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Case T-315/01, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, 21 September 2005, [2005] ECR II-3649 (Kadi ICFI); Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al BarakaatInternational Foundation v Council and Commission, Court of Justice of the EC [2008] ECR I-6351 (Kadi IECJ); Case T-85/09, Kadi v Commission [2010] ECR II-5177 (Kadi IIGCEU); Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and United Kingdom v Kadi, Judgment of the Court (Grand Chamber) of 18 July 2013 (Kadi IICJEU)

Antonios Tzanakopoulos[1]

Relevance of the cases

The Kadi cases before the Courts of the European Union (which, due to the entry into force of the Lisbon Treaty, changed their names halfway through the Kadi saga)1 threw into sharp relief the question of legal effects of acts of international organizations and their relationship to (self-proclaimed) ‘separate’ legal orders (ordres juridiques pro- pres)2. The Kadi I CFI decision was the first to review (if indirectly) Security Council decisions imposing sanctions under Chapter VII of the UN Charter, while the Kadi I ECJ decision was the first to actually strike down a ‘domestic’ (EU) act implementing Security Council sanctions, thus forcing member states of the EU to effectively disobey the Security Council. In Kadi II, a battle took place for the reversal or limitation of the precedent set by Kadi I ECJ. Kadi II CJEU confirmed a particularly demanding standard of review and undertook substantive control of the relevant EU act, and, indirectly, the Security Council decision to impose sanctions on Kadi.

I. Facts of the cases

The cases related to the targeting by the Security Council under the 1267 antiterrorist sanctions regime described in the Nada case3 of Yassin Abdullah Kadi, a businessman alleged to have been associated with Al-Qaida. This (brief) timeline of relevant events begins with Kadi’s listing by the 1267 Sanctions Committee in 2001. The listing obligated member states of the UN to freeze Kadi’s assets, and to impose on him a travel ban and arms embargo.4 Kadi launched a series of challenges against the implementation of these measures,5 including against the implementing measures adopted by the European Union (at the time still the European Communities).6

The CFI in Kadi I refused to strike down the impugned Regulation (implementing the Security Council Resolution), undertaking a very low intensity review of the Regulation against what it considered to be peremptory rules of international law (jus cogens). Kadi appealed. In its historic decision on appeal the Grand Chamber of the ECJ found that the EU had not complied with its own primary law (i.e. EU law of constitutional ranking) regarding human rights protection, and struck down the implementing Regulation. The EU Commission then sought to remedy the shortcomings identified by the ECJ, relisting Kadi shortly before the expiry of the period during which the ECJ had suspended the effect of its Kadi I decision to annul.

Kadi, now relisted, challenged the fresh listing before the GCEU, mostly alleging that the decision to relist him suffered from the same shortcomings as the one that had been struck down by the ECJ in Kadi I. This launched the Kadi II cases. In Kadi II, the GCEU implicitly criticized Kadi I ECJ, but it ‘grudgingly’7 applied it, as it did not feel it was for the lower court to overturn a decision of the Grand Chamber of the Court of Justice. Applying Kadi I ECJ meant that the GCEU had to strike down the impugned Regulation again, thus releasing Kadi from the sanctions. The Commission and others appealed the decision, and the case ended up, for the second time, before the Court of Justice of the EU. The Grand Chamber of the CJEU confirmed the decision of the GCEU in material part, and so the Kadi saga reached closure. In the meantime, Kadi had been delisted by the Sanctions Committee upon the relevant recommendation of the Office of the Ombudsperson established by Security Council Resolution 1904 (2009) and refined by Resolution 1989 (2011).

II. The legal questions

The Kadi cases before the EU Courts raised a number of legal questions, some of which refer to the EU’s competences and the Union’s subjection to obligations stemming from the UN Charter. The most crucial legal question for present purposes is, however, that of respect of fundamental human rights of the target in the implementation of ‘strict’8 obligations imposed by the UN Security Council. Kadi argued consistently that his fundamental rights to a fair trial and to an effective remedy had been violated through his subjection to the draconian sanctions of the 1267 regime, as implemented (JDB), Memorandum Opinion of 19 March 2012 (although in that latter case the challenge was against the US measures that had been adopted against him before—and independently of—his listing by the 1267 Committee).

  • 6 Even though UN member states that are also EU members are under an independent obligation to implement measures imposed by the UN Security Council, the EU employed EU acts (in particular Regulations, which have direct effect) in order to ensure uniform application of the sanctions in all EU member states (all of which are of course also UN member states). As such, attacking the EU implementing measures would presumably allow Kadi to access his accounts and so forth in all twenty-seven (now twenty-eight) EU member states.
  • 7 For the expression see Tim Stahlberg’s comment on the decision available at http://courtofjustice. blogspot.gr/2010/10/case-t-8509-kadi-ii.html.
  • 8 See ch. 4.4, section 1 on the concept of ‘strict’ obligations.

by the EU. The EU argued that it could do nothing else but implement the measures as required by the Security Council on the basis of Chapter VII Resolutions. Essentially the difficulty was that the EU could not allow protection of the rights claimed by Kadi without risking violation of the Security Council Resolutions. What follows are the most pertinent parts of the EU Courts’ responses to these arguments.

III. Excerpts

A. Kadi I CFI

  • 176 The Court can properly rule on the pleas alleging breach of the applicant’s fundamental rights only in so far as they fall within the scope of its judicial review and as they are capable, if proved, of leading to annulment of the contested regulation.[2]!...]
  • 178 The Court considers it appropriate to consider, in the first place, the relationship between the international legal order under the United Nations and the domestic or Community legal order, and also the extent to which the exercise by the Community and its Member States of their powers is bound by resolutions of the Security Council adopted under Chapter VII of the Charter of the United Nations.
  • 179 This consideration will effectively determine the scope of the review of lawfulness, particularly having regard to fundamental rights, which the Court will carry out in the second place in respect of the Community acts giving effect to such resolutions.
  • 180 Thirdly and finally, if it should find that they fall within the scope of its judicial review and that they are capable of leading to annulment of the contested regulation, the Court will rule on the alleged breaches of the applicant’s fundamental rights. [.]
  • 181 From the standpoint of international law, the obligations of the Member States of the United Nations under the Charter of the United Nations clearly prevail over every other obligation of domestic law or of international treaty law 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.[...]
  • 183 As regards [.] the relationship between the Charter of the United Nations and international treaty law, that rule of primacy is expressly laid down in Article 103 of the Charter [.] In accordance with Article 30 of the Vienna Convention on the Law of Treaties, and contrary to the rules usually applicable to successive treaties, that rule holds good in respect of Treaties made earlier as well as later than the Charter of the United Nations. According to the International Court of Justice, all regional, bilateral, and even multilateral, arrangements that the parties may have made must be made always subject to the provisions of Article 103 of the Charter of the United Nations [...]
  • 184 That primacy extends to decisions contained in a resolution of the Security Council, in accordance with Article 25 of the Charter of the United Nations ... According to the International Court of Justice, in accordance with Article 103 of the

Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement [...]

[...]

190 It also follows from the foregoing that, pursuant both to the rules of general international law and to the specific provisions of the Treaty, Member States may, and indeed must, leave unapplied any provision of Community law, whether a provision of primary law or a general principle of that law, that raises any impediment to the proper performance of their obligations under the Charter of the United Nations.

[...]

  • 193 [.] the Community must be considered to be bound by the obligations under the Charter of the United Nations in the same way as its Member States, by virtue of the Treaty establishing it.
  • 194 In that regard, it is not in dispute that at the time when they concluded the Treaty establishing the European Economic Community the Member States were bound by their obligations under the Charter of the United Nations.
  • 195 By concluding a treaty between them they could not transfer to the Community more powers than they possessed or withdraw from their obligations to third countries under that Charter [...].

[...]

  • 199 In this context it is to be borne in mind ... that according to the case-law [...] the Community must respect international law in the exercise of its powers and, consequently, Community law must be interpreted, and its scope limited, in the light of the relevant rules of international law.
  • 200 By conferring those powers on the Community, the Member States demonstrated their will to bind it by the obligations entered into by them under the Charter of the United Nations [...].

[...]

204 Following that reasoning, it must be held, first, that the Community may not infringe the obligations imposed on its Member States by the Charter of the United Nations or impede their performance and, second, that in the exercise of its powers it is bound, by the very Treaty by which it was established, to adopt all the measures necessary to enable its Member States to fulfil those obligations.

[...]

212 The question that arises in this instance is, however, whether there exist any structural limits, imposed by general international law or by the EC Treaty itself, on the judicial review which it falls to the Court of First Instance to carry out with regard to that regulation.

[...]

  • 214 [...] as the institutions have rightly claimed, they acted under circumscribed powers, with the result that they had no autonomous discretion. In particular, they could neither directly alter the content of the resolutions at issue nor set up any mechanism capable of giving rise to such alteration.
  • 215 Any review of the internal lawfulness of the contested regulation, especially having regard to the provisions or general principles of Community law relating to the protection of fundamental rights, would therefore imply that the Court is to consider, indirectly, the lawfulness of those resolutions. In that hypothetical situation, in fact, the origin of the illegality alleged by the applicant would have to be sought, not in the adoption of the contested regulation but in the resolutions of the Security Council which imposed the sanctions [...].
  • 216 In particular, if the Court were to annul the contested regulation, as the applicant claims it should, although that regulation seems to be imposed by international law, on the ground that that act infringes his fundamental rights which are protected by the Community legal order, such annulment would indirectly mean that the resolutions of the Security Council concerned themselves infringe those fundamental rights. In other words, the applicant asks the Court to declare by implication that the provision of international law at issue infringes the fundamental rights of individuals, as protected by the Community legal order.

[...]

  • 221 In light of the considerations set out in paragraphs 193 to 204 above, the claim that the Court of First Instance has jurisdiction to review indirectly the lawfulness of such a decision according to the standard of protection of fundamental rights as recognised by the Community legal order, cannot be justified either on the basis of international law or on the basis of Community law.
  • 222 First, such jurisdiction would be incompatible with the undertakings of the Member States under the Charter of the United Nations, especially Articles 25, 48 and 103 thereof, and also with Article 27 of the Vienna Convention on the Law of Treaties.

[...]

  • 225 It must therefore be considered that the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court’s judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness in the light of Community law. On the contrary, the Court is bound, so far as possible, to interpret and apply that law in a manner compatible with the obligations of the Member States under the Charter of the United Nations.
  • 226 None the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood 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 no derogation is possible.
  • 227 In this connection, it must be noted that the Vienna Convention on the Law of Treaties, which consolidates the customary international law and Article 5 of which provides that it is to apply ‘to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation’, provides in Article 53 for a treaty to be void if it conflicts with a peremptory norm of general international law (jus cogens), defined as ‘a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. Similarly, Article 64 of the Vienna Convention provides that: ‘If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’.
  • 228 Furthermore, the Charter of the United Nations itself presupposes the existence of mandatory principles of international law, in particular, the protection of the fundamental rights of the human person. In the preamble to the Charter, the peoples of the United Nations declared themselves determined to ‘reaffirm faith in fundamental human rights, in the dignity and worth of the human person’. In addition, it is apparent from Chapter I of the Charter, headed ‘Purposes and Principles’, that one of the purposes of the United Nations is to encourage respect for human rights and for fundamental freedoms.
  • 229 Those principles are binding on the Members of the United Nations as well as on its bodies. Thus, under Article 24(2) of the Charter of the United Nations, the Security Council, in discharging its duties under its primary responsibility for the maintenance of international peace and security, is to act ‘in accordance with the Purposes and Principles of the United Nations’. The Security Council’s powers of sanction in the exercise of that responsibility must therefore be wielded in compliance with international law, particularly with the purposes and principles of the United Nations.
  • 230 International law thus permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable that may be, they would bind neither the Member States of the United Nations nor, in consequence, the Community.
  • 231 The indirect judicial review carried out by the Court 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 Security Council 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, from which neither the Member States nor the bodies of the United Nations may derogate because they constitute ‘intransgressible principles of international customary law’ [...].

[...]

258 In this instance, as is apparent from the preliminary observations above on the relationship between the international legal order under the United Nations and the Community legal order, the Community institutions were required to transpose into the Community legal order resolutions of the Security Council and decisions of the Sanctions Committee that in no way authorised them, at the time of actual implementation, to provide for any Community mechanism whatsoever for the examination or re-examination of individual situations, since both the substance of the measures in question and the mechanisms for re-examination [.] fell wholly within the purview of the Security Council and its Sanctions Committee. As a result, the Community institutions had no power of investigation, no opportunity to check the matters taken to be facts by the Security Council and the Sanctions Committee, no discretion with regard to those matters and no discretion either as to whether it was appropriate to adopt sanctions vis-a-vis the applicants. The principle of Community law relating to the right to be heard cannot apply in such circumstances, where to hear the person concerned could not in any case lead the institution to review its position.

[...]

  • 267 Admittedly, the [UN] procedure ... confers no right directly on the persons concerned themselves to be heard by the Sanctions Committee, the only authority competent to give a decision, on a State’s petition, on the re-examination of their case. Those persons are thus dependent, essentially, on the diplomatic protection afforded by the States to their nationals.
  • 268 Such a restriction of the right to be heard, directly and in person, by the competent authority is not, however, to be deemed improper in the light of the mandatory prescriptions of the public international order [...]

[...]

  • 283 [.] it is not for the Court to review indirectly whether the Security Council’s resolutions in question are themselves compatible with fundamental rights as protected by the Community legal order.
  • 284 Nor does it fall to the Court to verify that there has been no error of assessment of the facts and evidence relied on by the Security Council in support of the measures it has taken or [...] to check indirectly the appropriateness and proportionality of those measures. It would be impossible to carry out such a check without trespassing on the Security Council’s prerogatives under Chapter VII of the Charter of the United Nations in relation to determining, first, whether there exists a threat to international peace and security and, second, the appropriate measures for confronting or settling such a threat. Moreover, the question whether an individual or organisation poses a threat to international peace and security, like the question of what measures must be adopted vis-a-vis the persons concerned in order to frustrate that threat, entails a political assessment and value judgments which in principle fall within the exclusive competence of the authority to which the international community has entrusted primary responsibility for the maintenance of international peace and security.
  • 285 It must thus be concluded that [...] there is no judicial remedy available to the applicant, the Security Council not having thought it advisable to establish an independent international court responsible for ruling, in law and on the facts, in actions brought against individual decisions taken by the Sanctions Committee.
  • 286 However, it is also to be acknowledged that any such lacuna in the judicial protection available to the applicant is not in itself contrary to jus cogens.
  • 287 Here the Court would point out that the right of access to the courts, a principle recognised by both Article 8 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights ... is not absolute. On the one hand, at a time of public emergency which threatens the life of the nation, measures may be taken derogating from that right, as provided for on certain conditions by Article 4(1) of that Covenant. On the other hand, even where those exceptional circumstances do not obtain, certain restrictions must be held to be inherent in that right, such as the limitations generally recognised by the community of nations to fall within the doctrine of State immunity [.] and of the immunity of international organisations [...].
  • 288 In this instance, the Court considers that the limitation of the applicant’s right of access to a court, as a result of the immunity from jurisdiction enjoyed as a rule, in the domestic legal order of the Member States of the United Nations, by resolutions of the Security Council adopted under Chapter VII of the Charter of the United Nations, in accordance with the relevant principles of international law (in particular Articles 25 and 103 of the Charter), is inherent in that right as it is guaranteed by jus cogens.
  • 289 Such a limitation is justified both by the nature of the decisions that the Security Council is led to take under Chapter VII of the Charter of the United Nations and by the legitimate objective pursued. In the circumstances of this case, the applicant’s interest in having a court hear his case on its merits is not enough to outweigh the essential public interest in the maintenance of international peace and security in the face of a threat clearly identified by the Security Council in accordance with the Charter of the United Nations. In this regard, special significance must attach to the fact that, far from providing for measures for an unlimited period of application, the resolutions successively adopted by the Security Council have always provided a mechanism for re-examining whether it is appropriate to maintain those measures after 12 or 18 months at most have elapsed [...].
  • 290 Last, the Court considers that, in the absence of an international court having jurisdiction to ascertain whether acts of the Security Council are lawful, the settingup of a body such as the Sanctions Committee and the opportunity, provided for by the legislation, of applying at any time to that committee in order to have any individual case re-examined, by means of a procedure involving both the ‘petitioned government’ and the ‘designating government’ [...], constitute another reasonable method of affording adequate protection of the applicant’s fundamental rights as recognised by jus cogens.

[...]

B. Kadi I ECJ

[Kadi appealed the CFI decision in Kadi I, arguing that the contested Regulation should be annulled, among others, on grounds of error of law in the CFI’s interpretation of relevant principles of international law and in its assessment of the violation of his fundamental human rights.]

[...]

  • 280 The Court will now consider the heads of claim in which the appellants complain that the Court of First Instance, in essence, held that it followed from the principles governing the relationship between the international legal order under the United Nations and the Community legal order that the contested regulation, since it is designed to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations affording no latitude in that respect, could not be subject to judicial review of its internal lawfulness, save with regard to its compatibility with the norms of jus cogens, and therefore to that extent enjoyed immunity from jurisdiction.
  • 281 In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions [...].
  • 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 the Court 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 [...].
  • 283 In addition, according to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the ECHR has special significance [...].
  • 284 It is also clear from the case-law that respect for human rights is a condition of the lawfulness of Community acts [...] and that measures incompatible with respect for human rights are not acceptable in the Community [...].
  • 285 It follows from all those considerations that 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.
  • 286 In this regard it must be emphasised that, in circumstances such as those of these cases, the review of lawfulness thus to be ensured by the Community judicature applies to the Community act intended to give effect to the international agreement at issue, and not to the latter as such.
  • 287 With more particular regard to a Community act which, like the contested regulation, is intended to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, it is not, therefore, for the Community judicature, under the exclusive jurisdiction provided for by Article 220 EC, to review the lawfulness of such a resolution adopted by an international body, even if that review were to be limited to examination of the compatibility of that resolution with jus cogens.
  • 288 However, any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.

[...]

  • 290 It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that [...] such review is a constitutional guarantee forming part of the very foundations of the Community.
  • 291 In this respect it is first to be borne in mind that the European Community must respect international law in the exercise of its powers [...] the Court having in addition stated [...] that a measure adopted by virtue of those powers must be interpreted, and its scope limited, in the light of the relevant rules of international law.

[...]

  • 293 Observance of the undertakings given in the context of the United Nations is required [...] in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures taken on the basis of Articles 60 EC and 301 EC, to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.
  • 294 In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them.

[...]

  • 298 It must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each Member of the United Nations. The Charter of the United Nations leaves the Members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order.
  • 299 It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations 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 United Nations.
  • 300 What is more, such immunity from jurisdiction for a Community measure like the contested regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.

[...]

305 Nor can an immunity from jurisdiction for the contested regulation with regard to the review of its compatibility with fundamental rights, arising from the alleged absolute primacy of the resolutions of the Security Council to which that measure is designed to give effect, find any basis in the place that obligations under the Charter of the United Nations would occupy in the hierarchy of norms within the Community legal order if those obligations were to be classified in that hierarchy.

[...]

  • 307 [...] by virtue of[art. 300(7) EC], supposing it to be applicable to the Charter of the United Nations, the latter would have primacy over acts of secondary Community law [...].
  • 308 That primacy at the level of Community law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part.

[...]

  • 316 [.] the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.
  • 317 The question of the Court’s jurisdiction arises in the context of the internal and autonomous legal order of the Community, within whose ambit the contested regulation falls and in which the Court has jurisdiction to review the validity of Community measures in the light of fundamental rights.
  • 318 It has in addition been maintained that, having regard to the deference required of the Community institutions vis-a-vis the institutions of the United Nations, the Court must forgo the exercise of any review of the lawfulness of the contested regulation in the light of fundamental rights, even if such review were possible, given that, under the system of sanctions set up by the United Nations, having particular regard to the re-examination procedure which has recently been significantly improved by various resolutions of the Security Council, fundamental rights are adequately protected.
  • 319 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 United Nations legal system, the Court must not intervene in any way whatsoever.[...]
  • 321 [...] the existence, within that United Nations system, of the re-examination procedure before the Sanctions Committee, even having regard to the amendments recently made to it, cannot give rise to generalised immunity from jurisdiction within the internal legal order of the Community.
  • 322 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.
  • 323 In that regard, although it 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.

[...]

326 It follows from the foregoing that the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.

[...]

[The Court then proceeded to annul the Regulation for infringement of Kadi’s right to effective judicial protection and right to property as guaranteed by the EU legal order.]

C. Kadi II GCEU

[Upon Kadi’s renewed subjection to the sanctions by a fresh Regulation in the wake of Kadi IECJ, Kadi brought a challenge against that Regulation before the now renamed General Court.]

[...]

  • 113 The institutions and intervening governments have [...] forcefully reiterated in these proceedings the concerns—already expressed by them in the case culminating in the judgment of the Court of Justice in Kadi—regarding the risk that the system of sanctions put in place by the United Nations in the context of the fight against international terrorism would be disrupted if judicial review of the kind advocated by the applicant in the light of the judgment of the Court of Justice in Kadi were instituted at national or regional level.
  • 114 It is true that, once it is accepted that the Security Council has inherent competence to adopt sanctions targeted at individuals rather than at States or their governments (smart sanctions), such judicial review is liable to encroach on the Security Council’s prerogatives, in particular with regard to determining who or what constitutes a threat to international peace or security, to finding that such a threat exists and to determining the measures necessary to put an end to it.
  • 115 More fundamentally, certain doubts may have been voiced in legal circles as to whether the judgment of the Court of Justice in Kadi is wholly consistent with, on the one hand, international law and, more particularly, Articles 25 and 103 of the Charter of the United Nations and, on the other hand, the EC and EU Treaties [...]
  • 116 In that regard, it has in particular been asserted that, even though the Court of Justice stated [. ] that it was not for the Community judicature [. ] to review the legality of a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, the fact remains that a review of the legality of a Community act which merely implements, at Community level, a resolution affording no latitude in that respect necessarily amounts to a review, in the light of the rules and principles of the Community legal order, of the legality of the resolution thereby implemented.
  • 117 It has, moreover, been observed that [...] the Court of Justice in any event carried out a review of the conformity of the system of sanctions set up by the United Nations with the system of judicial protection of fundamental rights laid down by the EC Treaty and did so in response to the Commission’s argument that those fundamental rights were now sufficiently protected in the framework of the system of sanctions, in view in particular of the improvement in the re-examination procedure which afforded the individuals and entities concerned an acceptable opportunity to be heard by the Sanctions Committee. In particular, the Court of Justice held [...] that the re-examination procedure ‘clearly [...] [did] not offer the guarantees of judicial protection’ and that the individuals or entities concerned ‘had no real opportunity of asserting their rights’.
  • 118 Likewise, although the Court of Justice asserted [...] that any judgment of the Community judicature holding a Community measure intended to give effect to such a resolution to be contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law, it has been pointed out that the necessary consequence of such a judgment—by virtue of which the Community measure in question is annulled—would be to render that primacy ineffective in the Community legal order.

[...]

  • 121 The General Court acknowledges that those criticisms are not entirely without foundation. However, with regard to their relevance, it takes the view that, in circumstances such as those of the present case—which concerns a measure adopted by the Commission to replace an earlier measure annulled by the Court of Justice in an appeal against the judgment of this Court dismissing an action for annulment of the earlier measure—the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the General Court revisiting points of law which have been decided by the Court of Justice. That is a fortiori the case when, as here, the Court of Justice was sitting in Grand Chamber formation and clearly intended to deliver a judgment establishing certain principles. Accordingly, if an answer is to be given to the questions raised by the institutions, Member States and interested legal quarters following the judgment of the Court of Justice in Kadi, it is for the Court of Justice itself to provide that answer in the context of future cases before it.
  • 122 It should be observed, as an ancillary point, that, although some higher national courts have adopted a rather similar approach to that taken by this Court in its judgment in Kadi [...], others have tended to follow the approach taken by the Court of Justice, holding the Sanctions Committee’s system of designation to be incompatible with the fundamental right to effective review before an independent and impartial court [...].
  • 123 If the intensity and extent of judicial review were limited in the way advocated by the Commission and the intervening governments [...] and by the Council [...], there would be no effective judicial review of the kind required by the Court of Justice in Kadi but rather a simulacrum thereof. That would amount, in fact, to following the same approach as that taken by this Court in its own judgment in Kadi, which was held by the Court of Justice on appeal to be vitiated by an error of law. The General Court considers that in principle it falls not to it but to the Court of Justice to reverse precedent in that way, if it were to consider this to be justified in light, in particular, of the serious difficulties to which the institutions and intervening governments have referred.
  • 124 It is true [...] that the Court of Justice recalled in Kadi that the Community must respect international law in the exercise of its powers [...] that observance of the undertakings given in the context of the United Nations is required in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures [.] to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations [.] that in the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of such resolutions constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them [...] and that, in drawing up measures implementing a resolution of the Security Council under Chapter VII of the Charter of the United Nations, the Community must take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation [...].
  • 125 The fact remains that the Court of Justice also stated, in Kadi, that the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations must be undertaken in accordance with the procedure applicable in that respect in the domestic legal order of each Member of the United Nations [...], that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of a Community measure such as 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 such a resolution [...], that such immunity from jurisdiction for such a measure cannot find a basis in the EC Treaty [...], that the review, by the Court of Justice, of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an ‘international agreement’ [...], and that accordingly ‘the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which [...] are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations’ [...].
  • 126 The General Court therefore concludes that, in circumstances such as those of this case, its task is to ensure [.] ‘in principle the full review’ of the lawfulness of the contested regulation in the light of fundamental rights, without affording the regulation any immunity from jurisdiction on the ground that it gives effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.
  • 127 That must remain the case, at the very least, so long as the re-examination procedure operated by the Sanctions Committee clearly fails to offer guarantees of effective judicial protection [.]
  • 128 The considerations in this respect, set out by the Court of Justice [in] Kadi, in particular with regard to the focal point, remain fundamentally valid today, even if account is taken of the ‘Office of the Ombudsperson’, the creation of which was decided in principle by Resolution 1904 (2009) and which has very recently been set up. In essence, the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee. Furthermore, neither the focal point mechanism nor the Office of the Ombudsperson affects the principle that removal of a person from the Sanctions Committee’s list requires consensus within the committee. Moreover, the evidence which may be disclosed to the person concerned continues to be a matter entirely at the discretion of the State which proposed that he be included on the Sanctions

Committee’s list and there is no mechanism to ensure that sufficient information be made available to the person concerned in order to allow him to defend himself effectively (he need not even be informed of the identity of the State which has requested his inclusion on the Sanctions Committee’s list). For those reasons at least, the creation of the focal point and the Office of the Ombudsperson cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee [...].

129 In those circumstances, the review carried out by the Community judicature of Community measures to freeze funds can be regarded as effective only if it concerns, indirectly, the substantive assessments of the Sanctions Committee itself and the evidence underlying them [...].

[The General Court then applied the high standard of ‘full review’ of the contested regulation and annulled it for violation of Kadi’s right to effective judicial protection and right to property.]

D. Kadi II CJEU

[The decision of the GCEU in Kadi II was eventually appealed by the EU institutions before the CJEU, whose Grand Chamber provided the closing act to the Kadi saga. First the CJEU confirmed that the Regulation could not be afforded any immunity from jurisdiction on the ground that its objective is to implement resolutions adopted by the Security Council under Chapter VII of the UN Charter. The Court then went on to consider the question of the standard of review.]

[...]

  • 103 In this case, it is necessary to determine whether, in the light of the requirements [of EU law] relating to the maintenance of international peace and security while respecting international law, and specifically the principles of the Charter of the United Nations, the fact that Mr Kadi and the Courts of the European Union did not have access to the information and evidence relied on against him, to which the General Court draws attention [...] constitutes an infringement of the rights of the defence and the right to effective judicial protection.
  • 104 In that regard [...] it must be emphasised that, in accordance with Article 24 of the Charter of the United Nations, the Security Council has been invested by the members of the UN with the primary responsibility for the maintenance of international peace and security. To that end, it is the task of the Security Council to determine what constitutes a threat to international peace and security and to take the measures necessary, by means of the adoption of resolutions under Chapter VII of that Charter, to maintain or restore international peace and security, in accordance with the purposes and principles of the United Nations, including respect for human rights.
  • 105 In that context, as is apparent from the resolutions [...] governing the regime of restrictive measures such as those at issue in this case, it is the task of the Sanctions Committee, on the proposal of a UN member supported by a ‘statement of case’ which should provide ‘as much detail as possible on the basis(es) for the listing’, the ‘nature of the information’ and ‘supporting information or documents that can be provided’, to designate, applying the criteria laid down by the Security Council, the organisations, entities and individuals whose funds and other economic resources are to be frozen. That designation, put into effect by the listing of the name of the organisation, entity or individual concerned on the Sanctions Committee Consolidated List which is maintained at the request of the Member States of the UN, is to be based on a ‘summary of reasons’ which is to be produced by the Sanctions Committee in the light of the material which the Member State proposing the listing has identified as capable of disclosure, particularly to the party concerned, and which is to be made accessible on its website.
  • 106 When the European Union implements Security Council resolutions adopted under Chapter VII of the Charter of the United Nations [...] the competent European Union authority must take due account of the terms and objectives of the resolution concerned and of the relevant obligations under that Charter relating to such implementation [...].
  • 107 Consequently, where, under the relevant Security Council resolutions, the Sanctions Committee has decided to list the name of an organisation, entity or individual on its Consolidated List, the competent European Union authority must, in order to give effect to that decision on behalf of the Member States, take the decision to list the name of that organisation, entity or individual, or to maintain such listing [.] on the basis of the summary of reasons provided by the Sanctions Committee. On the other hand, there is no provision in those resolutions to the effect that the Sanctions Committee is automatically to make available to, in particular, the European Union authority responsible for the adoption by the European Union of its decision to list or maintain a listing, any material other than that summary of reasons.

[...]

  • 109 In the particular case of Mr Kadi, it is apparent from the file that the initial listing of his name, on 17 October 2001 in the Sanctions Committee Consolidated List followed a request by the United States on the basis of the adoption on 12 October 2001 of a decision in which the Office of Foreign Asset Control identified Mr Kadi as a ‘Specially Designated Global Terrorist’.
  • 110 As is apparent from recital 3 of the preamble to the contested regulation [...] following the Kadi judgment the Commission, by means of that regulation, decided to maintain the name of Mr Kadi on the list [...] on the basis of the narrative summaries of reasons which had been transmitted by the Sanctions Committee. As the General Court recorded [.] and as the Commission confirmed at the hearing before the Court, the Commission was not, for that purpose, put in possession of evidence other than such a summary of reasons.
  • 111 In proceedings relating to the adoption of the decision to list or maintain the listing of the name of an individual [...] respect for the rights of the defence and the right to effective judicial protection requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, that is to say, at the very least, the summary of reasons provided by the Sanctions Committee [.] so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union.

[...]

  • 119 The effectiveness of the judicial review guaranteed by Article 47 of the Charter [of Fundamental Rights] also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person [...] the Courts of the European Union are to ensure that that decision, which affects that person individually [.] is taken on a sufficiently solid factual basis [...]. That entails a verification of the factual allegations in the summary of reasons underpinning that decision [...], with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.
  • 120 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination [...].
  • 121 That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded.
  • 122 For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the summary provided by the Sanctions Committee. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned.
  • 123 If the competent European Union authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them, namely, in this case, the indications contained in the narrative summary of reasons provided by the Sanctions Committee, the observations and exculpatory evidence that may have been produced by the person concerned and the response of the competent European Union authority to those observations. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing.
  • 124 If, on the other hand, the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned.
  • 125 Admittedly, overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned. In such circumstances, it is none the less the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process [...].

[...]

  • 130 Having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested decision [...] the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary provided by the Sanctions Committee is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision. In the absence of one such reason, the Courts of the European Union will annul the contested decision.
  • 131 Such a judicial review is indispensable to ensure a fair balance between the maintenance of international peace and security and the protection of the fundamental rights and freedoms of the person concerned [...], those being shared values of the UN and the European Union.
  • 132 Notwithstanding their preventive nature, the restrictive measures at issue have, as regards those rights and freedoms, a substantial negative impact related, first, to the serious disruption of the working and family life of the person concerned due to the restrictions on the exercise of his right to property which stem from their general scope combined, as in this case, with the actual duration of their application, and, on the other, the public opprobrium and suspicion of that person which those measures provoke [...].
  • 133 Such a review is all the more essential since, despite the improvements added, in particular after the adoption of the contested regulation, the procedure for delisting and ex officio re-examination at UN level they do not provide to the person whose name is listed [...] the guarantee of effective judicial protection, as the European Court of Human Rights, endorsing the assessment of the Federal Supreme Court of Switzerland, has recently stated in paragraph 211 of its judgment of 12 September 2012, Nada v. Switzerland [...].
  • 134 The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re-establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered [...].

[The Court then proceeded to review the merits of the reasons for listing as they had been disclosed, found them lacking, and thus dismissed the appeals.]

IV. Commentary

A. The decisions

All EU court decisions in the Kadi saga revolve around the same main issues, though they (a) resolve them in different ways and (b) elaborate on different aspects of them as we move from the first to the second set of cases. In particular, the CFI in Kadi I

adopts a particular view as to the question of ‘normative control’ of state organs by international organizations and the question of ‘incidental’ judicial review, as well as to the question of the relationship between legal orders in a setting of multi-level governance.10 The ECJ in Kadi I takes a different view on the same questions, reversing the decision of the CFI and annulling the contested EU act. The Kadi II cases then are an attempt, on the one hand, to have the EU courts reverse the precedent of Kadi I ECJ, and on the other, failing such reversal, to materially limit the far-reaching impact of the precedent by seeking to establish a low-intensity standard of review. In what follows, three main issues will be discussed: (i) normative control and judicial review of Security Council decisions; (ii) standard of review; and (iii) internal and external justifications for the decisions in the Kadi saga, which result effectively in imposing on EU member states the obligation to disobey Chapter VII sanctions of the Security Council.

(i) Normative control, discretion, and judicial review

When a binding decision of an international organization leaves to its member states—as the ‘agents of execution’—no margin of discretion as to its implementation, that is when it imposes a strict obligation, member states are under the effective ‘normative’ control of the organization." Notwithstanding any arguments for direct attribution of such implementing acts to the organization promulgating the decision (and thus controlling the conduct of UN member states), it remains a possibility that these implementing acts will be concurrently attributed to the member states." The latter has been accepted in practice by numerous courts: the ECtHR in a number of cases such as Bosphorus13 and Nada,14 the Canadian Federal Court in Abdelrazik,15 the UK courts in Hay16 and HM Treasury v Ahmed and ors,17 the Swiss Federal Tribunal in Nada,ls and others. The CFI and ECJ in Kadi I, and the GCEU and CJEU in Kadi II do the same and assume jurisdiction in order to review the EU act implementing the measures decreed by the Security Council.

However, the fact remains that in such circumstances state conduct is conditioned by the decision of the international organization, so that any review of state conduct by a court will uno actu also constitute review of the conduct of the organization. There are many ways in which courts have purported to deal with this situation, in

ю A very similar approach is taken by the Swiss Federal Tribunal in Nada, see ch. 4.4, which explicitly endorses the Kadi I CFI decision (the only Kadi decision made at the time the Federal Tribunal was dealing with the Nada case).

  • 11 See ch. 4.4, section (4)A.(i).
  • 12 See Articles on the Responsibility of States for Internationally Wrongful Acts, art 4.
  • 13 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirceti v Ireland, App No 45036/98 (Grand Chamber).
  • 14 Nada v Switzerland, App No 10593/08 (Grand Chamber).
  • 15 Abdelrazik v Canada (Foreign Affairs), 2009 FC 580; ILDC 1332 (CA 2009).
  • 16 Hay v Her Majesty’s Treasury and Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1677 (Admin); ILDC 1367 (UK 2009).
  • 17 Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and Others (FC) (Appellants) [2010] UKSC 2.
  • 18 Youssef Nada v State Secretariat for Economic Affairs and Federal Department for Economic Affairs, Swiss Federal Tribunal, Case No 1A 45/2007, 133 BGE II 450. See further ch. 4.4 in this collection.

particular wishing to avoid any stringent (if indirect) review of the international act. The ECtHR for example has established a doctrine of equivalent protection: if the international organization promulgating the act that requires strict compliance protects human rights on a level equivalent to that of the ECHR, the legality of state conduct taken in implementation is presumed. While the presumption can theoretically be rebutted, this has not happened so far, except in the case of Al-Dulimi,19 which is now pending before the Grand Chamber of the ECtHR.20

The CFI in Kadi I acknowledged the predicament of having to review Security Council conduct when reviewing member state or EU conduct in implementation, and—wishing also to avoid a stringent (indirect) review—opted for reviewing against the lowest common denominator, that is law binding both on the EU and on the UN when acting through the Security Council. It famously considered such law to be only that part of international law which has reached the status of jus cogens.21 The resulting review of the EU and (indirectly) the Security Council act was of very low intensity. This was in part because of the vagueness of rules of jus cogens and in part because finding that the Security Council had violated jus cogens would be almost unthinkable.

The ECJ in Kadi I, on the other hand, radically rejected the connection between the international and the domestic/regional implementing measure, and went ahead to fully review the domestic measure for compliance with EU law. The ECJ accepted that the EU adopted the impugned domestic measure in order to give effect to a Security Council resolution. But it found that the EU was not limited in the choice of a model of implementation of the obligations enshrined in the resolution. Further, the adoption of the EU measure was an act directly attributable to the Union. As such, the EU courts would review any EU measure in light of fundamental rights guarantees under primary EU law. In the ensuing review, the EU measure was clearly found lacking in these terms, and was annulled. However, the ECJ was a bit disingenuous in Kadi I: the obligation to subject Kadi to the sanctions prescribed by the Security Council was strict. This meant that whatever the EU or the member states elected to do in implementing the decision (i.e., whatever ‘model of implementation’ they ‘chose’), they would have had to achieve the outcome of sanctioning Kadi. Any other outcome would constitute a violation of the international obligation to comply with the decision of the Security Council. As expected, the issue came up again in the second round of Kadi cases.

In Kadi II GCEU, the EU institutions and the intervening states tried to re-invoke the argument that there was nothing they could do except blacklist Kadi, since their conduct was effectively conditioned by the binding Security Council measure, and they had no margin of discretion in the measure’s implementation. This time, they tried to present this as an argument in favour of marginal (low intensity) review of the impugned Regulation. Their argument developed as follows: the ECJ said (in Kadi I) that it could review the Regulation implementing 1267 sanctions; but there is nothing

'9 Al-Dulimi and Montana Management Inc. v Switzerland, App No 5809/08, paras 117-21.

  • 20 See further the Nada commentary, ch. 4.4, section (4)A.(iii).
  • 2' For further analysis see ibid., sections (4)A.(i)-(ii). The CFI’s decision in Kadi served in part as the inspiration of the Swiss Federal Tribunal’s decision in Nada.

that the EU or the member states can do if the Security Council wants Kadi blacklisted, except communicate to him the summary of the reasons for the listing (generalities and allegations for the most part), give him an opportunity to be heard (of no consequence, as the attempt to question generalities is unlikely to yield results anyway), and then go on and blacklist him as per the Security Council’s command. If EU courts are going to review this, they have yet to establish a standard of review; so the institutions and the member states argued for the most marginal review to account for their lack of discretion (i.e. review only for manifest error or abuse of power).

The General Court acknowledged that the 1267 sanctions regime imposes strict obligations—as opposed to the anti-terrorist sanctions regime established under Resolution 1373 (2001), for example, which does not: while it is the Security Council, through the 1267 Sanctions Committee, that determines the natural and legal persons to be targeted by the 1267 sanctions, it is up to UN member states to independently determine the targets of the 1373 sanctions, following the criteria set down by the Security Council. This crucial distinction the GCEU had drawn already in OMPI[3] [4] [5] and other cases. It allowed the Court to engage in differentiated control of EU acts under the two regimes: in the first case, it would only review for compliance with jus cogens, since the obligation that member states had to implement was strict. In the second case, member states could exercise discretion in selecting targets, and this discretion was fully reviewable for compliance with EU law. But the General Court then conceded that accepting the arguments of the institutions for low intensity marginal review due to lack of EU discretion would be tantamount to reiterating its own (CFI) finding in Kadi I, which had already been reversed by the ECJ in Kadi I. It then followed the ECJ in rejecting the argument for marginal review, disassociating the international from the domestic measure, and engaging in ‘full review’ as required by Kadi I ECJ.

However, the GCEU only did so ‘grudgingly’,23 because it is apparent throughout the judgment that it was not completely comfortable with the ECJ’s reasoning in Kadi I. As mentioned, while the General Court acknowledged the different scope of the international obligations imposed on member states of the UN under the 1267 and 1373 sanctions regime respectively, it accepted the ECJ’s obliteration of this distinction later on. That it did so without being fully convinced is evident both as implicit in the language used by the Court24 and explicit when the GCEU listed the significant criticisms levelled by scholarship with respect to Kadi I ECJ. The Court went on to acknowledge ‘that those criticisms are not entirely without foundation’. But given that Kadi I was rendered by the ECJ in Grand Chamber formation, that is with the intent of setting down certain principles, ‘in principle it falls not to [the General Court] but to the Court of Justice to reverse the precedent’.

Indeed, both the institutions and some member states sought to have the CJEU’s Grand Chamber reverse its position in Kadi II. The Commission, the Council, and the United Kingdom challenged the GCEU’s decision in Kadi II essentially on three grounds, which the CJEU dealt with in two sets. The first ground was that the GCEU erred in law in not granting judicial immunity to Kadi’s listing by the EU: the EU was under a strict obligation to impose sanctions on Kadi, flowing from the relevant decisions of the Security Council. The EU was allowed no discretion in implementing the measure, and thus the relevant act should be immune from review by the Union’s judicature, lest the latter purport to review (indirectly) the decisions of the Security Council. In effect, the appellants launched a direct challenge to Kadi I, calling on the Court to reverse the precedent.

Perhaps the first ground of appeal was a long shot for the appellants, and the Court of Justice, which refused to reverse its position, quickly rejected it. It was on the basis of the second and third grounds where the Commission, the Council, and the United Kingdom, supported by numerous interveners, were probably hoping to limit the effects of Kadi IECJ, all the while allowing the CJEU to ‘save face’ by pretending the precedent still held good. These grounds referred to the standard of review of EU measures implementing Security Council decisions to be applied by EU courts.

(ii) The standard of review

Once accepted that the EU courts can review EU acts implementing Security Council decisions, the question of the standard of review poses itself with some force. How strict should the court be in reviewing the implementing act? The CFI in Kadi I reasoned that the EU act was not reviewable against EU law, but against those rules of international law only that constitute jus cogens. As such it did not have to elaborate any specific standard of review—the rules of jus cogens being themselves rather disputed and vague, the review could only be of relatively low intensity. And so it was.

However, once Kadi I ECJ established that the EU implementing act is reviewable against EU law, the question became crucial. In Kadi I, the ECJ declared that it must ensure ‘in principle the full review’ of the EU act against EU law, and thus seemed to demand high intensity review. The question became the essential battleground in the Kadi II set of cases, where the EU institutions and the member states sought to mitigate the effects of Kadi I ECJ by arguing for low intensity review, which would allow for the EU implementing act to stand and would further allow them to continue complying with their obligations under the UN Charter.

The GCEU in Kadi II saw through the argument of the institutions and the member states. It opined that limiting the intensity of review would be tantamount to reversing Kadi I ECJ, as the ECJ had demanded ‘full review’, which would give guarantees of effective judicial protection, and thus rejected low intensity review. The question then came up again in Kadi II CJEU. The appellants challenged both the standard of review applied by the GCEU, and the manner of its application to the substantive claims by Kadi (violation of the rights of defence, the right of effective judicial protection, and the principle of proportionality as it relates to the protection of property).25 The CJEU

25

See Kadi II CJEU, paras 70 seq.

dealt with these two grounds in one go. In essence, the appellants and interveners again tried to mitigate the impact of EU judicial review of (in effect) Security Council measures, relying on the ‘international context’ of adoption of the measures and the fact that EU institutions had no discretion under the 1267 regime.

It is worth discussing this argument in some detail. The position taken by the ECJ in Kadi I is premised on the formality that EU judicial review does not affect the UN measure. True as that might be, it must be recalled that this move was justified by the ECJ claiming that there was still some discretion in the method in which the EU will implement the sanctions imposed by the Security Council.[6]

This is simply wrong if it is read to mean that the UN legal order necessarily allows discretion in implementing strict obligations: under the 1267 regime, the EU has no discretion whatsoever. As already shown, when the Security Council demands the listing of Kadi, all the EU can do is list Kadi. Should the EU afford Kadi any meaningful opportunity to challenge the listing, the challenge, if accepted, will lead to the EU member states disobeying the Security Council.

The CFI had clearly seen the difference when it compared the 1267 regime with the 1373 regime in OMPI in 2006” as discussed above. The 1373 regime demands the imposition of measures, but allows UN member states significant discretion as to the identification of those to be sanctioned. This discretion, the CFI held, must be exercised in accordance with EU law. When there is no discretion, however, there is nothing to review (except compliance with the only law the CFI found binding on the Security Council, that is peremptory norms of international law).

When the ECJ demolished the distinction between the two regimes in its own Kadi I, the GCEU assumed, basing itself also on the language of the ECJ in Kadi I, that the ECJ wished to apply to 1267 measures a standard of review akin to that applied to 1373 measures (full review, and in fact even stricter than under the 1373 regime, where judicial safeguards also applied at the level of EU member states). This is what it did in Kadi II GCEU, and this was what the appellants were challenging in Kadi II CJEU: they argued that the GCEU erred in applying such a stringent standard of review; and it did, because it did not take into consideration that the EU institutions had no discretion in implementing 1267 measures. In effect then, the appellants were hoping that the same argument that failed on formal grounds in securing immunity of EU measures from EU judicial scrutiny would now succeed in at least limiting that scrutiny as much as possible.

One of the main arguments of the appellants was that the EU institutions did transmit to Kadi all the evidence in their possession, in casu the summary of reasons for listing. This was all they had, so that they could not meaningfully be required to adduce evidence they were not in possession of. The Court of Justice accepted as much but went on to clarify that this does not discharge the obligations of the institutions under EU law: it is the obligation of the competent authority to seek co-operation on the part of the UN and its member states if it appears that further information is required to allow the authority to discharge its duty of stating the specific and concrete reasons which justify subjection to restrictive measures. As such, the standard of review applied by EU courts will not only cover the procedural aspects of EU obligations, that is the obligation to transmit reasons for listing and to allow the targeted individual an opportunity to be heard, but will also extend to a substantive review of the reasons offered, that is whether these are sufficiently detailed and specific, whether they rest on a solid factual basis, and generally whether the reasons offered, or at least one of them, is substantiated. If the EU institutions cannot adduce additional evidence, then review will take place on the evidence at hand—since it is for the Union to prove that the reasons are well-founded, not for the individual to prove that they are not. If even one of the reasons stated, albeit in summary form, is substantiated, then the CJEU will not annul the listing.

This rather stringent review is required, according to the Court of Justice, not just because it is ‘indispensable to ensure a fair balance between the maintenance of international peace and security and the protection of fundamental rights and freedoms, those being shared values of the UN and the EU’, but ‘all the more’ so because, ‘despite the improvements added’ by Resolutions 1904 (2009) and 1989 (2011), the procedures at UN level, including the Office of the Ombudsperson, still do not provide the guarantees of ‘effective judicial protection’. In this assessment, the CJEU not only explicitly endorses the ECtHR’s decision in Nada,2S but also implies that it may tone down its intensity of review should even more robust procedures be adopted at UN level. But it also goes on to tell the UN what the essence of that concept of ‘judicial protection’ must be.29

The Court of Justice then applied these principles to the reasons adduced for Kadi’s listing, such as they were.30 The CJEU took each of the reasons adduced by the EU (in effect, the Security Council), reviewed them in substance, and in light of the comments submitted by Kadi in response, proceeded to find all of them either too vague to be assessed or lacking in substantiation, so as not to be able to justify the restrictive measures^ It thus upheld the annulment of the listing, even if it substituted part of the GCEU’s reasoning for its own.32

(iii) Internal and external justifications for disobedience of the Security Council

The outcome of the approach of the EU courts in Kadi IECJ and in both Kadi IIGCEU and Kadi II CJEU, is that by striking down the EU implementing act, they force the (now) twenty-eight member states of the EU to violate their obligations under the UN Charter. This extreme result requires, to say the least, some justification. The decisions of the EU courts do not (explicitly) provide any such justification. They pretend that the decisions in no way result in a breach of international law on the part of the EU or its member states. This argument, however, does not hold water.

From the perspective of international law, the annulment of the domestic implementing measures (in casu the EU Regulations) clearly results in the breach of the [7] [8]

international obligation of member states under art. 25 of the UN Charter. This was in fact raised by the EU institutions and by the (intervening) member states at all stages in both Kadi I and Kadi II. The annulment forces member states to disobey the Security Council decision, lest they disobey the decision of their own court(s).

One implicit justification for this extreme result on the part of the EU courts is the so-called Solange argument.[9] [10] [11] [12] In situations where strict binding decisions can be made at various levels of governance (international, regional, domestic), there is significant potential for conflict between those various levels and the partial legal orders they represent. This is the case, in particular, when the power to impose certain restrictive measures on individuals has been conferred from one level to another, without similar safeguards being put on the exercise of the conferred power3

When a case comes before the court of the legal order that has conferred the relevant power, a reaction is to be expected. This has so far generally taken the shape of the ‘Solange argument’, enunciated by the German Federal Constitutional Court when attempting to define the relationship between German constitutional law and acts of the European (Economic as it then was) Community, first in the 1970s,35 and then modified in the 1980s.36 A much simplified version of the argument runs thus: for as long as the exercise of the conferred powers on the (different or higher) level of governance takes place without safeguards similar to those to which it was subject before the conferral, when it was still exercised at the (lower) level, the court of the (lower) level will review the act of the (higher) level for compliance with the safeguards at the (lower) level (Solange I). When such safeguards are adopted at the (higher) level, the court at the (lower) level will desist, presuming conformity (Solange II).

The Solange argument has also been adopted by the ECtHR, but in its Solange II incarnation through the immediate acceptance of existence of equivalent protection. The Solange argument cuts both ways, as it may serve not as a tool for resistance—as Solange I, but also as a method to water down human rights protection—as Solange II. Its impact, this time as Solange I, was also clear both in the UK Supreme Court’s HM Treasury v Ahmed and ors37 and in Kadi I ECJ. In Kadi II the General Court of the EU was as explicit as it could be: it stated that it must ensure the ‘full review’ of the domestic implementing measure for compliance with fundamental rights (guaranteed under EU law), ‘without affording [the measure] any immunity from jurisdiction on the ground that it gives effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations?8 ‘That must remain the case’, the Court continued, ‘at the very least, so long as (=solange) the re-examination procedure operated by the Sanctions Committee clearly fails to offer guarantees of effective judicial protection’.[13] [14] [15] [16]

The Solange argument cannot, in and of itself, provide any justification for disobeying the Security Council under international law. This is because the decision to disobey is based on domestic law considerations: here on primary EU law on fundamental rights, otherwise (e.g. in the UK Supreme Court’s Ahmed and ors)40 on constitutionally protected fundamental rights. As such, it can only serve as some sort of ‘internal’ justification for disobedience, demonstrating that the court is justified in protecting fundamental human rights.

However, it can be argued that the fundamental rights customarily relied upon in Solange-type argumentation (leading to disobedience) are not solely guaranteed under domestic law, but are ‘consubstantial’ (i.e. they have the same or similar substance) with internationally protected human rights, such as those protected under the ECHR or the ICCPRd1 This is the case in particular for the right to effective judicial review, otherwise cast as an aspect of the right to a fair trial. The ‘consubstantial’ nature of these rights is evident in the analysis of all rights under ‘primary EU law’ by EU courts, which regularly refer, even in the cases at hand, to both the ECHR and the ICCPR, and relevant case-law thereunder.

This then perhaps allows for an ‘external’ justification to be construed on the basis of international law. Elsewhere^2 I have argued that court-imposed disobedience could qualify as a countermeasure against the Security Council’s (i.e. the UN’s) wrongful imposition of sanctions. This argument cannot be set out fully here, but should be borne in mind when considering potential justifications for the disobedience of international organization-imposed obligations which is forced upon states by court decisions such as those in Kadi I and II. More important than these justifications, however, are the real-life repercussions of the Kadi I and II decisions. The next subsection deals with their actual aftermath.

B. The aftermath

Each of the Kadi decisions had significant implications for Security Council sanctions under Chapter VII of the UN Charter and for the impact of acts of international organizations in domestic legal orders in general. The Kadi ICFI decision established a difficult modus vivendi which safeguarded the effect of UN Security Council decisions while giving some semblance of human rights supervision. It was taken up by other courts, notably the Swiss Federal Tribunal in Nada, and it sent a signal to the UN and its member states that sanctions had started to impact human rights too severely for courts to remain completely silent on the matter.

Originally, for example, those targeted by the 1267 and other sanctions regimes could not seek to be removed from the sanctions lists. This power was reserved for member states, in particular the targeted person’s state of residence or nationality. But Kadi I CFI and its adoption by other courts led the Security Council to establish a Focal Point, where those targeted by the sanctions could petition the Security Council, in their own name and not through their state of residence or nationality, to be removed from the list.[17] But this improvement was to be considered inadequate as sanctions continued to extend in time.

The breaking point, the crossing of the Rubicon, was Kadi IECJ, which forced member states to seek to considerably improve the sanctions regimes established by the Security Council, and which also forced the Security Council to seriously consider such further improvements, for fear of massive disobedience of its sanctions. This was particularly so as Kadi I ECJ was again followed by other courts, piling on the pressure. In response, the Security Council adopted, at the very end of 2009, Resolution 1904 (2009).

Resolution 1904 was clearly an attempt to thwart the ‘challenges, both legal and otherwise, to the measures implemented by Member States’ under the 1267 sanctions regime, as well as to make procedures for listing and delisting by the competent Sanctions Committee ‘fair and clear’, an ongoing effort^ It established an Office of the Ombudsperson which, being independent and impartial, would be able to make recommendations to the 1267 Sanctions Committee regarding the removal of persons from the sanctions list. However, the establishment of an Office of the Ombudsperson still did not satisfy domestic and regional courts, which kept pushing for judicial guarantees in the imposition of asset freezes and travel bans on persons identified by the Security Council as being ‘associated with’ the Taliban or Al-Qaida. In particular, the fact that the Office of the Ombudsperson could only make recommendations which had to elicit the consensus of the Security Council to lead to removal from the list was the ‘deal-breaker’. In Kadi II in 2010, it was clear that the General Court of the EU remained unconvinced that the procedure at UN level offered the appropriate guarantees.

In 2011, the Security Council made even further improvements, introducing a so-called ‘reverse consensus’ requirement in rejecting recommendations of the Ombudsperson.45 A recommendation would be adopted, unless there was consensus among the members of the Sanctions Committee not to adopt it. This made recommendations of the Ombudsperson quasi-binding, though the option remained for any member to remove the matter to the Security Council, where normal rules of decision making (including the veto) apply.

Despite these significant improvements to the 1267 sanctions regime, and especially the delisting procedures, national and regional international courts remain unconvinced and are keeping the pressure up. Indeed the CJEU can be seen to have raised the bar extremely high in its Kadi II decision. It seems that nothing short of a full-blown court procedure will be enough to solicit the EU courts’ deference in favour of review at UN level. No doubt this should be a welcome development—and a justified one at that, though one unlikely to be realistically achieved. At the same time, pressure is mounting for the 1267 regime improvements to be applied also to other sanctions regimes, which still only benefit from the Focal Point.46

It seems however that all this pressure, after procuring some progress, may send the Security Council into regression and end up being counterproductive. Indeed, in order to avoid challenges in domestic and other courts, the Security Council has started to make its sanctions regimes less and less targeted: in blunting the identification of those targeted, the Security Council makes it more difficult for those affected to challenge the measures in domestic or regional international fora. The Council resituates the game on the intergovernmental level, where it is much stronger, no less so on account of art. 103 UN Charter. It remains to be seen what balance will be struck in the end. If there is an end—Kadi may have won his challenge, but the struggle for balance between international security and human rights protection in the context of UN Security Council sanctions still rages on.

46

See Al-Dulimi, ECtHR (n. 19), paras 117-20.

  • [1] This commentary draws in part from my relevant posts on EJIL: Talk!, the blog of the European Journalof International Law (http://www.ejiltalk.org). Many thanks are due to Eleni Methymaki for truly helpfulcomments and excellent research assistance. All errors remain, of course, my own. 1 Hence, the Court of First Instance (CFI) was renamed he General Court of the European Union(GCEU), while the Court of Justice (ECJ) became the Court of Justice of the European Union (CJEU). Theappropriate court name has been retained for each case, as is evident in the title abbreviations. 2 See Case C-26/62, Van Gend & Loos [1963] ECR 1. з See ch. 4.4, section 1. 4 See art. 25 UN Charter. 5 For example in Turkey: Kadi v Prime Ministry and Ministry of Foreign Affairs of Turkey, ILDC 311(TR 2007); as well as in the US: Yassin Abdullah Kadi v Timothy Geitner et al, Civil Action No 09-0108
  • [2] References omitted.
  • [3] T-228/02, Organisation des Modjahedines du peuple d Iran v Council of the European Union [2006]ECR II-4665, paras 100-2.
  • [4] Stahlberg (n. 7).
  • [5] See for example para. 41: ‘Notwithstanding Articles 25 and 103 of the Charter of the United Nations... and although it observed ... that observance [sic] of the undertakings given in the context of theUnited Nations was required when the Community gave effect to resolutions adopted by the SecurityCouncil under Chapter VII of the Charter, the Court of Justice asserted .’.
  • [6] See Kadi I ECJ, paras 298-9. 27 OMPI CFI (n. 22), particularly paras 97-108.
  • [7] Nada, ECtHR (n. 14). 29 See Kadi II CJEU, para. 134. 30 Ibid., paras 137, 140 seq.
  • [8] 3i Ibid., paras 141 seq. 32 Ibid., paras 163-4.
  • [9] On the impact of the Solange jurisprudence of the German Federal Constitutional Court see generally A. Tzanakopoulos, ‘Judicial Dialogue in Multi-Level Governance: The Impact of the SolangeArgument’ in O.K. Fauchald and A. Nollkaemper (eds), The Practice of International and National Courtsand the (De-)Fragmentation of International Law (Oxford, Hart 2012) pp. 185-215.
  • [10] On conferral of sovereign powers by states to international organizations see generally D. Sarooshi,International Organisations and their Exercise of Sovereign Powers (Oxford, Oxford UniversityPress 2007).
  • [11] Solange I [1974] 37 BVerfGE 271. 36 Solange II [1986] 73 BVerfGE 339.
  • [12] 37 Ahmed and ors v HM Treasury (n. 17). 38 Kadi II GCEU, para. 126.
  • [13] Ibid., para. 127. 40 Ahmed (n. 17).
  • [14] 41 For the term see A. Tzanakopoulos, ‘Domestic Courts in International Law: The International
  • [15] Judicial Function of National Courts’ (2011) 34 Loyola of Los Angeles International & Comparative LawReview 133, 143.
  • [16] See A. Tzanakopoulos, Disobeying the Security Council: Countermeasures Against WrongfulSanctions (Oxford, Oxford University Press 2011), ch. 7.
  • [17] UNSC Res 1730 (2 0 06). 44 §ee UNSC Res 1904 (2009), preamb para. 9. 45 See UNSC Res 1989 (2011).
 
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