Monday, October 10, 2011
Before moving on to analysis of the other legal aspects of EU Advocate General Juliane Kokott's non-binding opinion, we feel compelled to devote one more day to discussion of the opinion's fascinating declaration that the EU is not bound by the Chicago Convention. While it isn't clear that the Advocate General's opinion is wrong on this point, it is worth considering the ramifications. Clearly the EU has not as a body signed the Chicago Convention, and as Kokott's opinion observes, the terms of the EU incorporation treaty do not obligate the EU to uphold all of the provisions of its member states' treaties. Under prevailing rules of state succession, a successor state, though not formally a signor, would assume the treaty obligations of the prior state. See Vienna Convention on Succession of States in respect to Treaties (1978) (available here). However, the EU is not formally a successor to its member states which still retain independent legal identities. The question then becomes whether the EU is a functional successor to its member states in the areas governed by the treaty in question by virtue of having replaced its member states in the international aviation trade arena and in the duties assigned to those member states under the Chicago Convention. For a description of functional succession theory, See Noelle Quenivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 Geo. Wash. Int'l L. Rev. 587, 606-07 (2010). One could point to the aviation agreements the EU has entered into on behalf of its member states, notably the 2007 and 2010 EU-US agreements as evidence supporting the argument. However, the opinion notes that the member states still retain some autonomy in aviation decisions, and appears to place a lot of weight on the fact that the individual member states still represent themselves at meetings of the ICAO, the international body established by the Chicago Convention, rather than have the EU represent them. The opinion described the level of EU replacement of member state functions in the aviation area as "mixed" and stated that the EU could not be considered a functional successor until replacement in the aviation area was complete. Again, the opinion is not necessarily incorrect in its application of functional succession theory, and functional succession theory is not customary international law. However, this interpretation creates exactly the type of problem the theory was intended to avoid: the ability of some states to use an international organization to vitiate their commitments. Under this line of thinking the EU could presumably violate any of the Chicago Convention's commitments without penalty, as could a hypothetical U.S.-Canadian union formed explicitly for that purpose. Perhaps to deflect from this criticism and to discourage any attempt to hold individual EU member states accountable for violations committed by the EU institutions in which they participate, the opinion went on to argue that the ETS wouldn't violate the Chicago Convention even if the Convention were applicable, a claim we'll examine further tomorrow. Still, for now, it's worth calling attention to the significant implications of this opinion.
Edited for clarity 10/12.