Código Arduino

The CJEU has expressly acknowledged that customary international law is applicable to both EU internal and external action.^°^ In its 1992 decision in Poulsen and Diva Navigation,^^^ the Court held that EU legislation must be interpreted in light o f the relevant rules o f international law, including customary international law. In this case, the Court established that the EU had to take into account certain maritime conventions^®^ ‘in so far as they codify general rules recognized by international custom’.®^® Additionally, the provisions o f the UN Convention on the Law o f the Sea®“ were applicable in Poulsen^^^ even if they had not entered into force at the time o f the decision.®^^ Based onP oulsef^^ any indigenous peoples’ rights codified by customary international law should, in theory, be applicable before the CJEU.

It has also been suggested that the EU is bound by the principles o f customary international law even where such principles are codified in international agreements to which the EU is not a signatory.®^® It appears that the EU can be regarded bound by and held liable for breaches o f both international Treaty law and customary international law®*® on the grounds o f Article 47 o f the Treaty on European Union (TEU),®*’ which stipulates that the EU has ‘international legal personality’. Advocate-Generals o f the CJEU certainly seem to think that the Court has to interpret the provisions o f international agreements where these form expressions o f customary rules and

®®^ See eg Theodore K onstadinides, ‘W hen in Europe: C ustom ary international law and EU com petence in the sphere o f external action’ (2012) 13(11) G erm an L aw Journal 1177, 1183 referring to T aw hida A hm ed and Israel de Jesus B utler, ‘The E uropean U nion and hum an rights: A n international law p erspective’ (2006) 1 7 E u r J I n t ’1 1 7 7 1 ,7 7 8 .

®®^ Poulsen (n 591) para 10.

®°^ eg C onvention on the H igh Seas (adopted 29 A pril 1958 entered into force 30 Septem ber 1962) 450 U N TS 11.

®*° Poulsen (n 591) para 10.

®** adopted 10 D ecem ber 1982 entered into force 16 N ovem ber 1994 1833 U N TS 3 (U N C LO S).

®*^ Poulsen (n 591) para 10.

®*^ ibid

®’“ ibid

®*® K onstadinides (n 607) 1183.

®*® ibid

® *7[2010]O JC 83/13.

serve as a criterion for the validity o f the activities o f EU institutions.®*® However, the Advocate- Generals are not always successful in persuading the Court to agree.®*®

As noted in Chapter 1, the EU has recognised the significance o f the UNDRIP.®^® The European Parliament and the High Representative consider that the rights in the UNDRIP and the ILO Convention 169 are o f political importance to the EU.®^* The High Representative, Catherine Ashton, delivered a Declaration on International Indigenous Peoples Day in 2011 on behalf o f the EU and the Member States ‘reaffirming their commitment to indigenous peoples both in and outside the EU’.®^^ This Declaration further stated that:

The 27 Member States o f the EU all support the 2007 United Nations Declaration on the Rights o f Indigenous Peoples, an important milestone for them and for everyone working to promote human rights. We work with the UN Office o f the High Commissioner for Human Rights to support the participation o f indigenous peoples at UN events and meetings; and we support the International Labour Organisation in its work for indigenous peoples, including that based on ILO Convention 169.

In theory, the Declaration by the High Representative could be interpreted as an explicit acceptance o f an obligation rising out o f the UNDRIP, if not also the ILO Convention 169.

Additionally, the UNDRIP is referred to in the Preamble to the Basic Regulation. Whether the explicit acceptance would require the EU to implement the UNDRIP within the EU legal order by a separate instrument is unclear. Nevertheless, the point the thesis makes is that there are instances

®*® See Case C -533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] E C R 1-4104, O pinion o f A G K okott, para 65.

®*® See eg Case C -50/00 P, Union de Pequehos Agricultores v Council [2002] E C R 1-6677 (UPA), O pinion o f A G Jacobs. T he role o f the A dvocates-G eneral is to propose to the ECJ, in com plete independence, a legal solution to the cases fo r w hich they are responsible. H ow ever, their O pinions are non-binding on the Court.

®^° ch 1 s 1.1.

®^* T his is despite the fact th at the m ajority o f the current 28 M em ber States are not parties to the ILO C onvention 169. In fact, only D enm ark, the N etherlands and Spain have ratified the ILO C onvention 169.

See International L abour O rganisation <w w w .ilo.org/ilolex/cgi-lex/ratifce.pl7C 169> accessed 13 O ctober 2011.

®^ D eclaration by the H igh R epresentative, C atherine A shton, on b e h a lf o f th e European U nion on the occasion o f the International D ay o f the W orld's Indigenous P eo p le on 9 A ugust 2011

< w w w .eeas.europa.eu/delegations/eritrea/press_com er/all_new s/ne w s/2 0 11/20110809_0 l_en.htm >

accessed 2 A pril 2012.

where the EU has accepted obligations rising out o f international conventions, which are non­

binding on it. For instance, the institutions decided to fully implement CITES within the EU legal order although it was non-binding on the EU.®^® By doing so, they recognised the decision-making powers o f the CITES Conference o f Parties and transposing these decisions into EU law.®^'* This approach is supported by the Vienna Convention,®^® which provides, inter alia, that ‘third parties are not bound by a treaty unless the parties to the treaty®^® intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing’.®^^ This is significant since an explicit acceptance o f the obligations rising from the UNDRIP and thus, a decision to adhere to the Declaration, means that the EU should ensure compliance with it throughout the territory covered by the Treaties.®^®

However, it is noteworthy that the CJEU has held that the Vienna Convention is non­

binding on either the EU or EU Member States.®^® Despite this, the Court has established through its case law that several provisions o f the Vienna Convention reflect the rules o f customary international law, which themselves are binding upon the EU institutions and thus, form part o f the EU legal order.®®® This acknowledgement can be seen as instrumental for the Court’s acceptance o f customary international law in EU law.®®* Indeed, the Court has, inter alia, recognised that many customary law principles codified in the provisions o f the Vienna Convention apply in cases before it. It has explicitly referred to at least Article 26 according to which the agreements and stipulations

®^® See eg M endes (n 597) s 4.

®24 ibid

®^ V ienna C onvention on the L aw o f T reaties (adopted 23 M ay 1969, entered into force 27 January 1980) 1155 U N TS 331.

®^® In this context, ‘treaty ’ m eans an international agreem ent, rath er than the founding T reaties o f the EU.

®^’ V ienna C onvention, art 35.

®^® O n th e topic o f the EU adhering to an international environm ental agreem ent, see K ram er, E U Environmental Law (n 186) s 11-18.

®®® See Case C -386/08 Firma Brita G m bH v Hauptzollamt Hamburg-Hafen [2010] E C R 1-01289, para 42.

®®° ibid. See also C ase C -162/96 Racke GmbH and Co v Hauptzollamt Mainz [1998] E C R 1-3655, paras 24 and 45-46; C ase C -1 18/07 Commission v Finland [2009] E C R 1-10889, para 39.

®®* See K onstadinides (n 607).

o f the parties to a contract must be observed,®®^ and Article 31(1), which contains a fundamental interpretative norm o f international law according to which an international law Treaty must ‘be interpreted in good faith in accordance with the ordinary meaning to be given to the terms o f the treaty in their context and in the light o f its object and purpose.’

In A T A A f^ the Court addressed the issue o f whether certain principles o f customary international law could be relied upon by individuals in an action for annulment against an EU Act.

In previous cases, the CJEU has held that customary international law was less precise than Treaty norms and did not therefore create rights for individuals.®®'* For instance, in Racke v Hauptzollamt M a i n z the Court noted that customary international law would be applicable to the extent that

‘the individual concerned was invoking fundamental rules o f customary international law against the disputed regulation, which had been taken pursuant to those rules and deprived that individual o f the rights to preferential treatment granted to it by the Cooperation Agreement’.®®® Although Racke^^^ indicates that the rights guaranteed in customary international law could be relied on before the Court in certain circumstances, whether the CJEU considers that the UNDRIP codifies customary international law and that the seal products was pursuant to the UNDRIP is unclear.

Thus far, the CJEU has rejected the argument that the fundamental rights in the ECHR on which the Inuit applicants relied should be interpreted in the light o f ‘provisions relating to the protection o f indigenous peoples in international law,®®® as enshrined, in particular, in [the UNDRIP]’.®®® It nevertheless appears that the appellants’ referral to ‘provisions relating to the

®®^ See eg Racke (n 630) para 49; Case T-338/08, Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission (EGG, 14 June 2012), para 72.

ATAA (n 591).

®®4j;acte(n630).

®®® ibid paras 48-49, 52.

®®® ibid. In this case, th e contested E U act w as Council R egulation (EEC ) N o 3300/91 o f 11 N ovem ber 1991 suspending the trade concessions provided for by the C ooperation A greem ent betw een the E uropean E conom ic C om m unity and the Socialist Federal R epublic o f Y ugoslavia [1991] O J L 3 15/1.

®®^ Racke (n 630).

®®® This could be interpreted to include not only the U N D R IP, but potentially also the ILO C onvention and other custom ary international law, such as the ICCPR.

®®® Case T - S i e m i T K v Commission (EG C, 25 A pril 2013) para 104.

protection o f indigenous peoples in international law’ in IT K v Commission^'^ can be interpreted to apply to customary international law in addition to the UNDRIP. Therefore, based on Racke^^ Inuit need to convince the Court that the seal products legislation deprived them o f ‘the rights to preferential treatment’ granted to them by the UNDRIP because the contested legislation was adopted pursuant to the UNDRIP and other customary international law protecting indigenous peoples’ rights. However, this may prove challenging.

The Court has already rejected one argument concerning the UNDRIP in IT K v Commissionf'^ Thus, even if the UNDRIP could be seen to codify customary international law, in this case, the EGC considered the applicants’ argument concerning Article 19 UNDRIP as irrelevant in the context o f an alleged infringement o f their rights under the ECHR, and specifically the ‘right to be heard’ The applicants argued that if an individual’s property rights were considerably restricted, this person should be given a reasonable opportunity o f putting their case to the competent authorities.®'*'* Although the Court noted that the EU seal products legislation referred to the UNDRIP, it stated that the claimants’ argument that ‘the right to be heard had to be interpreted in the light o f Article 19 UNDRIP could not succeed’.®'*® Although the Court’s decision is not very clear, it appears that since the EGC found no restriction o f the applicants’ right to property, there was no infringement o f the right to be heard either. Although on the one hand the EGC’s decision concerning Article 19 UNDRIP could be seen to undermine the importance o f the

®^ Case T -526/10 IT K v Commission (EG C, 25 A pril 2013) para 104.

®'** ibid

®'*2 ibid

®^® T he ‘right to be h e a rd ’ is one o f the fundam ental rights recognised by the EU legal order. It is codified in A rticle 47 o f the C harter o f Fundam ental rights. B efore the entry into force o f the L isbon Treaty, the ‘right to be heard’ w as im posed as a general rule o f EU law in cases w here there w as an adverse im pact on the applicant’s interests, specifically in cases involving export o f goods. See eg Case T - 4 10/06 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council [2010] E C R 11-00879. T his case involved See also ch 6 s 6.2.2.

®^ C ase T-526/10 77% V Commission (EG C, 25 A pril 2013), para 110.

®*® ibid. A rticle 19 U N D RIP can be interpreted to im pose an obligation for States to seek the free, prio r and inform ed consent o f indigenous peoples before im plem enting any legislative o r adm inistrative m easures w hich m ay affect indigenous peoples. See s 3.4.2.

UNDRIP, the Court’s conclusions on Article 19 are not surprising, considering the CJEU’s approach towards different international instruments in EU law.

The Court’s conclusions concerning Article 19 UNDRIP do not necessarily mean that the EU fails to respect indigenous peoples’ rights under the UNDRIP. In fact, it appears that the Court considered that the Inuit were heard in relation to the seal products legislation since in its opinion there was an adequate consultation o f indigenous peoples.®*® Therefore, the Court’s conclusions are consistent with existing case law, which has, inter alia, established that if an applicant was ‘in a position in which it could effectively make known its views’ there would not be a breach o f the applicant’s rights o f defence.®^^ In its 2010 decision in Foshan v Council,^^ the ECJ specifically held that ‘the right o f interested parties, in particular exporters, to be heard...includes the right to be informed o f the main facts and considerations on the basis o f which it is intended to recommend the imposition o f definitive anti-dumping duties’.®*® Thus, the mere fact that the applicant was informed was appropriate in the case concerning anti-dumping duties. However, providing mere information and an opportunity to make their views known in relation to the EU seal products legislation is unlikely to be sufficient under Articles 18 and 19 UNDRIP, which concern the right o f indigenous peoples to be consulted in decision making concerning their rights.®®® Whether indigenous peoples were appropriately consulted by the EU is further discussed in section 3.4.3.

On the whole, the CJEU’s case law indicates that the institutions must indeed respect the rights under the UNDRIP. Therefore, the EU appears to recognise the need to take into account the UNDRIP and the ILO Convention 169 because these instruments constitute current international law on indigenous peoples’ rights. The EU’s commitment is evidenced, inter alia, from the seal products legislation, the statement by the Council that the EU is working towards the universal

®*® s 3.4.3.

®*^ Foshan (n 643) para 125.

®*® ibid

®*® ibid para 109.

®®®s 3.4.2.

ratification and implementation o f all major international human rights instruments,®®* including those protecting indigenous peoples’ rights,®®^ the Declaration by the High Representative, Catherine Ashton,®®® and the Commission documents concerning the EU’s engagement with indigenous peoples in the context o f the EU ’s future Arctic policy.®®* This is logical considering that the EU has considerable power and role at the international fora. However, the CJEU may find that the Declaration is not enforceable before it for three reasons. First, the Declaration is non­

binding on the EU. Second, indigenous rights do not fall within the exclusive competence o f the EU.®®® Finally, even if private applicants able to rely on provisions o f customary international law codified in the provisions o f the UN Declaration in an action for annulment against an EU act, such law does not p er se create rights for individuals.