Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat

2009 ◽  
Vol 11 ◽  
pp. 15-51 ◽  
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
International Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Courts ◽  
Public International Law ◽  
European Court ◽  
Un Security Council ◽  
Failure To Protect ◽  
Ec Law ◽  
The Relationship

AbstractThis chapter examines the recent decision by the European Court of Justice inKadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.

Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat

2009 ◽  
Vol 11 ◽  
pp. 15-51 ◽  
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
International Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Courts ◽  
Public International Law ◽  
European Court ◽  
Un Security Council ◽  
Failure To Protect ◽  
Ec Law ◽  
The Relationship

AbstractThis chapter examines the recent decision by the European Court of Justice in Kadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.

Two Legal Orders: Divergent or Convergent?

1999 ◽  
Vol 48 (2) ◽  
pp. 257-284 ◽  
Author(s):  
Eileen Denza
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
The European Union ◽  
European Union Law ◽  
Public International Law ◽  
European Court ◽  
Effective System ◽  
Ec Law ◽  
Treaty Of Amsterdam

The conclusion of the Treaty of Amsterdam and its progress through the ratification procedures of the 15 member States of the European Union provides an occasion to re-examine a familiar question. What is meant by the claim by the European Court of Justice that the European Com-munity Treaties have created “a new legal order of international law”1 or, more radically, “a new legal order”?2 Is EC law to be regarded as a particularly effective system of regional international law, or has it been created as, or mutated into, an entirely new species of law? If there are indeed two legal orders, to what extent are they still capable of cross-fertilisation? What about “European Union law”? Have the Treaty on European Union and now the Treaty of Amsterdam eroded the dichotomy between the two legal orders of public international law and EU law? Is public international law itself taking on some of the characteristics which have made EC law an attractive as well as an effective system for regulating relations between sovereign States? Are the two streams converging?

scholarly journals From the pandemic to the recovery: a legal analysi

2021 ◽  
Vol 69 (2) ◽  
pp. 185-227
Author(s):  
Biancamaria Raganelli ◽  
Pierre de Gioia Carabellese
Keyword(s):  
Conflicts Of Interest ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Scientific Debate ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Rights And Freedoms ◽  
The Relationship

The Covid pandemic has raised various legal issues, fueling the scientific debate on the relationship between fundamental rights and freedoms in the global emergency context. Moreover, a case law has started developing within the different jurisdictions. Additionally, constitutional Courts, in different countries, have ruled over potential conflicts of interest among central powers and local ones, and even some decisa of the Court of Justice of the European Union have started “blossoming” in this area. Against the backdrop of this analysis, the paper discusses the main legal problems sparked off by the declaration of the state of emergency, with a focus on the main EU jurisdictions and with glimpses of non-EU countries. The aim of this is to discuss the balance between fundamental rights and liberties in decisa in different legal systems, as well as the interpretation given to principles of proportionality of the public health measures, adequacy, precaution and loyal collaboration and the relationship between freedom and limits to public power. Bearing this in mind, the purpose of the work is to demonstrate that, first and foremost, in Europe there is room for both a formal and a substantial recognition of common rights and liberties in terms of interpretation and application of constitutional traditions, shared by the different Member States. The relevant adherence to these principles is guaranteed by the European Court of Justice. Second, the recovery after the pandemic is an open challenge. An important opportunity for Europe and its Member States is materialising, and this is to take a step forward on the bumpy path toward a European Political Union capable of strengthening a structure weakened by several earthquakes. A path and a project still plenty of pitfalls that needs to regroup around a central core increasing unification among European peoples (art. 1 TEU), which has never meant to be an alternative to national identity. Received: 24.11.2021Accepted: 13.12.2021

scholarly journals The Incorporation of Public International Law into Municipal Law and Regional Law against the Background of the Dichotomy between Monism and Dualism

2017 ◽  
Vol 17 (4) ◽  
pp. 1496
Author(s):  
Gerrit Ferreira ◽  
Anel Ferreira-Snyman
Keyword(s):  
International Law ◽  
South African ◽  
Constitutional Court ◽  
Legal Systems ◽  
Practical Application ◽  
Public International Law ◽  
Court Of Justice ◽  
European Court ◽  
Municipal Law ◽  
The Relationship

Monism and dualism represent two different approaches towards the relationship between public international law and municipal law. While the former views public international law and municipal law as a single legal system, the latter regards these two areas of law as separate and distinct legal systems that exist alongside each other. However, not all legal systems are clearly either monist or dualist. The dichotomy between monism and dualism no longer only concerns the relationship between public international law and municipal law, but also increasingly affects the relationship between public international law and regional law. This contribution discusses the application of the monist and dualist approaches by the South African Constitutional Court in the Glenister case and the European Court of Justice in the Kadi and Hungary cases in order to illustrate the practical application of the dichotomy between monism and dualism in a municipal system and on a regional level.

scholarly journals The Road Not Taken – the CJEU Sheds Light on the Role of Fundamental Rights in the European Copyright Framework – a Case Note on the Pelham, Spiegel Online and Funke Medien Decisions

2019 ◽  
Vol 50 (9) ◽  
pp. 1176-1190 ◽  
Author(s):  
Thom Snijders ◽  
Stijn van Deursen
Keyword(s):  
Great Majority ◽  
Fundamental Rights ◽  
The European Union ◽  
The Road ◽  
Eu Member States ◽  
European Court ◽  
Exceptions And Limitations ◽  
The Relationship ◽  
The Eu

Abstract On 29 July 2019, the Court of Justice of the European Union delivered its judgments in three eagerly awaited cases, Pelham, Spiegel Online and Funke Medien, which all relate to the relationship between copyright and (other) fundamental rights. Specifically, an issue arising in these cases is whether the EU copyright acquis allows for fundamental rights to be invoked as an autonomous ground for limiting a copyright, outside of the mechanisms incorporated in the Copyright Directive for that purpose. In its judgments, the Court rejects this possibility and instead locates the role for fundamental rights in the interpretation and implementation of the exceptions and limitations of the Directive. We argue that – while this may render satisfactory results in the great majority of cases – in exceptional cases the CJEU’s approach towards balancing copyrights and fundamental rights could be at odds with the approach of the European Court of Human Rights, which might reduce the legal certainty sought after by the CJEU. Lastly, we consider the implications of that potential tension for the judicial authorities and other actors within the domestic legal orders of the EU Member States.

CITIZENSHIP OF THE EUROPEAN UNION

2013 ◽  
Vol 62 (2) ◽  
pp. 492-501
Author(s):  
Adam Cygan
Keyword(s):  
Fundamental Principle ◽  
Prima Facie ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
European Court ◽  
International Obligations ◽  
Council Regulation ◽  
The Relationship ◽  
The Eu

The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgment1 the Court examined whether adoption of a UN Resolution in the form of a Council Regulation2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.

Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared

2013 ◽  
Vol 15 ◽  
pp. 383-415 ◽  
Author(s):  
Christopher McCrudden
Keyword(s):  
European Union ◽  
Human Rights ◽  
Normative Theory ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

AbstractThis chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

9. Fundamental rights in the European Union

2020 ◽  
pp. 243-282
Author(s):  
Eleanor Spaventa
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Historical Background ◽  
European Convention ◽  
The European Union ◽  
Rights Protection ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship ◽  
The Eu

This chapter examines fundamental rights in the EU. It begins by analysing the historical background and the development of the case law on fundamental rights. It then examines the main Treaty provisions relating to fundamental rights protection, before turning to the Charter of Fundamental Rights of the EU. Finally, it looks at the relationship between the EU and the European Convention on Human Rights (ECHR), including the extent to which the European Court of Human Rights agrees to scrutinize EU acts. It also considers the plan for the EU to accede to the ECHR.

UN Sanctions and Judicial Review

2007 ◽  
Vol 76 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
European Union ◽  
Security Council ◽  
Judicial Review ◽  
Legal Order ◽  
Fundamental Rights ◽  
Rights Protection ◽  
European Court ◽  
Un Security Council ◽  
Ec Law ◽  
Community Legal Order

AbstractThis article analyses the way UN sanctions are implemented in the European legal order. As a basis for the analysis, the European Court of First Instance's (CFI) rulings in the Yusuf/Kadi/Ayadi 1 cases and the European Court of Human Rights's (ECrtHR) judgment in the Bosphorus 2 case are applied. The main critique of the author is that the CFI misconstrued the hierarchy of norms within the Community legal order when it argued that the EC/EU (European Community/European Union) is bound by UN Security Council resolutions in the same way as the Member States. Moreover, the conclusion drawn from this by the CFI that UN law enjoys supremacy over primary EC law is also rejected by the author. Finally, it appears that European courts are unwilling to provide judicial review against UN sanctions, which results in a lacuna concerning fundamental rights protection for affected individuals and organisations.

Direct Public Access to EU Courts: Upholding Public International Law via the Aarhus Convention Compliance Committee

2012 ◽  
Vol 81 (2) ◽  
pp. 175-204 ◽  
Author(s):  
Simon Marsden
Keyword(s):  
International Law ◽  
Public Access ◽  
State Courts ◽  
Direct Access ◽  
Access To Justice ◽  
The European Union ◽  
Public International Law ◽  
Aarhus Convention ◽  
The Relationship ◽  
The Eu

This article examines the opportunities for individuals and non-governmental organisations (NGOs) to obtain access to justice in the European Union (EU) via international law. In the context of the first part of a concluded case before the Aarhus Convention Compliance Committee (ACCC), it reviews the EU rules that restrict standing and examines whether the preliminary reference procedure from Member State courts provides an effective alternative to direct access to EU courts. Based on the general findings and recommendations, and analysis of the relationship between international and EU law, it is argued that there remains a need for greater EU compliance with the Convention, with the implication that EU primary as well as secondary law may need to be reformed if public international law obligations are to be fully met.

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