University of Leicester School of Law Research Paper No.

13-17

The Relationship between EU law and International Law

Katja S Ziegler
Sir Robert Jennings Professor of International Law, University of Leicester

Abstract:
How do EU law and international law interact? Is the relationship between EU law and international
law different from the relationship between general international law and one of its specialised legal
orders, for example the relationship between international law and the law of the sea? In other
words, is the question of the relationship only one about the fragmentation of international law? Are
the rules of interaction between the legal orders just ‘technical’ conflict rules in this context? Or are
the rules of interaction between the international and the EU legal order which has been described
as an autonomous legal order, akin to rules that govern the interaction between international law
and national legal orders? Elements of both the international and the constitutional paradigms are
reflected in most areas of EU law. But they are particularly prominent when analysing the
relationship between international and EU law, a topic that has enjoyed increasing attention in
recent years. In this paper, firstly, the more formal basis for the relationship is considered by looking
at the international law framework of EU law before, secondly, looking at the relationship between
the two legal orders and the realities of the relationship as expressed in the status of international
law within the EU legal order.

Keywords: EU Law, Public International Law

This text may be downloaded for personal research purposes only. Any additional reproduction
for other purposes, whether in hard copy or electronically, requires the consent of the author(s). If
cited or quoted, reference should be made to the following:
Katja S Ziegler, The Relationship between EU law and International Law, University of Leicester
School of Law Research Paper No. 13-17.
© 2013 Katja S Ziegler
University of Leicester School of Law Legal Studies Research Paper Series

Electronic copy available at: http://ssrn.com/abstract=2373296

 1

The Relationship between EU law and International Law

Katja S Ziegler

I. Introduction

How do EU law and international law interact? Is the relationship between EU law and
international law different from the relationship between general international law and one
of its specialised legal orders, for example the relationship between international law and
the law of the sea? In other words, is the question of the relationship only one about the
fragmentation of international law? Are the rules of interaction between the legal orders
just ‘technical’ conflict rules in this context? Or are the rules of interaction between the
international and the EU legal order which has been described as an autonomous legal
order,1 akin to rules that govern the interaction between international law and national
legal orders? Elements of both the international and the constitutional paradigms are
reflected in most areas of EU law. But they are particularly prominent when analysing the
relationship between international and EU law,2 a topic that has enjoyed increasing
attention in recent years.3

These questions also inform the debate about the sui generis nature of EU law and have
triggered a wide range of theories broadly divided into a pluralist and a constitutionalist
camp which are often considered to supersede the traditional monist and dualist approach
to international law.4 The EU is an international organisation by birth, but has become highly
constitutionalised: with supranational legislation and a dense web of detailed norms due to
the sheer amount of regulation, it is characterised by advanced and widespread law-making
procedures and output; the EU courts have jurisdiction in procedures that create an
elaborate system of compulsory dispute settlement mechanisms which has been described

1
Joined Cases C-402&415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v
Council and Commission of the European Union [2008] ECR I-6351, para 317 (‘Kadi I’).
2
See also Katja S Ziegler, ‘International Law and EU law: Between Asymmetric Constitutionalisations
and Fragmentation’ in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of
International Law (Edward Elgar 2011).
3
See, e.g.: Enzo Cannizzaro, Paolo Palchetti and Ramses A. Wessel (eds), International Law as Law of
the European Union (Martinus Nijhoff 2011); Malcolm D. Evans and Panos Koutrakos (eds), Beyond the
Established Legal Orders (Hart Publishing 2011); Jan Wouters, André Nollkaemper and Erika De Wet (eds), The
Europeanisation of International Law: The Status of International Law in the EU and its Member States (Asser
Press 2008); Jan Wouters, Frank Hoffmeister and Tom Ruys (eds), The UN and the EU - An Ever Stronger
Partnership (Asser Press 2006); Jan Klabbers, Treaty Conflict and the European Union (Cambridge University
Press 2009); Dimitry Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of the
International Legal Order (Cambridge University Press 2013); Malcolm D. Evans and Panos Koutrakos (eds), The
International Responsibility of the European Union: European and International Perspectives (Hart Publishing
2013). See also more generally on EU external relations Piet Eeckhout, EU External Relations Law (2nd edn,
Oxford University Press 2011); Marise Cremona and Bruno De Witte (eds), EU Foreign Relations Law (Hart
Publishing 2008); Panos Koutrakos, EU International Relations Law (Hart Publishing 2006); Geert de Baere,
Constitutional Principles of EU External Relations (Oxford University Press 2008).
4
Ramses A. Wessel, ‘Reconsidering the Relationship between International and EU Law: Towards a
Content-based Approach?’ in Enzo Cannizzaro, Paolo Palchetti and Ramses A. Wessel (eds), International Law
as Law of the European Union (Martinus Nijhoff 2011), 10; Bruno De Witte, ‘The European Union as an
International Legal Experiment’ in The Worlds of European Constitutionalism (2012), 20.

Electronic copy available at: http://ssrn.com/abstract=2373296

 2

as a ‘complete system of remedies’5; linked to this is the high degree of enforcement of EU

law; the list could go on. Suffice to mention one more aspect of advanced EU
constitutionalism: the status of the individual as a subject of the EU legal order. The EU legal
order thus combines features both of an international organisation and of a state. The
constitutionalisation of the EU legal order is not doubted empirically (although the question
whether specific expressions of constitutionalisation are desirable may be controversial).
Whether the EU is still conceived as a creature of international law (i.e. (closer to) an
international organisation)6 or of a sui generis7 nature because of its advanced
constitutionalisation, depends on the relative weight and significance attributed to formal
and foundational internationalism (i.e. rootedness in international law) on the one hand and
substantive constitutionalisation of the EU legal order on the other hand. It also depends on
one’s perspective on international law, the constitutionalisation of international law, and an
assessment of how unique the EU legal order is actually or structurally in this context. The
question of the international or sui generis/constitutional nature of the EU cannot be
answered here, but three points should be highlighted:

Firstly, the underlying tensions between internationalism and constitutionalism in EU law

are both very prominent when analysing the relationship between EU and international law
and are at the same time relevant factors in shaping the relationship. Even if an ultimate
answer about the nature of the EU will not be provided, the topic is particularly suitable to
reveal how the relationship works ‘on the ground’ which might help in theorizing the
relationship.8

Secondly, it must be emphasised that the nature of the EU is not merely of academic
relevance, not the least because there are consequences. Underlying views about the
nature of the EU will influence the interpretation of EU law as well as the standards by
which the EU is or ought to be held accountable and evaluated.

Thirdly, and even if taking the position that EU law is only an especially advanced type of
international law, the relationship between EU law and international law has become a
complex one due to a number of factors:

Firstly, the Court of Justice of the EU (CJEU) adopts a strong constitutionalist approach by
which assimilates the relationship between EU law and international law in many respects
to the relationship between international law and national law. The EU’s approach to
international law may be as much motivated by inward-looking (constitutional)

5
See amongst others C-50/00P Unión de Pequeños Agricultores v Council of the European Union [2002]
ECR I-6677, para 40.
6
Theodor Schilling, ‘The Autonomy of the Community Legal Order: An Analysis of Possible Foundations’
(1996) 37 Harvard International Law Journal 389, 403 f.
7
Michael Dougan, ‘Sources, Supremacy and Direct Effect of Community Law’ in Derrick Wyatt and Alan
Dashwood (eds), European Union Law (5th edn, Sweet & Maxwell 2004), 132; J.H.H Weiler and Ulrich Haltern,
‘The Autonomy of the Community Legal Order - Through the Looking Glass’ (1996) 37 Harvard International
Law Journal 411, 420 ff; see also Ziegler (n 2), 315 f.
8
See for example, Janne Nijman and André Nollkaemper (eds), New Perspectives on the Divide
Between National and International Law (Oxford University Press 2007); Nico Krisch, Beyond Constitutionalism:
The Pluralist Strucure of Postnational Law (Oxford University Press 2010); Anne Peters, ‘The Position of
International Law within the European Community Legal Order’ (1997) 40 German YIL 9.

Electronic copy available at: http://ssrn.com/abstract=2373296

 3

considerations as by considerations of international law. The approach to international law

may be instrumental to its own constitutional narrative and trajectory of the independent
dynamics the EU has developed.

Secondly, the triangular relationship between EU law, international law and the EU
Member States means that the EU’s approach to international law does not remain in
isolatation but may influence in turn states’s approaches to international law. Separately,
but relatedly, as the EU is constituted by states, the interests and possible reaction of its
Member States in any given situation will also influence the approach towards international
law.

Thirdly, as with any specialised legal order of international law, there may be conflicts of
norms and conflicts between courts and tribunals about jurisdiction and substantive
interpretation of rules between EU law and general international law (‘fragmentation’).

Fourthly, general international law also benefits from the more evolved, more
constitutionalised parts of international law/international organisations in several respects:
supranational rule-making, compulsory jurisdiction, strong subjectivity of the individual and
strong enforcement mechanisms available in and for EU law mean that it suffers much less
from an actual or perceived enforcement deficit often deplored with regard to general
international law. Moreover, where international law is directly effective, it benefits from
the full range of enforcement mechanisms available to EU law. In a wider sense EU law as a
further constitutionalised special legal order may be considered as a ‘laboratory of
international law’.9

Therefore, the relationship is not only a complex one, but it is not merely of niche-interest
for EU lawyers. It is of significance both for general international law which it challenges
and shapes (cf fragmentation discourse) as well as for other specialized legal orders of
international law and for questions of intersectionality of legal systems more broadly
(EU/international (or international/international), international/national, national/national).
Furthermore the constitutionalist underpinnings behind the EU have, likewise, wider
implications as a model or foil for similar regional (and possibly subject-matter oriented)
integration processes.

Finally, the relationship between international law and the EU is not confined to the
question of legal rules and their enforcement. Although this chapter will limit itself to the
legal questions, it must be noted that the EU increasingly is an ‘actor of International
Law’,10 in particular with the expected impact of the changes by the Lisbon Treaty.11 It has

9
Christian Walter, ‘International Law in a Process of Constitutionalization’ in Janne Nijman and André
Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University
Press 2007), 214; Christian Tomuschat, ‘Artikel 281 EGV: Rechtspersönlichkeit der Gemeinschaft’ in Hans von
der Groeben and Jürgen Schwarze (eds), Kommentar zum EU-/EG-Vertrag (6th edn, Nomos 2003), para 46.
10
See, e.g. Koen Lenaerts and Eddy de Smijter, ‘The European Union as an Actor in International Law’
(1999) Yearbook of European Law 95; Koen Lenaerts and E De Smijter, ‘The United Nations and the European
Union: Living Apart Together’ in K Wellens (ed), International Law: Theory and Practice - Essays in Honour of
Eric Suy (Martinus Nijhoff 1998); Enzo Cannizzaro (ed) The European Union as an Actor in International
Relations (Kluwer Law International 2002); Frank Hoffmeister, ‘The Contribution of EU Practice to International
Law’ in Marise Cremona (ed), Developments in EU External Relations Law (2008); Marise Cremona, ‘External
 4

international legal capacity, is concluding treaties, is a member or at least observer in a wide

range of international organisations and by this participation contributes to the shaping of
international law. Whereas the quantitative presence and presumed influence is non-
debatable, the practical impact of the EU’s contribution and influence has not yet been
systematically analysed, although it has both been suggested that the EU currently does not
yield (or underuses) the influence its presence on the international plane may suggest 12 and
that the influence is more significant than (of as?) would be expected.13

II. Approaches to and Perspectives on the Relationship between EU Law and

International Law

There are multiple approaches to describing the relationship between EU law and
international law. Differences are partly due to who is conducting the analysis (e.g. an EU
lawyer or an international lawyer). At a deeper level of analysis such differences are due to
the relative weight accorded to certain characteristics of the relationship between EU and
international law, to underlying assumptions about what characterises a legal system, and
the degree of formalism with which the question is approached.

In the following, firstly, the more formal basis for the relationship will be considered by
looking at the international law framework of EU law before secondly, looking at the
relationship between the two legal orders and the realities of the relationship as expressed
in the status of international law within the EU legal order.

III. The EU within the Legal Framework of International Law

An international law perspective of the EU may look to the foundations of the EU. The EU is
an international organisation created by treaty, and the treat(ies) – today the TFEU and the

Relations and External Competence: The Emergence of an Integrated Policy’ in Paul Craig and Gráinne de
Búrca (eds), The Evolution of EU Law (2nd edn, Oxford University Press 2011); Bruno De Witte, ‘The EU and the
International Legal Order: The Case of Human Rights’ in Malcolm D. Evans and Panos Koutrakos (eds), Beyond
the Established Legal Orders (Hart 2011), 135 ff.
11
See, eg. Michael Emerson and others, Upgrading the EU's Role as Global Actor. Institutions, Law and
the Restructuring of European Diplomacy (Report of the Centre for European Policy Studies (CEPS) et al, 2011),
at www.ceps.eu/ceps/dld/4134/pdf.
12
Karen E. Smith, ‘Speaking with One Voice? European Union Co-ordination on Human Rights Issues at
the United Nations’ (2006) 44 Journal of Common Market Studies 113 Karen E. Smith, ‘The European Union at
the Human Rights Council: Speaking with One Voice but Having Little Influence’ (2010) 17 Journal of European
Public Policy 224.
13
Dimitry Kochenov and Fabian Amtenbrink, ‘The Active Paradigm of the Study of the EU’s Place in the
World. An Introduction’ in Dimitry Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of
the International Legal Order (Cambridge University Press 2013); Frank Hoffmeister and Piet Jan Kuiper, ‘The
Status of the EU at the United Nations: Institutional Ambiguities and Political Realities’ in Jan Wouters, Frank
Hoffmeister and Tom Ruys (eds), The UN and the EU - An Ever Stronger Partnership (Asser Press 2006);
Hoffmeister, ‘Outsider or Frontrunner? Recent Developments under International and European Law on the
Status of the European Union in International Organizsations and Treaty Bodies’ (2007) 44 Common Market
Law Review 41; Dominic McGoldrick, ‘The International Legal Personality of the European Community and the
European Union’ in Michael Dougan and Samantha Currie (eds), 50 Years of the European Treaties Looking
Back and Thinking Forward (Hart Publishing 2009).
 5

TEU – together with the sectoral EURATOM Treaty – are the source of all EU law, either
directly by its terms or indirectly by providing the mechanisms for autonomous
(supranational) EU law-making (see, e.g. Art 249 TFEU). The EU is thus an international
organisation and EU law is a branch of international law. The ultimate power of change
(treaty amendment and exit from the treaty system), although regulated somewhat in Arts
48, 50 TEU, still rests with the Member States, a characteristic feature of the treaty basis
and rootedness in the international legal order.

The EU Treaty system is embedded in general international law in that secondary norms of
international law, for example rules of interpretation in the law of treaties (Article 31 VCLT)
or the rules of responsibility of states or international organisations14 remain applicable in
principle. The EU has (derived) international legal personality (Art 47 TEU), i.e. derived from
the act of transfer of states’ sovereignty to the EU. It is, therefore, on the international plane
bound both by international customary and treaty law, 15 including the consequences of a
breach of international law in the law of responsibility. Art 3(5) TEU recognises the
embeddedness and role of the EU in, and responsibility towards international law in the
aims of the Union:
‘In its relations with the wider world, the Union shall uphold and promote its values and
interests and contribute to the protection of its citizens. It shall contribute to peace,
security, the sustainable development of the Earth, solidarity and mutual respect among
peoples, free and fair trade, eradication of poverty and the protection of human rights, in
particular the rights of the child, as well as to the strict observance and the development of
international law, including respect for the principles of the United Nations Charter.’

A general constitutional openness of the EU towards international law – which indeed is

emphasised regularly by the EU courts16 – may be derived from its natural embeddedness in
the international legal order and constitutional aim as expressed in Art 3(5) TEU. 17 However,
the abstract and general question of the openness of the EU legal order towards
international law does not automatically resolve the question what status international law
has within the EU legal order. It must be noted however, that framing the question in this
way, that is, in analogy to monist or dualist approaches of international law in domestic
legal orders may implicitly introduce assumptions in the analysis; however the concepts are
still useful to identify empirical patters. There is also a substantive justification for this
approach: international law itself is not normative about its effect within a legal order of
states, and the same is true for international organisations. It might be argued in support of
a monist approach to international law within the EU legal order that an international
organisation is a treaty based creature of international law, and hence more immediate to
international law than states; hence a monist approach might appear more intuitive.
However, it might also be argued, conversely, that international organisations only derive
their existence and power from an act of transfer of powers by states as principal actors of
14
See in detail the contributions to Evans and Koutrakos, The International Responsibility of the
European Union: European and International Perspectives (n 3).
15
This has been stressed regularly by the EU courts, see eg. C-162/96 Racke v Hauptzollamt Mainz
[1998] ECR I-3633, para 55; C-286/90 Ankagemyndigheden v Poulsen and Diva Navigation Corp [1992] ECR I-
6019, para 9 f; Kadi I (n 1), para. 291 f; C-366/10 Air Transport Association of America v Secretary of State for
Energy and Climate Change [2011] ECR I-(nyr) (GC), para 101 (‘ATAA’).
16
See above (n 15).
17
Ziegler (n 2), 292 f with further references.
 6

international law; that they are established by treaties which reflect the volition of states
and which lay down more specific rules than general international law – or even derogate
from general international law. Hence such arguments remain inconclusive. Moreover, if
states are not bound to give a specific status to international law within their legal orders,
they can shape the relationship of the law of an international organisation and general
international law within the legal order of the international organisation in almost any way
they like. This is notwithstanding the fact that an international organisation will remain
bound by international law on the international plane. The international law perspective
gives therefore rise to an interpretative rule following from a presumption that Member
States would not create a conflict of obligations which would expose them to state
responsibility.18

International obligations of the EU may arise from all sources of international law, in
particular customary international law and treaty law. The EU has the power to conclude
treaties (Art 216(1) TFEU, 37 TEU) where it has competence to act, either explicitly or
impliedly: where the Union has internal competences, it also is presumed to have external
competence to conclude treaties.19 It has made widespread use of its competences in the
common commercial policy.20 A special case of treaties in the EU context are so called
mixed-agreements concluded both by the EU and the Member States in areas of shared
competence with third states or other subjects of international law.21

Traditionally, international obligations of the EU may also arise from functional succession
into the Member States’ obligations. This famously has been held to be the case for the
GATT in International Fruit Company.22 However, the ECJ adopted subsequently a very
narrow approach allowing for succession into Member States’ obligations only in case of ‘a
full transfer of the powers previously exercised by the Member States to the Community’.23
This virtually rules out succession into obligations, and the Court has been much criticised
for its strict approach.24 On the basis that one rationale of succession into Member States’
obligations is to avoid conflicts of obligations for the Member States, 25 a more nuanced
approach would consider succession in the individual obligation at issue rather than
requiring a full transfer of power to the EU in an entire area of law, which in any case is a
very open-textured and unclear requirement. In contrast to the ECJ on appeal, the CFI in
Kadi I had held that the EU had – by virtue of EU law – succeeded into the Member States’
obligations in so far as the EU had assumed powers previously exercised by the Member

18
C-377/98 Kingdom of the Netherlands v European Parliament and Council of the European Union
(Directive on Biotechnological Inventions) [2001] ECR I-7079, para. 55.
19
See Eeckhout (n 3), 71 ff.
20
See for more detail ibid, 11 ff.
21
For more details about the specific problems relating to mixed agreements see, e.g. Eleftheria
Neframi, ‘Mixed Agreements as a Source of European Union Law’ in Enzo Cannizzaro, Paolo Palchetti and
Ramses A. Wessel (eds), International Law as Law of the European Union (Martinus Nijhoff 2011); Christophe
Hillion and Panos Koutrakos (eds), Mixed Agreements Revisited: The EU and its Member States in the World
(Hart Publishing 2010).
22
Joint Cases 21-24/72 International Fruit Co. NV v Produktschap Voor Groenten en Fruit [1972] ECR
1219, paras 110 ff.
23
C-308/06 Intertanko et al. v Secretary of State for Transport [2008] ECR I-4057, para 49; confirmed
recently in ATAA (n 15), para 62 ff, 71 – in regard to the Chicago Convention on International Civil Aviation.
24
Eeckhout (n 3), 400; Ziegler (n 2), 289 f.
25
Ziegler (n 2), 289.
 7

States. In other words, the EU was bound by the Charter, but neither by virtue of being a
member of the UN (which it is not) nor by succeeding into the Member States’ obligations
under the UN Charter by virtue of international law, but by virtue of EU law. As a result the
UN Charter and Security Council Resolutions were binding on the EU. The EU was not to
infringe or impede Member States’ obligations under international law, but had to enable
the performance of such obligations.26 On appeal, the ECJ did not follow this approach,
therefore raising doubts in how far it considers the EU to be bound by the UN Charter.

Furthermore, the EU is bound by what may be called objective elements in international

law. Treaties cannot derogate from ius cogens rules (Art 53 VCLT). The UN Charter is
recognised to be a treaty of special universal character capable of creating binding
obligations even for non-members (states, international organisations and other non-state
actors). Its special status is expressed in Art 103 of the UN Charter27 and may be further
supported by emerging notions of an international community.28 Such a view is reflected in
the UK’s argument in Kadi I where it referred to ‘special status of resolutions’ of the UN
Security Council and the primacy of Charter obligations to argue that the EU was bound by
the resolutions.29 Security Council Resolutions frequently call on non-members, in particular
international organisations to comply with their content, e.g. calling ‘all States and
international organizations to act strictly in accordance with’ the embargo against Iraq. 30
This claim remained unchallenged or was even accepted.31

IV. The Status and Effect of International Law in the EU Legal Order

1. The General Approach

26
T-315/01 Kadi v Council and Commission [2005] ECR II-3649, para 192 f, 203 f. The ECJ bypassed the
issue on appeal by adopting a dualist approach to the effects of international law in the EU legal order.
Following this logic, it therefore did not have to pronounce on the issue.
27
See Alexander Orakhelashvili, ‘Article 30: Application of Successive Treaties Relating to the Same
Subject Matter’ in Olivier Corten and Pierre Klein (eds), The Vienna Convention on the Law of Treaties A
Commentary (Oxford University Press 2011), para 41 ff.
28
Christian Tomuschat, ‘Die internationale Gemeinschaft’ (1995) Archiv des Völkerrechts 1; Bardo
Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Columbia
Journal of Transnational Law 529; Andreas Paulus, ‘The Emergence of the International Community’ in Janne
Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law
(OUP 2007); Walter (n 9), 214.
29
Kadi I (n 1), para 276, see also paras 262, 268
30
SC Resolution 687 (1991), op para 25. See also SC Resolution 670 (1990), op paras 1, 3, 4, 6-10; SC
Resolution 1267 (1999), op paras 3-5, 7; SC Resolution 1333 (2000), op paras 4 f; SC Resolution 1373 (2001), op
paras 1-3, 6; SC Resolution 788 (1992), op para 5 and 752 (1992), op para 1; Sebastian Bohr, ‘Sanctions by the
United Nations Security Council and the European Community’ (1993) 4 European Journal of International Law
256 ff.
31
In the case of Switzerland (while not yet a UN member) in regard to its obligations under Chapter VII
the Iraqi invasion of Kuwait, Christian Tomuschat, ‘Obligations Arising for States Without or Against Their Will’
(1993 IV) Recueil des Cours 195, 329, 356; Daniel Thürer, ‘UN Enforcement Measures and Neutrality. The Case
of Switzerland’ (1992) 117 Archiv des Völkerrechts 69.
 8

The EU treaties do not lay down explicit rules about the status of international law within EU
law. This is true both for treaty and customary international law. Although Art 216(2) TFEU
lays down that treaties are binding on the institutions of the EU and the Member States, the
provision refers to the binding effect of treaties internationally rather than their effect
within EU law. Art 216(2) is generally interpreted as having its principal thrust in making
treaties which have been concluded by the EU also binding on the Member States (who may
not be parties to the treaty), and not as making all treaties directly effective within the EU
legal order.32 The question therefore had to be addressed by the EU courts from scratch,
drawing from the approaches of states in regard to the interaction of national and
international law, but also adapting these approaches to the specific situation of the EU.

Interactions between international law and EU law may be approached from (at least) two
perspectives: from the formal perspective of the source of international law (treaty or
customary international law) and/or from a perspective that looks at the substance and
effect of the interaction. The ‘substantive’ perspective may cut across the one oriented
according to sources.

From the perspective of the effect of international law within EU law, EU courts approach
international law in at least three ways: Firstly, international law may enjoy direct effect
within EU law. In other words it will apply automatically without an act of transformation
into the EU legal order. It is obvious that this is the strongest effect international law will
enjoy in EU law. Secondly, and a somewhat weaker form of interaction, international law
will be relevant in interpreting EU law. Methodologically, the boundaries between direct
effect and interpretation are sometimes blurred in the jurisprudence of the courts, in
particular where the results of direct effect and interpretation are the same because an
interpretation in conformity with international law has prevailed. Thirdly, a ‘substantive
borrowing’ may occur where no formal relationship exists. This is in particular the case in
regard to foreign (national) law.33 In that way, general international law fills gaps in EU law.
Within EU law it may be relevant in different ways, ranging from mere inspiration by a
persuasive authority to feeding substance into a formal source of EU law, in particular,
general principles of (EU) law. Famously, EU human rights norms were entirely developed in
this way by the Court.34 Such substantive interaction which is frequently linked to shared
values across legal orders, is a mechanism of facilitating coherence and points to the
openness of the EU legal order towards other legal orders, including the international legal
order.35 Direct effect and the principle of conform or consistent interpretation of
international law and EU law will be explored in further detail below.36

32
Eeckhout (n 3), 326 f.
33
See also Christopher McCrudden, ‘Judicial Comparativism and Human Rights’ in Esin Örücü and David
Nelken (eds), Comparative Law Handbook (Hart 2007), 380 for examples and critique.
34
Andrew Williams, EU Human Rights Policies. A Study in Irony (Oxford University Press 2004), 145-157;
Philip Alston (ed) The EU and Human Rights (OUP 1999); Bruno de Witte, ‘International Law as a Tool for the
European Union’ (2009) 5 European Constitutional Law Review 265 ; Anne Peters, ‘Supremacy Lost:
International Law Meets Domestic Constitutional Law’ (2010) 3 Vienna Online Journal on International
Constitutional Law 170.
35
See in more detail Ziegler (n 2), 308 f.
36
See sections IV.2 and 3.
 9

Both customary and treaty law have consistently been considered to be ‘integral part’ of EU
law and at least capable of direct effect.37 This is highly significant because of the
consequences both within the legal order of the EU and of its Member States: if
international law is directly effective in the EU legal order, it will also have direct effect
within the legal orders of all Member States as Union law and enjoy supremacy over
national law.38 EU law thus acts as a ‘door opener’39 for international law in the Member
States’ legal order and provides an ‘enforcement boost’ because international law can be
enforced by all mechanisms used to enforce EU law. Of particular relevance is the
enforcement by national courts in the Member States via the doctrine of direct effect and
supremacy of EU law. The doctrine of supremacy of EU law generally also elevates the
hierarchical status of international law in a Member State’s legal order (unless that Member
States accords primacy to international law anyway).

Although the reference to international law being ‘integral part’ of EU law can be
interpreted as a general presumption for direct effect of international law in the EU legal
order, a more detailed analysis of the effect of international law in specific scenarios is
necessary to fully assess the relationship.

2. Customary International Law

Similar to many national legal systems, customary law generally is applied directly by the EU
courts.40 It regularly applies principles from the international law of treaties. 41 Other rules
that have been applied concerned the scope of jurisdiction under international law,42 the
international obligation of states to admit their own nationals to their territory, 43 rules on
the nationality of persons and ships44 and the status/immunities of a head of state under
international law.45 It has held that customary international law, just like treaty law, also

37
181/73 Haegeman v Belgium [1974] ECR 449, para 5; 104/81 Kupferberg v Hauptzollamt Mainz [1982]
ECR 3641, para 13; Racke (n 15), para. 46; Intertanko (n 23), para 38; ATAA (n 15), para 73, 101.
38
See Peters, ‘The Position of International Law within the European Community Legal Order’ (n 8), 31 f.
39
Franz C. Mayer, ‘European Law as Door Opener for Public International Law?’ in Société Française
pour le Droit Internationale (ed), Droit International et Diversité des Cultures Juridiques - International Law and
Diversity of Legal Cultures (Pedone 2008).
40
Racke (n 15), para 46; Poulsen (n 15), para. 12 ff; Pieter Jan Kuijper, ‘Customary International Law,
Decisions of International Organisations and Other Techniques for Ensuring Respect for International Legal
Rules in European Community Law’ in Jan Wouters, André Nollkaemper and Erika de Wet (eds), The
Europeanisation of International Law: The Status of International Law in the EU and its Member States (Asser
Press 2008), 88 ff; Jan Wouters and Dries Van Eeckhoutte, ‘Enforcement of Customary International Law
through European Community Law’ in Jolande M. Prinssen and Annette Schrauwen (eds), Direct Effect
Rethinking a Classic of EC Legal Doctrine (Europa Law Publishing 2002) ff.
41
C-70/09 Hengartner and Gassner v Landesregierung Vorarlberg [2010] ECR I-7233, para 36; C-386/08
Brita GmbH v Hauptzollamt Hamburg-Hafen [2010] ECR I-1289, para 44 f; T-115/94 Opel Austria GmbH v
Council [1997] ECR II-39; Racke (n 15).
42
89, 104, 114, 116, 117 & 125-129/85 Ahlström Oy v Commission [1988] ECR 5193; ATAA (n 15), para
125 ff (in regard to the exercise of jurisdiction in the air space and overflight, over high seas and the question
of the exclusivity of jurisdiction by the state of registration of aircraft.
43
42/74 Van Duyn v Home Office [1974] ECR 1337, para 22.
44
C-200/02 Chen v Secretary of State for the Home Department [2004] ECR I-9925, para 37; C-135/08
Janko Rottmann v Freistaat Bayern [2010] ECR I-1449 (GC), para 39, 48, 53; Poulsen (n 15).
45
C‑ 364/10 Hungary v Slovakia [2012] ECR I-(nyr), para 44.
 10

was a standard of assessment in the review of the validity of EU secondary legislation

(regulations, directives, decisions), thus reflecting the view that customary international law
was ranking more highly within the EU legal order than secondary legislation.46 The Court in
ATAA clarified the criteria when individuals may rely on customary international law.
Individuals can only rely on a rules or principles of customary international law only where
‘first, those principles are capable of calling into question the competence of the European
Union to adopt that act (…) and, second, the act in question is liable to affect rights which
the individual derives from European Union law or to create obligations under European
Union law in his regard’.47 In applying customary law, the EU courts however limit
themselves to a review whether the EU legislative institutions have made ‘manifest errors
of assessment concerning the conditions for applying those principles’ because ‘a principle
of customary international law does not have the same degree of precision as a provision of
an international agreement’.48

Till date there has not been a successful challenge of the validity of a Union measure based
on customary international law. This may simply reflect the application of customary
international law to the facts of the specific case. But it raises at least some doubts as to
whether the courts would actually annul EU secondary legislation which is in conflict with
customary international law.

3. International Treaties

Traditionally the EU courts awarded wide-ranging direct effect to treaties. Direct effect of
international treaties could be considered the rule,49 subject to fulfilling three conditions:
first, the EU must be bound by the treaty; second, the relevant treaty provision must be
sufficiently clear, precise and unconditional to be capable of direct application, and third,
direct effect must not be precluded by the ‘nature and structure’ or ‘broad logic’ of a
treaty.50 If the provision was capable of direct effect, there was a presumption for its direct
effect, consistent with a monist approach.51 Until 2008 the EU courts only had precluded
direct effect as being against the nature or logic of a treaty in one case, namely in regard to
the GATT/WTO Agreement. Although not without critics,52 this result was based on the

46
Racke (n 15), para 46; ATAA (n 15), para 74, 84, 107.
47
ATAA (n 15), para 107. Eileen Denza, ‘International Aviation and the EU Carbon Trading Scheme:
Comment on the Air Transport Association of America Case’ (2012) 37 European Law Review 314, 324 points
to the problem with this approach as it potentially precludes relevant customary international law which is not
directly effective as a standard of asssessment of the validity.
48
Racke (n 15), para 52; ATAA (n 15), para 110.
49
Eeckhout (n 3), 435, 331 ff.
50
Intertanko (n 23), para 45; Joined cases C-120/06 P and C-121/06 P FIAMM and Fedon v Council and
Commission [2008] ECR I-6513 (GC) and ibid Opinion of Advocate General Maduro, para 27 ff; International
Fruit Co. NV v Produktschap Voor Groenten en Fruit, para 25 f; C-192/89 Sevince v Staatssecretaris van Justitie
[1990] ECR I-3461; ATAA (n 15), para 53 ff.
51
Enzo Cannizzaro, ‘Neo-Monism and the European Legal Order’ in Enzo Cannizzaro, Paolo Palchetti and
Ramses A. Wessel (eds), International Law as Law of the European Union (Martinus Nijhoff 2011), 36 f; cf
Eeckhout (n 3), 353 (in detail 331 ff); Koutrakos, 251 ff.
52
Nikolaos Lavranos, ‘The Chiquita and Van Parys Judgments: An Exception to the Rule of Law’ (2005) 32
Legal Issues of European Integration 449; P. J. Kuijper and Marco Bronckers, ‘WTO Law in the European Court
 11

finding that the obligations under the GATT/WTO Agreement were flexible, subject to
negotiation and reciprocity. It was considered to be the exception to the rule. 53

However, with three judgments of 2008, the direct effect of treaties appears to have
become more restricted. All three requirements, i.e. the existence of an obligation binding
the EU, the clear, precise and unconditional nature of the obligation and the ‘nature and
structure’ of the treaty were interpreted restrictively.

In the longstanding EU-WTO bananas dispute in which the EU had failed to fully implement
a decision of the WTO Dispute Settlement Body within reasonable time, the ECJ held that
the decisions of the WTO Dispute Settlement Body were not directly effective because of
the ‘nature and structure’ of the agreement even after the passing of the deadline for their
implementation.54 Thus, the Court excluded direct effect beyond the substantive rules of
the GATT/WTO Agreement to final decisions of the DSB even though the reasons for
excluding direct effect of the substantive provisions relating to their flexibility and the role
of reciprocity and negotiation in the GATT do not seem easily transferable to binding
decisions of the DSB.55

Similarly, the ECJ excluded UNCLOS – frequently called the ‘constitution of the sea’ – from
direct effect. The issue arose in a challenge of the validity under EU law of the Directive on
ship-source pollution which, as had been argued amongst others, imposed standards that
were not compatible with UNCLOS. In denying direct effect, the Court invoked firstly, the
exception of the ‘nature and structure’ of UNCLOS as being primarily state-centred in
nature.56 Secondly, it also conceived the requirement of direct effect that a norm has to be
clear, precise and unconditional more narrowly: the Court required that a provision must
confer a truly subjective/individual right to be capable of direct effect. 57 This is a high
threshold for individuals who want to rely on provisions of international law within the EU
legal order, in particular since true individual rights are still rare in international law.
Furthermore, this is also in contrast to the wider notion of individual rights and direct effect
which is applied in regard to EU law internally. It would therefore be preferable if the
individual interest protected by an international norm was decisive for its direct effect
without the need of a fully-fledged subjective right where norms are operational (as indeed
seems to be the case now in regard to customary international law58). Norms which protect

of Justice’ (2005) Common Market Law Review 1313; Steve Peers, ‘Fundamental Right or Political Whim? WTO
Law and the European Court of Justice’ in Gráinne de Búrca and Joanne Scott (eds), The EU and WTO (2001).
53
See above (n 50) and in favour of this approach Eeckhout (n 3), 375 ff (more strongly in favour in the
first edition of his book Piet Eeckhout, External Relations of the European Union (OUP 2004) 302 ff); Marco
Dani, ‘Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of
International Trade Bystanders’ (2010) 21 European Journal of International Law 303.
54
FIAMM and Fedon (n 50), para 108 ff, 310, 325.
55
Eeckhout, EU External Relations Law (n 3), 367 ff, 380 f, expressing concern that some of the
reasoning may be transferred to the ECHR/ECtHR once the EU accedes, at p. 381; Dani, 310.
56
Intertanko (n 23), para 54, 58, 65.
57
ibid, para 59, 61.
58
in ATAA (n 15), para 107, see above text aroun n 47.
 12

individual interests but are framed in traditional terms of state obligations, such as norms of
international humanitarian law should not be precluded from direct effect.59

A similarly restrictive approach to direct effect was adopted in regard the Kyoto Protocol
which was held not to be sufficiently clear, precise and unconditional to be directly
effective.60

Direct effect was also denied to the UN Charter as well as the Chicago Convention on
International Civil Aviation because the EU, not being a party to the treaties, was formally
not under an international obligation.61 The reasoning in Kadi I is broader than that. The
case concerned at the very least an indirect conflict of obligations under the UN Charter and
EU human rights principles. The EU has been implementing UN Security Council resolutions
by regulations which imposed sanctions (travel ban and asset freeze) on listed individuals
suspected of terrorism. The crux of the cases lies the absence of a remedy in the listings
procedure and UN level.62 The Kadi cases of 2008 and 201363 challenged the validity of the
EU implementing regulations of the UN sanctions on human rights grounds (in particular the
lack of judicial protection).

The Court excluded any obligations resulting from the UN Charter from the application
within the EU legal order for three reasons, each of which alone could have been sufficient
to exclude any international obligations from consideration of the Court. The judgment of
the Court somewhat sidestepped the question of whether the EU, not being a party to the
UN Charter, was bound by obligations arising under the Charter by relying heavily on the
other two reasons (but implies that there was no obligation).

Firstly, and as what may be called the ratio decidendi of the judgment, the ECJ adopted a
strong dualist approach of a more general nature than those related to the details of the
conditions of direct effect of treaties. It emphasised that the EU was an ‘internal and
autonomous legal order,’64 and decided the case purely on the basis of reviewing the
validity of EU regulations by the (constitutional) human rights standards of EU law. This
construction logically excluded the relevance of international obligations from the case, 65
categorically ruling out any direct review of the Security Council Resolutions, even for
breaches of ius cogens.66 But the Court strongly upheld human rights, rooted in
constitutional principles of the EU. The result of the decisions can hardly be criticised, and
also has to be seen in the light of the very thin accountability mechanism at international
59
Cf in more detail Ziegler (n 2), 301 ff. In favour of the approach of the Court (albeit critical of the
narrow interpretation of the subjective rights in the Intertanko case see Eeckhout, EU External Relations Law
(n 3), 382 f.
60
ATAA (n 15), para 75 ff.
61
ibid (n 15), para 69 ff.
62
For a brief overview of the EU framework in context see Jan Klabbers, ‘Europe's Counter-terrorism
Law(s): Outlines of a Critical Approach’ in Malcolm D. Evans and Panos Koutrakos (eds), Beyond the Established
Legal Orders (Hart 2011), 211 ff.
63
Kadi I (n 1); Joined Cases C-584/10 P, C-593/10 P and C-595/10 P European Commission et al v Yassin
Abdullah Kadi [2013] ECR I-(nyr) (Kadi II’).
64
Kadi I (n 1), para 317.
65
Peter Hilpold, ‘EU Law and UN Law in Conflict: The Kadi Case’ (2009) 13 Max Planck Yearbook of
United Nations Law 141, 160; Ziegler (n 2), 289 f.
66
Kadi I (n 1), para 287.
 13

level and more broadly the much reduced accountability of executive power in international
affairs.67 The Court creates such accountability in Kadi I and even more so in Kadi II.68 The
strongly dualist reasoning however is to be criticised as unnecessarily antagonistic to
general international law as manifested in the UN Charter, and to the Charter as a treaty of
special constitutional significance for the international legal order.

In this overall context, a – mostly implicit – element of the Court’s reasoning is most
worrying. It does not concern the effect and details of the application of international law
but the fundamental question of its binding effect on the international level. The Court
refers to Art 300(7) EU (now Art 216(2) TFEU) which provides that agreements concluded by
the Union are binding on it as well as the Member States and then goes on hypothetically
‘supposing it to be applicable to the Charter of the United Nations.’69 These dicta are not
decisive for the outcome of the case. Following the logic of the dualist/constitutional
approach of the Court it becomes less relevant70 for the judicial review by the Court
whether there is an international obligation. Art 103 of the UN Charter is excluded from the
consideration of the ECJ by the dualist rationale. But the Court blurs the distinction between
the international and the internally binding character of a norm and casts obiter at least
some doubts on the question whether the EU is bound by the UN Charter.71

Such a position would be problematic as a matter of law. It cannot be assumed that the
Member States when creating the EU intended to breach Art 103 of the Charter. However,
this would be the case if they authorised the EU to act contrary to Member States’
obligations under the UN Charter. Art 351 TFEU supports this argument.72 As criticized
above73 the EU could be considered to have functionally succeeded in Member States’
obligations under the UN Charter as a matter of EU law (as the CFI had held 74) at the very
least in a more nuanced approach in regard to the specific obligation to implement UN
terrorist sanctions. Indeed in other contexts the Court refers to the EU’s obligations under
the Charter, but it does not respond to the CFI’s succession argument. However, in the
context of an international treaty which is not binding on the EU itself but on its Member
States, EU law still needs to take account of it though interpretation in the light of the
Member States’ obligations because of the principle of sincere cooperation (Art 4(3) TEU).

Furthermore, it may be asked why the Court embarks on a statement as to the international
obligations under the Charter if it is not relevant to its decision. There may be two possible
reasons which even contradict one another: on the one hand, the argument that there is
not international obligation on the EU under the Charter backs up the result of the dualist
argument and at the same time pre-empts further interpretation in the light of international

67
The Kafkaesque factual scenarios of some of the anti-terrorism sanction cases demostrate how the
UN Al-Quaida sanctions mechanism may led to a total lack of accountability of national executives involved.
68
Kadi I (n 1); Kadi II (n 63).
69
Kadi I, para 306 f.
70
The international obligation remains relevant in the context of interpretation in conformity with
international law, see below IV.5.
71
A similar approach was taken in regard to the Chicago Convention on International Civil Aviation in
ATAA (n 15), para 69 ff.
72
See below text around n 82.
73
See text near n 24.
74
Kadi I (CFI) (n 26), para 192 f.
 14

law. On the other hand, it may even in a sense mollify the outcome along the following
logic: the Court decides on the basis of autonomy but this does not lead to a breach of
international law because there is no obligation on the EU in the first place. However, this
approach hardly seems to take into account the special nature and significance of the UN
Charter. Nor does it amount to a ’responsible’ approach towards general international law.
It is inconsistent with references to the binding nature of international law even in the same
judgment and the emphasis of the fact that the EU takes international law seriously.

Secondly, in addition to the reasoning based on dualism and the autonomy of the EU legal
order, the Court gives a supporting reason in the Kadi I case (which is raised implicitly
hypothetically: if the Charter was binding internally): it refers to fundamental non-
derogable constitutional principles of the EU: ‘the principles of liberty, democracy and
respect for human rights’ that were at issue and from which the Court held no derogation
was allowed.75 This substantive argument from a normative hierarchy within EU (and
international) law is the most convincing one in Kadi I. It is less antagonistic than the
formalism of the strongly dualist premise. The argument from normative hierarchy would
have been sufficient as a ratio decidendi in Kadi I in itself, provided the fundamental
principles would have been raised on an appropriate normative basis: not on the basis of
autonomy, internal normative hierarchy and denial of the binding nature of certain
international obligations. But instead the result should have been based on an acceptance
of an international obligation resulting directly or indirectly from the Member States’
obligations under the Charter; and the interpretation of such obligations and, if necessary,
an engagement with their limits, resulting both from international and EU norms of
fundamental importance.

Arguably, in Kadi II the Court relied more on the consideration of hierarchy of constitutional
norms than on the autonomy/dualism logic of Kadi I, while accepting the de facto precedent
of Kadi I. In a surprisingly short passage, given that the Court was invited by Council,
Commission and several interveners (eg. UK) to revisit the dualist approach adopted in Kadi
I, it merely refers explicitly to the normative hierarchy argument relating to fundamental
constitutional values.76 There is no verbal reference or even cross-reference to autonomy of
the EU or it being an internal legal order in the Kadi II judgment.

4. The Hierarchy of International within the EU Legal Order

It follows from the case law mentioned above that once international law is directly
applicable within the EU legal order, it ranks more highly than EU secondary legislation and
can be a ground for the validity review of legislative acts of the EU.77 International law,
however, generally does not rank more highly than EU primary law, i.e. the EU Treaty
provisions.78 Albeit less open than a monist approach, this approach thus ranks
international law between secondary legislation and the ‘constitution’ of the EU. This is

75
See below text following n 77.
76
Kadi II (n 63), para 66.
77
Racke (n 15), para 46.
78
Tomuschat, ‘Artikel 281 EGV: Rechtspersönlichkeit der Gemeinschaft’ (n 9), para 43.
 15

similar to the rank of treaties in some domestic legal systems79 and amounts to a relatively
open approach to incorporating international treaty law.80

There are exceptions to this rule allowing for the displacement of primary EU law by
international law, in particular, norms of ius cogens from which the EU Treaties cannot
derogate.81 Within the EU Treaties, Art 351 TFEU provides for an explicit exception of a
temporal rationale for obligations predating a Member State’s joining of the Union. Art 347
TFEU lists a number of grounds which may practically or legally affect a Member State’s
ability to comply with the TFEU (internal disturbances, war and obligations accepted for the
purpose of maintaining peace and security).

The EU recognises in Art 351 TFEU the need to resolve conflicts arising from conflicting
obligations predating the Treaties for Member States. Treaties concluded by a Member
State prior to the entry into force of what is now the TFEU, for that particular state, i.e.
either at the inception of the EEC Treaty in 1958 or at the later date of accession of a
Member State to the EU may prevail over primary EU law. (New) Member States are not
forced by EU law to breach existing obligations, recognising the interests of third states that
are involved; however, EU law puts them under an obligation to ‘take all appropriate steps’
to eliminate incompatibilities. Traditionally, this meant that Member States were under an
obligation to renegotiate, suspend or terminate a treaty.82 Recently, the CJEU has taken a
firm stand in regard to the obligations of (accession) states to eliminate conflicts with other
treaty rules.83 For bilateral investment treaties it has required that conflicts with EU law
must be eliminated not just regarding conflicts with EU primary law and secondary
legislation in force, but also with potential future harmonising (secondary) legislation.
Member States are now required to negotiate a special reservation so as to allow for
immediate implementation of future EU law that might clash with a pre-existing treaty to
pre-empt a clash from arising in the first place.84

Following the 2008 Kadi I judgment and reinforced by the 2013 Kadi II judgment85, a further
hierarchy within EU law has emerged: that between ‘ordinary’ EU primary law and primary
law that concerns the ‘foundations’ of the Union, i.e. constitutional principles of the EU
from which no derogation is possible, in particular ‘the principles of liberty, democracy and
respect for human rights and fundamental freedoms enshrined in Article [6(3) TEU] as a

79
For example in France, Greece, Spain.
80
It compares favourably with countries that accord incorporated treaties only equal rank with a
statute, such as in the UK (apart from the TFEU), the USA, Germany, South Africa.
81
Art 53 VCLT. Cf Kadi I (CFI) (n 26), para 226 ff – albeit with regard to the review of the UN Security
Council.
82
C-473/93 Commission v Luxembourg [1996] ECR I-3207; C-62/98 Commission v Portugal [2000] ECR I-
5171;
83
Critically also Benoît Mayer, ‘Case C-366/10, Air Transport Association of America and Others v.
Secretary of State for Energy and Climate Change, Judgment of the Court of Justice (Grand Chamber) of 21
December 2011, nyr.’ (2012) 49 Common Market Law Review 1113, 1125 ff.
84
C-205/06 Commission v Austria [2009] ECR I-1301 (GC), para 36 ff; see also C-249/06 Commission v
Sweden [2009] ECR I-1335 (GC); C-118/07 Commission v Finland [2009] ECR I-10889. Critically Nicolaos
Lavranos, ‘Protecting European Law from International Law’ (2010) 15 European Foreign Affairs Review 265,
279 ff.
85
See above text around n 76.
 16

foundation of the Union.’86 If such a constitutional hierarchy is assumed, it logically must

limit the exception of the application of the ‘ordinary’ treaty rules of Art 351 TFEU and Art
347 TFEU.87

The distinction between ‘ordinary’ primary EU law and primary EU law that amounts to
constitutional principles also would be logically capable of limiting the combined effect of
Art 351 TFEU and Art 103 UN Charter. These norms read together provide for the primacy of
the UN Charter obligations over other obligations of UN Member States in the internal legal
order of the EU (to implement Member States’ obligations under the Charter). In contrast,
the mere dualist rationale alone would be insufficient to explain why Art 103 UN Charter
and Art 351 TFEU together would not provide the binding conflict rule of the EU legal order,
besides disregarding the special nature of the UN Charter as a treaty.88 However, this
disjunction of the international obligation and internal non-implementation in the EU raises
the question of the breach of international law by the EU Member States and potentially
even by the EU,89 which needs to be justified or at least mitigated under international law,
as is argued below.

5. Interpretation of EU Law in Conformity with International Law

While direct effect is a more formal and therefore stronger ‘door opener’ for international
law in the EU legal order, the potential of the more open-textured principle of conform (or
consistent) interpretation is not to be underestimated. At times direct effect comes in
disguise of interpretation of an existing EU rule in the light of an international rule.90 If the
EU is party to an international treaty, including a mixed agreement, the Court requires that
EU secondary legislation is interpreted ‘as far as possible’ in the light of the international
obligations of the EU.91 According to the hierarchy of norms in EU law, international
agreements have primacy over secondary legislation, and ‘interpretation in conformity with
international law must be given priority over other methods of interpretation’. Conform
interpretation is, however, limited by ‘rules and principles which take precedence over the
[Union’s] obligations under international law’, such as ‘general legal principles and in
particular the principle of legal certainty’ which precludes a contra legem interpretation.’92

But even where the Court is not considering the EU to be formally bound by an international
treaty concluded by the Member States because the criteria of succession into Member

86
Kadi I (n 1), para 303, see also 282 ff, 304 ff. Katja S. Ziegler, ‘Strengthening the Rule of Law, but
Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights’ (2009) 9
Human Rights Law Review 288, 297.
87
Art 347 TFEU allows to derogate from common market (i.e. primary) rules in situations of national
emergency and to implement obligations in the context of maintenance of peace and international security.
88
See, e.g. Hilpold (n 65), 161; see also Ziegler, ‘International Law and EU law: Between Asymmetric
Constitutionalisations and Fragmentation’ (n 2), 308.
89
See above text around fn 22, 74 for the argument that the EU is bound by the UN Charter.
90
See for example Hungary v Slovakia (n 45), para 44 where limitations on citizenship are fleshed out by
the customary international law on the status of heads o states – direct effect or interpretation?
91
C-53/96 Hermès International v FHT Marketing Choice BV [1998] ECR I-3603, para 28; C-61/94
Commission v Germany [1996] ECR I-3989, para 52 (‘International Dairy Arrangement’).
92
AG Kokott, paras 107 f.
 17

States’ obligations have not been satisfied,93 but where it nevertheless implements aspects
of it due to Member States’ obligations in this regard, it applies the principle of conform
interpretation. For example the Court held that when interpreting the EU regulations
implementing UN Security Council resolutions that it must ‘take due account of the terms
and objectives of the resolution concerned and of the relevant obligations under the Charter
of the United Nations’ as well as the ‘wording and purpose’ of the relevant Security Council
Resolution.94 Other treaties, in particular in the area of human rights have enjoyed a
relatively strong role within EU law, either by interpretation95 or even more so by linking
them to general principles of law. General principles of law allow the Court to import
standards to which the EU is not formally related.96 This has been most notably the case in
regard to the ECHR to which the EU till date has not acceded – although this will happen in
the future.97 However, the Court has at times also left the interpretation of an international
treaty to which the EU is not a party to the courts of the Member States.98

As mentioned the Court applies customary international law directly, but this often happens
in the form of interpretation in the light of customary international law. The notions of
direct effect and conform interpretation are particularly blurred with regard to customary
international law. For example, it has interpreted EU law in the light of customary
international law and general principles of international law in regard to the nationality of
persons and ships, pacta sunt servanda, the rebus sic stantibus rule and interpretation in
good faith in the law of treaties.99 In the Opel Austria case100 it used both direct effect of

93
See above text around fn 22.
94
Kadi I (n 1), para 296 f. C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport,
Energy and Communication and Others [1996] ECR I-3953, para 13 ff; Kuijper, ‘Customary International Law,
Decisions of International Organisations and Other Techniques for Ensuring Respect for International Legal
Rules in European Community Law’ (n 40), 100.
95
See for the International Covenant on Civil and Political Rights and the Convention on the Rights of
the Child: C-244/06 Dynamic Medien v Avides Media [2008] ECR I-505, paras 39-41; C-540/03 Parliament v
Council (Family Reunification Directive) [2006] ECR I-5769, para 37; for the 1951 Refugee Convention: Joined
Cases C-175, 176, 178 & 179/08 Salahadin Abdulla and Others [2010] ECR I-1493, para 52 f; C-31/09 Bolbol v
Bevándorlási és Állampolgársági Hivatal [2010] ECR i-5539 (GC), paras 38; for the European Convention on
Nationality and the Convention on the Reduction of Statelessness and the Universal Declaration of Human
Rights Rottmann (n 44), para 52 f; for the International Covenant on Economic, Social and Cultural Rights C-
73/08 Bressol and Others v Gouvernement de la Communauté francaise [2010] ECR I-2735 (GC), paras 85 f ; see
in detail Opinion of AG Sharpston, paras 135 ff; Marco Bronckers, ‘The Relationship of the EC Courts with
Other International Tribunals: Non-committal, Respectful or Submissive?’ (2007) 44 Common Market Law
Review 610, 602.
96
See, for example for the Chicago Convention, ATAA (n 15), para 90 ff, esp. 104; further details at
Ziegler, ‘International Law and EU law: Between Asymmetric Constitutionalisations and Fragmentation’ (n 2),
305 ff.
97
For an overview of the accession process see Paul Craig, ‘EU Accession to the ECHR: Competence,
Procedure and Substance’ (2013) 36 Fordham International Law Journal 1114.
98
C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-4107 (GC), para 56, in
respect of the Geneva Convention on the Contract for the International Carriage of Goods by Road of 19 May
1956.
99
See already above, text around fn 40; Intertanko (n 23), paras 51-52; Eeckhout (n 3), 355 ff; Kuijper,
‘Customary International Law, Decisions of International Organisations and Other Techniques for Ensuring
Respect for International Legal Rules in European Community Law’, (n 40) 92 f; Federico Casolari, ‘Giving
Indirect Effect to International Law within the EU Legal Order: The Doctrine of Consistent Interpretation’ in
Enzo Cannizzaro, Paolo Palchetti and Ramses A. Wessel (eds), International Law as Law of the European Union
(Martinus Nijhoff 2011)
 18

customary law in EU law and the interpretation of EU law (the notion of legitimate
expectations) in the light of customary international law.101

In the light of the more restrictive trend in the doctrine of direct effect highlighted above, it
may be asked whether the principle of conform interpretation is used to compensate for
the lack of direct effect. As mentioned the principle of interpretation is widely referred to
and applied. But some recent case law suggests that the principle of interpretation may be
subject to the same sorts of rationales that restrict direct effect. In Intertanko,, the Court
does not even to attempt a consistent interpretation (in regard to MARPOL and UNCLOS)
although the Advocate General had presented an extensive and detailed interpretation of
the relevant EU Directive in the light of two conventions and customary international law
and despite the fact that the Court does not differ in its outcome. 102 Even though the Court
may have thought conform interpretation to be impossible,103 the fact that it does not
engage with or take ‘into account’ the extensive arguments of the Advocate General
contributes to the impression that the Court is reluctant to review an act of the EU against
international law.104 Hence once more it casts doubts on the actual effect of international
law in EU law.

The construction of the conflict of international law (in the form of Security Council
resolutions binding the EU Member States) and EU fundamental rights as irreconcilable in
Kadi I left little scope for a conform interpretation. By its own rationale the EU was not
bound by UN Charter and, therefore, the Charter could not become ‘integral part’ of EU law,
and in any case the hierarchy of norms in the EU legal order would preclude giving primacy
to the relevant UN Security Council Resolutions. However, hints of an interpretative
reconciliation of the conflicts seem to be even present in Kadi, although they have not been
applied to the case: the Court starts by laying out the relevance of the Security Council
Resolution for the interpretation of the contested EU regulation, i.e. that the
terms/wording, objectives and purposes ‘of the resolution concerned and of the relevant
obligations under the Charter of the United Nations relating to its implementation.’ 105 The
Court then turns to interpreting the obligations under the Charter, but only to state that the
Charter does not require Member States to give primacy within their domestic legal order to
UN Security Council Resolutions which in turn is used to justify dualist approach taken in
Kadi I.106

The purpose of Art 351 TFEU still would have required an interpretation that the conflict of
obligations between EU law and UN law has been regulated in the Treaty. One purpose of
Art 351 TFEU is to avoid conflicts of norms for the Member States (the other purpose being

100
Opel Austria GmbH v Council (n 41), paras 90 ff.
101
Eeckhout (n 3), 386 ff.
102
Opinion of Advocate General Kokott in Intertanko (n 23), paras 80 ff, esp 93, 96, 101, 111; critically as
‘excessively charitable towards the drafting of the Directive’ Eileen Denza, ‘A Note on Intertanko’ (2008) 33
European Law Review 870, 874.
103
Cf Piet Eeckhout, ‘Case note on C-308/06, The Queen on the application of Intertanko and Others v
Secretary of State for Transport, judgment of the Court of Justice (Grand Chamber) of 3 June 2008’ (2009) 46
Common Market Law Review 2041, 2056.
104
Intertanko (n 23), para 51.
105
Kadi I (n 1), para 296/297, quoted above, fn 94.
106
ibid, para 298 f.
 19

to protect third states from EU induced breaches of preexisting treaties by EU Member

States). This purpose can only be achieved effectively if Art 351 TFEU in conjunction with Art
103 of the UN Charter is interpreted in a way as to import the primacy of obligations under
the UN Charter into the legal order of the EU, i.e. to give them direct effect.

However, interpretation in conformity and harmoniously with international law does not
end here. One way for the Court to eliminate the conflict would be to consider more closely
the exact scope and possible limitations of the international obligation. Thus, a consistent
or harmonious interpretation would have been possible even in a scenario like the Kadi
where the EU legal order appears to be more ‘progressive’ in protecting human rights than
the international one.

Firstly, direct limits, even of the UN Security Council result from ius cogens as the CFI had
found in Kadi I.107

Secondly, inherent limits can be derived from international human rights law which are part
of the international legal order and the UN Charter system. Arguably it cannot be assumed
that the Security Council would, when adopting sanctions against individuals, deliberately
want to bypass such limits. Therefore a presumption could be said to operate in the light of
Art 24(2) of the UN Charter that the Security Council would not act to force states (and the
EU) to breach fundamental rights108 and to expose the UN ultimately to international
responsibility. However, this would be the consequence if the Security Council acted in
breach of international law, failing a consistent interpretation.

Thirdly, if no reconcilation by interpretation is possible, an exceptional argument from a

hierarchy of values may be invoked. Such exception may be justified as a countermeasure,
implementing the international responsibility of the UN for an internationally wrongful act.
Such a response may be considered as a decentralised mechanism to enforce the legality of
Security Council actions.109 However, the negative effects of such an exception on
international law ought to be mitigated as far as possible.110

On that basis, international and/or European human rights may be interpreted to be

inherent limits of the international obligation. The Court could have thus have gone further
in applying the consistent interpretation principle, have demonstrated more openness and
could have embedded its decision better in international law, thereby avoiding an
antagonistic signal. Admittedly, however, this would have made its decision more
complicated, and some would argue: even more antagonistic: a clear delimitation of
separate spheres is simple to understand and arguably allows the Court to distance itself

107
Cf Kadi I (CFI) (n 26), para 226 ff; see in detail Dapo Akande, ‘The International Court of Justice and the
Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?’
(1997) 46 ICLQ 309; Jose Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1.
108
This was the approach of the European Court of Human Rights in Al-Jedda v United Kingdom Appl no
27021/08, judgment of 7 July 2011, para 102. In the same vein Allan Rosas, ‘International Responsibility of the
EU and the European Court of Justice’ in Malcolm D. Evans and Panos Koutrakos (eds), The International
Responsibility of the European Union: European and International Perspectives (Hart Publishing 2013), 146.
109
See in detail Antonios Tzanakopoulos, Disobeying the Security Council. Countermeasures against
Wrongful Sanctions (Oxford University Press 2011), esp 154 ff.
110
See below text around (n 130).
 20

from the direct review of Security Council resolutions. However, against this it may be
argued that this is a rather formalistic construction of the normative conflicts at issue:
whether directly or indirectly the conflict is between the obligation to implement Security
Council anti-terrorist sanctions and human rights, whether those are located at national, EU
or international level; an indirect review via a national implementing act is only a small
distancing device.

V. Conclusions about the Relationship between International Law and EU Law

A More Restrictive Approach to International Law within the EU Legal Order

The above analysis shows that EU law is still part of international law and that there is a
strong commitment in principle of the EU to international law at international level, as
expressed in the dictum or the Court that the EU ‘must respect international law in the
exercise of its powers.’111 There are at least three respects in which general international
law stands less strongly in the relationship. They all concern the internal application of
international law within the EU legal order and relate to direct effect, the hierarchy of
international law and the possibility to derogate from EU law to honour international treaty
obligations. Firstly, in regard to direct effect, the dictum of the Court that international law
is ‘integral part’ of EU law112 traditionally could be interpreted that, as a rule, both treaty
and customary international law is part of and directly effective in the legal order of the EU,
unless certain exceptions were present. This effect resulted either from the automatic
incorporation113 of international law or from an unwritten blanket act of transformation.114
The rule that international law is generally part of EU law has been weakened considerably
by the expansion of the exceptions to the rule which reflect a shift from monism to
dualism.

Secondly, whereas the basic notion of hierarchy between EU primary and secondary law has
always been reflected in EU law, the notion of a hierarchy within EU primary law is a recent
development which limits the possibility to give priority to international law.

Thirdly, a stricter interpretation of the possibility to derogate from EU primary law for pre-
accession agreements (Art 351 TFEU) has reduced this possibility considerably. Although
this is in line with the trend, it is perhaps of least concern as Art 351 TFEU by intent is a
norm to manage transition, only that because of enlargement a constant state of transition

111
Racke (n 15), para 55; Poulsen (n 15), para 9 f; C-405/92 Etablissements Armand Mondiet SA v
Armement Islais SARL [1993] ECR I-6133, paras 13-15; Intertanko (n 23), para 51; Kadi I (n 1), para. 291 f; ATAA
(n 15), para 101.
112
See above (n 37).
113
Thus seems to be the prevailing opinion following the Court’s judgments in Haegeman and
Kupferberg, above (n 37); Tomuschat, ‘Artikel 281 EGV: Rechtspersönlichkeit der Gemeinschaft’ (n 9), para 48;
Christine Kaddous, ‘Effects of International Agreements in the EU Legal Order’ in Marise Cremona and Bruno
de Witte (eds), EU Foreign Relations Law Constitutional Fundamentals (Hart Publishing 2008), 293, 311.
114
This construction explains better how agreements are fully reviewable as acts of the Member States,
see Peters, ‘The Position of International Law within the European Community Legal Order’ (n 8) 21 ff, esp 34 f;
Kaddous (n 113), 293, fn 11.
 21

in regard to new member states has been created. This may have contributed to the stricter
approach, together perhaps with normally significant lead-up periods prior to accession.

While the more restrictive approach to international law in and by the EU legal order is
regrettable, it has to be seen in perspective: it is not less favourable than that of the
average European state. The dichotomy between an automatic incorporation of customary
international law (i.e. direct effect) and the requirement of an act of transformation for
international treaties is the most common model of interaction between national and
international law in EU Member States.115 Currently EU law still gives direct effect to
treaties, although the rules have become blurred by the exceptions. Also directly effective
international law within the EU legal order does not rank less favourably than that of states
that accord international law a rank above statutes, but below the constitution. 116 However,
in many states international law does not rank more highly than statutes.117

In Perspective: Reasons in the Internal Constitutionalisation of the EU

The (mixture of) reasons for this trend are not a deliberate assault on the international legal
order or international law as such but more of a ‘collateral damage’ (which of course does
not make it less harmful). Very much like at national level, the reasons will lie in an
outcome-oriented use of international law or be determined by what is procedurally or
argumentatively easiest and therefore most efficient for Court in a particular case (FIAMM
and Fedon, Intertanko, Kadi, ATAA). And at times there is perhaps also in a true concern
about the substantive constitutional values at issue (Kadi) of the persued regulatory goal
(Intertanko, ATAA).

The main reason for how the EU courts use international law, however, is EU
constitutionalism itself. The dynamic process of constitutionalisation may even explain a
shift of the Court’s approach over time. At one time the main concern of the Court was the
uniform and effective application of EU law (and with it of directly effective international
law), in line with the drive to establish direct effect and supremacy of EU law within the EU
legal order towards the Member States.118

‘[the effect of agreements] in the Community may not be allowed to vary according to whether their
application is in practice the responsibility of the Community institutions or the Member States and,
in the latter case, according to the effects in the internal legal order of each Member State which the
law of that state assigns to international agreements concluded by it. Therefore it is for the Court,

115
Eg UK, Germany, France, similar also US and South Africa. However, contrast the Netherlands, Greece
and Spain that are more internationalist/monist in approach. See the brief comparative overview by Eileen
Denza, ‘The Relationship between International and National Law’ in Malcolm D. Evans (ed), International Law
(Oxford University Press 2010), 418 ff; see also Rosas, 158.
116
Cf France, Greece, Spain.
117
Cf UK, Germany, similar also the USA, South Africa; Ziegler, ‘Strengthening the Rule of Law, but
Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights’ (n 86),
295.
118
See for more details the chapters by Dougan, Arnull and Douglas-Scott in this volume.
 22

within the framework of its jurisdiction in interpreting the provisions of the agreements, to ensure
their uniform application throughout the Community.’119

But with the uniformity and direct effect vis-à-vis the Member States being firmly
established, other factors will dominate the considerations according to which the Court
constructs the relationship with international law. The more recent approach to
international law which copies states’ approaches serves the further internal
constitutionalisation of the EU legal order. It defines the EU identity in its external
dimension towards the international legal order by stressing its autonomy or separateness
from international law and by reinforcing constitutional hierarchies and values. 120 Upholding
constitutional values will have an impact on the actual and perceived legitimacy of the EU.
In the context of human rights, it also has to be remembered that the Court’s approach will
be influenced by its desire to keep the equilibrium it has reached with the Member States in
the struggle for supremacy of EU law. This equilibrium pre-empts the Member States’
resistance towards the EU and depends on the EU’s effective and generally equivalent
protection of human rights. The actual and perceived protection of human rights by the EU
is therefore just as relevant for the legitimacy of the EU as for securing the de-facto
supremacy of EU law over Member States’ law.121 A further shift in approach to
international law in the EU legal order is therefore one from form to substance or content
which may make the classical monist/dualist distinction less relevant.

In addition a number of more casuistic reasons seem to underlie the EU’s approach to
international law. The Court uses international law at times selectively as a tool. Where
openness towards international law is useful for the EU and supports the claims and
enforcement of EU law (as is the case with direct effect of trade and association
agreements), the Court has adopted a more open approach.122 In contrast the Court has
shown itself less willing to be open to international law where international law limits the
power of the EU (for example as a standard for the validity review of EU acts). A similar
observation has to be made where international law exposes the EU to competing dispute
settlement fora. The case of the WTO DSB has been mentioned above (FIAMM and
Fedon).123 But the phenomenon already could be observed with regard to the European
Convention on Human Rights124 and also, more recently, in regard to the International
Tribunal of the Law of the Sea in the Mox plant dispute.125

119
Kupferberg (n 37) para 14.
120
Ziegler, ‘Strengthening the Rule of Law, but Fragmenting International Law: The Kadi Decision of the
ECJ from the Perspective of Human Rights’ (n 86), 295 ff.
121
See in more detail Ziegler, ‘International Law and EU law: Between Asymmetric Constitutionalisations
and Fragmentation’ (n 2), 278 ff.
122
Cf de Witte (n 34).
123
See above text around (n 54).
124
In Opinion 2/94 [1996] ECR I-1759 the Court held that the EU did not have competence to accede to
the Convention even though it had developed human rights within the EU legal order to limit EU action; see
also Sionaidh Douglas-Scott, ‘A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human
Rights Acquis’ (2006) 43 Common Market Law Review 629, 650 f who points out that the ECJ only referred to
the jurisprudence of the European Court of Human Rights for the first time in 1996 in the C-13/94 P v S [1996]
ECR I-2143, whereas it had been referring to the ECHR for over 20 years at the time. – Art 6(2) TEU, following
the amendments of the Lisbon Treaty now provides a competence, but accession process has been slow and
cumbersome (see Craig (n 88) for further details), and concerns have been voiced as to how the jurisdiction of
 23

Avoiding Conflicts, Safeguarding Coherence and Dealing Responsibly with International

Law

While it is not yet clear how systematic a trend of relative closure of the EU towards
international law along a statist and constitutional paradigm is, it would be of concern and
regrettable. It would create conflicts between different parts of international law and
fragment international law unnecessarily. This would lead to a loss of coherence. Conflicts
and loss of coherence are generally considered to be avoided where possible,126 even by
those who generally view the emphasis on the autonomy of the EU legal order more
favourably, at least where it has facilitated more progressive values than the international
legal order (Kadi, Intertanko, ATAA).

One major way to avoid conflict is interpretation. Interpretation does not only relate to the
terms of norms. Art 31(1) and (3) lit c) VCLT take a wider perspective in prescribing
interpretation in ‘good faith’, taking into account the context and purpose of the norm and
treaty and also the ‘relevant rules of international law applicable to the parties.’ From this
it may be deduced that one of the rationales for interpretation in Art 31 VCLT is to avoid
conflicts and to preserve unity with other areas of international law, or at least respect
and reflect comity towards it. Perhaps this obligation can be said not only to appy at the
level of individual rules but even as a responsibility to international law per se as an
institution. Art 31 VCLT conceives the international legal order as one single system even if it
is not prescribing monism. It envisages interpretation to be the tool to mitigate the effects
of fragmentation.127

From this it can be derived that international organisations, their courts and tribunals have a
procedural duty to engage at least with other areas of international law and to attempt to
avoid conflict in the interpretation of their own constitutional treaties. In other words, it
may be derived from the customary international law rules of treaty interpretation, as
expressed in Art 31 VCLT,128 that international courts and tribunals must pay special regard
for international law and of the impact of their decisions on international law as a whole

the European Court of Human Rights will work out in practice in a post-accession Europe: Eeckhout, EU
External Relations Law (n 3), 381.
125
C-459/03 Commission v Ireland (MOX plant) [2006] ECR I-4657, albeit facilitated by an escape rout in
Art 282 UNCLOS; Nikolaos Lavranos, ‘The Epilogue in the MOX Plant Dispute: An End Without Findings’
European Law Reporter 117; Inge Govaere, ‘Beware of the Trojan Horse: Dispute Settlement in (Mixed)
Agreements and the Autonomy of the EU Legal Order’ in Christophe Hillion and Panos Koutrakos (eds), Mixed
Agreements Revisited: The EU and its Member States in the World (Hart 2010), 188.
126
See for example Eeckhout, EU External Relations Law (n 3), 355, writing about the principle of
consisten interpretation: ‘This principle is logical and obvious. The coherence of a legal system requires that its
various provisions are as much as possible interpreted in the light of each other, so as to avoid conflict
between them, and consistent interpretation is a preferred judicial technique for such conflict prevention.’
127
Oliver Dörr, ‘Article 31: General Rule of Interpretation’ in Oliver Dörr and Kirsten Schmalenbach (eds),
Vienna Convention on the Law of Treaties (Springer 2012), para 91. See also George Pavlakos and Joost
Pauwelyn, ‘Principled Monism and the Normative Conception of Coercion Under International Law’ in Malcolm
D. Evans and Panos Koutrakos (eds), Beyond the Established Legal Orders (Hart 2011), 341.
128
Dörr (n 127), para 6.
 24

when interpreting the rules of partial legal orders of international law. Adopting simply the
quickest and easiest solution in a case without regard for the system of which a partial legal
order forms part is not sufficient. Such a (heightened) responsibility makes sense in the light
of the special nature of the international legal order in regard to the formation of customary
international law. The fact that international organisations are creatures of international law
(treaties) might even justify a stricter requirement of comity towards other parts of
international law. In the context of the EU, reference to the constitutional responsibility of
the EU to strictly observe and develop international law may be made (Art 3(4) TEU). 129 As
the case may be, the principle of sincere cooperation in Art 4(3) TEU may support such a
responsibility in order to avoid double-bind situations for the Member States.

It has been shown above that in Kadi I, the full potential of interpretation was not exhausted
and that the conflict might have been reconciled at the level of interpretation without
severing the EU legal order from international law; the Court could have interpreted the
Security Council resolution as not imposing obligations on Member States that would violate
human rights (through a presumption of intended lawful action). Alternatively, if it is
concluded that no harmonious interpretation is possible, an ‘emergency break’ based on a
value or hierarchy argument might be made. Where international obligations and
constitutional values are genuinely irreconcilable, it may be exceptionally justified to depart
from, i.e. breach, obligations under international law on the basis of shared fundamental
legal principles, such as the protection of human rights and the rule of law. Such a breach
may be legally justified as a countermeasure if the obligation imposed is breaching
international law.130 However, such a breach must also be mitigated by engagement and
openness with substantive law and shared fundamental norms and values rather than just
emphasising domestic significance of such norms.

Some have objected to this that in addition to the fact that the ECJ’s autonomy approach
was procedurally more straightforward, a direct engagement and more direct review of UN
Security Council Resolutions would have been more harmful for international law than the
indirect review of the ECJ. It may be doubted whether there is significant difference in terms
of impact on general international law between a direct and an indirect challenge of the
general international legal order. But the wider benefits of an open engagement with
international law rather than reliance on an internal legal order are tangible. This has been
demonstrated by the ATAA case, aspects of which may be contrasted with the approach in
Intertanko or Kadi: there is a direct, stronger and possibly quicker contribution to the
development of international law (especially through more clearly expressed opinio iuris).
By rigorously assessing the compatibility of the European emissions trading scheme with the
customary international law on jurisdiction and to some extent, international treaties, the
Court offered strong reasons for the compatibility of such schemes with international law.
The engagement with international law thus adds to the legitimacy of the scheme and might
even influence the creation of a worldwide regime.131 In contrast a purely autonomy based
constitutional approach without engagement with international law would simply have

129
See text of the provision above near (n 15).
130
See above (n 109).
131
Denza, ‘International Aviation and the EU Carbon Trading Scheme: Comment on the Air Transport
Association of America Case’ (n 47) 322.
 25

posited a result, and might have set a precedent for disengagement from and breach of
international law.

International law which, at the level of individual rules, relies on their reinforcement as
customary international law and which, as a system, is vulnerable to breaches. They may
ultimately undermine not just the individual rule but the binding nature of international law
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