Research Handbook on the Theory and History of International Law
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Research Handbook on the Theory and History of International Law

Edited by Alexander Orakhelashvili

This pioneering Research Handbook, with contributions from renowned experts, provides a comprehensive scholarly framework for analyzing the theory and history of international law. Given the multiplication of theoretical approaches over the last three decades, and attendant fragmentation of scholarly efforts, this edited collection presents a useful doctrinal platform that will help academics and students to see the theory and history of international law in its entirety, and to understand how interdependent various aspects of the theory and history of international law really are.
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Chapter 10: International Law and EU Law: Between Asymmetric Constitutionalisation and Fragmentation

Katja S. Ziegler


Katja S. Ziegler Both international law and EU law1 are undergoing a process of constitutionalisation. The development of EU law is itself a symptom of the constitutionalisation of international law. EU constitutionalism in the dimension between the EU and its Member States is characterised by supranational rule-making, the Court of Justice’s (CJEU) compulsory jurisdiction and the prominence of individual rights which are enforceable in an international court as well as, through direct effect, in national courts. More generally, the EU legal order is constitutionalised through a complex intertwining of EU and national law and a hierarchisation of the relationship of the two legal orders through substantive remedies and procedural mechanisms (in particular the reference for a preliminary ruling). EU constitutionalisation within the EU legal order is reflected in, amongst other aspects, the gradual expansion of qualified majority voting in the Council and the co-decision procedure (now ordinary legislative procedure) for EU legislation giving the European Parliament a veto right, the creation of EU human rights as standards of review, culminating in their codification in the EU Charter on Fundamental Rights, as well as a general maturing towards a more ‘complete’ legal order2 with an internal hierarchy of norms.3 International law likewise shows several, albeit less developed, signs of constitutionalisation, both in an institutional and in a substantive dimension: institutionally, although still rudimentary, the powers of the Security Council and its increased reach towards individuals (rather than only states) may be recalled as well as detailed normative and institutional frameworks and...

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