DDI-CJ-CIL-Bad - 1 Dartmouth 2K9 Customary International...

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43ca2ee9f177563afa542d63f4056a47ff3423b0.doc Dartmouth 2K9 1 Customary International Law Bad CIL results in a ‘jus cogens,’ or binding international legal setting that results in hierarchy and the subordination of fundamental rights without the possibility of judicial review Palombella, Professor of Legal Philosophy and Sociology of Law in the Faculty of Law, University of Parma 09 (Gianluigi, “The rule of law beyond the state: Failures, promises, and theory,” International Journal of Constitutional Law, V.7N.3, 5/22/2009) In fact, if not for its disappointing conclusion, the CFI decision was, nonetheless, welcomed owing to its favorable attitude toward the rule of law in the international world. The court's reasoning actually confirmed that the Security Council resolutions are binding not only on UN member states (UN Charter, art. 103) but also on the European Community ,16 which should be held responsible for compliance. Thus, harmonization between states , Community, and United Nations system was pursued , so that scholars who look at the decision with a view to a more unitary or even "monist" account of international legality17 believe that the court "is to be congratulated . .. for accepting the primacy of the UN system without any general restrictive caveats— with one exception only."18 The exception refers to jus cogens norms,19 against which not even Security Council resolutions can retain any binding effect (CFI Kadì decision, 230).20 One can understand that in the view of a unitary comprehensive legality—which would include states as well as supranational and international systems—there could develop a hierarchical order, where primacy is granted for the international norms. This conclusion is, in the abstract, of great importance to an internationalist mind-set. But some more cautious comments apply.21 While it is assumed , fairly, that the European Community is a "community of law" and is based on the "rule of law ,"22 nonetheless,
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DDI-CJ-CIL-Bad - 1 Dartmouth 2K9 Customary International...

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