Eroding the primacy of the Un system of collective security: The judgment of the European court of justice in the cases of Kadi and Al Barakaat

International Organizations Law Review

Volumn 5, Issue 2, 2008, Pages 329-338

  Van Den Herik, Larissa ^a   Schrijver, Nico ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

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EID: 72449144182     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237408X412934     Document Type: Review

References (39)

1. Judgment of the European Court of Justice, Joined Cases C-402/05 P and C-415/05, Kadi and Al Barakaat International Foundation, 3 September 2008, available at (hereinafter referred to ECJ Kadi Judgment).
2. Judgment of the Court of First Instance, Case T-315/01, Kadi v. Council and Commission, 21 September 2005, [2005] ECR II-3649 (hereinafter referred to as CFI Kadi Judgment)
3. and Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission, 21 September 2005, [2005] ECR II-3533.
4. Opinion of Advocate General Poiares Maduro, Case C-402/05 P, Kadi v. Council and Commission, 16 January 2008, available at .
5. Treaty Establishing the European Economic Community (EEC), Rome, 25 March 1957, in force 1 January 1958; 298 UNTS, p. 11.
6. 1958; 298 UNTS, p. 11 Ibid., eight preambular paragraph of EEC Treaty.
7. First preambular paragraph of the UN Charter. Charter of the United Nations, 26 June 1945, entered into force on 24 October 1945; 1 UNTS xvi.
8. As acknowledged by the Court of First Instance, from the perspective of the UN, the Community system can be equated with a domestic system, CFI Kadi Judgment, para. 178.
9. See also the case note of C. Tomuschat in Common Market Law Review 43 (2006), 537-551.
10. The ECJ emphasizes that review by the Community judicature of the lawfulness of Community measures is a fundamental right and the protection of this right is a general principle of Community law, ECJ Kadi Judgment, paras 303-304.
11. See L.J. van den Herik, "The Security Council's Targeted Sanctions Regimes: in Need of Better Protection for the Individual", Leiden Journal for International Law 20 (2007), 69-79, pp. 69-72.
12. Freezing measures have been applied as part of the sanctions regimes relating to Iraq, UNITA, DRC, Liberia, Sudan, Ivory Coast, the Hariri assassination, North Korea, and Iran. Travel bans were imposed in all of these situations as well, and in addition as part of the following sanctions regimes: Libya, Bosnian Serbs, Haiti, Sierra Leone. See for an inventory and analysis J.M. Farrell, United Nations Sanctions and the Rule of Law (Cambridge University Press, 2007) pp. 120, 124, 125.
13. UN Doc. S/RES/1127, 28 August 1997, para. 4.
14. The regimes and lists can be found at: .
15. See Arts 31 and 32 of the UN Charter.
16. UN Doc. S/RES/1730 (2006).
17. The original basis for this regime lies in Security Council resolution 1267, UN Doc. S/ RES/1267 (1999).
18. UN Doc. S/RES/1390 (2002). This special feature of the sanctions regime was at the heart of the legal discussion of the correct legal basis in EC law for the implementing Regulation of the regime. Articles 60 and 301 EC alone could not serve as an adequate legal basis, given that these provisions refer to measures adopted vis-à-vis third countries, including rulers and other individuals associated with those countries. However, as indicated by the ECJ, the Taliban/Al Qaeda measures are "notable for the absence of any link to the governing regime of a third country." ECJ Kadi Judgment, paras 166-167.
19. In its seventh report, the Analytical Support and Sanctions Monitoring Team stated that targeted sanctions still are fairly blunt instruments, and that the Taliban/Al Qaeda regime was particularly complex and elusive, UN Doc. S/2007/677, para. 7.
20. ECJ Kadi Judgment, paras 346-349.
21. ECJ Kadi Judgment, para. 350.
22. UN Doc. S/RES/1373 (2001), adopted on 28 September 2001.
23. Sison was subjected to sanctions pursuant to the 1373 counter-terrorism sanctions regimes, which leaves the listing up to national States and/or regional systems. In the procedure before the Court of First Instance, in which Sison challenged his listing, the Netherlands indicated that apart from Dutch court judgments and a confidential file of the Dutch Intelligence Agency (BVD), "other matters on file played a role" and that "these matters are confidential, the information has not been made public and was not kept by the Council", Judgment of the Court of First Instance, Case T-47/03, Sison v. Council, 11 July 2007, para. 211, [2007] ECR II-73.
24. See also the eighth report of the Analytical Support and Sanctions Monitoring Team, for a discussion of evidentiary problems in the context of review procedures UN Doc. S/2008/324, para. 41.
25. ECJ Kadi Judgment, paras 298-299.
26. ECJ Kadi Judgment, paras 299, 303, 304 jo. 326.
27. ECJ Kadi Judgment, paras 301-309.
28. See for instance ECJ Kadi Judgment, para. 285, as also cited by N. M. Blokker, "Reviewing the review: Did the European Court of Justice in Kadi indirectly review Security Council resolutions? On the downside of a courageous judgment" (forthcoming).
29. Judgment of the Bundes Verfassungs Gericht, So Lange I, Bverfge 37, 271; 2 CMLR 540 (1974).
30. Judgment of the European Court of Justice, Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 5 February 1963, [1963] ECR 1.
31. Judgment of the European Court of Justice, Case 6/64, Costa / ENEL, 15 July 1964, [1964] ECR 585.
32. The Bundes Verfassungs Gericht stressed that it did not give up jurisdiction, but rather it would not exercise it so long as the EC would efectively protect fundamental rights. Judgment of the Bundes Verfassungs Gericht, So Lange II, Bverfge 73, 339; 3 CMLR 225 (1987).
33. The Commission advocated the "So Lange approach" in the instant case. The ECJ did not expressly adopt the approach in its judgment, nor did it reject it, ECJ Kadi Judgment, paras 318-326.
34. See B. Fassbender, "Targeted Sanctions Imposed by the UN Security Council and Due Process Rights: A Study Commissioned by the UN Office of Legal Afairs and Follow-up Action by the United Nations", in IOLR 3 (2006), 437-485, and the Report by the Watson Institute, Brown University on "Strengthening UN targeted sanctions through clear and fair procedures", UN Docs. A/60/887 and S/2006/331.
35. In its eighth report, the Analytical Support and Sanctions Monitoring Team submitted on the issue of an independent review panel that "it is dificult to imagine that the Security Council could accept any review panel that appeared to erode its absolute authority to take action on matters affecting international peace and security, as enshrined in the UN Charter", UN Doc. S/2008/324, para. 41.
36. Admittedly, this distinction becomes more complicated in case the Security Council directly identifies individuals that should be subjected to sanctions in a Resolution as it did with Usama bin Laden in UN Doc. S/RES/1390 (2002)
37. or in an Annex to a Resolution as it did with a number of Iranians who were said to be involved in Iran's nuclear and/or ballistic missile programmes, UN Doc. S/RES/1737 (2006).
38. UN Doc. A/62/891 - S/2008/428, 2 July 2008.
39. See Art. 21 of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, 13 December 2007, not yet in force; CIG 14/07 (3 December 2007); 2007 O.J. (C 306).