented its interests. There is also an historical analogy, which needs no hypothetical, of how member states could react to treaties. During the Confederation era prior to ratification of the Constitution, many of the new American states refused to honor their treaty obligations under the Treaty of Paris.100 They were able to do so without immediate consequence, because the Articles did not provide that treaties were part of the supreme law of the land and binding on all states.101 It was only after the Framers discarded the Articles of Confederation and such provisions appeared in the new Constitution that this intransigence ceased.102 I offer this example to show how member states could potentially react to EU-negotiated treaties. It is not offered to suggest that the EU follow the U.S. paradigm and attempt to invalidate all existing treaties of the member nations, forcing them to comply fully and exclusively with EU treaties. However, when it comes to issues on which member nations have already negotiated treaties, if the EU negotiates new treaties on the
99. Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 GEO. L.J. 1885, 1898 (2005). 100. Id. at 1886-87. 101. Id. at 1899-1900. 102. Id.

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same issue, it would seem that the only way to adequately protect the EUs treaty power is to ensure that its treaties will at least be supreme to any existing treaties of the member nations and supersede those treaties. C. Treaty Interpretation, the ECJ, and the National Courts If the EU is to ensure the supremacy of its treaties, it must ensure their uniform interpretation and application. This will not only serve to maintain the power of the EU, but to assure third party nations that they can rely on the terms of the treaties into which they have entered. Traditionally, the EU has achieved uniformity of interpretation through the preliminary action. 103 However, when it comes to treaties, a more forceful, EU-centric method, requiring that the EU courts have exclusive original jurisdiction over any cases arising under treaties, might better serve the EU. This method would be similar to, but even more stringent than that of the United States.104 While Article III of the U.S. Constitution brings interpretation of treaties under the purview of the federal courts, there are instances where state courts interpret treaties collateral to the principal action before them. 105 However, even in these situations, the Supreme Court can still have the final say as to treaty interpretation because it can grant certiorari to review appeals on state court cases. This mechanism ensures uniformity of interpretation and result of U.S. treaties. The exact same model, however, would not work for the EU, because cases decided in the national courts of the member nations cannot be appealed to the courts of the EU. 106 Therefore, in order to ensure uniformity of interpretation and result in the EU, it is necessary that the courts of the EU have exclusive original jurisdiction.

103. Lisbon Treaty, supra note 3, art. 267. See, e.g., Case 6/64, Costa, 1964 E.C.R. 585. See also Simmenthal, 1978 E.C.R. 629; Factortame, 1990 E.C.R. I-02433. 104. U.S. CONST. art. III, 2, cl. 1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. Id. (emphasis added). The force of this provision as it applies to treaties is that the federal courts have original and appellate jurisdiction over cases arising under treaties. There are, however, instances where treaty interpretation comes up as a collateral matter in a case before the state courts. See, e.g., Sanchez-Llamas v. Oregon, 108 P.3d 573 (Or. 2005) (foreign national alleged a procedural violation of Vienna Convention to try to suppress evidence against him in attempted murder case). 105. See, e.g., Sanchez-Llamas, 108 P.3d at 574. 106. Robert A. Schapiro, Intersystemic Remedies for Governmental Wrongs, 41 U. TOL. L. REV. 153, 164 (2009).

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1. The Preliminary Ruling Action and Treaties The preliminary ruling is one of the most important judicial actions in the EU and has served to establish the uniformity and supremacy of EU law.107 The action typically arises when a national court of one of the member states is hearing a case that deals with an unclear area of EU law. 108 Rather than make its own determination as to the legal interpretation, the national court brings a preliminary ruling action before the ECJ, essentially certifying questions for an interpretation of the legal issues.109 The ECJ does not decide the case, it merely decides the law. 110 The national courts have been fairly diligent about bringing preliminary actions and deferring to the ECJ on legal issues.111 And it is this diligence which has allowed the ECJ to use its preliminary action rulings to ensure uniformity of interpretation throughout the EU and the supremacy of EU law. 112 However, the national courts are not always so inclined to defer to the ECJ, and there is a dearth of cases in which the national courts have taken it upon themselves to decide areas of EU law that have not always been clearly established.113 Given this fact, it does not seem that relying on national courts to bring a preliminary action on treaty matters on their own is the best way to ensure the uniformity and supremacy of those treaties. Some courts may decide they do not need the input of the ECJ and interpret a treaty differently from the rest of the member states of the
107. See supra note 97. 108. Christopher Smithka, From Budapest to Berlin: How Implementing Class Action Lawsuits in the European Union Would Increase Competition and Strengthen Consumer Confidence, 27 WIS. INTL L.J. 173, 183 (2009). 109. Id. 110. Id. 111. See, e.g., supra note 97. 112. Id. 113. See, e.g., Bundesfinanzhof [BFH][Federal Tax Court] June 11, 1997, X R 74/95 SAMMLUNG DER ENTSCHEIDUNGEN UND GUTACHTEN DES BUNDESFINANZHOFS [BFHE] 436, 1997 (Ger.) (arising in Germany over the tax treatment of schooling costs for the education of the plaintiffs son in England. Though this deals with tax matters between the member states, an area where an ECJ decision would seem appropriate, the German court concluded it did not need to file a preliminary action with the ECJ.); Bundesverfassungsgericht [BVerfG][Federal Constitutional Court] August 5, 1998, ENTSCHEIDUNGEN DES BUNDESVERFASSUNGERICHTS [BVerfGE] 728, 1998 (Ger.) (arising in Germany over a pension scheme for part time workers. Though the applicable EU law was not perfectly clear, the German court did not file a preliminary action and found against the plaintiffs.); S.T.S., April 27, 1998 (R.J., No. 3328) (Spain) (arising in Spain, where court said it was not for the ECJ to determine if national law was in accordance with Community (EU) law. Also held that EU provisions in question were sufficiently clear, despite no reference to guiding ECJ decisions.).

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EU. The problem is that this would not only prejudice EU citizens, but it could adversely affect third party nations, leaving them unable to rely on their treaties. One solution might be to mandate that the courts of the member nations bring a preliminary action for any case where interpretation of a treaty is implicated. This course of action is not without precedent. In Foto-Frost v. Hauptzollamt Lubeck-Ost,114 a lower national court attempted to invalidate an act of the European Commission with regard to import duties.115 The ECJ, however, ruled that national courts lacked the authority to overturn any EU action, and that they must bring a preliminary action before the ECJ in such an instance. 116 The ECJ ruled that only it had the exclusive jurisdiction to review and potentially invalidate acts of the EU.117 While following the Foto-Frost precedent and requiring the national courts to file a preliminary action with the ECJ for any case dealing with a treaty is certainly an option, it seems a bit unsatisfactory. Requiring that EU courts have exclusive original jurisdiction for cases arising under EU treaties seems to be a far better and more comfortable solution to ensure uniformity of interpretation and result regarding treaties. 2. Original Jurisdiction of EU Courts for Treaties The best option for the EU is to make the ECJ, or the EU courts in general, courts of first instance for cases arising under EU treaty provisions. Currently, the courts of the EU only have original jurisdiction for certain types of legal actions. 118 They have original jurisdiction over actions for annulment, 119 actions for failure of the EU to act, 120 actions for the failure of a member state to comply with EU laws, 121 and actions for a preliminary ruling.122 It is certainly conceivable that cases involving EU treaties could arise under these existing actions. One could readily imagine a scenario in which each of these actions could be a vehicle for a
114. Case 314/85, Foto-Frost v. Hauptzollamt Lubeck-Ost, 1987 E.C.R. 4199. 115. Id. 116. Id. 117. Paul R. Dubinsky, The Essential Function of Federal Courts: The European Union and the United States Compared, 42 AM. J. COMP. L. 295, 318-20 (1994). 118. Lisbon Treaty, supra note 3, art. 256. (This was article 225 in previous iterations of the Treaty Establishing the European Community (TEC)). 119. Id. art. 263 (formerly TEC art. 230provides for a challenge to the legality of an EU legislative action). 120. Id. art. 265 (ormerly TEC art. 232). 121. Id. art. 258, 259 (formerly TEC art. 226, 227). 122. Id. art. 267 (formerly TEC art. 234).

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case arising out of an EU treaty. However, they certainly cannot cover all treaty cases, especially if, as I suggest above, the national courts were to decline to avail themselves of the preliminary ruling action. A provision similar to one in the U.S. Constitution would ensure that the courts of the EU hear all treaty cases. 123 The U.S. Constitution explicitly states that the federal courts shall have jurisdiction over cases arising under treaties.124 Among other things, this provision ensures uniformity of interpretation of U.S. treaties. 125 Michael Van Alstine stated the reasons behind the provision are as follows: First, the delegation of exclusive control over treaty-making to the federal government ensures that the parochial concerns of the numerous and disparate state polities cannot frustrate the interests of the nation as a whole in matters of international diplomacy, trade, and commerce. Second, and of equal importance, the inclusion of treaties within the federal judicial power guarantees a final and authoritative federal voice in their domestic interpretation and application. 126 This quotation points to the most important reasons behind the decision of the founding fathers to keep treaties solely within the purview of the branches of the federal government. These same reasons justify a need for cases regarding EU treaties to be evaluated solely by the courts of the EU. To this point, no EU legislation has specified that EU courts would have original jurisdiction over it.127 Despite this fact, it would seem simple enough for the EU to include a clause in every treaty it concludes which specifically designates the EU courts as having original jurisdiction over that treaty. In the unlikely event that such a provision would overstep the powers of the EU, a requirement that the national courts always file a preliminary ruling action in treaty cases would seemingly fit nicely into the preexisting judicial powers of the EU. Either of these options would surely satisfy the reasoning of Van Alstine. 128 They would keep the disparate parochial interests of the member states at bay while providing for a final and authoritative
123. See supra note 104. 124. U.S. CONST. art. III, 2, cl. 1. 125. Van Alstine, supra note 99, at 1895-97. 126. Id. at 1897 (Footnote omitted). 127. I have conducted an extensive search of the EU database as well as law review and article databases. To the best of my knowledge, no EU law explicitly requires that it only be reviewed by the ECJ and the courts of the EU. 128. See Van Alstine, supra note 99.

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determination of the legal issues, promoting uniformity of result and application.129 They would achieve these goals, because there would essentially be one voice when it came time to make a decision. However, it seems that the best option is exclusive jurisdiction for the courts of the EU on treaty matters. And this will ensure uniformity and stability throughout the EU and with regard to the treaty interests of third party nations. 3. Third Party Nations and Legal Certainty As noted above, the implications of treaty interpretation as to the foreign entities that are parties to the treaty is paramount.130 Although giving the federal government of the United States the exclusive competency to conclude treaties was certainly significant, more important for present purposes was the new institutional mechanism the Framers created for the local enforcement of treaties . . . . [They] determined to confer on the federal courts the responsibility to ensure fidelity to the domestic-law incidents of the nations international treaty obligations.131 In other words, more important than the fact that the federal government concluded treaties was the fact that the federal courts had the final say on the interpretation of those treaties. 132 Third-party nations like the United States must certainly, then, have a vested interest in the manner by which the EU implements and interprets its treaties. One of the bedrock principles of international law and treaties is that parties to an agreement honor their obligations in good faith.133 And the manner by which an international actor implements and interprets its treaties is essential to honoring those obligations.134 Without a uniform, centralized method, it is doubtful that the EU can adequately uphold its end of the treaty bargains. But with one, third party nations would be assured that their interests were protected, have legal certainty as to the evaluation of those interests, and be free from the parochial whims of the member states.

129. Id. 130. Id. 131. Van Alstine, supra note 99, at 1900. 132. Id. An example of the dangers inherent in decentralized treaty interpretation was the fact that the several states, operating under the failed Articles of Confederation, refused to honor the Treaty of Paris, which concluded the Revolutionary War. Id. It was in direct response to this that the Framers put Article III into the Constitution, ensuring that the states would abide by the treaties of the United States. Id. 133. Id. at 1899-1900. 134. Id.

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While the Lisbon Treatys explicit grant of treaty-making power to the EU is nothing new in practice, its formality and definitive nature require that the EU address issues surrounding the new power. Questions will arise regarding the effect of treaties as to individuals and member nations, the relationship between EU treaties and the existing treaties of the member states, the uniform legal interpretation of the EU treaties, and the effect the answers to all these questions will have on foreign nations who are parties to the treaties. The EU can look to its legislative and judicial history for paradigms on how to deal with the direct effect and supremacy of EU treaties.135 However, when it comes to uniformity of interpretation and the effect on third-party nations, it seems that the EU would best be served by adopting a judicial treaty model consolidating all review of treaty cases to the courts of the EU. By giving the EU courts original and exclusive jurisdiction for matters arising under treaties, the EU can ensure uniformity of treaty interpretation and the strength and protection of its formal treaty power.136 This, in turn, will assure third-party nations that they will get what they bargained for in treaties with the EU. RICHARD L. MERPI II

135. See Van Alstein supra notes 87-99 and accompanying text. 136. See generally Van Alstein supra note 99.