This chapter studies the methodology used by the CJEU to identify CIL. In addition, it assesses whether that methodology is similar to, or differs from, that which other international courts and tribunals use (based on the two-element approach). The chapter argues that the notion of consensus can assist the CJEU in the identification process of CIL. In particular, two sets of cases are examined. First, those in which the CJEU has dealt with the interaction between the Resolutions of the UNGA and CIL in the identification process. And secondly, cases where general principles of public international law have been used to identify CIL. Resorting to public international law concepts (consensus) and techniques (external references to the PCIJ or the ILC) to identify CIL does not prevent the CJEU from adopting a particularist approach. The judicial practice analysed highlights the tension converging when the CJEU exercises its jurisdiction. A push towards autonomy (or particularism) can be noted on the one hand. On the other hand, the CJEU cannot avoid its nature as an international tribunal. The chapter argues that it is precisely for this reason that the CJEU resorts to a ‘flexible consensualist approach’ when faced with the identification of CIL thus allowing some room for cross-fertilization between international courts and tribunals.

One important aspect of the legal effects of CIL within the EU legal order concerns the questions of whether CIL can be relied upon in EU law-related administrative or judicial proceedings and, correspondingly, whether administrative and judicial authorities are obliged to apply CIL in such proceedings in order to decide the case at hand. This is the problem of the ‘invocability’, ‘enforceability’ or the ‘direct effect’ of EU law. As there has so far only been marginal treatment of the direct effect of CIL (as opposed to that of international agreements), the chapter aims at clarifying whether and to what extent the solutions devised for the direct effect of international agreements can be transferred to CIL, that is, whether the ‘treaty analogy’ holds. In this regard, the chapter pleads not only for a uniform direct effect test for international agreements and CIL norms, but for a uniform direct effect analysis for all provisions of EU law, internal and external alike. The chapter further argues that the existing differences among the various types of EU law norms as well as the specificities of each individual provision can be adequately dealt with by applying a context-sensitive analysis of the respective provision of EU law.

This chapter discusses how the CJEU invokes and applies substantive customary international law rules within the EU legal system; to which extent they are relevant to this system: whether the interpretation of these rules by the CJEU conforms to the traditional rules of interpretation in international law; and whether the Court pursues a specific strategy in doing so (and whether there is coherence and/or certain patterns to its jurisprudence in this respect). The substantive customary international rules used by the CJEU and thus further assessed here are those governing ‘territory’, ‘territoriality’ and ‘extra-territoriality’; substantive customary rules of the VCLT (other than interpretation rules); and lastly, some of the most fundamental rules of international law (such as the prohibition of the use of force and the right to self-determination).

The EU is often described as a sui generis international organization. While this is an apt description in some ways, it is far from self-evident that the special features that the EU exhibits are or should be part of the explanation of why and how it is bound by customary international law. This chapter seeks to show that, in the eye of public international law, the EU is not yet in a category of its own which would justify or otherwise affect the applicability of custom to it. It does so by investigating whether a special category of ‘regional economic integration organizations’ (REIOs) has emerged to which international law grants ‘preferential’ treatment, with a focus on three rules that were unsuccessfully proposed to cater for the specificities of the EU in codification projects carried out by the UN International Law Commission. The chapter also considers doctrinal and normative reasons why calls to distinguish the EU from other international organizations under customary international law have fallen on deaf ears, while recognizing the role that the EU has played in widening the horizons of the law of international organizations.

EU law has a complex relationship with the concept of peremptory norms. On the one hand, the case law of the ECJ shows a pattern of ‘avoidance’ of peremptory norms of general international law, namely a reluctance by this Court to consider the legal effects of such norms in cases where they may be relevant. This is clear in the Kadi and Front Polisario/Western Sahara sagas. On the other hand, EU law has ‘assimilated’ the concept of peremptory norms more than it may seem at first sight. Indeed, it may be affirmed that EU law has its own system of peremptory norms. Such as system is based on norms and principles that have some of the defining features of the peremptory norms of general international law (including a system of enhanced responsibility for serious breaches of such peremptory norms). While, in analytical terms, this characterization does not matter much for EU law, it is certainly critical to the proposition that general international law does not exclude the existence of a regional jus cogens.

This chapter aims to examine a topic that up to now has received scant, if any, attention: the use of customary international law (CIL) by the European Parliament, the Council and the European Commission. To that effect, the actions resulting from the exercise of different powers of those three institutions (such as proposals, acts of secondary law, parliamentary questions, statements before the CJEU and other courts) have been taken in consideration. The examination of the practice of the political institutions of the EU does not reveal significant differences between them. References to rules of CIL from their side are relatively rare and mostly included in instruments with an international dimension. They all tend to invoke precise rules of CIL when doing so is essential for substantiating their legal position. They also seem to be aware of the fundamentals of this source of international law. By contrast, the European Parliament, the Council and the Commission fail to demonstrate (here is another common feature) that the rules of CIL they invoke are well established or that practice and opinio juris, as constitutive elements of CIL, concur. It must be highlighted as well that no pattern has been identified in this empirical analysis on the use of CIL by the political institutions of the EU.

Much of the debate about the EU and customary international law addresses the conditions under which customary international law is applied within the EU legal order, such as when it is used to challenge the validity of EU acts. To what extent can the EU also contribute to the development and identification of customary international law? This chapter argues that the EU is not only bound by customary international law, but can also contribute to the development and identification of customary law in its own right. It examines these questions in light of the International Law Commission’s 2018 Draft Conclusions on Identification of Customary International Law. It first discusses some of the conceptual issues faced by the ILC and some of the ways that the EU may contribute to the development of customary international law through its practice and opinio juris. The chapter then turns to the role of the Court of Justice of the European Union and the role it plays in the development and identification of customary international law. It argues that EU practice is relevant when determining rules that apply to the relationship between the EU and third states and organizations.

This chapter discusses how customary international law enters the sphere of EU law and to what extent it determines the relationship between the EU institutions, its member states and individual persons. Against this background, it is examined how customary international law is integrated into the EU legal order, what status it enjoys within that legal order, how it can be applied by EU institutions and whether it can serve as a benchmark for judicial review. Assuming that EU law is an autonomous domestic legal system, these questions are discussed from the perspective of EU constitutional law. Here it is argued that the Court of Justice of the European Union, in evaluating these issues, focusses too much on the idea of the autonomy of EU law. In order to provide provisions of customary international law with practical effect the validity of EU law must also be able to be reviewed on the basis of international law standards.

This book covers two classic yet timely issues that have long captured the imagination of international lawyers and EU lawyers alike. The first is on what basis and to what extent customary international law (CIL) applies to international organizations (IOs) like the EU, and how they can shape it. The second is how international custom is perceived, received and incorporated into the legal system of what is undoubtedly the most developed and impactful regional IO in the history of international relations.

The EU functions as a receptor and promoter of customary international law (CIL). However, from a theoretical (and international law) perspective, the questions why and when the EU is bound by CIL still have not been answered in definite terms. This chapter argues that the EU should be afforded a similar treatment as is afforded to (newly independent) states. This is based on a close examination of its practice in the field of international humanitarian law (IHL), where the primary organization tasked with ensuring peace and security – the United Nations – has so far avoided explicitly affirming that it is bound by customary IHL. After showing that it is indeed the EU which might bear direct responsibility in the context of military operations authorized under the Common Security and Defence Policy, the chapter examines the EU’s behaviour when it comes to new regulatory efforts, its executive and operational conduct, and the CJEU’s case law. On the basis thereof, it is concluded that the EU’s practice confirms the theoretical conclusions reached, and that therefore any theoretical uncertainties on whether and why international organizations are bound by CIL might in future be answered by paying closer attention to their practice.