International law before the Courts: The European Union and the United States compared

36 Pages Posted: 27 Aug 2014 Last revised: 6 Dec 2014

See all articles by Grainne De Burca

Grainne De Burca

New York University (NYU) - Law School; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: November 1, 2014

Abstract

Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors, and a related assumption that the approaches of the US Supreme Court and the European Court of Justice towards the internalization of international law are also very different, this article takes a systematic look at the approaches of the European Court of Justice and the US Supreme Court to the internalization of international law over the decade 2002-2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by comparison, is seen as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been broadly viewed – with WTO jurisprudence seen as an exception – as actively contributing to shaping that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the embracing judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.

Suggested Citation

De Burca, Grainne, International law before the Courts: The European Union and the United States compared (November 1, 2014). Virginia Journal of International Law, Forthcoming; NYU School of Law, Public Law Research Paper No. 14-61. Available at SSRN: https://ssrn.com/abstract=2487361 or http://dx.doi.org/10.2139/ssrn.2487361

Grainne De Burca (Contact Author)

New York University (NYU) - Law School ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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