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THE JUDGE AND INTERNATIONAL CUSTOM
Racke
Judgement (1998) it fully proclaimed that “the Community must adhere to
the rules of international customary law” and that these rules “bind the institutions
of the Community and create a part of the Community legal order”. In so far as
the identification of customary rules is concerned, the EU Court of Justice is rather
cautious and seldom enters into affirming the existence and content of such rules.
In the jurisprudence of the EU Court of Justice, of course, there exist two
contradictory tendencies, which it is possible to designate as openness and self-restraint
with respect to international custom. In the first case the Court of Justice applied
customary rules in the sphere of jurisdictional immunity of a state (
Mahamadia
, 2012),
laws of international treaties (
Brita
, 2010), or immunity of a head of state (
Hungary/
Slovak Republic
, 2012). In other cases the Court of Justice agreed with the goals and
values of the EU and excluded the application of customary international law, for
example in the matter of
Apostolides
(2009) or
Kadi
(2008). I must acknowledge that
I am among those who, in spite of contentment with the protection of fundamental
rights, warned against the risk of a dualistic approach in the relation of European and
international law for the coherence of the international legal order.
Another perspective touches on the approach of the European Court of Human
Rights to international customary law. Ineta Ziemele focused on whether the ECHR
has a special method in its approach to customary rules of international law. The
Court has always declared that it interprets the Convention in accordance with the
rules of interpretation of treaties anchored in the Vienna Convention on the Law of
Treaties. In the case
Demir and Bakayra
(2008) the Court had the opportunity to
explain its understanding of the concepts “other rules” and “applicable between the
parties” (Art. 31 para. 3(c) VCLT). It stated that when it looks for a common basis
among norms of international law it has never distinguished between the sources of
law. And, while qualifying the meaning of concepts contained in the Convention,
the Court is able to and must take into consideration elements of international law
other than the Convention. She demonstrated this in two main scenarios used in the
practice of the ECHR. The first case deals with confirming a customary rule,
e.g.
of
the sphere of state immunity, when the Court commented on its existence on the
basis of criteria accepted by the International Court of Justice and codified proposals
of the Commission on International Law (
e.g. Cudak
, 2010). In the second case of
the ECHR, on the basis of the analysis of laws and the practice of member states,
the Court investigates whether a European consensus was achieved in the approach
to a specific question.
Andreas Paulus
, in his very interesting contribution, concentrated on the role
of internal state courts, in particular the German Federal Constitutional Court,
in relation to the application and development of customary international law.
According to Art. 25 of the German Constitution general rules of international law
are a part of federal law and have precedence over statutes (over ordinary laws, debate
on precedence over the constitution is considered to be rather theoretical). Even
though it was not always clear whether an individual is able to invoke customary