The EU, the European Court of Justice and the International Legal Order after Kadi
Harvard International Law Journal, Vol. 1, No. 51, 2009
52 Pages Posted: 29 Dec 2008 Last revised: 17 Feb 2009
This article examines the response of Europe's courts to the dramatic challenges recently brought before them against the UN Security Council's anti-terrorist sanctions regime. These challenges raise central questions concerning the authority of international law in general, and of binding decisions of the Security Council in particular. The article focuses specifically on the response of the European Union's Court of Justice (ECJ) in the Kadi case, in which the ECJ annulled the EC's implementation of the Security Council's asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Kadi is a remarkable case in many ways and it has been warmly greeted by most observers. The article argues however that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. It is an approach which carries certain costs for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the authority of Security Council resolutions. More importantly, the ECJ's approach carries the risk of undermining the image the EU has sought to create for itself as a virtuous international actor which maintains a distinctive commitment to international law and institutions.
Keywords: European Union, European Court of Justice, United Nations Security Council, anti-terrorism, sanctions, asset-freezing, pluralism, constitutionalism, monism, dualism
JEL Classification: K33
Suggested Citation: Suggested Citation