© The Author 2016. Oxford University Press and New York University School of Law.

All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

Gráinne de Búrca*

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 inter-
national 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 wel-
coming judicial arm of an open and internationalist European Union, there are many more com-
monalities between the approaches of the two courts than conventional depictions acknowledge.

1. Introduction
This article assesses the reception and internalization by the European Union and
the United States, and specifically by their highest courts—the Court of Justice of the

* Florence Ellinwood Allen Professor of Law, NYU. Email: grainne.deburca@nyu.edu. This article is drawn
from the findings of a longer article, International Law Before the Courts: the EU and the US Compared, 55
Va J. Int’l L. forthcoming, (2015). It has benefited from the advice of many people, in particular Mario
Mendez, Joanne Scott, and all those who provided comments at workshops held at Temple University
and at New York University Law School in 2012 and 2013. Warm thanks are due to Rosa Rafaelli,
Chris Spelman, Matteo Bonuzzi, Britta Schiebel, Emmanuelle Debouverie, and Kristof Gombeer for their
research assistance. Research funding was generously provided by the Filomen D’Agostino and Max
E. Greenberg Research Fund of NYU Law School.

I•CON (2015), Vol. 13 No. 4, 987–1007 doi:10.1093/icon/mov055

988 I•CON 13 (2015), 987–1007

European Union (CJEU) and the US Supreme Court, respectively—of international law
norms over the decade 2002–2012. Its aim is to scrutinize more closely the basis for
the general perception that, while the Supreme Court has been largely resistant to the
judicial application of international law and has blocked its internalization within the
US legal system in various ways, the CJEU on the contrary has been largely open in its
support for and embrace of international legal norms.

1.2.  US and EU support for international law: probing the comparison

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

The premise from which all of the contributions to this journal’s special issue begin
is that there is a widely perceived sharp difference between the EU and the US in their
attitudes towards, and their support for, international law and institutions. The general
perception of the US, at least since the Second World War, and despite regular changes
of administration, is as a powerful, self-interested, and often unilateralist actor in inter-
national affairs. Despite its regular resort to the use of international law as a tool of for-
eign policy, the US is perceived to be resistant to its subjection to international law norms,
often unwilling to enter multilateral international agreements, and even when it enters
such agreements, to be reluctant to ratify or internalize them by giving them domestic
legal effect. The perception is that the US rejects being subject to external—as opposed
to domestic—mechanisms of accountability, and adopts an unapologetically pick-and-
choose approach to international law and institutions, as determined by its changing
domestic political interests. In terms of its judicial branch, the US Supreme Court has
been perceived to be highly ambivalent about the judicial internalization of international
law in recent decades. Apart from the heated debate over the citation of foreign law when
interpreting the Constitution, the Supreme Court has adopted what is generally perceived
to be a highly restrictive stance towards the enforceability, or “self-executing” nature, of
international treaties,1 and to have virtually shut down the possibility of using custom-
ary international law in “alien tort” litigation.2 More generally, there is an extensive lit-
erature on US unilateralism and exceptionalism in relation to international law, as well as
a US academic literature that is skeptical of the legitimacy of international law.3
By comparison, the EU is perceived as, and officially presents itself as, an actor that
is simultaneously both a creature of international law and a promoter of international
law and institutions. The EU explicitly identifies itself in official communications as an
organization that is based upon respect for international law and institutions, pro-
motes multilateralism and transnational cooperation, and faithfully adheres to the
international rule of law.4 Far from rejecting the external imposition of international
1
Breard v. Greene, 523 U.S. 371 (1998); Director, Arizona Dept of Corrections v. LaGrand, 526 U.S. 115
(1999); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Humberto Leal Garcia v. Texas, 131 S.Ct. 2866
(2011); Medellin v. Texas, 552 U.S. 491 (2008).
2
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013).
3
Ilya Somin & John McGinnis, Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175 (2007);
Jeremy Rabkin, The Case for Sovereignty (2004).
4
See, e.g., on the EU’s commitment to the international rule of law, José Manuel Barroso, European
Commission President, The European Union and Multilateral Global Governance, Speech delivered at the
Conference at the European University Institute, Florence, June 18, 2010, available at http://europa.eu/
rapid/press-release_SPEECH-10-322_en.htm.
 Internalization of international law by the CJEU and the US Supreme Court 989

norms, the EU is often one of the lead actors sponsoring, signing, ratifying, and pro-
moting the adoption of international agreements. The terms of the EU’s constituent
treaties similarly profess a commitment to the observance of and support for interna-
tional law and institutions. Articles 3(5) and 21(1) of the Treaty on European Union,
as revised by the Lisbon Treaty in 2009,5 declare that the EU’s action on the interna-
tional scene is to be guided by respect for the principles of the UN Charter and inter-
national law, and that it shall promote multilateralism within the UN framework. As
far as perceptions of its judicial branch are concerned, the European Court of Justice

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

is seen to have played a key role in shaping this openness to international law.6 Early
on the Court adopted what has been called an ‘automatic incorporation’ approach to
international treaties,7 deeming them to be part of the EU legal order and their provi-
sions to be enforceable in domestic and EU courts at the suit of individuals.8 And even
if the ‘exceptional’ treatment of General Agreement on Tariffs and Trade (GATT)/
World Trade Organization (WTO) agreements attracted criticism,9 the more general
embrace of treaties by the Court was accompanied by a similarly open approach to
customary international law as part of EU law.10

1.2. Methodological issues
2002–2012, a relatively recent decade, was chosen as the sample period for the
purposes of this comparison, in part because the EU’s powers in the field of interna-
tional relations have developed significantly since the enactment of the Maastricht,
Amsterdam, Nice, and Lisbon Treaties. Consequently, the case law of the Court of
Justice of the European Union dealing with international law issues has become more
extensive and wider in scope since the enactment of those treaties, and more easily
comparable to that of the US Supreme Court.
The issue of judicial internalization of international law was chosen as one of the
measures of a state’s support for international law for several reasons. In the first place,
the US Constitution itself mandates the internalization at least of international treaties,
since article VI provides that treaties made by the US are part of the supreme law of

5
Consolidated Version of the Treaty on European Union, 2010 O.J. C 83/01 [hereinafter TEU post-Lisbon].

6
On the importance of the CJEU’s role in ensuring an “open approach to international law,” see Christiaan
Timmermans, The EU and Public International Law, 4 Eur. Foreign Aff. Rev. 181 (1999).
7
Mario Mendez, The Legal Effects of EU Agreements: Maximalist Treaty Enforcement and Judicial Avoidance
Techniques 17 et seq. (2013).
8
See Case 181/73, Haegeman v.  Belgium, 1974 E.C.R. 449 [hereinafter Haegeman II]; Case 87/75,
Bresciani, 1976 E.C.R. 129; and 104/81, Hauptzollamt Mainz v. C.A. Kupferberg, 1982 E.C.R. 3641.
On the primacy of international treaties over EU law, see Case C-61/94, Commission v.  Germany
(International Dairy Agreement), 1996 E.C.R. I-3989, ¶ 52.
9
For the GATT/WTO case law, see Joined Cases 21–24/72, International Fruit Co., 1972 E.C.R. 1219;
Case C-280/93, Germany v. Council, 1995 E.C.R. I-4973; and Case C-149/96, Portugal v. Council, 1999
E.C.R. I-8395.
10
See Case C-286/90, Anklagemyndigheden v. Poulsen and Diva Navigation, 1992 E.C.R. I-6019, ¶ 9; Case
C-162/96, Racke GmbH & Co. v. Hauptzollamt Mainz, 1998 E.C.R. I-3655, ¶ 46. See also JanWouters
& Dries Van Eeckhoutte, Giving Effect to Customary International Law through EC Law, in Direct Effect:
Rethinking a Classic of EC Legal Doctrine 183 (Jolande Prinssen & Annette Schrauwen eds., 2002).
990 I•CON 13 (2015), 987–1007

the land and binding on the judiciary. In the EU, on the other hand, while the founding
treaties are silent on the domestic judicial applicability of international law, other than
to provide that international treaties adopted by the EU are binding upon the EU and the
member states, the practice of the CJEU from early on has been to deem such treaties,
once ratified, to be “an integral part” of EU law.11 Given this clear early choice by the
CJEU,12 an analysis of its continuing practice in this respect provides a relevant measure
for evaluating the support of the EU judiciary for the enforcement of international law.
There are, however, a number of methodological challenges facing this compara-

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

tive project, given the very different histories and contexts of the two courts. First, the
Supreme Court has been in existence for over two centuries and has a long history of
engagement with international law over that time,13 while the EU Court is just over sixty
years old. Second, the processes for appointing judges to the two courts are very different,
with Supreme Court appointments being very much more politicized and scrutinized that
than of the CJEU. Third, the style and reasoning of the two courts is very different, due in
large part to the collegiate judgments of the CJEU and the lack of dissenting opinions.14
The richly textured individual judgments of the Supreme Court contrast with the for-
malistic and frequently minimalist rulings of the CJEU, making it difficult to know what
the views of particular judges might be on any given issue of international law. Fourth,
while the notion of separation of powers has been a firm part of US constitutional law
and discourse and has been part of a vigorous debate on the justiciability of foreign policy
questions,15 there is no clear counterpart to this doctrine in the EU context. The exclusion
of the CJEU from the field of the Common Foreign and Security Policy16 has not prevented
the Court from ruling regularly on issues which are central to EU international relations,
and on the place of international law within the EU legal order.17 Finally, the nature and
sources of their jurisdiction, and hence the number and type of cases coming before the
two courts are quite different: the Supreme Court selects the cases which come before it,
while the CJEU exercises no meaningful control over its docket.18

11
Case 181/73, Haegeman II, 1974 E.C.R. 449.
12
See Enzo Cannizzaro, The Neo-Monism of the European Legal Order, in International Law as the Law of the
European Union 35, 57 (Enzo Cannizzaro, Paolo Palchetti, & Ramses Wessels eds., 2012) who also refers to
“the adoption in the founding Treaties of a monist model”; and Pieter Jan Kuyper, It Shall Contribute to . . .
the Strict Observance and Development of International Law: The Role of the Court of Justice, in The Court of
Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case Law 589 (2013).
13
See International Law in the U.S. Supreme Court: Continuity and Change (David Sloss, Michael Ramsey, &
William Dodge eds., 2011).
14
For a discussion of these differences, see Mitchell Lasser, Judicial Deliberations (2004)
15
See, however, recently Ingrid Wuerth & Ganesh Sitaraman, The Normalization of Foreign Relations Law,
128 Harv. L. Rev. 1897 (2015).
16
Despite this exclusion by TEU post-Lisbon, supra note 5, art. 24(1), the CJEU under art. 40 TEU can
police the boundary between Common Foreign and Security Policy (CFSP) and non-CFSP matters, and
Consolidated Version of the Treaty on the Functioning of the European Union art. 275, 2008 O.J. C
115/47 [hereinafter TFEU] empowers it to review targeted sanctions adopted under the CFSP.
17
See Peter van Elsuwege & Hans Merket, The Role of the European Court of Justice in Ensuring the Unity of EU
External Representation, Centre for the Law of EU External Relations (CLEER) Working Paper 37 (2012).
18
A slight exception is in the context of the preliminary reference procedure from domestic courts, where
the Court of Justice occasionally refuses to give a ruling: see, e.g., Case C-428/93, Monin Automobiles,
1994 E.C.R. I-1707 and Case C-361/97, Nour, 1998 E.C.R. I-3101, ¶ 15.
 Internalization of international law by the CJEU and the US Supreme Court 991

Yet despite these differences, the two courts have much in common in their role
as the highest actual (in the case of the Supreme Court) or de facto (in the case of the
CJEU) constitutional court within a federal or quasi-federal political system. More spe-
cifically, each of the courts regularly hears a range of cases concerning the interna-
tional relations of the US and the EU respectively, and rules on the interpretation and
applicability of international treaties and customary international law across a wide
range of fields and issues, often involving the same or similar questions.
The article thus aims to probe the factual basis for the contrasting perceptions of

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

the approaches of the two courts to the internalization of international law. In the
next section, the question of the “internalization of international law” is divided into
a series of further questions, which have been used to analyze a survey of all the cases
which came before the two courts over the ten year period 2002–2012 raising issues
of international law.

2.  Internalization of international law: The survey

Five specific aspects of the approach of each of the two courts to the internalization
of international law have been identified, with a view to facilitating closer scrutiny of
the case law:
(1) Has the court accorded treaties primacy or direct effect (self-executing status)
within the internal legal order?
(2) What status and effect does the court give to rules and principles of customary
international law in the internal legal order?
(3) Does the court defer to or pay attention to:
(i) the interpretation of treaties or custom by the courts of other signatory
states?
(ii) the interpretation of treaties or custom by international courts and tribunals?
(4) Does the court attempt to construe or interpret domestic law in accordance with
international law?
(5) Does the court cite or give effect to other principles and norms of international
law apart from treaties and custom (e.g., decisions produced by international
organizations or general principles of international law)?

2.1.  International law cases of the US Supreme Court and the CJEU
2002–2012
A search of US Supreme Court judgments for the ten years from 2002 to 2012, using
a range of international law search terms, produced forty-two relevant results.19 In
other words, after excluding all of the results in which the terms seemed irrelevant to

19
For further detail on the methodology, numbers, and mechanics of the searches, see the longer version
of this article: Gráinne de Búrca, International Law Before the Courts: The EU and the US Compared, 55 Va
J. Int’l L. (forthcoming) (2015).
992 I•CON 13 (2015), 987–1007

the Court’s reasoning or appeared only in dissenting opinions,20 there were forty-two
judgments in which international law issues featured in the reasoning of the deci-
sion. Seven of these cases concerned the implementation and application of interna-
tional treaties in US law; six concerned rulings of the International Court of Justice
on Vienna Convention on Consular relations issues; another six concerned the laws of
war (customary international law as well as treaty) and US habeas corpus issues; four
dealt with foreign state immunity; four with jurisdiction and extraterritoriality; one
concerned the relevance of international law principles and the Convention against

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

Torture to the issue of refugee return; and there were seven other miscellaneous cases.
A search of the EU database for CJEU judgments (not including the General Court)
for 2002–2012 using the same general range of international law search terms
(although not identical terms, since the two courts do not use identical language in
dealing with international law) produced 124 relevant judgments. A  much larger
number of judgments during that period in which some reference was made to inter-
national law were excluded from the survey for a range of reasons.
First, cases involving the European Convention on Human Rights (ECHR) were not
included in the results unless they also referred to some other provisions or principles
of international law. The decision to exclude this large batch of cases was based on the
very specific nature of the EU’s relationship to the ECHR and the CJEU’s past practice
of citing the ECHR. Despite not being formally bound by the ECHR, or by the case law
of the European Court of Human Rights (ECtHR), the CJEU treats the provisions of
the ECHR as part of the “general principles” of EU law and regularly interprets and
applies provisions of the ECHR in cases arising before it. This quasi-domestic status
of the Convention makes it unsuitable for inclusion in a survey which aims to assess
the attitude of the EU Court to international law. The ECHR law’s unique status as the
basis for the general principles of EU law, and the absence of any similarly quasi-con-
stitutional source of regional law regularly used by the US Supreme Court means that
its inclusion would skew the general comparison between the CJEU and the Supreme
Court in their general approaches to international law.
Similarly, a second large batch of cases which was not included in the results, unless
they raised an additional point of international law, was the European Court’s case
law dealing with the EU’s group of bilateral association, cooperation, partnership, and
trade agreements. This network of bilateral agreements is used by the EU to pursue
varying degrees of integration with neighboring countries. The case law comprises
specialized, technical, and often repetitive cases dealing with factual disputes that
have little connection with more general international law issues, and which have no
obvious counterpart in US law. A separate project could certainly be conducted which
assesses the approach of the CJEU to the EU’s bilateral trade, association, and partner-
ship agreements, but this material would not generate the relevant insights into the
approaches of the two courts to the general corpus of international law which this
article seeks to appraise.
References to international law in dissenting opinions were excluded from the search of US case law just
20

as references to international law in the opinions of Advocates General were excluded from the search of
CJEU case law.
 Internalization of international law by the CJEU and the US Supreme Court 993

Other cases excluded from the search results for similar reasons, namely to facili-
tate meaningful comparison with the practice of the US Supreme Court include, such
as those concerning bilateral conventions between member states or the Brussels
Convention on Jurisdiction and Recognition of Judgments.
After excluding these specialized groups of EU case law from the survey, the remaining
international law cases decided during the decade 2002–2012 dealt with a wide vari-
ety of international agreements and principles. And while there remain some clear dif-
ferences between the kinds of cases decided by each court—for example, the Supreme

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

Court, unlike the CJEU, deals with more cases involving the laws of war21 and the CJEU
deals with many more cases on international trade22—the survey covers a broad range
of comparable cases arising before each of the two courts. These include cases involv-
ing copyright protection under the Berne Convention, child abduction under the Hague
Convention, extraterritorial application of antitrust and aviation regulations, the law of
the sea governing state sovereignty over land, claims for damages involving accidents
during flight under the Warsaw Convention and refugee claims invoking the Geneva
Convention, which allows for a meaningful comparison of their approach to the inter-
nalization of international law.
In the next section, a summary of the findings of the survey for each of the two
courts will be provided, followed by a brief quantitative and qualitative analysis.

2.2.  A summary of the findings: The CJEU (124 cases)

(a)  Primacy and direct effect of treaties
Out of ninety-eight cases in which the CJEU dealt with international treaties, the
Court addressed the direct enforceability, or self-executing nature, of treaty pro-
visions in fourteen cases, and ruled that the treaty provision should be directly
enforced in three of these.23 It denied the direct enforceability of treaty provisions in
eleven cases.24
The CJEU dealt with the issue of primacy or supremacy in sixteen cases. While the
Court gave effect to the primacy of international treaties over EU secondary legislation
in nine of these sixteen cases, it ruled in four of the nine that there was no conflict
21
Note, however, that the CJEU has recently begun to decide questions dealing with the laws of war. See, e.g.,
Case C-285/12, Diakité, Judgment, Jan. 30, 2014.
22
The WTO Agreements generally do not figure in US Supreme Court case law due to their effective legisla-
tive incorporation in the US by means of the Uruguay Round Agreement Act of 1994.
23
C-344/04, R. (IATA) v. Department of Transport, 2006 E.C.R. I-403; C-213/03 Pêcheurs de l’étang de
Berre, 2004 E.C.R. I-7357; and C-366/10, Air Transport Association of America v. Secretary of State for
Energy and Climate Change, Judgment, Dec. 21, 2011.
24
C-240/09, Lesoochranárske zoskupenie (“Brown Bears”), 2011 E.C.R. I-1255; C-160/09, Katsivardas
v. Ypourgos Oikonomikon, 2010 E.C.R. I-4591; C- 428/08, Monsanto Technology L.L.C. v. Cefetra B.V.,
2010 E.C.R. I-6765; C-238/06P, Develey Holding v. OHIM, 2007 E.C.R. I-9375; C-120/06, Fiamm, 2008
E.C.R. I-6513; C-245/02 Anheuser Busch, 2004 E.C.R. I-10989; C-94/02P, Biret, 2003 E.C.R. I-10565;
Joined Cases C-27/00 & 122/00, Omega Air, 2002 E.C.R. I-2569; C-491/01, British American Tobacco,
2002 E.C.R. I-11453; C-351/04, Ikea Wholesale, 2007 E.C.R. I-7723. For a case in which member states
had the option to make a provision of the Agreement on Trade-related Aspects of Intellectual Property
Rights (TRIPS) agreement directly effective under national law, see C-431/05, Merck Genéricos I, 2007
E.C.R. I-7001.
994 I•CON 13 (2015), 987–1007

between the treaty and EU law,25 and in the other five cases the EU legislation in ques-
tion had been intended to give effect to the treaty,26 or the law being challenged for
incompatibility with the treaty was a member state law.27 In the remainder of the
sixteen cases the Court recognized the primacy of international treaties in principle
but the provision in question was either deemed irrelevant to the case or unsuitable
for direct application. In all, therefore, there was no case involving an acknowledged
conflict in which the CJEU gave primacy to a treaty over a provision of internal EU law
where the internal law had not intended to implement the treaty.

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

(b)  The status and effect of customary international law?
Customary international law (CIL) was cited by the CJEU in twenty-one cases. In two
of these cases, the Court invoked and drew on CIL, concerning principles of state
responsibility in the context of loss or damage to property in international air trans-
port on the one hand, and principles of sovereignty over airspace in the context of
aviation emissions on the other, to read EU legislation in conformity with CIL.28 In
twelve cases it declared that EU law was already in conformity29 and in seven cases the
principle of CIL was deemed not to be relevant.30

(c)  Interpretation of international law by the courts of other signatory states?

The CJEU engaged in treaty interpretation in seventy-one cases, and referred to the
rules on interpretation of international law contained in the Vienna Convention on
the Law of Treaties in eleven cases.31 In no case did the Court cite or make reference
to an interpretation of the treaty in question by the courts of other signatory states.

25
Case C-335/05, Řízení Letového Provozu Č.R. v. Bundesamt für Finanzen, 2007 E.C.R. I-4307; C-344/04
R. (IATA) v. Department of Transport, 2006 E.C.R. I-403; C-311/04, Algemene Scheeps Agentuur, 2006
E.C.R. I-609; and C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011.
26
C-76/00 P, Petrotub v. Council, 2003 E.C.R. I-79; C-549/07, Friederike Wallentin-Hermann v. Alitalia,
2008, E.C.R. I-11061; C-123/09, Roeckl Sporthandschuhe GmbH, 2010 E.C.R. I-4065; C-486/06,
B.V.B.A. Van Landeghem v.  Belgische Staat, 2007 E.C.R. I-10661; and C-310/06, F.T.S. International
B.V. v. Belastingdienst—Douane West, 2007 E.C.R. I-6749.
27
C-228/06, Mehmet Soysal v. Germany, 2009 E.C.R. I-1031.
28
Cases C-63/09, Walz v. Clickair SA, 2010 E.C.R. I-423; C-366/10, Air Transport Association of America,
Judgment, Dec. 21, 2011.
29
C-410/11 Pedro Espada Sanchez v. Iberia Líneas Aéreas, Judgment, Nov. 22, 2012; C-347/10, Salemink,
Judgment, Jan. 17, 2012; C-386/08, Brita,, 2010 E.C.R. I-1289; C-135/08, Rottman,, 2010 E.C.R.
I-1449; C-203/07P, Greece v.  Commission, 2008 E.C.R. I-8161; C-118/07, Commission v.  Finland,
2009 E.C.R. I-10889; C-10/06; Bustamente Tello, 2007 E.C.R. I-10381; C-344/04 IATA and ELFAA,
2006 E.C.R. I-403; C-292/05, Lechouritou, 2007 E.C.R. I-102; C-446/03, Marks & Spencer, 2005
E.C.R. I-10837; C-347/03, Regione autonoma Friuli-Venezia Giulia and ERSA, 2005 E.C.R. I-285; and
C-70/09, Hengartner and Gasser, 2010 E.C.R. I-7233.
30
C-581/11P, Muhamad Mugraby v.  Council, Judgment, July 12, 2012; C-154/11, Ahmed Mahamdia
v.  République Algérienne, Judgment, July 9, 2012; C-411/10, N.S.  v.  Home Secretary, 2011 E.C.R.
I-13905; C-364/10, Hungary v.  Slovak Republic, Judgment, Oct. 16, 2012; C-352/09, Thyssenkrupp
Nirosta v. Commission, 2011 E.C.R. I-2359; C-402/05 P and C-415/05, P Kadi, and C-403/06P, Ayadi,
Judgment, Dec. 3, 2009; C-308/06, Intertanko, 2008 E.C.R. I-4057.
31
C-10/06, Bustamente Tello, 2007 E.C.R. I-10381; C-233/02, France v. Commission, 2004 E.C.R. I-2759;
Case C-410/11, Pedro Espada Sanchez, Judgment, Nov. 22, 2012; C-70/09, Hengartner and Gasser,
 Internalization of international law by the CJEU and the US Supreme Court 995

(d)  Interpretation of international law by international courts and tribunals?

The CJEU referred to decisions of international courts or tribunals in nine cases, three
of which were decisions of the International Court of Justice (ICJ)32 and six of which
were rulings of the WTO dispute settlement body.33

(e)  Interpretation in conformity with international law?34

The CJEU interpreted EU law in the light of international law in fifty-six cases, including

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

in light of the Arhus Convention, Berne Convention for the Protection of Literary and
Artistic works, Montreal Convention on international air carriage, the Geneva Convention
for the Protection of Refugees, the Agreement on Trade-related Aspects of Intellectual
Property Rights, General Agreement on Trade in Services, Anti-Dumping and other WTO
agreements, the Convention on the Rights of the Child, the Cartagena Agreement, the
Harmonized System (Customs) Convention, Paris Convention on Industrial Property
Protection, the Vienna Convention on the law of treaties, and the Convention on Biological
Diversity.35 In thirty-seven of these cases, the Court used international law to support its
interpretation of a provision of EU law, and in the remaining nineteen cases the Court
declared it a requirement in principle for EU law to be construed in harmony with the
norm of international law. In three of the cases, the Court stated that the principle of har-
monious interpretation would not be appropriate if the interpretation in conformity with
international law would run counter to the EU law’s object and purpose.36

(f)  Other principles and norms of international law?

The CJEU referred to other norms and principles in twelve out of 124 cases, mostly
involving UN Security Council Resolutions, International Civil Aviation Authority
Resolutions and International Labor Organization Conventions.

2010 E.C.R. I-7233; C-264/09, Commission v. Slovakia, 2011 E.C.R. I-8065; C-352/09, Thyssenkrupp
Nirosta v. Commission, 2011 E.C.R. I-2359; C-386/08, Brita, 2010 E.C.R. I-1289; C-347/03, Regione
autonoma Friuli-Venezia Giulia and ERSA, 2005 E.C.R. I-285; C-37/00, Weber v.  Universal Ogden
Services, 2002 E.C.R. I-122; C-118/07, Commission v. Finland, 2009 E.C.R. I-10889; and C-344/04,
IATA and ELFAA, 2006 E.C.R. I-403.
32
See C-37/00 Weber v.  Universal Ogden Services, 2002 E.C.R. I-2013; C-347/10, Salemink, Jan. 17,
2012; and C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011.
33
C-245/02 Anheuser Busch, 2004 E.C.R. I-10989; C-120/06, Fiamm, 2008 I-6513; C-94/02P, Biret,
2003 E.C.R. I-10565; C-377/02, Van Parys, 2005 I-1465; C-351/04, Ikea Wholesale, 2006 E.C.R.
I-7723; and C-310/06, FTS International, 2007 E.C.R. I-6749.
34
The EU principle of harmonious interpretation in the context of international law specifies that the EU
must respect international law and that EU law should be interpreted in the light of international law. See,
e.g., C-286/90, Poulsen v. Diva Navigation, 1992 E.C.R. I-6019, ¶ 9.
35
There may be other cases involving “unacknowledged” consistent or harmonious interpretation in
which the CJEU does not cite the international law provision, as described by Mendez, supra note 7, at
230. See, e.g., C-310/06, FTS International, 2007 E.C.R. I-6749. There are also cases in which the CJEU
insists on the interpretation of national law, rather than EU law, in the light of international agreements,
notably C-240/09, Lesoochranárske zoskupenie (Brown Bears), 2011 E.C.R. I-1255.

36
See C-2/07, Abraham v Région Wallonie, 2008 E.C.R. I- 1197; C-35/05, Řízení Letového Provozu, 2007 E.C.R.
I-2425; C-28/04, Tods’s Spa, 2005 E.C.R. I-5781 and C-301/08, Bogiatzi, 2009 E.C.R. I-10185, paras 41–42.
996 I•CON 13 (2015), 987–1007

2.3.  A summary of the findings: The US Supreme Court (42 cases)

(a)  Primacy and direct effect of treaties
The Court dealt with international treaties in fifteen cases.37 Of these, it addressed
the issue of direct enforceability, or self-execution, in two cases, and the Court denied
direct enforceability in both of these cases.38 The Court recognized the primacy of
international treaties in principle in these two cases, but denied the direct effect of the
treaty provisions in question.

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

(b)  The status and effect of customary international law?
Customary international law was cited by the Supreme Court in seven cases. In
one case, the Court used CIL to inform the interpretation of a US statute and
to construe it in conformity with international law.39 In three cases, the Court
declared that US law was already in conformity with custom,40 and in one case
the principle of customary international law concerning the reservation of mat-
ters internal to a ship to the authority of the flag state was deemed not to be of
relevance.41

(c)  Interpretation of international law by the courts of other signatory states?

The Court interpreted treaties in ten cases, and in four of these it referred to the inter-
pretation adopted by the courts of other signatory states.42

(d)  Interpretation of international law by international courts and tribunals?

The Court referred to decisions of international courts in seven cases, although in four
of these the rulings of the ICJ were said to deserve only “respectful consideration.”43
In three of the seven cases the Court relied on international rulings—by the ICJ, the

37
Abbott vs. Abbott, 130 S.Ct. 1983 (2010); Sosa v.  Alvarez-Machain 542 U.S. 692 (2004); Golan
v. Holder 132 S.Ct. 873 (2012); Gonzales v. O Centro Espirita 546 U.S. 418 (2006); Alaska v. U.S. 545 U.S.
75 (2005); Olympic Airways v. Husain, 540 U.S. 644 (2004); Sanchez-Llamas v. Oregon, 548 U.S.331
(2006); Medellin v. Texas I, 552 U.S. 491 (2008); Humberto Leal Garcia v. Texas, 131 S.Ct. 2866 (2011);
Permanent Mission of India to the UN v. City of New York, 555 U.S. 193 (2007); United States v. Santos,
553 U.S. 507 (2008); Spector v. Norwegian Cruise Line Ltd., 545 US 119 (2005); Kawasaki Kisen Kaisha
Ltd. v.  Regal-Beloit Corp.  130 U.S. 2433 (2010); Graham v Florida 130 S.Ct. 2011 (2010); Grutter
v. Bollinger 539 U.S. 306 (2003).
38
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) and Medellin v. Texas 552 U.S. 491 (2008).
39
Hamdan v. Rumsfeld, 126 U.S. 2749 (2006). June 29, 2006.
40
Alaska v. United States, 545 U.S. 475 (2005); Hoffman-la-Roche v. Empagram, 542 U.S. 155 (2004); and
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
41
Spector v. Norwegian Cruise, 125 U.S. 2169 (2005).
42
Those four were Abbott v. Abbott, 130 S.Ct. 198 (2010); Permanent Mission of India to the UN v. City of
New York, 555 U.S. 193 (2007); Medellin v. Texas 552 U.S. 491 (2008); and Sanchez-Llamas v. Oregon,
548 U.S. 331 (2006).
43
These were the cases concerning the right to consular notification under the Vienna Convention
on Consular Relations: Torres v. Mullin, 540 U.S. 1035 (2003); Sanchez-Llamas v. Oregon, 548 U.S.
331 (2006); Medellin v. Texas, 552 U.S. 491 (2008); and Humberto Leal Garcia v. Texas, 131 U.S.
2866 (2011).
 Internalization of international law by the CJEU and the US Supreme Court 997

International Criminal Tribunal for the Former Yugoslavia (ICTY), and the Iran–US
Claims Tribunal—as part of or in support of its judgment.44

(e)  Interpretation in conformity with international law?

The Court construed US law in harmony with international law following the
Charming Betsy principle in six cases.45,46 In one case the Supreme Court expressly
rejected the appropriateness of using the Charming Betsy principle.47 In five of the six

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

cases, the Court used international law mainly as support for its existing interpreta-
tion of US law.

(f)  Other principles and norms of international law?

The Court cited other norms and principles of international law in two cases.48

3.  Quantitative observations on the survey results

Given the limited nature and quantity of the data involved in this study, a proper
quantitative analysis is not possible. Nevertheless, despite the statistical limitations of
the data, some interesting observations can be made on the basis of a comparison of
the two sets of figures. One notable feature of the findings is the roughly similar pro-
portion of the comparable judgments given by each court during the relevant period
in which international law was internalized and applied.
To begin with the status and effect of treaties, there is no significant difference
between the proportion of the cases in which the two courts considered and denied
the direct judicial enforceability of treaty provisions. For the CJEU, this was in eleven
out of fourteen cases, and the cases in which a treaty provision was held to be directly
enforceable were ones in which the court found there was no conflict between the
treaty provision and the internal EU law,49 or the provision was being enforced against

44
The Supreme Court cited the ICJ in Alaska v. United States, 545 U.S. 475 (2005), the Iran–US Claims
Tribunal in Ministry of Defense of Iran v. Elahi, 556 U.S. 366 (2009) and the ICTY and International
Military Tribunal at Nuremberg in Hamdan v. Rumsfeld, 126 U.S. 2749 (2006).
45
The Charming Betsy principle derives from Murray v. The Charming Betsy, 6 U.S. 2 Cranch 64 (1804),
and maintains that an act of Congress ought never to be construed to violate the law of nations if any
other possible construction remains.
46
These were Spector v.  Norwegian Cruise, 125 U.S. 2169 (2005); Hoffman-la-Roche v.  Empagram,
542 U.S. 155 (2004); Hamdan v. Rumsfeld. 126 U.S. 2749 (2006); Gonzales v. O Centro Espirito, 126 U.S.
1211 (2006); Golan v Holder (132) US 872 (2012), and to a certain extent Sosa v. Alvarez Machain
542 U.S. 692 (2004).
47
See Samantar v. Yousef, 130 U.S. 2278, 14–15, n. 14 (2010).
48
See Hamdan v.  Rumsfeld, 126 U.S. 2749 on the commentaries of the International Committee of the
Red Cross on the Geneva Conventions. The concurring opinion of Breyer J in Sosa v. Alvarez Machain,
542 U.S. 692 (2004) cited the Final Report on the Exercise of Universal Jurisdiction of the International
Law Association.
49
C-344/04, R.  (IATA) v.  Department of Transport, 2006 E.C.R. I-403 on the Montreal Convention on
International air carriage, C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011
on the Open Skies agreement.
998 I•CON 13 (2015), 987–1007

a member state.50 For the Supreme Court, the direct judicial enforceability of a treaty
provision was rejected in each of the two cases in which it was raised, and where there
would have been a conflict between the domestic law in question and the international
treaty.51 As far as the primacy of treaties over legislation is concerned, the primacy of
treaties was accepted in principle by the Supreme Court in two of the sixteen cases
involving treaties although it was not given effect in those cases; while the issue of
primacy was raised before the CJEU in sixteen out of ninety-eight cases involving trea-
ties, and the Court recognized the primacy of international treaties over EU legislation

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

in nine of these sixteen, although in none of these cases did the court acknowledge a
conflict between the treaty and the EU legislation.
The picture is similar as far as customary international law is concerned: there is no sig-
nificant difference between the proportion of cases in which customary international law
was cited (twenty-one out of 124 for the CJEU, and seven out of forty-two for the Supreme
Court), nor in the proportion of these cases in which customary law was used to interpret
domestic law (two out of twenty-one for the ECJ, and one out of seven for the Supreme Court)
or the proportion of cases in which domestic law was said to be already in conformity with
CIL (twelve out of twenty-one for the CJEU and three out of seven for the Supreme Court).52
The CJEU did not refer in any case to the interpretations of international treaties or inter-
national law by the courts of other states, while the Supreme Court did so in four cases.53
The Supreme Court also cited more frequently to judgments of international courts or tri-
bunals (seven out of forty-two for the Supreme Court and nine out of 124 for the CJEU).54
Finally, as far as the use of the “harmonious interpretation,” or “Charming Betsy,”
principle is concerned, the proportion of international law cases in which this inter-
pretative approach was used by each court is broadly similar. The CJEU construed EU
law in harmony with international law in sixteen out of 124 cases, used international
law to confirm or support its interpretation of EU law in thirty-seven out of 124 cases,
and rejected the appropriateness of harmonious interpretation in three out of 124
cases.55 The Supreme Court construed domestic law in the light of international law
in six out of forty-two cases, using international law to confirm or support its inter-
pretation of domestic law in five of these cases, and rejected the appropriateness of the
Charming Betsy principle in one case.

4.  Qualitative observations on the survey results

While these numbers do not illuminate the context or substantive significance of the
various cases involved, they are interesting in themselves. However, a more qualitative

50
C-213/03, Pêcheurs de l’étang de Berre, 2004 E.C.R. I-7357.
51
See supra note 38.
52
See supra notes 29 and 40.
53
Abbott v.  Abbott, 130 U.S. 1983 (2010); Sanchez-Llamas v.  Oregon, 548 U.S. 331 (2006); Medellin
v. Texas, 552 U.S. 491 (2008); and Permanent Mission of India to the UN v. City of New York, 127 U.S.
2352 (2007).
54
See supra notes 32, 33, 43, and 44.
55
See supra 36.
 Internalization of international law by the CJEU and the US Supreme Court 999

analysis of some of the most salient cases is needed to complement the quantitative
picture. While many of the cases surveyed dealt with international law issues which
attracted little attention beyond those involved in the case, there was a small number
of high-profile cases involving significant political stakes. These latter cases deserve
closer qualitative analysis not least because they are generally cases in which inter-
national law norms are at odds with important domestic laws or policies, and can be
seen as outer-limit test cases for the courts’ willingness to enforce compliance with
international law.

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

4.1.  US Supreme Court
Beginning with the Supreme Court, there were three main clusters of well-known
case law within the sample of forty-two. These are the cases dealing with the Vienna
Convention on Consular Relations (VCCR), those dealing with the Alien Tort Statute,
and a group of post-9/11 cases dealing with the laws of war. The VCCR cases probably
fit best with the conventional view of the US and its courts as resistant to the accept­
ance or imposition of international obligations.56 The Court in Medellin in particular
gave a forceful ruling on the question whether international treaties could be treated
as self-executing, introducing something akin to a strong presumption against self-
execution. Further, the Supreme Court decided that domestic courts do not have an
obligation to comply with the judgment of the International Court of Justice, which
had ruled that the US courts should “review and reconsider” Medellin’s case following
the violation of his consular notification rights. This was because the judgments of
the ICJ are also not “self-executing” and merely create an obligation on the US under
Article 94 of the UN Charter to comply. This group of rulings reflects a judicial deter-
mination to prevent various international law measures—whether the VCCR, the UN
Charter or the rulings of the ICJ—from becoming part of domestic law without unam-
biguous Congressional action.57
The second well-known cluster of Supreme Court cases relevant to the internal-
ization of international law concerns the Alien Tort Statute (ATS). As with the con-
sular relations cases, the Court has been perceived in the ATS cases to have resisted
the integration of international law (and particularly international human rights
law) within US law. Nevertheless, although the cases have significantly limited the
extraterritorial scope of the statute and the range of international law norms to
which it can refer, the Court did not reject the use of contemporary international
law as part of the ATS. While narrowing the scope of the ATS by comparison with
the expansive earlier approach,58 the Supreme Court nevertheless confirmed that

56
See Breard v. Greene, 523 U.S. 371 (1998); Director, Arizona Dept of Corrections v. LaGrand, 526 U.S.
115 (1999); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Humberto Leal Garcia v. Texas, 131 S.Ct.
2866 (2011); Medellin v. Texas, 552 U.S. 491 (2008).
57
For a few of the many commentaries on Medellin, see Curtis A. Bradley, Self-Execution and Treaty Duality,
(2008) Sup. Ct. Rev. 131 (2008) and Carlos M. Vázquez, Treaties as Law of the Land: The Supremacy Clause
and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008).
58
Filartiga v. Pena-Irala, 630 F.2d 876 (1980).
1000 I•CON 13 (2015), 987–1007

the eighteenth-century statute could still be used to bring tort actions for viola-
tion of customary international law norms, including contemporary international
law norms which did not exist and were not contemplated when the statute was
adopted.59 The later ruling in Kiobel has since sharply limited the extraterritorial
application of the ATS, a move which is, however, not out of line with international
trends requiring a domestic link to ground extraterritorial human rights civil or
criminal jurisdiction.60
The third high-profile group of Supreme Court cases dealing with international

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

law over the decade 2002–2012 concerned the availability of habeas corpus and the
extraterritorial extension of constitutional protections in the US conflict against Al
Qaeda. In Hamdan, the majority of the Court found a trial by military commission to
be in violation of Common Article 3 of the Geneva Conventions, and the plurality of
four judges also ruled that article 75 of Protocol I to the Geneva Convention, which
the US had not ratified, was applicable to the US as customary international law.61
Similarly, in Hamdi, the Court invoked the Third Geneva Convention and the “estab-
lished principle of the law of war that detention may last no longer than active hostili-
ties” to question the legality of the government’s continued detention of a citizen as
“enemy combatant.”62
These groups of cases indicate a range of approaches by the Supreme Court towards
different kinds of international law claim in a variety of high-profile and politicized
cases involving international law-based challenges to cogent US interests. They range
from firm resistance to the direct enforcement of a ruling of the ICJ in Medellin, to a
very circumscribed affirmation of the role of contemporary customary international
law as part of the Alien Tort Statute, to the integration of elements of the laws of war
into US law in post-9/11 detention cases.
Apart from these three high-profile groups of cases, the Supreme Court gave a
range of other interesting though less widely known rulings involving international
law, applying the principle of harmonious interpretation and citing international
judgments.63
In sum, the approach of the US Supreme Court with regard to the internalization
of international law has been far from one-dimensional over the decade 2002–2012,
and despite the trenchant judgment in the high-profile Medellin case, the overall body
of case law concerning international law, including the most salient and politically
controversial cases, cannot readily be described as either resistant to or open to the
internalization of international norms.

59
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
60
Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013).
61
Hamdan v. Rumsfeld, 126 U.S. 2749 (2006).
62
Hamdi v. Rumsfeld 542 US 507 (2004).
63
See Samantar v. Yousef, 560 U.S. 305, 320 (2010); Permanent Mission of India to the United Nations
v. City of New York, 555 U.S. 193, 199 (2007); Republic of Austria v. Altmann, 541 U.S. 677 (2004);
Golan v. Holder, 132 U.S. 872 (2012); Gonzales v. O Centro Espirita, 546 U.S. 418 (2006); Alaska v. United
States, 545 U.S. 475 (2005); Olympic Airways v. Husain, 540 U.S. 644 (2004); Abbott v. Abbott, 130 U.S.
1983 (2010).
 Internalization of international law by the CJEU and the US Supreme Court 1001

4.2.  The Court of Justice of the European Union

While the European Court, like the Supreme Court, has heard many cases during the
period in question involving applications of international law which have attracted
little attention, it has also given judgment in a stream of high-profile cases involving
issues such as extraterritorial climate change regulation, UN anti-terrorist sanctions,
liability for marine pollution and for violation of international trade rules.64 Strikingly,
in contrast to the embrace of international law by the EU Court in earlier decades

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

described above, several of these more recent cases have displayed a considerably more
cautious approach to the internalization of international law. Notably, the cases in
which the Court has continued to be receptive to international law are primarily those
in which international law is being enforced against member states rather than the EU.
When the EU Court gave its now-famous Kadi I judgment in 2008, invalidating
(provisionally) EU regulations which were adopted to implement binding UN Security
Council resolutions, reactions to the case by academics and members of the human
rights community were overwhelmingly positive.65 The Court’s ruling that interna-
tional law could not be given effect within the EU legal order if it violated the EU’s basic
values and principles, including due process, even if the international law in ques-
tion was a UN Security Council Resolution or the UN Charter itself, met with wide-
spread praise. Critical comments from a minority of observers, who were surprised
by the strong emphasis in the Court’s judgment on the EU’s constitutional autonomy
from the international legal order and the Court’s lack of engagement with inter-
national law norms in the case,66 were strongly rebutted by others who applauded
the CJEU’s challenge to the Security Council sanction system’s lack of due process.67
However, a series of other significant rulings by the CJEU, some shortly before and
others since Kadi I, lend support to the arguments of the minority that even though
the Kadi ruling mounted a welcome challenge to the UN Security Council (UNSC) ter-
rorist listing system, it also represented an important change in tone and direction in
the Court’s approach to international law.68 No longer did the GATT/WTO case law
in which the CJEU had persistently denied the direct enforceability of provisions of
GATT/WTO seem like an anomaly, to be explained by the peculiarities of the dispute

64
These cases include WTO-related cases such as C-121/06 P, FIAMM and Giorgio Fedon & Figli v. Council
and Commission, 2008 E.C.R. I-6513, but also the cases of C-188/07, Commune de Mesquer, 2007
E.C.R. I-4501; C-308/06, Intertanko v. Secretary of State for Transport, 2008 ECR I-4057; C-402/05
P and C-415/05, P Kadi and Al Barakaat International Foundation v. Council and Commission (Kadi I),
2008 E.C.R. I-6351; and C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011.
65
For an overview of academic reactions to the Kadi I ruling, see Sara Poli & MariaTzanou, The Kadi Rulings:
A Survey of the Literature, 28 Yb Eur. L. 533 (2008). See also the subsequent CJEU ruling in Joined Cases
C-584/10 P, C-593/10 P, and C-595/10 P, Commission v. Kadi, Judgment, July 18, 2013.
66
Joseph H.H.Weiler, Kadi—Europe’s Medellin?, 19 Eur. J. Int’l L. 237 (2009); Gráinne de Búrca, The EU, the
European Court of Justice and the International Legal Order after Kadi, 51 Harv. J. Int’l L. 1 (2010).
67
See, e.g., Piet Eeckhout, EU External Relations Law 414 et seq. (2d ed. 2012). For an argument that there
was nothing particularly surprising in the Kadi case, see Bruno De Witte, European Union Law: How
Autonomous is its Legal Order?, 65 Zeitschrift für öffentliches Recht 150 (2010).
68
Gráinne de Búrca, The European Courts and the Security Council: Between Dédoublement Fonctionnel and
Balancing of Values, 20 Eur. J. Int’l L. 853 (2009). For a contrary view, see De Witte, supra note 67.
1002 I•CON 13 (2015), 987–1007

settlement system established by that regime.69 Instead, it should be viewed as part of

a series of judgments in which the CJEU has increasingly restricted the invocability
and enforceability of a range of international law agreements and norms. In place
of the early embrace of international law, a rather different approach is evident in
more recent cases which involve challenges to EU action. Apart from Kadi, other such
notable rulings include Intertanko on the Convention on the Law of the Sea and the
Marpol Convention;70 Commune de Mesquer on the Convention on Civil Liability for
Oil Pollution;71 the so-called Aviation Emissions case on the Chicago Convention on

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

Civil Aviation, and the Kyoto Protocol to the UN Framework Convention on Climate
Change.72 In various ways, these cases show the Court adopting a more cautious
approach to the internalization of international law than in its earlier case law.73
Greater emphasis is now placed on the constitutional autonomy of the EU,74 the doc-
trine of functional succession of the EU to the international obligations of the member
states has been narrowed,75 and a range of more stringent conditions on the entry
into EU law of international law norms has been set.76 In each of these cases the CJEU
blocked the application of a range of international treaties which were being invoked
to challenge EU laws.77
While these developments do not necessarily support a strong conclusion that the
CJEU has become skeptical of the value of international law, they certainly suggest

69
The leading cases are Joined Cases 21–24/72, International Fruit Company, 1972 E.C.R. 1219;
C-149/96, Portugal v. Council, 1999 E.C.R. I-8395; and C–280/93, Germany v. Council, 1994 E.C.R.
I-4973; and more recently C-351/04 Ikea Wholesale, 2007 E.C.R. I-7723; C-377/02, Van Parys, 2005
E.C.R. I-1465; and Joined Cases C-120 & 121/06, FIAMM and Fedon, 2008 E.C.R. I-6513.
70
C-308/06, Intertanko, 2008 E.C.R. I-4057.
71
C-188/07, Commune de Mesquer, 2007 E.C.R. I-4501.
72
C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011.
73
For some recent literature commenting on this now undeniable trend, see Ramses Wessel & Steven
Blockmans, Between Autonomy and Dependence: the EU Legal Order Under the Influence of International
Organizations (2013); in particular the contributions by Jan Wouters & Jed Odermatt; Jan Willem Van
Rossem; and Cristina Eckes. See also Ramses Wessel, Reconsidering the Relationship Between International
Law and EU Law: Towards a Content-Based Approach?, in International Law as Law of the European Union
7 (Enzo Cannizzaro, Paolo Palchetti, & Ramses Wessel, 2012); Jan Klabbers, The Validity of EU Norms
Conflicting with International Obligations, in International Law as Law of the European Union 111; and Jan
Willem Van Rossem, The EU at Crossroads: A Constitutional Inquiry into the Way International Law is Received
within the EU Legal Order, in International Law as Law of the European Union 59.
74
See De Witte, supra note 67, and Jan Willem Van Rossem, The Autonomy of the EU: More is Less?, in Wessel
& Blockmans, supra note 63, 13.
75
The earlier and apparently flexible doctrine of functional succession articulated in Joined Cases
21–24/72, International Fruit Company, 1972 E.C.R. 1219 has since been confined by the ECJ in
C-188/07, Commune de Mesquer, 2007 E.C.R. I-4501; C-301/08, Bogiatzi, 2009 E.C.R. I-10185;
and C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011. For a critique, see Jan
Wouters, Jed Odermatt and Thomas Ramopoulos, Worlds Apart? Comparing the Approaches of the European
Court of Justice and the EU Legislature to International Law, Leuven Center for Global Governance Studies
Working Paper 96/2012.
76
See Cannizzarro, supra note 12, at 35.
77
In C-366/10, Air Transport Association of America, Judgment, Dec. 21, 2011, however, the CJEU
allowed customary international law and the EU–US Open Skies Agreement to be invoked to challenge
the EU Directive, but none of the challenges were successful.
 Internalization of international law by the CJEU and the US Supreme Court 1003

that earlier accounts of EU judicial openness to the enforcement of international law

should be significantly qualified. The CJEU has undeniably become more concerned
with the internal constitutional unity of the EU and the external autonomy of its legal
order from the international legal order. The Court is increasingly careful to protect
the room for maneuver of the legislative and indeed the executive branches of the EU,
far more so than of the legislative branches of the member states,78 and to protect its
own institutional role and autonomy in relation to other international organizations
and their rules.79

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

There seem to be a number of different reasons for this evolution. The external rela-
tions case law of the European Court has grown, and the instances in which it engages
with international law are no longer mainly occasions for the CJEU to insist on the
enforcement against the member states of bilateral trade agreements concluded by
the EU,80 nor are they primarily symbolic occasions to highlight the EU’s open inter-
national character as a legal system. Instead, the international law cases coming
before the Court have increasingly highlighted tensions between the way the EU has
approached important public policy issues—whether on climate change, marine pol-
lution or biotechnology—and the treatment of those same issues under other bodies
of international law or by other international organizations. Perhaps most crucially,
they no longer concern only or mainly the enforcement of international law against
member states, but instead also involve challenges to EU legislation for non-compli-
ance with a range of international treaties and customary international law. In many
of these cases in which the Court prevents the successful invocation of international
norms, we see that its reasoning reflects and supports the submissions made by the EU
institutions and sometimes member states intervening in the litigation.81
In the second place, the Court’s preoccupation, during the first few decades of
the EU’s existence, was with strengthening the internal constitutional system, and
emphasizing the primacy of EU law over national law. Apart from its famous ERTA line
of case law affirming the external law-making competences of the EU, the Court paid
significantly less attention to the relationship between EU law and international law
than it did to the relationship between EU law and national law. Nevertheless, when
the relationship between EU and international law was raised before the Court, the
terms of its rulings suggested a broadly monist and hierarchical conception of this
relationship.82 The picture of the EU legal system which the Court was shaping in the
first four decades of its existence was of a “new legal order” of constitutional law on
the internal level with a clear primacy of EU law over national law, but an open and

78
See Mendez, supra note 7, and Christina Eckes, International Law as the Law of the EU: The Role of the
European Court of Justice, in International Law as the Law of the EU, supra note 76, at 353.
79
For a strange case decided after the 2002–2012 period covered by this survey, in which the CJEU deemed
the provisions of the UN Convention on the Rights of Persons with Disabilities—despite the fact that it is
a treaty concerned with the human rights of individuals—to be “unconditional or sufficiently precise” to
enable them to be used to assess the validity of the definition of “disability” in EU Directive 2000/78: See
C-363/12, Z. v. A Government Department, Judgment, Mar. 18, 2014, ¶¶ 84–90.
80
See Mendez, supra note 7.
81
See id. chs 4–6, and esp. in the “Concluding Assessment” of ch 6.
82
See Cannizzarro, supra note 12, and Kuyper, supra note 12.
1004 I•CON 13 (2015), 987–1007

internationalist legal order on the external level, with primacy of international law
and international agreements signed by the EU over EU legislation and member state
legislation. Since then, however, it seems that the expansion of the EU’s activities, and
in particular the growth in its international engagement in recent decades, have led
the Court to revise aspects of this picture. The stream of case law dealing with interna-
tional law over the past decade and a half, much of which concerns international-law-
based challenges to EU legislation and action, reflects a significantly more qualified
treatment of international law, and a more pronounced emphasis on the constitu-

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

tional autonomy of the EU vis-à-vis the international legal order.

5. Conclusion
Perhaps unsurprisingly, the comparison carried out of the approaches of the US
Supreme Court and the European Court towards the internalization of international
law between 2002 and 2012 has revealed a significantly more nuanced picture than
conventional assumptions of a skeptical Supreme Court and an internationalist EU
Court might suggest.
In the first place, while the number of cases dealing with questions of international
law decided by each of the two courts during that period was very different, both
courts chose to internalize international law norms in roughly the same proportion
of the international law cases they heard.
Second, the Supreme Court did not consistently block the internalization of interna-
tional law, and cannot accurately be described as wholly skeptical towards the applica-
tion of international law as part of US law. Despite introducing a strong presumption
against the self-executing nature of treaties, the Supreme Court also regularly invoked
international law to influence some aspect of a case in situations not involving a direct
challenge to US law or policy. However, just as the CJEU did, the Supreme Court gener-
ally resisted the internalization of an international norm where it was used to mount
a challenge to US law or policy. Both courts, in other words, regularly protect their
legislature from challenges based on international law.
Thirdly, the approach of the CJEU has changed in recent years from its earlier
and exceptionally open approach to a considerably more cautious and conditional
approach, except in cases in which it is enforcing international law against member
states. Further, unlike the US Supreme Court which occasionally cites the judgments
of other national courts, the CJEU never does so—neither the courts of states within
or outside the EU—and only rarely cites the judgments of international courts.
To that extent, the contrast between the approaches of the two courts towards
the internalization of international law has been exaggerated, and rather than the
Supreme Court representing the skeptical judicial arm of an internationally exception-
alist United States and the CJEU representing the embracing judicial arm of an open
and internationalist European Union, there are many more commonalities between
the approaches of the two courts than the conventional depiction acknowledges.
Nonetheless, there are unquestionably differences between the ways in which the
two courts engage with and internalize international law within their respective
 Internalization of international law by the CJEU and the US Supreme Court 1005

domestic orders. In particular, the language and reasoning used by the courts to reach
their respective conclusions about the role and applicability of international law is
quite different. Even while it has imposed conditions for the reception of international
treaties into the EU legal order, the European Court nevertheless has continued to
declare that international treaties concluded by the EU or to which the EU has suc-
ceeded are “an integral part” of EU law. Further, customary international law is regu-
larly interpreted and applied by the Court as an “integral part” of EU law.83 Finally, the
CJEU, unlike the Supreme Court, insists on the enforcement by the member states (as

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

opposed to by the EU itself) of international agreements entered by the EU.84
The language of the US Supreme Court, by comparison, is much more qualified.
The Supreme Court does not describe international law as an integral part of US
law, despite the terms of Article VI of the US Constitution. Similarly, while the Court
presents the “Charming Betsy” principle as a canon of statutory interpretation
reflecting the assumed intention of the legislature not to violate international law,
the principle of harmonious interpretation of EU law in the light of international
law is said by the CJEU to follow from the primacy of international law over EU leg-
islation,85 and more generally, from the obligation of the EU to respect international
law in the exercise of its powers.86 The Supreme Court links the internalization of
international law to congressional intent, whereas the CJEU links it to a broader
obligation on the EU to comply with international law. The Supreme Court’s judicial
discourse on the internalization of international law fits with a political discourse
on US sovereignty and independence within which international law is understood
as a voluntarily accepted instrument of US law and policy,87 while the CJEU’s fits
with an official EU discourse of the EU as a committed adherent to and promoter of
international law.88
It has also been suggested that there is a difference between the Supreme Court’s
exclusion of international law to protect state prerogatives in the Medellin line of case
law, and the CJEU’s exclusion of international law to protect EU legislative powers in
various cases. In rulings such as Intertanko and Aviation Emissions, the CJEU argu-
ably blocked the application of international norms to facilitate the EU legislature in
pressing for higher anti-pollution standards than the international lowest common

83
See, e.g., C-135/08, Rottman, 2010 E.C.R. I-1449; C-386/08, Brita, 2010 E.C.R. I-1289; C-154/11,
Ahmed Mahamdia, Judgment, July 19, 2012; and C-364/10, Hungary v.  Slovak Republic, Judgment,
Oct. 16, 2012.
84
See C-240/09, Lesoochranárske zoskupenie (Brown Bears), 2011 E.C.R. I-1255; C-228/06, Soysal
and Savatli v. Germany, 2009 E.C.R. I-1031; and C-213/03, Pêcheurs de l’étang de Berre, 2004 E.C.R.
I-7357.
85
See C-61/94 Commission v.  Germany, 1996 E.C.R. I-3989, ¶ 52; and C-228/06, Soysal and Savatli
v. Germany, 2009 E.C.R. I-1031, ¶ 59.
86
See C-286/90, Poulsen v.  Diva Navigation, 1992 E.C.R. I-6019, ¶ 9; and C-366/10, Air Transport
Association of America, Judgment, Dec. 21, 2011, ¶ 123.
87
See Nico Krisch, Weak as Constraint, Strong as Tool: The Place of International Law in US Foreign Policy, in
Unilateralism and U.S. Foreign Policy: International Perspectives 41(David Malone & Yuen Foong Khong
eds., 2003). See also Andrea Bianchi, International Law and US Courts: The Myth of Lohengrin, 15 Eur.
J. Int’l L. 751 (2004).
88
Supra, nn. 4–10.
1006 I•CON 13 (2015), 987–1007

denominator,89 while in targeted sanctions cases such as Kadi the CJEU was seeking to
protect due process standards against repressive international executive action in the
form of a Security Council resolution.90 According to this argument the CJEU, while
resisting the internalization of certain international law norms, is in fact support-
ing efforts to develop international law in a different direction, whereas the Supreme
Court’s exclusion of international law is rarely prompted by a desire to support inter-
national initiatives by the US Congress or executive branch. Yet while there is some
force to this argument as far as certain CJEU rulings are concerned, there are vari-

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020

ous other rulings, including the WTO cases, which cannot so easily be explained in
this way,91 and in which the CJEU resisted the internalization of international law for
similar reasons to those presumably animating many of the Supreme Court’s rulings;
for example, to protect the EU’s legislative freedom to pursue its economic or other
domestic interests, or to preserve the constitutional autonomy of the Court or other
EU institutions.
One other hypothesis that might be advanced in light of the survey findings is that
they reflect the beginning of a predictable convergence between the CJEU’s recent
path, and that of the US Supreme Court at a much earlier time in its history.92 In other
words, the European Court, as the highest court of a relatively young quasi-federal
system, may simply be making an inevitable move away from the initial openness to
international law of a new and weak legal and political system towards a more robust
assertion of its constitutional autonomy and a significantly more conditional treat-
ment of the place of international law. Yet the EU nonetheless seems likely to remain
quite a different and much less politically unified entity than the United States. Not
only do the member states of the EU retain significant powers in international rela-
tions, but the EU remains very much an international organization in its relations
with the outside world, even if in its internal dimensions it operates in a quasi-federal
way. And as we have seen, the EU continues to assert quite a different image of itself as
an international actor than the US does, emphasizing its commitment to multilateral-
ism and to the international rule of law.93 Nevertheless, the early decades of enthusi-
astic internalization of international law by the European Court, underpinned by an
assumed hierarchy of international law over EU legislation, are increasingly tempered
by significantly greater caution. The Court’s interest in enforcing international law
against the member states and in showcasing the EU’s status as a model international
actor committed to collective international action has more recently been eclipsed,
although not eliminated, by its interest in asserting the constitutional authority and
autonomy of EU law. It seems that the CJEU, like the EU of which it is a part, is strug-
gling with the task of shaping a distinctive relationship between the European legal

89
See Joanne Scott & Lavanya Rajamani, EU Climate Change Unilateralism, 23 eur. j. int’l l. 469 (2012).
90
See, e.g., Wessel, supra note 73.
91
Supra n. 9.
92
For an account, see International Law in the US Supreme Court, supra note 13, esp. Pt I.
93
For a recent example of official representations of the EU’s internationalist character and orientation,
see the European Parliament resolution and European Parliament, Report on the EU as a Global Actor, Doc.
A7-0181/2011 (2011).
 Internalization of international law by the CJEU and the US Supreme Court 1007

order and the international legal order which is neither one of simple hierarchy and
obedience nor one which prioritizes political sovereignty and independence, but one
which acknowledges the importance place of international law within EU law and of
the EU within the international legal order. It remains to be seen, however, whether
such a distinctive intermediate path can successfully be shaped.

Downloaded from https://academic.oup.com/icon/article/13/4/987/2450821 by guest on 08 September 2020