This, I’m afraid, misses the point. @SBarrettBar points to cases where national courts (the ECJ is a national court for these purposes) have identified a conflict between their domestic legal order & international law, and said that they have to follow their domestic legal order.
https://twitter.com/SBarrettBar/status/1325734176381865993
Such conflicts usually arise accidentally, in that the domestic legislature and executive have misunderstood what their own legal order, or international law, requires, and have ended up in a situation where the two don’t match up. Both of Steven’s examples are in that category.
Errare humanum est. These things happen. And what international law requires, or what the domestic legal order requires, are often unclear until a competent court has ruled.
That is completely different from a case where a government deliberately and knowingly asking its legislature to pass legislation that it admits is an undoubted and obvious breach of international law (in this case, of a treaty that the same government negotiated 12 months ago).
I’m afraid others have tried to fly this canard, including Bill Cash and Lord Lilley. But it is a canard, and should now be served on a plate and stuffed with orange.
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