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Govaere, Inge --- "The Importance of International Developments in the Case Law of the European Court of Justice: Kadi and the Autonomy of the EC Legal Order" [2010] ELECD 428; in Hiscock, Mary; van Caenegem, William (eds), "The Internationalisation of Law" (Edward Elgar Publishing, 2010)

Book Title: The Internationalisation of Law

Editor(s): Hiscock, Mary; van Caenegem, William

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801027

Section: Chapter 12

Section Title: The Importance of International Developments in the Case Law of the European Court of Justice: Kadi and the Autonomy of the EC Legal Order

Author(s): Govaere, Inge

Number of pages: 15

Extract:

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 obliga-
tions 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 refer-
ence 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 ...