The European Court of Justice and the International Legal Order After Kadi

• 成果类型: Review
• 署名作者: de Burca, Grainne
• 署名单位: Fordham University
• 刊物名称: HARVARD INTERNATIONAL LAW JOURNAL
• ISSN/ISSBN: 0017-8063
• 发表日期: 2010
• 页码: 1-49
• 关键词: HUMAN-RIGHTS; SECURITY COUNCIL; UNITED-NATIONS; WTO LAW; CONSTITUTION; legitimacy; PLURALISM; UNION; EXCEPTIONALISM; LUXEMBOURG

摘要

This Article examines the response of European courts-and in particular of the European Court of Justice (ECJ)-to the dramatic challenges to the U.N. Security Council's anti-terrorist sanctions regime recently brought before the courts. The ECJ in Kadi annulled the European Community's implementation of the Security Council's asset-freezing resolutions on the ground that they violated European Union (EU) norms of fair procedure and of property protection. Although Kadi has been warmly greeted by most observers, I argue that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. Paralleling in certain striking ways the language of the U.S. Supreme Court in Medellin v. Texas, the approach of the ECJ in Kadi carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Security Council resolutions. More importantly, the ECJ's approach risks undermining the image the EU has sought to create for itself as a virtuous international actor maintaining a distinctive commitment to international law and institutions.