'The Relationship between EU Law and International Law', in: D Patterson and A Södersten (eds), A Companion to European Union Law and International Law (Wiley-Blackwell 2016) 42-61 (original) (raw)

Current Problems of the Interaction Between International Law and the European Union Law

Revista de la Universidad del Zulia

The objective of this article is to analyze the problems of the interaction between International Law and the Law of the European Union. In particular, attention is paid to the study of "traditionalist" and "autonomist" approaches to the relationship between International Law and EU Law, the place of EU Law in the international legal order and the international legal aspects of the interaction of EU law and the law of the EU Member States. In the investigation, dialectical, legal-comparative, historical and logical-formal methods were used. As a result of the analysis, it was concluded that the relationship between EU Law and International Law is difficult to fit into any of the traditional models. On the one hand, EU Law was formed as a component of International Law. On the other hand, although the EU legal order was created on the basis of international treaties, in the process of its development it acquired certain characteristics that are, to a certain exten...

Revisiting the International Legal Status of the EU

European Foreign Affairs Review

In 1997 this author wrote an article in this journal on the international legal status of the EU. 1 Since then, not only the Amsterdam Treaty entered into force-modifying a number of provisions in the EU Treaty-but also some other developments took place, both in academic thinking and in the legal practice of the EU, which all together justify a fresh look at the topic. Arguments to define the international legal status of the EU can not only be drawn from the existence of external legal capacities of the Union, but also from the unity of the Union's legal system. Where the first article analyzed the international legal status of the EU mainly by pointing to existing international capacities of the Union, the present article takes the inherent status of the EU as an international legal entity as a starting point. The popularity of the 'pillar-structure' in emphasizing the differences between the three issue-areas of the Union, has prevented many observers from taking the single legal system underlying the EU as a basis of their analyses. To this very day one can observe the existence of largely isolated EC, CFSP and Police and Judicial Cooperation in Criminal Matters (PJCC) research communities, in which research is frequently 'content driven' rather than that the impetus is taken from legal institutional starting points. Existing literature generally stresses too much the differences between the 'pillars', while neglecting the overall context of the EU legal system. 2 In fact, looking at international law or international organizations in terms of legal systems is rather uncommon. Even Hart-who devoted most of his time to the definition of a legal system-did not find his concept of law to be

Revisiting the International Legal Status of teh EU

In 1997 this author wrote an article in this journal on the international legal status of the EU. 1 Since then, not only the Amsterdam Treaty entered into force-modifying a number of provisions in the EU Treaty-but also some other developments took place, both in academic thinking and in the legal practice of the EU, which all together justify a fresh look at the topic. Arguments to define the international legal status of the EU can not only be drawn from the existence of external legal capacities of the Union, but also from the unity of the Union's legal system. Where the first article analyzed the international legal status of the EU mainly by pointing to existing international capacities of the Union, the present article takes the inherent status of the EU as an international legal entity as a starting point. The popularity of the 'pillar-structure' in emphasizing the differences between the three issue-areas of the Union, has prevented many observers from taking the single legal system underlying the EU as a basis of their analyses. To this very day one can observe the existence of largely isolated EC, CFSP and Police and Judicial Cooperation in Criminal Matters (PJCC) research communities, in which research is frequently 'content driven' rather than that the impetus is taken from legal institutional starting points. Existing literature generally stresses too much the differences between the 'pillars', while neglecting the overall context of the EU legal system. 2 In fact, looking at international law or international organizations in terms of legal systems is rather uncommon. Even Hart-who devoted most of his time to the definition of a legal system-did not find his concept of law to be

The Court of Justice of the European Union and International Legal Order

Russian Law Journal

This kind of research seems important because of the gap in the theory of international law caused by the immutable dogma of the supremacy of international law. However, modern legal practice demonstrates a certain fragmentation of the international legal order because of the impact of the existence and development of regional supranational legal orders. The EU legal order, with its own special nature (sui generis), is undoubtedly one of the most developed among them.

WHO HAS THE FINAL SAY? THE RELATIONSHIP BETWEEN INTERNATIONAL, EU AND NATIONAL LAW

A key focus of much scholarly attention is on the (theoretical) relationship between legal orders. The practical question I intend to answer in this article is the following: how can we know who has the final say – international, European Union (EU) or national law? I proceed in three steps. First, I critically sketch major current theories – monism and dualism, as well as global legal pluralism and global constitutionalism. However, because none of them offers a satisfactory answer to the question posed, I move to the reconceptualization stage of the theoretical relationship between legal orders. In the second step, I offer my account of how to think about the relationship between legal orders by introducing the theory of the law creators' circle (TLCC). The TLCC provides a theoretical foundation for deciding on the source of the decisive norm. It does not, however, provide a general solution which fits any norm conflict stemming from overlapping legal orders. Thus, the purpose of this article is to develop a legal theory which facilitates the understanding of the interaction between international law, EU and national law. Third, I use a doctrinal analysis to show the results of the TLCC application. For instance, in the famous Kadi saga, according to the TLCC, the EU should have either claimed that the UN Security Council was acting ultra vires or considered the UN Security Council Resolution faulty because UN human rights (instead of EU human rights) had been violated.