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Comment on Kokott/Sobotta “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 14, 2013        Author: 

Nele Yang is a PhD candidate and research fellow at the Max Planck Institute for Comparative and International Law in Heidelberg.

The title of Kokott and Sobotta’s article (available free here) seems to suggest that this is another analysis of whether the 2008 Kadi decision succeeds in balancing core EU constitutional values and the effective implementation of UN anti-terrorist sanctions. Innovatively, however, the authors choose not to venture down this well-trodden path. Instead they ask what can be drawn from the Kadi judgment and the developments it has triggered in order to reduce conflict between the EU legal order and the UN Al-Qaida sanctions regime in general.

Solange – the Importance of Conditions

Kokott and Sobotta assert that the ECJ’s 2008 Kadi decision contains an approach similar to the German Federal Constitutional Court’s famous Solange. The question whether the 2008 Kadi judgment can be read as spelling out a Solange approach or at least leaving this approach open as one alternative for future action is less controversial than the article makes it out to be. Considering how much of the Kadi debate has been conducted around this issue, it is to be regretted that Kokott and Sobotta do not clarify that there is no “either/or” relationship between an approach à la Solange and a dualist approach. Moreover, Solange does not necessarily imply an attenuated form of dualism. To the contrary, depending on the conditions contained in the relative clause starting with “as long as”, the stance that it is this legal order which determines under which circumstances the other legal order will have any bearing on it might even be intensified. This is why we distinguish between Solange II and Solange I. Thus, “solange” in itself only expresses that interaction is made conditional. It does not say anything about the conditions, but the conditions are the crucial part. So the question is not so much whether a Solange approach can be drawn from the 2008 judgment but rather under which conditions the Court might in future cases practice deference.

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Discussion of Kokott and Sobotta, “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 13, 2013        Author: 

Over the next few days, we shall be hosting a discussion of Juliane Kokott and Christoph Sobotta’s article “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?” which was published in the final issue of volume 23 of the European Journal of International Law (2012).  Juliane is an Advocate General at the Court of Justice of the European Union, and Christoph is a legal secretary in her chambers.  The first commentary on this article is by Nele Yang, who is a PhD candidate and research fellow at the Max Planck Institute for Comparative Public Law and International Law, and the second by Dr Antonios Tzanakopoulos, who is a lecturer in public international law at the University of Oxford and a fellow of St Anne’s College.  The final post in this discussion is a reply to Nele and Antonios’ comments by Juliane and Christoph.  You are invited to join in this conversation.

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Three Cheers for the Application of International Law by Domestic Courts! Or should that be two? A response to Benvenisti & Downs.

Published on July 13, 2009        Author: 

Last month, Professors Eyal Benvenisti and George Downs posted a summary of their latest EJIL article – “National Courts, Domestic Democracy and the Evolution of International Law”  – which set out the issues discussed in that article (available here) in the context of the authors’ scholarship in this area. The article impressively surveys trends regarding the extent to which domestic courts will defer to the executive branch in the area of foreign affairs. It also considers what the authors see as growing inter-judicial cooperation which enhances the increasing boldness of courts not only with regard to their executives but also in reviewing the policies of international organizations. The article argues that unlike the position nearly two decades ago, domestic courts are increasingly abandoning their traditional deference to the executive when dealing with questions of foreign affairs. The evidence for this assertion is not set out in this article but is considered elsewhere by Professor Benvenisti. The comments by Alison MacDonald here on this blog support this assertion, at least as far as English courts are concerned. Benvenisti and Downs find the reasons for this change of judicial attitude in changes in assumptions which had previously underpinned the idea that foreign policy ought to be the preserve of the executive. The assumptions which are now being undermined are said to be that: (i) the boundary between domestic and foreign affairs was well defined with both being distinct; (ii) the executive was best placed to protect the domestic interest in international affairs and (iii) international interaction should be as free of legal restraints as possible. The changes in these assumptions seem to be persuasive in explaining a change on the part of domestic courts with regard to judicial intervention in foreign affairs. Even if the change of assumptions did not precede a change in attitude, increased judicial intervention would not be consistent with these assumptions. Benvenisti &Downs’ (B&D) arguments regarding the changes in the relationship between national courts and domestic executives and the use of international law by national courts to restrain their executives are plausible but are not always compelling, nor do they always follow logically from the evidence.

Judicial Oversight of Foreign Policy and Judicial Embrace of International Law do not always go together

One of the themes which underlines the article seems to be an assumption that a move away from deference to the executive in foreign affairs will usually be a move towards engagement with international law and vice versa. This point can be seen in the opening sentence of the abstract of the article: “National courts are gradually  abandoning their traditional policy of deference to their executive branches in the field of foreign policy and beginning more aggressively to engage in the interpretation of international law.” However, the two do not necessarily go together and have not always gone together in domestic judicial practice. Read the rest of this entry…

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A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi

Published on July 7, 2009        Author: 

Devika Hovell is a DPhil Candidate in international law at the University of Oxford, and Associate Fellow  at Chatham House. She worked formerly as Director of the International Law Project and Lecturer in International Law at the University of New South Wales. Her doctoral thesis applies a procedural fairness framework to Security Council  decision-making on sanctions.

Recent developments following the decision of the European Court of Justice in Kadi indicate that the decision may require a more holistic response to due process by the Security Council than has been contemplated to date. The 11 June 2009 decision of the Court of First Instance in Othman v Council of the European Union, the European Commission’s proposal on 22 April 2009 to enact a regulation enabling it to second-guess Security Council sanctions listings and Mr Kadi’s initiation of new proceedings in the Court of First Instance on 26 February 2009 all provide potential new challenges to the ability of EU member states to comply with the Security Council sanctions regime. The leak sprung in the sanctions regime with the ECJ’s decision in Kadi threatens to assume a more sieve-like quality as more and more designations risk being overridden at the regional or domestic level on due process grounds. As the repercussions of the Kadi decision become increasingly pervasive, there is a sense that even the tectonic Permanent Five may be starting to shift on the issue.

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Kadi and Al Barakaat: Luxembourg is not Texas – or Washington DC

Published on February 25, 2009        Author: 

Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London. He was a member of the legal team for the applicant Yassin Kadi.

The European Court of Justice’s approach in the Kadi decision has already been described as sharply dualist (see,Professor Joseph Weiler’s EJIL editorial, posted here on this blog and Gráinne de Búrca, “The European Court of Justice and the International Legal Order after Kadi“, Jean Monnet Working Paper No. 01/09).  The Court emphasises the autonomy of the Community legal order. Judicial review in the light of fundamental rights is the expression of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system, a guarantee which is not to be prejudiced by an international agreement. Not even the UN Charter is capable of interfering with that guarantee, notwithstanding the Charter’s primacy under international law, a primacy which the Court accepts.

The strong confirmation of the autonomy of Community law is undeniable. But there is of course nothing new in that autonomy: since Van Gend en Loos this is the very premise of the Community legal order. However, I find the notion of dualism much less helpful for the purpose of characterising the Court’s reasoning. The interactions between international law and municipal law in today’s world have too many different dimensions for blunt concepts such as monism and dualism to be helpful. This means that Kadi needs to be put in perspective. It is very tempting to argue that the judgment is ground-breaking, perhaps even revolutionary, the most important judgment handed down by the Court in decades. Alas, my academic assessment is that this is exaggerated. Read the rest of this entry…

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