Bad law for good reasons: The contradictions of the kadi judgment

International Organizations Law Review

Volumn 5, Issue 2, 2008, Pages 339-357

  Hinojosa Martínez, Luis M ^a  

^a UNIVERSITY OF GRANADA   (Spain)

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EID: 72449142236     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237408X412943     Document Type: Review

References (61)

1. Kadi v. Council and Commission and Yusuf and Al Barakaat International Foundation v. Council and Commission, Joined Cases C-402/05 P and C-415/05 P [2008] ECR I-0000 (hereinafter ECJ Kadi).
2. Kadi v. Council and Commission, Case T-315/01 [2005] ECR II-3649, § 200 (hereinafter CFI Kadi).
3. International Fruit Company and Others, Joined Cases 21/72 to 24/72 [1972] ECR 1219, § 18.
4. For a full discussion of the EC competence to implement SC economic sanctions on individuals, see ECJ Kadi § 211-231.
5. CFI Kadi § 195.
6. CFI Kadi § 203.
7. It is remarkable to notice the elusive expressions used in § 305 of ECJ Kadi: "Nor can immunity from jurisdiction (...) find any basis in the place that obligations under the Charter of the UN would occupy in the hierarchy of norms within the Community legal order if those obligations were to be classified in that hierarchy" (emphasis added).
8. There is another possibility: to declare that the absolute primacy of SC Resolutions impedes any judicial review, and the protection that this review would offer for fundamental rights. I reject this position, because I think that it is possible to find a solution in order to provide judicial review.
9. ECJ Kadi, § 282 and 316 (emphasis added).
10. On the relationship between Community law and sovereignty, introducing relevant nuances on the characterisation of Community law as an autonomous constitutional order, see René Barents, The Autonomy of Community Law, 59-165 and 275-298 (2004).
11. ECJ Kadi, § 250 and 276.
12. What would happen if some Muslim countries alleged that they would implement some UN sanctions only in so far as they accommodated the sharia, or if the SC imposed sanctions on a Latin-American country and MERCOSUR members said that they could not apply them because they go against the basic principles of MERCOSUR?
13. A. Racke GmbH & Co. v. Hauptzollamt Mainz, Case C-162/96 [1998] ECR I-3655 (emphasis added).
14. The Queen, ex parte Centro-Com Srl v. HM Treasury and Bank of England, Case C-124/95 [1997] ECR I-81§ 56. This judgment referred precisely to the implementation of SC sanctions.
15. Dorsch Consult Ingenieurgesellschaft mbH v. Council of the European Union and Commission of the European Communities, Case T-184/95 [1998] ECR II-667, § 74.
16. ECJ Kadi, § 288.
17. ECJ Kadi § 336-337.
18. Takis Tridimas & José A. Gutiérrez-Fons, "EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?", Research Papers in Law 3/2008, (College of Europe), 29-30.
19. In Dorsch (supra note 15, § 74), the CFI said that "any measure of common commercial policy, such as the imposition of a trade embargo, falls, by virtue of Article 113 of the Treaty, within the exclusive competence of the Community." Although we will not deal with this issue here in detail, some tentative ways could be explored to justify Member States intervention: (a) Article 297 ECT [this possibility seems now pretty excluded by the ECJ in Kadi, § 302-303], (b) the qualification of the competence to implement sanctions on individuals as a shared one [this is why Article 308 ECT was needed as legal base for the European regulation], or (c) Member States may act within the field of exclusive competence of the Community safeguarding the common interest while the Community is not exercising its competence (Commission v. United Kingdom, Case 32/79 [1980] ECR 2403).
20. Tanja Kreil v. Bundesrepublik Deutschland, Case C-285/98 [2000] ECR I-69, § 23-25;
21. Finanzamt Köln-Altstadt v. Roland Schumacker, Case C-279/93 [1995] ECR I-225, § 21.
22. SC Res 1566 (2004), 8 October 2004, Preamble; SC Res 1822 (2008), 30 June 2008, Preamble, "stressing in this regard the important role the United Nations plays in leading and coordinating this effort."
23. Several arguments may justify the pre-eminence of this purpose of the UN: the fact that the General Assembly must refrain from making any recommendation in respect of any situation when the SC is dealing with it (Article 12 (1) UN Charter), the absence of any mechanism of direct judicial review of the SC decisions, and the exceptionality of its powers under Chapter VII of the Charter.
24. Ilaria Viarengo, "Derogations and Restrictions under the International Mechanisms for the Protection of Human Rights", Rivista di diritto internazionale LXXXVIII (2005), 955.
25. Article 30 (1) of the 1969 Vienna Convention on the Law of Treaties.
26. Bend Martenczuk, "The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?", Euro. J. Int'l L. 10 (1999), 517, 545.
27. Luis M. Hinojosa Martínez, "The Legislative Role of the SC in its Fight against Terrorism: Legal, Political and Practical Limits", Int'l & Comp. L.Q. 57 (2008), 333, 346.
28. Tadic (Jurisdiction) ICTY-94-101 (2 October 1995) § 28.
29. From my point of view, the other fundamental rights affected by these sanctions (right to property, right to travel, or right to honor) are not protected by jus cogens norms. The case-law of the ICJ (Use of Nuclear Weapons (1996) ICJ Rep § 83;
30. Democratic Republic of Congo v. Belgium (2002) ICJ Rep § 58;
31. Democratic Republic of Congo v. Rwanda (2006) ICJ Rep § 125) and the ILC Articles on Responsibility of States (UN Doc. A/56/10 (2001), Commentaries to Article 40) invite us to take a prudent and restrictive approach to the concept of jus cogens (see the critical comments of Christian Tomuschat on the CFI Kadi judgment for the extension it makes of this concept in C.M.L. Rev. 43 (2006), 547-551).
32. Erika de Wet & André Nollkaemper, "Review of Security Council Decisions by National Courts", German Yearbook of International Law 42 (2002), 166, 181-184.
33. Article 4 of the UN Covenant on Civil and Political Rights.
34. UN Doc. CCPR/C/21/Rev.1/Add.11 (2001) § 16. The Human Rights Committee explicitly qualifies the right to a fair trial as a peremptory norm of international law at § 11.
35. Tadić (Jurisdiction) ICTY-94-101 (2 October 1995) § 42.
36. Laura K. Donohue, "Anti-Terrorist Finance in the United Kingdom and United States", Mich. J. Int'l. L. 27 (2006), 303, 413-417.
37. Chafq Ayadi v. Council of the European Union, Case T-253/02 [2006] ECR II-2139, § 135.
38. SC Resolutions 1735 (2006) Preamble, and 1822 (2008), Preamble.
39. For a discussion on the civil, criminal or administrative nature of these sanctions see Ramses Wessel, "Debating the 'Smartness' of Anti-Terrorism Sanctions: The UN Security Council and the Individual Citizen", in C. Fijnaut et al. (eds), Legal Instruments in the Fight against International Terrorism: A Transatlantic Dialogue (2004), 654-655;
40. Iain Cameron, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions, 10, 13-14 September 2006 (available at );
41. Larissa van den Herik & Nico Schrijver, "Human Rights Concerns in Current Targeted Sanctions Regimes from the Perspective of International and European Law", in UN Doc. A/60/887-S/2006/331, 14 June 2006, 16-19.
42. ECJ Kadi § 321-326.
43. In fact, the ECJ stated that it could not take into consideration the amendments to the listing procedure in the UN introduced by SC Resolutions 1730 (2006) and 1735 (2006) because they took place "after the contested regulation had been adopted" (ECJ Kadi § 320).
44. If the system of sanctions was not reformed, a new Kadi case would oblige the Court to state that SC Resolutions against Al Qaeda and the Taliban today impose criminal sanctions, and therefore violate jus cogens. The consequence of this finding would be that the contended SC Resolutions lack binding force both for the Community and the Member States.
45. During the San Francisco Conference, Belgium presented a proposal that would have enabled a direct claim to the ICJ to be lodged in the event of a State considering that a decision of the SC breached its essential rights (3 UNCIO 336 [1945]). However, the great powers opposed this initiative because they considered it could entail an excessive reduction in the SC's effectiveness (12 UNCIO 49-66 [1945]). Therefore, although the ICJ is the main judicial organ of the United Nations (Article 92 of the Charter), the Member States of the Organization cannot initiate proceedings directly to challenge the legality of the SC's acts.
46. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971) 45, § 88-89.
47. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), ICJ Reports (1998) § 41-42 and 50.
48. Namibia, ICJ Reports (1971) 143-144.
49. See the decisions of the Swiss Federal Tribunal in Cases 1A.45/2007 Nada, judgment of 14 November 2007, 2A.783/2006 A, judgment of 23 January 2008, and 1A.48/2007 A, judgment of 22 March 2008, or the House of Lords in R (on the application of Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, judgment of 12 December 2007.
50. It suffices here to make reference to the work of the International Law Commission on Fragmentation of international law: difficulties arising from the diversification and expansion of international law ().
51. CFI Kadi § 230-231. For a defence of the competence of regional and national courts to review incidentally the legality of SC Resolutions, see Erika de Wet, "Holding the United Nations Security Council Accountable for Human Rights Violations through Domestic and Regional Courts: A Case of 'Be Careful What You Wish For'?", forthcoming in 2009 (on file with the author).
52. For the opposite position, see Piet Eeckout, "Community Terrorism Listings, Fundamental Rights, and UN Security Resolutions: In Search of the Right Fit", European Constitutional Law Review 3 (2007), 183, 196-197.
53. Commission Regulation (CE) No 1109/2008, of 6 November 2008, OJ L 299/23.
54. Point 5 of the Preamble of Commission Regulation (EC) No 1109/2008 of 6 November 2008 amending for the 100th time Council Regulation (EC) No 881/2002, 2008 OJ L 299/23. Article 7 (1) of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing restrictive measures against Al-Qaeda and the Taliban (2002 OJ L 139/9), empowers the Commission to amend or supplement its annex I. This was decided for practical reasons at a time when it was thought that the Commission would only have to reproduce the amendments made to the list in the SC sanctions Committee. Now that sensitive information concerning terrorism will have to be handled, it would not be surprising if the Council recuperated this competence.
55. UN Doc. SC 9498, 12 November 2008.
56. At first sight, the procedure before the focal point in the UN would not meet the criteria established by the ECJ. The whole process remains intergovernmental and the claim by private persons must be supported either by the designating government, or the government of citizenship and residence, or any of the Members of the sanctions Committee, in order to be placed in the latter's agenda. And any of the 15 Members of the Committee may veto the deletion from the list without providing explanations.
57. The ECJ says in paragraph 298 of Kadi that the Charter does not impose the choice for a model of implementation of the sanctions, and that it leaves to its Members a freedom to act within the procedures available in their domestic legal order. This argument lacks sense in the case of the Al-Qaeda sanctions, as the SC Resolutions leave no margin of discretion at all with regard to the identification of the persons affected and the measures to be taken against them. Is the ECJ just sending the message that a reform of the procedure at the Community level would surface to satisfy the standards of fundamental rights protection established in Kadi?
58. In People's Mojahedin Organization of Iran, Case T-284/08 [2008] ECR II-0000, § 55, in relation to the list based on Regulation 2580/2001, the CFI has established that the Community judicature "must not only establish whether the evidence relied on is actually accurate, reliable and consistent, but must also ascertain whether that evidence contains all the relevant information to be taken into account in order to assess the situation."
59. This is the reason why it constructs the mere application of the sanctions as a problem of internal validity of the implementing measure.
60. This independent body should be allowed to examine the most important evidence presented by the designating State and the allegations made by the private persons on the list. The body should have power to delete people from the list if it found that their inclusion was not sufficiently grounded. In the case that the designating State refused to provide the information on which designation was based, the person would be removed from the list after a certain period of time. On this debate, see UN Docs. A/60/887-S/2006/331, 10 March 2006, § 40-50; A/60/887-S72006/331, 14 June 2006, 50-53;
61. Johannes Reich, "Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999)", Yale J. Int'l L. 33 (2008), 505.