Making Sense of 'Solanging' in International Law: The Kadi Case before the EC Court of First Instance

The paper consists of three sections. Section I is a provisional attempt at clarifying the language of solanging. It is introductory in character and may serve as a starting point in working out a typology of solanging practices. It also hints at certain anomalies of the Kadi judgment. Section II analyzes the main tenets and the worrisome constitutional implications of the Kadi judgment, mostly from the standpoint of Community law. Section III tries to show how solanging in its most drastic form may be justified as a matter of international law. By ‘drastic’ solanging I mean the situation arising from the fact that a binding act of an international organization (IO) has, directly or indirectly, been declared illegal by the judicial organs of one of its members. I will contend that this form of contestation of the exercise by IOs of transferred powers is best understood in legal terms by casting it in the mould of general international law on countermeasures. It may be argued that the author’s political inclinations are laid bare by his choice of countermeasures as the proper framework for analysis, since these measures are quintessentially relativistic, not to say anarchic. I do not deny my predilection for a pluralistic conception of the international legal order as opposed to a hierarchical one where the authority of international organs, most notably the UNSC, tends to be represented as unchallengeable de jure or de facto. However, I also contend that the former conception, epitomized by countermeasures for present purposes, offers a better description of the extant structures of international legal intercourse.