Abstract
AbstractApplication of international treaty and customary international law at the Court of Justice of the European Union (CJEU) is increasingly recognized by scholars as problematic regarding legal certainty. This Article seeks to illustrate why this is and to propose reform. Through comparing judicial approaches in the application of international law at the CJEU to its approach in internal case law, it is argued that in the frequent absence of proportionality in external case law the Court has utilized, redeployed, or varied other judicial devices in an effort to retain the discretion which proportionality affords. These are argued to effect legal certainty and established concepts of justice within the EU legal system. Accordingly, it is submitted that proportionality should be transplanted fully and openly to external relations case law and that support for this can be extrapolated from existing literature.
Highlights
Its impact on the European Union (EU) legal system is notable; norms of EU law emerge as non-hierarchical, with the potential for each to prove most important in the unique facts of a given case.[3]
His research currently concerns the relationship between international and domestic law, debating and testing notions of justice, and legal certainty in domestic courts’ case law. His PhD criticized the current approaches adopted by the Court of Justice of the European Union for applying international law within the EU legal system
While EU law features a hierarchy in which we identify the EU Treaty as sitting above secondary legislation and secondary legislation above national law,[87] it is submitted that this hierarchy is not especially informative regarding the resolution of most cases
Summary
Scholarship can be drawn upon to confirm two primary observations regarding external relations case law: First, legal certainty is problematic, and second, the case law evidences some balancing of EU law/interests against international law. The former is important, as the “dual nature” of law suggests that legal certainty, which is defined as being able to anticipate an outcome, and justice, which is defined as achieving the right outcome in a given case, are all law ought to achieve.[14] In lieu of an authoritative balance between these aims one would need to be cautious in proposing reforms. Our analysis of external relations case law will confirm concerns of scholars regarding legal certainty; the absence of proportionality will be explained as the reason for this to a greater extent than has previously been undertaken—albeit most scholars favor some balance
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