Federalism and International Relations in the EU and the US: A Comparative Outlook

6

Federalism and International Relations in the European Union and the United

States: A Comparative Outlook

GEERT DE BAERE* AND KATHLEEN GUTMAN**

I. INTRODUCTION

AT PRESENT, THE comparative study of federalism in the European Union (EU) and the United States (US) continues to generate a substantial volume of literature on both sides of the Atlantic, but this is markedly less

so when it comes to the field of international (foreign or external) relations.1 As illustrated by past literature, this field highlights the vast differences between the EU and the US that often make it diffi cult to fi nd much similarity in approach and raise questions as to whether they are too far apart for workable comparison.2 Recently, however, commentators are beginning to pay tribute to the potential comparative insights that can be gained through examination of this fi eld.3 This coincides with the changing landscape regarding federalism and international relations in both legal orders.

* Assistant Professor of International Law and EU Law at the Faculty of Law and Senior Member at the Leuven Centre for Global Governance Studies, University of Leuven.

** Assistant Professor of European Law, University of Antwerp and Affi liated Senior Researcher at the Institute for European Law, University of Leuven.

1 On this chapter’s use of these terms, see section II.B. 2 See, eg, E Stein and L Henkin, ‘Towards a European Foreign Policy? The European Foreign

Affairs System from the Perspective of the United States Constitution’ in M Cappelletti, M Seccombe and JHH Weiler (eds), Integration Through Law—Europe and the American Federal Experience, vol 1, book 3 (Berlin and New York, De Gruyter, 1986) 3.

3 See, eg, R Schütze, From Dual to Cooperative Federalism—The Changing Structure of European Law (Oxford, Oxford University Press, 2009) 108–22 and 288–343; D Halberstam, ‘The Foreign Affairs of Federal Systems: A National Perspective on the Benefi ts of State Participation’ (2001) 46 Villanova Law Review 1015. See also EA Young, ‘Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism’ (2002) 77 New York University Law Review 1612, 1619, fn 22.

132 Geert De Baere and Kathleen Gutman

As alluded to above, a ready explanation for the lack of substantial engagement with this subject stems from the perceived differences in federal structure between the EU and the US in the international relations field. The US is gener-ally considered to exhibit features of a classic federal approach to international relations, in which plenary power or competence4 over international relations is vested in the federal government, not the states. In contrast, the EU is typi-cally framed as a sui generis supranational entity that does not possess many of the capacities traditionally associated with international relations (eg it does not have an army or a navy, and it cannot declare war), and of the competences that it does have in this field, they are, for the most part, of a more limited nature in comparison with the competences held by the Member States, as exemplified by the intergovernmental approach taken to the Common Foreign and Security Policy (CFSP). In other words, at least prima facie, the US appears to be a good example of a federal system5 allowing internal diversity but projecting external unity, whereas the EU allows its internal diversity to be projected outwards in its international relations, thereby evading the confines of a federal system in the classical sense.

Yet with ongoing developments taking place in the European and American legal orders, it may be wondered whether these prima facie impressions correspond to current constitutionality reality. In the EU, the entry into force of the Lisbon Treaty6 has changed the constitutional and institutional framework of international relations, repositioning the Union’s role and the scope of its competence in this field vis-à-vis the Member States.7 In the US, the increas-ing involvement of the states (and other sub-national entities)8 in matters relating to international relations has prompted intense debate concerning the purported federal monopoly over this domain and the extent to which varying types of actions taken by the states can be accommodated within the American constitutional framework.9 As a result, the subject of ‘international

4 In the US, reference is generally made to the ‘powers’ granted to the federal government in line with the wording of the US Constitution, whereas in the EU, reference is more often made to the ‘competences’ conferred on the Union, even though one fi nds both terms in the Treaties. As such, some commentators use them synonymously as regards the European setting (see A von Bogdandy and J Bast, ‘The Federal Order of Competences’ in Principles of European Constitutional Law, 2nd rev edn (Oxford, Hart Publishing, 2010) 275, 278), whereas others have drawn a theoretical distinction between the two in the discussion of EU external relations (see, eg, Schütze, above n 3, at 298–99 and citations therein). Without discounting the potential relevance of such a distinction, this chapter uses these two terms synonymously in reference to the ‘competences’ or ‘powers’ allocated to the Union and the federal government under the Treaties and the US Constitution, respectively.

5 On this chapter’s use of (con)federation, federal system and federalism, see section II.A.6 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the

European Community [2007] OJ C306/1 (‘Lisbon Treaty’); consolidated version of the Treaty on European Union (‘TEU’ or ‘EU Treaty’) and the Treaty on the Functioning of the European Union (‘TFEU’ or ‘FEU Treaty’) [2010] OJ C83/1.

7 See generally section III.8 See below n 122.9 See generally section IV.

Federalism and International Relations in the EU and the US 133

relations federalism’ looms large in both the EU and the US, and calls for renewed investigation.

The purpose of this chapter is therefore to explore the approach taken to fed-eralism and international relations in the EU and the US, with primary focus placed on evaluating the extent to which comparative inquiry into this subject may be conducted despite differences in federal structure, on the one hand, and the allocation of competences between the central authority (the Union/federal government) and the component entities (the Member States/states) in the international relations field, on the other. To this end, the discussion is divided into three main parts. Section II sets forth the conceptual framework guiding the discussion, elucidating the concepts of federalism and international relations as applied in the EU and the US. Sections III and IV provide an overview of the constitutional framework governing international relations in the EU and the US, respectively, analysing the allocation of competences between the central authority and the component entities in this setting on the basis of the respective ‘constitutional’ texts (the Treaties/US Constitution) and relevant case law of the European Court of Justice10 and the US Supreme Court.

To be clear, the analysis presented here does not claim to be comprehensive or exhaustive. Indeed, this chapter readily acknowledges the importance of not reducing federalism to the allocation of competences alone and of placing it in a broader context in order, for example, to examine the limits imposed by the central authority on the exercise of the competences held by the component entities.11 This chapter forms part of ongoing research and merely attempts to establish the foundations for understanding the conceptual and constitutional underpinnings of federalism and international relations in the EU and the US, in order to set the scene for delving further into the existence of tools or mecha-nisms employed in these two legal orders for managing the challenges posed by ‘international relations federalism’.

10 Under the fi rst para of Art 19(1) TEU, the institution of the Court of Justice of the EU encom-passes the Court of Justice, the General Court, and specialised courts (at present, the EU Civil Service Tribunal). For reasons of clarity, this chapter refers to the Court of Justice as the European Court of Justice (‘ECJ’) in the sense of the highest court of this institution.

11 See, eg, K Lenaerts, ‘Federalism and the Rule of Law: Perspectives from the European Court of Justice’ (2010) 33 Fordham International Law Journal 1338, 1339 (referring to the way in which EU law imposes negative limits on the powers retained by the Member States as the ‘pervasive effects of feder-alism’). In EU external relations, such an effect is, for instance, created by the principle of loyalty and sincere co-operation enshrined in Art 4(3) TEU, which imposes certain limits on the Member States’ exercise of their competence, most notably in mixed agreements (in which the EU and all or some Member States are parties alongside each other) or mixed participation in international organisations. A recent illustration is provided by Case C-246/07 Commission v Sweden (‘PFOS’) [2010] ECR I-3317, on which see G De Baere, ‘“O, Where is Faith? O, Where is Loyalty?” Some Thoughts on the Duty of Loyal Co-operation and the Union’s External Environmental Competences in the light of the PFOS Case’ (2011) 36 EL Rev 405.


II. CONCEPTUAL FRAMEWORK OF FEDERALISM AND INTERNATIONAL RELATIONS IN THE EU AND THE US

A. Federalism in the EU and the US

Notwithstanding the various conceptions of ‘federalism’ put forward in the com-mentary and jurisprudence,12 this chapter focuses on the concept of ‘federalism’ as the theory of principles for dividing competences between constituent member units and common institutions.13 It regards as a fundamental tenet underlying federalism that

power will be divided between a central authority and the component entities of a nation-state or an international organization so as to make each of them responsible for the exercise of their own powers. By doing so, federalism searches for the balance between the desire to create and/or to retain an efficient central authority ... and the concern of the component entities to keep or gain their autonomy so that they can defend their own interests.14

Viewed in this way, federalism is not a form of organising a polity exclusive to nation-States like the US; it exists whenever the ‘search for unity’ is ‘combined with genuine respect for the autonomy and the legitimate interests of the partici-pant entities’, as in the case of the EU.15 This is so, even though the EU and the US constitute different types of federal political systems.

The term ‘federal political systems’ may be understood to denote political organisations marked by the combination of shared rule and self-rule, such as constitutionally decentralised unions, federations, confederations and otherwise associated states.16 As a species within the genus of federal systems, a federa-tion such as the US combines constituent units and a central government, ‘each possessing powers delegated to it by the people through a constitution, each

12 In the American setting, see, eg, Bond v United States, 131 S Ct 2355, 2364 (2011), in which the US Supreme Court emphasised that federalism has ‘more than one dynamic’, serving ‘to grant and delimit the prerogatives and responsibilities of the [s]tates and the National Government vis-à-vis one another’, as well as protecting ‘the liberty of the individual from arbitrary power’. In the European setting, see, eg, S Oeter, ‘Federalism and Democracy’ in Principles of European Constitutional Law, above n 4, 55. For broader comparative surveys on the subject, see K Nicolaidis and R Howse (eds), The Federal Vision—Legitimacy and Levels of Governance in the United States and the European Union (Oxford, Oxford University Press, 2001); A Menon and M Schain (eds), Comparative Federalism: The European Union and the United States in Comparative Perspective (Oxford, Oxford University Press, 2006).

13 A Føllesdal, ‘Federalism’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy, Spring 2010 edn (Stanford, CA, The Metaphysics Research Lab, 2010).

14 K Lenaerts, ‘Federalism: Essential Concepts in Evolution—The Case of the European Union’ (1998) 21 Fordham International Law Journal 746, 748. For similar views, see, eg, D Halberstam, ‘Comparative Federalism and the Role of the Judiciary’ in KE Whittington, RD Kelemen and GA Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford, Oxford University Press, 2008) 142.

15 P Pescatore, ‘Preface’ in T Sandalow and E Stein (eds), Courts and Free Markets (Oxford, Clarendon Press, 1982) ix–x.

16 RL Watts, ‘Federalism, Federal Political Systems, and Federations’ (1998) Annual Review of Political Science 117, 120–21.


empowered to deal directly with the citizens in the exercise of a significant portion of its legislative, administrative, and taxing powers, and each directly elected by its citizens’.17 Yet ‘confederations’ are typically distinguished from ‘federations’ as a species of federal system in which the central institutions are composed of delegates from the constituent governments and therefore dependent on them. On this basis, the EU Member States considered in the present volume all have some type of a federal political system. In turn, the EU as a federal political system may be described as a hybrid form of a confederation with clearly identifiable features of a federation.18

Consequently, this chapter proceeds on the assumption that the EU occupies a position on the spectrum between a traditional international organisation and a federal State19 and that it is not too sui generis a federal political system to be subjected to comparative legal research with other such systems, including the US.20 Although the EU and the US represent different federal constructs, when a multi-level entity as exemplified by the EU is given the competence to enact measures that are binding on its component entities, ‘federal’ issues relating to the delimitation of competences arise, as they do in the US.

B. Federalism and International Relations in the EU and the US

That being said, particular complexities arise when attempting to situate federalism within the field of international relations in the EU and the US.

First, there is the matter of terminology. In light of the differences in federal structure between the EU and the US discussed above, it may not be surprising that this plays out in the actual terms used to describe the field of international, foreign or external relations, which may generally be defined as each legal order’s involvement and dealings with other nations and organisations in the interna-tional arena that are conducted according to the internal constraints existing

17 Ibid 121.18 Ibid (noting that historical examples of confederations include Switzerland for most of the period

of 1291–1847 and the US during the period of 1776–89). See also L Friedman Goldstein, Constituting Federal Sovereignty (Baltimore, Md, Johns Hopkins University Press, 2001), who compares the EU to the Dutch Union of the 17th century, the USA from the 1787 Constitution to the Civil War, and the fi rst half-century of the modern Swiss federation, beginning in 1848.

19 See, eg, JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 131–32; J Crawford, The Creation of States in International Law (Oxford, Oxford University Press, 2006) 495, who refers to the EU as going ‘well beyond the model of an international organisation coordinating areas of State policy’, and as having ‘marked confederal features’.

20 In the same sense, see, eg, K Lenaerts, ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 American Journal of Comparative Law 205; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (The Hague, Kluwer, 2002) xii; R Schütze, ‘On “Federal Ground”: The European Union as an (Inter)national Phenomenon’ (2009) 46 CML Rev 1069. For a powerful criticism of federalism as an appropriate constitutional idea for the EU, see P Eleftheriadis, ‘Federalism and Jurisdiction’, ch 2 of the present volume.


within the legal order concerned, eg the conclusion of international, regional and bilateral treaties, agreements and instruments, as well as the adoption of domes-tic measures by the central institutions or branches of each legal order that bear upon such relations.21 In the US, terms such as ‘foreign relations’, ‘foreign policy’ or ‘foreign affairs’ are usually employed, although recourse to the ‘international’ and ‘external’ modifiers (eg ‘international affairs’ or ‘external relations’) can be found.22 In the EU, there appears to be a slight preference for ‘external relations’ or ‘external action’,23 but references to ‘foreign relations’ or ‘international relations’ also abound.24 Yet the split in treatment, as a constitutional matter, between the former second pillar of the CFSP and other policy fields related to the EU’s inter-national relations has led some commentators to distinguish the term ‘foreign policy’ as denoting matters specifically concerning the CFSP in the EU setting.25 To avoid confusion in this regard, this chapter generally uses the terms ‘external relations’ within the context of the EU, ‘foreign relations’ or ‘foreign affairs’ within the context of the US, and ‘international relations’ when referring to both systems.

Secondly, each brand of European and American federalism has implications for distinguishing the roles carried out by the component entities vis-à-vis the central authority and the vertical allocation of competences between the two. For example,26 in the EU, by virtue of the fact that the Member States possess

21 In the European setting, there is no generally accepted defi nition of EU external relations. Arts 3(5) and 21(1) TEU refer to the Union’s ‘relations with the wider world’ and ‘action on the interna-tional scene’, respectively, and further specify these concepts through the principles that are to guide the Union’s external action. Art 24(1) TEU contains a specifi c defi nition of the Union’s CFSP and hence not of ordinary Union external relations: see text accompanying nn 41 and 48 below. In the American setting, see, eg, Restatement (Third) of Foreign Relations Law of the United States § 1 (St Paul, Minn, American Law Institute, 1987), which defi nes US ‘foreign relations law’ (as dealt with in the Restatement) as consisting of ‘(a) international law as it applies to the United States; and (b) domestic law that has substantial signifi cance for the foreign relations of the United States or has other substantial international consequences’.

22 For examples in US Supreme Court jurisprudence, see text and citations accompanying n 112 below.

23 See, eg, Title V of the TEU, entitled ‘General Provisions on the Union’s External Action and Specifi c Provisions on the Common Foreign and Security Policy’.

24 See, eg, P Koutrakos, EU International Relations Law (Oxford, Hart Publishing, 2006); M Cremona and B de Witte (eds), EU Foreign Relations Law (Oxford, Hart Publishing, 2008); G De Baere, Constitutional Principles of EU External Relations (Oxford, Oxford University Press, 2008); P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011).

25 See G de Búrca, ‘EU External Relations: The Governance Mode of Foreign Policy’ in B Van Vooren, S Blockmans and J Wouters (eds), The Legal Dimension of Global Governance: What Role for the EU? (Oxford, Oxford University Press, forthcoming 2012).

26 The implementation by the component entities of international and domestic enactments adopted at the central level concerning international relations in the EU and the US is another vibrant example. In the American setting, the discussion of this matter has been animated by the US Supreme Court’s judgment in Medellín v Texas, 552 US 491 (2008): for discussion of this case and citations to relevant literature, see section IV.B. In the EU, the Kadi cases have exposed the complexities of the rela-tionship between the competence of the Union or the Member States to implement international law obligations, and the impact of that division of competences on the possibility for both levels to comply with those obligations. See Case T-301/01 Yusuf and Al Barakaat International Foundation v Council and


considerable competences to conduct international relations in their own right, the issues at stake in the European setting of federalism and external relations frequently pertain to whether the Member States are allowed to exercise such competences alongside or in place of the Union in international fora, or are allowed to retain such competences in their relations with third States or inter-national organisations in accordance with EU law. By comparison, in the US, on account of the plenary nature of the federal competences concerning foreign relations, the issues at stake in the American setting of federalism and foreign relations are not so much dealing with the states attempting to displace or sit alongside the federal government in exercising the competences conferred upon it by the US Constitution, say, to make a treaty or to declare war, but instead, typi-cally concern the extent to which a particular form of action taken by the states may be deemed to encroach on or interfere with such competences.27 As a result, when delving into the relevant case law and the respective constitutional arrange-ments governing international relations in the EU and the US, the analogies may not be exact. Arguably, however, this is not fatal to the comparative analysis undertaken here, since despite differences in federal structure, both legal orders are nonetheless faced with the common problem inherent to federalism concern-ing how to balance the need to ensure a coherent international relations policy at the central level and the allowance for a certain degree of autonomy of the con-stituent entities to act in the international relations field in order to protect their own interests. Indeed, the present chapter argues that this is where comparative common ground can be found.

Thirdly, following from the foregoing points, this chapter focuses on the quintessentially ‘federal’ issue of the vertical relationship between the respective central authority and the constituent entities in international relations. It does not examine issues relating to the horizontal division of competences between the legislative, executive and judicial institutions or organs at the central level, which is commonly referred to as institutional balance in the EU and the separa-tion of powers in the US.28 Admittedly, it is difficult to separate the two in this

Commission [2005] ECR II-3533; Case T-315/01 Kadi v Council and Commission [2005] ECR II-33649; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351 (appeals against Cases T-301/01 and T-315/01); T-85/09 Kadi v Commission [2010] OJ C317/29; and Joined Cases C-584/10 P, C-593/10 P, C-595/10 P Commission, Council, and UK v Kadi, pending (appeals against Case T-85/09). For an insightful comment drawing parallels between Medellín and the Kadi cases, see G de Búrca, ‘The EU, the European Court of Justice and the International Legal Order after Kadi’ (2009) 51 Harvard International Law Journal 1.

27 See, eg, MA Granne, ‘Two-Dimensional Federalism and Foreign Affairs Preemption’ (2010) 44 Valparaiso University Law Review 863, 869: ‘[N]one seriously contend that the states can speak for the United States in matters of foreign policy. Thus the question becomes: when does state action that purports to merely legislate actually interfere with the federal government’s interest in a uniform expression of foreign policy?’

28 The notion of separation of powers is certainly not unknown to the EU, but its application poses complexities on account of its roots in the ‘classical functions’ of a nation-State; institutional balance thus refl ects the fact that there is not the same kind of strict division between the Union institutions,


setting, since by virtue of each constitutional framework, issues relating to the vertical and horizontal division of competences are inextricably intertwined: on the vertical axis, competences are generally attributed to a particular institution, which in turn have an impact on the competences of the other institutions on the horizontal level. In the US, as discussed below, there is no general foreign rela-tions competence attributed to the federal government as such; rather, specific competences concerning foreign relations are granted to the legislative, executive and judicial branches of the federal government, which provide the focal point for assessing the extent of the competences exercised by one branch vis-à-vis another, as well as the ambit for state action in this field.29

Similarly, in the EU, the struggle over external relations competences takes place on both the horizontal and vertical axes,30 even if the distinction between the two can sometimes be made more readily. The ECJ took pains to explain this distinction in the Personal Data Protection case,31 holding that the question of the ‘areas of competence’ of the EU presents itself differently depending on whether the competence concerned has already been accorded to the EU in the broad sense or has not yet been accorded to it:

In the first hypothesis, it is a question of ruling on the division of areas of competence within the Union and, more particularly, on whether it is appropriate to proceed by way of a [Union legal act] based on the [FEU] Treaty or by way of a [Union legal act] based on the EU Treaty. By contrast, in the second hypothesis, it is a question of rul-ing on the division of areas of competence between the Union and the Member States and, more particularly, on whether the Union has encroached on the latter’s areas of competence.32

It would appear to be more logical to examine these two hypotheses in reverse order, inquiring, first, whether the Union can act at all, and secondly, if it can, under which precise competence(s) it may do so and through which institutions. In any event, much like in the US, in practical terms, these questions will often be dealt with simultaneously in the EU as well.33 Consequently, while such interplay cannot always be avoided, this chapter must leave aside detailed discussion of the horizontal division of competences in international relations, although the

and depending upon the Treaty provision concerned, the same institution may carry out legislative and executive functions. See generally K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011) §§ 15-007–15-013, at 635–41.

29 See section IV.A. 30 E Stein, Thoughts from a Bridge: A Retrospective of Writings on New Europe and American

Federalism (Ann Arbor, University of Michigan Press, 2000) 259.31 Case C-301/06 Ireland v European Parliament and Council (‘Personal Data Protection’) [2009]

ECR-593.32 Ibid para 56.33 See further E Sharpston and G De Baere, ‘The Court of Justice as a Constitutional Adjudicator’

in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 128.


analysis undertaken here may help to lay the groundwork for further research on this topic.

III. CONSTITUTIONAL FRAMEWORK OF FEDERALISM AND EXTERNAL RELATIONS IN THE EU

A. Overview of the Allocation of Competences in the Treaties

i. The Principle of Conferral

One of the most remarkable features of EU external relations is that, unlike the US or indeed most nation-States, when considering a response to an international situation, the EU must always give precedence to considerations of competence over considerations of effectiveness.34 Pursuant to the principle of conferral, which governs the limits of Union competences, the Union is to ‘act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.’35 As a constitutional principle, the principle of conferral incorporates the idea, fundamental not only in the law of international organisations, but also in the constitutional law of many federal States, that the Union has only those competences that the Member States have explicitly or impliedly conferred on it in the Treaties. That does not mean, however, that the principle of conferral is there only to safeguard the Member States’ competences, since competences once conferred on the Union cannot be repatriated to the Member States without amending the Treaties. Still, the principle of conferral generally tends to be viewed in terms of protecting the competences of the Member States against encroachment by the Union.36 This implies that the EU is incapable of extending its own competences and that it does not have general law-making capacity: Union action requires one or more legal bases in the Treaties, which determines both the vertical and horizontal division of competences37 and must be based on objective factors that are amenable to judicial review.38

34 De Baere, above n 24, 10 and the literature cited therein. 35 Art 5(1) and (2) TEU. 36 See K Gutman, The Constitutionality of European Contract Law: A Comparative Analysis (Oxford,

Oxford University Press, forthcoming 2013), ch 7.37 See Personal Data Protection, above n 31, para 56. But see Art 352 TFEU (ex Art 308 TEC): ‘If

action by the Union should prove necessary, within the framework of the policies defi ned in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.’ (emphasis added)

38 See, eg, Case C-376/10 P Tay Za v Council [2012] ECR I-0000, para 46 and the case law cited there.


Crucially, the principle of conferral applies as much to external relations as to internal policies.39 The consequences of this constitutional characteristic have been exacerbated by the fact that, even after the entry into force of the Lisbon Treaty,40 the EU approaches the subject of external relations from two quite different angles as regards ordinary EU external relations41 and the CFSP (the former first and second pillars, respectively) based on the distinction between two core aspects of external relations: external economic relations sensu lato, such as external trade, development co-operation and emergency aid, which traditionally fell within the former Community, and what are commonly called ‘high politics’ (diplomatic activity and security and defence issues), which fall within the CFSP.42

To point out that the distinction between these two aspects is not always easy to make and that the coherence between the various aspects of EU external relations remains a challenge is stating the obvious.43

The Lisbon Treaty has subjected the CFSP to the overall constitutional frame-work of the EU, as set out in the EU Treaty.44 The formal abolition of the pillar structure, however, does not imply a complete harmonisation of procedures and an integration of all policies under the former Community, and essentially leaves the former second pillar standing in a modified manner.45 The post-Lisbon EU Treaty takes into account the different characters of different policies and still permits a substantial amount of differentiation as to how the Union’s institutions

39 Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, para 24. See also Opinion 2/00 Cartagena Protocol [2001] ECR I-9713, para 5: ‘The choice of the appropriate legal basis has constitutional signifi cance. Since the [Union] has conferred powers only, it must tie the [international agreement in question] to a Treaty provision which empowers it to approve such a measure. To proceed on an incorrect legal basis is therefore liable to invalidate the act concluding the agreement and so vitiate the [Union]’s consent to be bound by the agreement it has signed.’ See further De Baere, above n 24, 9–11.

40 Above n 6.41 G De Baere, ‘The Basics of EU External Relations Law: An Overview of the Post-Lisbon

Constitutional Framework for Developing the External Dimensions of EU Asylum and Migration Policy’ in M Maes, M-C Foblets, and Ph De Bruycker (eds), External Dimensions of EU Migration and Asylum Law and Policy/Dimensions Externes du Droit et de la Politique d’Immigration et d’Asile de l’UE (Brussels, Bruylant, 2011) 121.

42 A Dashwood, M Dougan, B Rodger, E Spaventa and D Wyatt, Wyatt and Dashwood’s European Union Law, 6th edn (Oxford, Hart Publishing, 2011) 13. See also De Baere, above n 24, 219.

43 On coherence and consistency in EU external relations, see, eg, C Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in M Cremona (ed), Developments in EU External Relation Law (Oxford, Oxford University Press, 2008) 10; and De Baere, above n 24, 250–64 and 267–74.

44 It has also introduced a number of institutional innovations intended to bridge the cleft between ordinary EU external relations and the CFSP, notably the establishment of the offi ce of the High Representative of the Union for Foreign Affairs and Security Policy. The latter conducts the CFSP as a Council functionary, but is at the same time one of the Vice-Presidents of the Commission and is therefore charged with ensuring the consistency of the Union’s external action (Art 18(2) and (4) TEU). The High Representative is assisted in that regard by the European External Action Service (EEAS) (Art 27(3) TEU). See further B Van Vooren, ‘A Legal-Institutional Perspective on the European External Action Service’ (2011) 48 CML Rev 475.

45 Perhaps more like a separate room formed by the few walls left standing after having knocked down all the other ones to create the new loft-like Union: De Baere, above n 41, 123.


are involved in law-making. The 2007 Intergovernmental Conference, which led to the adoption of the Lisbon Treaty, decided to drop the idea of one single Constitutional Treaty and to keep the EU Treaty and the FEU Treaty as two distinct Treaties, with the CFSP and the European Neighbourhood Policy as the only substantive policies in the EU Treaty. The Lisbon Treaty therefore establishes a single legal order for the Union, but with a more markedly separate sub-order for the CFSP.46

Moreover, the present Chapter 2 of Title V of the EU Treaty remains char-acterised by an absence of the technique of detailed and specific attribution of competences,47 otherwise applicable to the ordinary Union framework under the FEU Treaty. Instead, the allocation of competences in the CFSP consists of the general grant of competence in Article 24(1) TEU,48 which covers ‘all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence’. Article 42 TEU supplements Article 24(1) TEU by stating that the com-mon security and defence policy (CSDP) is to be an integral part of the CFSP and provide the Union with an operational capacity drawing on civilian and military assets. The CSDP is to include the ‘progressive framing of a common Union defence policy’, which according to Article 24(1) TEU might and according to Article 42(2) TEU will ‘lead to a common defence’, that is, ‘when the European Council, acting unanimously, so decides’.49 Should the European Council take a decision to that effect, it will recommend to the Member States that they adopt such a decision in accordance with their respective constitutional requirements.50

The question arises whether the principle of conferral actually applies to the CFSP. Given that, under the previous Treaty framework, the principle of conferral

46 See further De Baere, above n 24, 209–13.47 That technique is the corollary of the principle of conferral: cf A Dashwood, ‘The Relationship

Between the Member States and the European Union/European Community’ (2004) 41 CML Rev 357 et seq.

48 Ex Art 11(1) TEU.49 In the Maastricht Treaty, this was phrased as ‘the eventual framing of a common defence policy,

which might in time lead to a common defence’: Art B, second indent and Art J.4(1). Clearly, not much legal signifi cance should be attached to the phrase ‘will lead to a common defence’, which should be understood as an aspirational statement of purely political nature. See De Baere, above n 24, 108–09.

50 This avoids having to go through the normal procedure for amendment of the Treaty (Art 48 TEU). The reasons for this are symbolic rather than practical, as the approval by the Member States in accordance with their own constitutional requirements is likely to be as cumbersome as an amend-ment of the Treaty. See also the Decision of the Heads of State or Government of the 27 Member States of the EU, Meeting within the European Council, on the Concerns of the Irish People on the Treaty of Lisbon (Annex 1 to the Presidency Conclusions of the European Council held at Brussels on 18 and 19 June 2009). Section C of this Decision on security and defence reaffi rms that any ‘decision to move to a common defence will require a unanimous decision of the European Council. It would be a matter for the Member States, including Ireland, to decide, in accordance with the provisions of the Treaty of Lisbon and with their respective constitutional requirements, whether or not to adopt a common defence.’ The European Council also felt the need to specify the following: ‘The Treaty of Lisbon does not provide for the creation of a European army or for conscription to any military formation.’


was not enshrined in the former EU Treaty51 but in the first paragraph of then Article 5 TEC, some doubted whether the principle applied to the CFSP.52 Article 5(1) and (2) TEU, as introduced by the Lisbon Treaty in Title I (‘Common Provisions’) of the EU Treaty, has now removed all doubt in that regard. Remarkably, however, the Lisbon Treaty has reinforced the contrast between attri-bution in ordinary EU external relations and in the CFSP by deleting the specific CFSP objectives listed in ex Article 11(1) TEU, thus making the attribution within that field even less detailed and specific. Instead, Article 21 TEU now contains the overall objectives of EU external relations. Article 21(1) TEU provides that the Union’s action on the international scene is to be ‘guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world’,53 while Article 21(2) TEU further elaborates these objectives in a rather more comprehensive list. Detailed and specific attribution of competences is an important aspect of the principle of conferral as it operated under the Community and now operates under the FEU Treaty, and its absence in Chapter 2 of Title V of the EU Treaty indicates that the principle applies in a different manner in the CFSP legal order. The Lisbon Treaty has reinforced the contrast between ordinary Union external relations and the CFSP in that respect.

In what follows, this chapter examines the issues of competence involved in determining the possibility for the EU to act internationally: the existence of EU external competence, the nature of such competence and the consequences of that particular nature. In that regard, it is important to note that competence questions continue to be at the heart of EU external relations law, and that the intensity and complexity of these questions is still increasing.54 The following outline illustrates why that is the case.

51 Ex Art 5 TEU could, however, be seen as an expression of the principle of conferral: see the Opinion of AG Mengozzi in Case C-354/04 P Gestoras Pro Amnistía, JM Olano Olano, J Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 P SEGI, A Zubimendi Izaga, A Galarraga v Council [2007] ECR I-1657, point 167.

52 See, eg, R Gosalbo Bono, ‘Some Refl ections on the CFSP Legal Order’ (2006) 34 CML Rev 358–59. However, while not mentioned explicitly in the pre-Lisbon EU Treaty, the principle of conferral was, and still, is a general organising principle of the constitutional structure of the EU, as well as a prin-ciple of the law of international organisations (Jurisdiction of the European Commission of the Danube Between Galatz and Braila [1927] PCIJ Series B—No 14, 64; cf D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford, Oxford University Press, 2005)). Thus, while not being very detailed or exact, the CFSP objectives in ex Art 11(1) TEU determined the Union’s competences to the extent that any CFSP action had to be connected to those objectives in accordance with the principle of conferral.

53 That is to say, ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’.

54 P Eeckhout, ‘General Report’ in XL Xenopoulos (ed), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law (Limassol, FIDE, 2006) 275–76. See further P Koutrakos, ‘Legal Basis and Delimitation of Competences in EU External Relations’ in Cremona and de Witte (eds), above n 24, 171–98.


ii. Existence of EU External Competences

The former EC Treaty55 did not contain a general legal basis for external relations. Article 281 TEC explicitly conferred legal personality on the Community,56 but the general capacity derived from that Article did not constitute an independent legal basis for the former Community’s adoption of international agreements. However, as a legal person, the Community had the capacity to exercise rights in international legal transactions and enter into obligations over the entire field of its objectives.57 Unlike the Community, the pre-Lisbon Union had not been explicitly endowed with legal personality.58 Nevertheless, former Article 24 TEU provided the Union with a procedural framework for making international agreements within the spheres of the former second and third pillars concerning the CFSP and Police and Judicial Cooperation in Criminal Matters (PJCCM), respectively.59

With the entry into force of the Lisbon Treaty, Article 47 TEU explicitly confirms the Union’s legal personality, thereby removing any lingering doubt in that regard. Furthermore, Article 216(1) TFEU affirms the general capacity of the Union to conclude international agreements. That provision stipulates that the Union may conclude an agreement with one or more third countries or interna-tional organisations:

(a) where the Treaties so provide; or (b) where the conclusion of an agreement is ‘necessary in order to achieve, within

the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’. That phrase is intended as a codification of the Court of Justice’s case law on implied competences, and will be examined more closely in the next section.

Indeed, the Treaty provisions regulating external relations have always been both spread over the entire Treaty and incomplete. Attempts to address the lack of explicit legal bases for external action have been made predominantly in two ways: first, explicit legal bases for external competences were added to the Treaties in subsequent

55 Consolidated Version of the Treaty Establishing the European Community [2006] OJ C321E/37.56 See also the identical Art 184 EAEC Treaty (Consolidated Version of the Treaty establishing the

European Atomic Energy Community [2010] OJ C84/1). 57 Case 22/70 Commission v Council (‘ERTA’) [1971] ECR 263, paras 13–14; and Joined Cases 3, 4,

and 6/76 Cornelis Kramer and Others (‘Kramer’) [1976] ECR 1279, paras 17–18.58 Many commentators have come to the conclusion that, even before the Lisbon Treaty, the EU

did have international legal personality (eg I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 678), and this was confi rmed in practice. For one of the last examples under the previous Treaty framework, see Council Decision 2010/53/CFSP of 30 November 2009 concerning the conclusion of the Agreement between Australia and the European Union on the security of classifi ed information [2010] OJ L26/30. See further De Baere, above n 24, 143–46.

59 See further RA Wessel, ‘The EU as a party to international agreements: shared competences, mixed responsibilities’ in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations (Cambridge, Cambridge University Press, 2008) 152–87.


amendments;60 and, secondly, the Court of Justice’s interpretation of the existing Treaty provisions so as to allow the Union to develop a viable external relations policy,61 resulting in what is mostly referred to as ‘implied external competences’.

Notably, however, the nature of the attribution as regards the CFSP in Article 24(1) TEU would appear to be so broad that an unself-conscious application of the doctrine of implied competences implying all the competences needed for an effective CFSP would lead to an extensive grant of foreign policy competences going far beyond what the EU Treaty intends. Applying the doctrine of implied competences to the CFSP therefore requires caution and restraint, even more so because the ECJ for the most part lacks jurisdiction with respect to the provisions in the EU Treaty relating to the CFSP and with respect to acts adopted on the basis of those provisions.62

iii. The Nature of EU External Competences

One of the more significant novelties introduced by the Lisbon Treaty is Title I of Part One of the FEU Treaty entitled ‘Categories and Areas of Union Competence’. Three of those categories as listed in Article 2 TFEU are most relevant for the Union’s external relations and will be explored further here,63 ie exclusive competences,64 shared competences,65 and the competence to define and imple-ment a CFSP, including the progressive framing of a CSDP.66

Article 2(1) TFEU provides that when the Treaties confer on the Union exclu-sive competence in a specific area, only the Union may legislate and adopt legally-binding acts. The Member States are able to do so themselves only if they have been so empowered by the Union or for the implementation of Union acts. The main principles on when the Union is exclusively competent have now been laid down in Article 3 TFEU, the first paragraph of which lists the five explicitly attributed exclusive competences of the Union. That category is rather small and comprises the customs union, ie the original core of the Community, the establishing of the

60 For an overview as regards the EC Treaty, see De Baere, above n 24, 11–16.61 As regards the important role of the ECJ in (what were then) Community external relations,

see De Baere, above n 24, 93–98; and on its virtual absence in the CFSP (except for its role under Art 40 TEU (ex Art 47 TEU) and, since the entry into force of the Lisbon Treaty, Art 275 TFEU), ibid, 176–91.

62 There are certain exceptions carved out in the Treaties conferring jurisdiction on the Court of Justice of the EU to monitor compliance with Art 40 TEU and to rule on proceedings, brought in accordance with the conditions laid down in Art 263, fourth para, TFEU, reviewing the legality of deci-sions providing for restrictive measures against natural or legal persons: Art 24(1), second subpara, TEU; Art 275, second para, TFEU.

63 The Union also has the competence to provide arrangements within which the Member States are to co-ordinate their economic and employment policies (Art 2(3) TFEU) and the competence to carry out actions to support, coordinate or supplement the actions of the Member States (Art 2(5) TFEU), which will not be considered further in the present chapter.

64 Art 2(1) TFEU.65 Art 2(2) TFEU.66 Art 2(4) TFEU.


competition rules necessary for the functioning of the internal market, monetary policy for the Member States whose currency is the euro, the conservation of marine biological resources under the common fisheries policy, and the common commercial policy. Given that they have important external relations aspects, the external dimensions of these policies belong to the exclusive competence of the Union. In addition, the second paragraph of Article 3 TFEU provides for the Union to have exclusive competence ‘for the conclusion of an international agree-ment when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope’.67 While it attempts to codify the case law of the Court of Justice on exclusive competences, the second paragraph is of little use in clarifying ex ante the extent of the Union’s exclusive external competences. The criteria listed therein appear to be neither entirely clear nor sufficiently nuanced, and hence in need of further judicial clarification.68 The Court’s existing case law on the nature of EU external competences, which will be examined in the section below, will need to be taken into account.

However, in contrast to the constituent states of the US, the Member States retain capacity to conduct international relations under both national and international law. Exclusive Union competences simply require them not to act autonomously. This is evident from the text of Article 2(1) TFEU, which provides for the possibility for the Union to empower the Member States to act in an area in which the Union enjoys exclusive competence. The Member States may there-fore be authorised by EU law to act jointly on the international plane, even within exclusive external Union competences.69

As mentioned above, Article 216(1) TFEU grants the Union the competence to conclude an agreement with one or more third countries or international organisations where the conclusion of an agreement is ‘provided for in a legally binding Union act’, that is to say, in a regulation, a directive or a decision.70 Does the difference in language between Articles 3(2) (‘provided for in a legislative act of the Union’) and 216(1) TFEU (‘provided for in a legally binding Union act’) imply that the exclusive nature of the external competence depends on the nature of the procedure by which the internal act granting that competence was adopted? That would seem to be the implication of the wording of those two provisions:71 if the possibility to conclude an international agreement is provided for in a legally-binding Union act, the EU acquires competence to conclude that agreement on the basis of Article 216(1) TFEU. If that same possibility is provided

67 Art 3(2) TFEU.68 Compare the Treaty establishing a Constitution for Europe [2004] OJ C310/1: P Craig, EU

Administrative Law (Oxford, Oxford University Press, 2006) 418.69 See further De Baere, above n 24, 59–61.70 Art 288 TFEU.71 Perhaps the distinction in wording was introduced to make it clear that this principle cannot give

rise to an exclusive competence within the CFSP, given that the second paragraph of Art 24 TEU and Art 31(1) TEU exclude the adoption of legislative acts.


for in a legislative act, the Union acquires exclusive competence to conclude that agreement. That said, it remains the case that even a legislative act cannot grant the Union an exclusive external competence in those areas for which Article 4(3) and (4) TFEU explicitly provide that the Member States cannot be prevented from acting internationally.

Indeed, it is important to note that the EU’s competence in external matters should be presumed to be non-exclusive, unless there are clear indications to the contrary.72 Within the category of non-exclusive competences, two sub-categories may be distinguished: first, ‘shared competences’, as provided for by Articles 2(2) and 4 TFEU (sometimes referred to as ‘concurrent’ competences), may be exer-cised by the Member States to the extent that the Union has not exercised, or has decided to cease exercising, its competence; and, secondly, ‘parallel competences’ (a term not used in the Treaties) leave both the Union and the Member States competent to act internationally without one being able definitively to prevent the other from acting. Some provisions of the TFEU explicitly provide for such competences. An important example73 is Article 211 TFEU74 on development co-operation, which states that the Union and the Member States, each within their respective spheres of competence, are to co-operate with third countries and with the competent international organisations. Pursuant to Article 209(2) TFEU, the arrangements for Union co-operation may be the subject of agreements between the Union and the third parties concerned, which are negotiated and concluded in accordance with Article 218 TFEU.75 However, Article 209(2) TFEU ends with the explicit assurance that the external competence described in that Article ‘shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements’. Furthermore, Article 4(4) TFEU provides for the exercise of the Union’s competence in the areas of development co-operation and humanitarian aid not to result in Member States being prevented from exercising theirs, thus creating parallel competences in those areas.

What type of competence is the CFSP? Might it be argued that Article 4(1) TFEU (stating that ‘The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6’) implies that the CFSP is a shared competence as well? Though a literal reading of Article 4(1) TFEU would seem to have that consequence, in view of Declarations Nos 13 and 14, annexed to the Lisbon Final Act,76 it appears highly

72 See, in that sense, the Opinion of AG Jacobs in Case C-316/91 European Parliament v Council [1994] ECR I-625, point 40.

73 See also Art 219(4) TFEU (ex Art 111(5) TEC); Art 191(4) TFEU (ex Art 174(4) TEC).74 Ex Art 181 TEC.75 Ex Art 300 TEC.76 [2010] OJ C83/343. These two declarations emphasise that the provisions in the TEU cover-

ing the CFSP, including the creation of the offi ce of High Representative and the establishment of an EEAS, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy, their national representation in third countries and international organisations, or the existing legal basis, responsibilities and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service,


unlikely that the Member States had the intention of subjecting the CFSP to the corollary of shared competences, namely, that the Member States can exercise their competence ‘to the extent that the Union has not exercised its competence’ or ‘has decided to cease exercising its competence’.77 Moreover, if the CFSP was intended to be a ‘shared competence’, why then create a separate category of CFSP competence in Article 2(4) TFEU instead of listing it among shared competences in Article 4(2) TFEU and adding a clause to the effect that ‘the exercise of that competence shall not result in Member States being prevented from exercising theirs’, as was done with regard to research, technological development, space, development co-operation and humanitarian aid in Article 4(3) and (4) TFEU?78

B. Case Law of the European Court of Justice

In view of the complex issues concerning the allocation of competences, it is not surprising that the case law of the ECJ plays an important role in guarding the federal balance in EU external relations. The present section examines the Court’s case law on the existence and the nature of EU external competences, as well as the consequences of the exclusive or non-exclusive nature of those competences.

i. Case Law on the Existence of EU External Competences

Famously expounded by Chief Justice Marshall of the US Supreme Court in M’Culloch v Maryland,79 the doctrine of implied competences is a well-known principle of municipal constitutional law and of the law of international insti-tutions.80 Within the EU, implied competences have been relied on mostly with regard to external relations. The Court of Justice recognised implied external competences for the first time in ERTA,81 against the advice of Advocate General Dutheillet de Lamothe, who had argued that

[n]o matter what legal basis the Court finds for it, recognition of the Community’s authority in external matters for negotiating and concluding the AETR concedes by

relations with third countries and participation in international organisations, including a Member State’s membership of the UN Security Council. Moreover, the provisions concerning the CFSP are explicitly said not to give new powers to the Commission to initiate decisions or to increase the role of the European Parliament.

77 Art 2(2) TFEU.78 See further De Baere, above n 24, 110–11.79 M’Culloch v Maryland, 17 US 316, 421 (1819).80 See Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion [1949]

ICJ Reports 174, 182. 81 Above n 57, para 17. The acronyms ERTA/AETR stand for European Agreement Concerning the

Work of Crews of Vehicles Engaged in International Road Transport/Accord européen relatif au travail des équipages des véhicules eff ectuant des transports internationaux par route.


implication that the Community authorities exercise, in addition to the powers expressly conferred upon them by the Treaty, those implied powers whereby the Supreme Court of the United States supplements the powers of the federal bodies in relation to those of the [federated]82 States.83

The Court of Justice now recognises implied external competences mainly on the basis of two principles. First, the ERTA principle follows the logic of the principle of primacy84 and was first expounded in the judgment in ERTA: the Member States are not allowed to act internationally in a way that would affect existing EU law, because the situation cannot be remedied merely by disapplying the infringing national rule. The Member States’ competence is thus excluded, which necessitates the existence of EU competences to compensate for the Member States’ inability to act.85 That principle is now codified in Article 216(1) TFEU:

The Union may conclude an agreement with one or more third countries or interna-tional organisations … where the conclusion of an agreement … is likely to affect common rules or alter their scope.

Secondly, the complementarity principle was spelled out in Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels:86 whenever EU law has conferred internal competences on the institutions to attain a specific objective, the Union may enter into the international commitments necessary for attainment of that objective even in the absence of an express provision to that effect.87 Internal Union competences are supported by the cor-responding external competences only when the latter are truly ‘implicit’ in the former. This is the case when the internal Union competences cannot reasonably be expected to be exercised effectively without the possibility for the Union to

82 The original French version of the AG Opinion uses ‘États fédérés’, which appears to have been mistranslated in English as ‘confederated States’.

83 Opinion in ERTA, above n 57, 293. 84 First affi rmed by the ECJ in Costa (Case 6/64 Costa v ENEL [1964] ECR 585), the principle

of supremacy (or primacy) of Union law generally denotes that a confl ict between a provision of national law and a provision of EU law is to be resolved by a national court or other national authority applying Union law, if necessary by refusing to apply the confl icting national provision (see, to that effect, eg, Case C-314/08 Filipiak [2009] ECR I-11049, para 82). It is not enshrined in the Treaties, as is the Supremacy Clause in the US Constitution (see below n 105). A codifi cation was proposed in Art I-6 of the Treaty establishing a Constitution for Europe (‘The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States’), but the 2007 IGC decided to omit that provision from the Lisbon Treaty. Nevertheless, in Declaration 17, annexed to the Final Act of the 2007 IGC [2010] C83/344, the IGC recalled that ‘in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law’. The IGC further annexed an Opinion of the Council Legal Service confi rming as much. As to whether the principle of primacy applies to the CFSP, see De Baere, above n 24, 201–12.

85 Cf A Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 6.

86 Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741.

87 Ibid para 3; Opinion 2/94, above n 39, para 26.


enter into international agreements with third countries on the same subject-matter. That principle is now codified in Article 216(1) TFEU:

The Union may conclude an agreement with one or more third countries or interna-tional organisations … where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties …

Article 216(1) TFEU lists a third possibility, namely, that the Union ‘may conclude an agreement with one or more third countries or international organisations … where the conclusion of an agreement … is provided for in a legally binding Union act’, which was examined above.

ii. Case Law on the Nature of EU External Competences

A number of instances of when the Union acquires an exclusive external compe-tence may broadly be distinguished in the case law.

First, a competence may become exclusive through the exercise of an EU internal competence. That eventuality is called ‘the ERTA-doctrine’ or ‘ERTA exclusivity’. This is now reflected in Article 3(2) TFEU, which provides that the Union will have exclusive competence for the conclusion of an international agree-ment ‘insofar as its conclusion may affect common rules or alter their scope’. First recognised by the Court in the ERTA case and further refined inter alia in the Open Skies cases, this manner of acquiring exclusive external competences is the result of the fact that Member States are not to enter into international obligations outside the framework of the Union institutions if these obligations fall within the scope of the common rules, or within an area which is already largely covered by such rules, even if there is no contradiction between those commitments and the com-mon rules.88 If the Union has achieved complete harmonisation in a given area, it acquires an exclusive external competence in that area, even in the absence of any express provision authorising its institutions to negotiate with non-Member States. This is so because the common rules thus adopted could be affected within the meaning of the ERTA principle if the Member States retained freedom to nego-tiate with non-Member States.89 Both explicit and implied external competences may become exclusive through the exercise by the Union of its competences.90

88 Case C-467/98 Commission v Denmark [2002] ECR I-9519, para 82; Case C-476/98 Commission v Germany [2002] ECR I–9855, para 108.

89 Commission v Denmark, above n 88, para 84; Commission v Germany, above n 88, para 110.90 By analogy with US constitutional doctrine (see the discussion of the pre-emption doctrine in

section IV.B. below), this is sometimes referred to as ‘pre-emption’. However, the ECJ has not adopted this term, and there is no academic consensus on its usage. Nevertheless, the term has on occasion been used by an Advocate General: see, eg, the Opinion of AG Ruiz-Jarabo Colomer in Case C-478/07 Budejovický Budvar [2009] ECR I-7721, point 93.


Secondly, in Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property, the Court held that

[w]henever the [Union] has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its insti-tutions powers to negotiate with non-member countries, it acquires exclusive external competence in the spheres covered by those acts.91

The Court seemed to hold that this automatically implied exclusive competence for the Community. The Lisbon Treaty has now codified the Court’s case law in this respect in Article 3(2) TFEU, which provides that the Union will have exclusive competence for the conclusion of an international agreement ‘when its conclusion is provided for in a legislative act of the Union’.92 As mentioned above, that statement does appear to merit some nuance in the light of, inter alia, Article 4(3) and (4) TFEU.

Thirdly, the Court’s case law also provides for the possibility of exclusivity to arise out of the fact that the internal and external aspects of a policy area can be exercised effectively only if they are exercised together. In that respect, the Court appears to regard the distinction between two types of envisaged international agreements to be crucially important. On the one hand, there are the rare factual constellations in which the objectives of EU competences cannot be achieved without including third countries, through international agreements, within the binding legal framework regulating the situation. The Union acquires exclusive implied external competences in the event of such an inextricable link.93 The Court’s case law has now been codified in Article 3(2) TFEU, which provides that the Union will have exclusive competence for the conclusion of an international agreement when this is ‘necessary to enable the Union to exercise its internal competence’. On the other hand, there exist many situations in which the Union wishes to further, on the external front, internal legislative goals, the optimal use of which presupposes an external complement but which could nonetheless arguably have been sufficiently attained with internal legislation only. The Union does not acquire exclusive external competence in those situations. This is what Opinion 2/92 Competence of the Community or one of its institutions to participate

91 Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 95; see also Commission v Denmark, above n 88, para 83; Commission v Germany, above n 88, para 109.

92 Pursuant to Art 289(3) TFEU, ‘[l]egal acts adopted by legislative procedure shall constitute legis-lative acts’. On the distinction between ‘legislative acts’ and ‘regulatory acts’, which is of importance for the standing of natural and legal persons to bring an action for annulment under Art 263, fourth para, TFEU, see the order of the General Court of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v European Parliament and Council [2011] ECR II-0000, para 56 (appeal pending before the ECJ: Case C-583/11 P); and the judgment of the General Court of 25 October 2011 in Case T-262/10 Microban International and Microban (Europe) v Commission [2011] ECR II-0000, para 21.

93 Though the Court omitted a reference to the need for such an inextricable link in Opinion 1/03 Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recogni-tion and enforcement of judgments in civil and commercial matters [2006] ECR I-1145, para 115.


in the Third Revised Decision of the OECD on national treatment seemed to say,94 and it appears to correspond to Article 216(1) TFEU. However, neither Article 3(2) TFEU nor Article 216(1) TFEU sufficiently reflects the complexity of the case law on which it is based, especially with regard to the need for an ‘inex-tricable link’ in order for ‘necessity’ to give rise to an exclusive Union competence. The Court will have to interpret what is to be understood under ‘necessary’ as it had to before the codification, and it will presumably rely on its earlier case law to do so.

It follows from the Court’s case law that the exclusivity of the Union’s external competence has two main consequences, which are really two sides of the same coin.95 First, when the external competence in a certain area is exclusive, the Member States, as the Court put it in ERTA, ‘no longer have the right, acting indi-vidually or even collectively, to undertake obligations with third countries’.96 The Court also referred to what is now Article 4(3) TEU, enshrining the principle of loyalty and sincere co-operation, and concluded that it would be impossible for the Member States operating outside the institutional framework of the Union to assume responsibilities that might affect or alter the scope of Union rules that have been promulgated for the attainment of Treaty objectives.97

Secondly, the Court pointed out in Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports that when external Union competence is exclusive, ‘the Member States, whether acting individually or collectively, are no longer able to

94 Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para 32.

95 Exclusivity also implies the inapplicability of the principle of subsidiarity. Art 5(3), fi rst subpara, TEU provides: ‘Under the principle of subsidiarity, in areas which do not fall within its exclusive com-petence, the Union shall act only if and in so far as the objectives of the proposed action cannot be suffi ciently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’. But see Case T-253/02 Ayadi v Council [2006] ECR II-2139, paras 105-114, where the General Court held that the principle of subsidiarity could not ‘be relied on in the sphere of application of Arts 60 TEC and 301 TEC [now Arts 75 and 215 TFEU], even on the assumption that it does not fall within the exclusive competence of the Community’ (para 108), adding that ‘even assuming that the principle of subsidi-arity fi nds application in circumstances such as those of this case, it is plain that the uniform imple-mentation in the Member States of Security Council resolutions, which are binding on all members of the United Nations without distinction, can be better achieved at Community level than at national level’ (para 112). For comparative refl ections with the US, see, eg, G Bermann, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’ (1994) 2 Columbia Law Review 331; Nicolaidis and Howse, above n 12; A Mills, ‘Federalism in the European Union and the United States: Subsidiarity, Private Law, and the Confl ict of Laws’ (2010) 32 University of Pennsylvania Journal of International Law 369. For theoretical refl ections on subsidiarity in the EU and in other settings, see, eg, A Føllesdal, ‘Subsidiarity and democratic deliberation’ in EO Eriksen and JE Fossum (eds), Democracy in the European Union. Integration through deliberation? (Abingdon, Routledge, 2000) 85–110; A Herwig, ‘Federalism, the EU and International law—On the Possible (and Necessary) Role of Subsidiarity in Legitimate Multilevel Trade Governance’, ch 3 of the present volume.

96 ERTA, above n 57, para 17.97 Ibid para 22; see further Opinion 1/75 Draft Understanding on a Local Cost Standard drawn up

under the auspices of the OECD [1975] ECR 1355, 1364.


impose on the [Union] obligations which impose conditions on the exercise of prerogatives which thenceforth belong to the [Union] and which therefore no longer fall within the field of national sovereignty’.98 In other words, the Member States must not attempt to constrain the Union’s exercise of its exclusive compe-tence and must co-operate loyally with it in order to facilitate such an exercise.99

Conversely, in addition to the shared and parallel competences provided for in the Treaties,100 non-exclusive external competence has also been recognised to exist by the Court on the basis of internal Union minimum standards: the concept of minimum requirements involves the Union harmonising a certain policy area on the basis of minimum standards, while leaving the Member States free to adopt more stringent measures. As the Court held in Opinion 1/03 Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the fact that both the Union rules and the international agreement in question lay down minimum standards ‘may justify the conclusion that the [Union] rules are not affected, even if the [Union] rules and the provisions of the agreement cover the same area’.101 The requirement that both the Union rules and the international agreement in question lay down minimum standards is necessary in order not to inhibit the development of Union law. If an international agreement lays down an absolute standard, and the Union subsequently decides to raise its minimum standards above the absolute standard of the agreement, a conflict may arise, with inevitable consequences for the international responsibility of the Union.

The foregoing discussion illustrates the inherent complexity of the EU’s com-petences in international relations as evidenced by the intricate relations between the Union and the Member States and the clear emphasis on non-exclusive international competences.

98 Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, para 32.

99 Cf ibid paras 33 and 22; Kramer, above n 57, paras 44–45.100 It has also been pointed out that a Union competence may be non-exclusive simply in situa-

tions where international agreements cover areas that will naturally fall both within the competences of the Union and the Member States without the competence of one excluding the competence of the other. An example is the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations (1986) 25 International Legal Materials 543. Both the Union and the Member States should in theory be able to accede to such an international agreement without in any way impinging on the competence of the other: cf I MacLeod, ID Hendry and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (Oxford, Clarendon Press, 1996) 66, fn 157.

101 Above n 93, paras 123 and 127. See also Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 18. The Court further clarifi ed the impact of minimum standards in PFOS, above n 11, para 102. Sweden had put forward the argument that a proposal to list a substance in the Annex to an international conven-tion which was binding on the Union was equivalent to a national measure that was more stringent than a minimum Union measure and was permitted by then Art 176 TEC (now Art 193 TFEU). The Court disagreed. The Union could be bound by an amendment to an Annex to such a convention while it is not bound by such a national measure: see further De Baere, above n 11.


IV. CONSTITUTIONAL FRAMEWORK OF FEDERALISM AND FOREIGN RELATIONS IN THE US

A. Overview of the Allocation of Competences in the US Constitution

Similar to the Treaty framework governing the EU, the US Constitution does not have one ‘go-to’ provision that delineates the foreign relations powers of the federal government. Instead, the US Constitution grants a number of enumer-ated powers to each of the three branches of the federal government and contains some other provisions relating to the foreign relations field. Generally, attention rests on five main sets of provisions. First, under Article I, section 8, Congress is granted various powers concerning foreign relations, eg the power to regulate commerce with foreign nations, to declare war, and to provide for the army and the navy.102 Secondly, under Article II, the President is also granted various powers concerning foreign relations, eg he is the Commander in Chief of the army and the navy, and is granted the power (with the advice and consent of the Senate) to make treaties and to appoint ambassadors, ministers and consuls.103 Thirdly, under Article III, the powers of the federal judiciary include the adjudication of several kinds of cases implicating foreign relations, eg cases affecting ambassadors, ministers and consuls, and controversies between a state, or the citizens thereof, and foreign States, citizens or subjects.104 Fourthly, under the Supremacy Clause, treaties and other federal enactments regarding foreign relations are the ‘supreme Law of the Land’ and thus trump any conflicting state enactment.105 Lastly, under Article I, section 10, the US Constitution forbids the states from assuming considerable foreign relations powers, and places various limitations on them, eg providing that no state may enter into any treaty, alliance or confederation, or without the consent of Congress enter into any agreement or compact with a foreign power.106

Noticeably, looking closely at the enumerated powers granted to each branch of the federal government in the US Constitution, many issues are not dealt with expressly. To take a classic example, the fact that the President is granted the power to make a treaty (with the advice and consent of the Senate) does not speak to the question whether he has the power to terminate or suspend such a treaty, or to

102 See US Constitution, Art I, s 8, particularly cls 1–5, 10–16. Moreover, under the so-called ‘Necessary and Proper Clause’, enshrined in cl 18 of the same section, Congress is granted the power ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Offi cer thereof.’

103 See ibid, Art II, particularly s 1, cl 1; s 2, cls 1–2; s 3.104 See ibid, Art III, particularly s 2, cls 1–2.105 Ibid, Art VI, cl 2, provides: ‘This Constitution, and the Laws of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’

106 See ibid, Art I, s 10, cls 1–3.


make other kinds of international agreements with or without the involvement of Congress.107 As a result, various methods have been used to fill the gaps in the US Constitution, eg implied powers have been read into the express powers set forth in the US Constitution, or several powers taken together have been interpreted to lead to others, although ultimately, there have been difficulties in finding a gener-ally accepted strategy by which to account for all of the foreign relations powers wielded by the federal government.108

Nevertheless, the predominant view is that the federal government is consid-ered to be attributed plenary and exclusive power over foreign relations, meaning that it has been vested with comprehensive power to conduct foreign relations to the exclusion of the states.109 This view is based on the various provisions of the US Constitution mentioned above, as well as language running through a number of Federalist papers110 and seminal cases of the US Supreme Court, such as United States v Belmont,111 proclaiming that ‘complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states … [I]n respect of our foreign relations generally, state lines disappear.’112

In fact, the interpretation of the various provisions enshrined in the US Constitution has led to the recognition of what has been called ‘foreign affairs

107 See Restatement (Third) of Foreign Relations Law, above n 21, §§ 303, 339.108 L Henkin, Foreign Affairs and the United States Constitution, 2nd edn (Oxford, Clarendon Press,

1996) 13–15.109 See, eg, ibid 14: ‘No explanation has been universally accepted, and no proposed principle of

constitutional construction has supplied what is missing to universal satisfaction. Different doctrines that have been suggested have different legal and political consequences. Under all of them, however, foreign affairs remains exclusively national.’ See also M Schaefer, ‘Constraints on State-Level Foreign Policy: (Re)Justifying, Refi ning and Distinguishing the Dormant Foreign Affairs Doctrine’ (2011) 41 Seton Hall Law Review 201, 222 (‘no one seriously questions that the federal government’s foreign affairs powers are plenary; thus, any alleged gaps in the textual allocations of powers to federal actors are not considered gaps in substance’). Indeed, there is usually no dispute in the commentary regard-ing the plenary nature of federal power over foreign relations, in the sense that the federal government has comprehensive power to conduct foreign relations without interference or limitation by the states, whereas the exclusive nature of such power in the absence of a controlling federal foreign relations enactment has been challenged, thereby explaining why a distinction is drawn between the two: JL Goldsmith, ‘Federal Courts, Foreign Affairs, and Federalism’ (1997) 83 Virginia Law Review 1617, 1619–20; see further below n 126.

110 See, eg, EH Scott (ed), The Federalist and Other Constitutional Papers (Chicago, Ill, Scott, Foresman & Co, 1898), Federalist No 42, at 232 (‘If we are to be one nation in any respect, it clearly ought to be in respect of other nations.’) (James Madison); Federalist No 80, at 435 (‘[T]he peace of the whole, ought not to be left at the disposal of a part.’) (Alexander Hamilton). For reference to others, see, eg, Hines v Davidowitz, 312 US 52, 62 fn 9 (1941).

111 United States v Belmont, 301 US 324 (1937).112 Ibid 331 (citations omitted). See also, eg, United States v Pink, 315 US 203, 233 (1942) (‘Power

over external relations is not shared by the [s]tates; it is vested in the national government exclusively.’); Hines v Davidowitz, 312 US 52, 63 (1941) (‘The Federal Government, representing as it does the col-lective interests of the … states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties … Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the fi eld affecting foreign relations be left entirely free from local interference.’)


exceptionalism’,113 denoting the idea that federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional constraints than that of domestic or internal affairs.114 For example, in Missouri v Holland,115 the US Supreme Court held that the treaty-making power,116 by which the President makes treaties with the advice and consent of the Senate, is not limited to matters falling within Congress’s enumerated powers in the US Constitution.117 Likewise, in United States v Curtiss-Wright Export Corp,118 the US Supreme Court, in a well-known opinion delivered by Justice Sutherland, declared that the broad statement that the federal government can exercise only those powers specifically enumerated in the US Constitution, or implied therefrom, is categorically true only with respect to internal affairs, and the federal government’s powers over foreign affairs do not depend on affirmative grants in the US Constitution: ‘The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.’119

At the same time, however, it is widely recognised that foreign relations are not ‘wholly insulated from the states’ and that they do take actions that affect foreign relations in various ways.120 In recent decades, fuelled by such factors as globalisation,121 the involvement of the states (as well as other sub-national

113 To be sure, the term ‘exceptionalism’ has been used to mean other things in the American setting, often relating to matters concerning the US position vis-à-vis international law: see J Resnik, ‘Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry’ (2006) 115 Yale Law Journal 1564, 1582–84 and citations therein.

114 CA Bradley, ‘The Treaty Power and American Federalism’ (1998) 97 Michigan Law Review 390, 391, 461. See further, eg, CA Bradley, ‘International Delegations, The Structural Constitution, and Non-Self-Execution’ (2003) 55 Stanford Law Review 1557, 1582–86; EA Young, ‘Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception’ (2001) 69 George Washington Law Review 139. Yet as evidenced by the above cited publications, the recognition of such differential treatment in foreign affairs has been accompanied by calls for its reassessment. Indeed, opposition to ‘foreign rela-tions exceptionalism’ has been considered the ‘key animating principle’ of the ‘revisionist’ scholarship: J Ku, ‘The State of New York Does Exist: How the States Control Compliance with International Law’ (2004) 82 North Carolina Law Review 457, 470, fn 63. See further below n 126.

115 Missouri v Holland, 252 US 416 (1920).116 US Constitution, Art II, s 2, cl 2. 117 Missouri v Holland, above n 115, at 432–35. That said, this case has been subject to critical

inquiry by scholars: see below n 126.118 United States v Curtiss-Wright Export Corp, 299 US 304 (1936).119 Ibid 315–18. Justice Sutherland’s so-called ‘extraconstitutional’ reading has been vigorously

challenged in the commentary: see, eg, MD Ramsey, ‘The Myth of Extraconstitutional Foreign Affairs Power’ (2000) 42 William and Mary Law Review 379 and citations therein. For a broader discussion, see, eg, SH Cleveland, ‘Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs’ (2002) 81 Texas Law Review 1; GE White, ‘The Transformation of the Constitutional Regime of Foreign Relations’ (1999) 85 Virginia Law Review 1.

120 Henkin, above n 108, 150.121 As regards this term and its potential implications in this setting, see, eg, PJ Spiro, ‘Globalization

and the (Foreign Affairs) Constitution’ (2002) 63 Ohio State Law Journal 649.


actors)122 in matters affecting foreign relations has intensified. Not only are the states assuming a more prominent role in their own right on the international stage, but also, on account of the interaction between the ‘foreign’ and the ‘domestic’ spheres, traditional activities of the states increasingly impact foreign relations.123 Examples range from state laws incorporating provisions of interna-tional conventions not yet ratified by the federal government, to various kinds of agreements entered into by the states with foreign governments in pursuit of economic, political or social objectives.124 These developments have pro-duced a rising volume of literature directed at issues relating to ‘foreign affairs federalism’,125 prompting re-examination of traditional assumptions about the scope of federal competence in foreign relations on numerous fronts126 and enliv-ening discussions as to the extent to which numerous kinds of actions taken by the states in matters concerning foreign relations are permitted under the constraints

122 In the US, the discussion of federalism and foreign relations includes actions taken by the states, as well as other sub-national or sub-federal actors, eg city and county municipalities, either alone or as part of a variety of networks: see, eg, J Resnik, ‘The Internationalism of American Federalism: Missouri and Holland’ (2008) 73 Missouri Law Review 1105 and citations therein. For brevity’s sake, however, this chapter generally refers to the states. In the EU, the discussion of federalism and exter-nal relations encompasses inquiry into actions taken by the Member States, as well as sub-national or devolved authorities within the Member States and even overseas territories linked thereto. See, eg, S Blockmans, ‘Between the Devil and the Deep Blue Sea? Confl icts in External Action Pursued by OCTs and the EU’ in D Kochenov (ed), EU Law of the Overseas—Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis (The Hague, Kluwer, 2011) 307.

123 N Robinson, ‘Citizens Not Subjects: US Foreign Relations Law and the Decentralization of Foreign Policy’ (2007) 40 Akron Law Review 647, 648.

124 See, eg, Resnik, above n 122; DB Hollis, ‘Unpacking the Compact Clause’ (2010) 88 Texas Law Review 741. State activities concerning climate change have warranted particular attention: see, eg, D Vogel and JFM Swinnen (eds), Transatlantic Regulatory Cooperation—The Shifting Roles of the EU, the US and California (Cheltenham and Northampton, Edward Elgar, 2011), particularly ‘Part I: Federalism and Cooperation at the National and International Levels’; Symposium, ‘Federalism and Climate Change: The Role of the States in a Future Federal Regime’ (2008) 50 Arizona Law Review 673; Note, ‘Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions’ (2006) 119 Harvard Law Review 1877.

125 For other factors relevant in this context, such as the US Supreme Court’s revival of federalism restrictions in the domestic sphere, see, eg, CA Bradley, ‘A New American Foreign Affairs Law?’ (1999) 70 University of Colorado Law Review 1089.

126 Those challenging the exclusive nature of federal competence in foreign relations are sometimes portrayed as taking a ‘revisionist’ position, as compared to a ‘nationalist’ or ‘orthodox’ view: see, eg, Goldsmith, above n 109; Ku, above n 114, 465–76; JJ Pascoe, ‘Time for a New Approach? Federalism and Foreign Affairs after Crosby v National Foreign Trade Council’ (2002) 35 Vanderbilt Journal of Transnational Law 291, 303–08; see also MD Ramsey, ‘Review Essay: Textbook Revisionism’ (2003) 43 Virginia Journal of International Law 1111, 1116–19 (exploring foreign relations ‘revisionism’). Such discussions are often situated within the context of particular doctrines or powers. For instance, as regards the treaty-making power, see, eg, Symposium, ‘Return to Missouri v Holland: Federalism and International Law’ (2008) 73 Missouri Law Review 921; DB Hollis, ‘Executive Federalism: Forging New Federalist Constraints on the Treaty Power’ (2006) 79 Southern California Law Review 1327, 1330–52 (providing a summary of the arguments of the so-called ‘nationalist’ and ‘new federalist’ camps). Another example may be found within the context of the doctrine of American ‘federal common law’ (see further citations below n 129) with regard to the status of customary international law: for a recent summary of the various positions and relevant literature, see CM Vázquez, ‘Customary International Law as US Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position’ (2011) 86 Notre Dame Law Review 1495.


imposed by the American constitutional framework,127 which in turn invites inquiry into the case law of the US Supreme Court on such matters.

B. Case Law of the US Supreme Court

Given that, as noted above, the US Constitution grants a number of enumerated powers concerning foreign relations to each of the legislative, executive and judicial branches of the federal government, there is a considerable body of case law of the US Supreme Court, not to mention the lower federal courts and the state courts, relevant to the discussion of the federal–state relationship in foreign relations, since depending upon the particular provision concerned, such case law arises in a variety of contexts128 and dovetails with so many doctrines,129 the analysis of which far exceeds the scope of this chapter. Therefore, for the purposes of the present discussion, focus is placed on certain landmark cases of the US Supreme Court that are of crucial importance for highlighting the limitations or constraints placed on state action in matters affecting foreign relations and the ambit for state autonomy in this setting.

At the forefront of the constraints placed on the states in the field of foreign rela-tions stands the dormant foreign affairs doctrine.130 This doctrine prohibits state action in foreign relations in the absence of a federal enactment in the field, and thus is rooted in the exclusive nature of federal competence over foreign relations, the idea being that since such competence is exclusive, state intrusions in foreign relations are prohibited even where the federal government has not acted (the power lays ‘dormant’).131 This doctrine was established in Zschernig v Miller,132

127 For typologies of various forms of state action implicating foreign relations, see, eg, Granne, above n 27, 872–76; Robinson, above n 123, 687–713.

128 Eg a notable area of jurisprudence concerns the dormant foreign commerce clause: see, eg, AJ Colangelo, ‘The Foreign Commerce Clause’ (2010) 96 Virginia Law Review 949; LM Wilson, ‘The Fate of the Dormant Foreign Commerce Clause after Garamendi and Crosby’ (2007) 107 Columbia Law Review 746; Schaefer, above n 109. As illustrated by some of the cases discussed below, this clause may constitute an independent ground (in addition to, inter alia, the dormant foreign affairs and pre-emption doctrines) by which to challenge state laws affecting foreign relations: see below nn 148 and 157.

129 Eg the doctrine of American ‘federal common law’: see generally RH Fallon, Jr, JF Manning, DJ Meltzer and DL Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System, 6th edn (New York, Reuters/Foundation Press, 2009) ch 7, particularly 665–79. For a comparative analysis, see K Lenaerts and K Gutman, ‘“Federal Common Law” in the European Union: A Comparative Perspective from the United States’ (2006) 54 American Journal of Comparative Law 1.

130 The dormant foreign affairs doctrine (or power, sometimes unaccompanied by the ‘dormant’ label) has also been referred to as ‘dormant foreign affairs preemption’ by commentators and members of the US Supreme Court (see, eg, text accompanying n 169 below). This is not done here in order to avoid confusion between this doctrine and the preemption doctrine, even if as discussed below, they have become intertwined through the course of US Supreme Court jurisprudence.

131 Schaefer, above n 109, 204, 225.132 Zschernig v Miller, 389 US 429 (1968). The judgment was delivered by eight, as opposed to nine,

justices (Justice Marshall did not take part in the case), and of those, it claimed an overriding major-ity of seven justices, with Justice White dissenting. In addition to Justice Stewart (joined by Justice Brennan), Justice Harlan also issued a concurring opinion, though he parted ways, inter alia, with the


decided by the US Supreme Court in 1968. Situated within the context of the Cold War, this case concerned a challenge to the constitutionality of an Oregon inheritance reciprocity statute generally requiring foreign persons inheriting property in that state to prove that there was a reciprocal right to inherit property in their country and that the property would not be confiscated.133 The Supreme Court had previously upheld a similar statute in Clark v Allen,134 but the problem here, in its view, was the way in which the Oregon statute was being applied, since it had led to inquiries by the state probate courts into the actual administration of foreign law and the credibility of foreign diplomatic statements,135 which had a ‘direct impact upon foreign relations’ and illustrated ‘the dangers which are involved if each [s]tate, speaking through its probate courts, is permitted to estab-lish its own foreign policy’.136 Thus, despite assertions by the federal government to the contrary,137 the Supreme Court held that the Oregon statute was ‘an intru-sion by the [s]tate into the field of foreign affairs which the Constitution entrusts to the President and the Congress’.138 In doing so, it emphasised that although the states have traditionally regulated matters concerning the descent and distribu-tion of estates, ‘those regulations must give way if they impair the effective exercise of the Nation’s foreign policy’.139

Thereafter, this judgment eventually found its way into a related line of cases concerning the pre-emption doctrine. This doctrine flows from a positive fed-eral act in combination with the Supremacy Clause,140 providing that the US Constitution, the federal laws adopted pursuant thereto and treaties made under the authority of the US are the ‘supreme Law of the Land’ and override any con-flicting state enactment.141 Under this doctrine, state action may be pre-empted expressly or implicitly by a particular federal act, as well as in circumstances in which such act has ‘occupied the field’ or the state action concerned is deemed to conflict directly with such act or otherwise constitutes an obstacle to the achieve-ment of the federal objectives embodied therein.142

majority’s decision concerning the dormant foreign affairs doctrine: see ibid 457–62 (Harlan J, concur-ring). His reasoning found its way into recent case law: see text accompanying nn 159–63 below.

133 Ibid 430–31 (majority opinion).134 Clark v Allen, 331 US 503 (1947). Justice Douglas delivered the opinion of the Supreme Court

in this case, as well as in Zschernig. There were no dissenting opinions, although Justice Rutledge concurred in part.

135 Zschernig, above n 132, at 435. For examples, see ibid 436–40. 136 Ibid 441.137 Ibid 434.138 Ibid 432.139 Ibid 440.140 LH Tribe, American Constitutional Law, 3rd edn (New York, Foundation Press, 2000) vol 1,

§ 6-28, at 1172.141 See above n 105.142 Tribe, above n 140, § 6-28, at 1176–77; § 6-31, 1204–05. As highlighted by the aforementioned

commentator and the US Supreme Court, however, the categories of express, implied, fi eld and con-fl ict pre-emption are not discrete, and fi eld pre-emption may be considered to fall into the others: see Crosby v National Foreign Trade Council, 530 US 363, 373 fn 6 (2000) and citations therein.


Decided in 2000, Crosby v National Foreign Trade Council143 confronted the Supreme Court with a challenge to the constitutionality of the Massachusetts Burma Law, a procurement statute barring state entities from buying goods or services from companies doing business with Burma (now Myanmar), save for some limited exceptions.144 Massachusetts was not alone; as noted in the Supreme Court’s opinion, at least 19 other state and local governments had adopted similar laws.145 The ‘rub’ in the case was that a few months after the Massachusetts statute was enacted, Congress passed a federal statute imposing a set of mandatory sanc-tions on Burma and authorising the President to impose further sanctions subject to certain conditions, thereby directing him to work to develop a comprehensive, multilateral strategy to bring democracy and improve human rights practices in Burma.146

In a unanimous judgment of all nine justices,147 the Supreme Court held that the Massachusetts statute was pre-empted under the Supremacy Clause because it stood as an obstacle to the accomplishment of Congress’s objectives under the federal statute.148 As fleshed out in separate sections of the judgment, the Supreme Court found that the state statute undermined the intended purpose and ‘natural effect’ of at least three provisions of the federal statute: its delegation of effective discretion to the President to control economic sanctions against Burma, its limitation of sanctions solely to US persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multi-lateral strategy toward Burma.149 In its view, by imposing a different state system of economic pressure against the Burmese regime, ‘the President has less to offer and less economic and diplomatic leverage as a consequence’,150 and the statute conflicted with the federal scheme in a number of ways by penalising individuals and conduct that Congress explicitly exempted or excluded from sanctions.151

143 Crosby, above n 142. For detailed discussion, see, eg, Symposium, ‘New Voices on the New Federalism’ (2001) 46 Villanova Law Review 907; RJ Delahunty, ‘Federalism Beyond the Water’s Edge: State Procurement Sanctions and Foreign Affairs’ (2001) 37 Stanford Journal of International Law 1; J Goldsmith, ‘Statutory Foreign Affairs Preemption’ (2000) Supreme Court Review 175; Pascoe, above n 126; M Tushnet, ‘Globalization and Federalism in a Post-Printz World’ (2000) 36 Tulsa Law Journal 11.

144 See Crosby, above n 142, at 366–68.145 See ibid 372, fn 5.146 See ibid 368–70.147 The opinion was delivered by Justice Souter; there was a concurring opinion by Justice Scalia

(joined by Justice Thomas), which dealt with the majority’s use of legislative history: ibid 388–91 (Scalia J, concurring).

148 Ibid 373. Notably, the Supreme Court sidestepped issues concerning the dormant foreign affairs doctrine and the dormant foreign commerce clause, which had been dealt with in the proceedings before the lower federal courts, preferring to deal only with the pre-emption claim. It also sidestepped the issue of whether a presumption against pre-emption should apply in this context, though noting that even assuming such a presumption was appropriate, the statute was nonetheless pre-empted. See ibid 374, fn 8. On this latter point, see further Wyeth v Levine, 555 US 555, 624 fn 14 (2009) (Alito J, dissenting).

149 Crosby, above n 142, at 373. 150 Ibid 376–77.151 Ibid 378.


Moreover, the Supreme Court considered that the statute hindered the President’s capacity for effective diplomacy, underlining that ‘[i]t is not merely that the differ-ences between the state and federal [a]cts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments.’152

A few years later, in 2003, the Supreme Court delivered its judgment in American Insurance Association v Garamendi,153 concerning a constitutional challenge to the California Holocaust Victim Insurance Relief Act (HVIRA), which required insurance companies doing business in the state to disclose information about insurance policies sold in Europe during the Holocaust era.154 The California statute was not adopted in a vacuum. International efforts were already under-way to deal with claims stemming from the confiscation of Jewish life insurance policies issued before and during World War Two, which led to the adoption of executive agreements between the President and several European countries to set up a foundation that was intended to be the exclusive forum for victims to receive compensation and, as regards insurance claims, to work with a voluntary organisation, the International Commission on Holocaust Era Insurance Claims, responsible for providing information and settling such claims.155 Still, the California legislature found the adoption of the statute necessary to protect the claims and interests of its residents, as did other states.156

Compared to Crosby, this time it was a ‘close call’, but by a narrow 5:4 majority, the Supreme Court held that the California statute was pre-empted on account of its interference with the federal government’s conduct of foreign relations.157 Since there was no express pre-emption clause in the executive agreements con-cerned, the pre-emption claim rested on the asserted interference with the foreign policy those agreements embodied, which turned the Supreme Court’s atten-tion to Zschernig.158 It compared the majority’s opinion in that case with Justice Harlan’s concurrence, which disagreed with such reasoning but would have found

152 Ibid 381. In this regard, the Supreme Court cited protests by various US allies and trading partners against the Massachusetts statute to support the fact that it threatened the President’s pow-ers to speak and to bargain effectively with other nations, which included submissions by the EU to the federal government and the lodging of complaints by the EU and Japan with the World Trade Organization: see ibid 382–86.

153 American Insurance Association v Garamendi, 539 US 396 (2003). For detailed discussion, see, eg, JB Crace, Jr, ‘Gara-Mending the Doctrine of Foreign Affairs Preemption’ (2004) 90 Cornell Law Review 203; BP Denning and MD Ramsey, ‘American Insurance Association v Garamendi and Executive Preemption in Foreign Affairs’ (2004) 46 William and Mary Law Review 825; Note, ‘Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions’, above n 124.

154 See Garamendi, above n 153, at 409–11.155 See ibid 401–08.156 Ibid 411, 413, fn 6.157 Ibid 401. Justice Souter delivered the majority opinion (joined by then Chief Justice Rehnquist,

as well as Justices O’Connor, Kennedy and Breyer). Although the grant of certiorari encompassed three questions (whether the HVIRA intrudes on the federal foreign affairs power, violates the foreign com-merce clause and exceeds the state’s ‘legislative jurisdiction’), the Supreme Court chose to deal only with the fi rst: see ibid 413, fn 7.

158 Ibid 417.


pre-emption in a case of ‘conflicting federal policy’.159 This led the Supreme Court to surmise that ‘[i]t is a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption evident in the Zschernig opinions’.160 It decided, however, that there was no need to answer this question because, even on Justice Harlan’s view, the likelihood that a state law will produce ‘something more than incidental effect in conflict with express foreign policy’ of the federal government would require pre-emption of that law.161 Nevertheless, in line with his view, the Supreme Court stated that ‘it would be reasonable to consider the strength of the state interest, judged by standards of traditional practice, when deciding how serious a conflict must be shown before declaring the state law preempted’.162 Judged by these standards, it ruled that there was a sufficiently clear conflict to justify pre-emption here.163

In particular, the Supreme Court emphasised that the situation created by the California statute resembled the Massachusetts statute at issue in Crosby ‘in the way HVIRA threatens to frustrate the operation of the particular mechanism the President has chosen’.164 Furthermore, the statute’s economic compulsion to make public disclosure of far more information about far more policies than the International Commission rules undercut the President’s diplomatic discre-tion and the choice he had made in exercising it, thereby compromising his ‘very capacity to speak for the Nation with one voice’ in dealing with other countries in order to resolve claims against European companies arising out of World War Two.165 It then pointed to the ‘weakness of the [s]tate’s interest, against the backdrop of traditional state legislative subject matter, in regulating disclosure of European Holocaust-era insurance policies in the manner of HVIRA’.166

159 Ibid 418–19.160 Ibid 420. In an accompanying footnote, the Supreme Court posited that these two positions

could be considered complementary: ‘If a [s]tate were simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility, fi eld preemption might be the appropriate doctrine, whether the National Government had acted and, if it had, without refer-ence to the degree of any confl ict, the principle having been established that the Constitution entrusts foreign policy exclusively to the National Government. Where, however, a [s]tate has acted within what Justice Harlan called its “traditional competence”, but in a way that affects foreign relations, it might make good sense to require a confl ict of a clarity or substantiality that would vary with the strength of the traditional importance of the state concern asserted. Whether the strength of the federal foreign policy interest should itself be weighed is, of course, a further question.’ (ibid 420, fn 11 (citations omitted))

161 Ibid 419–20. 162 Ibid 420.163 Ibid.164 Ibid 423–25.165 Ibid 424 (quoting Crosby, above n 142, at 381). The Supreme Court admitted that in the present

case the President was acting without any congressional authority and thus did not have the ‘plenitude of Executive authority’ that controlled the issue of pre-emption in Crosby; however, in Crosby, ‘we were careful to note that the President possesses considerable independent constitutional authority to act on the behalf of the United States on international issues, and confl ict with the exercise of that author-ity is a comparably good reason to fi nd preemption of state law’ (ibid 424, fn 14 (citations omitted)).

166 Ibid 425–27.


In well-cited language, the Supreme Court paid heed to the fact that California’s strategy of using an ‘iron fist’ might work better than the President’s choice of ‘kid gloves’ in addressing the matter concerned, but reiterated that the ques-tion relevant to pre-emption in this case was conflict, and the evidence amply showed that the California statute stood in the way of the President’s diplomatic objectives.167

By comparison, in her dissenting opinion, Justice Ginsburg argued that although the federal approach differed from California’s, there was no executive agreement or other formal expression of disapproval for state disclosure laws like the one at issue, and therefore, absent a clear statement to this effect, the state statute should be left intact.168 In doing so, she challenged Zschernig’s application to the present proceedings:

We have not relied on Zschernig since it was decided, and I would not resurrect that decision here. The notion of ‘dormant foreign affairs preemption’ with which Zschernig is associated resonates most audibly when state action ‘reflect[s] a state policy critical of foreign governments and involve[s] “sitting in judgment” on them.’ The HVIRA entails no such state action or policy. It takes no position on any contemporary foreign government and requires no assessment of any existing foreign regime. It is directed solely at private insurers doing business in California, and it requires them solely to disclose information in their or their affiliates’ possession or control. I would not extend Zschernig into this dissimilar domain.169

In Justice Ginsburg’s view, upholding the HVIRA ‘would not compromise the President’s ability to speak with one voice for the Nation’, and foreign affairs pre-emption should be reserved for circumstances in which the President, acting under statutory or constitutional authority, has spoken clearly to the issue at hand.170

Recently, the Supreme Court’s 2008 judgment in Medellín v Texas171 brought to the fore the ‘flip side’ of ‘foreign relations federalism’ in connection with the ambit and consequences of state autonomy in this field. By way of brief background,172 in the wake of brutal crimes committed by several gang members in Texas, Medellín, a Mexican national residing in the US, was arrested and confessed to

167 Ibid 427 (quoting Crosby, above n 142, at 386).168 Ibid 430 (Ginsburg J, dissenting).169 Ibid 439–40 (citations omitted). In an accompanying footnote, Justice Ginsburg also criti-

cised the majority’s reliance on Crosby, a statutory pre-emption case that ‘provides little support for pre-empting a state law by inferring preclusive foreign policy objectives from precatory language in executive agreements’ (ibid 440, fn 4).

170 Ibid 442.171 Medellín v Texas, 552 US 491 (2008). For a selection of literature devoted to this case and its

broader background, see Agora, Medellín (2008) 102 American Journal of International Law 529; Symposium, Medellín v Texas (2008) 31 Suffolk Transnational Law Review 209; Colloquy, (2010) 44 Valparaiso University Law Review 759; T Cruz, ‘Defending US Sovereignty, Separation of Powers, and Federalism in Medellín v Texas’ (2010) 33 Harvard Journal of Law and Public Policy 25; EA Young, ‘Treaties as “Part of Our Law” ’ (2009) 88 Texas Law Review 91.

172 See Medellín, above n 171, at 497–504.


such crimes, but was not advised of his right to notify the Mexican consulate of his detention in accordance with the Vienna Convention on Consular Relations (‘Vienna Convention’).173 He was convicted of capital murder and sentenced to death by a Texas state court. In his subsequent attempts to challenge his death sentence, he raised a claim based on the Vienna Convention, but under a Texas procedural default rule, such claim was precluded because he had failed to raise it at trial or on direct review. In the meantime, the International Court of Justice (ICJ) delivered its judgment in Avena,174 ruling that the US violated the Vienna Convention by failing properly to inform several Mexican nationals awaiting execution, including Medellín, of their right to speak with a consular official after being detained, and that such nationals were entitled to review and reconsidera-tion of their state court convictions and sentences. Following Avena, then President Bush issued a Memorandum to the Attorney General, stating that the US ‘will discharge its international obligations’ under Avena ‘by having [s]tate courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision’.175 Consequently, this case confronted the US Supreme Court with two main questions concerning whether the Avena decision was directly enforceable as domestic law in state and federal courts, and whether the Presidential Memorandum independently required the states to provide review and reconsideration of the claims of the Mexican nation-als named in Avena without regard to state procedural default rules.176

In an opinion delivered by Chief Justice Roberts,177 the Supreme Court held that neither the Avena judgment nor the Presidential Memorandum constituted directly enforceable federal law that pre-empted the state rules concerned.178 First, although the Avena judgment created an international law obligation on the part of the US, it did not have automatic legal effect such that it applied of its own force in state and federal courts.179 In this regard, the Supreme Court rejected arguments that several relevant treaty sources (ie the Optional Protocol to the Vienna Convention,180 the UN Charter and the ICJ Statute) supplied the ‘relevant obligation’ to give the Avena judgment binding effect in domestic courts,

173 In 1969, the US ratifi ed the Vienna Convention on Consular Relations, 24 April 1963, [1970] 21 United States Treaties and Other International Agreements (UST) 77, and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (‘Optional Protocol’), 24 April 1963, [1970] 21 UST 325. By ratifying the Optional Protocol, the US consented to the specifi c jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention; however, in 2005 (after the ICJ’s judgment in Avena: see text accompanying n 174 below), the US gave notice of with-drawal from the Optional Protocol: Medellín, above n 171, at 500.

174 Avena and Other Mexican Nationals (Mexico v United States of America), Judgment [2004] ICJ Reports 12.

175 Medellín, above n 171, at 503.176 Ibid 498.177 The opinion garnered a 6:3 majority, with Justice Stevens concurring and Justice Breyer (joined

by Justices Souter and Ginsburg) dissenting. 178 Medellín, above n 171, at 498–99. 179 See ibid 504–22.180 See above n 173.


finding that none of these sources created binding federal law in the absence of implementing legislation.181 Secondly, the Avena judgment was not binding on state courts by virtue of the Presidential Memorandum.182 The Supreme Court rejected arguments that, inter alia, the Memorandum was a valid exercise of the President’s foreign affairs authority to resolve claims disputes with foreign nations, underlining that the President’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement, as illus-trated by cases including Garamendi, could not be stretched so far as to support the Memorandum.183 In closing, it stressed that the Memorandum constituted an ‘unprecedented action’ that ‘reaches deep into the heart of the [s]tate’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws’.184

To be sure, as noted by one commentator, Medellín ‘implicated virtually every conceivable axis of the structural limitations on government’.185 Still, federalism permeated this case. At base, the Supreme Court’s judgment signified deference to state (criminal procedural) law in the absence of implementing legislation, but with an awkward result for US foreign relations. Indeed, both Justice Steven’s concurrence and Justice Breyer’s dissent emphasised the extent to which Texas’s non-compliance with the ICJ’s judgment would jeopardise American dealings with foreign governments.186 As matters stand now, it remains an open question whether other cases allowing for state autonomy in the face of federal power over foreign relations will follow.187

Taken together, the foregoing case law attests to ‘the difficulty of finding the proper constitutional balance among state and federal’ powers in foreign rela-tions.188 On the one hand, Crosby and Garamendi constitute salient examples of state legislation struck down on the ground that it was found to interfere directly with federal objectives in foreign relations.189 On the other hand, the course of this case law may arguably be read to allow for a certain degree of leeway for action taken by the states in matters affecting foreign relations. Notably, in

181 Medellín, above n 171, at 506–14. 182 See ibid 523–32.183 Ibid 530–32. The Supreme Court also rejected arguments that the relevant treaties gave the

President the authority to implement the Avena judgment and that Congress had acquiesced in the exercise of such authority: see ibid 526–30. Moreover, it swiftly dismissed the assertion that the Memorandum was a valid exercise of the President’s ‘take care’ power: see ibid 532.

184 Ibid 532. Medellín’s subsequent attempts to stay execution were unsuccessful: see Medellín v Texas, 554 US 759 (2008); Ex parte Medellín, 280 SW 3d 854 (Tex Crim App, 2008), cert denied, 555 US 922 (2008). Ultimately, he was executed.

185 Cruz, above n 171, 25. 186 See Medellín, above n 171, at 536–37 (Stevens J, concurring) and at 565–66 (Breyer J, dissenting).187 Eg a key issue left open by this case concerns the application of the anti-commandeering

doctrine in the context of foreign relations: see, eg, C Jackson, ‘The Anti-Commandeering Doctrine and Foreign Policy Federalism—The Missing Issue in Medellín v Texas’ (2008) 31 Suffolk Transnational Law Review 335.

188 Medellín, above n 171, at 565 (Breyer J, dissenting).189 See Chamber of Commerce of the United States v Whiting, 131 S Ct 1968, 1983 (2011).


Garamendi, despite the disagreement between the majority and the dissent, both appeared to be united in scaling back to some extent the dormant foreign affairs doctrine and the federal pre-emption of state action in this context, as evidenced by the majority’s framing of Zschernig as pre-emption requiring the showing of a clear conflict with federal foreign relations policy in this case and its introduction of a balancing test taking into account the strength of the state interest as part of the assessment, as well as by the dissent’s emphasis on the limited application of Zschernig and the need for a clear statement from the federal level to justify the pre-emption of state legislation. Medellín also tightened the reins on the scope of executive foreign relations power capable of overriding action taken by the states, especially taking its treatment of Garamendi into account.190 Certainly, the issues presented in Medellín differed from those in Zschernig, Crosby and Garamendi, and these cases may be viewed from a number of angles. Nevertheless, akin to the ECJ jurisprudence in this setting, the cases discussed above help to illuminate the US Supreme Court’s important role in ‘filling out’ the constitutional dimensions of the interaction between the federal and state levels in foreign relations.

V. CONCLUSION

In view of the foregoing analysis, the approach taken to federalism and interna-tional relations in the EU and the US reveals some remarkable parallels.

First, the examination of the conceptual framework underlying this subject indicates that the EU and the US are not too distinct for meaningful comparison. Although the EU and the US constitute different kinds of federal systems, at least in functional terms, they are both grappling with the common challenge underlying federalism of balancing the need to ensure a coherent international relations policy at the central level and the allowance for some degree of autonomy for the component states to act in this field in order to protect their own interests.

Secondly, inquiry into the constitutional frameworks governing interna-tional relations in the EU and the US highlights that parsing out the allocation of competences between the central authority and the component entities in each legal order is more nuanced and complex than would appear on the face of the respective ‘constitutional’ texts alone. Importantly, although the EU and the US have different starting points when it comes to the vertical division of competences in international relations, both legal orders evidence a subtle shift or accommodation in the opposite direction. In the EU, the Member States in principle occupy a primary role in external relations, as opposed to the Union. In view of the developments heralded by the Lisbon Treaty and relevant case law of the ECJ, however, there appears to be some movement towards the Union level, with respect to the accretion of the Union’s external relations competences

190 See, eg, Schaefer, above n 109, 299–300; JK Schrag, ‘A Federal Framework for Regulating the Growing International Presence of the Several States’ (2009) 48 Washburn Law Journal 425, 437.


and the emphasis on shared competences with a role for both the Union and the Member States to play. In the US, the federal government in principle occupies the primary role in foreign relations, as opposed to the states. Even so, the states’ increasing engagement with matters concerning foreign relations combined with the approach taken by the US Supreme Court in some recent case law have weakened assumptions of a blanket federal monopoly over all matters implicating foreign relations. Accordingly, in the EU and the US, the point of departure in this setting is no longer solely the exclusive competence of either level, but instead, issues bearing on the relationship between the central and constituent state levels have to be taken into account. In this way, when it comes to federalism and inter-national relations in the EU and the US, now more than ever, this subject beckons fruitful comparative reflection, and it is the hope of the present authors that this chapter may lay the groundwork for more to come.

Federalism and International Relations in the EU and the US: A Comparative Outlook

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