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

Hovell, Devika (2016) Kadi: king-slayer or king-maker? the shifting allocation of decision-making power between the UN Security Council and courts. Modern Law Review, 79 (1). pp. 147-166. ISSN 0026-7961

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Identification Number: 10.1111/1468-2230.12170

Abstract

‘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.’ - Jean Bodin, IV, 4, 486. 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orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times.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.

Item Type: Article
Official URL: http://onlinelibrary.wiley.com/journal/10.1111/(IS...
Additional Information: © 2016 The Authors. The Modern Law Review © 2016 The Modern Law Review Limited.
Divisions: Law
Subjects: J Political Science > JN Political institutions (Europe)
K Law > K Law (General)
Sets: Departments > Law
Date Deposited: 01 Feb 2016 15:28
Last Modified: 20 May 2020 03:22
URI: http://eprints.lse.ac.uk/id/eprint/65195

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