Recent case law on the Security Council sanctions regime and the idea of European constitutionalism.

This paper focuses on the critical assessment of some recent cases of the former

Court of justice and the Court of first instance of the European Union related to the

targeted sanctions regime initiated by the Security Council aiming at combating the

financing of international terrorism and consisting in the freezing of the assets of

those individuals and entities that are blacklisted. The case law produced gives a

valuable insight of the European court’s approach to the structuring and constitutional

forming of the European legal order and it’s articulation with the international legal

order, particular the one emanating from the UN Charter. On the other hand, the

rulings in question seem to have important implications for the international legal

regime of the sanctions introduced by the Security Council in its capacity as the agent

competent to secure international peace and security. So, it would be consistent to

argue that a sui generis1 constitutionalism like the one promoted by the European

court and underpinning the regional legal order of the European union has a particular

impact on the universal legal order of the UN, in so far as the international obligations

stemming from the Security Council and their conformity to human right’s protection

standards are concerned.

However, further analysis of the rulings reveals that the response of the

European Court of Justice cannot be regarded as a general and definite assessment of

the relationship between legal orders integrated in international law2. It should better

be treated as the affirmation of the autonomy of the European legal order and of the

inextricable divide between legal orders. The European judge in fact reasserts himself

as the guardian of the constitutional autonomy and integrity of the European legal

order, which is structured on the basis of the imperative of the protection of

fundamental human rights.

1 The former ECJ referred to the European legal order as a sui generis order, Case 26/62, Van Gend en Loos, Case 6/64, Flaminio Costa. For an opposing viewpoint see the Polish Constitutional’s Court judgment on Poland’s membership to the EU, according to which the treaties are international agreements, K 8/04, Poland’s membership in the European Union (The Accession Treaty), Judgment of 11 May 2005. 2 See ECJ, Van Gend en Loos, the community legal order is an order “of international law” , in that the community is governed by international law, as included in the fundamental principles of the law of the treaties. However, this does not prejudge the closer relationship between the legal orders in question.

1

1. The UN sanctions regime and its implementation by the European Union organs.

Following the terrorists attacks of 11/9 the Security Council prepared a list of

suspected individuals or entities of terrorism whose assets were to be freezed by the

member States3. The resolution followed the resolution 1267 adopted in 1999 and

concerning the blacklisting of Al Qaida and the Taliban. The Security Council also

established a Sanctions Committee4, consisting of all the members of the Council,

which maintains an updated list of the individuals and entities concerned. The

predominantly political nature of the procedure of listing, which is made on a

consensual basis among UNSC (United Nations Security Council) members in their

capacity as committee members have been thoroughly criticised, especially from a

human rights perspective, as the persons or entities listed are given no possibility to

contest the decisions made against them or to challenge the measures before a court.

Judicial review of the restrictive measures is thus not provided and a de-listing

procedure did not initially exist. During the past years the Committee has responded

to the human rights oriented criticisms, which have stemmed also from organs of the

United Nations and other regional organisations5, by initiating a number of procedural 3 See the Resolution 1373 (28/9/2001) of the Security Council according to which, States are obliged to “ freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorists acts; of entities owned or controlled directly or indirectly by such persons, and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities”. 4 The Committee was established pursuant to resolution 1267 (1999) for the purpose of overseeing the implementation of sanctions measures imposed on Taliban. See the site of the Committee http://www.un.org/sc/committees/1267/index.shtml. 5 Human Rights Commissioner, Council of Europe, T.Hammamberg, le 1/12/2008, Terrorisme : vers la fin de l’arbitraire dans l’établissement des listes noires ?, Rapport du 16/11/2007, Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, United Nations Security Council and European Union Blacklists, doc.11454, rapporteur Dick Marty, Res. 1597 of the Parliamentary Assembly, (in which the Assembly concludes that “the procedural and substantive standards currently applied by the UNSC and by the Council of the European Union, despite some recent improvements, in no way fulfil the minimum standards laid down above and violate the fundamental principles of human right and the rule of law”), Rec.1824 (2008) to the Committee of Ministers of the Council of Europe, and answer of the Committee to the la Rec.1824 (2008), at 9/7/2008. See also the report of Ian Cameron, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions, Council of Europe, 6/2/2006, study for the European Parliament, Citizens rights and constitutional affairs, Overview of European and international legislation of terrorist financing, 4/2009, B. Fassbender, Targeted Sanctions –Listing/Delisting and Due Process, Study commissioned by the Office of Legal Affairs, UN, 2006. Watson Institute, Brown University, Strengthening Targeted Sanctions through Fair and Clear Procedures, White paper prepared by the Watson Institute Targeted Sanctions Project, March 2006, Addressing challenges to targeted sanctions, an update of the Watson report, 10/2009, Overdue process, Protecting human rights while sanctioning alleged terrorists, A report to Cordaid from the Fourth freedom forum and Kroc Institute for international peace studies at the University of Notre Dame, G.A.Lopez, D.Cortright, A.Millar, L.Gerber-Stellingwerf, April 2009, Working document of a

2

improvements6, with the more recent being the creation of the office of the

ombudsperson, in order to assist the Committee in considering delisting requests and

to whom the individuals concerned can have direct access7. However, the Council

failed in creating an impartial and independent organ which could control the delisting

demands. In consequence, the procedures instituted still fell short of guaranteeing to

targeted individuals the right to be heard and the right to an effective judicial

protection, comprising their right to have the decision of the listing decision judicially

reviewed and the right to claim for compensation for damage caused by arbitrary or

wrongful application of the targeted sanctions8.

2. Implementing Security Council Sanctions within the European Union.

The European Union on the basis of the common foreign and security policy had

already adopted in 1999 common position 1999/727/CFSP pursuant to resolution

1267 (1999). The common position was swiftly followed in February 2000 by

Council Regulation 337/2000 concerning a flight ban and the freezing of funds. After

11 September the Council of the European Union, in its capacity as representative of

the members of the Union on UN related matters, incorporated the SC resolutions into

community law9 by community regulation 881/200210 which contains the UN list of

individuals and entities. Additionally, in response to the Resolution 1373, the EU

created also an autonomous EU blacklist in the form of a third pillar Common

Position, n° 931/2001. Unlike the list instituted by the Al Qaida and Taliban sanctions

seminar in the Netherlands, Effectiveness and Legitimacy of UN Targeted Sanctions, Hague, May 2009, D.Cortright, E.de Wet, Human Rights Standards for Targeted Sanctions, Sanctions and Security Research Program, 1/20106 Resolutions 1333 (2000), 1390(2002), 1455 (2003), 1526 (2004), 1617 (2005, 1730 (2006), 1735 (2006), 1822 (2008), 1904 (2009). Beyond the measure introduced there was the establishment of a kind of notification procedure, as well as a procedure of declassifying confidential or secret information, and there is also an official de-listing procedure through a “UN focal point” in the UN secretariat. 7 Resolution 1904(2009). 8 See UNHCR, « Report of the Special Rapporteur on Counter-terrorism, (2006), UN Doc A/61/267, §40: “For those organisations which have been wrongly placed on the lists, either because the intelligence on which the placement was based was incorrect or because the name on the list is an acronym or wrongly spelt, compensation or restitution needs to be made available, in line with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which provides that States should provide redress for victims of crime and abuse of power”. 9 The legal basis for Community actions in focus is articles 11, 15 and 29 of the Treaty of the European Union, and articles 60, 301 and 308 of the EC Treaty. For a detailed overview see I. Cameron, “European Union Anti-terrorist Blacklisting”, 2003, HRLR, p. 225-257. 10 Council regulation (EC) n° 881/2002, 27/5/2002, imposing certain specific restrictive measures directed against certain persons and entities associated with Osama bin Laden, the Al Qaida network and the Taliban, and repealing Regulation n°467/2001.

3

regime, Resolution 1373(2001) does not introduce a central list, and relies instead on

autonomous lists established by States or the EU.

Many shortcomings of the SC regime were however also detected in the European

Union listing regime11. Problems relating to human rights protection, such as the need

to secure a fair hearing, remedies or the establishment of a de-listing procedure12 were

not addressed in the new regime. The European listing procedure provided though the

member states much more detailed criteria to guide inclusion of names, as well as an

extensive definition of individuals to be targeted13. The procedure was amended14

following the Court of First Instance judgment in the case of People’s Modjahedin

Organization of Iran v. Council and Commission15 in which the Court of First

Instance (CFI) concluded that the procedure was not in conformity with fundamental

rights protected by the Union. The Court observed that the obligation to state reasons

is fully applicable with regard to the freezing of funds, and the people concerned shall

enjoy a right to be heard. The case was brought again before the Court, which

concluded that the community authorities had failed to comply with this obligation, as

they did not provide enough evidence in order to support their decision16.

3. The decision of the Court of First Instance in the cases of Yusuf and Kadi17.

Litigation arising from the implementation of the sanctions found soon its way

before the European jurisdictional organs. Between the persons and entities concerned

by the freezing of assets was Kadi, a national of Saudi Arabia, and the Al Barakaat

International Foundation, established in Sweden. The applicants were placed initially

on the Sanctions Committee’s renewed lists on 2001, and were subsequently added to

Annex 1 of Regulation 467/2001. The contested regulation (881/2002) was adopted

11 See on this European sanctions regime in general, J. Almoqvist, “A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions”, ICLQ, 2008, p. 303-331. 12 See the agreement on a de-listing procedure, Council of the European Union, «  Terrorist List-Adoption of New Consolidated List”, Brussels, 29/6/2007. 13 Article 1 (2) of Council common position 2001/931, 27/12/2001, article 1(3). 14 See fiche d’information (Conseil), ‘Liste de l’UE, des personnes, groupes et entités faisant l’objet de mesures spécifiques en vue de lutter contre le terrorisme’, 15/7/2008. 15 Case T-228/02 (2006), (OMPI I). See also, Case T-256/07, People’s Modjahedin Organization of Iran v. Council, 2008, (OMPI II), Case T-284/08, 4/12/2008, (OMPI III). 16 The Court repeated its statements in the second OMPI III(4/12/2008), case T-284/08, case, in which it condemned the Council for not having communicated new evidence for the inclusion on the list to the concerned organisation. 17 Judgments of 21/9/005 in Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Case T-35/01 Kadi v. Council and Commission.

4

on May 2002 following a further UNSC Resolution and CFSP (Common Foreign and

Security Policy) common position. Kadi brought an action before the Court of First

Instance (CFI) seeking annulment of the Regulation in so far as he was concerned.

His arguments were based principally on four grounds: one on lack of European

community (EC) competence and three on violations of his fundamental rights (right

to a fair hearing, the right to respect for property and the principle of proportionality,

and a right to effective judicial review).

In its judgment the CFI rejected all four grounds. In terms of competence and

institutional law the CFI found that although articles 60 and 301 EC only expressly

mention sanctions which can be imposed on third countries, and not to individuals,

recourse to the “residual powers” of article 308 EC could be justified18 for providing a

legal basis for adoption of the regulation. However, the CFI rejected the

Commission’s argument concerning the fight against terrorism, which, according to

its interpretation, fell within the residual competence of article 308, and opted for a

combined application of articles 60, 301 and 308, that did not constitute a widening of

the community powers and was in conformity with the general framework of the

treaty provisions19.

As far the most interesting question relating to the fundamental rights is concerned,

the CFI declared itself incompetent to review the UNSC resolutions and consequently

to control their conformity with the fundamental rights at stake. Taking into

consideration that a member State cannot, as a matter of customary international law,

“invoke the provisions of its internal law as justification for its failure to perform a

treaty”20 the UNSC resolutions adopted in virtue of Chapter VII concerning the

promotion of the international peace and security, cannot constitute the object of

control of the Court, which cannot therefore “call into question, even directly, their

lawfulness in the light of Community law”21. More specifically, the role of primacy of

international obligations stemming from SC resolutions, in light also of articles 25

and 10322 of the Charter, means that States “take all necessary measures to ensure

18 Pursuant to this article: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures”. 19 Par. 132-3. 20 Par. 182. 21 Par. 225. 22 Article 103 UN reads: « In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail ».

5

that these resolutions are put into effect” 23, so that the obligations in question:

“clearly prevail over every other obligation of domestic law or of international treaty,

including, for those of them that are members of the Council of Europe, their

obligations under the ECHR and, for those that are also members of the Community,

their obligations under the EC Treaty”24.

However, the CFI conceded that the SC is bound to observe peremptory norms of

general international law, namely, the norms of jus cogens. Instituting thus a limit to

the action of the SC and declaring itself empowered to proceed to an indirect judicial

review in that case, the CFI concluded in those terms: “in connection with an action

for annulment of a Community act adopted, where no discretion whatsoever may be

exercised, with a view to putting into effect a resolution of the SC may therefore,

highly exceptionally, extend to determining 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”25. In reality, the CFI did never address the content and definition of the

controversial concept of jus cogens26 in international law, which, with such a facility,

adopted as a criterion to review SC action and implicitly as a legitimating basis for

exercising its own jurisdictional competence. It is doubtful however, in this context,

whether the right to access to justice for example, can be measured in absolute terms

(whether it is itself a jus cogens norm). More generally, the decision poses serious

difficulties in terms of interpretation of European treaties and the understanding of the

European constitutional order. The fallacious reasoning of the CFI in this decision

23 Yusuf and Kadi judgment, CFI, Par. 189.24 Par. 181. 25 Par. 231. 26 According to the CFI jus cogens norms are to be considered as “a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which non derogation is possible”, par. 277.

6

provoked criticism from a great part of the doctrine27, which regarded it as

inconsistent with European and international law.

4. The decision of the European Court of Justice.

Both applicants lodged their appeals with the European Court of Justice (ECJ) on

exactly the same grounds. Advocate General Maduro handed an opinion28 to which

the Court principally subscribed. In its opinion Advocate general proposed that the

Court should set aside the CFI’s decision and annul the Regulations in so far as they

concern the applicants. Regarding the issue of competence, it found that the

interpretation promoted by the CFI of articles 60 and 301 was too narrow, as article’s

301 reference to ‘third countries’ includes the economic relations with individuals and

entities within these countries, and so there was no need to bring in article 308 EC.

The power of the Community’s courts to review whether the regulation in

question complies with the respect of the individual’s fundamental rights as protected

within the EU legal order was given particular emphasis by the Advocate General. He

rejected in strong terms the position of the CFI on the matter, and opined that “it

would be wrong to conclude that, once the Community is bound by a rule of

international law, the Community Courts must bow to that rule with complete

acquiescence and apply it unconditionally in the Community legal order”29.

Accordingly, the institutions of the Community “cannot dispense with proper judicial

review proceedings when implementing the Security Council resolutions in question

within the Community legal order” and cannot disengage themselves from the usual

interpretation of fundamental rights as fundamental norms of the constitutive treaties.

The rights concerned, formed, according to the Advocate, an integral part of the

27 See among others J. Almqvist, « A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions », ICLQ, 2008, p. 303-331, A. Bianchi, “Assessing the Effectiveness of the UN Security’s Council’s Antiterrorism Measures: The Quest for Legitimacy and Cohesion”, EJIL, 2007, p. 909-910, C. Eckes, “Judicial Review of European Anti-Terrorism Measures-The Yusuf and Kadi Judgments of the Court of First Instance”, ELJ, 2008, p. 74-92, P. Eckeckhout, “Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions. In Search of the Right Fit”, ECLR, 2007, p. 183-206, N. Lavranos, “Judicial Review of UN Sanctions by the Court of First Instance”, European Foreign Affairs Review, 2006, p. 471-490, D. Simon, F. Mariatte, “Le Tribunal de première instance des Communautés: Professeur de droit international?”, Europe, 2005, p. 6-10, S. Zasova, ”La lutte contre le terrorisme à l’épreuve de la jurisprudence du Tribunal de première instance des Communautés européennes”, RTDH, 2008, p. 481-505, R. Brown, « Kadi v. Council of the European Union and Commission of the European Communities : Executive Power and Judicial Supervision at European Level », EHRLR, 2006, p. 456-469. 28 Opinion of Poiares Maduro Advocate General, delivered on 16/1/2008. Similar wording was found in the opinion delivered on the Al Barakaat International Foundation case on 23/1/2008. 29 Ibid, par. 24.

7

general principles of Community law, as interpreted and applied by the ECJ in its

case-law30. Exercising thus its full spectre of review the Court should conclude, in the

view of Poiares Maduro, that in so far as at the UN level no “genuine and effective

mechanism” of review of the imposed sanctions existed in the profit of the individuals

concerned, it must fall within the powers of judicial review within the community

legal order to guarantee to these individuals or entities that their right to be heard is

being respected.

In its judgment on 3 september 2008 the ECJ31 followed mainly the propositions

of the Advocate General in connection both to the reasoning relating to the normative

basis of the competence for the adoption of the measures32, and to the reasoning

concerning the judicial review of community measures implementing UNSC

resolutions, which it was competent to exercise. The decision of the ECJ departs in

that sense drastically from the one of the CFI. Kadi, in his appeal had argued that the

CFI erred in law by accepting that the nature of UNSC resolutions provided them with

a total immunity of jurisdictional control before the European courts, except in

relation to jus cogens. He particularly stressed the fact that the obligation to assure a

judicial review at the community level is also regarded as a presupposition for the

conformity of the European legal order to the human rights standards as incorporated

in the European Convention on Human Rights (ECHR), and as has been shown by the

European Court of Human Rights (ECtHR) in its ruling in the Bosphorus case33,

which also concerned the implementation of a UNSC resolution by means of a

European regulation. In this same case, when examined by the ECJ34, there was no

doubt as to the competence of the European court to exercise its control of the

regulation in terms of fundamental rights35.

30 See Case C-32/95 P Lisresal, 1996, ECR I-5373, Case C-50/00 P Union de Pequenos Agricultures v. Council, 2002, ECR I-6677. 31 Judgment of the Court (Grand Chamber) of 3 september 2008, Yassin Abdullah Kadi, Al Barakkat International Foundation v. Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P, and C-415/05 P. 32 The Court observed however that article 308 could be used jointly with articles 60and 301 « if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining on the objectives laid down by the Treaty », par. 211. 33ECHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, 2005, application n°45036/98. 34 Case C-84/95 Bosphorus v. Minister for Transport, Energy and Communications, Ireland and the Attorney General, 1996, ECR I-3953. 35 Advocate General Jacobs had in his opinion in the case indicated that « respect for fundamental rights is thus a condition of the lawfulness of Community acts-in this case the Regulation ».

8

Further in its reasoning the Court affirmed the central position occupied by

fundamental principles enshrined in fundamental rights norms within the European

constitutional order. It confirmed that fundamental rights, in particular those found in

the ECHR are an integral part of the general principles of law, with which community

acts must conform. As a consequence, their lawfulness depends on their respect for

human rights that cannot be hampered by the obligation of the Community to respect

international law36. In that respect, the Court was cautious to point out, that the

judicial review exercised in the present case, is a review of the community act, and

not of the international act in question, namely the resolution of the UNSC37. It made

clear, in that way, that the primacy of the resolution under international law was in no

way challenged. It is worth noting, that the ECJ, relating to the European legal order

and the place of international law within it, referred extensively to provisions of the

EC Treaty as well as to the nature of the legal system stemming from the

constitutional treaties of the EU, and the place of the protection of the founding

principles of the Union, including human rights, from which derogation could never

be possible. It thus stressed that human rights constitute “a constitutional guarantee

stemming from the EC Treaty as an autonomous legal system which is not to be

prejudiced by an international agreement”38.

Concerning more specifically the procedures instituted by the Sanctions

Committee in relation to the review of the listing, the Court noted that the existence of

the procedure whereby States may petition the Sanctions Committee on behalf of an

individual for a delisting demand could not provide the specific acts with a

generalised immunity from jurisdiction within the EC legal order39. The ECJ thus

fully rejected the argumentation concerning the deference to be shown by community

organs to the UN’s legal order, since the guarantees for judicial protection were not in

place at the UN level. As a consequence, the Court didn’t have to deal with the

erroneous reasoning of the CFI as regards the jus cogens exception, since it accepted

that the full scope of its judicial review should be exercised in relation to the

community acts in question.

The ECJ did further consider carefully the nature of fundamental right at stake. It

found that both the right to be heard and the right to property of the applicant Kadi

36 Note 31, par. 283-284-285. 37 Par. 286.38 Par. 316. 39 Par. 318-321.

9

were not respected by the measures adopted. Kadi had no means of having his

position heard or exercise his rights of defence before an independent and impartial

organ, which could assure full judicial review and award compensation in case of an

arbitrary or illegal listing. In addition, the grounds on which the sanctions were based

had never been communicated to the applicant. Consequently, the Court argued that

while efforts to combat terrorism and to maintain peace and security might lead to

restrictions of fundamental rights, they could not in any case justify the complete

absence of due process with regard to the listing40. As far as the right to property was

concerned, whilst a relationship of proportionality between the aim and the means of

the restrictive measure ‘might in principle be justified’41, the current application of the

regulation to Kadi infringed, according to the Court, his fundamental right to respect

for property, as he was not given an opportunity to put his case to the authorities42.

The Court upheld consequently the appeals, but granted the Council with a three

months period, during which the effects of the regulation were maintained, in order to

remedy the infringements on the human rights found.

5. Assessment of the ruling of the ECJ in regards the European constitutionalism.

The significance of the judgment of the ECJ in Kadi is not based on its original or

groundbreaking reasoning and understanding of the European legal order and its

articulation with international law, namely the law of the UN Charter. Rather, it is it’s

classical understanding of the principles of the municipal legal order that forms the

European Union and the affirmation of the internal hierarchy of norms within that

order in the face of international norms incorporating international values that makes

the judgment rather significant, in the sensitive juncture represented by the “fight

against terrorism” for the rule of law in general.

It has been said in relation to the ruling that “the approach of the ECJ is ultimately

premised upon three key understandings, namely the autonomy of the EU legal

system, the constitutionality of the EU legal system and the centrality of fundamental

rights to the operation of the legal system”43. In that sense, the ECJ does nothing

40 Par. 343-344. 41 Par. 366. 42 Par. 372-373. 43 C. Barker, European Court of Justice, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission (Joined Cases C-402/05 P and C-45/05 P) Judgment of 3 september 2008, commentary, ICLQ, 2009, p. 229-240, p. 234.

10

more than reaffirming the basic principles of European law, as posed by the

jurisprudence of the ECJ in some of its most significant rulings. The stance of the

Court, has also the merit of departing from the erroneous point of view expressed in

the ruling of the CFI. The latest’s ruling had as a consequence not only to put in

jeopardy the integrity and the autonomy of the European constitutional order, by

externalising in a way some of its basic components44, through the reference to jus

cogens and the limitation of the jurisdictional control on that basis, and by thus

reversing the primacy of the EC Treaties in favour of international law norms. It also

seemed to introduce an artificial and unacceptable dichotomy at the European level in

terms of human rights protection, thus leaving practically unprotected the rights of

persons and entities listed in a UNSC resolution transposed by means of a community

act, in opposition to the rights of those listed in a European union terrorist list, in

favour of which a certain degree of protection was recognised, as showed the ruling in

the PMOI case.

The three key understandings mentioned above that arguably constitute the basis

of the judgment are to be considered in terms of European constitutionalism. If

constitutionalism is about, as has been said, the normative and structural premises of

political orders and basically the ideology providing the context within which

constitutions emerge and constitutionalisation functions45 the ruling of the ECJ

contributes to clarify the content and configuration of the basic tenets of European

constitutionalism, as reflected in European jurisprudence. In that respect, the principle

of autonomy, as analysed in the ruling does not only imply an autonomous legal order

vis-à-vis the internal constitutional orders of the member states, but also an

autonomous and self-referential order as far as international law is concerned. This

particular understanding has a central importance for the European court’s reasoning,

as it constitutes the basic premise upon which the primacy of this order in relation to

other international agreements is being construed46. 44 See on this point the analysis of S. Adam, “Les résolutions du Conseil de Sécurité à l’épreuve des juridictions communautaires”, F. Snyder, I. Maher (dir), The Evolution of the European Courts : Institutional Change and Continuity, 6th international workshop for young scholars, Bruylant, Bruxelles, 2009, p. 89-123, sp. 114-117. 45 See N. Tsagourias, “Introduction-Constitutionalism: a Theoretical Roadmap”, in N. Tsagourias (ed), Transnational Constitutionalism, International and European Perspectives, Cambridge University Press, 2007, p. I. 46 See judgment Kadi, loc.cit, §282 : “It is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by virtue of the exclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has, moreover, already held to form part of the very foundations of the Community”.

11

The existence of an autonomous legal order presupposes, as the Court indicates, a

basic institutional formation and attribution of powers and competences, a normative

and organisational charter, the observance of which is assured by the jurisdictional

organ, namely the Court itself. Within this order, the European court assumes the duty

to perform the judicial review, a constitutional act, similar to the one exercised by

constitutional judges in a national court, in order to secure the respect of the system

and its ideals. In that respect, the constitutional structure of the European Union

presupposes a hierarchical configuration of its normative content that constitutes also

the normative basis of the jurisdiction of the Court.

The specificity of the constitutional legal order of the European Union, must also

be differentiated from other organised clusters, which may have also constitutional

aspirations, such as the Council of Europe and the normative ensemble embodied by

the European Convention on Human Rights (ECHR). As the Advocate general

observed in his opinion in the Kadi case, the ECJ and the ECtHR are two jurisdictions

acting for the same purpose, namely the protection of human rights, but they operate

within very different legal and institutional contexts which further define in a

determinative extent their different functions, roles and raisons d’être. In resuming,

the Advocate general affirmed that: “The EC Treaty, by contrast, has founded an

autonomous legal order, within which States as well as individuals have immediate

rights and obligations. The duty of the Court of Justice is to act as the constitutional

court of the municipal legal order that is the Community”47.

The autonomous and constitutional nature of the European legal order influences

also on the way of argumentation of the ECJ. The Court treats principally the question

with which the CFI was confronted as a question of European constitutional law and

47 The whole part of the opinion can read as follows: “It is certainly correct to say that, in ensuring the observance of fundamental rights within the Community, the Court of Justice draws inspiration from the case-law of the European Court of Human Rights. None the less, there remain important differences between the two courts. The task of the European Court of Human Rights is to ensure the observance of the commitments entered into by the Contracting States under the Convention. Although the purpose of the Convention is the maintenance and further realisation of human rights and fundamental freedoms of the individual, it is designed to operate primarily as an interstate agreement which creates obligations between the Contracting Parties at the international level. This is illustrated by the Convention’s intergovernmental enforcement mechanism. The EC Treaty, by contrast, has founded an autonomous legal order, within which States as well as individuals have immediate rights and obligations. The duty of the Court of Justice is to act as the constitutional court of the municipal legal order that is the Community. The European Court of Human Rights and the Court of Justice are therefore unique as regards their jurisdiction ratione personae and as regards the relationship of their legal system with public international law. Thus, the Council, the Commission and the United Kingdom attempt to draw a parallel precisely where the analogy between the two Courts ends”.

12

not as a question of international law48. It was said, that besides this reasoning lies the

understanding that the relationship between legal orders is essentially “designed by

the constitutional rules and principles of each legal order”49. In that sense, it is

obvious that European law is the law governing the status and the incorporation of

international law within the European legal order, as well as the relation of

international law and the European law, as it occurs similarly in the municipal legal

order of States.

It is interesting further to note, that according to the saying of the Court, the

community is obliged to respect international law50, in other words the community,

and more generally the Union, is open to international law, whose rules and principles

basically incorporates. Consequently, the divide between the international and the

European legal order, which has to be regarded as autonomous, is superseded in terms

of European law, which is also construed by the incorporated norms embedded in

international law. Thus the ECJ rejects an unconditional monism as the one proposed

by the CFI, which demonstrated its willingness to exercise its jurisdictional

competence as regards UNSC resolutions in the light of jus cogens. In that way, it

repudiated its role of European constitutional court51, something that the ECJ refused

in clear terms to repeat, following its own dualistic approach. As the ECJ reaffirmed

its authority as the supreme jurisdictional organ of the European constitutional order,

it accepted as a consequence to guarantee the integrity of this normative order

instituting its jurisdictional competence52. The hierarchy thus to be followed was that

of the European legal order and not that of the UN order, whose norms cannot claim

the same status within the first one, after their incorporation.

In any case, it has been argued that even though the European institutions might

be obliged to abide by the resolutions of the UNSC, this fact does not prevent the

European courts from exercising their jurisdictional control upon acts incorporating

them. The article 103 of the Charter cannot be regarded as establishing a hierarchy

within international law in which the Charter would be the constitutional norm and

48 Par. 285 : “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty”. 49 J. d’Aspremont, F. Dopagne, « Kadi : the ECJ’s Reminder of the Elementary Divide Between Legal Orders », International Organization Law Review, 2008. 50 Par. 291-292. 51 J. d’Aspremont, F. Dopagne, op.cit, p. 5. 52 Kelsen

13

the Security Council would have unfettered powers in securing international peace

and security. The decision of the CFI attempting to recognise such a norm could not

be said to contribute to the respect of international law, as any power, including that

of the UNSC cannot be unlimited. Article 103 must thus be regarded as an

international provision governing conflicts between treaty obligations, but in no way

should it prejudge its status within the legal order of the member states or other

international organisations. As a consequence, the binding nature of the Charter does

not mean that judicial review of a Regulation is excluded on the basis of the Union’s

primary law53.

It thus can be said that the ECJ regarded the underlying the Kadi case conflict, as

what in reality was, a conflict of rules or even values within European law, namely as

a conflict between the imperative to respect the fundamental human rights and the

imperative to respect UNSC resolutions. This consideration is important as far another

significant aspect of the judgment is concerned, namely the protection of human

rights as the supreme values underpinning the European constitutional order. The ECJ

in its judgment reasserted its competence to safeguard the hierarchy of the European

legal order, specifically the fundamental rights, that the regulation at stake seemed to

contravene. In this regard, it has been observed that “Kadi and Al Barakaat is the

most important judgment ever delivered by the ECJ on the relationship between EC

and international law and one of its most important judgments on fundamental

rights”54.

At the time of the judgment, protection of human rights was a treaty imperative, as

provided by article 6 (2) EU, which confirmed that fundamental rights are protected

as general principles of Community law. Today, this imperative is further established

by articles 1a, and 6 of the Treaty of Lisbon, which provide also for the binding legal

effect of the European Charter and the accession of the Union to the ECHR. These

articles in no way qualify the imperative of the protection and appear thus

unconditional55. The recognition by the Court that fundamental human rights form an

integral part of the general principles of law, which should be assured in a

53 See P. Eeckhout, « Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions. In Search of the Right Fit”, op.cit, p. 191-192. 54 T. Tridimas, J. A. Gutierrez Fons, « EU Law, International Law and Economic Sanctions Against Terrorism: the Judiciary in Distress?”, Social Research Network, 2008, M. Payadesh and H. Sauer, “European Union: UN Sanctions and EU Fundamental Rights”, IJCL, 2009, p. 306-315. 55 Kadi Judgment, loc.cit, par. 303: « These provisions cannot however be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in article 6 (1) EU as a foundation of the Union ».

14

Community based on the rule of law, gives also a concrete idea, about the value

system underpinning the European order and its hierarchical configuration. Within

that order, as in any order based on the rule of law, judicial review of the European

organs cannot be avoided. The judgment in Kadi thus represents a strong commitment

to fundamental rights and the (European) rule of law. Advocate General Maduro had

found an appropriate wording: “Measures which are incompatible with the

observance of human rights . . . are not acceptable in the Community.” 

It has also been shown that already the ECJ’s case law56 does not permit to

conclude that there is a principle in European law, according to which the force of

international law, such as the one emanating from a UNSC resolution, stands in the

way of review of a Regulation in terms of respect of fundamental rights57. This

consideration points further to the central position which occupies the protection of

fundamental human rights in judicial dialogue as regards the supremacy of

Community law, as it has already been remarked. The attitude of the European judge

before such an understanding can be legitimately compared to the attitude of the

national constitutional judge. In consequence, it can be argued that we assist in the

transposition of the “Solange” principle posed by the German federal constitutional

court58 in the realm of European law and its relation to the international law of the

Charter. According to this principle, he willingness of the Constitutional Courts to

conform to Community acts and European law and to abstain from exercising judicial

review depended on the respect the European organs pay to human rights. This

protection needs further to be equivalent to the one provided from the national

constitutional order. This conditionality constituted the principal impetus for the

gradual recognition by the Court and then by the European Treaties of the imperative

of human rights protection within the European legal order.

Turning to particular aspects of the Kadi judgment in terms of human rights

protection, it is worth noting that the European Commission had invited the Court to

forgo the exercise of the lawfulness of the contested regulation, not only on the basis

of the general immunity, that according to its point of view, should be attributed to the

acts of the institutions of the United Nations, but because within UN sanctions

56 See the cases, C- 327/91, France v. Commission, 1994, ECR I-3641, C-122/95, Germany v. Council, 1998, ECR I-973, Bosphorus, loc.cit. 57 See P. Eckhout, op.cit, p. 17-18. 58 Solange I, 73 BVerfGE 339.

15

mechanisms fundamental rights were adequately protected59. Naturally the Court

rejected the arguments of the Commission. Firstly, because regulations transposing

resolutions of the UNSC enjoyed no immunity in terms either of European or

international law60. Secondly, because under the specific circumstances of the case,

the procedure before the Sanctions Committee remains in essence diplomatic and

intergovernmental, and thus falls short of providing the guarantee of judicial

protection61. It can thus be said, that the ECJ adopted a variant of the Solange

argument in view of asserting the existence of a list of “core” or fundamental rights

which must be under all circumstances be protected substantively and procedurally62.

The ECtHR had also previously resorted to the Solange principle in its Bosphorus

judgment, accepting in principle the existence of an equivalent protection offered by

the system of fundamental rights protection in the EU. It thus abstained from

exercising its control as far as the standard of protection within the European legal

order was to be preserved63.

Placing the decision of the ECJ in the larger context concerning judicial dialogue,

it is to be observed that the stance of the Court contrasts with the deferential position

towards the UN Charter and the imperative of security adopted by other jurisdictions.

In the Behrami and Saramati case64 for example, concerning human rights violations

in Kosovo, the ECtHR after declaring itself non competent rationae personae, it held

59 Par. 317-318:” According to the Commission, so long as under that system of sanctions the individuals or entities concerned have an acceptable opportunity to be heard through a mechanism of administrative review forming part of the UN legal system, the Court must not intervene in any way whatsoever”. 60 Par. 298-299, the Court found that any judicial review should not be excluded because in any case the Charter of the UN left to UN Members a free choice between the various possible models of application of resolutions of the UNSC. “It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the UN that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the UN”. 61 Par. 322-333 : “Indeed, such immunity constituting a significant derogation from the scheme of judicial protection of fundamental rights laid down by the EC Treaty, appears unjustified, for clearly that re-examination procedure does not offer the guarantees of judicial protection. In that regard, although there is now open to any person or entity to approach the Sanctions Committee directly, submitting a request to be removed from the summary list at what is called the focal point the fact remains that 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 and that committee taking its decisions by consensus, each of its members having a right of veto”. 62 See A. Tzanakopoulos, « Judicial Dialogue un Multi-Level Governance: The Impact of the Solange Argument », in http://ssrn.com/abstract=407079. 63 ECtHR, Bosphorus v. Ireland, loc.cit : « State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protection fundamental rights, as regards both substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides ». 64 Joined Cases Behrami and Behrami v. France and Saramati v. France, Germany and Norway, 2007.

16

that since operations established by UNSC Resolutions are fundamental to the

mission of the UN and rely for their effectiveness on support from member states, the

Convention cannot be interpreted in a manner which would subject the acts of the

Contracting Parties, covered by such resolutions and occurring prior to or in the

course of such missions, to the scrutiny of the Court. To do so would be to interfere

with the fulfilment of the UN’s key mission in this field, the protection of

international peace and security. This decision was invoked in the Kadi case, but the

Court rejected any relevance, not only on factual grounds, but principally on grounds

relating to the nature of the EC Treaty, which does not operate as an interstate

agreement, but has founded an autonomous legal order, within which fundamental

rights are to be considered as a “constitutional guarantee”65. However, the attraction

of the ECtHR reasoning did not go unnoticed by the House of Lords, which in its

judgment in Al Jedda case66 concerning human rights violations by English troops in

Iraq, accepted that the ECHR has a special character as a human rights instrument, but

finally adopted an internationalist perspective holding that article 103 gave

precedence to the Charter over any other agreement and left no room for any other

exception category, save for jus cogens. The case is currently pending in front of the

ECtHR.

In regards to the question of the specific rights examined, the Court found that the

right to be heard and the right to judicial protection were “patently not respected”.

The Court further held that the right to judicial protection required that the

Community authorities must communicate to the persons concerned the grounds on

which their names had been included in the sanctions list. Security considerations did

not go unnoticed by the Court. The advocate general had previously in its opinion

highlighted that the Community judiciary cannot “turn its back on the fundamental

values” which is bound to protect, pointing to the danger that, “the political process is

liable to become overly responsive to immediate popular concerns, leading the

authorities to allay the anxieties of the many at the expense of the rights of a few”. In

its judgment the ECJ, recognising the imperative of human rights protection in light of

antiterrorist considerations, opted for a balancing exercise which implied for the

judiciary to apply “techniques which accommodate, on the one hand, legitimate

security concerns about the nature and sources of information taken into account in

65 Kadi, loc.cit, par. 316-317. 66 R (on the application of Al Jedda) v. Secretary of State for Defence, 2007, UKHL 58.

17

the adoption of the act concerned and, on the other, the need to accord the individual

a sufficient measure of procedural justice”. As far as the right to property was

concerned the Court found that as applied to Mr Kadi, the contested regulation

breached his right to property because it violated due process standards which are an

integral part of that right.

Assessing the judgment in the light of European constitutionalism does not

however exhaust the discussion. Some thoughts can be made in connexion to the

impact of the ruling on the international legal order.

6. European constitutionalism in the light of the international legal order.

It has been observed that the inextricable divide of the international and the

municipal legal orders recognised by the ECJ in its decision in Kadi, gives a definite

blow to the doctrinal hypothesis of the gradual formation of an international

constitutional order67, implying the existence of a unified international value system68

governed by the Charter of the UN. The later was arguably the position of the CFI.

However, even if one accepts the divide, it would be wrong to conclude that the

normative hierarchy of a municipal legal order is totally indifferent to the

international one. Even if it’s true that, as the ECJ shows, a judgment given by the

Community judicature, “would not entail any challenge to the primacy of that

resolution in international law”, it is also true that declaring a regulation, transposing

a UNSC resolution, null and void because it is not respecting fundamental human

rights norms, implies that problems can arise for the latter’s implementation, and

which are principally connected to the unrestricted exercise of power by the UNSC,

and thus to its legitimacy as the supreme executive organ of the UN.

In consequence, as it has been pointed out the application of Security Council

resolutions within the EU legal order can be seen to imply another problem and

challenge for European constitutionalism, namely the apprehension by the European

jurisdictions of the relationship and the articulation between the sites of governance69

67 J d’Aspremont, op.cit. 68 See E. de Wet, “The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order”, Leiden Journal of International Law, 2006, p. 611-632. 69 F. Snyder, «Three Challenges for European Constitutionalism in the 21st Century », in T. Tridimas, P. Nebbia (eds), European Union Law for the Twenty-First Century. Rethinking the New Legal Order, vol. 1, Oxford, Hart Publishing, 2004, p. 13-15. According to the writer the sites of governance refers to “ a totality of a multiplicity of sites of governance, that can be situated in a pyramid in terms of

18

within the international legal order: how is it possible to coordinate and articulate the

different sources of global and regional governance, that have their own institutional,

normative and procedural mechanisms and logic? As public decision making shifts

away from the State70 and judicial review in terms of fundamental rights is no more

reserved to national jurisdictions, decentralised reactions to the universal order

represented by the UN are likely to be intensified. In times of fight of international

terrorism individuals seem to be more vulnerable to manifestations of the

international policy making. However, as the ECJ in its Kadi judgment has stressed

that security objectives cannot in any case override human rights considerations. Even

though a degree of deference to the UNSC should be regarded as necessary, this

deference cannot stand in the way of the principle of effective judicial review itself.

The ruling constitutes a strong message both to the universal executive, embodied by

the Security Council, and to the European one, that the exercise of their powers

cannot go unrestrained.

In terms of international law, it is thus the scope and limits of the power of the

Security Council that has to be adressed. Recent litigation concerning the

implementation of targeted sanctions contributes to the understanding that the SC is

bound to respect the Charter of the United Nations and the values that it proclaims,

and which incontestably include fundamental human rights. The opposite position

would mean reducing the UNSC’s legitimacy and as a consequence its authority as

the guardian of international peace and security. The efforts engaged by the Sanctions

Committee in order to amend procedures of listing and to institute guarantees for the

listed individuals and entities show that the SC cannot stay inactive in front of the

wave of judgments of regional and national jurisdictions71, contesting the legality of

the resolutions adopted and as a consequence impeding compliance to them.

In conclusion, it can be argued that even though in the current state of international

law, the constitutional configuration of the international legal order is only a

theoretical aspiration, judgments, such as the one in Kadi, indicate that human rights,

as the core values of a municipal constitutional order, are being entrenched by

domestic and regional courts not only as regards SC action, but in general as regards

the international legal order.

political power, but in normative terms they are not necessarily arranged in a hierarchy”. 70 E de Wet, « The International Constitutional Order », ICLQ, 2006, p. 52-53. 71 See A. Tzanakopoulos, « Domestic Courts Reactions to UN Security Council Sanctions », in the ssrn base.

19

Conclusion

As a general conclusion it can be said that the judgment of the ECJ was a judgment

of a “constitutionally confident” court that asserted its authority and affirmed its

competence to apply and safeguard the integrity of its “constitutional hegemony”72.

The judgment is thus important in terms of European constitutional law and the

articulation of its relationship with the international legal order. Most significantly,

the judgment is a reminder that the executive is not unrestricted in the exercise of its

powers and cannot invoke security oriented considerations in the fight against

terrorism in order to do completely away with fundamental principles of the rule of

law, such as the right to judicial protection. It remains to be seen whether a similar

argumentation and position would be adopted also by domestic jurisdictions and by

the ECtHR, which will shortly be pronouncing on the question of targeted sanctions

(Nada). The precedent to be followed has already been set.

72T. Tridimas, J. A. Gutierrez Fons, op.cit.

20