The kadi case: Towards a more substantive hierarchy in international law?

International Organizations Law Review

Volumn 5, Issue 2, 2008, Pages 323-327

  Wessel, Ramses A ^a  

^a UNIVERSITY OF TWENTE   (Netherlands)

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EID: 72449209769     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237408X412925     Document Type: Review

References (8)

1. ECJ, Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 3 September 2008, para. 327.
2. See for a recent analysis also S. Griller, "International Law, Human Rights and the European Community's Autonomous legal Order: Notes on the European Court of Justice Decision in Kadi", EUConst 4:3 (2008), 528-553.
3. Respectively EU Common Position 2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaeda organisation and the Taliban and other individuals, groups, undertakings and entities associated with them, OJ L 139/4, 29.5.2002; and Regulation (EC) No. 881/2002 imposing certain specific restrictive measurements directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, OJ L 139/9, 29.5.2002.
4. Resolution 1267 (1999) provides that all the States must, in particular, "freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorised by the Committee on a case-by-case basis on the grounds of humanitarian need" (para. 4b).
5. CFI, Cases T-304/01, Yusuf and Al Barakaat International Foundation v. Council and Commission and T-315/01, Kadi v. Council and Commission, 21 September 2005.
6. See on these cases earlier in this journal: R.A. Wessel, "Editorial: The UN, the EU and Jus Cogens", IOLR, 2006, 1-6.
7. Paras 190-191 of the Yusuf judgment.
8. See para. 375: "Having regard to those considerations, the effects of the contested regulation, in so far as it includes the names of the appellants in the list forming Annex I thereto, must, by virtue of Article 231 EC, be maintained for a brief period to be fixed in such a way as to allow the Council to remedy the infringements found, but which also takes due account of the considerable impact of the restrictive measures concerned on the appellants' rights and freedoms." The only action taken was not by the Council itself, but by the Commission, which on 28 November 2008 (5 days before the deadline) adopted Regulation (EC) 1190/2008 (OJ L 322/25, published 2.12.2008, one day before the deadline). In this decision the Commission claims that it has communicated the narrative summaries of reasons provided by the UN Al-Qaeda and Taliban Sanctions Committee, to Mr. Kadi and to Al Barakaat International Foundation and given them the opportunity to comment on these grounds. The comments received from Mr. Kadi and Al Barakaat formed a reason for the Commission to conclude on a justified listing.