Faculté de droit

European Legal Pluralism after Kadi

Besson, Samantha

In: European Constitutional Law Review, 2009, vol. 5, no. 2, p. 237-264

The relationship between European Union law (hereafter, ‘EU law’ or, in a more general sense, ‘European law’1 ) and international law has been a concern for European and international lawyers alike for quite some years now.2 Although the question is a classical one, this article argues that answers that have traditionally been given ought to be revisited in the light of important changes... Plus

Ajouter à la liste personnelle
    Summary
    The relationship between European Union law (hereafter, ‘EU law’ or, in a more general sense, ‘European law’1 ) and international law has been a concern for European and international lawyers alike for quite some years now.2 Although the question is a classical one, this article argues that answers that have traditionally been given ought to be revisited in the light of important changes in international and European law. Recent developments in the European case-law since 2005, and those triggered by the Kadi case,3 provide this article’s starting point. Drawing on the three decisions that were successively made in that case, the article reframes some of the legal categories used to date to describe the articulation between the international and the European legal orders and more specifically: the validity, the rank and the effects of international law within the EU legal order. There is one concept in particular that has become very popular and is widely used to capture the change of paradigm in the relationship between the international and European legal orders and, in some cases at least, to replace traditional legal categories: it is the concept of legal pluralism. That concept actually lies, for instance, at the core of the reasoning of the Advocate-General in the Kadi case and supplies the key to the exegesis of the Kadi jurisprudence. As that concept can mean different things to different people, the article will examine it more closely in order to unpack its implications within the European legal order. The ultimate goal of the present contribution is to develop a theoretical framework for future reflections on the relationship between a plurality of autonomous albeit overlapping international legal orders, in the first place to each other, but also ultimately and inevitably between them and national legal orders. My claim indeed is that these three autonomous layers of the European legal order lato sensu ought to be considered at the same time when assessing the articulation between any two of them. Only a few scholars have examined the issue in this integrated fashion4 and this constitutes a blind spot in contemporary legal analysis of the European legal order. The article’s argument is three-pronged. In a first section, it starts by clearly identifying the different questions raised by the relationship between the European and international legal orders and presents the answers that have traditionally been given to those questions in the European case-law. The second section turns to recent developments in practice and uncovers the new perspectives one may draw from the Kadi case in particular. In its third section, the article broaches some of the concerns European lawyers are facing post-Kadi. Drawing on those concerns, it delineates a more comprehensive approach to the relationship between the European and the international legal orders, by revisiting the contours and meanings of European legal pluralism and its implications for domestic legal orders.