¹ Schütze, R, ‘On “Federal” Ground: The European Union as an (Inter)national Phenomenon’ (2009) 46 CML Rev 1105, 1105Google Scholar; cfDashwood, A, ‘The Relationship between the Member States and the European Union/Community’ (2004) 41 CML Rev 355 Google Scholar, 356 (‘a federation of sovereign States’).

² Ibid 1079: the EU’s ‘birth certificate’ is an international treaty.

³ Articles on the Responsibility of International Organizations, with commentaries, in Report of the International Law Commission on the Work of its Sixty-Third Session, UN Doc A/66/10 in (2011) Yearbook of the International Law Commission, vol II, pt 2 (hereinafter ‘ARIO’ or the ‘Articles’).

⁴ Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (signed 13 December 2007, entered into force 1 December 2009) [2010] OJ C83/01, art 47.

⁵ And thus to the EC’s treaty-making power: Select Committee on European Union, The Treaty of Lisbon: An Impact Assessment (Tenth Report) (HL 2008, 62-I), evidence of Sir Francis Jacobs to the House of Lords, Select Committee, S148. See also Schütze (n 1) 1105, note 2.

⁶ Prior to 2009, only the European Community had legal personality: see art 281 of the Consolidated Treaty Establishing the European Communities (previously art 210 of the Treaty Establishing the European Economic Community) (signed 25 March 1957, entered into force 1 January 1958) [2006] OJ C321/E/37 (hereinafter ‘EC Treaties’). For a review of the evolution of the EU’s personality vis-a-vis that of the Community between 1992 and 2007, see McGoldrick, D, ‘The International Legal Personality of the European Community and the European Union’ in Dougan, M and Currie, S (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Oxford, Hart Publishing, 2009) 181, 195–201Google Scholar.

⁷ This is confirmed in a series of succession letters that the Council of the EU and the European Commission sent jointly to the EU’s treaty partners and the depositaries of multilateral conventions at the end of 2009.

⁸ Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 [12]. The ‘international’ has in fact been dropped in later formulations: see McGoldrick (n 6) 182.

⁹ The breadth of these areas exceeds the scope of this study, but they are as follows. Some articles in the EC Treaty (n 6) made express provision for the EC to enter into international agreements: those relating to common commercial policy (art 133 EC), ‘association agreements’ with third states (art 310 EC), the environment (art 174 EC), development cooperation (art 181 EC), monetary or foreign exchange regime matters (art 111 EC), education, vocational training and youth (arts 149(3) and 150 EC), culture and public health (art 151 EC), and research and technological development (art 170 EC).

¹⁰ Article 216, para 1 of the Treaty on the Functioning of the European Union (TFEU) (signed 18 December 2007, entered into force 1 December 2009) [2008] OJ C115/47 is the general provision, allowing the EU to conclude an agreement with one or more third states or an international organisation where the treaties provide, or where the conclusion of an agreement is necessary in order to achieve, within the framework of the EU’s policies, one of the objectives referred to in the treaties, or is provided for in a legally binding EU act or is likely to affect common rules or alter their scope. Article 217 allows the EU to conclude association agreements; art 207 TFEU allows it to conclude treaties on common commercial policy; art 218 TFEU subsumes art 300 of the EC Treaty and art 24(6) of the pre-2007 Treaty on European Union (TEU) (foreign policy treaties); and art 219 of the TFEU makes provision for negotiations and the conclusion of international agreements concerning economic and monetary union. Several specific provisions also allow this: see, eg, art 8 of the revised TEU on developing special relationships with neighbouring states, art 37 allowing the EU to conclude agreements with states or international organiations in areas covered by the Common Foreign and Security Policy (CFSP); art 79(3) TFEU on concluding agreements with third states for the re-admission to their countries of origin or provenance of third-country nationals; art 209 TFEU relating to the objectives referred to in art 21 TFEU on the EU’s external action; art 208 TFEU on development cooperation; and art 214 TFEU on humanitarian aid.

¹¹ Article 300 EC Treaty. See Eeckhout, P, Relations of the European Union, 2nd edn (Oxford, Oxford University Press, 2004) 170 Google Scholar.

¹² Aust, A, The Modern Law of Treaties, 2nd edn (Cambridge, Cambridge University Press, 2007) 140 Google Scholar.

¹³ A term borrowed from Cremona, M, ‘Member States as Trustees of the Union Interest: Participating in International Agreements on Behalf of the European Union’ in Arnull, A, Barnard, C, Dougan, M and Spaventa, E (eds), A Constitutional Order of States: Essays in European Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 435 Google Scholar.

¹⁴ McGoldrick (n 6) 202.

¹⁵ At that time, international agreements under the Common Commercial Policy and Association Agreements with third states or international organisations: see arts 113 and 238 of the 1958 EC Treaty.

¹⁶ See generally Schütze, R, ‘Parallel External Powers in the European Community: From “Cubist” Perspectives Towards “Naturalist” Constitutional Principles?’ (2004) 23 Yearbook of European Law 225 CrossRefGoogle Scholar.

¹⁷ Case 22/70 Commission v Council (ERTA) [1971] ECR 263 [90]: ‘In carrying on the negotiations and concluding the agreement simultaneously in the manner decided on by the Council, the Member States acted, and continue to act, in the interest and on behalf of the Community in accordance with their obligations under article 5 of the Treaty.’

¹⁸ Opinion 1/76 Draft Agreement Establishing a European Laying-up Fund for Inland Waterway Vessels [1977] ECR 741.

¹⁹ Article 3(2) TFEU grants the EU an exclusive external competence where an international agreement ‘is necessary to enable the Union to exercise its internal competence’.

²⁰ In Commission v Council (ERTA) (n 17) [15]–[16], [23]–[27], the treaty-making power of the Community was presumed to be an additional instrument to implement the Community’s competence under the common transport policy. See also Opinion 2/91 (ILO Convention No 170) [1993] ECR I-1061 [15]–[17], where the very fact of the EU’s internal competence to adopt social provisions was sufficient to imply an external power to conclude international treaties on all such purposes.

²¹ Ibid [18]. See also Schütze, R, ‘Federalism and Foreign Affairs: Mixity as an (Inter) national Phenomenon’ in Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited: The EU and its Member States in the World (Oxford, Hart Publishing, 2010) 57, 77Google Scholar.

²² See generally Cremona (n 13): the ‘trustees’ doctrine there articulated suggests that, when the EU cannot act externally because it lacks the capacity to act internationally, its Member States must conclude or amend international agreements on its behalf.

²³ See d’Aspremont, J, ‘A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union’ in Kosta, V, Skoutaris, N and Tzevelekos, V (eds), The EU Accession to the ECHR (Oxford, Hart Publishing, forthcoming 2014)Google Scholar. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2236070, 2.

²⁴ Most prominently in Commission v Council (n 17) [14]. For further discussion, see Koutrakos, P, EU International Relations Law (Oxford, Hart Publishing, 2006) 77 Google Scholar et seq.

²⁵ Ibid 137–81, where Koutrakos enumerates these. In some of these cases, it is the sole party to the treaties, whilst in other cases, it is a party alongside some or all of the Member States.

²⁶ See Opinion 1/94 re WTO Agreement [1994] ECR I-5267, discussed in Eeckhout (n 11) 27–35 and 87–95.

²⁷ Status of Mission Agreement [2001] OJ L125/2. See also Sari, A, ‘Status of Forces and Status of Mission Agreements under the EDSP: The EU’s Evolving Practice’ (2008) 19 European Journal of International Law 67 CrossRefGoogle Scholar.

²⁸ Bono, R Gosalbo, ‘Some Reflections on the CFSP Legal Order’ (2006) 43 CML Rev 337 Google Scholar.

²⁹ See EU-NATO Agreement of 14 March 2003, [2003] OJ L80/35; and EU-ICC Agreement of 10 April 2006, [2006] OJ L115/50.

³⁰ See EU-EC-Switzerland Schengen Association Agreement of 2004 (and Protocol on the Accession of Liechtenstein of 2006) and EU-EC-Iceland-Norway Schengen Association Agreements of 1999.

³¹ See International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, GA Res 61/106, Annex I, UN GAOR, 61st Sess, Supp No 49, at 65, UN Doc A/61/49 (2006), entered into force 3 May 2008.

³² Tomuschat, C, ‘The International Responsibility of the EU’ in Cannizzaro, E (ed), The EU as an Actor in International Relations (The Hague, Kluwer, 2002) 177 Google Scholar.

³³ As the ICJ noted in Reparation for Injuries, Advisory Opinion, ICJ Reports 1948, 174, international personality is the ‘capacity to be titular to international rights and obligations’, concluding ultimately (179) that the UN, as an international organisation with ‘objective international personality’, was also the bearer of rights and duties under international law. This rather expansive definition also admits that subjects of international law need not be identical in their nature, nor must their rights and obligations be of the same kind and extent.

³⁴ Ibid 185.

³⁵ Ibid. It has been suggested by Talmon, S, ‘Responsibility of International Organizations: Does the European Community Require Special Treatment?’ in Ragazzi, M (ed) International Responsibility Today: Essays in Memory of Oscar Schachter (The Hague, Brill, 2005) 412 Google Scholar, that a similar provision to Article 5 of the Articles on State Responsibility should be embodied in the ARIO, whereby situations where the conduct of Member States, when acting as ‘agents’ of international organisations, would entail the attribution of such conduct to the organisation itself.

³⁶ Article 2 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, in Report of the International Law Commission on the Work of its Fifty-Third Session, UN Doc A/CN.4/SER.A/2001/Add 1, in (2001) Yearbook of the International Law Commission, vol II, pt 2 (hereinafter ‘ASR’ or the ‘Articles on State Responsibility’). With respect to international organisations, this principle is codified in art 4(2) ARIO.

³⁷ Article 4(b) ARIO.

³⁸ ARIO, Commentary to Article 6, 19, para 9: the rules of the organisation are not the only criterion, leaving open the possibility that in exceptional circumstances, functions may be considered as given to an organ or agent even if this is not based on the rules of the organisation.

³⁹ See, eg, Paasivirta, E and Kuijper, PJ, ‘Does One Size Fit All? The European Community and the Responsibility of International Organizations’ (2005) 36 Netherlands Yearbook of International Law 169, 192CrossRefGoogle Scholar.

⁴⁰ Gaja suggested that this internal view went against the case law of the European Court of Human Rights: see International Law Commission (G Gaja Special Rapporteur), Seventh Report on Responsibility of International Organisations (27 March 2009), UN Doc A/CN.4/2009, 12–13 (para 33), where he invoked Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland App No 45036/98 (ECtHR, 30 June 1995) para 153; and Joined Cases C-402/05 P and C-415/05 P Kadi, Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351 [313]. In his 8th Report, A/CN.4/640, 37, he invoked Kokkelvisserij v Netherlands App No 13645/05 (ECtHR, 20 January 2009).

⁴¹ ARIO, Commentary to Article 7, para 2.

⁴² Behrami and Behrami v France and Saramati v France, Germany and Norway, Admissibility Decision App Nos 71412/01 and 78166/01 (ECtHR, 2 May 2007).

⁴³ Ibid [141].

⁴⁴ ARIO, Commentary to Article 7, 21, para 10.

⁴⁵ Ibid. The ILC has a long footnote in its Commentary to Article 7 (ibid 23): see, eg, A Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008) 8 Human Rights Law Review 151; Klein, P, ‘Responsabilité pour les faits commis dans le cadre d’opé rations de paix et é tendue du pouvoir de contrô le de la Cour europé enne des droits de l’homme: quelques considé rations critiques sur l’arret Behrami et Saramati, (2007) 53 Annuaire français de droit international 43, 55CrossRefGoogle Scholar; Larsen, KM, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’ (2008) 19 European Journal of International Law 509, 521–22CrossRefGoogle Scholar; Bodeau-Livinec, P, Buzzini, G and Villalpando, S, ‘Note: Behrami & Behrami v France; Saramati v France, Germany and Norway ’ (2008) 102 American Journal of International Law 323, 329CrossRefGoogle Scholar.

⁴⁶ ARIO, Commentary to Article 14, 37, para 4.

⁴⁷ See 7th Report by Gaja (n 40) para 18.

⁴⁸ A term borrowed from Talmon (n 35) 405.

⁴⁹ ARIO, Commentary to Article 15, 38, para 4.

⁵⁰ Ibid, quoting from the ASR, Commentary to Article 17 of the ASR, para 7, from which the principle was taken.

⁵¹ ARIO, Commentary to Article 17, 41, para 4.

⁵² See Bosphorus (n 40) [157].

⁵³ ARIO, Commentary to Article 17, 41, para 7.

⁵⁴ ARIO, Commentary to Article 16, 40, para 4, citing ASR, Commentary to Article 18, para 2.

⁵⁵ International Law Commission, Sixtieth session Geneva, (5 May–6 June and 7 July–8 August 2007), Responsibility of international organizations: Comments and observations received from international organizations, UN Doc A/CN.4/582, 4.

⁵⁶ McGoldrick (n 6) 191 points out that some treaties, such as the Marrakech Agreement Establishing the World Trade Organization (entered into force 15 April 1994), 1867 UNTS 3 (hereinafter ‘WTO Agreement’), make special provision for the EU (at Article XI) or by reference to ‘regional economic integration organisations’, which in practice only covers the EU.

⁵⁷ Paasivirta and Kuijper (n 39) 188–92.

⁵⁸ From the European law perspective, Schütze (n 1) 1091 also takes issue with the sui generis argument for several reasons: 1) it lacks explanatory value, being based in conceptual tautology that asserts no room for analysis; 2) it views the EU in negative terms and thus indirectly perpetuates the concept of indivisible sovereignty; 3) the sui generis classification fails to capture the EU’s evolution over the last decades; 4) the sui generis classification is historically unfounded, as ‘All previous existing Unions of States lay between international and national law’.

⁵⁹ International Law Commission, Report of its 61st Session (2009), Commentary on Article 63, UN Doc A/64/10, 176, para 2. See remarks by Hoffmeister, F, ‘Litigating against the European Union and its Member States: Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations?’ (2010) 21 European Journal of International Law 723, 729–30CrossRefGoogle Scholar.

⁶⁰ ARIO, Commentary to Article 64, 101, paras 3–6; M & Co v Germany App No 13258/87 (ECtHR, 9 February 1990) 138; European Communities—Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs—Complaint by the United States (‘EC–Trademarks and Geographical Indications (US)’), WT/DS174/R; Bosphorus (n 40); Kokkelvisserij (n 40).

⁶¹ Ibid 102, para 7.

⁶² ASR (n 36), Commentary to Article 55, 140, paras 1–2.

⁶³ EU Statement—United Nations 6th Committee: Report of the International Law Commission on Responsibility of International Organisations, Statement on behalf of the European Union by Lucio Gussetti, Director, Principal Legal Adviser, European Commission, at the UN General Assembly 6th Committee (Legal) 66th Session: Report of the International Law Commission on the Work of its Sixty-Third Session on Responsibility of International Organisations, 24 October 2011.

⁶⁴ D’Aspremont (n 23) 10.

⁶⁵ Ibid 9, referring to Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’, ACIL Research Paper No 2011-03 (SHARES Series), 29.

⁶⁶ Ibid 3, referring to art 305(1)(f) of the United Nations Convention on the Law of the Sea (signed 10 December 1982, entered into force 16 November 1994), 1833 UNTS 396; the 1995 Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, A.CONF.164/37 (8 September 1995); the 1994 WTO Agreement (n 56); the Energy Charter Treaty (signed 17 December 1994, entered into force 16 April 1998), 2080 UNTS 95, which expressly uses the term ‘REIO’; art 13 of the 1985 Vienna Convention for the Protection of the Ozone Layer (signed 22 March 1985, entered into force 22 September 1998), 1513 UNTS 323; art 22 of the 2000 United Nations Framework Convention on Climate Change (signed 29 May 1992, entered into force 4 March 1994) 1771 UNTS 107; art 34 of the 1992 Convention on Biological Diversity (signed 5 June 1992, entered into force 29 December 1993), 1760 UNTS 79; art 36 of the 2000 Cartagena Protocol in Biosafety (signed 29 January 2000, entered into force 11 September 2003), 2226 UNTS 208; and the 2000 United Nations Convention against Corruption (signed 31 October 2003, entered into force 14 December 2005), 2349 UNTS 41.

⁶⁷ Hoffmeister (n 59) 746: ‘the conduct of a State that executes the law or acts under the normative control of a regional economic integration organization may be considered an act of that organization under international law, taking account of the nature of the organization’s external competence and its international obligations in the field where the conduct occurred’. Hoffmeister calls for an explicit acknowledgment rather than the implicit one in art 64 (746–47).

⁶⁸ Schütze (n 1) 1092.

⁶⁹ Ibid.

⁷⁰ See AG Maduro, Case C-402/05 P Yassin Abdul Kadi v Council of EU and Commission of EC [2008] ECR I-06351, citing Case 294/83 Les Verts [1986] ECR I-1339 [23].

⁷¹ Schütze (n 1) 1088.

⁷² ASR (n 36) 45. This reprises the essence of Article 3 of the Harvard Draft Code on International Responsibility (1929) 23 American Journal of International Law 131, 145: ‘a state is not relieved of responsibility because an injury to an alien is attributable to one of its political subdivisions, regardless of the extent to which the national government, according to its constitution, has control of the subdivision’.

⁷³ Ibid 39, para 5.

⁷⁴ LaGrand (Germany v United States of America), Provisional Measures [1999] ICJ Rep 9, at 16, para 28. See also LaGrand (Germany v United States of America), Judgment [2001] ICJ Rep 466, 495, para 81.

⁷⁵ See I Bernier, ‘Remarks: ASIL/CCIL Joint Panel on the Conduct of International Relations in Federal States’ (1991) Proceedings of the American Society of International Law 132, 135.

⁷⁶ A colourful definition of a federal state is that it is a ‘pluralistic democracy in which two sets of governments, neither being fully at the mercy of the other, legislate and administer within their separate and yet interlocked jurisdictions’: Duchacek, I, ‘Perforated Sovereignties: Towards a Typology of New Actors in International Relations’ in Michelmann, HJ and Soldatos, P (eds), Federalism and International Relations: The Role of Subnational Units (Oxford, Clarendon, 1990) 1, 3Google Scholar.

⁷⁷ According to Rudolf, W, ‘Federal States’ in Wolfrum, R (ed), Max-Planck Encyclopaedia of Public International Law (Oxford, Oxford University Press, 2012) vol III, 1136, para 4 Google Scholar, only 19 states are properly constituted as federal states: Argentina, Australia, Austria, Bosnia-Herzegovina, Brazil, Canada, Germany, India, Malaysia, Mexico, Micronesia, Nigeria, Russia, South Africa, Switzerland, Tanzania, the United Arab Emirates, the US and Venezuela. Serbia and Montenegro has since formally dissolved. To this one can add Belgium, a federal state in all but name.

⁷⁸ An important work in this respect is Marzo, L di, Component Units of Federal States and International Agreements (Alphen aan den Rijn, Sijthoff & Noordhoff, 1980)Google Scholar.

⁷⁹ The terminology of ‘open’ and ‘closed’ federations is developed in Fassbender, B, Der offene Bundesstaat (Tübingen, Mohr, 2006)Google Scholar.

⁸⁰ The practices of the US, Canada, Australia, Germany, Austria, Switzerland and Belgium are canvassed in more detail in Hernández, GI, ‘Federated Entities in International Law: Disaggregating the Federal State?’ in French, D (ed), Statehood and Self-Determination (Cambridge, Cambridge University Press, 2013) 491, 494–500CrossRefGoogle Scholar.

⁸¹ Treaty practice in Germany is conducted in accordance with the Lindauer Abkommen (Lindau Agreement) of 14 November 1957 between the Federal Government and the Länder governments, reprinted in Dreier, H (ed), Grundgesetz Kommentar, 2nd edn (Tübingen, Mohr Siebeck, 2006) vol II, 794–95Google Scholar, through which the Länder agreed to delegate its agreementmaking powers so as to allow the federal government to conclude treaties in its own name on subjects deemed to be predominantly of federal concern.

⁸² Article 73 of the Basic Law.

⁸³ So-called ‘konkurriende Gesetzgebungszuständigkeit ‘: ibid art 74.

⁸⁴ So-called ‘Rahmengesetzgebungszuständigkeit’: ibid art 75.

⁸⁵ Cede, F and Hafner, G, ‘Republic of Austria’ in Hollis, DB, Blakeslee, MR and Ederington, LB (eds), National Treaty Law and Practice: Dedicated to the Memory of Monroe Leigh (Leiden, Brill, 2005) 59, 61Google Scholar. Article 271(2) of the pre-1992 Constitution of the Socialist Federal Republic of Yugoslavia provided for a similar competence for the federal republics.

⁸⁶ Article 56(1–2). See also Wildhaber, L, Treaty-Making Power and Constitution (Basel, Helbing & Lichtenhan, 1971) 315 Google Scholar; and VEB 24 (1954) No 5 (Switzerland). In Switzerland, the cantons have a limited international legal personality (petite personnalité ); the Swiss Constitution thus leaves some limited room for the cantons to appear as subjects of rights and duties under international law.

⁸⁷ See arts 167–69 of the 1993 Coordinated Constitution of Belgium.

⁸⁸ See, eg, the agreements of the three Belgian regional governments with France and the Netherlands for the protection of the Scheldt: Belgium (Brussels-Capital, Flanders, Wallonia Regional Governments)-France-Netherlands: Agreements on the Protection of the Rivers Meuse and Scheldt, Charleville Mezières (France), 26 April 1994, (1995) 34 ILM 854 (Scheldt); (1995) 34 ILM 859 (Meuse). Article 9 of each of the two agreements requires each of the regional governments separately to notify France upon the completion of their required domestic procedures for entry into force (ibid 858).

⁸⁹ Article 1, s 10, cl 3 of the Constitution of the United States of America provides that ‘no state shall, without the consent of Congress … enter into any agreement or compact with … a foreign power’.

⁹⁰ British North America Act 1867, 30 & 31 Vict, ch 3 (now known as the ‘Constitution Act 1867’, name changed by the Constitution Act 1982, itself sch B to the Canada Act 1982 (UK), ch 11, s 91 (enumerating federal powers) and s 92 (enumerating provincial powers)). Section 132 of the British North America Act 1867 assigns to the federal Parliament ‘all pow ers necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire, towards Foreign Countries arising under Treaties between the Empire and such Foreign Countries’ (emphasis added).

⁹¹ Canada insists on these accords-cadre and refuses to recognise its provinces’ international agreements as such unless it has consented to them: see Copithorne, M, ‘Canada’ in Hollis, DB, Blakeslee, MR and Ederington, LB (eds), National Treaty Law and Practice: Dedicated to the Memory of Monroe Leigh (Leiden, Brill, 2005) 91, 103Google Scholar.

⁹² An example of this is the Franco-Canadian Cultural Agreement (France-Canada), 17 November 1965, Can TS 1965/21, reprinted in (1965) 17 External Affairs (Canada) 514, which has allowed for Quebec and France to enter into a number of agreements. See, eg, the exchange of letters, dated 23 and 27 December 1963, between the French Ambassador in Ottawa and the Department of External Affairs of Canada (in respect of technical cooperation); and the exchange of letters, dated 27 February 1965, between the Secretary of State of External Affairs of Canada and the French chargé d’affaires (in respect of cultural affairs).

⁹³ The US Supreme Court stated in Virginia v Tennessee (1893) 148 US 503, 518 that the prohibition against the conclusion of ‘treaties’ found in art I, s 10 of the US Constitution did not apply to agreements concerning such minor matters as the adjustment of boundaries, which have no ‘tendency to increase and to build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States’.

⁹⁴ The earliest example being North Dakota’s administrative interstate agreements with Canadian municipalities, upheld by the Supreme Court of North Dakota in McHendry County et al v Brady 37 North Dakota 59, (1917) 163 NW 540 (United States). In 2000, Missouri concluded a Memorandum of Agreement with Manitoba on water issues without Congressional authorisation: see the letter from William H Taft I V, the Legal Adviser to the US Department of State, to Senator Byron Dorgan of North Dakota: ‘Capacity to Make: Role of Individual States of the United States: Analysis of Memorandum of Understanding between Missouri and Manitoba’ 2001 Digest A (United States), 179–98. See also Duchacek, I, ‘Perforated Sovereignties: Towards a Typology of New Actors in International Relations’ in Michelmann, HJ and Soldatos, P (eds), Federalism and International Relations: The Role of Subnational Units (Oxford, Clarendon Press, 1990) 1 Google Scholar, 20, which also mentions the jointly financed water development in the Souris River Basin, linking Saskatchewan, North Dakota and Manitoba.

⁹⁵ See Perrin, GJ, Droit international public: sources, sujets, caractéristiques (Zurich, Schulthess, 1999) 562 Google Scholar; Salmon, J, ‘Conclusions’ in Les États fédéraux dans les relations internationales (Brussels, Bruylant, 1984) 505, 507Google Scholar.

⁹⁶ Schütze, R, ‘Supremacy without Pre-emption? The Very Slowly Emerging Doctrine of Community Pre-emption’ (2006) 43 CML Rev 1023, 1028–29Google Scholar. The principle of disapplication is embodied in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629.

⁹⁷ R Schütze, ‘The European Community’s Federal Order of Competences—A Retrospective Analysis’ in Dougan and Currie (n 6) 63, 74–75 points out that the concurrent nature of these competences is only temporary: as the EU begins to exercise competence in these fields, the Member States will lose their competence.

⁹⁸ From the EC Treaty, arts 175–76 EC (environmental policy) and 137 EC (social policy); art 153 (consumer protection); art 152 EC (protection of public health); art 63(1)–(2) EC (visa and asylum matters).

⁹⁹ Articles 2 and 5 TFEU; Schütze, R, ‘Lisbon and the Federal Order of Competences: A Prospective Analysis’ (2008) 33 European Law Review 709 Google Scholar, 717 characterises coordinating competences as normatively stronger than complementary competences, but somewhat less so than shared competences.

¹⁰⁰ See, eg, art 35 EC, relating to the Common Agricultural Policy; art 180 EC, which obliges the Community and Member States to coordinate their policies on development and cooperation; and art 133(6) EC on trade in cultural and audiovisual services, educational services and social and human health services.

¹⁰¹ Schütze (n 21) 80, who recalls that the first mixed agreement concluded by the EEC was the 1961 Agreement establishing an association between the European Economic Community and Greece ([1963] OJ L26/294) and suggests that some one-fifth of all Community agreements are mixed.

¹⁰² Hoffmeister (n 59) 744.

¹⁰³ But cfCasteleiro, A Delgado, ‘EU Declarations of Competence to Multilateral Agree ments: A Useful Reference Base?’ (2012) 17(4) European Foreign Affairs Review 491, 508 Google Scholar, who objects to the practice of declarations of competence being made alongside mixed agreements on the basis that these do nothing to resolve the concerns over legal certainty that could be raised by third parties.

¹⁰⁴ Where the EC appears as a party and is exclusively responsible at the WTO, this proceeds relatively smoothly; eg, as of 2012, the EC had been involved in 87 cases as a complainant, in 70 as a respondent and yet another 118 as a third party. Conversely, the Member States have only participated in some 13 disputes: see Casteleiro, A Delgado and Larik, J, ‘The “Odd Couple”: The Responsibility of the EU at the WTO’ in Evans, M and Koutrakos, P (eds), The International Responsibility of the European Union: European and International Perspectives (Oxford, Hart Publishing, 2013) 233, 239Google Scholar. More than half (266 out of 438) of the disputes brought before the WTO DSB and Appellate Body (AB) involve the EU as a party; however, within the European legal order itself, there seems to be a reluctance to ascribe community liability. See, eg, Joined Cases C-120/06 P and C-121/06 P FIAMM and Georgio Fedon & Figli v Council and Commission [2008] ECR I-6513, where it was concluded that there could be no community liability for damages from EC non-compliance with WTO agreements.

¹⁰⁵ Hoffmeister (n 59) 730. See also Eeckhout, P, ‘The EU and its Member States in the WTO: Issues of Responsibility’ in Bartels, L and Ortino, F (eds), Regional Trade Agreements and the WTO Legal System (New York, Oxford University Press, 2006) 449 Google Scholar.

¹⁰⁶ However, as a general rule, it is probably fair to state that the WTO’s practice is generally to recognise the ‘veil’ of the EU to the exclusion of its Member States: see Delgado Casteleiro and Larik (n 104) 227.

¹⁰⁷ Panel Report: European Communities—Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R (adopted 22 June 1998) para 8.16. It is also worth nothing that this was in application of a procedural agreement reached between the US, the UK, Ireland, and the EU.

¹⁰⁸ Hoffmeister (n 59) 732.

¹⁰⁹ Panel Report, European Communities—Selected Customs Matters, WT/DS315/R, adopted 11 December 2006.

¹¹⁰ Ibid para 2.2.

¹¹¹ Panel Report, European Communities—Geographic Indications, WT/DS174/R, para 7.725.

¹¹² Panel Report, European Communities—Measures Affecting Asbestos and Products Containing Asbestos, WT/DS/135/R, paras 8.1–8.9; Panel Report, European Communities— Biotech European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R and WT/DS293/R, paras 7.98–7.100.

¹¹³ Schütze (n 21) 81.

¹¹⁴ See Dolmans, MJ, Problems of Mixed Agreements: Division of Powers within the EEC and the Rights of Third States (The Hague, TMC Asser Press, 1985) 95 Google Scholar.

¹¹⁵ Schütze (n 21) 81.

¹¹⁶ The present author is contributing to a three-volume edited collection for the project on Shared Responsibility in International Law (SHARES) led by André Nollkaemper: see www. shares.nl for more information.

¹¹⁷ See Case C-316/91 Re European Development Fund: European Parliament v Council of the European Union [1994] ECR I-625 [29] on the joint liability of the EC and the Member States under the Lomé IV Convention. See also Case C-327/91 France v Commission [1994] ECR I-3641.

¹¹⁸ See above, section III.B.

¹¹⁹ Parliament v Council (n 117).

¹²⁰ ARIO, Commentary to Article 48, 76, para 1. Interestingly, in European law, the EU agreement in issue in this case, with the African, Caribbean and Pacific groups (the ACP States), is seen as a ‘bilateral mixed agreement’: see Kuijper, PJ, ‘International Responsibility for EU Mixed Agreements’ in Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited: The EU and its Member States in the World (Oxford, Hart Publishing, 2010) 208, 210Google Scholar.

¹²¹ Ibid Commentary to Article 62, 97, 5, cites the Institute of International Law’s 1995 resolution to this effect: ‘there is no general rule of international whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members’. See (1996) 66(II) Annuaire de l’Institut de Droit International 445.

¹²² Ibid 97, paras 6–7.

¹²³ Ibid para 8.

¹²⁴ Ibid 99, para 13.

¹²⁵ However, cfVerdross, A, ‘Theorie der mittelbaren Staatenhaftung’ (1948) 1 Österreichische Zeitschrift für öffentliches Recht 388 Google Scholar, who suggests that in dealing with the federated entity, the third state or entity will have recognised the risk and that it ought to have dealt with the federal government directly in order to avoid these problems.

¹²⁶ Although cf Delgado Casteleiro and Larik (n 104) 237, who argue that joint and several responsibility should only apply to ‘bilateral mixed agreements’ and not multilateral agreements’.

¹²⁷ But cf Delgado Casteleiro (n 103) 510.

¹²⁸ Hoffmeister (n 59) 735.

¹²⁹ See, eg, App No 24833/94, Matthews v UK, judgment of 18 Febuary 1999 [32], avail able at: www.echr.coe.int/echr/Homepage_EN. In Bosphorus (n 40) [153].

¹³⁰ See, eg, Matthews, ibid; Bosphorus (n 40); cf Connolly v 15 Member States of the EU, App No 73274/01, 9 December 2008, where there was only EU action, with no Member State involvement, and where the Court concluded that the alleged breach was not attributable to the Member States because it did not happen within their jurisdiction, the requirement under art 1 ECHR.

¹³¹ Hoffmeister (n 59) 739.

¹³² Schütze, R, ‘EC Law and International Agreements of the Member States: An Ambivalent Relationship’ (2006–07) 9 Cambridge Yearbook of European Legal Studies 387 CrossRefGoogle Scholar, 399–401 concluded that the ambivalent equivocal practice of the ECtHR vis-a-vis the Community legal order reflected an unsettled relationship, partly due to the inability of the EU to accede to the ECHR.

¹³³ Protocol No 8 to the Treaty of Lisbon [2010] OJ C83/273.

¹³⁴ D’Aspremont (n 23) 12.

¹³⁵ CoE Doc CDDH (2011) 009 (14 October 2011) 24, para 54.

¹³⁶ Article 3, para 1, lit b of the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, contained in Council of Europe Doc CDDH (2011) 009 (14 October 2011), seeking to amend Article 36 of the ECHR with the addition of the following paragraph: ‘4. The European Union or a member State of the European Union may become a co-respondent to proceedings by decision of the Court in the circumstances set out in the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms. A co-respondent is a party to the case. The admissibility of an application shall be assessed without regard to the participation of a co-respondent in the proceedings.’

¹³⁷ A party shall become co-respondent only at its own request, as it cannot be forced into proceedings where it was not named in the initial application: see CDDH-UE(2011)16, para 47.

¹³⁸ Article 3(2) of the Draft Agreement. Article 3(3) provides that, where an application is directed against the EU, Member States may become co-respondents ‘if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of the Treaty on European Union, the Treaty on the Functioning of the European Union or any other provision having the same legal value pursuant to those instruments, notably where that violation could have been avoided only by disregarding an obligation under those instruments’.

¹³⁹ Gaja, G, ‘The “Co-Respondent Mechanisms” According to the Draft Agreement for the Accession of the EU to the ECHR’ (2013) 2(1) ESIL Reflections 5 Google Scholar.

¹⁴⁰ Ibid 3.

¹⁴¹ D’Aspremont (n 23) 13.

¹⁴² A Delgado Casteleiro, ‘United We Stand: The EU and its Member States in the Strasbourg Court’ in Kosta, Skoutaris and Tzevelekos (n 23) 12–13.

¹⁴³ An excellent analysis of the interplay between the EU and the European Convention is Eckes, C, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76(2) MLR 254 CrossRefGoogle Scholar.

¹⁴⁴ Council of Europe Accession Proposal (n 135) 20, para 33.

¹⁴⁵ Ibid 20, para 32.

¹⁴⁶ Eckes (n 143) 267; Lock, T, ‘End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR’ (2012) 31(1) Yearbook of European Law 162, 166 Google Scholar, especially given the European Court of Justice’s view that it considers itself bound, in cases when the EU is a party to an international agreement that sets up a judicial disputes mechanism, by that judicial mechanism’s interpretation of the international agreement: see Opinion 1/91 re EEA [1991] ECR I-6079 [39]–[40].

¹⁴⁷ See Schütze, R, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press 2009) ch 1 CrossRefGoogle Scholar for a forceful view that a ‘federation’ must be viewed more broadly than only a ‘federal State’.