international (human rights) law as - ku leuven
TRANSCRIPT
Working Paper No. 106 – June 2013
INTERNATIONAL (HUMAN RIGHTS) LAW AS
APPLIED BETWEEN THE ENTITIES OF
THE BELGIAN FEDERATION
Jan Wouters
Maarten Vidal
1
INTERNATIONAL (HUMAN RIGHTS) LAW AS APPLIED BETWEEN
THE ENTITIES OF THE BELGIAN FEDERATION
Jan Wouters
Maarten Vidal
ABSTRACT
Federal supreme courts have often had occasion to decide disputes between members of the
federation involved on the basis of doctrines of international law. This is not surprising as far
as aggregative federations of previously independent states are concerned, but even in the
atypical federalism of Belgium, we can ascertain a number of elements drawn from
international law. This contribution discusses the use of two classical concepts of general
international law in Belgian constitutional law (law of treaties and the law governing territorial
issues) and then turns to the application of international human rights law to disputes between
the entities of the Belgian federation, i.e. the federal State, the Communities and the Regions.
KEY WORDS
International law in domestic courts – Federalism – Belgian constitutional law
AUTHORS
Jan Wouters is the Jean Monnet Chair ad personam EU and Global Governance, Professor
of International Law and International Organizations and Director of the Leuven Centre for
Global Governance Studies and the Institute for International Law, University of Leuven.
Maarten Vidal is Legal Advisor of the Flemish Department for Foreign Affairs.
ADDRESS FOR CORRESPONDENCE
© 2013 by Jan Wouters and Maarten Vidal. All rights reserved. No portion of this paper may
be reproduced without permission of the authors.
Working papers are research materials circulated by their authors for purposes of information
and critical discussion. They have not necessarily undergone formal peer review.
2
CONTENTS
1. INTRODUCTION
3
2. CONCEPTUAL FRAMEWORK
3
3. APPLICATION TO THE BELGIAN CASE
5
3.1. A LAW OF TREATIES
5
3.2. LAW GOVERNING TERRITORIAL ISSUES
6
3.2.1. THE PRINCIPLE OF EXCLUSIVE TERRITORIAL COMPETENCES… AND
ITS MITIGATION
6
4. LAW OF THE SEA, AIR LAW AND THE LAW OF TRANS-BOUNDARY
WATERCOURSES
8
5. INTERNATIONAL HUMAN RIGHTS LAW
10
6. CONCLUSION 11
3
INTERNATIONAL (HUMAN RIGHTS) LAW AS APPLIED BETWEEN
THE ENTITIES OF THE BELGIAN FEDERATION
Jan Wouters
Maarten Videal
I. INTRODUCTION
More than sixty years ago, the American lawyer Willard B. COWLES held a series of
lectures at the famous Académie de droit international de La Haye on the subject of
“International Law As Applied Between Subdivisions Of Federations”. At the time he
wrote his contribution for the Recueil des cours1, Belgium was still a unitary state, but
a series of state reforms would transform it into a federal state sui generis. Since
1984 it also has a Constitutional Court2, and we shall investigate in this contribution
whether this Court has applied concepts or doctrines of international law in an
internal Belgian federal context, or whether, more generally speaking, certain
features of Belgian federalism are reminiscent of international law.3 After a short
conceptual prelude, we will first discuss the use of two classical concepts of general
international law in Belgian constitutional law (law of treaties and the law governing
territorial issues) and then turn to the application of international human rights law to
disputes between the entities of the Belgian federation, i.e. the federal State, the
Communities and the Regions.
II. CONCEPTUAL FRAMEWORK
Ian BROWNLIE pointed out that “where the union originated as a union of independent
States, the internal relations retain an international element”4, and he showed that
the supreme courts of such States have had occasion to decide disputes between
members of the federation involved on the basis of doctrines of international law.5
Others take a more nuanced position according to which international law cannot be
directly applicable in the relationship between subdivisions of a federation, but which
allows for the reception of international law into the federal legal order, especially in
areas not sufficiently settled by domestic law.6 The German Constitutional Court may
1 W.B. COWLES, “International law as applied between subdivisions of federations”, RCADI 1949-I, 655-
755. 2 For reasons of consistency, this contribution refers to the Constitutional Court by its current name (CC
in footnotes), even when “Court of Arbitration” would have been more correct (until 7 May 2007). It is important to keep in mind that the Court has a specific mandate to resolve disputes as to the constitutionality of legislative acts of the federal State, the Communities and the Regions, and is therefore not a general forum to resolve disputes between the entities of the Belgian federation. 3 The Belgian political system is often compared with a permanent diplomatic conference between the
country’s two major communities. In this contribution, the confederal characteristics of Belgium’s political system will not be discussed. 4 I. BROWNLIE, Principles of Public International Law, 6
th ed., Oxford, University Press, 2003, 58-59.
5 Ibidem, 23. See also C. DOMINICE, “Les collectivités territoriales non-étatiques et la formation du droit
international”, in SOCIETE FRANÇAISE POUR LE DROIT INTERNATIONAL (ed.), Les collectivités territoriales non-étatiques dans le système juridique international, Paris, Pédone, 2002, 56; I. SEIDL-HOHENVELDERN, Völkerrecht, 9
th ed., Cologne, Carl Heymanns Verlag, 1997, 59. Examples of this practice are the
following cases: Staatsgerichtshof (DE) 26 June 1925, Bremen / Preußen, RGZ 112, 21; Bundesgericht (CH) 30 October 1974, Kuster und Mitbeteiligte / Regierungsrat des Kantons Schwyz, BGE 100 Ia 423; Staatsgerichtshof (DE) 9 June 1928, Bremen / Preußen, Thüringen & Braunschweig, RGZ 121, 6; Bundesgericht (CH) 1 november 1900, Solothurn / Aargau, BGE 26 I 444; Bundesgericht (CH) 17 June 1992, B. / Staatsanwaltschaft und Kantonsgericht von Graubünden, BGE 118 Ib 137, §2; arbitral award 19 October 1981, Dubai / Sharjah, 91 ILR 585-590. 6 W. RUDOLF, “Federal states”, in R. BERNHARDT (ed.); Encyclopedia of Public International Law, v.2,
Amsterdam, North-Holland, 1995, 372-373. In the same sense M. BOTHE, “L’application des règles du
4
have stated that in an internal context there is “no room for the application of the law
of nations”7, but in practice German courts have not always rigorously upheld this
view, seeking inspiration in international law for the solution of disputes between the
Länder.8
Of course Belgium is not an aggregative federation, making BROWNLIE’s
aforementioned statement less relevant to the Belgian case. Furthermore, the
Constitutional Court has stated explicitly that “an international arrangement […]
cannot be invoked determinatively in order to define the competences that by virtue
of the Constitution have been allocated to the federal State or the Communities”.9
Nevertheless, whereas international law may have a very limited role as far as the
allocation of competences between the different entities of the Belgian federation is
concerned, the situation is quite different when the Court is called upon to determine
whether legislative acts of these entities are in conformity with the Belgian
constitutional rights and freedoms.
Indeed, international human rights law plays a surprisingly big role in disputes
between the entities of the Belgian federation, especially in comparison with the
limited recourse to interstate litigation in the field of human rights on the international
plane.10 Two factors explain this situation: on the one hand, Belgian constitutional
rights and freedoms are interpreted in light of corresponding international human
rights provisions11; on the other hand, these entities have ample locus standi12, and
droit international public aux relations entre les États Membres d’un État fédéral : le cas de la République Fédérale d’Allemagne”, in M. BOTHE & R.E. VINUESA (ed.), International Law and Municipal Law, Schriften zum Völkerrecht, Band 73, Berlin, Duncker & Humblot, 1982, 212: “selon la jurisprudence allemande, le droit international peut, en dépit de tout obstacle théorique, toujours servir de source d’inspiration pour la solution de litiges constitutionnels entre les Etats membres de l’Etat fédéral”. 7 Bundesverfassungsgericht (DE) 30 January 1973, Coburg II, BVerfGE 34, 234 (see, for more details:
A. BLECKMANN, “Völkerrecht im Bundesstaat? Gedanken zum zweiten Coburgurteil des Bundesverfassungsgerichts vom 30. Januar 1973”, SZIER 1973, 9-48). In the same sense: Bundesverfassungsgericht (DE) 27 November 1974, Coburg III, BVerfGE 38, 231; Bundesverfassungsgericht (DE) 22 June 1976, Bad Pyrmont, BVerfGE 42, 345; implicitly also in Bundesverfassungsgericht (DE) 23 October 1951, Südweststaat, BVerfGE 1, 14; Bundesverfassungsgericht (DE) 18 July 1967, Coburg I, BVerfGE 22, 221. 8 Bundesverwaltungsgericht (DE) 28 May 1980, Kündigung des NDR-Staatsvertrages, BVerwGE 60,
173, and Bundesverwaltungsgericht (DE) 5 November 1965, Gültigkeit des Staatsvertrages über die Errichtung des ZDF, BVerwGE 22, 299 (application of the law of treaties to agreements between the Länder); Bundesgerichtshof (DE) 11 December 1956, BGHZ 22, 317 (application of pre-existing regional customary international law in the relationship between the Länder of Hesse and North-Rhine-Westphalia). 9 CC 24 juni 2003, 92/2003, §B.4.2. In this case the Flemish government had invoked the (not ratified)
ITU’s Regional Agreement relating to the Use of the Band 87.5 - 108 MHz for FM Sound Broadcasting. (Region 1 and Part of Region 3) in a case against the French Community’s frequency plan. 10
ECtHR 18 January 1978, Ireland / United Kingdom; ECtHR 5 April 2000, Denmark / Turkey; ECtHR 10 May 2001, Cyprus / Turkey; ECmHR 24 January 1968, Denmark / Greece, Norway / Greece, Sweden / Greece, Netherlands / Greece. 11
CC 22 July 2004, 136/2004, B.5.3: “Toutefois, lorsqu’une disposition conventionnelle liant la Belgique a une portée analogue à une ou plusieurs des dispositions constitutionnelles précitées, les garanties consacrées par cette disposition conventionnelle constituent un ensemble indissociable avec les garanties inscrites dans les dispositions constitutionnelles en cause. Par ailleurs, la violation d’un droit fondamental constitue ipso facto une violation du principe d’égalité et de non-discrimination.“ The last sentence of this quote refers to the fact that already at an early stage the Constitutional Court had read the principles of equality and non-discrimination (art. 10 and 11 Constitution) in conjunction with international human rights treaties (CC 23 May 1990, 18/90, §B.11.3: “Parmi les droits et libertés garantis aux Belges par l'article [11] de la Constitution figurent bien les droits et libertés résultant de dispositions conventionnelles internationales liant la Belgique et rendues applicables dans l'ordre juridique interne par un acte d'assentiment.“), without requiring the treaty in question to be self-executing in the Belgian legal order (CC 22 July 2003, 106/2003, §B.2). See G. MAES, “De uitbreiding door het Arbitragehof van zijn referentienormen met alle verdragsrechtelijke grondrechtenbepalingen die België verbinden”, R.W. 2004-2005, 875-878; J. VELAERS, “De toetsing van wetten, decreten en ordonnanties aan titel II van de Grondwet en aan internationale mensenrechtenverdragen, bij
5
are not required to demonstrate a specific legal interest when they bring a case
before the Constitutional Court, even if the latter solely concerns the conformity of
another entity’s legislation with human rights.13
III. APPLICATION TO THE BELGIAN CASE
3.1 Law of treaties
The conclusion of (legally binding) agreements between the different entities within a
federation is a characteristic of modern, cooperative, federalism. In its preliminary
work for the codification of the international law of treaties, the International Law
Commission of the United Nations recognized that “agreements between two
member states of a federal State have a certain similarity to international treaties and
in some instances certain principles of treaty law have been applied to them in
internal law by analogy. However, those agreements operate within the legal regime
of the constitution of the federal State, and to bring them within the terms of the
present articles would be to overstep the line between international and domestic
law.”14 Furthermore the US Supreme Court expressed the view that “the [inter-state]
compact [...] adapts to our Union of sovereign States the age-old treaty making
power of independent sovereign nations” ,15 and the Swiss Supreme Court held that
inter-cantonal agreements, to the extent that Swiss federal (customary) law does not
provide otherwise, are governed by the principles of international law.16
Similar agreements are concluded between the entities of the Belgian federation.
Article 92bis of the Special Law of 8 August 1980 on institutional reforms provides for
legally binding cooperation agreements between the federal State, the Regions and
the Communities17 but Belgian constitutional law does not have an elaborated theory
on the law applicable to these agreements. Legal doctrine has noted the similarities
between international treaties and internal cooperation agreements (e.g. the fact that
both of them do not allow for a lot of “voice” by parliament18), but there is very little
case-law about them. Disputes concerning the interpretation or the implementation
of cooperation agreements are not referred to the Constitutional Court, but to specific
samenloop van grondrechten”, in A. ARTS et alii (eds.), De verhouding tussen het Arbitragehof, de rechterlijke macht en de Raad van State, Bruges, Die Keure, 2006, 99-123. 12
Other jurisdictions also accept that substate authorities invoke the ECHR before the domestic courts against other public institutions (Conseil d’Etat (FR) 29 January 2003, Commune de Champagne-sur-Seine, 248.894, RFDA 2003, 414; Conseil d’Etat (FR) 29 January 2003, Commune d’Annecy, 247.909, RFDA 2003, 961). In contrast, the European Court of Human Rights does not allow for complaints by substate authorities against the state of which they are a part, by virtue of article 34 ECHR (ECtHR 23 November 1999, Section de Commune d’Antilly, ECtHR Rep. 1999-VIII). 13
Art. 2, 1°, Special Law of 6 January 1989 on the Constitutional Court. 14
YILC 1966, v.II, 192. 15
Supreme Court (US) 25 April 1938, Hinterlider / La Plata River and Cherry Creek Ditch Co, 304 US 104. Yet O.J. LISSITZYN, “Territorial entities other than independent States in the law of treaties”, RCADI 1968-III, 29, points out that the relevance of international law for “compacts” between the States of the US remains controversial. 16
Bundesgericht (CH) 8 December 1970,Voggensperger und Mitbeteiligte / Regierungsrat des Kantons Basel-Landschaft, BGE 96 I 648; Bundesgericht (CH) 21 March 1986, Inländische Mission der Schweizer Katholiken / Kanton Nidwalden und Verwaltungsgericht des Kantons Nidwalden, BGE 112 Ia 75; Bundesverwaltungsgericht (DE) 28 May 1980, Kündigung des NDR-Staatsvertrages, BVerwGE 60, 173; Bundesverwaltungsgericht (DE) 5 November 1965, Gültigkeit des Staatsvertrages über die Errichtung des ZDF, BVerwGE 22, 299; VerfGH (AT) 15 October 1998, A13/96, ARIEL 1998, 445. 17
Over one hundred cooperation agreements have been concluded, most of which can be found in the agreements database of the Flemish Government (http://nadia-burger.vlaanderen.be/). See for a general discussion: J. POIRIER, “Les accords de coopération dans le processus de réformes institutionnelles: instrument d’exécution ou d’ingénierie constitutionnelle?”, in Les accords du Lambermont et du Lombard. Approfondissement du fédéralisme ou erreur d’aiguillage?, Brussels,
Bruylant, 2003, 63-119. 18
R. MOERENHOUT, “Verdrag en samenwerkingsakkoorden: afspraken zonder in- of tegenspraak?”, TBP 1999, 556-563.
6
“cooperation tribunals”.19 However, until now there has never been even a single
case which was brought before such a tribunal. We therefore lack jurisprudential
insight into the set of rules that would be applied for the settlement of these disputes.
The Constitutional Court has dealt only very rarely with cooperation agreements
concluded between the entities of the Belgian federation.20 It only plays a role when
the constitutionality of the legislative acts approving such agreements is put into
question. Its most notorious statement concerning cooperation agreements was its
position that “although each form of cooperation inevitably implies a limitation of the
concerned authorities’ autonomy, the conclusion of a cooperation agreement within
the meaning of article 92bis cannot cause an exchange, an abandonment or a return
of competences. This would constitute a violation of the constitutional rules
determining the respective competencies of the federal State, the Communities and
the Regions.”21 Because of this position, it has been noticed that the entities of the
Belgian federation can do less in an internal context than in their cooperation with
foreign governments, where Article 34 of the Constitution allows for the transfer of
regulatory powers to international institutions.22 In this case, international relations
could provide a source of inspiration for enhancing cooperation within Belgium.
3.2 Law governing territorial issues
3.2.1 The principle of exclusive territorial competences… and its mitigation
Unlike the courts of other federations,23 the Belgian Constitutional Court has never
had to delimitate the territory of the different federated entities. There may be
political parties who put the existing boundaries into question,24 but this is a political
and not a legal issue25 since the territorial boundaries of the Regions and linguistic
areas are defined by the boundaries of the provinces, fixed by law in 1962.26
19
Art. 92bis, §5, special law of 8 August 1980 on institutional reforms and the federal act of 23 January 1989 concerning the jurisdiction referred to in the articles 92bis, §5 and 6, and 94, §3, of the special law of 8 August 1980 on institutional reforms. This system is only mandatory for the so-called “mandatory” cooperation agreements, i.e. the agreements expressly provided for in the special law itself. These tribunals are reminiscent of international arbitration, since they are constituted ad hoc for every
cooperation agreement and their members are appointed by the parties to the agreement. 20
In a number of cases the Constitutional Court came to the conclusion that a cooperation agreement was lacking and that the adoption of legislation in its absence constituted a violation of the proportionality principle (CC 14 July 2004, 13/2004; CC 13 July 2005, 128/2005; CC 8 November 2006, 163/2006). 21
CC 3 March 1994, 17/94, §B.5.3: “Bien que toute forme de coopération implique inévitablement une limitation de l'autonomie des autorités concernées, la conclusion d'un accord de coopération prévu par l'article 92bis ne peut entraîner un échange, un abandon ou une restitution de compétence; il s'agirait là d'une violation des règles établies par la Constitution ou en vertu de celle-ci pour déterminer les compétences respectives de l'Etat fédéral, des Communautés et des Régions.” See also CC 13 July 2001, 101/2001, §B.3.4-3.5. 22
D. VAN EECKHOUTTE, “Paradoxaal federalisme. Samenwerking tussen Belgische overheden onderling is juridisch moeilijker dan met vreemde staten”, Juristenkrant 2007, nr. 160, 12-13. 23
Supreme Court (US) 29 February 1892, Nebraska / Iowa, 143 US 359; Supreme Court (US) 19 December 1904, Missouri / Nebraska, 196 US 23; Supreme Court (US) 5 March 1906, Louisiana / Mississippi, 202 US 53; Supreme Court (US) 4 March 1918, Arkansas / Tennessee, 246 US 158; Supreme Court. (US) 15 January 1923, Oklahoma / Texas, 260 US 606; Supreme Court (US) 20 May 1935, Wisconsin / Michigan, 295 US 455; Supreme Court (US) 26 mei 1998, New Jersey / New York, 523 US 767. 24
More In particular the French-speaking party FDF has the aim to enlarge the territory of the Brussels Capital Region by including a number of Flemish municipalities with special linguistic rights for French speakers. 25
The well-known dispute concerning the electoral district of Brussels-Halle-Vilvoorde, in which the Constitutional Court played a crucial role, is not a dispute about the delimitation of regional boundaries, but about the degree of permeability of the regional boundaries and the particular situation of the historical province of Brabant (CC 26 May 2003, 73/2003). 26
Law of 8 November 1962 modifying the boundaries of the provinces, arrondissements and municipalities.
7
Belgian constitutional law upholds a strict reading of the principle of territoriality. For
each situation, only one regional authority can be exclusively competent. The
Constitutional Court confirmed in a dispute between the Flemish and the French
Community that the exclusive territorial distribution of competences is also applicable
to the (linguistic) Communities.27 It held that Belgian constitutional law does not
recognize a system of “kin community protection”28, and Article 27 ICCPR cannot be
relied upon in order to extend the legislative territorial competence of a Community
to local authorities with special minority rights located within the territory of another
Community.29
The Constitutional Court has never compared the principle of territoriality with
territorial sovereignty as we know it in international law. Yet, in mitigating the effects
of territoriality within a federal context, the Court has relied on concepts drawn from
European Union law, more in particular the European freedoms of movement, but
has adapted them to the Belgian situation.
In a first case brought by the Brussels Capital Region against Flemish legislation
instituting a different tariff for waste being transported to other regions, the
Constitutional Court interpreted the principle of the so-called Belgian Economic and
Monetary Union in light of the homonymic principle of EU law. By referring mutatis
mutandis to the interpretation given to the concept of customs duties by the
European Court of Justice,30 it came to the conclusion that the legislation de facto
introduced a type of internal customs duties which is not allowed as between
Belgium’s Regions.31 In this case a concept of EU law was transposed almost
unchanged to the Belgian internal context.
A more recent case has attracted quite some attention in EU legal writings. In 1999,
the Flemish Community established its own system of social protection, the so-called
care insurance. French-speaking parties considered this to be a threat for the federal
social security system. In the first phase, the Constitutional Court decided that this
system was within the competences of the Communities, and that it did not impede
on the federal competences in the field of social security.32 Yet, the European
Commission considered the insurance to be a type of social security within the
meaning of the applicable EU Regulation.33 Therefore, the Flemish Community made
a number of changes to its legislative framework. The French Community and the
Walloon Region instigated new proceedings at the Constitutional Court and
questioned the compatibility of the changes with EU law. The dispute was more in
particular concerned with the discrepancy between the residence criterion in an
internal Belgian context and the workplace criterion used in the EU Regulation at
27
CC 3 October 1996, 54/96, §B.7.1; CC 17 May 2000, 56/2000, §B.3. 28
A term coined after the controversial term of “kin state” in international law: see W. KEMP, “The Responsibility to protect Minorities: is the Kin-state a Problem or a Solution?”, in W. KEMP, V. POPOVSKI
and R. THAKUR (eds.), Blood and borders : the responsibility to protect and the problem of the kin-state, Tokyo, UNU Press, 2011, 1-5. 29
CC 3 October 1996, 54/96, §B.9. 30
The Constitutional Court referred to ECJ 1 July 1968, 24/68, Commission / Italy, ECR 1969, 193; ECJ 1 July 1969, 2/69 and 3/69, Sociaal Fonds voor de Diamantarbeiders, ECR 1969, 211; ECJ 7 July 1994, C-190/93, Lamaire n.v. & Nationale Dienst voor Afzet van Land- en Tuinbouwprodukten, ECR 1994, I-
3215. 31
CC 12 June 1997, 34/97, §B.7.5. 32
CC 13 March 2001, 33/2001. 33
At that time Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971, L149/2), and currently Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004, L166/1).
8
hand. The Constitutional Court referred a number of questions for a preliminary
ruling by the European Court of Justice (ECJ).34
In its judgment, the ECJ made a clear distinction between people who have made
use of their right to freedom of movement and those who have not. It stated that the
residence criterion was incompatible as far as the first category of people was
concerned,35 but it also observed that interpretation of provisions of EU law might
possibly be of use to the Constitutional Court having regard to situations considered
as purely internal, in particular if the Belgian law concerned were to require every
Belgian national to be allowed to enjoy the same rights as those which a national of
another Member State would derive from EU law.36 However, the Constitutional
Court did not follow the ECJ’s suggestion. It pointed out that the discrimination, as
far as the enjoyment of benefits as provided for in the Flemish legislation is
concerned, between “ordinary” Belgians and people (both foreigners and Belgians)
who had made use of their right to freedom of movement did not stem from the
Flemish legislative act but from the absence of similar legislation by the territorially
competent French and German-speaking communities.37 Even though this position
has met the criticism of leading to a situation of “reverse discrimination” ,38 it is in line
with the view that “the constitutional rules concerning the territorial competencies the
Communities have to be interpreted in light of relevant higher [international] norms,
but cannot be subjected to a reading which, by applying the aforementioned higher
norms, would result in a situation where the exercise of the competencies that have
been entrusted to the Communities would de facto be rendered impossible.”39
IV. LAW OF THE SEA, AIR LAW AND THE LAW OF TRANS-BOUNDARY WATERCOURSES
In other federal states a number of maritime delimitation disputes between federated
entities have been solved as if they were governed by international law,40 and in a
particular case even by a quasi-international arbitral tribunal.41 Yet, no such disputes
have occurred in Belgium. This is not only due to the fact that only the Flemish
Region borders to the sea, eliminating any possible maritime delimitation dispute
with the other two Regions, but also because of the position taken by the Belgian
Council of State42 and – at least implicitly – confirmed by the Constitutional Court,43
34
CC 19 April 2006, 51/2006. 35
ECJ 1 April 2008, C‑212/06, Government of the French Community and Walloon Government, ECR
2008, I‑1683, paras 43-45. 36
Ibidem, para. 40. 37
CC 21 January 2009, 11/2009, §B.16. 38
M. AM ENDE, “But not the Walloons! Internal quarrel – or a case for the Court?”, E.L.Rep. 2008, 114-117; E. VAN BRUSTEM, “L’affaire de la «zorgverzekering»: comment concilier la libre circulation des travailleurs et l’organisation fédérale des Etats?”, Soc.Kron. 2009, 193-200; T. VANDAMME, “De Europese dimensie van constitutionele toetsing in België: Relevant voor Nederland?”, SEW 2008, 464-470; A.P. VAN DER MEI, “EU-burgerschap en de reikwijdte van het verbod van discriminatie op grond van nationaliteit”, NTER 2008, 275-287; I. VAN DER STEEN, “Zuiver interne situaties: geen omwenteling, wel inperking”, NTER 2008, 301-307; P. VAN ELSUWEGE and S. ADAM, “Situations purement internes, discriminations à rebours et collectivités autonomes après l’arrêt sur l’assurance soins flamande”, CDE 2008, 655-711. 39
F. JUDO, “De Vlaamse Zorgverzekering voor het Arbitragehof: nooit vier zonder vijf”, Soc.Kron. 2007,
192. 40
Supreme Court. (US) 14 June 1976, Texas / Louisiana, 426 US 470; High Court (AU) 22 October 1982, Hazlett / Presnell, 43 ALR 14. Other examples, and more in particular a judgment of the Argentinian Supreme Court of 18 May 1882, can be found in R.E. VINUESA, “The Application of Public International Law Rules to the Relations of Member States of a Federal State: The Argentine Case”, in M. BOTHE and R.E. VINUESA (eds.), International Law and Municipal Law, Berlin, Duncker & Humblot, 1982, 195-206. 41
Arbitral award of 17 May 2001, Newfoundland and Labrador / Nova Scotia, 128 ILR 153. 42
Council of State 27 April 1976, 17.569, vzw Koninklijk Belgisch Yachting Verbond, Arr.RvS 1976, 431. 43
CC 5 December 2006, 193/2006, §B.24.2.
9
that the territorial sea, by virtue of its specific status under international law, does not
belong to the territory of the province of West-Flanders and hence not to the
Flemish Region, whose territory is defined on the basis of the pre-existing provinces.
This does not prevent the attribution to the Flemish Region of specific competences
with regard to the territorial sea.44 Furthermore, in line with international law, which
postulates the sovereignty of a state over the airspace above its territory,45 the
Constitutional Court did not accept the position, defended by the Brussels Capital
Region in another case, that the Flemish Region is not territorially competent to
legislate concerning the air space above Flemish soil.46However, in all these cases,
judges have never referred to the applicability of international law concepts in an
internal Belgian context, and they have even relied on the specific international legal
status of the territorial sea to exclude it from the territory of the coastal Flemish
Region.
Another area in which foreign supreme courts have applied international law to
disputes between federated entities, is the law of trans-boundary watercourses. In a
dispute between the states of New Jersey and Delaware, the US Supreme Court
stated for example that, “when independence was achieved, the precepts to be
obeyed in the division of the waters were those of international law” ,47 and it based
its further reasoning on the precepts of the law of nations. For different reasons,
international law plays quite an important role in Belgian law governing the two major
watercourses of the country, i.e. the rivers Scheldt and Meuse. The basins of both
rivers transcend the territory of a single Belgian Region and even include areas in
neighbouring States such as the Netherlands and France. That is why the Regions,
making use of their ius tractatuum,48 have concluded multilateral agreements also
involving those foreign states: the treaties of Charleville-Mézières,49 which were
subsequently replaced by the treaties of Ghent.50 This has led Joe VERHOEVEN to the
conclusion that the “fluvial” relations between the three Regions are governed
directly by international law,51 whereas Herbert TOMBEUR on the other hand upholds
the view that these treaties derive their binding force from the reciprocal relationship
between the Regions by virtue of Article 92bis of the Special Law on Institutional
Reforms, as interregional cooperation agreements, and in the relationship with the
other States by virtue of international law.52 Both views have their merits. However,
44
The Constitutional Court stated that the attribution of competences in the field of piloting to that Region by the special law on institutional reforms would be meaningless if these competences could not be exercised in the territorial sea: CC 16 January 1997, 2/97, §B.17.1. M. BOSSUYT and J. WOUTERS, Grondlijnen van internationaal recht, Antwerp, Intersentia, 2005, 347-348. 45
Article 1 of the Convention on International Civil Aviation (Chicago, 7 December 1944); M. BOSSUYT
and J. WOUTERS, Grondlijnen van internationaal recht, Antwerp, Intersentia, 2005, 303. 46
CC 2 March 2011, 33/2011, §B.4.4. 47
Supreme Court (US), 5 February 1934, New Jersey / Delaware, 291 US 378. 48
According to the principle “in foro interno, in foro externo”, the Regions and Communities are competent to conclude international treaties concerning those matters for which they are internally competent (article 167, §3, Constitution). See A. ALEN and P. PEETERS, “Federal Belgium within the international legal order: theory and practice”, in K. WELLENS (ed.), International law: theory and practice. Essays in honour of Eric Suy, The Hague, Kluwer Law International, 1998, 123-124; J. WOUTERS and L. DE SMET, “The legal position of federal states and their federated entities in international relations. The case of Belgium”, in T. VANDAMME and J.-H. REESTMAN (eds.), Ambiguity in the rule of law. The interface between national and international legal systems, Groningen, Europa Law Publishing, 2001, 128-130. 49
Agreements concerning the protection of the Scheldt and the Meuse, concluded in Charleville-Mézières on 26 April 1994. 50
Scheldt Treaty and Meuse Treaty, concluded in Ghent on 3 December 2002. 51
J. VERHOEVEN, “De La Haye à Gand en passant par Charleville-Mézières: histoires d’Escaut et de Meuse”, in En hommage à Francis Delpérée: itinéraires d'un constitutionnaliste, Brussels, Bruylant, 2007, 1676: “il est difficile de contester que c’est bien le droit international qui régit les rapports ‘fluviaux’ des diverses autorités belges”. 52
H. TOMBEUR, “De volkenrechtelijke aspecten van de exclusieve verdragen inzake de bescherming van Maas en Schelde”, TBP 1996, 211
10
we do not agree with the position, taken by Youri MOSSOUX, that these agreements do not have any binding force between the Belgian Regions,53 since this is manifestly
contradicted by the concrete functioning of the River Commissions.
V. INTERNATIONAL HUMAN RIGHTS LAW
Due to the aforementioned interpretation of the constitutional rights and freedoms in
light of similar international standards, the Constitutional Court often applies
international human rights instruments, both in disputes brought before it by private
individuals and in disputes between Belgium’s federated entities. It is quite striking
that the use of human rights based arguments in this last type of litigation is almost
exclusively limited to the so-called “communitarian disputes”, i.e. the highly
mediatized language related cases opposing the country’s two main linguistic
communities.54 Although, as indicated earlier in this contribution, Belgian
constitutional law does not have a system of “kin community protection”, in practice
the French-speaking authorities in such cases often rely on human rights standards
in order to contest measures which have an impact on the situation of French-
speakers living in the Dutch language area.
A first case to be mentioned in this respect concerns the controversy over the legality
of the willingness to learn Dutch, required by the Flemish housing code from people
renting social housing, with the termination of the rental agreement as a possible
sanction. Private complainants and French-speaking authorities argued that this
amounted to a violation of Article 23 of the Constitution, on socio-economic rights,
read in conjunction with international human rights standards.55 The Constitutional
Court decided thatthe measure pursued a legitimate aim i.e. improving social
cohesion amongst the tenants of a social housing complex.56 This is in contrast with
the views held by international human rights bodies in relation tothe same legislation
in their review of Belgian reports. The Committee on the Elimination of Racial
Discrimination (CERD), while noting that the State party has a federal structure,
recalled that Belgium is a single State under international law and that it has the
obligation to ensure the implementation of the provisions of the Convention on the
elimination of racial discrimination throughout its territory. It recommended that
Belgium “ensure that linguistic requirements do not lead to indirect discrimination
affecting both citizens and non-citizens who do not speak Dutch, on grounds of their
national or ethnic origin, thus impairing their enjoyment of economic, social and
cultural rights, in particular their housing rights.”57 Similar concerns were expressed
in other reports by the Human Rights Committee,58 the European Committee against
Racism and Intolerance59 and the Commissioner for Human Rights of the Council of
Europe.60
In a second case, the French Community attacked the priority given to children from
Dutch-speaking families for registration at Flemish schools in the bilingual area of
Brussels-Capital on the basis of the principle of non-discrimination, read in
53
Y. MOSSOUX, “La gestion de l’eau: analyse de la coopération interrégionale belge au regard de la coopération internationale dans les bassins de l’Escaut et de la Meuse”, Rev.dr.ULB 2009, 347. 54
Apart from the cases discussed below, reference can also be made to the aforementioned case concerning the care insurance, which was also highly mediatized, and where the European freedoms of movement were invoked in an internal context. 55
Article 11 ICESCR; article 31 European Social Charter; article 34.3 Charter of Fundamental Rights. 56
CC 10 July 2008, 101/2008, §B.35. 57
CERD/C/BEL/CO/15, §16 (11 April 2008). See E. BREMS, “Vlaamse taaleisen getoetst aan internationale mensenrechtenverdragen”, in A. ALEN and S. SOTTIAUX (eds.), Taaleisen juridisch getoetst, Mechelen, Kluwer, 2009, 8. 58
CCPR/C/BEL/CO/5, §10 (16 November 2010). 59
CRI(2009)18, §82 (26 May 2009). 60
CommDH(2009)14, §129 (17 June 2009).
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conjunction with international human rights standards.61 The Constitutional Court did
not follow this reasoning and held that the measure was justified in order to
guarantee to Dutch-speakers a school of their choice in their own neighbourhood.62
A third case concerns the requirement of a “sufficient connection” between the
prospective buyers of immovable property and certain municipalities where it is
located, as provided for in Flemish legislation on land and real estate policy. This
legislation was attacked by the French-speaking authorities and a number of private
individuals. Since both arguments of EU law and international human rights law were
invoked, the Constitutional Court made a request for a preliminary ruling to the
ECJ,63 which pointed out a number of incompatibilities with primary and secondary
EU law, first and foremost the freedom of movement.64 At the moment, it remains
unclear how the Court will implement the judgment as far as purely internal situations
are concerned. In any event, the reasoning used in the case of the Flemish care
insurance cannot be applied in the present case, since the discrimination between
people who have made use of their right to freedom of movement and those who
have not, does in this case stem from the Flemish legislation itself and not from the
lack of legislation in other federated entities. It is very plausible that the Court will
have to annul the relevant articles in their entirety in order to avoid a situation of
reverse discrimination.
VI. CONCLUSION
It does not come as a surprise that international law plays a role in constitutional
disputes in a state like Belgium, whose legal order shows a great deal of openness
towards international law. However, since prior to the federalization of Belgium, its
federated entities had never been independent, BROWNLIE’s argument that their
mutual relations retain an international element cannot be upheld. Nevertheless,
compared to foreign constitutional courts, Belgium’s Constitutional Court takes
international law into account quite easily, especially through its willingness to refer
several issues to the European Court of Justice for a preliminary ruling and by its
interpretation of the Belgian constitutional rights and freedoms in light of equivalent
international standards. Yet, the transposition of international or EU legal concepts to
purely internal disputes between the entities of the Belgian federation has remained
selective and does not occur automatically. This has met criticism as a form of
reverse discrimination against Belgian nationals. The Constitutional Court has the
difficult task of reconciling the existing constitutional equilibria with critical views from
an international perspective. Thanks to its particular position and mandate, it can
also contribute to the convergence between domestic public law scholarship and
international public law scholarship and hence to develop a “unified concept of law”
bridging the domestic-international divide.65
61
Articles 8, 9, 10 and 14 ECHR; articles 17, 18, 19 and 26 ICCPR; articles 10 and 13 ICESCR; articles 5, 14, 16, 18 and 28 CRC. 62
CC 18 January 2012, 7/2012, §B.14.4. 63
CC 6 April 2011, 49/2011 and 50/2011. 64
ECJ 8 May 2013, C-197/11 & C-203/11, Libert. 65
C.A. WHYTOCK, “Thinking beyond the domestic-international divide: toward a unified concept of public law”, Georgetown JIL 2004, 155-193.
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