[Piet Eeckhout is a Professor at University College London and a leading authority in EU Law and international economic law. He notes that he has been involved in the Kadi litigation on the side of Sheikh Kadi.]
Devika Hovell's paper is an excellent attempt at conceptualising the relationship between the domestic judge and the UN Security Council (UNSC). That relationship has come about as a consequence of the UNSC's smart sanctions policies, which intrude in the daily lives of those which are subject to them. Most of the significant case law is in the sphere of counter-terrorism, but the policies are wider, and also target regime members.
The attraction of Hovell's dialogue model is that it tries to plod a much-needed middle course - or to find a sweet spot - in a triangle of three unsatisfactory options: (a) the domestic judge declines to review UNSC Resolutions or their implementation; (b) the judge reviews domestic implementation, thereby jeopardising the implementation of the resolutions; or (c) the judge arrogates to herself the power to review the resolutions under international law. The sweet spot consists of rejecting bindingness and hierarchy, which are features of a public-law model, to the benefit of a dialogue model which urges domestic courts to employ tools of consistent interpretation and of declaration. At most, UNSC resolutions ought to be interpreted consistently with human-rights norms, and where that is impossible the judge should do no more than issue a declaration of incompatibility, to allow the UNSC to react and adapt.
The paper is perceptive and clear, and a major contribution to the literature. A dialogue is of course needed, and its merits are undisputable. To craft a dialogue model, however, is less straightforward.
