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15 results

  • 5 - The Identification of Customary International Law Before the Court of Justice of the European Union

  • from Part II - Looking in Between
  • Edited by Fernando Lusa Bordin, University of Cambridge, Andreas Th. Müller, Francisco Pascual-Vives, Universidad de Alcalá, Madrid
  • Book:
    The European Union and Customary International Law
    Published online:
    27 October 2022
    Print publication:
    03 November 2022, pp 123-147

  • Summary

    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.

The European Union and Customary International Law
  • Edited by Fernando Lusa Bordin, Andreas Th. Müller, Francisco Pascual-Vives
  • Published online:
    27 October 2022
    Print publication:
    03 November 2022
  • The book gathers a group of scholars interested in both public international law and EU law to cover different facets of the relationship between the European Union and customary international law. Considering the distinct perspectives taken by international law and EU law, while also looking into the space in between the two, individual chapters tackle complex questions such as whether and on what bases the European Union is bound by customary international law as a matter of international law and EU law; how the European Union contributes to the development of international custom; and how different stakeholders – the Court of Justice of the European Union, the EU's political organs and EU citizens – rely upon customary rules. The book thus offers a systematic account of the relevance of customary international law for the external relations and internal functioning of what is no doubt the most remarkable regional international organization of our time.