On ‘Middle Ground’: the European Community and public international law

Does the Community legal order constitute a closed ‘self-contained regime’ or will it be an ‘open system’? While founded on the basis of an international treaty, the European Community still had to determine – not unlike national legal orders – the effects of public international law in its ‘domestic’ sphere. Has the Community legal order thus assumed an ‘autonomous’ position vis-à-vis general international law? And if so, what is the status and effect of international norms in the Community legal order? This chapter discusses these issues by analysing the constitutional regime developed for international treaties concluded by the Community and customary international law. The second part changes perspective and investigates when the Community has considered itself materially bound by international agreements concluded by its Member States via the doctrine of functional succession. In general, the Community’s constitutional choice vis-à-vis public international law has a federal dimension: placed on systemic ‘middle ground’, the EC legal order may potentially operate as a conduit for the incorporation of international law in the national legal orders of its Member States.