Premium
Kadi : King‐Slayer or King‐Maker? The Shifting Allocation of Decision‐Making Power between the UN Security Council and Courts
Author(s) -
Hovell Devika
Publication year - 2016
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12170
Subject(s) - law , subsidiarity , normative , political science , economic justice , power (physics) , european union , monism , position (finance) , international law , law and economics , sociology , economics , philosophy , epistemology , physics , finance , quantum mechanics , economic policy
This note analyses the twelve‐year span of the Kadi litigation in the European courts. The litigation raises the textbook question of the relationship between international and municipal legal orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times. The note examines the different approaches taken at the three key phases of the litigation: the ‘supremacy’ position adopted by the Court of First Instance in 2005, the ‘subversive’ approach of the European Court of Justice in 2008 and the ‘subsidiarity’ position of the Court of Justice of the European Union in 2013. Ultimately, the note invites attention to the ‘Solange equivalence’ approach taken by the Advocates‐General and argues that this strikes the best balance in normative terms for an enduring approach to power‐sharing between legal orders.