The role of international agreements and international customary law in the EU and EAEU legal orders

Abstract

The article examines the provisions of EU and EAEU law regarding the role and place of international agreements and international customary law in their respective legal orders. The duty of regional integration organisations to comply with international law necessitates the creation of mechanisms allowing incorporating international law norms into the EU and EAEU legal systems while ensuring the independent (autonomous) character of these legal orders. The case law of supranational courts plays a prominent role in resolving this issue. The author focuses primarily on issues that are relevant not only for the EU but for the EAEU at the current stage of its development: ensuring that international agreements with third parties are compatible with the main rules and principles of the functioning of the integration organization; the possibility for individuals to challenge the validity of EU/EAEU institutions/bodies acts on the ground that they are contrary to international treaty or customary law as well as to the binding nature for a regional integration organisation of international agreements concluded by Member States in fields where the competence has been transferred to the supranational level. The author comes to the conclusion that despite the fact that the mechanisms provided by the EAEU Treaty are insufficient, the gaps can be partially filled by the EAEU Court through its case law. In that regard the jurisprudence of the Court of Justice of the European Union represents an important benchmark, although it needs to be assessed critically. Thus, the strict approach of the CJEU regarding the direct effect of universal international agreements as well as its application of the functional succession doctrine in relation to international agreements concluded by Member States makes it difficult for individuals to rely on international law in order to protect their rights.