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

TLDR

The article examines the ECJ’s response to challenges against the UN Security Council’s anti‑terrorist sanctions regime and argues that its pluralist approach in Kadi departs from the EU’s traditional embrace of international law. In Kadi, the ECJ annulled the EU’s implementation of the Security Council’s asset‑freezing resolutions, citing violations of EU norms of fair procedure and property protection. The ECJ’s Kadi decision, echoing the US Supreme Court’s Medellin language, risks sending a warning to other courts and undermines the EU’s image as a virtuous actor committed to international law.

Abstract

Abstract: This article examines the response of Europe’s courts – and in particular of the EU’s Court of Justice (ECJ) - to the dramatic challenges recently brought before them against the UN Security Council’s anti-terrorist sanctions regime. The ECJ in Kadi annulled the EC’s implementation of the Security Council’s asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Although Kadi is a remarkable judgment in many ways and 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. Resonating in certain striking ways with the language of the US Supreme Court in the Medellin case, 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 which maintains a distinctive commitment to international law and institutions.