Fundamental rights in the EU after Kadi and Al Barakaat

• Author: N. Türküler Isiksel
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00522.x
• Published date: 01 September 2010
• Date: 01 September 2010

eulj_522551..577

Fundamental rights in the EU after Kadi

and Al Barakaat

N. Türküler Isiksel*

Abstract: This article takes stock of the emerging scholarship on the European Court of

Justice’s 2008 Kadi decision and seeks to make sense of the court’s apparent evasiveness

towards international law. The article argues that Kadi is best understood as an act of civil

disobedience prompted by the UN Security Council’s misapplication of foundational

principles of the international order. In turn, the court’s forceful articulation of the stakes

in this case signals a prioritisation of basic rights within the supranational constitutional

architectonic. In this respect, the ‘domestic’ constitutional implications of Kadi are just as

far reaching as its consequences for the EU’s status as an actor under international law.

I Introduction

With its 2008 Kadi and Al Barakaat (‘Kadi’) ruling,1the European Court of Justice

(ECJ) has once again thrown the European legal theory community into a state of

feverish activity. This is not surprising, given that the case in question packs an

unusually dense assortment of grand constitutional questions, implicating, inter alia,

the relationship between the EU legal order and international law, the status of fun-

damental rights norms within EU law,2the human rights obligations of the United

Nations (UN) Security Council, and the way in which the predominantly economic

mandate of the European Community links up with the foreign policy functions of the

EU.

* Assistant Professor of Political Science, Columbia University; Jean Monnet Fellow, Robert Schuman

Centre for Advanced Studies, European University Institute. I am grateful to Gráinne de Búrca for

providing me with an early draft of her inspiring essay, ‘The European Court of Justice and the Inter-

national Legal Order after Kadi’, and for patiently entertaining my questions and comments. I would also

like to thank Rachel Cichowski, Martin Staniland and the anonymous reviewers of the European Law

Journal for their helpful comments on drafts of this article.

1ECJ, Joined Cases C-402/05P and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International

Foundation v Council of the European Union and Commission of the European Communities [2008] ECR

I-6351.

2At the time of writing, reference to ‘EC’ or ‘Community law’ was still current in the court’s off‌icial

documents as well as much of the legal theory community, even though the Community has been formally

subsumed within the EU with the entry into force of the Lisbon Treaty. With this change in mind, the

article refers for the most part to the ‘EU’, except when distinguishing between the Community and the

EU becomes necessary for reasons of historical or legal accuracy, and follows the court’s usage in regard

to Kadi.

European Law Journal, Vol. 16, No. 5, September 2010, pp. 551–577.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The present article is among the second wave of commentary on the ECJ’s appellate

ruling in Kadi, insofar as it engages with a few distinctive interpretations that observers

have advanced in its immediate wake.3While most studies have latched onto Kadi’s

implications for the way in which the EU f‌its within the international legal order,

however, I will focus on the equally profound signif‌icance of this ruling for the EU’s

internal constitutional set-up.4My central claim will be that the ECJ’s logic in Kadi

signals a prioritisation of the status of fundamental rights norms within the suprana-

tional constitutional architectonic. I will argue that this is a welcome adjustment in

favour of the normative aspirations of European integration over and above its market

telos.

In making this claim, I will f‌irst address a sceptical account of the Kadi decision. In

an inf‌luential article, Gráinne de Búrca has countered the easy triumphalism of much

post-Kadi commentary by arguing that the ECJ’s machinations about fundamental

rights are peripheral to the Kadi ruling. In her view, the true signif‌icance of this decision

lies in the strong unilateralist tenor it exposes in the court’s vision of international

order.5In order to convince readers of Kadi’s salutary consequences for fundamental

rights in the supranational legal order, I will begin by responding to de Búrca’s cogent

articulation of the null hypothesis, so to speak, according to which rights concerns were

merely incidental to the court’s reasoning. Against this interpretation, I hope to show

that the ECJ’s evasiveness towards international law in Kadi should be regarded not as

lawless unilateralism, but as the product of a paradoxical but genuine concern for

upholding the rule of law both within the EU and within the international legal order.

The argument of the article is advanced in four steps. First, I will brief‌ly revisit the

constitutional status of fundamental rights within the European legal order prior to

Kadi, so as to provide the ex ante context for my claim. Second, I will present de Búrca’s

circumspect reading of the ruling, and show why it is not adequately addressed by

any of the existing interventions in the literature. Thirdly, I will offer an alternative

3Notable interventions directly concerning the ECJ’s Kadi ruling include G. de Búrca, The European Court

of Justice and the International Legal Order after Kadi, Fordham Law Legal Studies Research Paper

No 1321313 (2009); also forthcoming in 51 Harvard International Law Journal, available at http://

papers.ssrn.com/sol3/papers.cfm?abstract_id=1321313; W. T. Eijsbouts and L. Besselink, ‘“The Law of

Laws”—Overcoming Pluralism’, (2008) 4 European Constitutional Law Review 395; S. Griller, ‘Interna-

tional Law, Human Rights and the European Community’s Autonomous Legal Order: Notes on the

European Court of Justice Decision in Kadi’, (2008) 4 European Constitutional Law Review 528; D.

Halberstam and E. Stein, ‘The United Nations, the European Union, and the King of Sweden: Economic

Sanctions and Individual Rights in a Plural World Order’, (2009) 46 Common Market Law Review 13; B.

Kunoy and A. Dawes, ‘Plate Tectonics in Luxembourg: The ménage à trois between EC law, International

Law and the European Convention on Human Rights Following the UN Sanctions Cases’, (2009) 46

Common Market Law Review 73. An equally great amount of scholarly attention has been paid to the

Court of First Instance’s Kadi and Yusuf and Al Barakaat rulings, virtually all of which is critical. See,

notably, J. Almqvist, ‘A Human Rights Critique of European Judicial Review. Counter-Terrorism

Sanctions’, (2008) 57 International and Comparative Law Quarterly 303; M. Bulterman, ‘Fundamental

Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court

of First Instance of the European Communities’, (2006) 19 Leiden Journal of International Law 753; C.

Eckes, ‘Judicial Review of European Anti-Terrorism Measures—The Yusuf and Kadi Judgments of the

Court of First Instance’, (2008) 14 European Law Journal 74; P. Eeckhout, ‘Community Terrorism

Listing, Fundamental Rights, and UN Security Council Resolution. In Search of the Right Fit’, (2007) 3

European Constitutional Law Review 183; J. Hoffman, ‘Terrorism Blacklisting: Putting European Human

Rights Guarantees to the Test’, (2008) 15 Constellations 543.

4This question is addressed brief‌ly by Halberstam and Stein, op cit n3supra, at 62–63.

5de Búrca, op cit n3supra.

European Law Journal Volume 16

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