국제법질서에서의 EU의 지위 – Kadi 사례에 반영된 국제법질서를 중심으로 -

Abstract

What is the European Union(EU)? The question of the legal status of the EU is important for making legal judgments in EU cases invol ving international organization and international dispute resolution, s uch as when the EU seeks to play a more prominent role in the int ernational legal order or when EU member states withdraw from the EU legal order. The debate over the legal status of the EU is also ev ident in the academic response to the Court of Justice of the Europ ean Union(CJEU)'s Kadi decision. This Article examines the response of European courts--and in particular of the Court of Justice of the European Union(CJEU)--to the dramatic challenges to the UN Securit y Council’s anti-terrorist sanctions regime brought before the courts. The CJEU in Kadi case annulled the European Community’s impleme ntation of the Security Council’s asset-freezing resolutions on the gr ound that they violated EU norms of fair procedure and of property protection. This Article argues that the robustly pluralist approach o f the CJEU to the relationship between EU law and international law in Kadi case represents a sharp departure from the traditional embr ace of international law by the EU. Paralleling in certain striking wa ys the language of the US Supreme Court in Medellin v. Texas , the approach of the CJEU in Kadi case carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Sec urity Council resolutions. More importantly, the CJEU’s approach ris ks undermining the image the EU has sought to create for itself as a virtuous international actor maintaining a distinctive commitment t o international law and institutions. This Article is preceded by an i n-depth analysis of the theoretical and concrete practical shortcomi ngs stemming from the lack of institutional cooperation between the UN and the EU in the Kadi case. Enhanced institutional cooperation between the institutions of the two systems will work to their mutua l advantage as well as, most importantly, maintain the rights and lib erties of individuals like Kadi.