The European Journal of International Law Vol. 20 no. 1 © EJIL 2009; all rights reserved
The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values
* Professor of International Law, University of Naples ‘Federico II’ (padesena{at}tin.it); Associate Professor of International Law, University of Palermo (chiara.vitucci{at}unipa.it). While the authors equally share the responsibility for the entire work, just for evaluation purposes sections 1, 2, 4 and 5 A and C should be attributed to Pasquale De Sena while the remaining sections should be attributed to Maria Chiara Vitucci
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Abstract |
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The recent case law of various international tribunals facing questions related to UN Security Council resolutions shows the clear tendency to grant primacy to the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute to a legal order perceived as superior, and, at the same time, is revealing of the ‘value oriented’ approach followed by the courts. Such an approach can be categorized from a theoretical perspective in the light of Scelle's theory of relations between legal orders, whereby the courts implement in their respective legal orders values stemming from the UN legal order. Various critical remarks can be advanced in relation to this attitude. Basically, when different legal values are at stake, the need arises to strike a balance between them, as the ECJ has recently done in the appeal decision in the Yusuf and Kadi cases. Such a tendency, if consistently followed, could serve as a valuable instrument to find the correct equilibrium between the security interest and the need for respect of human rights.