Legislating, Decision-Making, Practice and Education
Edited by Mary Hiscock and William van Caenegem
Chapter 12: The Importance of International Developments in the Case Law of the European Court of Justice: Kadi and the Autonomy of the EC Legal Order
Inge Govaere* INTRODUCTION In the United States of America (US), the debate is still ongoing as to whether and to what extent the Supreme Court could or should refer to foreign precedent, in particular in relation to constitutional matters such as the death penalty.1 In the European Union (EU), the Kadi case of 2008 in particular2 has triggered much controversy,3 thereby highlighting the opposite angle to a similar discussion. The focus of attention in Europe is namely to what extent the European Court of Justice (ECJ) could lawfully and rightfully refuse to plainly ‘surrender’ or to subordinate the European Community (EC) legal system to United Nations (UN) law and obligations when dealing with human rights issues. This question becomes all the more pertinent in view of the fact that, in the past, the ECJ has been rather receptive and constructive in forging interconnectivity between the EC legal order and international law developments. A benchmark in that respect was undoubtedly the Racke case of 1998,4 where the ECJ spelled out the necessity for the EC to respect international law with direct reference to a ruling of the International Court of Justice (ICJ). This judgment, which was rendered ten years earlier than Kadi, equally concerned EC/ EU economic sanctions taken in implementation of UN Security Council Resolutions. A major question is therefore whether it is at all possible, and, if so, to determine how to reconcile those apparently conflicting judgments. The common denominator in all these discussions and developments appears...
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