The EU is no innocent bystander in the gradual disintegration of rules and norms governing foreign affairs and the collapse of the international legal order as we know it. Matvey Kiselev, international lawyer, member of the “Digoria” Expert Club, explores the Union’s self-serving track record of bending the law to the whims of a deeply entrenched “juristocracy”.
International law is undergoing its most severe crisis since the Second World War. The system of international treaties is unravelling, signatories to the Treaty on the Non-Proliferation of Nuclear Weapons are openly speaking of the need to revise the nuclear non-proliferation regime, the United Nations appears powerless, and the great powers are increasingly opting for the use of force over legal procedures and diplomacy. In these circumstances, the European Union—one of the few remaining apologists of the liberal world order—habitually assumes the role of a mourner at a funeral: calling for adherence to rules, lamenting the lost “rules-based order”, and denouncing those who have strayed.
There is, however, an awkward detail that Brussels prefers not to recall and omits from its official statements. The lid of the coffin where international law lies was not nailed shut in Washington alone. Some of the most skilful blows were delivered in the quiet confines of Luxembourg’s courtrooms and the high offices of Brussels. The European project began as an attempt to pool the economic potential of European states, overcoming their contradictions through supranational legal regulation binding on all Member States of the Union. Yet even at an early stage, an idea began to take shape that would later crystallise into the principle of the autonomy of EU law. According to this principle, the Union’s legal order exists separately from both national and international law. The norms of international treaties concluded by Member States and by the Union itself operate within the EU only insofar as they do not contradict the acquis communautaire. In its more than half-century-long pursuit of protection for its own legal system—its autonomy and distinctiveness—the European Union has failed to notice that it has itself been undermining the foundations of the universal international legal order for decades.
How ‘Juristocracy’ Was Forged
Every empire begins modestly. Rome began with seven hills, and the British Empire with trading posts. The European legal order, however, began with an electricity bill for 1,925 lire. In 1964, the Court of Justice of the European Communities delivered its judgment in Costa v ENEL. A Milanese lawyer, outraged by the nationalisation of the electricity sector in Italy, refused to pay his bill, brought a claim against the state, and argued that the nationalisation law was contrary to the Treaty establishing the European Economic Community. The Italian government insisted that the national court was obliged to apply national law rather than an international treaty. The Court in Luxembourg ruled otherwise, holding that the Treaty had created “its own legal order”, possessing primacy over national law and autonomy from international law.
As early as 1970, in the Internationale Handelsgesellschaft case, the Court of Justice attempted to extend the supremacy of Union law even over national constitutions. The German Federal Constitutional Court engaged in a well-known judicial dialogue with Luxembourg in the Solange I and Solange II decisions, but ultimately acquiesced—albeit cautiously—to the “centre”. EU primary law was deemed superior to the Basic Law of the Federal Republic of Germany, subject to formal reservations.
The apotheosis of this logic came with the Kadi judgment in 2008. The Court of Justice entered into direct confrontation with the UN system, annulling the judgment of the Court of First Instance and the regulations of the Council and the Commission implementing personal sanctions mandated by a UN Security Council resolution, on the grounds that they infringed fundamental human rights as guaranteed within the EU. The Court explicitly stated that EU primary law takes precedence over the UN Charter, as well as over any other international treaty, effectively disregarding Article 103 of the UN Charter concerning the primacy of obligations under the Charter. The judgment itself was written in a “chauvinist and parochial tones” , which is particularly notable for an organisation whose legal status oscillates between that of an international organisation and a quasi-federation. The ruling sent an unambiguous signal regarding the relationship between the autonomy of the EU legal order and international law.
Having encountered insufficient resistance, the Court of Justice predictably moved from undermining the foundations of the international legal order to what Carl Schmitt described as the subordination of law to abstract value-based imperatives. A vivid example is the recent 2025 judgment in Commission v Malta. The Court applied Article 2 of the Treaty on European Union to restrict national competence in matters of citizenship, disregarding Declaration No. 2 annexed to the Treaty on European Union , which explicitly states that questions of citizenship fall exclusively within national jurisdiction. In other words, the Court of Justice triumphantly declared that any provision may be subordinated to the “values of the Union”, the vague nature of which was elevated above clear treaty norms.
The special status of the Court of Justice’s rulings within the system of sources of EU law, combined with the absence of substantive limits on what constitutes permissible interpretation, has given rise to a “juristocracy” , which systematically constructs a “flourishing garden”—this time in the legal domain—at the expense not only of the already fragile authority of international law, but also of its own image as a bastion of universal principles of the rule of law and legality, where legal certainty remains intact only with regard to the inviolability of the autonomy of the EU legal system.
The Decline of Investment Arbitration and the Sanctions Leviathan
Turning from the genesis of the European Union’s legal self-identification to its practical consequences, one cannot ignore the current state of investment arbitration, which is undergoing an unprecedented crisis. This fragile mechanism—urgently in need of reform, yet still the only existing means of protecting foreign investments—now appears destined to become a relic of the past. The institutions of the EU have played no small part in bringing about this dismal state of affairs. There lies a far more prosaic explanation behind the high-profile declarations about the need to protect the Union’s legal system from foreign commercial practices—among which investment arbitration, in the sense of the 1965 Washington Convention, is included. By the early 2020s, EU Member States had become respondents in investment claims amounting to billions of euros. Germany, France, Italy, Spain, and others faced claims from foreign investors who had either failed to receive, or had entirely lost, their expected profits as a result of regulatory measures adopted by the Commission and other institutions—from the phase-out of nuclear energy to the reduction of “green” subsidies in the renewable energy sector. It is evident that, in Brussels’ view, ad hoc arbitration—which allows the parties to participate in the appointment of arbitrators, a feature regarded as an advantage in commercial arbitration but as more of an obstacle in disputes involving states—could pose a threat to the Union and to its ambitions to become the sole regulator of investment activity both internally and in its relations with third-country investors.
In 2018, in the Achmea case, the Court of Justice held that investment arbitration not integrated into the Union’s judicial system might interpret EU law differently from Luxembourg, thereby encroaching upon the much-vaunted autonomy of the EU legal order. In 2021, the Komstroy case extended this logic to the Energy Charter Treaty, declaring Article 26—providing for investor–state arbitration—inapplicable to disputes involving EU Member States. This case offers a clear illustration of the European Union’s double standards towards third countries, particularly when it comes to Russia—especially in the context of the Yukos case. While Brussels systematically restricts arbitration mechanisms within the Union, it simultaneously uses them as an instrument of pressure against external opponents.
Moreover, a systematic campaign against alternative dispute resolution mechanisms is also being pursued by the Council of the European Union. Following several multi-billion claims—Mikhail Fridman v Luxembourg ($16 billion) and OJSC Belaruskali v Lithuania ($12 billion)—Brussels has, retrospectively and in breach of legal certainty, significantly curtailed the ability of investors from third countries to protect their rights and access the justice system, justifying this by the need to counter Russia. This approach is reflected in the 18th sanctions package , which explicitly prohibits the recognition and enforcement of any arbitral awards rendered outside the EU in investment disputes involving individuals or entities subject to sanctions. Even ICSID awards fall under this prohibition; the EU is de facto nullifying Member States’ obligations under Article 54 of the Washington Convention. The regulation also permits Member States to seek damages from sanctioned individuals who have initiated proceedings (sic!) based on generally recognised principles of international investment law.
Nevertheless, in this area the autonomy of the EU legal order has encountered strong resistance from the global majority, including Western states. In 2026, the Singapore International Commercial Court, in DNZ v DOA, refused to set aside an arbitral award against Poland, noting that the primacy of EU law applies “only within the EU system, and not on the broader international plane”. A Swiss court, in EDF v Spain, upheld the validity of an arbitral award in favour of the energy company and rejected Spain’s objections, stating that rulings of the Court of Justice do not take precedence outside the EU and that the Energy Charter Treaty does not exclude intra-EU disputes.
‘And if a Law Hinders the Development of the Revolution, It Is to Be Abolished or Amended…’
In 1964, the doctrine of the autonomy of EU law emerged as an instrument for shielding the integration project from the political contingencies of Member States. Today, however, it has become one of the drivers of the degradation of the international legal order. The European Union, which for decades accused other states of selective approaches to international law and double standards, has itself cultivated a system in which previously assumed obligations are observed only insofar as they do not conflict with political expediency. This trend can be traced from the earliest judgments of the Court of Justice to contemporary sanctions packages that selectively nullify Member States’ obligations under the Washington Convention. The problem is systemic, given that international law operates in the absence of a coercive enforcement apparatus. Its effectiveness depends on good faith among states and on legal certainty. The irony of history lies in the fact that the European Union, which emerged in part as an alternative to national egoism, has reproduced it in its most absolute form.
