Роль международных договоров и международного обычного права в правопорядке ЕС и ЕАЭС

Международное правосудие. 2021. Т. 37. № 1. С. 102–130.

Entin K.

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.

Keywords: международные договоры, customary law, право ЕС, Суд ЕС, international agreements, евразийская интеграция, EU law, право ЕАЭС, EAEU law, Суд ЕАЭС, международное обычное право, EAEU Court, CJEU