[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.]
The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’.
My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’.
Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law.
While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration.