As my first post I thought it appropriate to reflect on the September 2008 Kadi judgment of the ECJ, in which the Court held an EC Regulation to be in violation of fundamental rights.[i] What was fundamental to Kadi was that the EC Regulation at issue directly transposed a Chapter VII Security Council Resolution dealing with counter-terrorism. This case remains topical; not only is Kadi now back on the blacklist, but also the recent CFI case of El Morabit (see our coverage here) reminds us that this remains a hot topic.[ii]
The facts of Kadi are well known now and I would direct you to last year’s entry by Valentina Azarov on this blog for the facts and rulings before the CFI and ECJ.[iii] Instead, this post will first reflect briefly on the importance of Kadi with regards the relationship between international and Community law. Second, it will look at the possible avenues that were open to the Court, with a particular focus on German constitutional and European Court of Human Rights jurisprudence.
The ECJ’s view of the international legal space
As international law becomes ever more prominent in the lives of states and their citizens, understanding the nature of the international legal order, and its relationship to domestic systems, becomes increasingly important. The traditional debate focuses on monism and dualism, each offering an alternative conception of this relationship between international and domestic law. The former views it as a vertical plane with international law occupying an hierachically-superior point to domestic law, and the latter conceiving of parallel systems on an horizontal plane. This debate, moreover, is not simply academic, but also has genuine practical consequences.
Kadi can be viewed through this monist-dualist lens. The CFI adopted what may appear a monist view of the international legal order. It held that it could not review the EC Regulation in light of fundamental rights as it was implementing a Security Council Resolution which was supreme to Community law, by virtue of Articles 103 & 25 of the UN Charter, including general principles of EC law governing fundamental rights. However, the CFI’s findings regarding its obligations to observe Security Council Resolutions make it somewhat difficult to label this judgment in monist terms. For example, the Court held that the Community was bound not by international law (the EC is, of course, not a party to the UN Charter) but by EC law, noting Article 307 EC in particular.[iv] What is clear from the CFI’s judgment is that it did not conceive of an international legal space as constituted from conceptually separate parallel systems, but instead recognised international law’s supremacy vis-à-vis Community law.
One final noteworthy point on the CFI’s judgment is its rather shocking shift away from an alarming deference to the Security Council, to asserting its jurisdiction to review the Security Council Resolution in light of jus cogens, an ambiguous and amorphous regime of higher legal norms from which no derogation is permitted.[v] Its view that the Security Council is bound by this regime is not without precedence, but its claim to be the protector of that body of rules is curious. More surprising was its claim that the right to property was a protected norm of jus cogens.
The Court of Justice took the opposite view. The Community legal order, in its view, operates not within a single legal space presided over by international law, but instead as a separate, sovereign system. As such, at the top lies not international legal norms, but instead primary Community law, including fundamental rights principles, compatibility with which is a sine qua non to legality within the Community legal order. The result: any EC law violating fundamental rights must be struck down, irrespective of its role in implementing a Security Council resolution. Any doubt about the Court’s reliance on dualist legal theory evaporated when it went on to say that striking down this EC Regulation did not affect the primacy of the Security Council resolution in international law.[vi] The two systems are, consequently, separate.
The interaction of EC and international law
In Grainne de Burca’s excellent article on the Kadi case, this monist-dualist divide is reconstructed in terms of pluralist and constitutionalist approaches to international law. De Burca places the CFI’s judgment here in strong constitutionalist terms (similar to monism), and the Court of Justice’s in strong pluralist terms (similar to dualism). De Burca’s argument is that the ECJ lost an important chance of playing a key role in a process of effecting international legal change. Had the Court adopted a softer constitutionalist approach, such as that adopted by the German Constitutional Court in the Solange jurisprudence,[vii] it would have created a space for a human rights discourse to develop at the international level, with the hope of universalising a set of fundamental rights norms equivalent to that protected within the Community legal order. To do this, the ECJ could have engaged the UN, by making explicit its intention to continue reviewing EC legislation implementing UN law in light of fundamental rights until such time as those rights are protected to the same degree at the UN level, after which a presumption of compliance would exist.[viii]
This is certainly true. In Kadi the ECJ dealt with the issues as if the international legal order were complete, incapable of further development. This could not be further from the truth; had the Court of Justice adopted a more engaging tone, it could perhaps have effected a much-needed shift towards fundamental rights protection at the Security Council level. After all, the Community has long used its role in international affairs to enforce international human rights norms, i.e. through its use of human rights clauses in treaties with third states. This would have recognised that international law is an ever-evolving system, open to new ideas.
However, one much not forget the context of this case. First, the Community is grounded in a well-rehearsed regime of fundamental rights protection. Human rights have long been held general principles of Community law, having the same constitutional significance as the Treaties themselves. Moreover, it was the Court itself that initiated this in cases such as Internationale Handelsgesellshaft.[ix] Second, perhaps the most fundamental phrase in European constitutional law is ‘the autonomy of the EC legal order.’ Since as far back as Costa and Van Gend en Loos the Court of Justice has emphasised this special character of the Community.[x] It is not one rooted in any other system of law, whether national or international, but instead absolutely independent.
True, the Court does pride itself on the EC’s ‘good international citizen’ status, confirming the Community’s responsibility to observe international law. However, we have seen departures from this trend, notably in cases involving the GATT/WTO treaties, where it is less willing to recognise their direct effect within the EC (and hence their use as rules of Community law on which EU citizens can rely and enforce).[xi] Moreover, to see the ECJ’s dedication to international law as on par with its dedication to fundamental rights is perhaps exaggerating this case law. Human rights operate with constitutional significance within the EC; they are the boundary at the edges of the EC legal order.
None of the above necessarily makes the ECJ’s judgment here inevitable or even desirable. As noted, the Solange method to which de Burca refers is an attractive route to achieve what many of us regard as the ideal process of shifting from a pluralist to a constitutionalist approach to international law. However, it seems surprising that de Burca did not place more weight on Bosphorus as an option for the Court.[xii] In this case, the European Court of Human Rights (ECtHR) dealt with the possible inconsistencies in human rights protection between the EC and ECtHR legal orders with a two-stage test: a) is there protection equivalent to the ECHR at the EC level; and, if so, b) has there been a manifest deficiency in the system of protection in the particular case? If the first part is answered in the affirmative, a presumption of Convention compliance is granted to the EC. If, however, the second part is then answered in the affirmative, that presumption is rebutted.
The Bosphorus test departs from Solange in one fundamental way – whilst the German Constitutional Court in the Solange jurisprudence held the presumption of compliance to be rebuttable only if there were a general fall in EU fundamental rights protection, the ECtHR allowed case by case rebuttal. Bosphorus thus offered a more full-proof method of protecting fundamental rights whilst engaging other legal orders. It seems that this would therefore have been a more appropriate route for the Court of Justice to take towards ‘soft constitutionalism.’
That said, one must not overplay the positive steps made in Bosphorus in the protection of fundamental rights. For several reasons the judgment itself was heavily criticised, for example, why must there be a manifest deficiency? Moreover, the Court, after elaborating on the equivalent protection and manifest deficiency tests, applied them in a less than satisfactory way. In assessing whether equivalent protection existed in the EU, it looked at the general development of fundamental rights protection within the Community, abstracted from the rights specifically at issue in that case. What is more, its assessment of whether there was a manifest deficiency in the present case was dealt with in a single paragraph.
De Burca’s criticism of Kadi for its refusal to initiate, or even engage in, a much-needed human rights discourse at the Security Council level is a welcome insight, and recognises the importance of avoiding the dangerous precedent in international law of a traditionally good international citizen adopting a strongly dualist view. However, while a more engaging tone would be preferable, exactly how to engage is far from a simple decision, particularly given the ECJ’s pro-rights jurisprudence. Solange does not offer the answer that one may at first think. Its requirement of a general decline in the overall protection of fundamental rights at the EU level is stringent and could, if applied wrongly, lead to a subordination of human rights values to a wider goal of constitutionalisation of the international legal order. While the Bosphorus approach would better avoid this, it can still lead to an undermining of values. It will be interesting to see how the CFI (and ECJ) deals with the latest Kadi case, particularly in light of its ruling in El Morabit.
These issues point to a wider debate over the definition of “responsible and responsive global governance.”[xiii] If we are to promote a more constitutionalist understanding of international law, avoiding the kinds of unilateralist actions often associated with the United States, then we must take as our starting point respect for basic human rights norms. These are ends in themselves. Hoping to achieve such respect only in the future risks institutionalising human rights violations at the international level.
[i] Cases C-402/05 and C-415/05P, Kadi and Al Barakaat, judgment of the Grand Chamber of 3 September 2008.
[ii] See the September 13th 2009 post by Franz Ebert.
[iii] See the September 12th 2008 post by Valentina Azarov.
[iv] Kadi, CFI judgment, para. 207.
[v] Ibid., para. 226.
[vi] Supra note 1, para. 288.
[vii] See Solange I in the German Constitutional Court (1975) and Solange II (1986).
[viii] Grainne de Burca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2008), available online at http://ssrn.com/abstract=1321313.
[ix]  ECR 1125
[x] Costa v ENEL  ECR 585 and Van Gend en Loos  ECR 1.
[xi] For example, International Fruit Company  ECR 1219.
[xii] Bosphorus v Ireland (2006) 42 EHRR 1.
[xiii] De Burca, supra note 8, p. 38.
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