172
Piet Eeckhout
Troisième séance de travail — Les perspectives
fundamentally accept that the domestic legal effect of international norms is
determined by municipal law (
9
).
The failure, or refusal, or incapacity of international law to determine
that it creates directly effective rights in municipal law does not mean that
the individual cannot be a subject of international law. Again the European
Convention is the obvious example. The individual has rights under inter-
national law against the Convention contracting parties – States, and soon
also the EU. Those rights can be enforced before the Strasbourg court. The
International Court of Justice has also identified subjective rights, in the
LaGrand
decision, namely rights to consular protection (
10
). The universes
of international and municipal law remain parallel, however, or pluralist, as
many would say (
11
). This was vividly and dramatically illustrated by the out-
come of the
LaGrand
–
Avena
–
Medellin
saga: notwithstanding the violation
of international law rights to consular protection, and the ICJ attempt to in-
tervene in the domestic US process, there was no suspension of the execution
of the death penalty in Texas (
12
). That episode highlights an important pro-
cedural factor which contributes to keeping the universes separate: there is no
direct dialogue between international courts and tribunals, and the judiciary
at national level; there is no international preliminary rulings procedure.
Municipal law: fifty shades of grey
If international law itself does not re-unite the two universes, let us look a
bit into the black hole of municipal law. If I may be allowed to shift metaphors,
what we see there is neither black nor white, but rather something like fifty
shades of grey. Municipal legal orders each have their own, often sophisticated
(
9
) E.g. J.H. Jackson, ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’ (1992)
86 AJIL 310–340; F.G. Jacobs and S. Roberts (eds),
The Effect of Treaties in Domestic Law
(Sweet & Maxwell, 1987); A. von Bogdandy, ‘Pluralism, direct effect, and the ultimate
say: On the relationship between international and domestic constitutional law’ (2008)
International Journal of Constitutional Law
397–413; A. Nollkaemper,
National Courts and
the International Rule of Law
(OUP 2011).
(
10
) ICJ,
LaGrand (Germany v USA)
, Judgment, ICJ Reports 2001, p. 466, paragraph 77.
(
11
) On pluralism see e.g. M. Avbelj and J. Komarek (eds),
Constitutional Pluralism in the
European Union and Beyond
(Hart Publishing, 2012).
(
12
)
LaGrand
, cited above; ICJ,
Avena and Other Mexican Nationals (Mexico v. United States of
America)
, Judgment, ICJ Reports 2004, p. 12; US Supreme Court
Medellin v Texas
552 U.S.
491. See B. Simma and C. Hoppe, ‘From
LaGrand
and
Avena
to
Medellin
: A Rocky Road
Towards Impementation’ (2005-2006)
Tulane Journal of International and Comparative
Law
, 7-59.
