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Third working session — The future prospects
But the point here is that this approach leads to a dead end. Short of a uni-
versal consensus that international law must be directly applicable in munici-
pal law, it will always be the case, in particular as regards multilateral agree-
ments, that not all parties accept direct effect. This is clearly not an approach
which puts the EU in the vanguard of the struggle to enforce the international
rule of law.
There is however scope for a fundamentally different course of analysis,
of which there are in fact also traces in the Court’s case-law – including in
Van Gend en Loos
. In addition to the investigation into the ‘esprit’ of the EEC
Treaty, the direct effect of EU law is as much a product of a much more func-
tional and practical consideration: that it very much assists in the proper en-
forcement of EU law. It was perhaps mainly with a view to such enforcement
that the Court adopted a wide conception of when the founding Treaties con-
fer rights on private parties: these rights, unexpressed, may simply be a reflec-
tion of obligations imposed on other individuals, the EU institutions, or the
Member States. In practice, of course, the latter type of obligations were, and
are, the most significant ones.
Extending
Van Gend en Loos
to international law
If the EU seeks to contribute more strongly to the enforcement of inter-
national law, the best it could do would be to transpose this basic finding of
Van Gend en Loos
– within certain limits – to international law and interna-
tional agreements. As discussed above, international law itself increasingly
accepts individuals as subjects. That is not equivalent to requiring direct mu-
nicipal application. Again, even the Strasbourg Court has not interpreted the
Convention, which is all about individual rights, as demanding direct effect.
But this incapacity of international law itself to re-unite the two universes
should not stop the Court from approximating them, from within the consti-
tutional autonomy of EU law.
The Court is therefore on stronger conceptual ground where it focuses on
whether an agreement confers rights or freedoms, rather than on an abstract,
institutional and
Realpolitik
analysis such as that of the WTO cases. But its
attitude should be more liberal than in
Intertanko
. The basic premise ought
to be the recognition that many, or even most international agreements, have
a general normative function, in the sense that their norms are, in substance,
destined to become part of municipal law, and to regulate relations between
