Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values
| Published date | 01 August 2021 |
| Date | 01 August 2021 |
| DOI | http://doi.org/10.1177/1023263X211015153 |
| Subject Matter | Articles |
Article
Article 3(5) TEU a decade on:
Revisiting ‘strict observance
of international law’ in the text
and context of other EU values
Rupert Dunbar*
Abstract
Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new
provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict
observance of international law’ by the EU in its relations with the wider world. However, recent
case law in the Court of Justice of the European Union has demonstrated little movement towards
this supposed ideal. This article supports the fact that rigid and unquestioning adherence to
international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that
the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text
and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited
demands international law places on domestic courts, the article argues that – contrary to current
literature – a more expressly balanced approach towards respect for international law is required
and should be nurtured in the case law.
Keywords
EU external relations, international law in domestic legal systems, direct effect, customary
international law, protection and promotion of EU values
1. Introduction
Article 3(5) TEU was a new provision in the Lisbon Treaty, and one to which scholars were
immediately drawn. It arrived when the Court’s respect for international law was perceived to be at
its lowest ebb and the prevailing view was undoubtedly that Article 3(5) TEU required the Court to
* Kingston University, Kingston Upon Thames, Surrey, United Kingdom of Great Britain and Northern Ireland
Corresponding author:
Rupert Dunbar, Kingston University, Faculty of Business and Social Sciences, Penrhyn Road, Kingston Upon Thames,
Surrey KT1 2EE, United Kingdom of Great Britain and Northern Ireland.
E-mail: Rupert.Dunbar@kingston.ac.uk
Maastricht Journal of European and
Comparative Law
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DOI: 10.1177/1023263X211015153
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2021, Vol. 28(4) 479–497
respect international law more greatly moving forward. This optimism pertains today – a decade
on. Ultimately, though, Article 3(5) TEU does not appear to have impacted the Court’s case law
meaningfully.
This article will argue that the lack of impact is eminently justified concerning respect for
international law when considering the text of Article 3(5) TEU more fully. This can be further
supported by consideration of the manner in which the Court typically interprets EU Treaty
provisions and by the demands of international law itself concerning its application in domestic
courts. Accordingly, ‘respect for international law’ is found – both within EU law and international
law governing domestic application itself – to be unable to bear the ideologi cal strain which
continues to be placed upon it in scholarship. Article 3(5) TEU could, though, be better utilized
by the Court in expressly detailing the balanced approach to respecting international law and EU
values moving forward.
The article is structured to firstly consider the climate of the case law into which Article
3(5) TEU entered. Secondly, the full text of Article 3(5) TEU will be reflected upon. Thirdly,
the Court’s interpretative approach to EU Treaty articles generally will be analysed.
Fourthly, the application of international law in domestic courts will be considered from
the perspective of international law’s demands and State practice. Finally, the limited impact
of Article 3(5) TEU concerning greater respect for international law in case law subsequent
to the Lisbon Treaty will be considered and endorsed, although the potential for more
meaningful judicial and scholarly engagement with Article 3(5) TEU in its full text and
context will be highlighted.
2. Prominent pre-Article 3(5) TEU case law
In the time between the Lisbon Treaty’s conclusion and its entry into force a couple of years
passed, and this proved to be a significant period for the Court’s application of international
law (its ‘external case law’). One of these years – 2008 – has been described as an ‘annus
horribilis’.
1
Whilst such criticism is often more intense precisely because the EU and its
Court had previously been viewed as particularly respectful of international law,
2
undoubt-
edly the changes were notable and real. We can briefly chart relevant developments leading
to this.
The EU itself is a product of successive international treaties. Bold doctrines such as supremacy
and direct effect of EU law emanated from what Alter notes to have been ‘an obscure Court in
Luxembourg’.
3
It is safe to assume that greater tension would have arisen concerning internal
acceptance of such doctrines had the Court begun from a position of hostility regarding its
relationship with international law; its most obvious touchpoint for legitimacy. Therefore, in
Haegeman II the Court asserted that international agreements form ‘an integral part of EU law’
4
and in Woodpulp it appeared that customary international law could even operate as a constraint on
1. Matthias Kottmann, Introvertierte Rechtsgemeinschaft (Springer, 2014) p. 233.
2. For example, Gr´ainne de B´
urca, ‘The European Court of Justice and the International Legal Order after Kadi’, 51(1)
Harvard Law Review (2010), p. 1.
3. Karen J. Alter, ‘The European Court’s Political Power: The Emergence of and Authoritative International Court in the
European Union’ (first published 1996) in Karen J. Alter, The European Court’s Political Power: Selected Essays (OUP,
2010), p. 92.
480 Maastricht Journal of European and Comparative Law 28(4)
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