EU Law and UN Law in Conflict: The Kadi Case

Max Planck Yearbook of United Nations Law

Volumn 13, Issue , 2009, Pages 141-181

  Hilpold, Peter ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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EID: 85180993615     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/18757413-90000038     Document Type: Article

References (111)

1. 2 In the following the term “EU law” is used as an overarching concept comprising also EC law.
2. 3 See on this subject A. Nollkaemper, Rethinking the Supremacy of International Law, Amsterdam Centre for International Law, Working Papers 2009, available at: .
3. 4 Case 26/62, 1963 ECR 1. See G. Harpaz, “Judicial Review by the European Court of Justice of ‘Smart Sanctions’ against Terror in the Kadi Dispute”, European Foreign Affairs Review 14 (2009), 65 et seq. See on the notion of supremacy of EC law created by the ECJ in the cases Van Gend en Loos and, more specifically, Costa/ENEL, U. Haltern, Europarecht – Dogmatik im Kontext, 2005, 265 et seq. and B. De Witte, “Retour à ‘Costa’ – La primauté du droit communautaire à la lumière du droit international”, Revue trimestrielle de Droit Européen 20 (1984), 425 et seq.
4. 5 See M. Shaw, International Law, 2008, 45 et seq.
5. 6 See M.C. Bassiouni, “The Proscribing Function of International Criminal Law”, Yale Journal of World Public Order 9 (1983), 163 et seq.; P. Carter, “International Criminal Law and Human Rights”, in: F. Butler (ed.), Human Rights Protection: Methods and Effectiveness, 2002, 135 et seq.; L. Caflisch, “The Rome Statute and the European Convention on Human Rights”, HRLJ 23 (2002), 1 et seq.
6. 7 For an extensive examination of the issue of access to justice in international law see F. Francioni (ed.), Access to Justice as a Human Right, 2007.
7. 8 See M. Craven, “Humanitarism and the quest for smarter sanctions”, EJIL 13 (2002), 43 et seq.
8. 9 The situation is different where terrorists manage to find a conniving government or outrightly to penetrate the government as it was the case with Al Kaida in Taliban governed Afghanistan.
9. 10 In a certain sense this argument calls to mind the so-called Bush doctrine arguing for the existence of a right to pre-emptive self-defence. See P. Hilpold, “Gewaltverbot und Selbstverteidigung – Zwei Eckpfeiler des Völkerrechts auf dem Prüfstand”, JA 38 (2006), 234 et seq. In both cases it is argued that the evolution of the modern weapons technology redefines automatically the nature of the appropriate (and admissible) defence. The obstacles these two situations meet are, however, quite different. Preemptive self-defence finds its natural border in Article 2 para. 4 of the UN Charter and precisely there, where the limited exemption introduced by Article 51 of the Charter no longer applies. Targeted sanctions find their limit, as will be shown extensively in this contribution, in human rights. As far as these human rights are considered to form a cornerstone of a specific constitutional order again conflicts of jurisdiction and sovereignty between UN law and the order of the respective entity can arise.
10. 11 See A. Shehabaldin, “Economic sanctions against Iraq: human and economic costs”, International Journal of Human Rights 3 (1999), 1 et seq.; L. Forlati, Les sanctions économique en droit international, 2004; A. Borghi, “La législation de l’Union européenne en matière de sanctions internationales et sa compatibilité avec les droits fondamentaux”, Revue trimestrielle des Droits de l’Homme 19 (2008), 1095 et seq.
11. 12 This was the dilemma with the invasion of Iraq where – beyond the false accusation that Saddam Hussein would support international terrorism or plan the production of weapons of mass destruction – it cannot be denied that the ruling elite perpetrated abhorrent crimes and remained totally unimpressed and untouched by international sanctions. In present days a similar problem is arising with Zimbabwe under Robert Mugabe.
12. 13 See S/RES/917 (1994) of 6 May 1994.
13. 14 See S/RES/1127 (1997) of 28 August 1997.
14. 15 See J. Almquist, “A Human Rights Critique of European Judicial Review: Counter-Terrorism Sanctions”, ICLQ 57 (2008), 303 et seq. (306).
15. 16 Committees of such a kind have been instituted before. In fact, the far-reaching sanctions imposed against Iraq after the invasion of Kuwait made it appear necessary to create a body to oversee the implementation of these measures. To this end, by S/RES/661 (1990) of 6 August 1990, a Sanctions Committee, composed of all Security Council Members, was created. See M.N. Shaw, International Law, 6th edition, 2008, 1243.
16. 17 The Sanction Committees with listings procedures which are currently operative can be found on the homepage of the UN Security Council. These are the Committees for Sierra Leone (S/RES/1132 (1997) of 8 October 1997), Al Qaida and the Taliban (S/RES/1267 (1999) of 15 October 1999), Iraq (S/RES/1518 (2003) of 24 November 2003), Liberia (S/RES/1521 (2003) of 22 December 2003), Democratic Republic of the Congo (S/RES/1533 (2004) of 12 March 2004), Cote d’Ivoire (S/RES/1572 (2004) of 15 November 2004), Sudan (S/RES/1591 (2005) of 29 March 2005), Lebanon/Syria (S/RES/1636 (2005) of 31 October 2005) and North Korea (S/RES/1718 (2006) of 14 October 2006).
17. 18 See for more details, I. Johnstone, “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit”, AJIL 102 (2008), 275 et seq. (295).
18. 19 See Opinion of 16 January 2008 in the Case C-402/05 P.
19. 20 Ibid., para. 47.
20. 21 See, for example, Nikolaos Lavranos in several contributions such as UN Sanctions and Judicial Review, Nord. J. Int’l L. 76 (2007), 1 et seq. (17); E. Cannizzaro, Machiavelli, the UN Security Council and the Rule of Law, Global Law Working Paper 11/20905 and Almquist, see note 15, 309.
21. 22 Adopted on 7 November 2002, as amended on 10 April 2003, 21 December 2005, 29 November 2006, 12 February 2007, and 9 December 2008. These Guidelines now reflect the improvements introduced by S/RES/1822 (2008) of 30 June 2008.
22. 23 Para. 2 lit. (b).
23. 24 Para. 3 lit. (a).
24. 25 As is known, at present, with regard to WTO law, an intense discussion takes place on the role of consensus for decision-making. See only C.D. Ehlermann/ L. Ehring, “Decision-Making in the World Trade Organization”, JIEL 8 (2005), 51 et seq.
25. 26 See para. 6 (c).
26. 27 See para. 6 (d).
27. 28 See para. 7 on “de-listing”. On the Committee’s website a standard-form for de-listing can be found.
28. 29 Ibid.
29. 30 See para. 9 (a).
30. 31 See para. 9 (b).
31. 32 It is to be remembered that before the CFI a further analogous case was considered, the Yusuf case and the findings of the CFI were in both cases practically identical. As the Yusuf case was discontinued the ECJ ruled only on Kadi and therefore the underlying legal problem is now prominently identified by this latter name.
32. 33 See Commission Regulation (EC) No. 2062/2001 of 19 October 2001 amending Regulation No. 467/2001 (OJ 2001 L 277, 25). According to article 10(1) of Regulation 467/2001 the Commission can amend or supplement Annex I on the basis of determinations made by either the Security Council or the Sanctions Committee.
33. 34 See S/RES/1455 (2003) of 17 January 2003.
34. 35 See also Common Position 2003/140/CFSP.
35. 36 See the CFI judgment of 21 September 2005 in Kadi, Case T-315/01, 2005, ECR II-3649, para. 60 et seq.
36. 37 Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commission, 2005, ECR II-3533.
37. 38 See E.U. Petersmann, “Internationale Wirtschaftssanktionen als Problem des Völkerrechts und des Europarechts”, Zeitschrift für Vergleichende Rechtswissenschaft 80 (1981), 1 et seq. and C.D. Ehlermann, “Communautés européenes et sanctions internationales – une réponse à J. Verhoeven”, RBDI 18 (1984), 96 et seq. (109).
38. 39 See only T. Bruha, “Handelsembargo gegen Argentinien durch EWGVerordnung?”, Deutsche Verwaltungsrechtliche Blätter 1982, 674 et seq. (677). On this controversy see also J.H.J. Bourgeois, “Commentary to Art. 113 ECT”, in: H. Groeben/J. Thiesing/C.D. Ehlermann (eds), Kommentar zum EU-/EG-Vertrag, 3rd edition 1999, 802 et seq.
39. 40 Ibid., para. 127 and 128.
40. 41 See the ECJ judgment in Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat of 3 September 2008, para. 197 et seq.
41. 42 Ibid., para. 226.
42. 43 Ibid., para. 216.
43. 44 As is known, for article 308 ECT to apply, a further condition must be given, namely that the respective measure relates to the operation of the common market. Do targeted sanctions taken by the Member States possibly affect the common market in a negative way? This is hard to anticipate but the answer in the affirmative by the ECJ in para. 230 of the judgment seems to be, on a whole, correct, when it states that the multiplication of national measures could have a particular effect on trade between Member States, especially with regard to the movement of capital and payments. Different national measures could furthermore create distortions of competition. The respective danger described by the ECJ seems to be not only hypothetical but real.
44. 45 See the Opinion by Advocate General Poiares Maduro, C-402/05 P, 16 January 2008, para. 13.
45. 46 See “The Supreme Court and the War on Terrorism”, ASIL 101 (2007), 339 et seq.; “Counter-Terrorism Strategies, Human Rights and International Law: Meeting the Challenges”, NILR 54 (2007), 571 et seq.; Lady Justice Arden, “Human Rights and Terrorism”, in: S. Breitenmoser et al. (eds), Human Rights, Democracy and the Rule of Law, Liber amicorum Luzius Wildhaber, 2007, 21 et seq.; O. Fiss, “The War Against Terrorism and the Rule of Law”, in: ibid., 1239 et seq. In the US, as is known, a watershed decision was Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
46. 47 See Justice Arden, see note 46, 38.
47. 48 See J. Delbrück, “Commentary to Art. 25 of the UN Charter”, in: B. Simma (ed.), The Charter of United Nations, Vol. I, 2002, 452 et seq., para. 4 and E. Suy/ N. Angelet, “Commentary to Art. 25 of the UN Charter”, in: J.P. Cot/ A. Pellet, La Charte des Nations Unies, 2005, 909 et seq. (912 et seq.). See also the following passage in the ICJ’s 1971 Namibia Advisory Opinion: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council”, (ICJ Reports 1971, 16 et seq. (53)). See on the interpretation of Security Council Resolutions in general M.C. Wood, “The Interpretation of Security Council Resolutions”, Max Planck UNYB 2 (1998), 73 et seq.
48. 49 See only S/RES/1822 (2008) of 30 June 2008, where it is stated that the Security Council, “[a]cting under Chapter VII of the Charter of the United Nations, [...] [d]ecides that all States shall take the measures as previously imposed by paragraph 4(b) of resolution 1267 (1999), paragraph 8(c) of resolution 1333 (2000), and paragraphs 1 and 2 of resolution 1390 (2002) [...]”.
49. 50 Joined Cases 21/72 to 24/72, ECR 1972, 1219, para. 11.
50. 51 Judgement of the CFI in Case T-315/01, Kadi, 21 September 2005, 195.
51. 52 See, in this regard, P. Hilpold, Die EU im GATT/WTO-System, 3rd edition 2009, 112 et seq.
52. 53 See C-308/06, Intertanko, Judgment of 3 June 2008, para. 48.
53. 54 Ibid., para. 49.
54. 55 This is also the prevailing view in literature. See R. Bernhardt, “Commentary to Art. 103 of the UN Charter”, in: Simma, see note 48, 1292 et seq. (para. 9) and J.M. Thouvenin, “Commentary to Art. 103 of the UN Charter”, in: Cot/ Pellet, see note 48, 2133 et seq. (2135).
55. 56 See Case T-315/01, Kadi, Judgment of 21 September 2005, para. 224.
56. 57 Ibid., para. 230.
57. 58 See Bernhardt, see note 55, who refers to the erga omnes-concept (which is, as is known, close to, though not identical with jus cogens): “The present author [Rudolf Bernhard] holds the opinion that in case of manifest ultra vires decisions of any organ, such decisions are not binding and cannot prevail in case of conflict with obligations under other agreements”, ibid., para. 23. He continues, however, with the following admission: “But the borderline is difficult to draw”, ibid.
58. 59 See the Opinion by Advocate General Maduro in Case C-402/05 P, Kadi, of 16 January 2008, para. 31.
59. 60 Ibid., para. 35.
60. 61 Both in the Opinion by the Advocate General as in the judgment by the ECJ we find several acknowledgments of the importance of international law. This does not, however, amount to much more than to lip-service. See A. Gattini, “Joined cases C-402/05 P & 415/05 P, Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council and Commission, judgment of the Grand Chamber of 3 September 2008”, CML Rev. 46 (2009), 213 et seq. (226).
61. 62 See the Judgment in Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat, 3 September 2008, para. 303.
62. 63 This new attitude strongly reduces the status of pre-accession agreements in comparison to the previous jurisprudence. In particular, in Centro-Com, the ECJ had admitted that provisions of such agreements can even trump primary law if the respective agreement requires such a derogation from the respective Member State. For N. Lavranos the “very foundations of the Community legal order” constitute, therefore, “supra-constitutional law”. See N. Lavranos, The impact of the Kadi-judgment on the international obligations of the EC Member States and the EC, 5 (on file with the author).
63. 64 Which was, as mentioned above, characterised by a will to follow a “moderate monism”.
64. 65 See the Judgment in the Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat, 3 September 2008, para. 301.
65. 66 Ibid., para. 307.
66. 67 Ibid., para. 304.
67. 68 Christian Tomuschat has pointedly reformulated the old German dictum “Am Deutschen Wesen soll die Welt genesen” (which stands for the old imperialistic attitude of the German empire) to “Am Europäischen Wesen soll die Welt genesen”. See C. Tomuschat, “Challenging EU Counter-Terrorism Measures through the Courts”, handout at the workshop organised by Marise Cremona, Francesco Francioni and Sara Poli on 19 December 2008 at the European University Institute (manuscript on file with the author).
68. 69 See Nollkaemper, see note 3, 25.
69. 70 Marjorie Beauley has forcefully written about a danger of an “application particulière des normes internationales” and of a “morcellement du droit international”. See M. Beauley, “Les Arrêts Kadi et Al Barakaat International Foundation, Réaffirmation par la Cour de Justice de l’Autonomie de l’Ordre Juridique Communautaire vis-à-vis du Droit International”, Revue du Marché commun et de l’Union européenne 524 (2009), 32 et seq. (39). For a different view according to which it is the UN which has “lost sight of human rights”, see K. Schmalenbach, “Bedingt kooperationsbereit: der Kontrollanspruch des EuGH bei gezielten Sanktionen der Vereinten Nationen”, Juristenzeitung 64 (2009), 35 et seq. (41).
70. 71 See the Opinion by Advocate General Maduro in Case C-402/05 P, Kadi, of 16 January 2008, para. 38.
71. 72 Ibid., para. 39.
72. 73 In the OMPI case (Case T-228/02, Organisation des Modjahedines du peuple d’Iran, 2006, ECR II-4665) the CFI, with the judgment of 12 December 2006, annulled a Council decision implementing Regulation (EC) 2580/2001 on specific restrictive measures adopted autonomously and directed against certain persons and entities with a view to combating terrorism. Absent any “circumscription of powers” by UN measures the right to a fair hearing came to a full bearing.
73. 74 See P. Malanczuk, Akehurst’s Modern Introduction to International Law, 1997, 5 et seq.
74. 75 See G.W.F. Hegel, Grundlinien der Philosophie des Rechts, 1821, 330 et seq.
75. 76 See R.A. Falk, “A Half Century of Human Rights – Geopolitics and Values”, in: R. Falk et al. (eds), Human Rights, Vol. I, 2008, 51 et seq.
76. 77 In this context the growing number of so-called “National Human Rights Institutions”, in: Europe has to be mentioned. See G. de Beco, “National Human Rights Institutions in Europe”, Human Rights Law Review 7 (2007), 331 et seq.
77. 78 As is known, this term was coined by Frieder Roessler when he tried to characterise the function of GATT law with respect to the protection of economic rights guaranteed by national constitutions. For an extensive elaboration on this concept see also E.U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law: International and Domestic Foreign Trade and Foreign Trade Policy in the United States, the European Community and Switzerland, 1991.
78. 79 See i.a. A. Verdross, “Forbidden Treaties in International Law”, AJIL 31 (1937), 571 et seq. (572) who looked for the moral foundations of this order: “[...] never can the immoral contents of a treaty really become law no matter how often it may borrow the external form of the law”, ibid., 577.
79. 80 The literature on jus cogens is very extensive. See, i.a., L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law, 1988; G. Gaja, “Jus cogens beyond the Vienna Convention”, RdC 172 (1981), 271 et seq. (283); S. Kadelbach, Zwingendes Völkerrecht, 1992 and P. Picone, “La distinzione tra norme internazionali di jus cogens e norme che producono obblighi erga omnes”, Riv. Dir. Int. XCI (2008), 5 et seq.
80. 81 The practical implementation of this principle encounters A. Paulus, “Jus Cogens in a Time of Hegemony and Fragmentation – An Attempt at a Reappraisal”, Nord. J. Int’l L. 74 (2005), 297 et seq. who refers also to a much-quoted phrase by Ian Brownlie according to which “the vehicle does not often leave the garage”, ibid., 330.
81. 82 See for these community interests B. Simma, “From Bilateralism to Community Interest in International Law”, RdC 250 (1994), 217 et seq.
82. 83 See, in this context, the attempts to give life to the new concept of a “responsibility to protect”. See, i.a., P. Hilpold, “The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law,” Max Planck UNYB 10 (2006), 35 et seq.; E.C. Luck, “Der verantwortliche Souverän und die Schutzverantwortung”, Vereinte Nationen 56 (2008), 51 et seq. and C. Focarelli, “La dottrina della ‘responsibilità di proteggere’ e l’intervento umanitario”, Riv. Dir. Int. 91 (2008), 317 et seq.
83. 84 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 8 April 1993, ICJ, Provisional Measures, Sep. Op. Lauterpacht, ICJ Reports 1993, 440, para. 100.
84. 85 See on this subject also A.M. Weisburd, “The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina”, Mich. J. Int’l L. 17 (1995), 1 et seq.
85. 86 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007.
86. 87 These states were France, the Netherlands, the United Kingdom which strongly opposed recourse to the principle of jus cogens during the proceeding before the ECJ. See the ECJ judgment in Kadi und Al Barakaat, paras 262-268.
87. 88 As is known, the ECJ stated in Racke peremptorily that the “European Community must respect international law in the exercise of its powers.” See Case C-162/96, Racke, judgment of 16 June 1998, ECR I-3655, para. 45 (referring to Case C-286/90 Poulsen and Diva Navigation, 1992, ECR-I-6019, para. 9). As a consequence, the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances were found being binding upon the Community institutions and as forming part of the Community legal order, ibid., para. 46. See on this issue P. Palchetti, “Può il giudice comunitario sindacare la validità internazionale di una risoluzione del Consiglio di sicurezza?”, Riv. Dir. Int. XCI (2008), 1085 et seq.
88. 89 See also on this issue the recent contribution by G. de Búrca, “The European Court of Justice and the International Legal Order after Kadi”, available at: . De Búrca compares the ECJ’s approach in Kadi with that of the Supreme Court in Medellín and argues as follows: “Even as Europe’s political institutions assert the EU’s distinctive role as a global actor committed to multilateralism under international law, and even as a future amendment to the EU Treaties would enshrine the ‘strict’ commitment to international law in its foundational texts, the European Court has chosen to use the much-anticipated Kadi ruling as the occasion to proclaim the internal and external autonomy and separateness of the EC’s legal order from the international domain, and the primacy of its internal constitutional values over the norms of international law.” Ibid., 52. For some, this conflict between EU law and UN law reflects also a deeper conflict between the United States and the EU as the new UN sanctions policy can be seen as a “manifestation of the Bush administration’s firm approach towards international terrorism”, Harpaz, see note 4, 83.
89. 90 See, in particular, C. Tomuschat, “Case law - Court of Justice Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission”, CML Rev. 43 (2006), 537 et seq. who examined in detail whether the targeted sanctions violated fundamental rights in the European Union. Although also critical towards several parts of the CFI pronouncement he finally shared, in substance, the CFI’s view.
90. 91 See, in particular, para. 35 of his opinion, where he writes, i.a. the following: “[...] when the risks to public security are believed to be extraordinarily high, the pressure is particularly strong to take measures that disregard individual rights, especially in respect of individuals who have little or no access to the political process. Therefore, in those instances, the courts should fulfil their duty to uphold the rule of law with increased vigilance. Thus, the same circumstances that may justify exceptional restrictions on fundamental rights also require the courts to ascertain carefully whether those restrictions go beyond what is necessary”.
91. 92 It is interesting to note that Secretary-General Kofi Annan in his report In Larger Freedom (Doc. A/59/2005 of 21 March 2005) denied the existence of a conflict between these two goals: “It would be a mistake to treat human rights as though there were a trade-off to be made between human rights and such goals as security or development. We only weaken our hand in fighting the horrors of extreme poverty or terrorism if, in our efforts to do so, we deny the very human rights that these scourges take away from citizens”. (ibid., para. 140).
92. 93 See P. Mengozzi, “The European Union balance of powers and the case law related to EC external relations”, in: M. Monti et al. (eds), Economic Law and Justice in Times of Globalization, FS Carl Baudenbacher, 2007, 207 et seq. (216 et seq.).
93. 94 This appears to be an interesting admission and it becomes even more interesting when it is associated with Community jurisprudence denying, in principle, direct effect to GATT/WTO law for the same motive. As is known, in their judgments the Community Courts take a different position. They take recourse to the reciprocity argument and the diplomatic character of the GATT/WTO system based on the principle of negotiations for the mutual benefit. In a certain sense, Prof. Mengozzi is vindicating writers like Ernst-Ulrich Petersmann who has been arguing since the beginning of this controversy that denial of direct effect to GATT/WTO law is politically motivated and does not constitute a dogmatic necessity. This writer, however, is firmly convinced that there is no need to refer to a political doctrine in order to deny direct effect of GATT/WTO law as the structure of this law stands in the way of such a proposition. See extensively P. Hilpold, Die EU im GATT/WTO-System, 2009.
94. 95 See para. 34 of the Opinion.
95. 96 This is to paraphrase the dictum by Christian Tomuschat cited in note 68.
96. 97 See Lavranos, see note 63.
97. 98 Ibid., 9 et seq.
98. 99 See Nollkaemper, see note 3, 4.
99. 100 This can be noticed, for example, in the context of the European development policy where the attempt to impose a policy of conditionality (for example by advocating the principle of good governance) meets with considerable international resistance. See, for example, P. Hilpold, “EU Development Cooperation at a Crossroads: The Cotonou Agreement of 23 June 2000 and the Principle of Good Governance”, European Foreign Affairs Review 7 (2002), 53 et seq.
100. 101 As Marjorie Beulay writes, “la Cour cherche à nouveau à défendre jalousement son monopole juridictionnel, face à un tribunal de première instance trop enclin à soumettre sa compétence au droit international”. See M. Beulay, “Les arrêts Kadi et Al Barakaat International Foundation – Réaffirmation par la Cour de Justice de l’Autonomie de l’Ordre Juridique Communautaire vis-à-vis du Droit International”, Revue du Marché commun et de l’Union européenne 524 (2009), 32 et seq.
101. 102 See I. Johnstone, “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit”, AJIL 102 (2008), 275 et seq. (297).
102. 103 Ibid., referring also to the strong criticism voiced by the European Council in 2006 against the 1267 mechanism.
103. 104 See A.M. Slaughter, “A Global Community of Courts”, Harv. Int’l L. J. 44 (2003), 191 et seq.
104. 105 This, at least, transpires from the Advocate General’s opinion when he writes at para. 54: “Had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order”.
105. 106 It was argued that too much leniency by the ECJ in the Kadi case could have prompted the ECHR, on the basis of the Bosphorus judgment, to reassert its jurisdiction on areas for which the competence has been transferred to the EU. On the other hand, in the Behrami and Saramati cases, the ECHR declined jurisdiction over acts attributable to the UN (via UNMIK and KFOR) even if the respective persons were agents of Member States of the Convention. It is therefore open as to how the ECHR had decided in the Kadi case. See T. Giegerich, “The Is and the Ought of International Constitutionalism: How far Have We Come on Habermas’s Road to a Well-Considered Constituzionalization of International Law”?, German Law Journal 10 (2009), 31 et seq. (55 et seq.). The ECHR will, however, have the occasion to express itself in a similar case, the Nada case. Youssef Nada Ebada, an Italian businessman of Egyptian origin and working mainly in Switzerland has found himself on the UN sanctions list which was implemented by Switzerland. National investigations in Italy and in Switzerland could not corroborate the allegations of financing of terrorist activities. As Swiss authorities saw no legal possibility to withdraw the sanctions against him since they were imposed by the UN, Mr. Nada has now filed a claim before the ECHR.
106. 107 See Doc. S/PV.6034, 9 December 2008.
107. 108 Ibid., p. 15: “These challenges should put the Security Council on notice that it cannot proceed as if it were business as usual”.
108. 109 Ibid. See also J.M. Thouvenin, “Le Choc du Droit Communautaire et du Droit International, encore l’Arrêt Kadi”, Revue du marché commun et de L’Union européenne 524 (2009), 30 et seq.
109. 110 See Commission Regulation (EC) No. 1190/2008, OJ L 322/25 of 2 December 2008.
110. 111 Perhaps the final compromise will not be very distant from the one found by the CFI which took recourse, as demonstrated, to the political question doctrine, using as a limitation the jus cogens principle. The formal concepts to be used for the qualification of this compromise will, however, have to be different ones.
111. 112 The uncertainties surrounding the concept of jus cogens have been made evident, i.e., by the allegation by Beulay, see note 101, 38 that the CFI had disregarded the statement made by the ICJ in the Armed Activities case (Democratic Republic of the Kongo v. Rwanda, ICJ 2006, para. 64 et seq.) according to which the jus cogens principle was not constitutive of the ICJ’s jurisdiction which remained based on consent of the parties. The circumstances in Kadi were, however, clearly different since here the CFI had to decide whether this Court regained full jurisdiction on EU implementation measures if the underlying SC resolutions were to be considered as vitiated due to a contrast with peremptory norms.