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Emile Noël Fellow
Academic Year 2008-2009
Iris Canor (Israel) is a Senior Lecturer, College of Management Academic Studies, Law Faculty, Rishon Le Zion, Israel.
She received her LL.B. from Tel-Aviv University (Israel), her LL.M. from the College of Europe (Brugge, Belgium) and a Doctorate in law from the Europa-Institute (University of Saarland, Germany). She also held visiting positions at the Max-Planck Institute of Public International Law, Heidelberg (Germany), and Columbia Law School. She is currently teaching at the College of Management Law School in Israel and at the Europa-Institute in the University of Saarland, Germany. In addition she is a member of the executive committee of Concord (Research Center for Integration of International Law in Israel). Her fields of research and teaching include European law, human rights, public international law and private international law with a special emphasis on the interplay between public international law and private international law. She published inter alia on institutional aspects of European law, on questions of sovereignty and occupation, on diplomatic protection and the right to citizenship, and on theories of private international law.
Constitutional Chauvinism? - The Arduous Declaration of Independence of the European Court of Justice
The judgment of the European Court of Justice in the case of Kadi was criticized in the literature mostly for what was considered to be an unwarranted separation of the European Community legal system from the international legal order. I will argue that the opposite is what really happened. While preaching to the degree of paying lip service to the autonomy of the Community legal system, the ECJ was as a matter of fact a cooperative systemic player within the international law legal order. To reach this conclusion I will be looking at the Court’s rhetoric and the discrepancy between what it is preaching and the substantive result that it is reaching.
I will argue that one can discern in the judgment a willingness on the Court’s part to express what seems to be an overarching vision of the role of international law in the Community legal system, concretized by the possibility to avoid full enforcement of international obligations while insisting on preserving the autonomy of the Community and the supremacy of its standard of protection of human rights. However, this readiness is not backed up by corresponding decisiveness in its application of the facts in the operative part of the case. Quite to the contrary, when it comes to the outcome, the Court is subjecting the Community’s human rights integrity to the realization of the international policy. Attention will be paid to these two opposing forceful flows which lurk below the judgment and which are intertwined in the reasoning.