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Security Council Resolutions before European Courts: The Elusive Virtue of Non Direct Effect

UN Security Council resolutions lack direct effect, as they are not intended to oblige States in terms of means but just of results. This statement by the ECJ in the Kadi judgment has recently been used by the European Court of Human Rights in order to avoid the crucial decision over the hierarchy between obligations arising from the ECHR and the UN Charter. This article describes the “elusive virtue” of such a rationale as a formalistic but useful interpretive tool which avoids that national and regional courts commit themselves openly to a “Solange style” dialogue with UN institutions. In parallel, an analysis of UN Monitoring Team reports will show how UN institutions also prefer a certain degree of fluidity in the relationship between Security Council resolutions and national and regional legal orders. Giving the absence of a judicial interlocutor in the UN “smart sanctions” system and the difficulty to make the former compatible with European fundamental principles, the second-best solution of the supposedly flexible nature of UN resolutions is still to be preferred.

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