The Use of the 'Disconnection Clause' in International Treaties: What Does it tell us about the EC/EU as an Actor in the Sphere of Public International Law?

15 Pages Posted: 14 May 2008

See all articles by Maja Smrkolj

Maja Smrkolj

Max Planck Institute for Comparative Public Law and International Law

Date Written: May 14, 2008

Abstract

In the late 1980s Member States of the European Community (EC) and the EC itself began with the practice of seeking to introduce so-called "disconnection clauses", clauses according to which in their relations inter se certain of the parties to the multilateral convention would not apply the rules of the convention but specific rules agreed among themselves, into multilateral treaties to which either Member States alone were to become parties, as well as in the mixed agreements which also the EC joined. This treaty-making practice did not go unnoticed. The 2006 International Law Commission Study Group Report on Fragmentation of International Law noted the ambiguity of the clause and suggested that this practice raises doubts about the equal application of treaty norms between parties, possibly enabling the EC and its member states to proceed to a negative derogation from the provisions of the treaty. In October 2007 also the Committee of Legal Advisers on Public International Law (CAHDI) was mandated by the CoE Council of Ministers to examine and to report the consequences of the "disconnection clause" in international law and for CoE conventions. Among various means of a strategy to establish, promote and defend the organizational and substantial aquis of the EU in the multilateral sphere the technique of "disconnection clauses" has been chosen for this paper, being an example that has so far attracted the most attention, as an indicator for European Union's attitude towards international law.

According to the provisional results, the impression is that EC/EU practice relating to the "disconnection clause" is not a very consistent one and that the institutions themselves do not share the same conception of its implications. Having in mind the fact that mixed agreements are becoming the prevailing treaty practice, it also seems that for this type of agreements the "disconnection clause" is completely superfluous, unless the strategy behind it is to facilitate actual evasion of treaty provisions that bind the Community or Union. Also not conceivable is the use of the clause in treaties dealing with human rights issues. Further reconsideration is due to alternative means to enable the EC/EU to retain (and/or to declare) its possibility to apply the regulatory framework of international treaties in a way pursuant to its onward level of integration and facilitating that this happens in a way transparent to other parties to respective treaties. And finally, it seems that special attention should be directed to the exclusive nature of the clause to the Council of Europe Conventions since these cases have attracted the most attention among practitioners and scholars and indeed it does not seem obvious why European Union should need to negatively depart from common European co-operative and substantial framework facilitated within the CoE.

Keywords: EU Law, EU external affairs, international agreements, disconnection clause, VCLT

JEL Classification: K33

Suggested Citation

Smrkolj, Maja, The Use of the 'Disconnection Clause' in International Treaties: What Does it tell us about the EC/EU as an Actor in the Sphere of Public International Law? (May 14, 2008). Available at SSRN: https://ssrn.com/abstract=1133002 or http://dx.doi.org/10.2139/ssrn.1133002

Maja Smrkolj (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany
+496221482310 (Phone)

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