173
Third working session — The future prospects
and contested rules and principles on the effects which international law may
produce. That is no different in EU law (
13
). There is the two-step process of
determining whether an agreement has direct effect: first the structure and
broad logic of the agreement as such, and second the nature of the particular
provisions invoked. As regards the structure and broad logic, the Court vari-
ably focuses on the flexibility of the agreement; its dispute settlement system,
and the room this leaves for negotiations; the lack of reciprocity in the recog-
nition of direct effect; the need to recognise sufficient room for political ma-
noeuvre for the EU political institutions; or the extent to which the agreement
confers rights or freedoms. Next to direct effect, or lack thereof, there is the
principle of consistent interpretation, which applies to all agreements binding
on the EU. There is also what I have called the principle of implementation:
a dualism-inspired exception to the lack of direct effect of rather uncertain
scope. For agreements not binding on the EU, but binding on all Member
States, the Court has also suggested an interpretative obligation. And for cus-
tomary international law there is a set of separate principles (
14
).
Some people find the fifty shades of grey exciting, but where do they lead
us? Is the much qualified application of international law sustainable in an age
of multilevel governance, where laws are made at domestic, European, and
international level? Does the relativity of fifty shades of grey ultimately not
risk undermining the rule of law itself?
50 years after
Van Gend en Loos
it is perhaps time for the Court of Justice
to think seriously about reducing the shades of grey, and accepting more easily
that international norms, too, may have direct effect and create rights for indi-
viduals. It is submitted that the Court has been too restrictive in recent years.
That criticism, however, does not extend to the most high-profile judgment,
Kadi I
(
15
). That was a case in which international law was effectively claiming
an
état d’exception
: Security Council resolutions overrule basic human rights
standards of due process. Let us not start there, when giving greater effect to
international norms, but let us start by recognising more easily that they may
confer rights on individuals.
(
13
) For a much more detailed analysis see P. Eeckhout,
EU External Relations Law
(2nd ed, OUP
2011) chapter 9.
(
14
) See in particular the
ATA
case, cited above.
(
15
) Joined Cases C-402/05 P and C-415/05 P
Kadi and Al Barakaat International Foundation
v
Council and Commission
[2008] ECR I-6351.
