Wednesday, February 4, 2009

Nollkaemper: Rethinking the Supremacy of International Law

André Nollkaemper (Univ. of Amsterdam - Amsterdam Center for International Law) has posted Rethinking the Supremacy of International Law. Here's the abstract:
In Kadi v Council of the European Union, the ECJ refrained from giving effect to Security Council Resolution 1333 (2000) on the ground that performance of the obligations contained in the Resolution would conflict with fundamental rights under EU law. While many international lawyers feel compelled by the Court's resolution of the conflict, the question is whether and how international law can accommodate such challenges. Non-performance of international obligations with reference to fundamental rules of national law, or internal rules of international organizations, sits uneasily with the supremacy of international law. The question is how we can differentiate between challenges based on fundamental human rights, as perceived and construed in Western-Europe, and challenges based on, say, the Sharia? If we can not properly distinguish between such case, would Kadi-like challenges not undermine the enterprise of international law? This paper will review whether, and on what basis, international law can accommodate challenges to the supremacy of international law based on the protection of fundamental rules of domestic law.