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Third working session — The future prospects
that one must not lose sight of the Court’s general openness towards inter-
national law when considering the cases in which the Court does not accept
direct effect.
Nevertheless, the overall picture is that international law binding on the
EU does not have the inherent, automatic, and comprehensive direct effect
which internal, ‘homemade’ EU law has. This contribution seeks to discuss
and question this attitude, from a broad and general perspective. Indeed, in a
globalised age of intense international lawmaking, is it not rather the case that
international treaties and conventions should have direct effect, much in the
same way as is the case for ‘internal’ EU law? Birthdays offer good opportuni-
ties for looking ahead, even at fifty.
The silence of international law: municipal law
as a black hole
Let us first turn to international law itself to see what it has to say on the
matter. Unfortunately, it is largely silent. For international law and inter
national lawyers, what happens to an international norm within the ‘munici-
pal’ legal orders of the States or organisations which are bound by it, is some-
thing like a black hole. It is of course the case that an international adjudicator
may examine municipal law to investigate whether there is compliance with
the international norm. But treaties, conventions and agreements rarely deter-
mine in precisely which way they need to be implemented; let alone that they
would determine that they create subjective rights within municipal law. Even
the European Convention on Human Rights, setting our most fundamental,
human rights and freedoms in Europe, is not automatically, inherently part
of the law of European States. As long as the international norm is complied
with, the large majority of international lawyers seems quite content with liv-
ing in a different universe from that of municipal law. They are content with
the international norm being sucked into the black hole of municipal law, as
long as what comes out of it, at the other end, is compliance and respect (
8
).
Those international lawyers who are interested in the interface between inter-
national law and municipal law focus on what happens at the other end. They
(
8
) Of course the metaphor is rather inadequate, because under the laws of physics nothing ever
escapes a black hole.
