Two Constitutionalisms in Europe: Pursuing an Articulation of the European and International Legal Orders
Heidelberg Journal of International Law (ZaÖRV), Vol. 69, pp. 939-978, 2009
37 Pages Posted: 8 Oct 2008 Last revised: 28 Apr 2011
Date Written: September 10, 2008
Whilst having long been the object of scholarly examination, the relationship between the European legal order and the international legal order has recently attracted renewed attention following the problems caused by the implementation by EU Member States of the measures adopted within the framework of the UN system of collective security. Within that context, two different discourses have permeated through the case-law of the European Courts and the legal scholarship about the articulation of the international legal order and the European legal order. On the one hand, various scholars and judges have endorsed the idea that the European legal order is an autonomous constitutional order resembling a municipal legal order (European constitutionalism). On the other hand, it has been argued that the European legal order is a legal order of international law and is embedded into the international legal order whose fundamental values and principles it must promote and enforce (international constitutionalism). It is the aim of this paper to, firstly, decipher the diverging features underlying these different understandings of the relationship between the European legal order and the international legal order and, secondly, offer a critical appraisal of their limits in the light of the abiding separation between existing legal orders.
Keywords: European Court of Justice, International Law, European Law, Kadi, Yusuf, Monism, Dualism, Constitutionalism
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