UN sanctions and judicial review

Nordic Journal of International Law

Volumn 76, Issue 1, 2007, Pages 1-17

  Lavranos, Nikolaos ^a  

^a Department of European Law ^*

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[No Author keywords available]

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EID: 34547636656     PISSN: 09027351     EISSN: 15718107     Source Type: Journal    
DOI: 10.1163/090273507X181638     Document Type: Article

References (90)

1. Case T-306701, Yusuf, [2005] ECR, 11-3533;
2. T-315/01, Kadi [2005] ECR, II-3649;
3. and Case T-253/02 Ayadi v. Council, judgment of the CPI of 12 July 2006, available at same.
4. See also N. Lavranos, 'Case Note on Ayadi," in European Human Rights Cases (2006) pp. 1171-1191.
5. Infra note 29.
6. Case T-377/00 Philip Morris v. Commission [2003] ECR II-1 (emphasis added).
7. See extensively V. Gowlland-Debbas (ed.), National Implementation of United Nations Sanctions: A Comparative Study (Martinus Nijhoff Publishers, Leiden, 2004);
8. same editor, United Nations Sanctions and International Law: An Overview (Brill Publishers, The Hague, 2001).
9. See e.g. UN Security Council resolutions 1333 (2000), 1373 (2001), 1566 (2004) and 1611 (2005);
10. Council Common Position 2005/427/CFSP of 6 June 2005, updating Common Position 2001/931/CFSP, OJ [2005], L 144/54;
11. Common Position 2001/931/CFSP, OJ [2001], L 344/93;
12. Common Position 2001/154/CFSP, OJ [2001], L 57/1;
13. and Council Regulation No. 2580/2001, OJ [2001], L 344/70.
14. See e.g. UN Security Council resolutions 1636 (2005) and 1591 (2005), both available at 〈www.un.org/Docs/sc/unsc_resolutions05.htm〉.
15. See extensively N. Lavranos, Decisions of International Organizations in the European and Domestic Legal Orders of selected EU Member States (Europa Law Publishing, Groningen, 2004);
16. R. Wessel, The EU's Foreign and Security Policy: A Legal Institutional Perspective (Kluwer, The Hague, 1999).
17. See e.g. Council Common Position 2005/440/CFSP of 13 June 2005, concerning restrictive measures against the Democratic Republic of Congo and repealing Common Position 2002/829/CFSP, OJ [2005], L 152/22.
18. See e.g. Council Regulation (EC) No. 1183/2005 of 18 July 2005, imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo, OJ [2005], L 193/1.
19. See e.g. Commission Regulation (EC) No. 84/2006 of 18 January 2006, amending Council Regulation (EC) No. 1183/2005, imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo, OJ [2006], L 14/14.
20. See generally M. Bulterman, 'Oh, Baby, Baby, It's a Wild World-Our terrorismefinanciering, financiële sancties en rechtsbescherming' NJCM-Bulletin (2005) pp. 1069-1084.
21. See e.g. M.T. Karayigit, 'The Yusuf and Kadi Judgments; The Scope of the EC Competences in Respect of Restrictive Measures', Legal Issues of Economic Integration (2006) pp. 379-404.
22. C. Tomuschat, 'Case Note on Yusuf/Kadi', Common Market Law Review (2006) pp. 537-551.
23. Yusuf, supra note 1, para. 339.
24. Yusuf, paras. 314 et seq. and 340.
25. Yusuf, para. 243.
26. See the appeal in the Yusuf case, OJ [2006], C 48/11, the case is listed as C-415/05 P;
27. the appeal in the Kadi case, OJ [2006], C 36/19, is listed as C-402/05 P.
28. Ayadi and Lavranos, both at supra note 1.
29. Ayadi, para. 116.
30. Ibid., para. 140.
31. Ibid., para. 142.
32. Ibid, para. 143.
33. Ibid., para. 144.
34. Ibid., para. 145.
35. Ibid., para. 146.
36. Ibid., paras. 147, 148.
37. Ibid., para. 149.
38. Ibid., para. 150.
39. Ibid, para. 151.
40. Bosphorus v. Ireland, judgment of 30 June 2005, EcrtHR, available at 〈cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en〉.
41. Case C-84/95 Bosphorus [1996] ECR I-3953, paras. 22, 23.
42. Cantoni v. France, judgment of 15 November 1996, ECrtHR, available at 〈cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en〉.
43. Matthews v. UK, judgment of 18 February 1999, ECrtHR, available at 〈cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en〉.
44. Senator Lines v. 15 EU Member States, judgment of 10 March 2004, ECrtHR, available at 〈cmiskp.echr.coe.int/tkp197/search.asp?skin= hudoc-en〉.
45. See further M. Breuer, 'Offene Fragen im Verhältnis von EGMR und EuGH', Europäische Grundrechtszeitschrift (2005) pp. 229-234;
46. N. Lavranos, Decisions of International Organizations in the European and Domestic Legal Orders of selected EU Member States (Groningen, 2004).
47. The ECrtHR stated in Matthews v. UK, supra note 32, this point as follows: "32. The Court observes that acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party. The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be "secured". Member States' responsibility therefore continues even after such a transfer."
48. In Bosphorus v. Ireland, supra note 29, the ECrtHR formulated this point as follows: "153.
49. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party's "jurisdiction" from scrutiny under the Convention (United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports, 1998-1, para. 29)."
50. In reconciling both these positions and thereby establishing the extent to which State action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfor would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards (M. & Co., at p. 145 and Waite and Kennedy, at para. 67). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (mutatis mutandis, the above-cited Matthews v. the United Kingdom judgment, at paras. 29 and 32-34,
51. and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, para. 47, ECHR 2001-VIII)."
52. Bosphoros v. Ireland, decision on admissibility of 13 September 2001, ECtHR, available at 〈cmiskp.echr.coe.int/tkp197/search.asp? skin=hudoc-en〉.
53. Bosphorus v. Ireland, supra note 29;
54. see also S. Douglas-Scott, 'Case-Note on ECrtHR's Bosphorus Ruling', CML Rev (2006) pp. 243-254.
55. Bosphorus v. Ireland, supra note 29, para. 155.
56. Ibid., para. 156.
57. See generally C. Costello, 'The Bosphorus Ruling of the ECrtHR: Fundamental Rights and Blurred Boundaries in Europe', Human Rights Law Review (2006) pp. 87-130.
58. Article 25 of the UN Charter reads as follows: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."
59. Article 103 of the UN Charter reads as follows: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
60. See UN Security Council resolution 661 (1990), available at 〈www.un.org/Docs/scres/1990/scres90.htm〉,
61. and most recently UN Security Council resolution 1681 (2006), available at 〈www.un.org/Docs/sc/unsc_resolutions06.htm〉.
62. J. Delbrück, in B. Simma (ed.), The Charter of the UN - A Commentary, Vol. I (Oxford, 2002).
63. R. Bernhardt, in B. Simma (ed.), The Charter of the UN-A Commentary, Vol. II (Oxford, 2002).
64. In Case 26/62 Van Gend & Loos [1963] ECR 95, the ECJ stated: "The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals." (emphasis added).
65. While, in Case 6/64 Costa v. ENEL [1964] ECR 1141, the ECJ stated that: "By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply." (emphasis added).
66. See T. Hartley, EU Law in a Global Context (Cambridge, 2004) pp. 131 et seq.
67. Since the judgment in Case C-112/00 Schmidberger [2003] ECR I-5659 of the ECJ, we know that the ECHR is placed at least at the same level as the EC/EU treaties and may under certain circumstances even enjoy supremacy over primary EC law.
68. See for details N. Lavranos, Decisions of International Organizations in the European and Domestic Legal Order of Selected EU Member States (Groningen, 2004).
69. See Case C-162/96 Rocke [1998] ECR I-3655, in which the ECJ stated: "45. It should be noted in that respect that, as is demonstrated by the Court's judgment in Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraph 9, the European Community must respect international law in the exercise of its powers. It is therefore required to comply with the rules of customary international law when adopting a regulation suspending the trade concessions granted by, or by virtue of, an agreement which it has concluded with a non-member country." Of course, the question arises whether UN Security Council resolutions could be considered to be rules of customary international law, which in my view is not the case.
70. In case C-61/94 Commission v. Germany [1996] ECR I-3989, the ECJ explicitly stated that: "52.
71. When the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the Treaty. Likewise, an implementing regulation must, if possible, be given an interpretation consistent with the basic regulation (see Case C-90/92 Dr Tretter v. Hauptzollamt Stuttgart-Ost [1993] ECR I-3569, paragraph 11). Similarly, the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements." (emphasis added).
72. This applies to international agreements concluded by the EC, which is not the case regarding the UN Charter and to secondary EC law (regulations and directives) and thus not to primary EC law (EC/EU treaties). So the question arises whether this obligation to interpret Community law as far as possible in the light of international obligations of the EC is also - by analogy - applicable to UN Security Council resolutions. In my view that is in principle possible, although it certainly does not imply any kind of supremacy over primary EC law, including the ECHR.
73. Article 48 of the UN Charter reads as follows: "1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members."
74. See R. Wessel/R. Van Ooik, 'Case-Note on Yusuf/Kadi, SEW (2006) pp. 230-246.
75. See also the very useful website of the EU on all EC/EU legislation that is currently in force regarding sanctions: 〈ec.europa.eu/ comm/external_relations/cfsp/sanctions/measures.htm〉.
76. B.O. Bryde/A. Reinisch, in B. Simma (ed.), supra note 44.
77. Ibid
78. See generally M. Payandeh, 'Rechtskontrolle des UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte', ZaöRV(2006) pp. 41-71.
79. Case C-459/03 Commission v. Ireland, judgment of 30 June 2006, available at 〈curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en〉.
80. See for details, N. Lavranos, "The scope of the exclusive jurisdiction of the Court of Justice", European Law Review (2007) forthcoming.
81. Ibid., para. 123.
82. See B. Sabahi, 'The ICJ's Authority to Invalidate the Security Council's Decisions under Chapter VII: Legal Romanticism or the Rule of Law?', New York International Law Review (2004) pp. 1-52.
83. See the quote cited at the beginning of this contribution.
84. Article 307 EC reads as follows: "The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty. To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States."
85. In Case C-112/00 Schmidberger [2003] ECR I-5659, the ECJ repeated again the fundamental importance of the ECHR that even prevails primary EC law. Nonetheless, the situation of non-availability of judicial review seems to be comparable to the one regarding the lack of judicial review of Community law and its conformity with World Trade Organization (WTO) law.
86. See on this aspect N. Lavranos, 'The Communitarization of WTO Dispute Settlement Reports: An Exception to the Rule of Law', European Foreign Affairs Review (2005) pp. 313-339.
87. Case C-354/04 P Gestoras et al. and C-355/04 P SEGI, Opinion of AG Mengozzi of 26 October 2006 (emphasis added), available at 〈curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en〈.
88. See generally N. Lavranos, 'Dos So lange-Prinzip im Verhältnis EGMR und EuGH', Europarecht (2006) pp. 79-92.
89. E. de Wet/A. Nollkaemper, 'Review of Security Council Resolutions by National Courts', German Yearbook of International Law (2002) pp. 166-202.
90. Gestaras et al., supra note 63, paras. 99 et seq.