The Silence of the Treaties: General International Law and the European Union
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This article examines the silence of the EU Treaties on the implementation and functions of general international law in the European Union legal order. Given the EU’s growing activity on the international plane which is subject to the rules of international law, it is remarkable that neither the Treaty drafters nor any subsequent Treaty amendments included an ‘incorporation clause’ in primary Union law that would clarify the legal status and rank of general international law within the EU. Regarding the functions of general international law, this article explores whether this silence has an impact on subsequent Member State practice in contravention of the Treaties, and the autonomous status of EU law, which provides for a comprehensive procedural ‘toolbox’ in order to redress infringements, and thus excludes the fall-back to countermeasures under international law between the Member States and the Union and between the Member States inter se. This article eventually concludes that the inclusion of an incorporation clause may have prevented the Court of Justice of the European Union from following a flexible approach towards international law, whilst the silence of the Treaties with respect to the functions of international rules remains irrelevant for the autonomy of EU law.
- College Publications