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The ECJ's Kadi judgment facilitates the review of international law for compliance with fundamental rights

The European Court of Justice handed down its decision in the Kadi and Al-Barakaat joint cases on 3 September 2008.[1]  After reviewing the treatment of the case by the Court of First Instance with considerable attention, the Court divided its conclusions into three separate but interdependent issues: (i) the Council’s competence in adopting the regulation (Regulation 881/2002 and others that have followed to amend it) for the freezing of financial resources by states of persons related directly or indirectly to organizations considered to engage in international terror activities; (ii) the compatibility of the regulation with Article 249 EC Treaty; and (iii) the compliance of the regulation and its provisions with certain fundamental rights.

After confirming that the Council was competent to adopt the regulation, the most revolutionary of the ECJ’s conclusions stand with regards to the compliance of international legal instruments, that require transposition on the EU level, with the fundamental principles of Community law (Article 6(1) of the EU Treaty – human rights law as endorsed by the ECJ and developed in the European context).

The CFI judgment in the Kadi case

The CFI’s conclusions from 2005 in this regard were to the effect that since MS are bound by international law and are obliged to implement UN Security Council Resolutions (Articles 103 and 25 of the UN Charter) as part of their positive international legal obligations, although these do not bind the Community per se, the Court’s review should be limited to “ascertaining whether the Community measures at issue were appropriate and proportionate in relation to the resolutions of the Security Council which they put into effect” (para. 217 of the CFI Kadi judgment).

One of its more imminent conclusions speak of the “mandatory” nature of the human rights concerned. In other words, the CFI held in paragraph 231 that “indirect judicial review” by the Court may be exercised

“highly exceptionally…to determine whether the superior rules of international law falling within the ambit of jus cogens have been observed, in particular, the mandatory provisions concerning the universal protection of human rights, from which neither the Member States nor the bodies of the United Nations derogate because they constitute ‘intrasgressible principles of international customary law’ (Advisory Opinion of the ICJ of 8 July 1996, The Legality of the Threat or Use of Nuclear Weapons, Reports 1996, p. 226, para. 79; see also, to that effect, Advocate General Jacob’s Opinion in Case C-84/95 Bosphorus [1996] ECR I-3953, para. 65).”

Nevertheless, the CFI upheld that the regulation does not constitute an interference with the right to private property or other procedural human rights and could not be regarded as contrary to jus cogens. A conclusion that did not stand unchallenged at the time.[2]

The relevance of Advocate Maduro’s Opinion on Kadi

When push came to shove the ECJ’s long awaited judgment on the cases reflected the vast majority of General Advocate Maduro’s Opinion on the case, which was presented to the Court on 16 January 2008.[3]  Some of the more interesting parts of Maduro’s submissions pertain to his appreciation of what the rejection or review of a UN resolution would mean.

He noted that to reject the Resolution would not mean that “the Community’s municipal legal order and the international legal order pass by each other like ships in the night” (para. 22 of the Opinion). However, he boldly asserted that the “relationship between international law and the Community legal order is governed by the Community legal order itself”, and “international law can permeate that legal order only under the conditions set by the constitutional principles of the Community” (para. 24). He further held that although this “may inconvenience the Community and its Member States in their dealings with the international stage, the application of these principles by the Court of Justice is without prejudice to the application of international rules on State responsibility” (para. 39).

Appreciating the ECJ’s conclusions on the legitimacy of review

In its consideration of the compatibility of the regulation with human rights, the ECJ upheld that since the regulation at issue provides no procedure for communicating the evidence justifying the inclusion of the names of the persons concerned in the list, either at the same time as, or after, that inclusion, it violated the right to be heard and the right to an effective remedy, which constitute fundamental principles of the international legal order that not even the Security Council can just ignore.[4]  More so, since Mr. Kadi had not been granted the opportunity to make representations to the Council about his listing, it also constitutes an unjustified and inadmissible restriction of his right to private property.

The right of review

The ECJ asserted in a clear and concise manner that the EU legal order is different and therefore separate from the international legal order on a horizontal rather than vertical, hierarchical manner.[5]  It further asserted, in a qualificatory manner, that any decision to the effect that a transposing regulation is “contrary to a higher rule of law in the community legal order would not entail any change in the primacy of the resolution in international law” (para. 288). Nevertheless, the right to review a regulation within the community legal order is “a constitutional guarantee forming part of the very foundations of the community” (para. 290).

In any case, the Court confirms that since there is no dogmatic model for the adoption of UN resolution and their transposition into the domestic legal orders of the UN Member States, there should not be done “in accordance with the procedure applicable in that respect in the domestic legal order of each Member State” (para. 298), and this varied degree of freedom asserts that in the case of the EU (under Article 307 EC Treaty) derogations from primary law will be allowed if they threaten the “principles that form part of the very foundations of the community legal order” (para. 301 and 304).

Notably, the Court also makes reference to the practice of the ECHR who has in certain cases declined jurisdiction ratione personae to review the lawfulness of contested regulations in the light of fundamental freedoms (para. 310). The ECHR has done so when the actions have been (i) directly attributable to the UN “fulfilling its imperative collective security objective”; or (ii) actions falling within the exercise of powers lawfully delegated by the Security Council in the UN Charter, having taken place in the territory of those states but not resulting from the decision of the authorities of those states (para. 312).

Finally, the Court allowed the regulation to withstand for a transitory period of three months running from the judgment, to allow the Council to remedy its current defects without prejudicing the effectiveness of the restrictive measures issued by the UN bodies.

The compatibility of targeted sanctions with human rights

The Court then swiftly moves the focus of the discussion from questions of form pertaining to the legitimacy of the adoption of the regulation and the position it holds in EU law, relative to its origin in the international legal order, to questions of content pertaining to the normative appreciation of the specific provisions of the regulation that implements the UN resolution rather laterally and without much adjustment or amendment.

The Court submits that although under the legal system of the UN, having regards of the re-examination procedures for listing that has recently been considerable improved, fundamental rights should be adequately protected. Nevertheless, individuals and other entities are yet to have an opportunity to be heard and there is no adequate administrative mechanism for review and the re-examination procedure does not offer the guarantees of judicial protection so long as “the procedure before that Committee is still in essence diplomatic and intergovernmental, the persons or entities concerned having no real opportunity of asserting their rights” (para. 318-319 and 322-325).

On a more general level, the use of targeted sanctions in the context of international legal tools for the fight against terrorism and its funding are expected to stumble upon an even greater number of obstacles as a result of these proceedings.  At present, there is still no possibility whatsoever of some independent substantive review at UN level, which equally still lacks clear criteria for the listing, as well as a proper procedure for delisting.[6]  Therefore, as van den Herik has previously noted, this approach of the European courts has placed the need for procedural reform on the Security Council’s agenda and they can be commended for doing so.[7]

The development of international law has in recent years been effected by the integration of the European Union as a whole and more particularly the enhancement and expansion of the scope of international human rights, fed by the jurisprudential practice of the ECHR and its dynamic interpretations of positive obligations and newly bred human rights. These integrationist arms of the Community order have also affected the existence and interaction of individual Member States with third parties outside of the legal or political framework of the European arena.[8]

The ramifications of the ECJ decision in these cases have a heavy weight considering both their interpretive nature and their potential instrumentality in future cases as well as political contexts. Nonetheless, it is yet to see what the ECJ, ECHR, other European governing bodies and even the national courts of Member States could do with and in light of these binding submissions of the Court of Justice. Only practice will assert exactly how draconian these conclusions are, and whether the Court had drawn an appropriate line in clarifying or even redefining the traditional hierarchical structures of the international legal order.

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[1] Other posts that have made note of this landmark decision are: http://eulaw.typepad.com/eulawblog/2008/09/terrorism-the-security-council-and-ec-law-joined-cases-c-40205-p-and-c-41505-p.html and http://courtofjustice.blogspot.com/2008/09/joined-cases-c-40205-p-and-c-41505-p-c.html

[2] To this effect it is also useful to make note of Bianchi’s recent article on the place for human rights as part of the body of jus cogens norms; Bianchi A. “Human rights and the Magic of jus cogens.” European Journal of international law, Vol 19, No 3, 2008. pp. 491-508; Judge ad hoc Dugard has also recalled Lauterpacht’s suggestion that a Security Council resolution will be void if it conflicts with a norm of jus cogens (Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda, judgment of 3 February 2006, ICJ Rep. 2006, at para. 8 (Separate Opinion of Judge Dugard)).

[3] For the Opinion see: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-402/05; It is also considered in: http://nonliquetblog.blogspot.com/2008/01/maduro-and-kadi-weapon-of-colossal.html

[4] Bianchi outlines the theories according to which the UN and Security Council must respect fundamental human rights; Bianchi A. “Security Council’s Anti-Terror Resolutions and their Implementation by Member States,” Journal of International Criminal Justice, Vol 4, 2006. pp. 1061-1063

[5] The Court holds that “an international treaty cannot affect the allocation of powers fixed by the treaties, or, consequently, the autonomy of the community legal system…”; para. 282 of the Judgment

[6] A judicial court is not the only option for sound review, but there must be a body or a person with some level of independent and impartiality that can substantively review petitions for delisting; see van den Herik L. “The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual.” Leiden Journal of International Law, Vol 20, 2007. pp. 805-807

[7] Ibid. p. 802

[8] Lickova M. “European exceptionalism in international law.” European Journal of International law, Vol 19, No 3, 2008. pp. 465-475

4 Comments

  1. Dominik Zimmermann Dominik Zimmermann 16 September 2008

    The judgement of the ECJ is certainly an important one, for several reasons. First of, it is encouraging to see that the ECJ once again strengthens the protection of human rights, referring both to the European Convention and the Charter of Fundamental Rights. However, the ECJ must be careful not to infringe upon the jurisdiction of the ECHR and the jurisdiction of the national courts. The ECJ is not – in my reading – a human rights court and also not a constitutional court (remember the recent critique of the ECJ by Roman Herzog?). Interesting is also that the ECJ has started to talk of “constitutional” principles on which the EC Treaty is based (para. 285). After the Draft European Constitution has been voted down, do we once again witness an example of the ECJ taking the initiative to lead the EU out of its current political deadlock? One might see this initiative as a positive development just the way it has been in the past. But I would like to stress some caution here. There were good reasons for omitting the term “constitution” from any new EU-treaty after the draft EU-constitution was dismissed by inter alia the French. Although the ECJ might be inclined to use this terminology already for dogmatic reasons – leaning on national constitutionalism, especially from Germany and France – we cannot afford to alienate the peoples from the European integration process further. The EU is certainly in need of a reformed primary law, but not (yet) ready for a constitution.
    Second, I almost tend to support the ECJ’s distinction between the European legal order and international law. The reference to the sui generis character of EU/EC-law is, of course, nothing new. It has been mentioned by the Court when delimitating EU/EC-law from the legal orders of the member States (which after all are the foundation of the EU/EC legal order) and it is thus only consequential that the Court makes this difference also with regard to the still scarcely developed international legal order. I should mention, however, that this could possibly also have some negative effects in the long run. International law is a reality for all member States and even the individual citizens of the EU. Then why not also challenge the legality and/or primacy of the UN resolutions in international law, at least as long as international law itself does not provide for a mechanism able to take over this task? The ECJ thus has to, sooner or later, find some mechanism to have EU/EC-law and international law interact more closely. One cannot shut the EU/EC-law from interacting with international law.
    For that reason, the ECJ did also not cease the opportunity to put real pressure on the UN to establish some kind of mechanism to review the legality of resolutions. It would perhaps be overly optimistic (even naïve?) to expect the UN to install some legal mechanism that is able to challenge the legality of resolutions that of course constitute difficult political compromises. But this kind of review mechanism would surely be the ideal solution and the ECJ could at least have mentioned it.

  2. Dominik Zimmermann Dominik Zimmermann 23 September 2008

    One additional remark: Wouldn’t it have been preferable if the ECJ had adopted a decision based on some kind of “Solange”-rationale? I.e. holding that it would feel justified (and even obliged) to assess the legality of UN resolutions against human rights standards as long as (“solange”) the UN itself does not provide for appropriate judicial mechanisms that would take over this function and also be open for the individual affected by the relevant UN measures. This would certainly increase the pressure on the UN to initiate some sort of reform more than the system now established by this decision, which basically reliefs the UN from any obligation to act since action is being taken on the EU-level already … Also it would highlight that action has to be taken on the UN level since the solution suggested by the ECJ, although helping EU citizens affected by the UN measures, does not mitigate the situation for non-EU citizens. Especially since the latter ones can’t always be assumed to have access to a reliable judicial organ able and willing to safeguard their human rights on the national (let alone regional) level.

  3. Valentina Azarov Valentina Azarov 23 September 2008

    Re: a “solange” rationale
    It appears, very arguably that the ECJ indeed adopted some sorts of a conditionality response when it extensively discussed the developments in the Sanctions mechanisms through the various UN Resolutions up to date. Whilst conducting this survey it sought to confirm that despite the extensive uttering on the matter, the Security Council has achieved very little in terms of securing the basic procedural rights that it either may not have been able to live up to or, maybe even, did not plan to achieve.
    The Council’s intention can be sidestepped in this regard, as one can afford it the presumption of good faith, however, more alarmingly, the fact that the Court refrains from confronting the UN bodies directly and decides to rather adopt a nonchalant approach by disregarding their intentions for developing the present UN sanctions system, can be seen as a way to escape the inevitable and even the unwanted – a confrontation between the two legal orders. Since there is an indisputable synthesis between the European regional legal system and that of the UN international legal order, in many different fields, the ECJ’s apathy, if you will, towards the UN system cannot be ignored, be it that every inaction is in fact an action.
    Can we then not say, by taking matters a step further, that by neglecting to explicitly adopt a “solange” rationale the ECJ strengthens the view that it regards the European order as separate and possibly even paramount in relevance and definitely more equipped in legal tools and mechanisms in particular areas to that of the UN international legal order? (A very tricky and interpretive matter, I concede.)

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