Kelsenian Reflections on the Unity of Domestic and International Law: The Practice of Consistent Interpretation of the Court of Justice of the EU
Queen Mary University of London
March 10, 2014
Forthcoming in Luis I Gordillo (ed.), Constitutionalism of European Supranational Courts (Thomson-Reuters, 2014)
This contribution examines the relationship between EU and international law on the basis of the principle of consistent interpretation which denotes the process of subtly internalising international norms without their express incorporation, transformation, or transposition. Its innovative approach lies in the application of Kelsen’s theory to the relationship of EU lawand international law in order to determine whether Luxembourg’s incoherent jurisprudence on consistent interpretation indeed constitutes an insurmountable normative conflict or whether the Union nevertheless remains a monist legal system. Part 2 will present a brief description of the doctrine of consistent interpretation, especially its defining features and its limits, and a brief analysis on whether there is an international obligation to consistent interpretation. Part 3 will extensively depict the Court’s diverse case law on consistent interpretation, in particular with respect to secondary and primary EU law, and conclude that there are considerable incoherencies in the CJEU’s conclusions from the viewpoint of international law. Eventually, Part 4 will first illustrate Kelsen’s theory on the relationship between national and international law, and then apply its findings and conclusions to the EU’s relationship with public international law in order to fill this theoretical gap.
Number of Pages in PDF File: 51
Keywords: relationship between EU law and international law, customary international law, law of treaties, Hans Kelsen, monism and dualism
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407131