INTERACTION BETWEEN EU LAW AND INTERNATIONAL LAW IN THE LIGHT OF INTERTANKO AND KADI: THE DILEMMA OF NORMS BINDING THE MEMBER STATES BUT NOT THE COMMUNITY

Abstract

This Article addresses the legal question of the international obligations of one or more EU Member States that come within the scope of EU law. Zooming in on two recent judgments by the European Court of Justice, Intertanko and Kadi, the contribution focuses, in particular, on the situation where the EU sees itself confronted with the effects of obligations of its Member States as a result of the implementation of these obligations in the EU legal order by way of legislation. In both Intertanko and Kadi, the Court refused to bring the international context of the disputed EC measures into the equation. As the international norms from which these measures derived did not formally bind the Community, the Court reasoned that they did not form an integral part of Community law. From the perspective of EU law, especially in light of the autonomy of the Community legal order, this may be said to constitute a valid consideration. However, arguably, from an internationally inclusive point of view, the position held by the ECJ raises questions. In approaching this dilemma, this Article does not rely, as is often done these days, on the theory of legal pluralism, but on the more traditional notion of sovereignty. Through the lens of sovereignty, the contribution concludes that it is possible to find a rationale that reconciles European and international law in cases like Intertanko and Kadi.