A contractarian critique of the theory of auto-limitation: the fundamental law of international relations.

• Author: Wilensky, Eric S.
• Position: Obligation to adhere to treaties

INTRODUCTION

1. The Problem

   The year is 2085. Five years ago the Supreme Court overruled Roe v. Wade. (1) The Supreme Court has just upheld against constitutional challenge a federal law that prohibits abortion throughout the country. The Court's reasoning is that life begins at conception and is present throughout pregnancy; and therefore, the federal government has a compelling interest in protecting that life beginning at conception. (2) Subsequently, the government of Vermont has issued a statement that it will not abide by the Supreme Court's decision and will use its state national guard to keep abortion clinics open. (3) Its argument is that the Constitution created a dualist system of government, (4) in which domestic (Vermont) and international (United States) laws operate with different purposes and constituencies. Essentially, Vermont argues that since the signing of the Constitution, each law of the United States had to be accepted separately into Vermont law (or, alternatively, not rejected by the Vermont government) before it acquired binding force within the state. While previously it never exercised its right to negate federal law, Vermont argues that it always has retained the right to invalidate a United States law.

   Vermont's argument, indeed entirely hypothetical, seems quite preposterous. (5) An American state never would disregard a Supreme Court opinion based on this argument. This state of certainty, however, does not exist within the European Union. Today, "the courts of the Member States (6) have understandably claimed a voice in determining the force and effect of Community law in their own domestic legal orders." (7) In Brunner v. European Union Treaty, the German Federal Constitutional Court went so far as to state that Germany retains its sovereign right to rescind its membership in the Union at any time. (8) The basic argument that is taking place within the European Union, both in the realm of the courts and the realm of politics, is over the nature and scope of international law. (9)

   Whether international law is really law is a question that legal theorists long have dealt with. (10) Professor H.L.A. Hart recharacterized this fundamental question by separating it into two separate inquiries: (1) How can international law be binding? (11) and (2) Are states fundamentally capable of being the subjects of legal obligation? (12) I will deal strictly with the second of these two issues, for it forces me to confront an inherent conflict in the concept of international law. If states are sovereign entities, then they must have complete and total power. But as soon as one contemplates an international legal structure, one must contemplate a sovereign state of limited powers. (13)

   I will show that this conflict--which on its face seems to prevent the formation of an international legal structure (14) to coexist with sovereign states--is merely illusory. In doing so, I will provide a framework in which to analyze specific treaties to determine whether or not they have created an international legal structure that avoids this conflict. I will do this by showing that at times sovereign states are not only permitted, but also are naturally obligated to cede a portion of their sovereignty, thus becoming subjects of legal obligation and limiting their autonomy.

   In order to accomplish this, I expand on the contractarian theory of Thomas Hobbes. (15) I use a contractarian theory specifically because I find that theory the most compelling as to the formation of government. I use Hobbes's work because he too identified this fundamental conflict between autonomous creatures and the formation of a government. In his writings, however, he dealt with the autonomous individual and the formation of a sovereign state; he did not deal with sovereign states and the formation of an international legal structure.

   As briefly shown above, the European Union (16) currently provides the best example of the importance of this issue. (17) While the European Union can point to the European Coal and Steel Community as its origin, (18) the institution's structure and scope has tended toward a more centralized international legal structure. (19) The European Court of Justice, the highest court within the European Union, has attempted to capitalize on the treaty framework (20) in order to assert its supremacy over Member State courts. In a decision that Professor Friedrich Kubler likens to the European version of Marbury v. Madison, (21) the European Court of Justice defined the European Community as a "new legal order of international law for the benefit of which the states have limited their sovereign rights." (22) In response to this decision and, more importantly, to the growing apprehension of the loss of autonomy that Member State courts are facing, many Member State court decisions have reserved the right of their respective states to opt out of the decisions of the European Court of Justice. For example, in Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle fur Getreide und Futtermittel, (23) the German Federal Constitutional Court stated that in the case of conflict between European Union law and German fundamental rights, German fundamental rights would prevail. (24) Italian courts also have reserved their right to invalidate European Union law if it conflicts with "fundamental principles of [the Italian] constitutional order." (25) As mentioned above, one German court decision even asserts that Germany may opt out of the European Union at any time. (26) An Italian court has also attempted to say, in a decision subsequently overruled by the European Court of Justice, that Italy may invalidate European Union Law simply by passing subsequent legislation. (27) Thus, to a Member State that finds itself in the hypothetical situation that the German court presents in Internationale Handelsgesellschaft, (28) where European Union law conflicts with fundamental constitutional principles, an argument that sovereign states can never give away even a portion of their sovereignty is an extremely powerful one. This argument, which Professor Hart defines as the "auto-limitation" theory, (29) is a logical conclusion if one were to accept the conflict described above (30) as a truism. Under the auto-limitation theory, "a state's agreements or treaty engagements are treated as mere declarations of its proposed future conduct, and failure to perform is not considered to be a breach of any obligation." (31)

   Under the framework with which I propose to analyze international treaties, the auto-limitation theory fails because at times, treaty engagements in fact create binding obligations upon contracting states. Thus, the framework I suggest eliminates the possible conflict between Member State and European Union courts, and eliminates the viability of the reservationist language that various Member State courts have included in their decisions concerning controversial European Union Law.

   Specifically, the framework I propose will thwart the argument that the Irish Supreme Court makes in Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan. (32) In that case, student unions and their officers published student handbooks with the names and addresses of abortion clinics in the United Kingdom. (33) They did so even though article 40.3.3 of the Irish Constitution protects the right to life of unborn children and prohibits abortions. (34) The plaintiffs sought a permanent injunction prohibiting the publication of these handbooks, (35) but the defendants argued that an injunction would violate the European Union's guarantee of free movement of services. (36) The Irish High Court sent a preliminary reference, the European Union version of certification, (37) to the European Court of Justice asking for resolution of the issue. (38) The Irish Supreme Court, however, decided that the right to life was a constitutionally protected right in Ireland and the application for the injunction was meant to restrain an unconstitutional activity. (39) As to whether this violated a European Union right, the court stated:

   If and when a decision of the European Court of Justice rules that some aspect of European Community law affects the activities of the defendants ... the consequence of that decision on these constitutionally guaranteed rights and their protection by the Courts will then fall to be considered by these Courts. (40) This statement challenges the authority of the European Court of Justice. It asserts the ability of the Irish Supreme Court to review and rule on a matter already decided by the European Court of Justice. I will prove this statement incorrect.

2. The Structure of the Argument

   Under the auto-limitation theory, which stems from the conflict between autonomous sovereigns and an international legal structure, it is never permissible for sovereigns to cede any portion of their authority. (41) I will show that at times, sovereign states are obligated to cede portions of their authority. Accordingly, an auto-limitation theory is inherently contradictory to a theory of international relations. A sovereign cannot have both an obligation to take an action and an obligation not to take that action. (42) If the auto-limitation theory is false and states are at times obligated to create an international sovereign, it follows that they would be obliged to obey this newly created sovereign.

   The process of showing that sovereigns are at times obligated to cede portions of their authority involves three steps. In Part I, I build a foundational understanding of the Hobbesian text. (43) In this Part, I will argue that Hobbes's theory allows for the initial covenant to limit the authority of the sovereign. (44) Accordingly, it will be necessary to explore the theory of authorization, which is central to the institution of the sovereign. In order to show why a sovereign may be required to cede...