Kadi: King‐Slayer or King‐Maker? The Shifting Allocation of Decision‐Making Power between the UN Security Council and Courts

20 Pages Posted: 19 Jan 2016

See all articles by Devika Hovell

Devika Hovell

London School of Economics - Law Department

Date Written: January 2016

Abstract

This note analyses the twelve‐year span of the Kadi litigation in the European courts. The litigation raises the textbook question of the relationship between international and municipal legal orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times. The note examines the different approaches taken at the three key phases of the litigation: the ‘supremacy’ position adopted by the Court of First Instance in 2005, the ‘subversive’ approach of the European Court of Justice in 2008 and the ‘subsidiarity’ position of the Court of Justice of the European Union in 2013. Ultimately, the note invites attention to the ‘Solange equivalence’ approach taken by the Advocates‐General and argues that this strikes the best balance in normative terms for an enduring approach to power‐sharing between legal orders.

Suggested Citation

Hovell, Devika, Kadi: King‐Slayer or King‐Maker? The Shifting Allocation of Decision‐Making Power between the UN Security Council and Courts (January 2016). The Modern Law Review, Vol. 79, Issue 1, pp. 147-166, 2016. Available at SSRN: https://ssrn.com/abstract=2717175 or http://dx.doi.org/10.1111/1468-2230.12170

Devika Hovell (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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