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Between a Rock and a Hard Place: The Kadi Decision and Judicial Review of Security Council Resolutions
Get PDFThe U.N. Security Council sanctions regime, which targets Al-Qaeda and the Taliban, isbinding on U.N. Member States and has been implemented within the European Communitythrough European Council regulations. Questions about the lack of due process protections withinthe regime were considered by the European Court of Justice in Kadi v. Council. The Courtannulled the implementing Council regulations, holding that it had jurisdiction to review theregulations and that they infringed fundamental rights under Community law. The immediateeffect of this decision has been to create a direct conflict for EU Member States between theirobligations under the U.N. Charter and at the European level. This Article will consider the Kadidecision in terms of the relationship between the U.N. Security Council and national and regionallegal orders, and the implications of binding U.N. Security Council resolutions being subject tojudicial review. It will be argued that it is, on balance, not desirable to subject binding U.N.Security Council resolutions to judicial review at the national or regional levels, and that thedecision places Community members in a difficult position given the conflict between theirregional and international obligations
TB or Not TB: Drug-Resistant Tuberculosis in South Africa and the Legal Implications of Forced Detainment
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Pakootas v. Teck Cominco Metals, Ltd.: When Outside the Borders Isn’t Extraterritorial, or, Canada Is in Washington, Right?
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The Contribution of the United Nations to the Emergence of Global Antitrust Law
Get PDFThis Article examines the contribution of the United Nations Conference on Trade andDevelopment (UNCTAD) to the emergence of an international framework for antitrust. It is thefirst systematic analysis of UNCTAD’s contribution to international antitrust since the 1980s—when the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of RestrictiveBusiness Practices (the Set) was adopted. The Set still constitutes the only universally applicableinstrument in the area of antitrust and its validity has been constantly reaffirmed by internationalconferences organized by UNCTAD, the most recent one being held in 2005. However, the Set’sexistence has also been shadowed: first, by its weak legal effect and, second, by the emergence ofnew international fora for competition policy, such as the Word Trade Organization and theInternational Competition Network (ICN). This Article re-examines the legal effects of the Set,taking into account the evolution of the legal and political context of global antitrust; the adoptionof a significant number of international, regional, and bilateral trade agreements containing variousaspects of competition law provisions; and numerous antitrust cooperation agreements. Itconcludes that even if it is unlikely that the Set produces, by itself, any binding effect, it mayeventually contribute to the emergence of a customary international norm against restrictivebusiness practices. Nor is the importance of UNCTAD’s Set limited to the issue of its legal effect;by providing a balanced approach to the relationship between competition law and the specificneeds of developing countries, the Set may provide a model for a future international agreement onantitrust that could address the interests of both developed and developing countries
Observing the Legal System of the Community: The Relationship Between Community and National Legal Systems Under the African Economic Community Treaty
Get PDFEconomic integration has been promoted as one of the keys to the economic developmentof Africa. The continent is plagued by under-development, conflicts, fragmented markets andinsignificant cross-border commercial relationships. The benefits of integration in the form ofexpanded markets, enhanced competition, and factor mobility can potentially transform thecontinent. Currently there are efforts towards continent-wide economic integration through theAfrican Economic Community (AEC). Law plays a significant role in any economic integrationeffort. An examination of the treaty and protocols of the Community, however, does not reveal aclear articulation of the role of law in the economic integration efforts of the Community eventhough the treaty establishing the Community enjoins member states to observe “the” legal systemof the Community. Drawing on the legal positivist conception of a legal system and theexperiences of the European Union, this Article examines the potential for this provision not onlyto situate law at the heart of the Community’s activities, but also to empower the AEC in itsrelations with the member states. This Article discusses the implication of the existence of theAEC’s legal system for the sovereignty of member states. It also explores ways to strengthen thislegal system and examines the relationship that must exist between the legal system of theCommunity and the legal systems of member states
