Kadi: King‐Slayer or King‐Maker? The Shifting Allocation of Decision‐Making Power between the UN Security Council and Courts

AuthorDevika Hovell
DOIhttp://doi.org/10.1111/1468-2230.12170
Published date01 January 2016
Date01 January 2016
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CASES
Kadi: King-Slayer or King-Maker? The Shifting
Allocation of Decision-Making Power between the UN
Security Council and Courts
Devika Hovell
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beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the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.
INTRODUCTION
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
The question of power-sharing is a familiar battleground in the United King-
dom. The scope of devolution has rarely been so contested and the extent of
the future transfer of sovereignty to the European Union hangs in the balance.
A power-sharing arrangement that has received less attention is the alloca-
tion of decision-making power between the UK and the increasing array of
international institutions assuming decision-making power in relation to UK
nationals and interests. Prominent among these institutions is the UN Security
Council. The Security Council is not accustomed to sharing power. Through-
out its short history, the Security Council has staunchly resisted limitations to
its power and flaunted its unchecked discretion as necessary for the mainte-
nance of international peace and security. This note analyses the twelve-year
span of the Kadi litigation,1which has posed the greatest challenge to date to
Department of Law, London School of Economics and Political Science.
1 The litigation compr ises four court decisions and two opinions of Advocates General: Kadi v
Council and Commission [2005] ECR II-0000 (CFI Kadi); Opinion of Advocate General Maduro,
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited. (2016) 79(1) MLR 147–182
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Decision-Making Power: the UN Security Council and Cour ts
the Security Council’s assessment of sanctions decision-making as its exclusive
bailiwick. For both the UK and the Security Council, the Kadi case law sig-
nals a loss of monopoly over decision-making authority over individuals and
international security respectively, and confirms the plurality of the modern
concept of law.2
When the Security Council decided on a revolutionary shift in sanctions
policy—targeting sanctions directly against individuals rather than in blanket
fashion against states—it elected against building in any due process ‘limita-
tions’ on its decision-making power. A decade of criticism about due process
deficiencies in sanctions decision-making followed, but made little impact on
Council policy, notwithstanding its source in a variety of influential institutions
including the General Assembly,3the UN Secretary-General,4the UN Spe-
cial Rapporteur on human rights and counter-ter rorism5and the UN Human
Rights Committee.6In this respect, the Kadi litigation was a game-changer.
Possessing the capacity to open an EU-sized hole in the sanctions net, the
European courts were able to force the Council to engage in a consideration
of power-sharing in a way that other bodies could not. In practical terms, the
Kadi case was undoubtedly the single most important factor in persuading the
Security Council finally to undertake meaningful procedural reform, with the
establishment of the Office of the UN Ombudsperson.7In theoretical terms,
the principal effect of the judgments and opinions was to propose a range of
solutions to the tangle between legal orders in an increasingly complex global
environment. It is not that the Kadi litigation provides a definitive answer.8
Rather, considered as a whole, the Kadi litigation is an excellent case study
through which to examine various approaches to the relationship betweenlegal
Kadi vCouncil of the European Union 16 January 2008; Kadi vCouncil of the European Union [2008]
ECR I-0000 (ECJ Kadi); Kadi vEuropean Commission [2010] EUECJ; Opinion of Advocate
General Bot European Commission and Council vKadi 19 March 2013; European Commission &
Council vYassin Abdullah Kadi [2013] ECR (not yet reported) (CJEU Kadi).
2 M. Avbelj, ‘The case of Mr Kadi and the modern concept of law’ in M. Avbelj, F. Fontanelliand
G. Martinico (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Abingdon: Routledge,
2014) 49.
3 WorldSummit Outcome document, UN General Assembly Resolution 60(1) (24 October 2005)
UN Doc A/RES/60/1.
4 ‘Non-paper of the Secretary General’ referred to in the debate on ‘Strengthening international
law: rule of law and maintenance of peace and security’ (22 June 2006) UN doc S/PV.5474.
5 M. Scheinin, ‘Repor t of the Special Rapporteur on the promotion and protection of human
rights while countering terror ism’ (16 August 2006) UN doc A/61/267.
6 UN Human Rights Committee, Sayadi and Vinck vBelgium Communication No 1472/2006 (29
December 2008) UN Doc CCPR/C/94/D/1472/2006.
7 UN Security Council Resolution 1904 (17 December 2009) UN doc S/RES/1904. See also
‘Statement of French representative on the adoption of SC Resolutions 1988 and 1989’ (2011)
UN doc S/PV.6557.
8 For other judicial and quasi-judicial bodies that have considered the issue of the relationship
between Security Council and municipal legal orders, see (in the European Court of Human
Rights) Al-Jedda vUnited Kingdom (2011) 53 EHRR 789; Nada vSwitzerland (2013) 56 EHRR
18; Al-Dulimi and Montana vSwitzerland (App No 5809/08) ECHR 26 November 2013; (in the
UK Supreme Court) HM TreasuryvAhmed [2010] UKSC 2; Al Jedda vSecretary of State for Defence
[2007] UKHL 58; (in the UN Human Rights Committee) Sayadi and Vinck vBelgium n6aboveat
[10.8]. See, in particular, Individual Opinion (partly dissenting) by Sir Nigel Rodley, Ivan Shearer
and Iulia Antoanella Motoc at [27]; Individual (dissenting) Opinion of Ruth Wedgewood, 30;
and Individual Opinion of Ivan Shearer at [32].
148 C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(1) MLR 147–182

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