11.1 Introduction

The supranational character of both EU and European Convention on Human Rights (ECHR) law (collectively designated as ‘European law’) is closely associated with the rise of the Court of Justice of the European Union (CJEU) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg, both of which have acted as constitutional judges in allowing individuals to invoke treaty provisions against national legislation, whether directly or through preliminary referrals by national courts.Footnote ¹ Since the 2000s, a growing number of publications have analysed the often controversial powers of these courts from a historical and sociological perspective.Footnote ² With regard to the creation of EEC (now EU) law and its promotion as supranational law, a certain number of publications have notably highlighted the decisive role played by a small number of highly qualified jurists, for whom Antoine Vauchez has coined the term ‘Euro-lawyers’.Footnote ³ I shall apply this term here as well to lawyers participating in the creation and promotion of either EEC/EU or ECtHR law as supranational law.

When identifying the precedents on which early Euro-lawyers could build, many publications have noted the influence of individual domestic legal cultures.Footnote ⁴ In addition, several authors have identified continuities between interwar-period international lawyers and post-Second World War Euro-lawyers.Footnote ⁵ However, two aspects of this crucial period remain understudied.

First, with the notable exception of A. W. Brian Simpson, most authors seem to assume that interwar international adjudication remained confined to interstate disputes.Footnote ⁶ However, well before the 1950s, internationally composed courts examined treaty-based claims by individuals against sovereign states, notably in the wake of the post-First World War peace treaties. As I have shown elsewhere, the creators of both the Luxembourg and the Strasbourg courts acknowledged these institutions as important precedents.Footnote ⁷

Second, while certain of the above-mentioned publications recognize the importance of decolonization on the development of post-Second World War European law, they do not look at possible legal and personal continuities between international institutions established within a colonial context and the CJEU and the ECtHR. It might perhaps seem counter-intuitive to look at continuities between institutions whose main objective was to maintain inherently unequal forms of domination and institutions aiming to create forms of mutual dependency and solidarity among equals. A glance at international organizations law might dispel this assumption, as recent publications have shown that post-Second World War international organizations in general,Footnote ⁸ and the UN in particular,Footnote ⁹ relied heavily on legal principles and legal expertise developed within the often partly internationalized legal pluralism of certain colonial settings.Footnote ¹⁰

As this chapter will show, the CJEU and the ECtHR were no exceptions to this, as the sources of inspiration their creators could draw on were not limited to individual Western legal cultures or post-First World War European international courts but extended to precedents from colonial contexts. One of these precedents was the use of internationally composed ‘mixed courts’ to guarantee the individual rights of Westerners, which I will refer to here as ‘colonial-era mixed courts’. This chapter will therefore first introduce readers to the origins and characteristics of these courts, which operated between the middle of the nineteenth and the middle of the twentieth centuries, highlighting the cases of the Mixed Courts of Egypt and the Mixed Court of Tangier. It will then show some of the personal continuities that existed between these courts and post-Second World War European law, both within the European Communities and the Council of Europe (CoE). Finally, to further illustrate this point, the chapter will zoom in on one particular case before the Mixed Court of Tangier that not only raised the question of treaty law as constitutional law, but also elicited a cautious, but ultimately positive, assessment by Nicola Catalano, who would shortly afterwards become one of the most influential early ‘Euro-lawyers’.

11.2 Colonial-Era Mixed Courts: Upholding Treaty Law as Constitutional Law

Mixed courts of the colonial era were a form of domestic court with international participation established between the first half of the nineteenth century and the first half of the twentieth century in non-Western polities (including fully sovereign states, but also protectorates, mandates, and condominiums). Serving as an alternative to consular jurisdiction in countries where Western states were unwilling to accept the jurisdiction of ordinary local courts over their nationals or their nationals’ interests (a system also known as capitulations, especially in the context of the Ottoman Empire), they blended domestic and international features.Footnote ¹¹ These features were not limited to their composition and included other variables such as the legal norms that created them, the substantial and procedural laws they applied, their jurisdiction, and the languages they used. This blend of domestic and international features led contemporary authors to describe them as ‘mixed’ in a way that largely corresponds to today’s characterization of certain courts as ‘hybrid’. The first of these institutions were the Ottoman Mixed Commercial Courts (ca.1848–1914/23), which provided the blueprint for all others. Over time, the jurisdiction of mixed courts outgrew the initial focus on civil and commercial cases, with some later courts handling suits against the host government not unlike present-day investor–state dispute arbitration. However, due to the growing rejection of the discriminatory foundations of this system and to the progress of decolonization, most mixed courts created during the nineteenth and early twentieth century were eventually replaced by national courts before the 1960s.Footnote ¹² That said, based on their broad powers as guarantors of treaty-based economic freedoms of foreign individuals and companies and their own understanding of themselves as ‘constitutional courts’, two mixed courts seem especially relevant as precedents for both the CJEU and the ECtHR, namely the Mixed Courts of Egypt and the Mixed Court of Tangier.

Created pursuant to a 1875 convention between Egypt and more than a dozen Western powers, the Mixed Courts of Egypt were only dissolved in 1949, pursuant to the 1937 Montreux Convention. During their existence, the Mixed Courts of Egypt included between thirty-two and seventy judges (two-thirds of whom were foreigners, one-third Egyptians), many of whom had served as high-ranking magistrates in their home countries. Handing down their decisions, which were usually written in French, in the name of the Egyptian sovereign and in the interest of free international trade, they applied treaty-based laws that they could complement by invoking ‘the principles of natural law and equity’, or, at least until 1937, even modify them by convening as a ‘Legislative Assembly’. Even more importantly from the perspective of individual rights, the Mixed Courts of Egypt had the power to award damages to private persons for the violation of their treaty-based rights by Egyptian authorities. In this regard, the Mixed Courts had a broad understanding of their mandate. As early as 1876, in a decision that would eventually contribute to the destitution of ruler of Egypt Khedive Isma‘1̄l, they accorded to themselves the right to ignore any law that they deemed in violation of rights granted to foreigners by way of treaty.Footnote ¹³ According to one of the last presidents of the Alexandria-based Mixed Court of Appeals, these rights were understood by the members of the Mixed Courts of Egypt as similar to constitutional rights.Footnote ¹⁴

The Mixed Courts of Egypt later served as a model for the creation of a similar institution within the International Zone of Tangier (1924–1956), which was distinct from the French and Spanish Protectorates over Morocco. Adopted in 1923 as a multilateral treaty, the Tangier Zone Statute formally placed the Moroccan port city and its surroundings under the sovereignty of the Moroccan Shar1̄f, while delegating vast components of that sovereignty to several Western powers. These powers jointly administered most of the Zone using a series of international institutions, which included an administrator, a (non-elected) Legislative Assembly, a Committee of Control (composed of the professional consuls of the Western powers parties to the 1906 Act of Algeciras and endowed with the power to veto legislation), and a Mixed Court. The French international lawyer Paul Reuter (1911–1990), one of the drafters of the Treaty establishing the European Coal and Steel Community (ECSC), once described this scheme as a type of unequal federal integration between Morocco and the Western parties to the Statute.Footnote ¹⁵ In at least one respect, the quasi-federal character of the Tangier regime was even more conspicuous than that of the ECSC Treaty: as opposed to the latter, it included a supremacy clause. Under Article 11 of a Moroccan ‘Dahir’ (decree) annexed to the Tangier Zone Statute, ‘[t]he Administration of the Zone shall respect the Treaties at present in force between Us [the Sultan of Morocco] and the Powers. … In case of any divergence between the provisions of these Treaties and the laws and regulations passed by the International Legislative Assembly, the provisions of the Treaties shall prevail’.Footnote ¹⁶

The relative sophistication of the Tangier Zone Statute did not, however, lead to the creation of a judiciary as renowned as the Mixed Courts of Egypt. Generally speaking, the Mixed Court of Tangier was much smaller than its Egyptian model. Until 1953, it included only five titular judges, none of whom was a Moroccan. Deemed much less prestigious than the Mixed Courts of Egypt, it did not attract the same kind of high-profile magistrates. This changed somewhat between 1953 and 1956 when, following a major overhaul, the bench of the Mixed Court of Tangier was expanded to thirteen foreign judges and one Moroccan judge.Footnote ¹⁷ Nevertheless, despite these shortcomings, the Mixed Court of Tangier had similarly broad powers and proved just as activist as those in Egypt.

Just like their Egyptian counterparts, the Tangier judges used their jurisdiction over suits by foreigners against the government to set aside laws that they deemed contrary to the economic freedoms of foreigners, asserting that these freedoms were guaranteed by the ‘constitutional treaties’ of the Zone. This could be considered a form of judicial activism. Granted, the prevalence of these treaties over local legislation was firmly enshrined within the above-mentioned supremacy clause. Nevertheless, the ‘duty … to ensure the observance of the regime of economic equality and the provisions of the statute of Tangier’ had been entrusted by Article 30 of the Tangier Zone Statute to the above-mentioned Committee of Control. By asserting their own power to enforce the supremacy of treaties over Zone legislation, the members of the Tangier Mixed Court showed that they were not afraid of encroaching on what Western consuls in Tangier would have considered their domaine réservé.Footnote ¹⁸ They did so for the first time in the 1938–1939 Radio-Tanger case. After the Tangier Legislative Assembly had adopted a law prohibiting all private radio broadcasting in the Zone on grounds of Moroccan ‘imperial’ security, local authorities had started criminal proceedings against the director and the manager of the privately owned Radio-Tanger station. However, the station’s owners, the Belgian industrialist Louis de Wolf and his Romanian associate Charles Michelson, were clearly aware of the potential offered by the unique legal framework of the Tangier Zone and its judicial guarantees.Footnote ¹⁹ Their strategy of commissioning and disseminating opinions from some of Europe’s most prominent international lawyers, all of whom asserted the legality of their undertaking, proved successful with the local judges.Footnote ²⁰ Echoing the arguments used by the defendants, both the Mixed Court’s Section of First Instance,Footnote ²¹ and its Appeals Section,Footnote ²² deemed the law contrary to the principle of ‘economic freedom without inequality’, which was granted to all foreigners in Morocco by the 1906 Act of Algeciras, and acquitted the accused. In its lengthy decision, written by its Spanish president Manuel Díaz Merry, the Mixed Tribunal even explicitly compared itself to the US Supreme Court.Footnote ²³

Considering their international composition and legal basis, their broad powers as guarantors of treaty-based individual rights, their activism, and their full integration within their respective host polities, the Mixed Courts of Egypt and Tangier presented several features that would have been useful to the creators and promoters of the two post-Second World War European supranational courts. As a matter of fact, several leading early Euro-lawyers had some form of experience of the Mixed Courts of Egypt and Tangier.

11.3 Personal Continuities: The Colonial Experiences of Early Euro-Lawyers

Several lawyers who played an important role in creating and/or promoting the Luxembourg and Strasbourg courts as supranational courts had previous experience of colonial-era mixed courts.

The fact that the Council of Europe was established in 1949, which was the same year that the Mixed Courts of Egypt were dissolved, likely contributed to some striking personal continuities between these institutions. While the Swede Torsten Salén (1889–1964), who had been a judge at the Mixed Courts of Egypt between 1926 and 1949 before serving as a member of the Committee of Experts that elaborated the draft ECHR between February and March in 1950, did not display any leanings in favour of supranational adjudication in that context (a move his country would have opposed in any case), two of his former colleagues were actually instrumental in setting up the ECtHR as a supranational court.Footnote ²⁴

The first of these colleagues was the Dutch Arnold Struycken (1900–1955). After defending a doctoral dissertation in international law and serving as a legal secretary to several Mixed Arbitral Tribunals based in the Netherlands (some of which dealt with politically highly sensitive expropriation cases), between 1936 and 1949 Struycken had served as a judge of the Mixed Courts of Egypt – a period that coincided with increased Egyptian opposition to the wide-ranging powers of these courts, and after 1937 that saw a transitional period in which their absorption by the local court system was prepared and lively discussions took place about the future protection of foreigners’ rights within that system. In 1949, following the dissolution of the Mixed Courts, Struycken was appointed Political Director within the Secretariat of the Council of Europe, and entrusted with coordinating the relations between the organization and its member states. This included coordinating the meetings of, and serving as rapporteur for, the Committee of Experts that drafted most of the ECHR.Footnote ²⁵ During that process, Struycken’s administration presented the Committee of Senior Officials with a precedent involving the Mixed Courts of Egypt while describing them as complying with international standards regarding access to justice.Footnote ²⁶ Although he undoubtedly participated in paving the way for it, Struycken himself did not witness the rise of the ECtHR as a supranational court. After having been appointed Clerk of the Assembly and Adjunct-Secretary-General of the organization in 1954, he suddenly died from a heart attack at his office desk in 1955.Footnote ²⁷

By contrast, Struycken’s colleague Polys Modinos (1899–1988) had the opportunity to actively shape the functioning of the ECtHR until the end of the 1960s. Born into a Greek family in Alexandria, Modinos studied in Paris before joining the bar of the Mixed Courts of Egypt in 1922. After fifteen years of practice as a lawyer, he joined the bench of the Mixed Courts in 1937 and remained there until its dissolution. As opposed to Struycken, Modinos was a relatively prolific author, publishing some forty articles between 1923 and 1968, many of which related to individual rights.Footnote ²⁸ During the final years of the Mixed Courts, he did not hesitate to provide foreign embassies with memoranda critical of Egyptian laws that he considered discriminatory towards foreigners and the end of the international guarantee of their rights by the Mixed Courts.Footnote ²⁹ After the dissolution of the Mixed Courts, Modinos joined Struycken’s department in 1951. In 1954, he was appointed to the strategic position of Head of the Council of Europe’s Human Rights Department. In that capacity, he served as the first secretary of the European Commission of Human Rights. In 1959, he became the ECtHR’s first Registrar, before being appointed Deputy-Secretary-General of the organization in 1962.Footnote ³⁰ Modinos was not only a staunch advocate of supranationalism, hailing the CJEU’s seminal 1963–1964 decisions as models for the ECtHR, which he considered a constitutional court,Footnote ³¹ but actively modelled procedures before the Strasbourg organs on those before the Mixed Courts of Egypt, as the then president of the ECtHR, the French law professor René Cassin (1887–1976), would acknowledge in 1968.Footnote ³²

As for the CJEU, three of its early members and promoters had been in contact with the Mixed Court of Tangier.Footnote ³³ Its first president, Massimo Pilotti (1879–1962), had participated in the 1928 revision of the Statute of the Mixed Court of Tangier, although it is hard to tell whether this experience influenced him in any way.Footnote ³⁴ Perhaps more importantly, Michel Gaudet (1915–2003), who had established the Legal Service of the ECSC’s High Authority in the early 1950s and laid the groundwork for the Van Gend & Loos and Costa v. ENEL decisions as Head of the European Commission’s Legal Service in the early 1960s, did not hesitate to establish parallels between the legal techniques used in the context of European integration and those he had himself used as a legal counsel to the French Protectorate in Morocco in 1945–1948.Footnote ³⁵ Although not based in Tangier, he had nevertheless acquired first-hand knowledge of the Mixed Court’s Radio-Tanger case.Footnote ³⁶ By contrast, one of Gaudet’s subordinates at the High Authority’s Legal Service in 1953–1956 Nicola Catalano (1910–1984) had actually lived in the International Zone. Another major Euro-lawyer, Catalano is often credited as the inventor of the CJEU’s preliminary reference procedure.Footnote ³⁷ He also wrote the first textbook on EEC law, published in 1962, in which he expressly presented the CJEU, on whose bench he had sat between 1958 and 1961, as a constitutional court.Footnote ³⁸ Before beginning his career as a Euro-lawyer by joining Gaudet in Luxembourg, Catalano had been the legal counsel to the International Zone of Tangier in 1951–1953. During this time, he did not only witness the modernization of the local Mixed Court into the ‘International Jurisdiction of Tangier’.Footnote ³⁹ As we shall see in the next section, he also wrote an opinion on the powers of the Mixed Court of Tangier that anticipated some of the later debates at the Luxembourg court.

11.4 Nicola Catalano and the Nordlund Case: In Defence of Primacy

The peculiar circumstances of the Mixed Court of Tangier’s Radio-Tanger decision, which had been adopted by a majority of Fascist and Francoist judges within the context of the Spanish Civil War and had led to an outcry by French officials and commentators, could have turned it into an isolated precedent.Footnote ⁴⁰ However, the court actually reaffirmed it after the Second World War. In 1948, a Danish dentist named Aksel Nordlund, who had previously practised for more than fifteen years within the French Protectorate, was denied by the administrative authorities of Tangier the right to set up his practice within the Tangier Zone. To deny Nordlund’s request, they invoked a 1939 law reserving this right to nationals of the signatories of the 1906 Algeciras Act, to which Denmark was not a party. When Nordlund ignored this decision, the authorities initiated criminal proceedings against him. Before the Mixed Court, Nordlund argued that the 1939 law was unconstitutional. The judges agreed, based on three considerations. First, they held that neither the Act of Algeciras nor earlier economic treaties concluded between Morocco and Western states discriminated between different Western nationalities, and that Denmark benefitted from the advantages granted to other Western states pursuant to the most-favoured-nation clause under Article 17 of the Madrid Convention of 3 July 1880.Footnote ⁴¹ Second, they recalled that pursuant to both Article 7 of the Tangier Zone Statute and the supremacy clause included in the above-mentioned Moroccan decree annexed to it, the Zone’s authorities had the obligation to comply with the treaties applicable to the Zone. Third, invoking Article 1 of the Zone’s Code of the Civil Status of Foreigners which, like all other Codes of Tangier was treaty based and could not be altered by ordinary legislation, they stressed that the principle of economic equality between foreigners, as a ‘fundamental law of Morocco’, not only applied within the realm of commercial activities, but extended to all private rights of foreigners. As a result, they declared the 1939 law ‘formally irregular and contrary to [the Zone’s constitutional texts, applicable treaties and Codes]’, and acquitted Nordlund.Footnote ⁴²

The Mixed Court’s decision in the Nordlund case did not cause a controversy similar to that sparked by the Radio-Tanger precedent – it was never appealed. Nevertheless, the head of the local executive, the administrator, seemed clearly ill at ease with it, requesting two opinions on the matter from the Zone’s legal counsel.

The first of these opinions, issued only a few months after the decision, was written by the Spanish lawyer Pedro Cortina. From a purely substantive point of view, Cortina showed himself to be in total agreement with the Mixed Court. As he had made clear in another opinion issued only a few months earlier, he was himself convinced that the treaty-based principle of economic freedom without inequality enjoyed a ‘fundamental’ character within the Tangier Zone and therefore limited the powers of the Legislative Assembly.Footnote ⁴³ In his opinion on the Nordlund decision, he emphatically described the Tangier Zone Statute as ‘une véritable “constitution conventionnelle”’ (‘a truly “conventional constitution”’). From this premise, he concluded that the Mixed Tribunal did not only have the power, but the obligation, to set aside all laws it deemed contrary to the Zone’s ‘treaty-based constitution’. Nevertheless, he still concluded that the Mixed Tribunal had overstepped its mandate, which did not include making generally binding pronunciations on the validity of laws, but only applying them in individual cases or, as Cortina noted, just like the US Supreme Court, refusing to apply them in such cases. Decisions exceeding this remit could possibly be annulled by the Zone’s Committee of Control.Footnote ⁴⁴

The second opinion on the Nordlund case was issued in 1951 by Nicola Catalano, who by then had succeeded Cortina as the Zone’s legal counsel. His style was clearly different. Avoiding potentially divisive references to the US Supreme Court, Catalano seemed intent on appearing nuanced, discussing possible arguments and counterarguments before modestly submitting his own conclusion. His determinations were, however, not fundamentally different from those of his predecessor. If anything, they were more likely to cement the Tangier Mixed Court’s power to set aside laws than Cortina’s position. Just like his predecessor, Catalano denied the court’s claim to act as a constitutional court while acknowledging its power to set aside unconstitutional laws, which he considered as supplementing the Committee of Control’s power to veto unconstitutional legislation before it was enacted. However, in contrast to Cortina, Catalano stressed that the court should only do so ‘in very rare cases and only if the contradiction between the treaty and the law appears self-evident’ (‘dans des cas très rares et seulement quand la contradiction entre le traité et la loi apparaît evident[e], ictu oculi’). This call for judicial restraint, mainly aimed at dissuading the Tangier judges from using all too vague treaty provisions, hardly left the court’s powers diminished. If anything, it accentuated them – all the more so as Catalano, as opposed to Cortina, asserted that Mixed Court decisions, whether right or wrong, were final and could not be challenged before any other institution. Moreover, just like Cortina, Catalano left no doubt about the fact that, once the court had identified a contradiction between a law and a treaty provision, it had the obligation to apply the latter rather than the former, based on what Catalano described as a ‘criterion of primacy’ (‘critérium de primauté’).Footnote ⁴⁵ Although the existence of a formal supremacy clause was a major difference between the Tangier Zone Statute and the ECSC and EEC Treaties, Catalano’s cautious approval of the Tangier Mixed Court’s activism might perhaps help explain his later attitude vis-à-vis EEC law primacy, which was fundamentally positive but ultimately dependent on judicial initiative. Despite being an ardent European federalist, coming up with the preliminary referral procedure, and brainstorming the creation of the Fédération Internationale pour le Droit Européen (International Federation for European Law) with Michel Gaudet, the head of the Commission’s Legal Service, Catalano asserted until 1963 the precedence of subsequent national laws over treaties.Footnote ⁴⁶ It was only after the 1964 Costa v. ENEL decision that he fully embraced EEC law primacy, becoming one of its most vocal proponents.Footnote ⁴⁷

11.5 Conclusion

Today, it is still hard to establish the exact degree of influence semi-colonial legal institutions wielded on the creation of European law as constitutional law. Nevertheless, accounts such as the one by Michel Gaudet on his time in Morocco and René Cassin’s observation on Polys Modinos using the experience he had acquired in Egypt to shape human rights procedures in Strasbourg should not be regarded as mere anecdotes. Put together, they show that European law did not draw its origins from individual Western legal traditions and institutions alone, but that international – or, indeed, quasi-federal – legal institutions and practices developed on Europe’s colonial ‘peripheries’ did indeed contribute in some way to post-Second World War European ‘integration-through-law’.Footnote ⁴⁸

The fact that these contributions were rarely acknowledged as such should not come as a surprise. Granted, the establishment of a new post-Second World War international order did not result in an immediate disqualification of colonialism, but was rather informed by it – so much so that one of its designers, the South African prime minister Jan Smuts, could still hope in 1945 that the UN might help to preserve colonialism and white supremacy.Footnote ⁴⁹ While American States (including the US) and the Soviet Union displayed some hostility towards colonialism from the outset of the UN’s existence, the decisive impetus that tilted the UN in favour of anti-colonialism came from the recently decolonized states,Footnote ⁵⁰ whose practice challenged and partly succeeded in changing established rules.Footnote ⁵¹ It would take until the 1960s, the decade during which most of the formal decolonization processes were achieved, for this trend to crystallize into a set of firmly established rules that put Western states and lawyers on the defensive.Footnote ⁵² That said, even in France, where during the 1950s the overwhelming majority of political parties were advocating colonial reform rather than decolonization, colonialism was not always positively connoted. On the one hand, France’s colonial domination over parts of Africa could be mobilized as a geopolitical argument in favour of European integration.Footnote ⁵³ On the other hand, invoking colonial institutions as models for European supranational institutions, which had already been made fragile by the rejection of the European Defense Community in 1955, would hardly have increased their legitimacy in the eyes of the general public.

As opposed to their Western domestic sources of inspiration, such as the Supreme Court of the United States and the French Conseil d’État (Council of State), the colonial origins of post-Second World War European integration-through-law are much less conspicuous and only visible to the trained eye. In that regard, they remind one of spolia, or individual stones extracted from dismantled structures and reused in more recent buildings, sometimes serving a slightly different purpose. Identifying these spolia, and thereby the continuities and discontinuities between past and present legal practices, might prove a useful contribution to present-day debates about European supranational institutions, their potentialities, and their limitations.