50
Christian Tomuschat
Deuxième séance de travail — Les retombées
resistance from many of the Member States (
3
), had the courage of stating that
the European Economic Community constituted a new legal order ‘the sub-
jects of which comprise not only Member States but also their nationals’ (
4
).
My first comment is this.
Van Gend en Loos
has dethroned the govern-
ments of the Member States as masters of the implementation process un-
der the integration treaties. According to general international law, treaties
are largely entrusted to the care of the contracting parties, which means: to
the governments of the States concerned. They may interpret the stipulations
agreed by them as they see fit, even through their common practice, and any
results from these informal processes will acquire binding legal force (
5
).
Under the Union regime, informal agreements among the Member States are
not capable of producing such outcomes (
6
). Similarly, decisions of the repre-
sentatives of the Member States, meeting within the Council, although play-
ing an important role in the implementation process, to the extent that certain
powers in respect of the Union remain in the hands of the Member States,
cannot amend the primary law of the treaties.
Within the framework of an international organization, the institutions
acting on behalf of the organization concerned may also shape, through their
practice, the legal bases which they are called upon to apply. This has become
visible especially at the United Nations where change occurs almost exclu-
sively through the practice of the General Assembly, the Security Council and
to some extent also the other bodies entrusted with discharging the tasks as-
signed to them. Largely, the United Nations has remained an instrument at
the service of the nations controlling it. The world organization has never suc-
ceeded in developing a true institutional autonomy. This may be applauded or
stigmatized as one of its major defects but is a fact deeply permeating the way
in which political matters are handled in New York (
7
). National sovereignty
has not vacated the strategic site between the East River and the Hudson River.
(
3
) Belgium, Germany and the Netherlands took a stance against direct invocability of Article
12 EEC Treaty by individual parties.
(
4
) [1963] ECR 1, at 12. Advocate General Roemer’s opinion of 12 December 1962, [1963] ECR
16, 24, had not foreshadowed the step taken by the Court.
(
5
) See Article 31(3) of the Vienna Convention on the Law of Treaties.
(
6
) CJEC Case 43/75
Defrenne (II)
[1976] ECR 445, at 478, paragraphs 57, 58.
(
7
) In order to elucidate the relevant issues, the International Law Commission has put the topic
‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’ on
its agenda, appointing its German member Georg Nolte as Special Rapporteur.
