Gabriel Micu,
PhD, minister plenipotentiary
International law regulates a projection of the developments recorded in the field of international relations, both through the prism of the subjects of international law who participate in the elaboration of norms, and of the international actors who influence the creation of the norm, without directly participating in it.
In the current international context, the increasing interdependence between the main subjects of international law substantially modifies their relationship mechanisms, favoring the emergence of new systems and sub-systems, in which non-governmental actors are also present, a phenomenon that nuances and modifies fundamental concepts on which classical international law is based.
The phenomenon of globalization introduces a series of innovative legal interpretations, which must be identified and explained in the letter and spirit of the sources of international law, must be not only conceptually substantiated, but also explained in the context of the application of the international norm.
The increasing diversity and specialization of international organizations determines the deepening of knowledge in the field of international law, the correct understanding of the mechanisms of organization and functioning of a considerably increased number of international legal systems and subsystems, compared to those up to 1990. In this regard, a novel form of relationship between states that decide to follow various integration models, regulated by community law, a recently established branch, located between international law and national law, can be mentioned.
A particular situation is presented by the process of European integration, in which a considerable volume of legal norms but also of directly applicable judicial practice now originates in European sub-systems, which makes it necessary to know European Union law, as a particularity of Community law and in the broader context of international law.
In the information age, the concept of state is nuanced and, with it, the approach to its constitutive elements. This reality requires a permanent comparative analysis, both with the original meaning of the concept and with the socio-cultural environment that defines the notion of state.
Technical and scientific developments, as well as the diversification and deepening of socio-human theories, are determining factors in the developments currently registered, both in the internal law of states and in international law. Correspondingly, the professional fields that require legal knowledge are diversifying, changing, some disappear from the labour market, but new ones appear.
The phenomenon of globalization is becoming a determining factor in these developments, so that most of the existing concepts and theories in the field of international law have nuances and even substantial changes compared to the period of their consecration. As a result of the globalization process, the specifics of diplomatic activity have undergone major changes compared to the activity regulated by the entry into force of the conventions that regulate this field.
The basic functions of diplomats have changed surprisingly over time, and the context of diplomatic practice has changed significantly. Although diplomacy was a field reserved for states, globalization has introduced new relevant actors into this equation, such as international organizations, multinational companies and NGOs, developing a new diplomatic practice, called public diplomacy.
This substantially modifies the axiomatic of diplomatic and consular law, with elements that not only need to be correctly legally framed, but also disseminated appropriately to those interested in pursuing a career in diplomacy or international relations.
However, it must be highlighted, in this context, that regardless of the importance that international organizations, classical or with an integrationist profile, have acquired today, creating a true structured network of entities following their expansion, thus transforming the international community, they do not replace states, which remain the primary element of the construction of international society, with whose existence they are interdependent.
The own will of the international organization does not lead to the imposition of obligations on member states, since the latter are the only ones who have the full capacity to establish them and, consequently, to participate in the formation of their will.
In this sense, states are not subordinate to the international organization, but are bound by commitments to it. All acts, regardless of their name, decision, resolution or any other document, are adopted by states and do not become binding on them except according to their constitutional rules (ratification, adoption, etc.).
The European construction does not deviate from the norms of International Law. What appears to be an act of direct governance of the European Union in relation to the Member States is in fact a competence, exclusive or shared, attributed by them to the European institutions, to regulate in certain areas, in their name and for them, which the national authorities themselves have consented to cede to them in favour of the European institutions, throughout their membership of the Union.
In this sense, the principles according to which the EU
is organized and operates have also been regulated, such as the attribution of competence, subsidiarity, proportionality, which precisely aim to harmonize the fundamental principle of International Law, sovereignty, with the decision-making process of the community structure built by them.
It has been mentioned since the beginning of the Treaty of Lisbon that what remains under the jurisdiction of the Member States and does not fall within the EU portfolio as its competences are those areas that define and constitute national identity.
The main argument supporting this conclusion is that national identity is necessary for the very existence of the fundamental political and constitutional structures of the Member States, which respect the essential functions of the States and, in particular, those aimed at ensuring their territorial integrity, maintaining public order and national security.
Maintaining the States at the forefront of the European construction results from the fact that they continue to have the quality of subjects of international law, also exercising all their attributes, with the exception of those which, based on their freely expressed will, they have transferred to the European institutions, throughout their membership of the organization, or which would be incompatible with their quality of EU membership.
A relevant conclusion for the correct legal positioning on this subject is that the European Union represents an association of States which remain sovereign and which, together with the EU institutions, constitute the foundation of the entire European construction.
The European Union cannot exist without the Member States, both legally and politically, as they represent the constitutive element of the organization, which has the Member States as its origin and perennial foundation, being the work of the founding states which attribute to it powers for the achievement of their common objectives, as is evident from Article 1 of the Treaty.
