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: The mechanics of normative exportation: linking EU values to international law

EU restrictive measures implementing UNSC counter-terrorism resolutions: exporting human rights to the international collective security system through the EU member States

i. Member states obligations under EU and UN law: a combined reading

Article 25 of the UN Charter states that: “The Members of the United Nations agree to accept and apply the decisions of the Security Council in accordance with the present Charter”. This binding character is therefore attached to the resolutions adopted by the UNSC under Article 41 of the UN Charter, which are “decisions” of the Council under the letter of Article 41. This is confirmed a contrario by the reasoning of the International Court of Justice in its advisory opinion on Namibia, where it considers that the scope of Article 25 goes beyond Chapter VII of the Charter.[1] Article 48(2) of the Charter states that the Members of the United Narions shall carry out the measures decided by the UNSC “directly and through their action in the appropriate international bodies of which they are members”. The reading of this article shows that the responsibility for implementing UNSC decisions adopted under Chapter VII rests with the Member States of the Organization, which, if necessary, use the organizations to which they belong. In this perspective, since all Member States of the European Union are Members of the UN, they are responsible for the obligation to implement Security UNSC decisions on the basis of Article 41 of the UN Charter, and are free to choose to carry out such implementation through the adoption of a decision to impose restrictive measures within the framework of the CFSP. In the perspective of Article 48(2) of the UN Charter, the European Union is a simple tool at the disposal of its Member States.

The well-known Kadi case is a topical example of the mechanism by which the EU has exported its values as part of its practice of restrictive measures implementing international sanctions against Osama Bin Laden and Al Qaeda. Following the rejection by the General Court of his request for annulment of the regulation implementing the UN sanctions against Al Qaeda,[2] Mr Kadi appealed against this decision to the Court of Justice. As we know, the Court concluded that the Community legal system should be autonomous from that of the United Nations and enshrined the principle of full judicial review of the regulations implementing a CFSP decision to impose restrictive measures.

Following this logic, the Council’s CFSP decision to implement measures decided by the UNSC in the form of Union restrictive measures plays a fundamental role. It is this decision based on Article 29 of the TEU which allows Member States to incorporate their obligations under the UN Charter into the Union’s order. Consequently, the implementation of the UNSC measures is ensured by the execution of an obligation under Union law, based on Article 215 TFEU. The implementation of the measures decided by the UNSC is therefore a matter of incorporating the obligations of Members into Union law.

Still in the Kadi case, the Advocate General drew some conclusions from the applicability of Article 351 TFEU to the EU-UN relationship. Article 351 TFEU reads as follows:

The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.

To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.

In his view, it would appear from the principles of good faith and noncontradiction in international law that EU Member States have an obligation under Article 351(2) TFEU to exercise their rights within the UN in such a way as to minimize the occurrence of proven incompatibilities with EU law, and more particularly from the point of view of respect for the rights of defense of individuals targeted by collective measures against terrorism.45

The implementation of the obligation of Members of the Union and the United Nations under Article 351(2) of the TFEU is made possible by the inherent asymmetry in the legal relations in question, which is based on the absence of a formal link between the European Union and the United Nations. Indeed, the UN Charter leaves considerable scope for Member States to implement UNSC resolutions, allowing for the addition of stricter legal conditions resulting from Union law. Consequently, the Member States of the two organizations in question play a crucial role in the material coordination of the two orders since they constitute their sole meeting point. However, the Member States are not the only institutions to be responsible for the respect of the obligations arising from the two legal systems. The Kadi judgment, to take just this example, is not directed against the Member States of the Union, but against the EU institutions which have designed and adopted the regulation implementing the relevant UNSC resolution. It is therefore they who must modify their normative processes in order to bring them into line with Union law. Member States, for their part, are urged to seek new normative practices within the United Nations in order to prevent the implementation of UNSC resolutions from becoming effectively incompatible with Union law.

ii. The coordination of the Union and the UN by their common Member States

The normative coordination of the UN and EU legal orders by their common Member States and the resulting EU influence on the UN has been analyzed elsewhere and cannot be fully explained here.[3]

It will suffice to recall that it took the form of a significant diplomatic effort on the part of Union Member States in the UNSC to set in motion a dynamic of procedural reform. EU Member States represented fourteen and a half per cent of the Members of the United Nations - more precisely, twenty-eight (before Brexit) out of one hundred and ninety-three. However, their potential influence in the World Organization was reinforced by the fact that the United Kingdom and France are permanent members of the UNSC. The EU was thus represented through its Members by two fifths of the UNSC, and therefore had a significant weight in it. In addition to this predominant position, there is the rotation of the non-permanent members of the UNSC. Since the 2000s, eleven Members of the European Union - or related parties - have been elected non-permanent members of the UNSC. Thus, have served alongside France and the United Kingdom: the Netherlands from 1999 to 2000, Ireland and Norway[4] from 2001 to 2002, Germany and Spain from 2003 to 2004, Greece from 2005 to 2006, Belgium and Italy from 2007 to 2008, Croatia from 2008 to 2009, Austria from 2009 to 2010 and finally Germany and Portugal from 2010 to 2012. This significant presence of EU Member States in the UNSC is organized by the first paragraph of Article 34 TFEU, which essentially requires Member States to coordinate within international organizations and to defend the Union’s positions if not all Member States participate, which is the case in the UNSC. It is therefore not insignificant, in this context, that the Member States of the Union have begun to meet before the sessions of the UNSC on sanctions against Osama bin Laden and his associates, and before the meetings of the relevant Sanctions Committee. This practice was apparently launched under the French Presidency of the European Union, between July and December 2008, i.e. six months after the opinion of AG Poiares Maduro, and just at the time of the Court’s first decision in the Kadi case.

This major diplomatic effort led to the introduction in 2009 of an administrative appeal mechanism, the Al Qaeda and other terrorist groups related sanctions regime’s Ombudsperson, whose mode of operation was thoroughly revised in 2011 to make it more effective. However, it is not a jurisdictional mechanism. The effort of the MS has indeed been strongly supported by judicial activism on the part of the Court of Justice of the European Union. In 2013, in the so-called Kadi 2 decision, the Court of Justice confirmed the General Court’s principled position on the need to ensure effective judicial review of Union regulations implementing UNSC decisions.[5] In particular, the Court recognized the need to allow the Union judge to review whether the grounds for inclusion on the Union’s list of targets of restrictive measures - that is, the grounds common to the United Nations Committee -are sufficiently substantiated. In other words, the Court makes the implementation of UNSC decisions by EU institutions conditional on the possibility for each person to be included on the European lists of targets of restrictive measures to verify the validity of the grounds for their inclusion by requesting the cooperation of the Al Qaeda Sanctions Committee when the implementing acts are adopted or challenged before the Union judge.

It is at the time of the challenge of the measures before the EU Court of Justice that the requirements for full control of the legality of the acts implementing the decisions of the UNSC reveal the extent of their consequences on relations between the United Nations and the European Union. Indeed, the Court considers that “the secrecy or confidentiality” of the additional information requested to carry out the control cannot be set against it. The Court therefore issues a form of judicial ultimatum by announcing that insufficiently substantiated grounds cannot serve as a basis for EU restrictive measures, which led it to annul in the present case the contested regulation maintaining Mr. Kadi on the list of targets of the measures.

The resolution of this tension created by the lack of equivalence in the protection of fundamental rights between, on the one hand, the control carried out at UN level by the Focal Point and the Ombudsperson and, on the other hand, the effective judicial control required by the Court of Justice, seems to lie in the definition of an unprecedented cooperation between the World Organization and the EU. For the time being, it has been carried out exclusively on a case-by-case basis and through the diplomatic channels of the Member States of the Union and the UNSC.

  • [1] M Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, para. 113.
  • [2] '"’Case T-315/01, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, ECLI:EU:T:2005:332. 2 ■"Joined cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council and Commission, ECLI:EU:C:2008:461. 3 In the same vein, on the “transcription” of UN Security Council resolutions into Community law by means of the adoption of the decision to impose restrictive measures within the framework of the CFSP, see E. Lagrange, La representation institutionnelle dans l'ordre international (Kluwer Law International 1992), 512-514.
  • [3] Opinion of AG Poiares Maduro, joined cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council and Commission, ECLI:EU:C:2008:30. 2 See Ch. Beaucillon, Les mesures restrictives de l’Vnion européenne, supra note 2„ 514-597.
  • [4] Norway is not a member of the European Union, but belongs to both the European Free Trade Association (EFTA) and the European Economic Area (EEA). 2 Croatia was then in the process of joining the European Union. 3 Supra note 43; Delivered on 23 January 2008. 4 Supra note 41; of 3 September 2008. 5 S/RES/1904(2009), Threats to international peace and security caused by terrorist acts, 17 December 2009. 6 S/RES/1989(2011), Threats to international peace and security caused by terrorist acts, 17 June 2011.
  • [5] ’’Joined cases C-584/10 P, C-593/10 P and C-595/10 P, European Commission and Others v. Kadi, ECLI:EU:C:2013:518, para. 133. 2 Ibidem, paras 118-119. 3 55 Ibidem, para. 125. 4 Ibidem, para. 123. 5 ^Ibidem, paras 151-164. It should be recalled, however, that Mr. Kadi had meanwhile been removed from the 1267 Committee's lists, and that the Court’s decision is therefore of no consequence in this case for the implementation of the United Nations decision, since it no longer had any effect on Mr. Kadi at the time of the judgment of the CJEU. 6 S/RES/1617(2005), Threats to international peace and security caused by terrorist acts, 20 October 2005. This mechanism was the first remediation measure adopted at the UN level to tackle the issue raised by the Kadi line of jurisprudence about the access by the targeted persons to an appeal mechanism against their listing on the UN anti-terrorism lists. However, unlike the Ombudsperson created in 2009 and specialized in anti-terrorism, the Focal point is more of a mailbox to which targets can address their request for delisting, which are then processed at a diplomatic level. This mechanism has then been extended to all UN sanctions regimes, except the Al Qaeda and other terrorist groups related sanctions regime, which benefits from the Ombudsperson mechanism. 7 Supra notes 49 and 50.
 
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