Worlds Apart? Comparing the Approaches of the European Court of Justice and the EU Legislature to International Law
Leuven Centre for Global Governance Studies Working Paper No. 96
37 Pages Posted: 7 Jun 2013
Date Written: August 2012
This paper examines and compares the approaches taken by the European Court of Justice and the EU legislature towards international law. Although the Court and legislature are tasked with different roles, such a comparison is warranted, especially since many of the complex legal problems facing the EU regarding international law in recent years have arisen in part due to a growing divergence between the two approaches. We begin by looking at the EU Treaties. Although little guidance is given on how international law is to be applied within the EU legal order, the Treaties are not entirely silent. Numerous references to international law and multilateralism, especially those included post-Lisbon, guide the Court and the legislature, helping to minimize inconsistencies between their approaches. We examine the Court’s approach to international law, which, especially in the light of recent case law, is much less ‘open’ than it is often portrayed. It stands in contrast to that of the legislature, which shows greater willingness to take into account international law. We argue that the Court’s more guarded approach, often motivated by a desire to preserve the autonomy of EU law, is largely unwarranted. Rather, the Court should enter into a more open dialogue with international law, helping the EU to, “contribute ... to the strict observance and the development of international law", as prescribed by Article 3(5) TEU.
Keywords: European Union, Court of Justice of the European Union, EU legislature, international law
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