K.U. Leuven
Faculty of Law
Institute for International Law
Working Paper No 7 - June 2001
The Legal Position of Federal States and their Federated
Entities in International Relations - The Case of Belgium
Jan Wouters and Leen De Smet
The Institute for International Law of the K.U.Leuven groups the teaching and research in
public international law and the law of international organisations at the Faculty of Law of
the University of Leuven. The Institute also organises colloquia, seminars, workshops and
lectures which bring current issues of international law to the fore.
The working paper series, started in 2001, aims at a broader dissemination of the results of
the Institute’s research in the academic community and in society. It contains both
contributions in Dutch and in English. Reference may be made to these working papers with
proper citation of source.
For more information and a complete list of available working papers, please visit the website
of the Institute for International Law on www.internationallaw.be
 Institute for International Law, K.U. Leuven, 2001
Institut for International Law K.U.Leuven
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Prof. Dr. Jan Wouters, Director
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THE LEGAL POSITION OF FEDERAL STATES AND THEIR FEDERATED
ENTITIES IN INTERNATIONAL RELATIONS – THE CASE OF BELGIUM
Prof. Dr. Jan Wouters* and Leen De Smet**
1. Introduction
In recent decades, State organisation in Europe, as well as on other continents, has witnessed
remarkable changes. In quite a number of countries, the traditional concept of the unitary
sovereign State has given way to systems of divided sovereignty, redistributing more and
more of State functions among decentralised authorities in the form of federated states1 or
autonomous regions. While this development involves a redivision of internal competences, a
trend towards the transfer or pooling of competences at the international level can also be
observed. Decentralised authorities are becoming more and more involved in the field of
foreign relations. Belgium, which since 1970 has evolved from a unitary State into a federal
State, is probably one of the most telling examples of this tendency.
The aim of this contribution is to examine, with the Belgian federal system as an example, the
role and position of federal States and their federated entities in international relations, and
how international law is responding to this evolution. It is argued that international law will
only be capable of governing international relations in an adequate and efficient way to the
extent that its norms find their roots in, and are adapted to, the social, political and structural
organisation of States and to the extent it is able to cope in a coherent manner with federated
entities of States which have been granted external competences.
After a short note on the concept of the federal State (2), three aspects of foreign relations
policy will be examined with regard to the federated states or entities of such a State: their
treaty-making capacity (3), their jus legati (4) and their representation in international
organisations (5). Finally, we will address the problems of responsibility in international law
and of standing before international courts (6).
2. The concept of “federal State”
Unlike the unitary concept of the State, which is based on the attribution of all sovereign
competences to one central authority2, the concept of “federal State” is mainly characterised
by a constitutional division of sovereign competences between the federal or central authority
on the one hand and the authorities of the federated entities on the other hand.3 The federated
*
Professor of International Law and the Law of International Organizations, Leuven University; of counsel, De
Bandt, van Hecke, Lagae & Loesch - Linklaters & Alliance, Brussels.
**
Assistant, Institute for International Law, Leuven University.
1
Throughout this contribution, when the term “State” is used with a capital “S”, it refers to a State within the
meaning of public international law; when reference is made to a “state” without a capital “S”, a state as a
federated entity within a State is meant.
2
A. Mast, “Elementaire bedenkingen bij het vraagstuk van de omvorming van de Belgische eenheidsstaat in een
federale staat”, Rechtskundig Weekblad (1961-1962), 2327; A. Alen, Handboek van het Belgisch Staatsrecht
(Kluwer Rechtswetenschappen, 1995), p. 320, para. 341.
3
R. Jennings and A. Watts (eds.), Oppenheim’s International Law, I (Longman, 1992, 9th ed.), 249; A. Alen,
Handboek van het Belgisch Staatrecht, p. 322, para. 345; A. Mast, Rechtskundig Weekblad (1961-1962), 2329;
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authorities can exercise their competences autonomously, without interference from the
central or federal authority. Other important characteristics of a federal State may be (i) the
existence of a constitutional court safeguarding the observance of the rules of competence,
(ii) the attribution of the residual powers to the federated entities and (iii) the participation of
the federated entities in the federal decision-making process.4 This list of characteristics is,
however, neither exhaustive nor imperative. In practice they almost never occur all together
in one system.5
As examples of federalism we would mention inter alia the constitutional system of
Australia, Canada, Germany, India, Russia, Switzerland and the U.S.A. Since 1993 Belgium
also belongs to this list, as a “federal State, made up of Communities and Regions”.6
3. Treaty-making capacity of federated entities in international law
3.1. General principle
The question of the treaty-making capacity of a State’s federated entities remains
controversial in international law. A number of authors have stated that the conclusion of
treaties is the prerogative of the federal State and that federated entities, whenever they
conclude treaties, are only acting on behalf of, i.e. as agents of, the federal State. Since only
the latter possesses international legal personality, it is considered to be the entity bound by
the treaty and responsible for its implementation.7 The defenders of this so-called “organ
theory” underpin their view mainly with two arguments. First of all, they refer to Articles 1
and 6 of the Vienna Convention on the Law of Treaties of 23 May 1969 (hereinafter the
“Vienna Convention”), which deal with the treaty-making power of States under international
law.8 Article 6 only refers to “States” as possessing the capacity to conclude treaties. No
direct or indirect reference is made to federate entities within States. Secondly, these authors
invoke the traditional legal principle of sovereignty. Only States as such can be subjects of
international law; since they alone have full and indivisible sovereignty, any attribution of
treaty-making power to federated entities would be an unacceptable impairment of
sovereignty.
One may wonder, firstly, whether these arguments are fully correct as far as the Vienna
Convention is concerned and, secondly, whether they are not surpassed by contemporary
M.N. Shaw, International Law (Cambridge University Press, 1997, 4th ed.), 155; J. Vande Lanotte, Inleiding tot
het publiekrecht, II (Die Keure, 1997), 184.
4
A. Alen, Handboek van het Belgisch Staatsrecht, p. 323-324, para. 347; J. Vande Lanotte, Inleiding tot het
publiekrecht, II, 185.
5
K. Lenaerts, “Federalism: essential concepts in evolution - the case of the European Union”, 21 Fordham
International Law Journal (1998), 746.
6
Article 1 Coordinated Constitution of Belgium of 17 February 1994 (Moniteur belge, 17 February 1994,
Second Edition), hereinafter the “Belgian Constitution”. References to an earlier version of the Belgian
Constitution are indicated explicitly.
7
See inter alia G.G. Fitzmaurice, Third Report on the Law of Treaties, Yearbook International Law
Commission (1958), II, 24; H. Kelsen, Principles of International Law (Rinehart & Company, 1959, 3rd ed.),
170-171; H. Waldock, First Report on the Law of Treaties, Yearbook International Law Commission (1962), II,
36; L. Wildhaber, Treaty-Making Power and Constitution: an International and Comparative Study, (Helbing &
Lichtenhahn, 1971), 261; I. Brownlie, Principles of Public International Law (Clarendon Press, 1998, 5th ed.),
59-60. More specifically for Belgium, see G. Craenen, De Staatsrechtelijke regeling van aanvaarding en
invoering van verdragen in België (Tjeenk Willink, 1996), 30; Y. Lejeune, “Le droit fédéral belge des relations
internationales”, Revue Générale de Droit International Public (1994), 578, at 586-587.
8
8 International Legal Materials (1969) 679.
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practice and recent developments in international law. First of all, it should be recalled that
the capacity of federated entities within States to conclude treaties was explicitly recognised
in Article 5.2 of the final draft of the International Law Commission (hereinafter the “ILC”),
according to which “states members of a federal union may possess a capacity to conclude
treaties if such a capacity is admitted by the federal constitution and within the limits there
laid down”.9 Although this provision was not incorporated in the final text because of serious
Canadian reservations10, its deletion should not at all be seen as a rejection of the treatymaking capacity of federated entities.11 As a matter of fact, the criticism by Canada did not
question the principle as such, but rather the brief, imperfect and unsatisfactory way in which
it was proposed to deal with it. Moreover, the final conclusions of the preparatory discussions
with regard to draft Article 5.2 confirm explicitly that no rule of international law is opposed
to the treaty-making power of the federated entities in a federal union.12 Article 6 of the
Vienna Convention should therefore not be read in such a way as to prevent federated entities
from concluding treaties.
Moreover, Article 3 of the Vienna Convention itself explicitly recognises the treaty-making
capacity of other “subjects of international law”, meaning all entities having international
legal personality. The latter notion is defined by the International Court of Justice in its
Reparation for Injuries Advisory Opinion as the capacity to be the bearer of rights and duties
under international law.13 Although States may still be seen as the primary subjects of
international law, this status is nowadays no longer exclusively reserved to them.14 The idea
that non-sovereign entities can also be endowed with international legal personality was, for
instance, accepted in Reparation for Injuries for international organisations. Furthermore, the
Court’s statement that “the subjects of law in any legal system are not necessarily identical in
their nature or in the extent of their rights, and their nature depends upon the needs of the
community” opens the door for the recognition of other actors, including federated entities of
States, as international legal persons. We will revert to this point below (infra, 6.1.c).
Whether federated entities have such international legal personality depends on two
fundamental conditions: one of domestic law, namely the constitutional attribution of
9
Yearbook International Law Commission (1966), II, 191-192; H. Steinberger, “Constitutional subdivisions of
states or unions and their capacity to conclude treaties. Comments on Art. 5.2 Para. 2 of the ILC’s 1966 Draft
Articles on the law of the treaties”, Zeitschrift für Ausländisches Offentliches Recht und Völkerrecht (1967),
411-428.
10
United Nations Conference on the Law of Treaties, Second Session, Vienna, 9 April - 22 May 1969, Official
Records (United Nations, 1970), 6-7.
11
W. Pas, “De internationale bevoegdheid van gemeenschappen en gewesten”, Jura Falconis (1989-90), 354; F.
Ingelaere, “De nieuwe wetgeving inzake de internationale betrekkingen van de gemeenschappen en de
gewesten”, Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1993), 811; L. Van Den Brande, “The
international legal position of Flanders: some considerations” in K. Wellens (ed.), International Law: Theory
and Practice. Essays in honour of Eric Suy (Kluwer Law International, 1998), 151.
12
A. Beirlaen, “Het legatierecht van deelstaten van federale staten. Theorie en praktijk”, Tijdschrift voor
Bestuurswetenschappen en Publiekrecht (1984), 324; I. Bernier, “ASIL/CCIL Joint panel on the conduct of
international relations in federal states”, ASIL Proceedings (1991), 136; W.J. Ganshof Van Der Meersch and R.
Ergec, “Les relations extérieures des états à système constitutionnel régional ou fédéral”, Revue de droit
international et de droit comparé (1986), 303.
13
International Court of Justice, Reparation for injuries suffered in the service of the United Nations, Advisory
Opinion of 11 April 1949, I.C.J. Reports (1949), 179.
14
W.J. Ganshof Van Der Meersch and R. Ergec, Revue de droit international et de droit comparé (1986), 302.
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international competences to a federated entity; and one of international law, namely the
recognition of the federated entity by other existing subjects of international law.15
First of all, treaty-making power of the federated entities should be recognised under the
federal constitution. Two remarks should be made in this regard. Firstly, this condition is
rather the expression of the principle of sovereignty than a denial of it: international law
leaves it to every State to decide whether and to which extent it attributes competences in the
international field to its federated entities. The right of federated entities to conclude treaties
must thus first be examined on the basis of the federal constitutional provisions.16 This socalled “renvoi” mechanism whereby international law refers to domestic law, was already
used in the aforementioned ILC draft Article 5.2.17 Secondly, this condition implies that the
international legal personality of the constituent entity will be partial, functional and
potential18: potential, because it needs constitutional permission, partial and functional
because otherwise organisation of the State goes beyond the concept of federalism.
A constitutional provision by itself, however, is not enough to create treaty-making power for
a federated entity. The capacity to enter into treaties also depends on recognition by other
subjects of international law.19 The latter need to express their willingness to deal with the
new subject as a member of the international community. It would indeed be unacceptable to
leave a problem with such significant implications for international law solely in the hands of
the domestic legislation.20
There is some disagreement about the exact meaning of this condition.21 Some authors,
following the “constitutive” theory, consider recognition to be a necessary requirement for
obtaining international legal personality. Today, however, the more accepted view is that
recognition is a practical consequence of international legal personality, rather than a
precondition for it.22 According to this “declaratory” view, recognition is a matter of fact and
practical relevance, rather than a theoretical legal condition.23 Be that as it may, the formal
constitutional attribution of treaty-making power to federated entities will only become an
effective and meaningful reality if other subjects of international law are prepared to enter
into relations with them.24
15
See G.J. Perrin, Droit international public. Sources, sujets, caractéristiques (Schulthess, 1999), 562; J.
Salmon, “Conclusions”, in Les Etats fédéraux dans les relations internationales (Bruylant, 1984), 505, at 507.
16
Advisory Opinion of the Council of State – Proposition of Special Law on the international relations of the
Regions and Communities, Documents parlementaires, Chamber of Representatives, Special Session, 1991-92,
Nr. 457-2, 15-17; W. Pas, Jura Falconis (1989-90), 350-352; R. Ergec, “La troisième phase de la réforme de
l’état et les compétences internationales”, Revue de Droit de l’U.L.B. (1990), 54; B.R. Opeskin, “Federal States
in the International Legal Order”, Netherlands International Law Review (1996), 353, at 366; L. Van Den
Brande, in International Law: Theory and Practice, 151-152.
17
A. Alen and P. Peeters, “Federal Belgium within the international legal order: theory and practice”, in
International Law: Theory and Practice, 135-136.
18
A. Beirlaen, “De internationale betrekkingen en de derde fase van de staatshervorming. Proeve van
oplossing”, Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1990), 339.
19
See the same references as mentioned supra note 14.
20
M.N. Shaw, International Law, 157.
21
R. Wallace, International Law (Sweet & Maxwell, 1997, 3rd ed.), 80.
22
W. Pas, Jura Falconis (1989-90), 353; P. Malanczuck, Akehurst’s Modern Introduction to International Law
(Routledge, 1997, 7th ed.), 84; T. Hillier, Principles of Public International Law (Cavendish publishing limited,
1999, 2nd ed.), 98.
23
R. Wallace, International Law, 80-81.
24
It has been argued, somewhat boldly, that the international recognition of a federal State entails the
recognition of the federal constitution and the allocation of external competences laid down therein: see F.
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3. 2. Treaty-making power of the Belgian Communities and Regions
3.2.1. General
The Belgian Communities and Regions seem to fulfil both of the aforementioned criteria for
international legal personality.25
a. Constitutional recognition
i. General
The recognition of the Belgian federated treaty-making capacity as it exists today is the result
of a long process, which is inextricably linked, with the evolution of Belgium from a unitary
to a federal State. Under the first reform of the State in 1970, three Communities (the
Flemish, French and German-speaking Communities) and three Regions (the Flemish and
Walloon Regions and the Brussels Capital Region) were established. Whereas the Regions
were endowed with certain competences in the economic sphere, the Communities were
vested with certain competences in the area of culture and education, including international
cooperation in these fields.26 Since 1978, treaties dealing with those matters have no longer
required approval by the national government, but rather approval by the French or Flemish
Community Council involved.27 In 1980 treaties concerning “personal issues”28 were added
to this list, and in 1983 the same power to approve was given to the German-speaking
Community. Formally, however, the power to enter into a treaty remained the prerogative of
the King, i.e. of the national government. This situation only changed with the third reform of
the State in 1988, whereby the capacity of the Communities to enter into treaties within the
scope of their competences was recognised.29 However, for quite a while this capacity
remained theoretical, since the Special Majority Law, necessary to make the treaty-making
power operational and effective, never saw the light of day. The final and decisive step was
taken with the fourth reform of the State in May 1993. As part of this reform, which aimed at
giving more autonomy to the federated entities, the legal basis for Community and - for the
Ingelaere, Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1993), 811, with reference to J.-Y. Morin,
“La conclusion d’accords internationaux par les provinces canadiennes à la lumière du droit comparé”,
Canadian Yearbook of International Law (1965), 146-147. This may be a bridge too far: international
recognition rather implies the acceptance of a State’s position within the international community and the
possession by it of the full range of rights and obligations of States in international law (R. Jennings and A.
Watts (eds.), Oppenheim’s International Law, I, 158); it seems difficult to sustain that by itself such recognition
also implies a recognition of the external competences of the federated entities of the State concerned.
25
A. Alen, J. Clement, W. Pas, P. Peeters and J. Van Nieuwenhove, “Het federale België in de gecoördineerde
grondwet van 17 februari 1994”, Rechtskundig Weekblad (1993-94), 1352; L. Van Den Brande, in International
Law: Theory and Practice, 152; A. Alen and R. Ergec, Federal Belgium after the fourth state reform of 1993,
(Belgian Ministry of Foreign Affairs, 1998), 18. For a contrary view, see Y. Lejeune, Revue Générale de Droit
International Public (1994), 586; G. Craenen, De Staatsrechtelijke regeling van aanvaarding en invoering van
verdragen in België, 30.
26
Article 59bis, § 2, Belgian Constitution of 1970.
27
Special Law of 20 January 1978 (Moniteur belge, 25 January 1978).
28
These are the matters described in Articles 128, § 1, and 130, § 1, of the Constitution, and further elaborated
in Article 5, § 1, of the Special Law of 8 August 1980 on Institutional Reform (Moniteur belge, 15 August 1980,
as amended), falling within the scope of competence of the Communities. They involve most aspects of health
policy and assistance to persons, from disabled persons to elderly.
29
Articles 59bis and 59ter Belgian Constitution in its version of 1988 (Moniteur belge, 19 July 1988).
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first time also - Regional treaty-making power was finally established.30 Other, related aims
of the 1993 reform were to eliminate the “democratic deficit” (i.e. the lack of parliamentary
control over treaty-making by governments) and to guarantee the cohesion of Belgium’s
external relations.31
The aim of giving more autonomy to the federated entities has been realised by very strict
parallelism in the distribution of powers at the internal and the international level, the socalled “in foro interno, in foro externo” principle, leading to exceptionally far-reaching
competences in the field of external relations for the federated entities on the one hand, and a
form of cooperative federalism on the other hand.
Pursuant to Article 167, § 1 of the Constitution, “the King manages international relations”.
However, this competence is “without prejudice to the ability of Communities and Regions to
engage in international cooperation, including the signature of treaties, for those matters
within their responsibilities as established by the Constitution and in virtue thereof.” Reading
this paragraph together with the second and third paragraphs of the Article makes it clear that
the King, i.e. the federal government, can conclude treaties related to subjects not falling
within the scope of the competences of a Community or Regional Council. In the latter areas,
treaty-making competences are attributed to the Community and Regional Governments. In
other words, the Constitution extrapolates the internal allocation of powers to the
international level in a parallel fashion: the King, each Community and each Region can
conclude treaties related to matters falling within their respective legislative competences.32
This “in foro interno, in foro externo” principle has very far-reaching consequences. It
implies a prohibition on the federal government against concluding treaties related to matters
falling within the exclusive competences of the federated entities.33 No other constitution in
the world is as progressive and radical on this point: although the majority of federal States
allow their federated entities to enter into treaties, this capacity is in most cases either
restricted to limited fields of internal competences34, subject to restrictive conditions or
30
Article 167, §§ 2 and 3, Belgian Constitution.
Documents parlementaires, Senate, Special Session, 1991-92, No. 100/16/2, 4-5.
32
It is accepted that this treaty-making power is not attributed to the Joint Community Commission, i.e. the
authority competent for Community matters common to both the Flemish as the French Communities in the
Brussels Capital Region. However, in case of the French Community Commission, i.e. the authority competent
for Community matters falling exclusively within the competence of the French Community, a certain treatymaking power could exist, where competences within the meaning of Article 138 of the Constitution are
concerned: see G. Craenen, “België en het buitenland. De nieuwe regeling van de buitenlandse betrekkingen”, in
A. Alen and L.P. Suetens (eds.), Het federale België na de vierde staatshervorming. Een commentaar op de
nieuwe Grondwet en haar uitvoeringswetten (Die Keure, 1993), 59, 65; J. Van De Lanotte, Inleiding tot het
publiekrecht, 675, footnote 2244.
33
See the Code of Conduct for the Conclusion of Treaties concerning Matters for which the Flemish Council is
Competent, approved by the Flemish Government on 15 December 1993, chapter 1 (reproduced in Dutch in J.
Wouters, Bronnenboek Internationaal Recht, Intersentia, 2000, 27); A. Alen, J. Clement, W. Pas, P. Peeters and
J. Van Nieuwenhove, Rechtskundig Weekblad (1993-94), 1351; Y. Lejeune, Revue Générale de Droit
International Public (1994), 591; L. Le Hardy De Beaulieu, “Fédéralisme et relations internationales en
Belgique” Revue Internationale de Droit Comparé (1994), 827.
34
Pursuant to Article 56(1) of the new Swiss Constitution (which entered into force on 1 January 2000) the
Cantons may conclude treaties with foreign countries within the scope of their powers. This attribution is,
however, subject to important constraints. In the first place, Article 56(2) explicitly stipulates that these treaties
may not be contrary to the law nor to the interests of the Confederation nor to the laws of other Cantons.
Secondly, since foreign relations are a federal matter (Article 54(1)), the Confederation has an unlimited
competence to conclude treaties. In other words, the federal government can even enter into treaties on matters
for which the Cantons have treaty-making power (L. Wildhaber, Treaty-Making Power and Constitution, 315),
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32
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severe federal control35, or limited to a certain form of cooperation with the federal
authorities.36
though Article 54(3) of the Constitution requires the Confederation to take into consideration the powers of the
Cantons and to protect their interests. Thirdly, the Swiss Cantons may in their relationships with foreign States
only deal directly with lower-ranking foreign authories; in other cases, the relations of the Cantons with foreign
States have to be conducted by the Confederation acting on their behalf (Article 56(3) Swiss Constitution). See
also F.L.M. Van De Craen, “The Federated State and its Treaty-Making Power”, Revue Belge de Droit
International (1983), 377, at 405. Fourth, it is possible for the federal government or another Canton to raise an
objection against a treaty between a Canton and a foreign State; in that case, the Federal Parliament has to
decide whether or not to approve the treaty (Article 172(3)). See, based on the previous version of the
Constitution, L. Wildhaber, “Rapport Suisse”, Revue Belge de Droit International (1983), 119, at 123. In
practice, however, this strict constitutional system is qualified by a number of unwritten customs and
agreements. In practice, the federal government prefers not to act within the scope of the cantonal treaty-making
powers and will consult with the Cantons: see J.H.H. Weiler, The Constitution of Europe (Cambridge University
Press, 1999), 158. Approximately 140 treaties concluded by Cantons with foreign States are nowadays in force:
G.J. Perrin, Droit international public, 566.
35
Article 32(1) of the German Basic Law provides that relations with foreign States are a responsibility of the
Federation. This makes the federal government competent to conclude treaties in relation to subjects over which
it has exclusive jurisdiction as well as concurrent jurisdiction (L. Wildhaber, Treaty-Making Power and
Constitution, 303 ; J.H.H. Weiler, The Constitution of Europe, 156). Nevertheless, the same Article grants some
competences in this field to the German states (Länder) as well. Pursuant to Article 32(2), the states have to be
consulted in time before the conclusion, by the federal government, of a treaty affecting the special
circumstances of this state. Furthermore, a conditional autonomous treaty-making power is attributed to the
states by Article 32(3) of the Basic Law: states may, insofar as they have power to legislate on a given subject,
conclude treaties with foreign States, if the federal government consents thereto. It should be noted, however,
that the notion of "power to legislate" has to be interpreted in a restrictive way. So the German states are only
allowed to conclude treaties in relation to subjects which fall within concurrent legislative powers insofar as the
federal government has not yet used its treaty-making power in this field: L. Wildhaber, Treaty-Making Power
and Constitution, 303. In addition, the constitutional allocation of powers leaves unanswered the question as to
whether the treaty-making power of the German states with respect to matters for which they have exclusive
powers to legislate precludes the federal government from concluding treaties concerning these matters (F.L.M.
Van De Craen, Revue Belge de Droit International (1983), 410 ; I. Seidl-Hohenveldern, "Rapport Allemand",
Revue Belge de Droit International (1983), 110, at 111). At the theoretical level, the question is answered in no
less than three different ways (L. Wildhaber, Treaty-Making Power and Constitution, 303; J.H.H. Weiler, The
Constitution of Europe, 157). The German states, followed here by the so-called federalist school, claim in this
regard an exclusive treaty-making capacity. The "centralists" and the federal government, on the other hand,
defend a concurrent capacity of the federal authorities. A third and middle-of-the-road position lets the
determination of the competent authority depend on the nature of the treaty in question. According to this view,
treaties of a political nature are reserved solely to the federal governement, even if they deal with matters falling
within the exclusive legislative powers of the German states. The argument for this is that in some cases the
political impact of the treaty could be so significant to the German Federal State at large that its conclusion by
an individual state would be unacceptable or even unconstitutional. Only in 1957, as a result of the Concordat
case (6 Entscheidungen des Bundesverfassungsgerichts, 1957, 309), the issue found a practical solution in the
so-called "Lindau compromise" (L. Wildhaber, Treaty-Making Power and Constitution, 308; L. Di Marzo,
Component Units of Federal States and International Agreements (Sijthoff & Noordhoff, 1980), 35; F.L.M. Van
De Craen, Revue Belge de Droit International (1983), 411; I. Seidl- Hohenveldern, Revue Belge de Droit
International (1983), 111). In this gentlemen’s agreement, the German states relinquished the right to enter into
treaties of predominantly federal concern to the federal government and promised to cooperate in the
implementation of those treaties. In return for this concession, they obtained the assurance that no such treaties
would be concluded without their approval. So, although this agreement has certainly limited the scope of
Article 32(3) of the Basic Law, the German states maintain an unmistakable influence in the treaty-making
process.
36
Unlike the examples mentioned in the previous footnotes, the Australian Constitution does not provide for any
international capacity for the Australian states (see L. Prott, "Rapport Australien", Revue Belge de Droit
International (1983), 29, at 30). It gives plenary treaty-making powers in this field to the federal authorities,
and the use of these powers is only restricted by the requirement of conformity with the Constitution (see L.
Wildhaber, Treaty-Making Power and Constitution, 297; J.H.H. Weiler, The Constitution of Europe, 152).
However, as in Switzerland, this strict constitutional rule was softened in practice. Various forms of cooperation
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The treaty-making power of the federal and federated authorities in matters falling within
their internal scope of competence has to be interpreted broadly. It covers the entire treatymaking process, from the initiative to conclude a treaty, to the negotiations and signing and
approval by their respective parliaments, and on through to ratification.37 The procedure to be
followed by the Community or Regional Government is, as prescribed by Article 167, § 4, of
the Constitution, set out in Article 81 of the Special Law on Institutional Reform of 8 August
198038 (see infra, 5).
In practice, an absolute application of the “in foro interno, in foro externo” principle is
impossible. A complete separation of the federal and federated policy levels is neither
possible nor desirable. Since treaties very often deal with subjects going beyond the exclusive
scope of competences of a certain authority and therefore have a “mixed” nature, vertical
cooperation (between federal and federated authorities) and horizontal cooperation (between
the federated authorities inter se) are essential.
ii. Vertical cooperation in treaty-related matters
In Belgium, vertical cooperation in treaty-making matters is ensured by a Cooperation
Agreement of 8 March 1994 between the Federal State, the Communities and the Regions on
the procedure to be followed for the conclusion of mixed treaties.39 The main lines of the
agreement can be summarised as follows.
The initiative to start negotiations for the conclusion of a mixed treaty can be taken by the
federal government or by one of the federated entities. Whereas the former must immediately
inform the Inter-Ministerial Conference on Foreign Policy (hereinafter “ICFP”) – which
consists of representatives of the federal government and the governments of the federated
entities - of such an intention40, the latter must refer the matter to the ICFP with a request that
the federal government take steps to that end.41 If all parties are prepared to enter into the
proposed negotiations, the ICFP, acting on a proposal of its working party on mixed treaties,
must decide within 60 days whether the treaty is a mixed treaty and will determine the
between the federal government and the states have developed. In the first place, an internal agreement by the
Australian Premiers’ Conference of 1977 provided that states would be consulted concerning treaties having
implications for matters within the competence of states. Secondly, representatives of the states are included in
negotiating delegations. Thirdly, the federal government has undertaken to seek to introduce, wherever relevant,
a federal clause in such treaties or the insertion of a "federal reservation" in the ratification of such treaties (see
on these techniques, infra, 3.3.1). See J.H.H. Weiler, The Constitution of Europe, 150; Id., "External Legal
Relations of Non-Unitary Actors: Mixity and the Federal Principle" in D. O’Keeffe and H.G. Schermers (eds.),
Mixed Agreements (Kluwer Law & Taxation, 1983), 35, at 52.
37
Documents parlementaires, Senate , Special Session, 1991-92, No. 100/16-1, 4.
38
Supra note 28.
39
Moniteur belge, 17 December 1996. For the English version of this agreement, see A. Alen and R. Ergec,
Federal Belgium after the Fourth State Reform of 1993 (Ministry of Foreign Affairs, External Trade and
Development Cooperation, 1994), 57. Pursuant to Article 167, § 4 of the Belgian Constitution, a Special
Majority Law had to determine the procedure regulating the conclusion of mixed treaties. However, Article
92bis, § 4 of the Special Law on Institutional Reform (supra note 28) delegated this task to the federal
government, the Communities and the Regions by obliging them to conclude a cooperation agreement on this
matter. The ensuing Cooperation Agreement is therefore an example of the increasing “deconstitutionalisation”
of Belgian public law. See on this phenomenon K. Rimanque and J. Wouters, De betekenis van de Grondwet
voor de Europese rechtsorde (Tjeenk Willink, 1998), p. 8-9, para. 3.
40
Article 1, first para., Cooperation Agreement of 8 March 1994.
41
Article 1, third para., Cooperation Agreement of 8 March 1994.
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10
composition of the Belgian delegation and the position to be taken for the purpose of the
negotiations.42
The actual conduct of treaty negotiations is coordinated and directed by the federal Ministry
of Foreign Affairs, but all representatives of the different authorities concerned negotiate on
an equal footing.43 Once agreement is reached, the mixed treaty is signed by the Minister for
Foreign Affairs (or his representative) and by the Minister appointed by the Government of
the Community (Communities) or Region(s) concerned (or a representative).44 Like treaties
concluded by the federal, Community or Regional governments solely, mixed treaties only
take effect after approval by the parliamentary bodies concerned, namely the Federal Houses
of Parliament and, depending on the subject, the Community and/or Regional Councils.
Although the Cooperation Agreement thus establishes the principle of co-signing, this
working method was not accepted by international organisations and other signatories of
treaties.45 Therefore the ICFP approved the possibility of one single signature, provided this
signature is given, either in the name of all the authorities concerned or in the name of the
Kingdom of Belgium but with reference to all other entities involved under the signature.
Also accepted is a signature in the sole name of the Kingdom with deposition of a declaration
in which all the entities bound thereby are enumerated46, or a signature in the name of the
Kingdom without any declaration. 47
Every Community or Region remains free to decide whether or not to take part in
negotiations. In the latter case, they shall notify the ICFP within 30 days of this decision, so
that the ICFP in its turn can inform the Minister of Foreign Affairs, who shall inform the
foreign party that the Community or Region in question does not envisage taking part in the
negotiations at this stage.48 If the other participating parties come to an agreement, the
Community or Region which has not taken part in the negotiations remains entitled to sign but not to amend - the final treaty instrument. If it does not sign, the Belgian negotiators must
inform the foreign party of that Community's or Region's reservation49, meaning that the
treaty will not have effect in every part of the Belgian territory. If the treaty is subsequently
signed, Belgium will make a reservation concerning the treaty’s application on its territory.50
The fact, therefore, that one Community or Region is opposed to a mixed treaty cannot,
theoretically at least, prevent the treaty coming into being. It should nevertheless be taken
into account that the use of federal clauses and related techniques tends to encounter a certain
reluctance at the international level (infra, 3.3.1.a).
42
Article 4 Cooperation Agreement of 8 March 1994.
Article 5 Cooperation Agreement of 8 March 1994.
44
Article 8 Cooperation Agreement of 8 March 1994.
45
A. Alen and P. Peeters, in International Law: Theory and Practice, 127.
46
See, for example, the Declaration which accompanies the signature of the Treaty of Amsterdam (O.J., 1997, C
340, 81): "For his Majesty the King of Belgium, ... This signature also engages the French Community, the
Flemish Community, the German-speaking Community, the Flemish region, the Walloon Region and the
Brussels Capital Region." See also the statement made by Belgium regarding the signing of international
agreements to be concluded jointly by the EC and its Member States (O.J., 1995, C 157, 1).
47
See, for the five options approved by the ICFP on 17 June 1994 and for examples of their use, F. Standaert,
Buitenlandse betrekkingen in de federale staat België. Analyse en kritiek (Nevelland, 1995), 83-87.
48
Article 2, paras. 1 and 2, Cooperation Agreement of 8 March 1994.
49
Article 2, paras. 3 and 4, Cooperation Agreement of 8 March 1994.
50
A. Alen and P. Peeters, in International Law: Theory and Practice, 128.
43
32
11
Once all the parliamentary assemblies concerned have given their assent, the Minister for
Foreign Affairs will have Belgium’s instrument of ratification or accession drawn up and
submitted to the King for signature.51 Finally, the text of the treaty together with the assenting
law will be published in the Moniteur belge (Belgian State Gazette)52 and the treaty will be
registered with the UN pursuant to Article 102 of the UN Charter.53
All mixed treaties shall be denounced by the King, on the initiative of the federal or the
Community or Regional authority, provided all parties concerned give their approval to this
denunciation within the framework of the ICFP.54
iii. Horizontal cooperation in treaty-related matters
The aforementioned Cooperation Agreement does not provide for a horizontal cooperation
procedure. The official commentary to the Agreement makes it perfectly clear that only the
simultaneous presence of elements of federal matters on the one hand and regional or
Community matters on the other hand within the same treaty can qualify the latter as a mixed
treaty within the meaning of the Agreement.55 As a consequence, treaties the mixed character
of which consists in the combination of matters falling within the scope of competence of
Communities on the one hand and Regions on the other hand do not fall within the scope of
application of the Agreement. To solve this problem, a separate cooperation agreement
should be concluded between Communities and Regions.56 In the absence thereof, treaties
which are mixed, in the sense that they require the signature and consent of the three
Communities and/or Regions, theoretically require distinct ratification by each of the entities
concerned.57 However, multilateral fora may require a more coordinated approach and an
international organisation may require ratification by the federal authority. This was, for
instance, the case with the ratification by Belgium of the UNESCO Convention Concerning
the Protection of the World Cultural and Natural Heritage.58
b. Recognition by other States
The second requirement, namely the recognition by other States, also seems to be fulfilled.
Several foreign States have concluded treaties with the Belgian Regions as well as with the
Communities, which can be considered to be implicit recognition of these federated entities
by those States.59 Admittedly, the Belgian constitutional system paves the way for
recognition by implicitly forbidding the federal government from operating in the field of
51
Article 12 Cooperation Agreement of 8 March 1994.
Article 14 Cooperation Agreement of 8 March 1994.
53
Article 15 Cooperation Agreement of 8 March 1994.
54
Article 17, Cooperation Agreement of 8 March 1994.
55
Point 4 in fine of the Clarification to the Cooperation Agreement.
56
A. Alen and P. Peeters, in International Law: Theory and Practice, 126.
57
Ph. Gautier, "La conclusion des traités", Revue Belge de Droit International (1994), 31, at p. 44, para. 31.
58
International Legal Materials (1972); approved in 1994 by the three Regions and by the German-speaking
Community and ratified by Belgium on behalf of these four entities on 24 July 1996 (Moniteur belge, 6
November 1996).
59
See, for example, Treaty between the Flemish Community of the Kingdom of Belgium and the Kingdom of
the Netherlands on the cooperation on matters of culture, education, science and social welfare, 17 January 1995
(Moniteur belge, 23 May 1996); Treaty between the Flemish Government and the Government of the Republic
of South-Africa on the cooperation on matters of education, art, culture, science, technology, and sports, 28
October 1996 (Moniteur belge, 17 March 1998); Cooperation agreement between the Government of the
Republic of Bolivia, the Government of the French Community in Belgium and the Government of the Walloon
Region, 18 May 1999 (Moniteur belge, 5 April 2000).
52
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12
federated competences. Should other States wish to conclude a treaty with Belgium relating
to one of these matters, they are forced to deal with the competent federated entity itself:
either they recognise the latter, or there will be no treaty.60
c. Summary of findings
From the foregoing we can conclude that the Belgian Communities and Regions can enter
into treaties, and that they can do so as autonomous subjects. Their capacity to conduct such
far-reaching federated external relations has attracted some criticism, though. It has been
suggested that this system goes too far to be reconcilable with the federal principles accepted
under international law. It is said to give the impression that Belgian Communities and
Regions are sovereign States, thus paving the way for secession.61 The complexity of the
system and the risk of undermining the cohesion of Belgium’s external relations are also
cited.
Although we agree that the Belgian approach challenges the traditional concept of federalism,
in which the federation is in charge of conducting foreign policy, we do not accept the view
that it crosses the line of what is possible under international law. Firstly, from the
perspective of State sovereignty, only the federal State itself has the right to decide whether
and to which extent it allows its federated entities to participate at the international level.
Furthermore, even though the Belgian system of external relations may tend more towards a
confederation, it does not amount, for the time being, to the creation of a new Flemish or
Walloon “State”. Although the federated entities fulfil the criteria of a defined territory, a
population, and a government, with broad legislative and executive powers62, they cannot be
equated with States in terms of international law, since they are not independent or sovereign
within the meaning of international law.63 In addition, as the federated treaty-making power
remains partial and limited to the constitutional attribution, it may be doubted whether the
federated entities can be considered as having full capacity to enter into relations with other
States.64 Furthermore, the federated entities are not given an active or passive jus legati
(infra, 4), locus standi before international courts (infra, 6.2) or a structural possibility to
participate in international organisations (infra, 5). Altogether the Belgian State structure can
probably best be seen as a federation sui generis, which corresponds with a social and
political reality and in this sense serves to guarantee the survival of the Belgian State. In this
60
F. Ingelaere,Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1993), 811.
F. Dumon and W.J. Ganshof Van Der Meersch, "Een federale Staat ... ja ... maar ...", Rechtskundig Weekblad
(1993-1994), 98.
62
See on these three criteria for statehood inter alia I. Brownlie, Principles of Public International Law, 70-77.
P. Malanczuk, Akehurst’s Modern Introduction to International Law, 75-82.
63
Cf. Opinion Nr. 1 of 29 November 1991 of the Arbitration Commission of the EC Conference on Yugoslavia
(92 International Law Reports, 162): "the State is commonly defined as a community which consists of a
territory and a population subject to an organized political authority; that such a State is characterized by
sovereignty". As is known, the notion of "sovereignty" has been aptly defined by Max Huber in his arbitral
award in the Island of Palmas Arbitration (Netherlands v U.S.A.) of 4 April 1928, Reports of International
Arbitral Awards, II, 829: "Sovereignty in the relation between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions
of a State."
64
This criterion (which finds expression inter alia in Article 1 of the Montevideo Convention on Rights and
Duties of States) is, however, not generally acccepted as necessary for there to be Statehood. See, for instance,
P. Malanczuk, Akehurst’s Modern Introduction to International Law, 79-80.
61
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13
sense too, the Belgian federal system is in conformity with contemporary international law,
which can be said to prefer federalism (or devolution) within existing States to secession.65
3.2.2. The cohesion of international relations
In a system in which the competences for external relations are divided among so many
authorities, the risk of loss of any coherence in international affairs becomes very real. To
prevent this from happening, the Belgian constitutional legislator created some coordinating
mechanisms. A central entity for this purpose is the ICFC, which finds its legal basis in the
(ordinary) Law on Institutional Reform of 9 August 1980.66
First of all, coherence is guaranteed by the fact that the Constitution gives the King (i.e. the
federal government) the leadership over foreign affairs.67 Although the federal government
cannot interfere in the competences of the federated authorities, it has several means at its
disposal to make them follow a coherent line. The Special Law on Institutional Reform of 8
August 1980 provides for various tools in this respect, ranging from a notification procedure
to the provisional suspension of the treaty-making process, the suspension of the execution of
a treaty and the conclusion of cooperation agreements.
Pursuant to Article 81, § 1 of the Special Law on Institutional Reform, the authorities of the
federated entities need to inform the King in advance of their intention to start negotiations
for a treaty, as well as all further actions they intend to take with regard to the conclusion of a
treaty. Within 30 days of receipt of the information, the (federal) Council of Ministers can
notify its objections against the intended treaty to the ICFP; this notification provisionally
suspends the treaty-making process.68 The ICFP must decide by consensus within thirty days
after the announcement. If no consensus is reached, the temporary suspension in principle
comes to an end, unless it is confirmed by a Royal Decree which has been deliberated in the
Council of Ministers, specifying the grounds. The Council of Ministers can object for the
following four reasons: (i) the other treaty party is not recognised by Belgium, (ii) Belgium
does not maintain diplomatic relations with the other party, (iii) it follows from a decision or
act of the State that the relations between Belgium and the other treaty party have been
broken off, suspended or seriously impaired, or (iv) the intended treaty breaches international
65
Most authors are convinced that giving in too easily to secession is neither desirable nor realistic since the
creation of numerous new States would undermine the international order and strangle the existing international
institutions: see, e.g., P. Malanczuk, Akehurst’s Modern Introduction to International Law, 340. For the same
reason, under international law, minorities have a right to autonomy or internal self-determination, but only in
very exceptional circumstances have a right of external self-determination: see, e.g., R. Higgins, “Postmodern
Tribalism and the Right to Secession”, in C. Brölmann, R. Lefeber and M. Ziek (eds.), Peoples and Minorities
in International Law (Nijhoff, 1993), 33. Although various countries fear that even granting autonomy may be a
first step to secession, it has been convincingly argued that autonomy could rather be the best prevention against
secession: E. Suy, “De VN-praktijk op het stuk van het zelfbeschikkingsrecht der volkeren”, in N. SybesmaKnol and J. Van Bellingen (eds.), Naar een nieuwe interpretatie van het recht op zelfbeschikking (VUB Press,
1995), 257, at 281. See, in the same sense, the observations of Deputy Secretary-General Louis Fréchette at a
UN seminar on 15 March 2001 on the Aland Islands Settlement (DSG/SM/125).
66
Article 31bis Ordinary Act of 9 August 1980 on the Reform of the Institutions (Moniteur belge, 15 August
1980, as amended by Act of 16 June 1989, Moniteur belge, 17 June 1989, and by Act of 5 May 1993, Moniteur
belge, 8 May 1993). A. Alen (Handboek van het Belgisch Staatsrecht, p. 774, para. 790) considers the ICFC the
real pivot of Belgium's foreign policy, though he notes that the Committee's weakness is the fact that the federal,
Community and Regional governments represented in it have to decide on the basis of consensus.
67
Article 167, § 1, Belgian Constitution; see supra, 3.2.1.a.i. See also K. Rimanque, De grondwet toegelicht,
gewikt en gewogen (Intersentia, 1999), 338.
68
Article 81, § 2, Special Law on Institutional Reform.
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14
or supranational obligations of Belgium.69 On the basis of the latter two situations, the
execution of federated treaties can also be suspended.70 These suspensions are, however, only
temporary and thus will come to an end as soon as the reason for the suspension disappears.71
Furthermore, the Community or Region concerned can start an annulment procedure before
the Council of State against the ministerial decision to suspend.72 In this case, the conclusion
of the treaty by the federated entity is only possible after the annulment of the ministerial
decision in question.73 The major advantage of this mechanism of suspension is that it can be
used by the federal government before any harm is done. On the other hand, though, its use
can lead to enormous delays vis-à-vis third party or the parties themselves, which will have to
be prepared to restart the negotiations every time the King has served an objection to the
ICFP.74
A less severe duty of information is imposed on the federal government vis-à-vis the
Communities and the Regions.75 Only in case of negotiations about a revision of the treaties
establishing the European Communities and of the treaties and acts by which these treaties
have been amended or supplemented must the Councils of the federated entities be informed
right from the start, and they must receive the draft treaties before signature.76 Otherwise, the
federal government is only asked to inform the federated executives "regularly" in the ICFP
on its own initiative, or at the request of the federated entities.77
Secondly, the federal government has the power to denounce treaties concluded before 18
May 1993 (i.e., before the latest constitutional reform of the State) which relate to matters
that under the current constitutional regime fall within the scope of Community or Regional
competences.78 This should avoid contradictions between treaties formerly concluded and
those that will be concluded by the new competent authorities.79
Thirdly, Article 143, § 1 of the Belgian Constitution establishes the principle of federal
loyalty. This is a concept inspired by the German principle of the "Bundestreue", obliging
the federal authorities as well as the federated entities not to disturb the balance of the total
construction of the federal State in the exercise of their competences.80 The preparatory
69
Article 81, § 4, Special Law on Institutional Reform.
Article 81, § 5, Special Law on Institutional Reform. This can, however, cause some problems at the
international level in the light of the principle of pacta sunt servanda: Ph. Gautier, Revue Belge de Droit
International (1994), 41-42.
71
G. Craenen, in Het federale België na de vierde staatshervorming, 79.
72
Article 14 juncto Article 26bis, Coordinated Acts on the Council of State (Moniteur belge, 21 March 1973, as
amended by Act of 5 May 1993, Moniteur belge, 8 May 1993).
73
F. Ingelaere, Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1993), 812.
74
G. Craenen, in Het federale België na de vierde staatshervorming, 78.
75
This remark is, however, not valid for the so-called "mixed agreements".
76
Article 16, § 2, Special Law on Institutional Reform.
77
Article 31bis, para. 2, Ordinary Law on Institutional Reform.
78
Article 167, § 5, Belgian Constitution.
79
It can do so on its own initiative in agreement with the Community and Regional Councils concerned; it must
do so when the Community and Regional Councils concerned ask it to do so (Article 167, § 5, para.'s 1 and 2,
Belgian Constitution). If, however, there is no agreement between the Community and Regional Councils
concerned, an interested Council can bring the case before the ICFP, which shall decide within 30 days by
consensus whether the treaty should be denounced. If no consensus is reached, the federal government must
negotiate a partial denunciation with the other treaty party (Article 81, § 8, Special Law on Institutional
Reform).
80
The principle of federal loyalty has given rise to an extensive and critical literature: see inter alia A. Alen,
"De federale loyauteit: ondanks alles, toch een bevoegdheidsverdelend concept?" in J. Verhoeven (ed.), La
loyauté. Mélanges offerts à Etienne Cerexhe (Larcier, 1997), 19-37; A. Alen and P. Peeters, "Bundestreue in het
70
32
15
works make it clear that federal loyalty can in no way be seen as a criterion for the
distribution of competences; rather, it regulates the manner and the spirit in which
competences should be exercised. Non-compliance with it can only lead to conflict of
interests, not to a conflict of competences. As a consequence, its observance has to be
controlled by a political organ, and not by a judicial body.81 The political organ in this case is
the Concertation Committee, which is composed on the basis of parity: on the one hand, there
are as many representatives of the federal government as of the Community and Regional
government whereas, on the other hand, there are as many Dutch-speaking as Frenchspeaking representatives.
If the Federal State, a Community or a Region is of the opinion that its interests are being
violated by any act of another State component, its legislative or executive organ can have
recourse to the Concertation Committee. In a nutshell, the procedure is as follows.82 A
Legislative Chamber or a Council can, with three-quarters of the votes, demand the
suspension of the procedure of a draft or proposal of law, decree or ordinance of another
State component that could harm it. In this case the procedure shall be suspended for 60 days.
If a Council demands the suspension83, and if no solution is found within these 60 days, the
dispute is sent to the Senate, which will give its opinion to the Concertation Committee,
which in its turn will decide by consensus within thirty days. If, however, the procedure of
suspension is introduced by one of the Legislative Chambers, the Concertation Committee
has to decide by consensus within 60 days, without a preliminary opinion. The Prime
Minister or the President of a federated government84 can, whenever the federal, a Regional
or a Community government respectively 85 considers itself to be harmed by a draft decision
or a decision of the federal, Regional or Community government86 or one of their members,
bring the case before the Concertation Committee, which will decide on the matter within 60
days by consensus. During this period, the decision concerned or its execution will be
suspended.87
A final mechanism to safeguard the coherence of Belgian foreign relations is the power of the
Court of Arbitration to test the constitutionality of a law or decree approving a treaty (see
more in detail infra, 3.2.4).
Belgisch grondwettelijk recht, Rechtskundig Weekblad (1989-90), 1122-1156; X. Delgrange, "Le profeseur, le
sénateur et le juge face à la loyauté fédérale" in La loyauté. Mélanges offerts à Etienne Cerexhe, 97-111; F.
Delperée, "A la loyale" in La loyauté. Mélanges offerts à Etienne Cerexhe , 113-126; Y. Lejeune, "Le principe
de la loyauté fédérale: une règle de comportement au contenu mal défini", Administration Publique (1994), 233238; P. Peeters, "Le principe de la loyauté fédérale: une métamorphose radicale", Administration Publique
(1994), 239-242; J-C. Scholsem, "De la Bundestreue à la loyauté fédérale: fidélité ou inconstance?", in La
loyauté. Mélanges offerts à Etienne Cerexhe, 335-347.
81
Documents parlementaires, Senate, Special Session, 1991-92, Nr. 100-27/8,20-21.
82
Articles 32 and 33, Ordinary Act on the reform of the institutions of 9 August 1980 (Moniteur belge, 15
August 1980, as amended by Act of 16 June 1989, Moniteur belge, 17 June 1989 and by Act of 16 July 1993,
Moniteur belge, 20 July 1993).
83
Or by the United Executive Committee, with regard to the Brussels Institutions.
84
Or the United Executive Committee.
85
Or the United Executive Committee.
86
Or the United Executive Committee.
87
It should be noted that, whenever a procedure related to a conflict of competences is introduced, the procedure
of conflict of interests on the same matter will be suspended (Council of State Nr. 47019, 25 April 1994,
Arresten Raad van State (1994); Council of State Nr. 42161, 8 March 1993, Tijdschrift voor
Bestuurswetenschappen en Publiekrecht (1993), 710).
32
16
3.2.3. Getting rid of the democratic deficit
The question of the democratic deficit was also addressed during the constitutional reform of
1992-1993. In order to guarantee democratic control over this aspect of external relations,
Article 167 §§ 2 and 3 of the Constitution stipulates - unlike the former constitution, which
made only certain types of treaties subject to parliamentary approval - that no treaty can have
any effect unless it has been approved by the legislator concerned. At the federal level, this
implies the approval of both House and Senate, while at the federated level the Council
concerned is required to have given its consent. As mentioned above, mixed treaties should
be approved by the respective legislator of all entities involved. This leads to rather
complicated and time-consuming ratification procedures: e.g. the Treaty of Amsterdam had
to be approved by not less than eight legislators: the Senate, the Chamber, the Flemish
Parliament, the French Community Council, the Walloon Regional Council, the Council of
the German-speaking Community, the Council of the Brussels Capital Region and the Joint
Community Commission with a majority of each of the linguistic groups.
3.2.4 Acts ultra vires - The role of the Court of Arbitration
The attribution of external competences to so many different authorities is not without risks
as far as the possibility of acts ultra vires is concerned. What are the consequences at the
international and at the internal level of a treaty concluded by the Belgian federal government
or by a Community or Regional government beyond the limits of its competences?
At the international level, the solution is clear. Pursuant to Article 27 of the Vienna
Convention, a State may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. The only exception to this rule is established in Article 46 of the
Vienna Convention: a State may only invoke the fact that the consent to be bound by a treaty
was given in violation of a provision of its internal law regarding competence to conclude
treaties if that violation was manifest and concerned a rule of its internal law of fundamental
importance.88
At the internal level, this situation should be classed as a conflict of competences. It is
therefore controlled by the Court of Arbitration.89 Within a period of 60 days after
publication in the Belgian State Gazette90, an appeal can be brought before the Court of
Arbitration to annul the law or decree where a treaty has been approved because a rule of
division of competences has been violated. If the treaty is not yet ratified within this period of
60 days or during the procedure before the Court of Arbitration, an annulment would cause
almost no problems at the international level, since Belgium or the Community or Region in
question would not yet be internationally bound by it.91
88
Pursuant to Article 46, § 2 of the Vienna Convention "a violation is manifest if it would be objectively evident
to any State conducting itself in the matter in accordance with normal practice and good faith."
89
Article 1, 1° Special Law of 6 January 1989 on the Court of Arbitration (Moniteur belge, 7 January 1989).
90
Article 3, § 2 Special Law on the Court of Arbitration.
91
A. Alen and P. Peeters, in International Law: Theory and Practice, 130; K. Rimanque and J. Wouters, De
betekenis van de Grondwet voor de Europese rechtsorde, p. 34, para. 25. An important preventive role is
reserved for the Council of State, which can and should give a negative advisory opinion with regard to the act
of approval if there seems to be any incompatibility with the Constitution. Although this opinion is not binding,
it can be a clear indication (as a sort of early warning mechanism) of the fact that ratification could cause
problems.
32
17
However, the Court of Arbitration has declared itself competent to examine the
constitutionality of the law or decree of approval also within the framework of the
preliminary rulings procedure.92 This case law has the negative side effect that an annulment
of a law of approval becomes possible without limitation in time, which increases the risk of
a ratified treaty being declared invalid. Considering that this hypothesis leads to the complex
and contradictory situation that, while the treaty remains in force at the international level, it
ceases to apply at the domestic level, it is not surprising that the Court of Arbitration’s case
law has led to intense discussions about the hierarchical position of treaties on the one hand
and the Constitution on the other hand. 93
Very recently, the federal Council of Ministers approved a draft amendment to the Special
Law on the Court of Arbitration that could bring an end to this disadvantage, at least as far as
the treaties of the European Union and the European Convention for the Protection of Human
Rights are involved. In relation to those treaties, the amendment aims to abolish the
possibility to ask preliminary questions to the Court of Arbitration. Annulment of the law or
decree of approval of one of those treaties is only possible if the appeal has been brought
before the Court within the limited term of 60 days after publication in the Belgian State
Gazette. Although as such this bill seems a step in the right direction, it is to be regretted that
it is limited to the aforementioned two types of treaties. It is hardly acceptable that for all
other treaties the legal uncertainty would continue to exist.94
3.3. Accommodation of international treaty law to the position of federal States
The federal structure of a State and its division of treaty-making power between federal and
federated authorities can be rather problematic for international relations. Federal States can
in particular cause problems during international negotiations in terms of reaching an
agreement and as far as implementation of the international treaty rules into the domestic
legal order is concerned.95
3.3.1. The achievement of an agreement
The participation of federal States in international treaty negotiations can complicate the
achievement of an agreement in at least three ways. Firstly, especially in multilateral
92
Court of Arbitration, 16 October 1991, Gemeente Lanaken, Nr. 26/91 (Moniteur belge, 23 November 1991),
B.2-B.3; Court of Arbitration, 3 February 1994, Europese School, Nr. 12/94 (Moniteur belge, 11 March 1994),
B.3.
93
See Ph. Brouwers and H. Simonart, "Le conflit entre la constitution et le droit international conventionnel
dans la jurisprudence de la Cour d’Arbitrage", Cahiers de Droit Européen (1995), 7-22; C. Naômé, "Les
relations entre le droit international et le droit interne belge après l’arrêt de la Cour d’Arbitrage du 16 octobre
1991", Revue de Droit International et de Droit Comparé (1994), 24-56; P. Populier, "Ongrondwettige
verdragen: de rechtspraak van het Arbitragehof geplaatst in een monistisch tijdperspectief", Rechtskundig
Weekblad (1994-95), 1076-1080; K. Rimanque and J. Wouters, De betekenis van de Grondwet voor de
Europese rechtsorde, p. 38-46, paras. 30-36; J. Van Nieuwenhove, "Over Internationale verdragen,
samenwerkingsakkoorden en "etablissement". Enkele kanttekeningen bij de arresten 12/94, 17/94 en 33/94 van
het Arbitragehof", Rechtskundig Weekblad (1994), 449-457; J. Velu, "Contrôle de constitutionnalité et contrôle
de compatibilité avec les traités", Journal des Tribunaux (1992), 729-761
94
See A. Vandaele, De Juristenkrant , 23 May 2000, 8-9.
95
See inter alia M. Sorensen, "Federal States and the international protection of human rights", 46 American
Journal of International Law (1952), 195-218; R.B. Looper, "Federal state clauses in multilateral instruments",
32 British Yearbook of International Law (1955-56), 162-203; E. Turlington, "The Legal Effect of Treaties in
Municipal Law: the Special Position of Federal States", ASIL Proceedings (1951), 79; H. Burmester, "Federal
Clauses: an Australian Perspective", 34 International and Comparative Law Quarterly (1985), 522-537.
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18
negotiation rounds which deal with a whole package of subjects, unitary States can
effectively obtain advantages in a certain sector by making concessions in other sectors (socalled "package deals"), thereby both strengthening their position and increasing the
likelihood that an agreement can be reached. This will be much more difficult in the case of
negotiations with federal or federated negotiators, who are obliged to respect the limits of
their scope of internal competence. Secondly, a division of competences within a State which
is reflected in that State’s external relations makes it necessary for other States to negotiate
with different authorities, depending on the matter in question. A third major concern is that
federal States are in practice sometimes excluded from participation in multilateral treaties
because, due to the domestic division of powers, they are unable to guarantee the fulfilment
of treaty obligations falling outside of their competences (see also infra, 6.1.a). This
inconvenience is bridged by several techniques, such as (i) federal clauses, (ii) reservations
and (iii) declarations.96
a. Federal clauses
Federal clauses aim at solving the problem outlined above by relieving the federal State of
the obligations of the treaty in matters which fall within the competence of the federated
entities.97 Their rationale is that partial participation is better than no participation at all. By
the same token, a federal clause limits the risk of the federal State being held accountable for
the failure of the federated entities to implement an international agreement (see infra,
3.3.2).98
The use of those clauses is often criticised, however. It has been argued that, by imposing a
more limited set of obligations on federal States than those imposed on unitary States, federal
clauses make a distinction between the two types of States, which is not compatible with the
international treaty law principle that treaty provisions apply equally to all parties (so-called
parity of treaty obligations).99 Furthermore, it has been submitted that federal clauses may be
contrary to the principle of reciprocity of treaty obligations.100 The validity of these
arguments may be doubted, though. Neither the principle of parity nor the principle of
reciprocity of treaty obligations is absolute. The real basis of an agreement is the consent of
the participating States, which are free to determine the content and the arrangements of the
treaties they conclude. Nothing in international law forbids them from agreeing that a certain
distinction should be made between the contracting parties. On the other hand, the risk cannot
be excluded that federal States may - by invoking their internal federal organisation - abuse
the possibility of ratifying only certain parts of a multilateral treaty to eliminate those clauses
they do not want to be bound by.101
96
B.R. Opeskin, Netherlands International Law Review (1996), 353-386; R. Dehousse, Fédéralisme et relations
internationales: une réflexion comparative (Bruylant, 1991), 180-189.
97
R. Jennings and A. Watts (eds.), Oppenheim’s International Law, I, 254; R.B. Looper, 32 British Yearbook of
International Law (1955-56), 164.
98
P. Reuter, Yearbook of the International Law Commission (1974), 15.
99
B.R. Opeskin, Netherlands International Law Review (1996), 370; H. Burmester, 34 International and
Comparative Law Quarterly (1985), 522; R. Dehousse, Fédéralisme et relations internationales, 186.
100
R. Dehousse, Fédéralisme et relations internationales, 186; R. Jennings and A. Watts (eds.), Oppenheim’s
International Law, I, 255. It has also been said that federal clauses are improper now it is accepted by most
federal States that it is within the federation’s power to ratify treaties, even those treaties dealing with matters
falling within the scope of the internal competences of the federated entities: see R.B. Looper, 32 British
Yearbook of International Law (1955-56), 202; J.H.H. Weiler, in Mixed Agreements, 60.
101
J.H.H. Weiler, in Mixed Agreements, 60; R. Dehousse, Fédéralisme et relations internationales, 187.
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19
However, the real danger of the federal clause seems to be that the extent to which
multilateral treaties have legal effects will in part depend on, and be determined by, the
domestic laws of federal States. The problem is that, due to the great variety of federal
systems, the multilateral treaty concerned will have as much variation in scope as there are
different federal States which ratified it. At the same time, it becomes almost impossible for
the ratifying or acceding States - which cannot be expected to be familiar with each and every
of those different federal systems - to have an overview of which particular federal States are
bound by which particular treaty provisions.102 Therefore, rather than a problem of parity or
reciprocity of obligations, federal clauses seem much more to cause problems of transparency
and legal certainty.
In an attempt to avoid this major problem, some federal clauses stipulate that federal States
party to the treaty shall, at the request of any other Contracting State, supply the necessary
information concerning the law and practice of the federation and its constituent units with
regard to any particular provision of the treaty.103 Taken together, these disadvantages have
led to a certain reluctance and mistrust in the international community in relation to the use of
federal clauses.
As an alternative to the use of federal clauses, the technique of "mixed treaties" is sometimes
suggested.104 Mixed treaties can be defined as treaties dealing with both federal and federated
matters to which both the federal State and the competent federated entities are parties. This
method indeed offers not only a higher degree of transparency; it also guarantees complete
fulfilment of the treaty provisions by all parties vis-à-vis all parties.105 Furthermore, the use
of mixed treaties promotes the cohesion of the federal State’s foreign policy as well as the
cooperation between the different parts of the federal State. As mentioned above (supra,
3.2.1), Belgian treaty-making practice has in the first place opted for mixed treaties, and only
has recourse to a federal clause in exceptional cases. However, the use of mixed treaties is
also not without its disadvantages. Since more authorities are involved, the ratification
procedure often takes more time – Belgian treaty practice offers ample illustrations hereof and it becomes more difficult to reach agreement, since negotiations are simultaneously held
at two different levels, i.e. international and national, with the consequence that any difficulty
at the internal level will prevent agreement at the international level.
b. Federal reservations
Potential treaty parties are not always prepared to take into consideration the specific
difficulties that federal States have to cope with. We can refer, for example, to Article 50 of
the International Covenant on Civil and Political Rights (“ICCPR”) and to Article 28 of the
International Covenant on Economic, Social and Cultural Rights, which declare the
provisions of the respective Covenants to be applicable to all parts of federal States without
any limitations or exceptions.106 In such a case, the federal State can at most107 resort to a
102
B.R. Opeskin, Netherlands International Law Review (1996) , 373.
For example Article 41(c) of the Geneva Convention of 28 July 1951 relating to the Status of Refugees.
104
J.H.H. Weiler, The Constitution of Europe, 162.
105
J.H.H. Weiler, The Constitution of Europe, 162.
106
Article 10 of the First Optional Protocol to the ICCPR and Article 9 of the Second Optional Protocol to the
ICCPR contain an identical provision.
107
It has been suggested that Article 50 ICCPR contains an implicit prohibition of federal reservations: see, with
further references, L. Lijnzaad, Reservations to UN-Human Rights Treaties. Ratify and Ruin? (Nijhoff, 1995),
194.
103
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20
reservation, indicating that it does not accept the legal effects of those provisions the
implementation of which, due to its federal structure, it cannot guarantee.108
The use of such reservation may be preferable to the use of federal clauses. In the first place,
this may be so for reasons of transparency. By formulating a reservation, a clear indication is
given as to the provisions to which it relates. Contrary to federal clauses, other contracting
parties are thereby informed which provisions will have effect in their relations with the
federal State in question. Giving federal States the opportunity to meet their specific
difficulties by way of a federal reservation furthermore reduces the risk of frustration of the
fundamental object and purpose of a treaty. Indeed, pursuant to Article 19 of the Vienna
Convention, formulating a reservation is not allowed when it is prohibited by the treaty
involved or when it would be incompatible with the object and purpose of the latter.109
Nevertheless, there could be difference of opinion between the contracting parties as to
whether a reservation by a federal State, as formulated, is compatible with the object and
purpose of the treaty. Depending on the nature of the treaty in question, it may be that other
contracting parties refuse to accept, or raise an objection against, the reservation.110
c. Federal declarations
Where a treaty on the one hand does not provide for a federal clause, and on the other hand
excludes the making of reservations, a federal State can always make a “federal declaration”.
By trying to harmonise the treaty obligations with the national legislation by way of
interpretation, rather than changing or reducing the legal effect of the treaty involved, this
solution clearly differs from both of the above-mentioned techniques.111
3.3.2. The implementation in the national legal order
As is well-known, the integration of treaty law into the national order can take place via two
different systems, namely monistic or dualistic systems. Dualist systems start from the idea
that international and national law are part of two totally separate systems. A rule of
international law can only become part of the national legal order and be applied by the
national courts if it is expressly transformed or incorporated into a national rule by way of a
national legislative act. For federal States, this system is adhered to inter alia by Canada and
Australia. Other federal countries which adhere to the monist approach, like Belgium,
consider international and national law to be part of the same legal order. Implementation
through an act of national legislation will only be required if a rule of international law
without direct effect is involved. Consequently, the question of implementation does not arise
here to the same extent as it does in dualistic systems.
More specifically for federal States, the ease with which treaty obligations can be
implemented also depends on a second factor, namely the internal division of competences. A
non-parallel division of the power to conclude treaties on the one hand and the competence to
give legal effect to them in the internal legal order on the other hand does indeed cause a
serious dilemma: either the treaty-making authority respects the internal division of powers,
in which case it is completely dependent on the willingness of the competent legislative
108
B.R. Opeskin, Netherlands International Law Review (1996) , 374-377. See the U.S. understanding (5) and
the Australian declaration to the ICCPR.
109
See also B.R. Opeskin, Netherlands International Law Review (1996), 375-376.
110
See Article 20 Vienna Convention.
111
B.R. Opeskin, Netherlands International Law Review (1996), 377-378.
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21
authorities to implement the treaty and is therefore unable to guarantee implementation to the
other parties, or one accepts that implementation may always be realised by the authority
which concluded the treaty, which would result in a violation of that State's constitutional
order. This dilemma112 has arisen in countries including Australia, the United States113 and
Canada.
In Belgium, however, implementation problems are reduced to a minimum. This is because
of the monist approach on the one hand, and the strict “in foro interno, in foro externo”
parallelism on the other (supra, 3.2.1.a.i). The logical consequence of the latter principle is
indeed that responsibility for implementation will always lie with the authority which
concluded the treaty and should fall within the scope of competence of that authority.
4. Diplomatic relations
Apart from treaty-making capacity, a second element of a State’s foreign policy is the jus
legati, i.e. the right to send diplomatic and consular staff to a foreign State (active jus legati)
and the right to receive a foreign State’s diplomatic and consular staff (passive jus legati). To
find out whether the federated entities of a federal State have the right to send their own staff,
the same reasoning as for the treaty-making capacity should be followed: provided the federal
constitution allows this, and the receiving State accepts the mission, nothing in international
law prevents federated entities from sending diplomatic or consular representatives.114
In Belgium, as in most other federal States, the Constitution does not permit the federated
entities to establish their own diplomatic or consular representation abroad.115 As indicated
before, pursuant to Article 167, § 1 of the Constitution, the King manages foreign affairs, and
thus has the power to decide with which States diplomatic relations shall be maintained.
Furthermore, Article 107, second para. of the Constitution in principle reserves to the King
the power to appoint the officials in foreign relations. In other words, the international legal
capacity of the Belgian federated entities does not include the sending of diplomatic and/or
consular staff abroad.
This does not mean, however, that it would be impossible for the Belgian Communities and
Regions to maintain official relations with foreign States. It only means that if they do so,
they are not acting as subjects of international law. The established missions cannot therefore
be considered as having official "diplomatic" or "consular" status116, and the acts they engage
in are not governed by international law.117 As examples of such missions we can refer inter
alia to the regional economic and commercial attachés118, or to the possibility of appointing a
representative of the federated entity in a foreign State or with an international
112
For a comparative note see J.H.H. Weiler, The Constitution of Europe, 138-155.
E. Turlington, ASIL Proceedings 1951, 79.
114
A. Beirlaen, Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1984), 328.
115
A. Alen and R. Ergec, Federal Belgium after the Fourth State Reform of 1993, 23.
116
A. Alen and R. Ergec, Federal Belgium after the Fourth State Reform of 1993, 24.
117
W. Rudolf, "Federal States", in R. Bernhardt (ed.), Encyclopedia of Public International Law (NorthHolland, 1995), 371.
118
Cooperation Agreement of 17 June 1994 between the Federal State, the Flemish Region, the Walloon Region
and the Brussels Capital Region concerning Regional economic and commercial attachés and export promotion
procedures (Moniteur belge, 26 October 1994).
113
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22
organisation.119 In any case, the Belgian diplomatic or consular staff abroad is also at the
disposal of the Community or Regional authorities.120
5. Representation in international organisations
It happens that a State attributes to its federated entities competences which at the
international level relate to competences of international or supranational organisations. In
such a situation, it would be logical that the federated entities have the capacity to exercise
these competences either within the framework of, or at least in close co-ordination with, the
organisation concerned. This capacity could be organised in different ways.
One solution could be the full participation or membership of federated entities in the
international organisation. Especially with regard to organisations dealing exclusively with
Community or Regional matters, this would be preferable. In practice, however, most of the
constitutive acts of international organisations reserve membership and the participation in
the decision-making process to States.121 Only in rather exceptional cases, like the Dutch
Language Union, are federated entities welcome to participate directly.122
As an alternative to the first suggestion, less far-reaching forms of participation are
sometimes proposed: for example, the status of observer or the right to be consulted.123 A
more institutionalised representation of regional authorities is provided for at the EU level,
which has had a Committee of the Regions with consultative powers since the entry into
force of the Maastricht Treaty.124
More exceptionally, the constitutive act of an international organisation itself encourages the
Member States to take the necessary measures. Article VII.1 of the UNESCO Convention, for
example, states that “each Member State shall make such arrangements as suit its particular
conditions for the purpose of associating its principal bodies interested in educational,
scientific and cultural matters with the work of the Organisation ...”. Based on this article, a
Flemish UNESCO Commission was established.125
119
See notably Protocol of 9 January 1990 between the Minister of Foreign Affairs and the President of the
Flemish Executive on the statute of representatives of the Flemish Community in foreign States and with
international organisations; Protocol of 25 July 1988 between the Minister of Foreign Affairs, the Minister of
Foreign Affairs of the French Community and the Minister of Foreign Affairs of the Walloon Region on the
statute of representatives of the French Community and the Walloon Region in foreign States and with
international organisations; Protocol of 24 October 1991 between the Minister of Foreign Affairs and the
president of the Executive of the German-language Community on the status of representatives of the Germanlanguage Community in foreign States and with international organisations; Cooperation Agreement of 18 May
1995 between the Federal State, the Communities and the Regions concerning the status of Community and
Regional representatives in diplomatic and consular missions.
120
Code of Conduct concerning the organisation of the Belgian missions in foreign countries (Federal Code of
Conduct), approved by the ICFP on 5 November 1992, as embodied in a Circular of the Minister of Foreign
Affairs to the diplomatic and consular posts.
121
For an overview of international organisations which provide for the possibility to admit non-autonomous
territories as members, see H.G. Schermers and N.M. Blokker, International Institutional Law. Unity within
Diversity (Nijhoff, 1995, 3rd ed.), p. 52-54, paras. 76-78.
122
W. Pas, Jura Falconis (1989-90), 347; L. Van Den Brande, in International Law: Theory and Practice, 149.
123
I. Bernier, ASIL/CCIL Proceedings (1991), 136.
124
See Articles 263-265 EC Treaty.
125
Decision of the Flemish Government of 18 September 1991 to establish a Flemish UNESCO Commission
(Moniteur belge, 26 November 1991).
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23
If the constitutive act of the international organisation concerned does not allow for any of
these possibilities, a solution has to be sought at the domestic level. Here the federal legal
framework may provide for the necessary mechanisms, guaranteeing a maximum of
involvement in the activities of the organisation. This could be realised inter alia through
preliminary information and consultation and by permanent structures of concertation.126 In
Belgium these mechanisms have been put in place by several cooperation agreements.
Pursuant to Article 92bis, § 4bis of the Special Law on Institutional Reform, the federal
authority, the Communities and the Regions are required to conclude cooperation agreements
concerning the problem of representation in international and supranational organisations and
concerning the way a position is to be taken in these organisations. On this basis, a
framework cooperation agreement was concluded between the federal State, the
Communities and the Regions concerning representation of the Kingdom of Belgium in
international organisations whose activities involve matters of mixed competence.127
The cooperation agreement takes care of the interests of the federated entities by providing
for a system of dissemination of information128, by giving the Communities and Regions the
possibility of having a representative included in Belgium’s Permanent Representation to an
international organisation129, and by organising a permanent structure for concertation.130 In a
general concertation meeting, the Prime Minister and the other federal ministers must
determine the Belgian position together with the Community and Regional ministers with
responsibility for technical matters or external relations. If no consensus is reached between
them, the matter must be referred to the Chairman of the ICFP, who puts the item on the
agenda of the next meeting or a special meeting. If no agreement is reached at those
meetings either, the Belgian delegation must abstain.
More specifically, a cooperation agreement has also been concluded between the federal
State, the Communities and the Regions on the representation of the Kingdom of Belgium
within the Council of the European Union.131 The Belgian representation is based on Article
203 of the EC Treaty132, pursuant to which “the Council shall consist of a representative of
each Member State at ministerial level, authorised to commit the government of that Member
State”. Since this article does not require the representative to be a ministerial representative
of the national government, Community and Regional ministers are also qualified to
represent Belgium within the Council.133 This has the advantage that the composition of the
126
See, for instance, the mechanisms for cooperation between the federal and the state authorities in the process
of EU law-making as laid down by Article 23, paras. 2 and following, of the German Basic Law and as further
elaborated in the Federal Act of 12 March 1993 on the cooperation between the Federation and the states in
matters of the European Union (Bundesgesetzblatt, I, 311). See inter alia H.G. Crossland, “Ratification
processes of the Treaty on European Union: Germany”, European Law Review (1993), 236, at 238.
127
Framework Cooperation Agreement of 30 June 1994 between the Federal State, the Communities and the
Regions concerning the representation of the Kingdom of Belgium in international organisations whose
activities are matters of mixed competence (Moniteur belge, 19 November 1994).
128
Articles 2 and 3 Framework Cooperation Agreement of 30 June 1994.
129
Article 4 Framework Cooperation Agreement of 30 June 1994.
130
Articles 5-9 Framework Cooperation Agreement of 30 June 1994.
131
Cooperation Agreement of 8 March 1994 between the Federal State, the Communities and the Regions on
the representation of the Kingdom of Belgium within the Council of Ministers of the European Union (Moniteur
belge, 17 November 1994).
132
Appendix I Cooperation Agreement of 8 March 1994.
133
F. Ingelaere, "De Europeesrechtelijke raakvlakken van de nieuwe wetgeving inzake de internationale
betrekkingen van de Belgische Gemeenschappen en Gewesten", Sociaal-Economische Wetgeving (1994), 69; P.
Berckx, "De Belgische interne regeling inzake vertegenwoordiging van het federaal koninkrijk België in
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24
Belgian representation within the Council can be adapted to the subject matter involved. For
this purpose, four different categories have been determined134: (i) if the Council deals with
exclusively federal matters, there will be a federal representation only; (ii) if it is dealing with
matters falling mainly within the federal scope of competences, a federal representation with
an assistant representing the federated entities is provided for; (iii) if matters are involved for
which the federated entities are competent, there will be a federated entity representative with
a federal assistant; and finally, (iv) when the Council is dealing with exclusively federated
matters, Belgium shall be represented by an empowered federated entity representative only.
Although it may be seen as a start, the representative power of federated entities within the
Council of the EU is no sufficient answer to the specific requirements of Belgian federalism.
The system still does not give the federated entities the opportunity to fulfil their exclusive
competences in an autonomous way - which is precisely the aim of the federal structure.
Since the five votes of Belgium in the Council have to be brought out "in block", all
Communities and/or Regions are doomed to follow one single common policy. If they hold
different views about the way they wish to exercise their respective exclusive competences,
the only way out is abstention.135 Furthermore, both cooperation agreements remain restricted
to representation in international organisations whose activities are matters of mixed
competence, whereas it is precisely in relation to organisations dealing with federated matters
that the question of the participation of the federated entities concerned is the most urgent.
6. Responsibility in case of breaches of obligations under international law
In principle every internationally wrongful act of a State entails its responsibility.136 We will
examine whether the same applies to federated entities: does their recognition as a subject of
international law with separate international personality imply that they should be held
responsible for breaches of international obligations that they undertook autonomously in the
international legal order? And, related to this question, can a federated entity bring other
subjects of international law before the international courts, or be brought by the latter before
such courts, for infringement of a rule of international law?
6.1. Responsibility
a. Traditional view
It is traditionally held that only the federal State as such can be held responsible for breaches
of international law, even if those breaches are committed by a federated entity.137 A
reflection of this principle can be found in Article 27 of the Vienna Convention, which
applies to federal and non-federal States alike, and pursuant to which a State that is party to
the Convention may not invoke the provisions of its internal law as justification for its failure
to perform a treaty - without prejudice, though, to Article 46 (see supra, 3.2.4). Likewise, the
principle is confirmed by Article 7(1) of the ILC’s Draft Articles on State Responsibility,
Europese en internationale organisaties", Tijdschrift voor Bestuurswetenschappen en Publiekrecht (1995), 119,
at 121.
134
Appendix I Cooperation Agreement of 8 March 1994.
135
A. Alen and J-V. Louis, "La constitution et la participation à la Communauté Européenne", Revue Belge de
Droit International (1994), 93.
136
Article 1 ILC Draft Articles on State Responsibility, 37 International Legal Materials 440 (1998).
137
See, inter alia, E. David, "La responsabilité des états fédéraux dans les relations internationales", Revue
Belge de Droit International (1983), 483, 487.
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25
pursuant to which "the conduct of an organ of a territorial governmental entity within a State
shall also be considered as an act of that State under international law, provided that organ
was acting in that capacity in the case in question." The principle has been frequently
confirmed in cases involving federal States by international courts and arbiters.138 The
classical example generally referred to at this point is the Montijo case, in which the claim of
the Federal State of Colombia that it was not responsible for the acts of its constituent state
Panama was rejected by the arbiter.139 The principle is also applied within the European
Union: Member States are held responsible for breaches of Community law, even if the
shortcoming was actually imputable to a sub-State entity. Arguments based on domestic
federal principles and rules are systematically rejected by the European Court of Justice,
which recently held that "a Member State cannot […] plead the distribution of powers and
responsibilities between the bodies which exist in its national legal order in order to free itself
from liability on that basis."140
Two main observations need, however, to be made in connection with this concept of State
responsibility.
Firstly, the aforementioned idea of exclusive international responsibility of the State for
breaches of international law committed by a federated entity fails to take account of recent
developments in State organisation and international case law. As shown above, the status of
subject of international law is no longer solely reserved to States. Other entities of a different
nature and with different capacities are also recognised as such, at least to some extent. It
seems no more than reasonable that the international responsibility rules should be adapted
correspondingly.
A second remark may be that the application of the principle places most federal
governments in a delicate position. Though they bear full responsibility under international
law for the acts of the federated entities, in most cases they lack any means of influencing or
controlling these acts.141 In other words, the federal State is completely dependent on the
willingness of the federated entities to respect international law, while the latter can refuse to
do so without being held accountable for it on the international plane. This difficulty arises
especially in legal systems such as the Belgian one, where the federated entities are allocated
substantial external competences. It can therefore be said that, as long as international law
sticks to the traditional concept of State responsibility, only the development of an internal
right of federal supervision can protect federal governments against abuses of their federated
entities.142
138
See, for a number of these cases, B.R. Opeskin, Netherlands International Law Review (1996), 380-384.
Arbitral award of 26 July 1875 in United States v Colombia, Recueil des Arbitrages Internationaux (1954),
III, 674.
140
Case C-302/97 Konle v Austria [1999] ECR I-3099, para. 62. It is standard case-law of the Court to reject
arguments of a Member State based on its domestic legal order in the following terms: "a Member State may not
plead provisions, practices or circumstances in its internal legal system to justify failure to comply with
obligations under Community [law]": see, e.g., Case 69/81 Commission v Belgium [1982] ECR 153, para. 5 ;
Case C-323/96 Commission v Belgium [1998] ECR I-5063, paras. 40-42; Case C-326/97 Commission v Belgium
[1998] ECR I-6107, paras. 6-7.
141
A. Alen and P. Peeters, in International Law: Theory and Practice, 134.
142
For example in Switzerland where, although internationally speaking the Swiss State is held responsible for
breaches of international law caused by the Cantons, the financial cost of this federal responsibility is to be
recovered from the Canton in question. In Canada the technique of "indemnity agreements" between the federal
government and the provinces is used to exonerate the former of any form of responsibility for breaches of
139
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The question is what kind of control would be appropriate. Whereas a very limited or
conditioned control mechanism, such as that in Belgium (see infra, b), may have too little
impact to be effective, federal supervision that is too wide-ranging creates the danger of
unacceptable federal interference in the conduct of foreign policy by the federated entities,
and would thus go against the original aim of giving more autonomy to them.
b. Belgian approach
In its advisory opinion on the proposed Special Law on the international relations of the
Regions and the Communities, the Belgian Council of State has observed that the
international responsibility of the State makes it incumbent on the constitutional legislator143
to organise a certain degree of control over the acts of the federated entities.144 In order to
compensate for the federal State’s inability to act or to interfere within the scope of the
exclusive competences of the Regions and Communities, Belgian constitutional law provides
for two mechanisms to protect the federal government from the unwillingness of the
federated entities to fulfil their international obligations.
The first one is the so-called substitution mechanism. Pursuant to Article 169 of the
Constitution, the federal legislator or government, in order to assure the observance of
international or supranational obligations, is allowed to temporarily substitute the federated
authorities that fail to fulfil those obligations. Since this mechanism could easily be abused
by the federal government in order to erode the external competences of the federated
entities, this substitution has been made subject to four strict conditions, laid down in the
Special Law of 1988.145 First of all, a ruling against Belgium by an international or
supranational judicial body is required. More precisely, a judgment erga omnes would be
required.146 It has been derived from this that, whereas a preliminary ruling of the European
Court of Justice based on Article 243 (previously Article 177) of the EC Treaty could lead to
substitution, a WTO-panel or Appellate Body report as adopted by the Dispute Settlement
Body, on the other hand, could do so.147 Secondly, substitution for the execution of the
operative part of the judgment of the court is only allowed three months after the Region or
Community concerned has been the subject of a Royal Decree stating the grounds,
deliberated by the Council of Ministers. Thirdly, the Community or Region concerned has to
be involved in the whole dispute settlement procedure, including the procedure before the
international or supranational judicial body. Finally, the cooperation agreement concerned
should be observed. The effect of measures taken by the federal State in substitution of the
federated entities ceases from the moment the Community or Region concerned complies
with the operative part of the ruling.148
The second mechanism is one of financial recovery: it allows the federal government to
recover the cost of the non-observance of an international or supranational obligation from
international law by the latter: see K. Lambrechts, "De internationale aansprakelijkheid van gemeenschappen en
gewesten", Jura Falconis (1989-90), 361, at 366-368.
143
Documents parlementaires, Senate, Special Session, 1991-92, Nr. 457/2, 11.
144
Documents parlementaires, Chamber of Representatives, 1979-80, Nr. 627/12.
145
Article 16, § 3, Special Law on Institutional Reform.
146
Documents parlementaires, Senate, Extraordinary Session, 1991-92, Nr. 457/3, 7-8.
147
A. Alen and J.-V. Louis, Revue Belge de Droit International (1994), 100.
148
Article 16, § 3, para. 2, Special Law on Institutional Reform.
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the Community or Region concerned.149 However, the federal government has not so far ever
made use of this possibility.
The critique of these mechanisms is twofold. Firstly, the conditions under which substitution
is allowed are so hard to fulfil that its application will in practice be rather exceptional.
Secondly, even if such an exceptional case arises, the federation is only allowed to act after
the harm has been done150, i.e. after Belgium has already been made the object of a ruling,
which makes its significance rather symbolic. At most it can be seen as a confirmation that
Communities and Regions are, at least theoretically, subject to the rules of international
law.151 But as long as substitution is not possible already when a judgement can reasonably
be expected152, the substitution mechanism leaves the core of the problem untouched.
Taking into consideration the foregoing and the fact that the Belgian federated entities can
exercise substantial external competences in a completely autonomous way, and in their own
names, one may wonder if direct international responsibility of these entities themselves,
either alone or in the form of joint and several liability with the federal State, would not be a
more adequate solution. The acceptance of this solution would grant third States the
possibility of acting directly against the party they have contracted with153, it would
responsibilize the federated entity and it could help to put an end to the present situation of
helplessness of the federal State.
c. Towards direct responsibility of federated entities in international law?
The arguments in favour of such direct international responsibility of federated entities are
not new. The idea has been defended by several authors.154 One of the most highly developed
theories in this respect is the one of Di Marzo.155 The essential parameter of his concept is the
degree of autonomy with which the decision was taken: only in cases where a federated entity
can exercise those powers completely autonomously and in its own name, would it bear the
responsibility itself for the acts concerned.
Furthermore, the preliminary works of the ILC on the Draft Articles on State Responsibility
also point in the direction of limited responsibility of sub-State authorities which have a
certain international capacity.156 The fact that Article 7(1) of the current Draft (supra) seems
to incorporate the rule laid down in the Montijo case157 must not necessarily be seen as a
rejection of the possibility of international responsibility of federated entities. To explain the
149
Article 16, § 3, para. 3, Special Law on Institutional Reform.
A. Schaus, "L’exécution des traités", Revue Belge de Droit International (1994), 70.
151
A. Alen and J.-V. Louis, Revue Belge de Droit International (1994), 102.
152
F. Dumon and W.J. Ganshof Van Der Meersch, Rechtskundig Weekblad (1993-94), 98.
153
E. David, Revue Belge de Droit International (1983), 498.
154
E. David, Revue Belge de Droit International (1983), 488-489; A. Schaus, Revue Belge de Droit
International (1994), 74 and 76.
155
L. Di Marzo, Component Units of Federal States and International Agreements, 169-201.
156
"Quant aux cas où les Etats fédérés gardent une personnalité propre, avec une capacité juridique plus ou
moins restreinte, […] les agissements des organes d’un état fédéré constituent la violation d’une obligation
internationale dont le titulaire est l’Etat fédéré, ces agissements sont attribuables à ce dernier et non à l’état
fédéral […] Il y avait lieu de formuler une exception à ce principe, pour réserver spécialement le cas où il
s’agirait d’Etats membres d’une fédération qui auraient gardé, dans des domaines déterminés, une personnalité
et une capacité juridique internationales propres, distinctes de celles de la fédération". Report of the ILC to the
GA, Yearbook of the International Law Commission (1974), II, part I, 291.
157
L. Van Den Brande, in International Law: Theory and Practice, 153.
150
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omission of a provision in this regard, the ILC stated simply that it was not necessary to
include such a provision.158
Finally, although indications in international case law have traditionally been sparse159, there
are some very recent tendencies in the case law of international courts which show a stronger
sensitivity to the realities of federal States and the position of federated entities in
international law. Quite remarkable is the Order of the International Court of Justice in the
LaGrand case of 3 March 1999, where the Court held:
“Whereas the international responsibility of a State is engaged by the action of the
competent organs and authorities in that State, whatever they may be; whereas the
United States should take all measures at its disposal to ensure that Walter LaGrand is
not executed pending the final decision in these proceedings; whereas, according to
the information available to the Court, implementation of the measures indicated in
the present Order falls within the jurisdiction of the Governor of Arizona; whereas the
Government of the United States is consequently under the obligation to transmit the
present Order to the said Governor; whereas the Governor of Arizona is under the
obligation to act in conformity with the international undertakings of the United
States.”160
On the one hand, the Court confirms the classical principle of the responsibility of the federal
State for acts committed by its federated entities. Like its Order in the Breard case161, the
Court orders the defendant State to "take all measures at its disposal", i.e. to prevent
execution. The novelty162 comes when the Court takes the U.S. federal system into account
by ordering the U.S. government specifically to transmit the order to the Governor of the
state of Arizona.163 Even more intriguing is the consideration, at the end of the quotation
above, that the Governor is under the obligation to act in conformity with the international
undertakings of the U.S. Does the Court mean by this that the Governor of Arizona is, as a
matter of international law, obliged to act in conformity with the international obligations
entered into by the U.S.? If so, and linked to the Court's definition of international legal
personality in the Reparation for Injuries Advisory Opinion (supra, 3.1), it could be
158
"La Commission n’a pas jugé nécessaire de prévoir une réserve de ce genre. En effet, l’objet du présent
article est seulement de déterminer si, d’après le droit international, l’on doit considérer comme un fait de l’état
(qu’il soit fédéral ou unitaire) ... si un organe de l’Etat fédéré vient à agir dans un domaine dans lequel l’Etat
fédéré est le titulaire d’obligations internationales incombant à cet Etat lui-même et non pas à l’Etat fédéral,
ledit Etat fédéré apparaît à l’évidence, sur le plan international, comme un sujet de droit international autre que
l’Etat fédéral, et non plus comme une simple collectivité publique territoriale du sujet Etat fédéral." Report of
the ILC to the UNGA, Yearbook of the International Law Commission (1974), II, 291.
159
Most cases in which the federated state was considered to be responsible for a breach of international law,
were occasional cases, based on the agreement of all parties involved: see K. Lambrechts, Jura Falconis (198990), 364. It may be noted that in the aforementioned Montijo case the arbiter stated that in principle every
complaint should be addressed to the authority with which the international agreement was concluded.
160
Case concerning the Vienna Convention on Consular Relations (Germany v. United States of America),
Order on the request for the indication of provisional measures, 3 March 1999, para. 28 (www.icj-cij.org).
161
Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America),
Order on the request for the indication of provisional measures, 9 April 1998, point I of the operative part. It
has been rightly observed that this formulation by itself already indicates the Court's willingness to accept legal
consequences at the international level of the division of powers within the U.S. federal system: see P. Daillier,
A. Pellet and N. Quoc Dinh, Droit international public (L.G.D.J., 1999, 6th ed.), 424.
162
A. Nollkaemper, "Kroniek van het internationaal publiekrecht", Nederlands Juristenblad (2000), 566, at 567,
speaks of a "novum".
163
See point I.(b) of the operative part of the order.
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submitted that federated entities are seen by the Court nowadays as (partial) subjects of
international law, namely to the extent that they have jurisdiction for the implementation of
international obligations entered into by the federal State (or, as we would be inclined to add,
by themselves). On this basis, one could argue further - but the quotation above does not
support this, in that it reiterates the international responsibility of the federal State as such that the federated entities themselves could under certain conditions be held to be directly
internationally responsible for violations of international law.
Another important signal in this respect has come from the European Court of Justice. In its
Haim judgment of 4 July 2000 it held that:
“As regards Member States with a federal structure, […] if the procedural
arrangements in the domestic system enable the rights which individuals derive from
the Community legal system to be effectively protected and it is not more difficult to
assert those rights than the rights which they derive from the domestic legal system,
reparation for loss and damage caused to individuals by national measures taken in
breach of Community law need not necessarily be provided by the federal State in
order for the Community law obligations of the Member State concerned to be
fulfilled.”164
In other words, in EU Member States based on a federal system (such as Belgium, Germany
and Austria) reparation for loss and damage caused to individuals by measures taken in
breach of Community law by a federated entity may be made by the latter entity, provided the
Community law requirements of effectiveness and non-discrimination are met.165 This
judgment does of course not mean that, as a matter of Community law, the responsibility of
the EU Member State in question would be replaced by responsibility of the sub-State entity
proper: it only addresses the possibility to have the actual reparation made by the latter
instead of by the Member State itself.
The foregoing illustrations make clear that matters are moving in nowadays' international
practice. We are probably only at the start of a fascinating development in which the
international legal personality and responsibility of sub-State entities come to the fore. That
process will not go overnight. In addition, it should not be disregarded that the current rules
on international adjudication of disputes are not adapted to it (see infra, 6.2).
6.2. Standing before international courts
The general rule is that in case of breach of a rule of international law by another subject of
international law, only States have the right to bring a claim before international
jurisdictions.166 Federated entities have neither active nor passive ius standi in iudicio.167 As
164
Judgment of 4 July 2000 in Case C-424/97 Haim v Kassenzahnärztliche Vereinigung Nordrhein, not yet
published in the ECR, para. 30, with reference to Case C-302/97 Konle v Austria [1999] ECR I-3099, paras. 6364.
165
See on these requirements recently S. Prechal, "Judge-made harmonisation of national procedural rules: a
bridging perspective", in J. Wouters and J. Stuyck (eds.), Principles of Proper Conduct for Supranational, State
and Private Actors in the European Union: Towards a Ius Commune. Essays in honour of Walter van Gerven
(Intersentia, 2001), 39-58.
166
There are some exceptions to this rule, for instance if an international organisation is a party to an agreement
or a member of an international organisation. An example is the possibility for the EC to lodge complaints under
the dispute settlement mechanisms of the WTO (and the possibility of other WTO members to lodge complaints
against the EC), of which it is itself a member.
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far as the active side is concerned, one should mention two exceptions. First of all, the
European Court of Justice and Court of First Instance have stated in several cases that,
irrespective of the powers they may have, governments of regions or autonomous
communities do not have the locus standi of Member States before the Community courts.
However, if they possess legal personality under domestic law, they can be considered as a
legal person and may therefore, on the basis of Article 230, fourth para. of the EC Treaty, be
entitled to institute annulment proceedings before the Court of First Instance under certain
conditions, namely that the act in question is of direct and individual concern to them.168
Apart from this possibility, the only other way for the federated entities to start judicial
proceedings is through the federal authorities. In Belgium, this possibility is explicitly laid
down in the Special Law on Institutional Reform. If the conflict exclusively deals with a
federated competence, the Community or Region concerned can request the federal State to
file a claim.169 The request is submitted to the ICFP, which will take a decision by consensus.
But even if no consensus is reached, the federal government must summon the international
legal person without delay, since the procedure may in no way prevent the claim from being
filed within the procedural term.170
Where a conflict concerns both federal, Community and/or Regional interests, the federal
authority and the federated entities have concluded a cooperation agreement in conformity
with Article 92bis, § 4ter of the Special Law on Institutional Reform.171 The entity concerned
must bring the case before the ICFP, by sending a draft writ of summons to its President.
Within the framework of the ICFP, a "summons" working group, composed of
representatives of the federal State, the Communities and the Regions, will then be
established. This working group will decide concerning the mixed character of the conflict.
Once consensus is reached about the mixed character, the necessity for and the preliminary
draft of the writ of summons will be examined by the working group. The representatives of
the authorities involved will decide on this by consensus. This decision is immediately
brought to the ICFP’s attention, and the latter can object to it within 48 hours after this
notification. If no such objection is made, the ICFP is deemed to agree with the decision
taken by the working group. If, however, the working group reaches no consensus about the
mixed character of the conflict or the necessity for the summons in the working group, the
ICFP is convoked in order to decide upon those matters by consensus and by consensus of the
authorities involved respectively. If it is decided that the conflict, or one of the elements
involved, is exclusively related to Community or Regional competences, the meeting of the
167
For instance, when, in the LaGrand case (supra note 160), the Governor of the state of Arizona would violate
international law by executing Walter LaGrand, an action before the International Court of Justice can only be
brought - and has been brought - against the United States itself. Article 34(1) of the Court's Statute makes it
impossible to sue any other entity than a State. Likewise, the European Commission or other EU Member States
can only start proceedings against a Member State if a federated entity of the latter commits infringements of
EC law (Articles 226 and 227 of the EC Treaty, respectively).
168
Court of Justice, Case 222/83 Municipality of Differdange v Commission [1984] ECR 2889, para. 9; Case C298/89 Gibraltar v Council [1993] ECR I-3605, para. 14; Order of 21 March 1997 in Case C-95/97 Région
Wallonne v Commission [1997] ECR I-1787, para. 6; Case C-180.97 Regione Toscana v Commission [1997]
ECR I-5245, paras. 6-8; Court of First Instance, Case T-214/95 Vlaams Gewest v Commission [1998] ECR II717, para. 28; Order of 16 June 1998 in Case T-238/97 Comunidad Autónoma de Cantabria v Council [1998]
ECR II-2271, paras. 42-43.
169
Article 81, § 7, first para., Special Law on Institutional Reform.
170
Article 81, § 7, para. 3, Special Law on Institutional Reform.
171
Cooperation Agreement of 11 July 1994 between the federal State, the Communities and the Regions on the
procedures for instituting proceedings before an international or a supranational judicial body in a mixed
dispute (Moniteur belge, 1 December 1994).
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Conference will take the place of the one mentioned in Article 81, § 7, para. 2 of the Special
Law on Institutional Reform for those elements. If a decision is taken to summon, an
authorised federal official will be appointed to coordinate the Belgian claim before the Court.
The working group will be informed of every new step undertaken in the case.
The lack in principle of direct access of federated entities to international courts and of the
possibility for other subjects of international law to bring these entities before such courts in
matters which relate to the competences of these federated entities, illustrates that, on this
point too, international law has failed as of yet to take fully account of changes in State
organisation.
7. Concluding Remarks
The classical theory of international law, in which States were the only actors in the
international arena, has been overtaken by events and by contemporary practice. Non-State
entities have increasingly become recognised as international legal persons, with the capacity
to act at the international level as autonomous players within the limits of their international
legal personality. As far as federated entities of States are concerned, the Belgian
Communities and Regions are probably the most far-reaching example of this new
development. Since the 1993 constitutional reform, they are vested with considerable external
competences, including the conclusion of treaties.
It has become clear throughout this contribution, though, that international law has not
adapted to this modern evolution as yet. We can refer back at this point to the problem of
accommodating federated authorities in international organisations, the inadequacy of the
theory of exclusive State responsibility of the State and the problem of lack of active and
passive ius standi in iudicio for federated entities before international courts. We have
noticed a number of changes in the right direction, but it is clear that the process of
adjustment of international law to the new realities of State organisation is still in its infancy.
One can only express the wish that this process be continued and accelerated: only if
international law succeeds in answering these challenges in an adequate way will it remain
capable of effectively governing international relations. National, supranational and
international law should go hand in hand in this respect.
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