Herter, Christian A.

English

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[Vol.111THE RULE OF LAW IN THEATLANTIC COMMUNITYCHRISTIAN A. HERTFR tThe eventual salvation of mankind will depend upon the orderlydevelopment throughout the world of common precepts implementedby some formal common institutions and upon a general acceptanceof the Rule of Law in its simplest terms. The alternative is chaos asa result of the extraordinarily rapid development of communicationsand the vast political and scientific changes which have taken place inthe last century.I was somewhat impressed, with reference to this latter point, bya statistic which I came across recently: three percent of all thepeople who have ever lived on this planet are alive today; ninety percentof all the scientists who have ever lived are also alive today. Thesefigures illustrate the rapid pace of population growth and developmentof a new scientific era. The velocity of change may be faster thanexisting political communities are able to cope with. The effectiveorganization of society, therefore, has become increasingly urgent.The post-war efforts to create regional communities may point upprinciples which can be applied on a larger scale to the internationalorganization of society. For present purposes, I will mention only tworegional communities and will dwell on only one. These are theOrganization of American States (OAS) and the European EconomicCommunity (EEC).I. THE ORGANIZATION OF AMERICAN STATESThe Organization of American States was created shortly afterWorld War II. Its charter' is a very voluminous document, whichhas been several times amended and enlarged. However, the Organi-zation has not lived up to expectations; institutionally it lacks methodsof enforcement, and in practice its members have often been unableto reach agreement.The Charter of the OAS in many ways reflects the feelings ofLatin Americans on three vital matters. The first of these is pro-t United States Ambassador and Envoy Plenipotentiary, Special Representativefor Trade Negotiations.' Charter of the Organization of American States, April 30, 1948, [1951] 2 U.S.T.& O.I.A. 2394, T.IA.S. No. 2361.(884)THE ATLANTIC COMMUNITYtection. The Charter is a mutually binding treaty between the sig-natories whereby they have pledged to come to each other's assistancein the event of a military attack by a nonsignatory. Secondly, theCharter takes account of Latin American concern with outside inter-ference in their internal affairs. This concern is partially a result ofthe history of revolution in South America. It is also based on thehistory of United States intervention, particularly the use of Marinesin times of crisis. The member states of the OAS feel very stronglythat outside powers should never interfere with revolutions per se.Thirdly, the Charter deals with human rights. The signatories havebeen very vocal on this subject. However, despite their eloquence,they have not always fulfilled their high hopes with regard to humanrights.The future course of the regional arrangement outlined in theCharter of the OAS is uncertain. The recent events concerning Cubamay well affect the thinking of Latin American countries on thesubject of ideological interference by a member state or an outsidepower. In Caracas, a number of the member states condemned Sovietinfiltration of South America. I am optimistic, therefore, that theOAS will grow in effectiveness.II. THE EUROPEAN ECONOMIC COMMUNITYThe European Economic Community, in my opinion, offers thegreatest hope for the creation of an orderly world, a world in whichthere is common law with common institutions to enforce that law.In discussing developments in Europe, one must go back a littlein history. Before doing so, however, I would like to say a wordabout the current situation. There has been a great deal of speculationconcerning the events of recent months, particularly General DeGaulle's publicly expressed attitude and the recent cessation of theBrussels' negotiations for British entry into the Market. Personally,I believe that the movement begun in 1948 has sufficient impetus tocarry on regardless of individuals. Because the EEC offers thegreatest hope of building the type of world we all want to see, set-backs, while inevitable, should not be permitted to become irrevocable.A. The Coal and Steel CommunityThe history of the EEC begins prior to World War II, withserious French efforts to bring together the nations of Europe, par-ticularly France and Germany. These early attempts were, of course,nullified by the intervention of Hitler and World War II. But afterthe war it was readily apparent that if Europe was to avoid a series ofinternal and self-destructive wars, a new social and political arrange-1963]886 UNIVERSITY OF PENNSYLVANIA LAW REVIEWment was mandatory. The feeling was that although the change wouldhave to be far reaching, its origins would of necessity have to behumble.The first concrete step was not taken until 1950. In that year,Belgium, Luxembourg, Holland, France, Germany, and Italy formedthe European Coal and Steel Community.2 Messrs. Schuman, Monnet,and Adenauer decided that if these countries could bring order into afunctional and overlapping segment of their economies, they might wellspark the growth of a much closer and larger economic partnership.It is interesting to note that this development took place only shortlyafter the birth of NATO, a military alliance of a type the world hadnever seen before. In addition to its military provisions, the NATOTreaty sought to encourage closer political and economic ties betweenits signatories.The Coal and Steel Community dealt with matters which had beenthe subject of intense rivalry between Germany and France-coal andsteel and the production of weapons which resulted therefrom. TheCommunity was in effect a government of six nations dealing withonly a segment of the problems of those nations. It was governed bya High Authority-an executive body of technical experts-, a councilof ministers, a parliamentary body, and a court. The council ofministers could veto or approve decisions of the High Authority, butcould not vacate judicial orders implementing the treaty creating thecommunity. The parliamentary body had power only to recommendand discuss projects.B. Creation of the Common MarketThe Coal and Steel Community was so successful that the sixmembers determined that the time had come to expand in the economicsphere. Their goal was to create a structure which would promoteincreased trade between them and which could eventually be trans-formed into a political entity of the first order.It might be appropriate at this point to quote a statement byWinston Churchill made at the Hague in 1948, a time when theCoal and Steel Community was being conceived and the possibilityof a United States of Europe explored. But it was also a time whengovernments were afraid to talk about these things themselves. In-stead, they looked to private citizens and elder statesmen, by discussionin private conclaves and meetings, to clear the way for governmentaction. In any such effort to pull sovereign nations together, the2 Treaty Instituting the European Coal and Steel Conmunity, April 18, 1951,261 U.N.T.S. 140.[Voi.111:884THE ATLANTIC COMMUNITYquestion of sovereignty is a great bugaboo. As I interpret it, sov-ereignty is a democratic form of government in which power is yieldedby the people in order to bring about a civilized order. Each law thatis passed constitutes a decision by representatives to whom the peoplehave delegated authority to make rules and regulations by which theycan live together. The same is true in the international sphere ofeach treaty that is made. Nations, however, never relinquish sov-ereignty unless they feel that it will be for the greater good. Mr.Churchill's statement is particularly appropriate on this subject. Whilemany people made reference to sovereignty at that time, he was oneof the few who did so frankly.It is impossible to separate economics and defence from thegeneral political structure. Mutual aid in the economic fieldand joint military defence must inevitably be accompaniedstep by step with a parallel policy of closer political unity.It is said with truth that this involves some sacrifice ormerger of national sovereignty. But it is also possible andnot less agreeable to regard it as the gradual assumption byall the nations concerned of the larger sovereignty which canalone protect their diverse and distinctive customs and char-acteristics and their national traditions all of which undertotalitarian systems, whether Nazi, Fascist, or Com-munist, would certainly be blotted out forever.3The document which resulted from the negotiations of 1957 wasan extraordinary one, known as the Treaty of Rome.' It has 247articles, four large annexes, and more than nine protocols attached toit. Although the Treaty contains many of the elements of a constitu-tion, it recognizes the need for organic development by specificallyproviding that certain matters which could not be resolved initiallywill be the subject of later discussion by the signatories.C. The Governmental Structure of the EEC1. The Council, Foreign Ministers, and LegislatureThe governing bodies created by the Treaty are in many respectssimilar to those of the Coal and Steel Community. The ExecutiveCouncil, sitting in Brussels, is made up of experts who are not sup-posed to represent any nation but rather the Community as a whole.While it cannot initiate action, the Council may make recommenda-3 Address by Winston S. Churchill, Congress of Europe, May 7, 1948, in EuROPEU irE 310, 312-13 (tR Churchill ed. 1950).4 Treaty of Rome for the Establishment of the European Economic Community,March 25, 1957, 298 U.N.T.S. 14.1963]888 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.111:884tions to the Foreign Ministers of the six member nations. It shouldalso be pointed out that the Executive Council, in addition to propos-ing steps to be taken, has created special committees to study certainproblems and recommend a course of action. The staff members ofthese committees are now referred to in Europe as Eurocrats.The Ministers, in turn, may reject or approve recommendationsof the Council but may not initiate proposals of their own. Thus, thesix Foreign Ministers in effect have the power of veto. As originallyconceived, the EEC was to mature in three stages. It is presently inthe second. The third stage is scheduled for 1966. At that time, theForeign Ministers by a two-thirds vote will be able to hind all sixnations. Under this system, Germany, France, and Italy will havefour votes, Holland and Belgium two, and Luxembourg, one. Theparliamentary body of the EEC is very similar to that of the Coal andSteel Community. However, it has the additional power to impeachthe professional technicians who make up the Executive Council. Butto do so, it must impeach them as a body.2. The CourtThe Court of the EEC demonstrates, perhaps better than anyother institution, the scope of the regional community structure createdby the Treaty of Rome. The Court has a great deal of power: themember states have agreed to enforce money judgments of the Courtagainst national enterprises and citizens; in addition, they have boundthemselves to accept the findings of the Court in controversies betweenthemselves.Not being a lawyer myself, I would like to refer to ProfessorEric Stein's brief summary of the Court's jurisdiction:The Court's jurisdiction is varied and in some respectsunique, defying categorization. For the purposes of illustra-tion and at the admitted risk of drawing loose analogies, onemight say that the Court's jurisdiction is analogous to thefederal jurisdiction of the United States Supreme Court, tothe "administrative" jurisdiction of the French Counseild'Etat or the German Bundesverwaltungsgericht, and is atthe same time a "civil" jurisdiction, and in a sense the juris-diction of an international tribunal.The Court's jurisdiction is similar to that of a federalcourt in regard to controversies between Member States con-cerning the application of the Treaty-controversies similarto those between States of the Union which the U.S. SupremeCourt is asked to resolve under the Federal Constitution orstatutes. The Court's jurisdiction may also be viewed asTHE ATLANTIC COMMUNITY"federal" in disputes between Member States and Communityinstitutions, between the institutions themselves, and in caseswhere the Court decides whether proposed internationalagreements to be concluded by the Community are compatiblewith the Treaty. Finally, one might mention in this categorythe jurisdiction of the Court to rule on questions arising innational judicial proceedings which concern interpretation ofthe Treaty and the validity and interpretation of the acts ofthe institutions. National courts of last resort are boundto refer these "federal" questions to the Court for bindingdetermination. This obligation on the part of the nationalcourts has been substantially strengthened in the RomeTreaty as compared with the Coal-Steel Treaty.The Court's jurisdiction is "administrative" ("publicmunicipal") where it affords legal redress to individuals andenterprises praying that administrative acts of the Communityinstitutions be annulled. The right of access of privateparties to the Court-their governments need not intervene-is a necessary corollary to the power of the institutions toact with direct effect upon these parties. This right marksa radical departure from the conventional international tri-bunal, enables the Court to exercise its powers of controlover the institutions and adds to the "public municipal"characteristics of the Communities.The "civil" jurisdiction (in the common law sense) ofthe Court extends to cases in tort against the Community andon contracts to which the Community is a party. In contractcases the jurisdiction of the Court must have been stipulated.Finally, the jurisdiction of the Court may be said toresemble that of an international tribunal where the Courtdetermines controversies between the Community and a non-member state arising out of an international agreement orpossibly out of a contract in which the parties stipulatedsuch jurisdiction.National authorities in the Member States are boundto execute money judgments of the Court against individualsand enterprises.5The Court has from its inception been very busy, but there havebeen few complaints about its decisions. It is encouraging that themember states have shown such confidence in the Court, for a judicialbody is a basic institution in the creation and maintenance of legalorder in any level of community.5 Stein, The New Iihi dions, in 1 AmERICAN ENTERISE IN= EuROPEANCoMMoN MARKxr-A LEGAL PROm 33, 70-71 (Stein & Nicholson ed. 1960).1963]890 UNIVERSITY OF PENNSYLVANIA LAW REVIEWD. Other Organizations in the European CommunityAt the time of the Marshall Plan, there was created in European organization known as the Organization for European EconomicCooperation (OEEC). One of the primary purposes of this bodywas to break down continental trade barriers in order to foster thepost-war economic recovery of Europe. However, it did much morethan that. The OEEC was instrumental in allocating American aidamong the nations of Europe, thus relieving the United States of avery difficult task. The OEEC was composed of very able experts towhom, in my opinion, must go much of the credit for the success ofthe Marshall Plan.At least two other European regional organizations deserve men-tion at this point: the General Agreement on Tariffs and Trade(GATT) and the Organization of Economic Cooperation and De-velopment (OECD). This latter body can only make recommenda-tions, but within this limited framework, it has been extremely effective.III. THE FUTURE DEVELOPMENT OF THE EUROPEANREGIONAL COMMUNITYA little over one year ago, an extraordinary group of people metat a convention in Paris. This convention was the result of a jointresolution of Congress,' signed by President Eisenhower. By theterms of the resolution, a Citizens Committee, composed of twentyindividuals equally representing the two major political parties in theUnited States, was established for the purpose of encouraging membernations of NATO to set up similar groups which would meet togetherand make recommendations for strengthening NATO ties, particularlyin the economic and political sphere. I was appointed to the Americandelegation and became co-chairman with Mr. Clayton of Texas.Eventually, I was elected chairman of the international conventionheld in Paris.The convention was an unusual one because the delegates repre-sented no one. We simply sat around a conference table, hoping todevise helpful recommendations for promoting closer collaboration notonly between NATO members but within the entire Atlantic Com-munity. The discussions dealt with political and economic matters; wedid not deal with military issues because of the serious disagreementthat continues to exist among NATO nations over the control ofatomic weapons.674 Stat. 818 (1960)[Vol.ll1:884THE ATLANTIC COMMUNITYThe convention began with this Preamble:We the citizen delegates to the Atlantic Convention ofNATO nations meeting in Paris January 8 to 20, 1962, areconvinced that our survival as free men and the possibilityof progress of all men demand the creation of a true AtlanticCommunity within the next decade and therefore submitthis declaration of our convictions.The convention made several institutional and many culturalsuggestions; the former are of primary interest to us here. First, werecommended that a High Authority be created, headed by a chairmanto be chosen by rotation from the member states. This Authoritywould have the power to bind participating nations to a commonpolicy on certain military and economic matters, since an understand-ing in these areas is a requisite to any eventual political unity of theAtlantic Community. In addition, the convention recommended thecreation of a regional legislature which would initially be limited tothe discussion of proposals as are the regional parliaments of theCoal and Steel Community and of the EEC. At a later date it mightbe given more extensive powers. Another recommendation dealt withan Atlantic Court which would adjudicate disputes arising under thedocument or treaty creating this Atlantic Community.In essence, the community which we recommended would extendbeyond NATO and the EEC; it would be an outward-looking commun-.ity, not a rich man's club. Hopefully, this community would make itpossible for the industrial powers to give greater aid to the less de-veloped nations as well as to deter Communist aggression.Any legal order cannot, of course, be created over night. Itmust be a slow, even tedious process. I would recommend, however,that it be pursued constantly. Government commissions should beestablished to give further study to the proposals of the Paris con-vention. Only as a result of such efforts may we succeed in creatinga world in which the majority of nations, and eventually all of them,live together under the Rule of Law.1963]

Rule of Law in the Atlantic Community

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Rule of Law in the Atlantic Community

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