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Between a Rock and a Hard Place: The Kadi Decision and Judicial Review of Security Council Resolutions

Finlay, L. (2010) Between a Rock and a Hard Place: The Kadi Decision and Judicial Review of Security Council Resolutions. Tulane Journal of International & Comparative Law, 18 (2). pp. 477-501.

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The UN Security Council sanctions regime, which targets Al-Qaeda and the Taliban, is binding on UN Member Stares and has been implemented within the European Community through European Council regulations. Questions about the lack of due process protections within the regime were considered by the European Court of Justice in Kadi v. Council. The Court annulled the implementing Council regulations, holding that if had jurisdiction to review the regulations and that they infringed fundamental rights under Community law The immediate effect of this decision has been to create a direct conflict for EU Member States between their obligations under the UN Charter and at the European level. This article will consider the Kadi decision in terms of the relationship between the UN Security Council and national and regional legal orders, and the implications of binding UN Security Council resolutions being subject to judicial review It will be argued that it is, on balance, not desirable to subject binding UN Security Council resolutions to judicial review at the national or regional levels, and that the decision places Community members in a difficult position given the conflict between their regional and international obligations.

Item Type: Journal Article
Murdoch Affiliation(s): School of Law
Publisher: Tulane University Law School
Copyright: Tulane University Law School
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