Internalization of international law by the CJEU and the US Supreme Court

Abstract

Against the background of a broadly shared perception of the United States and the European Union as very different kinds of international actors, and a related assumption that the US Supreme Court and the Court of Justice of the European Union (CJEU) treat international law very differently, this article examines the approaches of the CJEU 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 contrast, is perceived 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 generally viewed—with its WTO jurisprudence seen as an exception—as actively contributing to 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, however, 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 welcoming 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.