Friday, September 10, 2010

Sari: The Relationship Between Community Law and International Law after Kadi: Did the ECJ Slam the Door on Effective Multilateralism?

Aurel Sari (Univ. of Exeter - Law) has posted The Relationship Between Community Law and International Law after Kadi: Did the ECJ Slam the Door on Effective Multilateralism? (in International Law in a Multipolar World, Matthew Happold ed., forthcoming). Here's the abstract:

This paper revisits the reasoning of the EU courts in Kadi with the aim of identifying key points of divergence between their respective formal and value-based arguments.

Whereas the Court of First Instance decided Kadi by relying on the conflict of norms provisions laid down in the UN Charter and the EC Treaty, Advocate General Poiares Maduro and the Court of Justice reasoned on the level of rules of recognition. Unlike the Court of First Instance, they both denied that a conflict of norms existed and relied on what may be termed the 'no derogation' thesis to hold that an international agreement cannot derogate from principles that form part of the very foundations of the Community legal order.

An analysis of this reasoning reveals that the judgment of the ECJ displays a considerable dissonance between the formal legal arguments employed by the Court and the substantive values that motivated its reasoning. This dissonance indicates that the dualism embraced by the Grand Chamber was not inevitable, but a result of the value-based, that is ultimately political, choices it made on how to respond to the challenge to its jurisdiction. Moreover, since the Court’s arguments are not based on considerations of international law, its judgment actually makes no direct contribution to the various questions of international law it raises. For example, the judgment adds little to the debate concerning the balancing of human rights and international security, other than in the closed framework of the Community legal order. Indeed, the ECJ seems determined to avoid addressing this question at the level of international law altogether.

On reflection, the precedential value of Kadi may be more limited than commonly thought. The fact that the ECJ approached Kadi from a legal orders perspective makes it tempting to read the judgment as a fundamental reassessment of the relationship between Community law and international law. Whereas the logic of constitutional dualism embraced by the Court certainly has the potential to serve as a catalyst for such a reassessment, the Court did not travel very far down this road in Kadi. Nevertheless, the ECJ's dualism is problematic. From an internal perspective, it may be queried whether it is for the Court and its Advocate General to proclaim that the Community legal system has reached the pinnacle of its constitutionalist evolution by transmuting into a municipal legal order entitled to dualism. From an external perspective, dualism administered in small doses appears to do the international legal system little harm. However, its effects may become altogether more corrosive if dualism is applied as a more frequent remedy.