Katja Ziegler, Beyond Pluralism and Autonomy: Systemic Harmonization as a Paradigm for the Interaction of EU Law and International Law, Yearbook of European Law (2016) 35 (1): 667-711.
The EU’s relationship with international law as interpreted by the Court of Justice of the EU (CJEU) has taken a sharp constitutional turn in Opinion 2/13 which emphasized the autonomy of the EU legal order. Against the background of an analysis that the CJEU adopted an increasingly restrictive and closed approach to international law, which culminated in elevating autonomy to something akin to a constitutional principle, this article explores an alternative to the EU’s approach to international law, which could be an ‘old new’ paradigm for the interaction of EU law and international law. It examines how and how far the mechanisms of interpretation can be used as a tool to facilitate a more open and harmonious relationship between the EU and the international legal order. The article argues that a procedural requirement to engage openly can avoid conflicts between legal orders, such as the EU and the international legal order. The principle of ‘systemic integration’ provides the legal basis for this interpretative method. Against the backdrop of a fundamentally open approach, not all divergence or conflict is negative; on the contrary, it can be the source of mutual influence, enrichment and cross-fertilization, and re-affirmation of international law as a coherent legal system. It could help develop the EU legal order and derive legitimacy for such developments through openness and interaction. Systemic integration is thus the antipode of invoking the ‘autonomy’ of a legal order. The article reviews the relationship between international and EU law in relation to forms (mechanisms) and paradigms of interaction which reflect a more open or closed approach of EU law towards international law (II). It then briefly reflects on the benefits and disadvantages of the more open or closed paradigms (III) to proceed to explore in detail the paradigm and mechanisms of systemic harmonization as a basic model for the interaction of EU and international law which avoids conflicts but allows room for constitutionalization and affirmation of the international legal order and its law-making processes (IV). The concluding section reflects on risks and opportunities of systemic harmonization (V).
Keywords: Interaction of legal orders, constitutionalisation, autonomy, EU accession to the ECHR, systemic harmonisation, Article 31(3)(c) of the Vienna Convention on the Law of Treaties, openness of the EU legal order to international law, Al-Dulimi v Switzerland