Kadi: king-slayer or king-maker? the shifting allocation of decision-making power between the UN Security Council and courts

摘要

‘A King is not legally obliged to lay down general rules and obey them, but if he has an iota of political sense, he will do so.’ud- Jean Bodin, IV, 4, 486.ududThis 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orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times.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.