Comments on: Kadi and Al Barakaat: Luxembourg is not Texas – or Washington DC http://www.ejiltalk.org/kadi-and-al-barakaat-luxembourg-is-not-texas-or-washington-dc/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 By: Eric Engle http://www.ejiltalk.org/kadi-and-al-barakaat-luxembourg-is-not-texas-or-washington-dc/comment-page-1/#comment-463 Eric Engle Sat, 03 Oct 2009 19:14:53 +0000 http://www.ejiltalk.org/?p=649#comment-463 Re: Monism and Dualism. I find the monism/dualism dichotomy useful. In practice what we see is that the dualities are (as dialectical materialism teaches) united in their conflict: that monism and dualism co-exist and their contours are delineated via conflict (the unity and conflict of opposites, a basic dialectical principle). Thus for example, U.S. common law is monist as to customary international law, yet dualist as to treaty law. French law too is monist as to international treaties and national legislation, yet dualist as to national administrative law. What I find disturbing is the lack of the Court's willingness to do what all good courts do: to interpret their own laws as presumably consistent with other international obligations. Simply making that judicial point would obviate much tension. Application of the idea of judicial economy, that courts only decide as few issues as possible to decide the case, leaving other issues in abeyance or as dicta, would also obviate much conflict. It isn't so much that monism and dualism are inadequate, as it is that they coexist. I strongly suspect however that due to normative convergence over time monism will increasingly emerge to predominate over dualism -- just as predictable bright line legal rules continue to be transformed into flexible normative standards and guides. That is, the relativization of law makes a(n increasingly) monist global legal order much more palatable; the decline of sovereignty, it's disaggregation, likewise means that the increasingly monist global legal order will be sufficiently flexible so as to be acceptable in practice even if opposed in theory by fearful and defensive political actors. Of course, I regard Professor De Burca's views as brilliant and incisive on the case at bar. I just try to provide a brief theoretical overview beyond the frame of Kadi, so that tensions between the Courts can be smoothly resolved. Re: Monism and Dualism.

I find the monism/dualism dichotomy useful. In practice what we see is that the dualities are (as dialectical materialism teaches) united in their conflict: that monism and dualism co-exist and their contours are delineated via conflict (the unity and conflict of opposites, a basic dialectical principle). Thus for example, U.S. common law is monist as to customary international law, yet dualist as to treaty law. French law too is monist as to international treaties and national legislation, yet dualist as to national administrative law. What I find disturbing is the lack of the Court’s willingness to do what all good courts do: to interpret their own laws as presumably consistent with other international obligations. Simply making that judicial point would obviate much tension. Application of the idea of judicial economy, that courts only decide as few issues as possible to decide the case, leaving other issues in abeyance or as dicta, would also obviate much conflict. It isn’t so much that monism and dualism are inadequate, as it is that they coexist. I strongly suspect however that due to normative convergence over time monism will increasingly emerge to predominate over dualism — just as predictable bright line legal rules continue to be transformed into flexible normative standards and guides. That is, the relativization of law makes a(n increasingly) monist global legal order much more palatable; the decline of sovereignty, it’s disaggregation, likewise means that the increasingly monist global legal order will be sufficiently flexible so as to be acceptable in practice even if opposed in theory by fearful and defensive political actors. Of course, I regard Professor De Burca’s views as brilliant and incisive on the case at bar. I just try to provide a brief theoretical overview beyond the frame of Kadi, so that tensions between the Courts can be smoothly resolved.

]]> By: Andreas Paulus http://www.ejiltalk.org/kadi-and-al-barakaat-luxembourg-is-not-texas-or-washington-dc/comment-page-1/#comment-109 Andreas Paulus Fri, 06 Mar 2009 11:14:14 +0000 http://www.ejiltalk.org/?p=649#comment-109 A correction: I meant to cite to the International Fruit Company judgment, in which the ECJ basically decided that GATT law was binding on the Community even before the EC became member of the WTO, while denying it direct effect. In at least the same fashion the EU should be held to be bound by the Charter obligations of its member States (which would leave it to secondary law to implement concrete resolutions). In the end, the question is whether the EU can or should demand of the UN to become like the EU, or whether it should get it to stick to its own law, which would in turn render UN decisions more acceptable at the EU level. I strongly believe the ECJ should have followed the latter approach. A correction: I meant to cite to the International Fruit Company judgment, in which the ECJ basically decided that GATT law was binding on the Community even before the EC became member of the WTO, while denying it direct effect. In at least the same fashion the EU should be held to be bound by the Charter obligations of its member States (which would leave it to secondary law to implement concrete resolutions).
In the end, the question is whether the EU can or should demand of the UN to become like the EU, or whether it should get it to stick to its own law, which would in turn render UN decisions more acceptable at the EU level. I strongly believe the ECJ should have followed the latter approach.

]]> By: Andreas Paulus http://www.ejiltalk.org/kadi-and-al-barakaat-luxembourg-is-not-texas-or-washington-dc/comment-page-1/#comment-104 Andreas Paulus Thu, 05 Mar 2009 18:18:57 +0000 http://www.ejiltalk.org/?p=649#comment-104 Dear Piet, while I agree with your last paragraph, i.e. that PIL needs to conclude from the Kadi affair to protect human rights against international organizations, I do not find your reasoning on Article 103 UNC and Article 307 TEC convincing. It would have been preferable if the ECJ had also looked to international law for the view that the Security Council may well have violated PIL as much as European law. You seem to place the TEC entirely above - or rather beside - PIL. If that reasoning were correct, the member States would need to rely on Article 307 UNC and 103 TEC to ignore the ECJ judgment to the benefit of the Charter - hardly the result the ECJ would countenance. If, however, one agrees that the best place to solve the (more apparent than real) split between PIL and European Law is the European rather than the domestic legal orders, the best reasoning available would have been United Fruit providing for a partial transfer of member State obligations to the EU - but that would have implied that the EC itself strives to implement international legal obligations otherwise incumbent on its member States under the UN Charter. The very fact that the EU implements SC resolutions as the one in question here shows that it feels bound to implement them in the sphere of its own competences. (Those supporting a constitutional reading of Article 103 would anyhow place any international organization under the authority of the Charter.) I believe, as you do, that monism and dualism have given way to a pluralist legal order. Such an order without an overarching hierarchy can only work if every legal system pays due regard to the other systems. The ECJ approach, however, simply ignores international law instead of working to improve it. Dear Piet,
while I agree with your last paragraph, i.e. that PIL needs to conclude from the Kadi affair to protect human rights against international organizations, I do not find your reasoning on Article 103 UNC and Article 307 TEC convincing. It would have been preferable if the ECJ had also looked to international law for the view that the Security Council may well have violated PIL as much as European law.
You seem to place the TEC entirely above – or rather beside – PIL. If that reasoning were correct, the member States would need to rely on Article 307 UNC and 103 TEC to ignore the ECJ judgment to the benefit of the Charter – hardly the result the ECJ would countenance. If, however, one agrees that the best place to solve the (more apparent than real) split between PIL and European Law is the European rather than the domestic legal orders, the best reasoning available would have been United Fruit providing for a partial transfer of member State obligations to the EU – but that would have implied that the EC itself strives to implement international legal obligations otherwise incumbent on its member States under the UN Charter. The very fact that the EU implements SC resolutions as the one in question here shows that it feels bound to implement them in the sphere of its own competences. (Those supporting a constitutional reading of Article 103 would anyhow place any international organization under the authority of the Charter.)
I believe, as you do, that monism and dualism have given way to a pluralist legal order. Such an order without an overarching hierarchy can only work if every legal system pays due regard to the other systems. The ECJ approach, however, simply ignores international law instead of working to improve it.

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