The Duality of Direct Effect in International Law

European Journal of International Law 2014 Vol. 25, Forthcoming

Amsterdam Law School Research Paper No. 2014-01

Amsterdam Center for International Law No. 2013-28

Posted: 9 Jan 2014

See all articles by Andre Nollkaemper

Andre Nollkaemper

University of Amsterdam - Amsterdam Center for International Law

Date Written: January 8, 2014

Abstract

This article assesses how, fifty years after the ECJ delivered its judgment in Van Gend and Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.

Keywords: International law, national courts, direct effect, pluralism

JEL Classification: K33

Suggested Citation

Nollkaemper, Andre, The Duality of Direct Effect in International Law (January 8, 2014). European Journal of International Law 2014 Vol. 25, Forthcoming; Amsterdam Law School Research Paper No. 2014-01; Amsterdam Center for International Law No. 2013-28. Available at SSRN: https://ssrn.com/abstract=2376266

Andre Nollkaemper (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/p.a.nollkaemper/

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