6533b853fe1ef96bd12acc8b
RESEARCH PRODUCT
The European Courts and the Security Council: Between "Dédoublement Fonctionnel" and Balancing of Values
De Sena PPasquale De SenaMaria Chiara Vituccisubject
Balance (metaphysics)Security interestValue (ethics)Human rightsmedia_common.quotation_subjectCommon lawAppealrelations between legal orders primacy of UN legal order balancing of values human rights security interestDédoublement fonctionnelBalancing of ValuesOrder (exchange)LawPolitical Science and International Relationsprimacy of the UN legal order European Court of human Rights European Court of Justice Kadi case Behrami and Saramati case balancing of interests security interest v. human rightsEuropean Court of JusticeSociologyRelation (history of concept)European Court of Human RightsLawSettore IUS/14 - DIRITTO DELL'UNIONE EUROPEAUN Security Councilmedia_commonSettore IUS/13 - DIRITTO INTERNAZIONALEdescription
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.
| year | journal | country | edition | language |
|---|---|---|---|---|
| 2009-02-01 |