Introduction

This chapter is dedicated in high esteem and friendship to Professor Detlev Vagts. Throughout the conversations I had with him during my stay as a Visiting Researcher at Harvard Law School in 1990–1, I was consistently impressed with his unique understanding of intersecting legal orders. For this reason, I chose to look into one of these interactions – namely, the relationship between European Union (‘EU’) law and public international law. Given that much has been written on this subject over the last four decades, this chapter highlights some of the more recent developments in this field.

The relationship between EU law and public international law is, more than one would expect, a complex one. Throughout the years, it has gone through various stages in the case-law of the European Court of Justice (‘ECJ’ or ‘Court’). From the early 1960s, the ECJ has distinguished the EEC Treaty (‘EEC’) from ‘ordinary treaties’ and shied away from relying on traditional international law, including customary international law, in its attempts to build an autonomous Community legal order. This initial position evolved over time and a certain relaxation was noticeable in the Court's case-law. In the Racke case (1998), the ECJ even showed an unprecedented openness to customary international law as a ground for assessing the validity of EU legislation.

However, ten years later the Court's Kadi judgment (2008) strongly re-emphasised the autonomy of Community law vis-à-vis international law, even in the face of binding resolutions of the UN Security Council.