The interaction between EU law and international law is an intriguing subject. The receptiveness of domestic legal orders vis-à-vis the international legal order is an all-time classic of foreign relations law and of course of even greater interest where the ‘domestic’ legal order in question has itself its roots in international law. That the EU has undergone a constitutional transformation towards a federal entity only adds to the fascination and, one must also say, to the conundrum. Against this backdrop, it is of little surprise that EU external relations scholars love to debate whether the EU is völkerrechtsfreundlich, or maybe not so völkerrechtsfreundlich, or perhaps something in between.
The Psagot Judgment: When International Law Meets EU Consumer Law
One notable case in which the “duty to observe international law” as proscribed by Article 3(5) TEU played a prominent role was the ECJ’s 2019 Psagot judgment. The Court, in this case, had to decide whether EU consumer law required particular mandatory labelling practices in relation to foodstuff originating from territories under Israeli occupation. The Court ruled that it would be misleading towards consumers to indicate that such products originate from the State of Israel and therefore requires mandatory labelling with respect to the exact origin of such foodstuff. According to the Court, however, it is not only obligatory to refer to the exact origin in instances where foodstuff comes from an occupied territory, but also to indicate whether a product is a Palestinian/Syrian product or one that originates from Israeli settlements in these territories, as “considerations, such as those relating to the observance of international law, may also be relevant” (para. 54) to enable consumers to make an informed choice about products they might (not) want to purchase. In this context, the ECJ explicitly referred in paras. 48 and 56 to the Advisory Opinion of the International Court of Justice of 9 July 2004 concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, in which it was inter alia opined that the establishment of settlements in the occupied territories amounted to a policy of population transfer and as such was prohibited under international humanitarian law (IHL).
The Court’s judgment is largely in line with the Opinion delivered by Advocate General Hogan in the same case. Largely, but not fully. There is one minor, yet significant difference between the Opinion and the judgment. While AG Hogan opined that “viewed […] from the perspective of international law, the Israeli occupation of these territories is illegal” andthat “[t]he settlement policy with regard to these territories is also a clear breach of international law” (para. 53), the Court, by contrast, only addressed the illegality of settlements, not the alleged illegality of the occupation as such.
It is easy to see why the Court adopted a narrow(er) focus in relation to international law if one takes the underlying consumer protection logic of the judgment into consideration, which – in highly simplified terms – goes like this: to allow consumers an informed choice in relation to the purchasing of foodstuff, indications of the country of origin or the place of provenance are mandatory if the omission of such indication might otherwise deceive consumers. As the West Bank and the Golan Heights are territories with a status under international law distinct from that of the State of Israel, the indication “State of Israel” for products originating from these territories would deceive consumers. Therefore, it is mandatory to indicate as the territory of origin the West Bank or the Golan Heights on the label of such foodstuffs. Moreover, in light of the illegality of Israel’s settlement policy in these territories, it is also mandatory to indicate whether a foodstuff comes from an “Israeli settlement” because ethical considerations including such with regard to international law may also be relevant factors in shaping a consumer’s purchasing decision. Had the Court decided that the Israeli presence in the occupied territories was in its entirety illegal under international law, an additional indication with regard to the provenance of foodstuff out of Israeli settlements would have been superfluous. Such a labelling requirement would not have provided average consumers with any useful additional information that could influence their purchasing decisions provided that it is the alleged violation of international law that is the decisive factor for their decisions. These consumers would then simply refrain from buying products originating from these territories altogether, irrespective whether foodstuff comes from settlements or not.
The Last Word on International Law Has Not Been Spoken
Fast forward to 2024.
In July of last year, the International Court of Justice (ICJ) delivered its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. Responding to a request by the UN General Assembly from 2022, the ICJ was asked to assess (a) “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, […] and from its adoption of related discriminatory legislation and measures” and (b) how these “policies and practices […] affect the legal status of the occupation” and which “legal consequences […] arise for all States and the United Nations from this status”.
The Court in The Hague opined that certain Israeli practices and policies in the Occupied Palestinian Territories (settlements, annexations, discriminatory legislation and measures, denial of the right to self-determination) are in violation of international law. Going beyond this finding, however, the ICJ also opined that “[t]he sustained abuse by Israel of its positions as an occupying Power” (para. 261) renders the continued Israeli presence in these territories as such unlawful.
The latter finding, albeit subject to considerable debate, was characterized by Marko Milanovic on EJIL:Talk as “the single most important point in the case”. Indeed, this particular aspect of the Advisory Opinion constitutes a major conceptual shift in the way the Israeli presence in the occupied territories is characterized under international law as now interpreted by the ICJ, namely not (exclusively) in relation to particular policies and practices in the context of the occupation (e.g. settlements), but also in view of the lawfulness of the Israeli presence as a whole.
The Psagot Judgment Revisited
With this latest Advisory Opinion from the ICJ, it appears that the logic underlying the labelling requirements for products originating from Israeli settlements as pronounced in the Psagot judgment is thus no longer applicable. If – as a matter of international law – the occupation of the West Bank (and arguably also the Golan Heights) itself is or has become unlawful, then why bother to differentiate between settlement and non-settlement foodstuff?
Surely, one could argue that in its Advisory Opinion the ICJ addressed both, the particular policies and practices in relation to the occupation as well as the overall lawfulness of the Israeli presence in the occupied territories (in fact these issues are closely interconnected). Against this backdrop, the Psagot judgment could still be considered good and valid law. However, as elaborated above, the inherent logic of that judgment was to allow the average consumer to make an informed choice about certain products in light of international law. And if we accept the premise that the average consumer takes such considerations into account in his/her purchasing decisions then it is hard to comprehend why foodstuff with a provenance tainted by an unlawful occupation could ever deliberately find their way on an “average ethical consumer’s” shopping list, while at the same time products originating from Israeli settlements would not.
One could also query whether an Advisory Opinion by the ICJ would ultimately be able to call into question the ECJ’s jurisprudence. After all, Advisory Opinions are, despite their authoritative weight, non-binding in nature. Certainly, the ECJ is in no way bound to follow the jurisprudence of the ICJ. But then again, one must ask why the ECJ did so in the first place when it referred to the 2004 Wall Advisory Opinion, justifying its reasoning in the Psagot case.
I, for my part, never found the Psagot judgment to be particularly compelling. In my view, it would have sufficed for the purposes of EU consumer law had the Court drawn a geographical distinction between the pre-1967 borders of Israel on the one hand, and the West Bank and the Golan Heights on the other hand, without speculating about the international law savviness of average European consumers. The point of this blogpost, however, is certainly not to formulate a critique of a judgment handed down more than five years ago. Instead, the issue I want to address here is broader and more general.
Taking International Law Seriously… Seriously?!
In the Editorial comments published in Issue 61(5) of the Common Market Law Review, it was stated that “the EU Courts are increasingly being faced with cases involving (often politically sensitive) questions of international law” and that it was “possible to identify a growing willingness […] on their part to engage actively with such questions.” This observation is certainly accurate. The times when the Union Courts followed an entirely inward-looking approach towards questions having an international dimension are long gone and references to international law and the jurisprudence of international courts become more and more frequent in the ECJ’s case law. And keeping in mind EU external relations scholars’ love for a good debate about the EU’s Völkerrechtsfreundlichkeit, this pendulum swing has attracted much interest and prompted both praise and criticism with regard to questions of methodology. What appears to be lacking, however, is a discourse about a more fundamental question: when it is actually appropriate and reasonable for the ECJ to refer to international law and to the case law of international courts, and when should the Court abstain from doing so?
The obvious example one can think of when reference to international law and an international court is warranted is the ECHR and the case law of the European Court of Human Rights (ECtHR), which by virtue of Article 52(3) CFR and Article 6 TEU enjoy a special place within the EU legal order. Outside this special context of regional human rights law, the ECJ has also on some occasions referred to the ICJ when it comes to the international law of treaties, e.g. in Oberto, para. 61 (role of subsequent treaty practice) or in Racke, para. 50 (clausula rebus sic stantibus). In light of the fact that treaty interpretation forms part of the ICJ’s primary tasks (cf. Article 36(2)(a) and Article 38(1)(a) ICJ Statute), it certainly makes sense for the ECJ to cite precedence of the UN’s principal judicial organ as a universally recognized authority in cases that involve the interpretation of international agreements instead of giving an autonomous meaning to provisions of an international treaty based on an “effet utile”-inspired interpretation under EU law.
But in other instances, references to the jurisprudence of an international court or tribunal and international law in general are simply less plausible. And in this regard the Psagot judgment is a good case in point. For one thing, invoking IHL when interpreting an EU regulation on the provision of food information to consumers is somehow misguided if one considers that neither IHL nor general international law imposes any obligations with regard to food labelling. It rather seems the outcome of the Psagot judgment is the result of an obscure conflation of consumer law, psychological assumptions about personal purchasing preferences, and a reference to an ICJ Advisory Opinion that was delivered in a very different legal context. What is more is that the ECJ, albeit only implicitly, unnecessarily took sides in a debate concerning international law in a way that five years later turned out to be wrong or at least outdated (provided one considers the ICJ’s authority to carry sufficient weight to settle the issue).
Deference to international courts inevitably entails the risk of giving them some influence over one’s own case law. This of course seems quite ironic, given how reluctant the ECJ has proven to be to allow any international court or tribunal to interfere with questions reserved for its very own exclusive jurisdiction (see e.g. here, here and here). Or, to put it more provokingly: in 2024, Luxembourg got overruled by The Hague.
Sometimes It’s Okay to Let Them Pass Like Ships in the Night
I do not consider all of this to be of particular significance for the EU legal order in overall terms. While at some point the Court might be given the opportunity to overturn the Psagot judgment or adapt its reasoning, as for now the interpretation given in that judgment is good law. But scholars and practitioners alike should take this whole episode as an invitation and opportunity for reflection. While I do share the sentiment that a stronger engagement with questions of international law by the ECJ is in general a positive development, “observance” of international law should not be seen as an end in itself. Sometimes we can safely and without any harm let EU and international law pass like ships in the night.
Christian Breitler is a doctoral candidate at the University of Graz, Austria in the field of EU external relations law.
The views expressed in this blogpost are those of the author and may not be attributed to his employer or any other entity or institution with which the author is or has been affiliated.
