Rights, security, and conflicting international obligations: Exploring inter-jurisdictional judicial dialogues in Europe

The European Court of Justice's decision in Kadi & Al Barakaat has frequently been condemned as a missed opportunity for the Court to engage in a wider international debate about how states' multiple layers of obligation relate to one another. In this paper, we compare the ECJ's approach in this case to previous approaches in the Council of Europe, the United Kingdom, France, Germany, and the EU courts themselves. We argue that the way in which the Court chose to frame the issues in Kadi in fact enabled it to engage in an inter-institutional and inter-organizational international dialogue rejecting dichotomous approaches to security and rights. At the same time, the approach enabled the Court to strengthen its internal constitutional commitment to fundamental rights protection and, a priori, to reject dichotomous counter-terrorist approaches on the local as well as the international level. We therefore present Kadi as a case of key significance for both European and international constitutionalist processes.