Refutación de argumentos a favor de la prueba de oficio

Although much criticized, the principle of sovereignty is still very central to almost all thinking about international law.272 _{As Jeffery has noted, sovereignty refers to the bundle}

of rights and competences which go to make up the nation State, as a consequence of which it can be equated with Statehood. Jurisdiction refers to particular rights of the bundle of rights which comprise Statehood. It refers to a State’s right of regulation in its judicial, administrative, and legislative competence.273 _{Because jurisdiction is a corollary}

of sovereignty, the jurisdiction of a State cannot extend further than its sovereignty. Isenbaert, who has done impressive research on the notions of sovereignty and of income tax sovereignty, has stated that the essence of the sovereignty concept is reflected by the establishment and justification of a claim to supreme authority within a particular body politic;274 _{it is a claim to “ultimate, and thus exclusive, authority.}275 _{Of course, States are}

always free to limit their jurisdiction unilaterally or by means of a treaty.276 _{This proves that}

even today the sovereign State remains the principal actor in the international arena.277 _In

the words of Isenbaert:

“As a consequence of the ever-growing body of international law and the resulting binding international obligations, the sovereign state has turned into an organization that can no longer be considered as the sole wielder of all political authority. Even in this situation of multilateral obligations, the state is seen as exercising its sovereignty through concluding international treaties or becoming a member of a supranational organization in order to transform the functions and objectives of its sovereign powers into different or more advanced functions and objectives of the international treaty or the supranational organization. By those means, the exercise of the state of its sovereign powers gains a new functionality. Hence, it can be said that external sovereignty has become a concept of functional freedom for the states, through which they can alter and enhance the functions of their sovereign power and the level on which these functions are exercised.”278 272 _{Jackson 2006, p. 57.}

273 _{Jeffery 1999, p. 26, with further references.} 274 _{Isenbaert 2010, p 62.}

275 _{Isenbaert 2010, p 72.} 276 _{Vanhamme 2001, p 52.} 277 _{Isenbaert 2010, p 66.}

278 _{Isenbaert 2010, p. 67. Italics by the present author.}

sovereignty

Also according to the Lotus principle, any attempt to constrain the State’s freedom of action in the absence of a legal prohibition is a violation of State sovereignty.279 _{Thus, in the}

present author’s view, sovereignty should be understood as a prima facie general freedom of action of States, as limited by international law.280

Sovereignty is also quite central to the concept of equality of nations. Sovereignty presumes that there is no higher power than the nation State and negates the idea that there is a higher power, internationally or foreign (unless consented to by the nation State).281 _{According to Jeffery, the sovereign nature of jurisdiction means that it is linked}

to the principle of the equality of nation States, which together with sovereignty, has been described as ‘the basic constitutional doctrine of the law of nations’.282 _{Since every State}

enjoys the same degree of sovereignty, jurisdiction implies respect for the corresponding rights of other States.283 _{This means that sovereignty can never be absolute.}284 _{It represents}

an aspiration rather than a concrete stipulation. The extent of a State’s sovereignty can be determined only if it is confronted with the sovereignty of other States or other principles or rules of international law.

The question arises whether new supranational levels of authority can be said to have acquired sovereignty in their own right and, if so, what the relationship is between those new levels of authority and the sovereignty of the individual nation States. Isenbaert has discussed a number of different views in literature on this issue. First, there is the approach which considers sovereignty as something which can be delegated. This approach denies that supranational organizations would have any sovereignty of their own.285 _{A second}

approach considers sovereignty to be something which can be divided between States and supranational organizations.286 _{Thirdly, there is the idea which focuses on ‘function-}

sovereignty’ or ‘constitutional pluralism’. The essence of constitutional pluralism is that two (or more) parallel and equivalent legal claims to ultimate authority are made by two (or more) sovereign entities situated at different levels.287 _{According to Isenbaert, however,}

the idea that two more or less similar sovereign claims are made at the same time is unsatisfactory, because it results in a clash between those claims. A better approach would be to acknowledge that a part of the sovereign functions and objectives of the State are brought to and transformed by the supranational level by instating a supranational body,

279 _{S.S. Lotus, 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) (formulating the background assumption in}

intemational law that a state is constrained only by rules to which it has consented). See Petersen 2008, p. 303.

280 _{Bernhardt 1985, p. 410. Jeffery 1999, p 30-31, is critical about this so-called ‘positivist’ view}

of State freedom of action. In his view, the better approach is the one that requires a party to establish a particular ground of jurisdiction and not just to show that it is not prohibited. For purposes of the present study the difference between these two approaches is not that relevant, because in both approaches sovereignty would be regarded as a principle in Alexy’s sense.

281 _{Jackson 2006, p. 58.} 282 _{Jeffery 1999, p. 26.}

283 _{Mann 1990, p. 4, quoted by Jeffery 1999, p. 27.} 284 _{Compare Isenbaert 2010, p 49-50 and p 54-55.} 285 _{Isenbaert, p 68-69.}

286 _{Isenbaert, p 70-71.} 287 _{Isenbaert, p 72.}

the existence of which is confined to the functions and objectives of the supranational level (an internal functional boundary, e.g. a certain policy area) and geographically restricted by the territory of the Member States (a geographical boundary). Isenbaert calls this function-sovereignty.288 _{Isenbaert stresses that function-sovereignty over a certain}

policy area does not entitle the body politic concerned to absolute or exclusive competence within that area, because the body politic must be cautious as not to render impossible the performance of the functions and the pursuit of the objectives of policy areas over which the other body politic is function-sovereign.289 _{The circumstance that the sovereignty}

of a certain body is limited not only by geographical boundaries but also by functional boundaries, raises the question to what extent such a body is competent to determine its own competence (Kompetenz-Kompetentz). In this regard, Isenbaert distinguishes legislative competence-competence and judicial competence-competence. Through the first competence, the body in question would be able to expand its competence, whereas this would occur less frequently with respect to the second competence.290 _{The issue}

of judicial competence-competence is however very much debated in the area of free movement and direct taxation (see chapter 2 of the present study).

The considerations above indicate that sovereignty has to be regarded as a principle rather than as a rule of international law: it is regarded as a prima facie general freedom of action by States which is not absolute but relative and the extent of which cannot be determined in isolation.291 _{Indeed, Alexy’s doctrine of collision – see section 4.2 –}

would identify sovereignty as a principle. A conflict between a State’s sovereignty and the sovereignty of another State or between the functions of a State and a supranational body is not solved by declaring one of these invalid or by placing one of them outside the legal order, but by giving precedence to one of them under particular circumstances; the sovereignty of one State cannot annul the sovereignty of another State of supranational body. This exercise takes place within the legal order, which is shown by the fact that the result may be different if the circumstances change. A good example is provided by the Separate Opinion of Judge Wellington Koo in the Right of Passage over Indian Territory Case before the International Court of Justice.292 _{This case concerned the accessibility}

of Portuguese enclaves on Indian Territory. The opinion of Wellington Koo contains interesting elaborations on the reconciliation of Portuguese and Indian sovereignty and the potential value of the principle of good faith in reconciling the co-existence of two legal rights.293 _{Wellington Koo notes that the right of passage has two concurrent features:}

on the one hand, it is necessary for the exercise of Portuguese sovereignty over the enclaves, and, on the other hand, its exercise is subject to control and regulation of India insofar as the passage takes place over the intervening Indian territory. This means that with the right on each side there also exists an obligation – that of India to accord passage and that of Portugal to respect the rules of procedure respecting the application for, and

288 _{Isenbaert 2010, p 72-73.} 289 _{Isenbaert, p 75-76.} 290 _{Isenbaert, p 77-78.}

291 _{Compare Isenbaert 2010, p 5-6 and p 56-57 with further refrences.}

292 _{ICJ 12 April 1960, Right of Passage over Indian Territory Case, ICJ Reports 1960, p 6.} 293 _{O’Connor 1991, p. 122.}

grant of, passage. In other words, the rights and obligations of both sides are concomitant and correlative. This does not mean, however, that they are not reconcilable with each other. According to Wellington Koo, neither Portuguese sovereignty over the enclaves nor Indian sovereignty over its territory can be regarded as an absolute, unrestricted right. An obligation rests on both States to strike a fair balance between the conflicting interests in accordance with the principle of good faith which States have to take into account when pursuing their own national interests. A similar approach is followed by the case law and literature discussed in section 4.6. Therefore, Noll has rightly argued that, under Alexy’s theory, sovereignty is to be framed as a principle and not as a rule in international law. The conflict between sovereignty and competing principles may be solved by weighing them against each other under Alexy’s theory of principles.294

Before an optimization model can be provided for that purpose in chapter 7, the prima facie position of direct tax sovereignty – a general freedom of action of States – should be elaborated a little further. According to Brownlie, the principal corollaries of the sovereignty and equality of States are: 1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; 2) a duty of non-intervention in the area of exclusive jurisdiction of other States; and 3) the dependence of obligations arising from customary law and treaties on the consent of the obligor.295 _{With regard to EU law,}

Isenbaert has indeed concluded that direct taxation as a policy area has remained part of the function-sovereignty of the Member States. This means that the Member States are able to pursue the core functions and essential objectives of that policy area, which is the essence of function-sovereignty.296 _{The three most important aspects of direct tax}

sovereignty include i) the freedom for a State to determine within its domestic jurisdiction the organization and objectives of the tax system; ii) the obligation for a State to respect the direct tax sovereignty of other States; and iii) the fact that a State’s tax jurisdiction is limited by customary international law and bilateral tax treaties. These three aspects are now discussed.