The Consequences of Kadi: Where the Divergence of Opinion between EU and International Lawyers Lies?

• DOI: http://doi.org/10.1111/j.1468-0386.2010.00547.x
• Published date: 01 March 2011
• Author: Juan Santos Vara
• Date: 01 March 2011

eulj_547252..274

The Consequences of Kadi: Where the

Divergence of Opinion between EU and

International Lawyers Lies?

Juan Santos Vara*

Abstract: The divergence of opinion between EU and international lawyers as to the

consequences of the Kadi/Al Barakaat judgment is likely to remain for the foreseeable

future. While international lawyers focus their analysis on the constitutional role of the

UN Charter in international law, EU lawyers seek to assert the autonomy and primacy

of the EU treaties. The aim of this article is to analyse where the divergence between

the two perspectives can be found. The judgment of the European Court of Justice

cannot be interpreted as questioning the authority of the Security Council in discharging

its duties for the maintenance of international peace and security. The consequences of

the General Court’s case-law as regards the EU autonomous list of terrorists should be

borne in mind when faced with the implications of Kadi/Al Barakaat. It is not justif‌ied

that the level of protection to the individuals or entities affected by targeted sanctions

should depend on the legal framework in which the restrictive measures have been

adopted (UN or EU), or on the margin of discretion left to the EU Member States by

the Security Council.

I Introduction

On 3 September 2008, the European Court of Justice (ECJ) issued its judgment in the

Kadi/Al Barakaat case, a ruling which has far-reaching consequences not only for the

EU and its Member States, but also for the entire UN system of targeted sanctions.1

The ECJ held that the Community courts must ensure the review of the lawfulness of

all Community acts in the light of fundamental rights protected by the EU legal order

as general principles of Community law, ‘including the review of Community measures

which...aredesigned to give effect to the resolutions adopted by the Security Council

* Associate Professor of Public International Law, University of Salamanca, Spain. The present article has

benef‌ited from the support of the research project: ‘Las relaciones entre la UE y NU: hacia la defensa del

multilateralismo ef‌icaz’, DER2008-05419/JURI, Spanish Ministry of Science and Innovation. The author

was a visiting fellow from January to June 2008 at the Watson Institute for International Studies, Brown

University, with the f‌inancial support of the José Castillejo Program of the Spanish Ministry of Science

and Innovation (Resolución de 16 de mayo de 2007 de la Secretaría de Estado de Universidades e

Investigación, BOE núm. 129 de 30 de mayo de 2007). The author wishes to express his gratitude to Sue

Eckert, Senior Fellow at the Watson Institute for her enlightened comments on targeted sanctions.

1Joined Cases C-402/05P and C-415/05P, Kadi and Al Barakaat v Council [2008] ECR I-6351, not yet

reported.

European Law Journal, Vol. 17, No. 2, March 2011, pp. 252–274.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

under Chapter VII of the Chapter of the United Nations’.2The court concluded that,

in the light of the actual circumstances surrounding the inclusion on the list of persons

and entities whose funds are to be frozen, the appellants’ claims that the contested

regulation violates the right to be heard, the right to judicial review and the right to

property are well founded, and, consequently, the court annulled the Council regula-

tion insofar as it concerns the appellants.3

The implementation of the Security Council resolutions calling upon the UN

Member States to freeze the funds and other f‌inancial resources of individuals and

entities designated by the Committee established pursuant to Security Council Reso-

lution 1267 (1999) has to overcome political and legal obstacles in several States.4Even

though the States consider that the use of targeted sanctions is essential in order to

combat effectively the f‌inancing of terrorism, many of them have expressed their

concerns regarding the lack of protection of human rights.5The encroachment on the

right to a fair trial and effective remedy therefore lies at the heart of the debate.6The

present situation of the victims of such sanctions is unacceptable from the perspective

of the international protection of human rights. In the absence of an effective review

mechanism at the UN level, some of the listed individuals and entities have initiated

legal proceedings before national and regional courts.7

The aim of this contribution is to analyse the role of EU courts in assuring compli-

ance with human rights. The implications of theses cases go beyond the context of the

f‌ight against the f‌inancing of terrorism activities. The article will start by brief‌ly recall-

ing the legal challenges to the 1267 Sanctions Committee’s list before the General

Court in Part II, and Part III will be devoted to analysing the judgments of the

General Court regarding the EU autonomous list of terrorists, with the aim of high-

lighting those aspects which distinguish this line of case-law from its previous

2The court followed the Opinions of Advocate General Poiares Maduro delivered on 16 January 2008,

Case C-402/05P, Kadi v Council and Commission, and on 23 January 2008, C-415/05P, Al Barakaat

International Foundation v Council and Commission. As both Opinions are almost identical, reference will

only be made henceforth to Al Barakaat.

3Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specif‌ic restrictive measures

directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and

the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods

and services to Afghanistan, strengthening the f‌light ban and extending the freeze of funds and other

f‌inancial resources in respect of the Taliban of Afghanistan, [2002] OJ L139/9 (the contested regulation).

4Seventh Report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to Security

Council Resolutions 1617 (2005) and 1735 (2006) concerning Al-Qaida and the Taliban and Associated

Individuals and Entities (UN Doc S/2007/677), paras 8, 10 and 26.

5The Monitoring Team has recognized that the States seem less enthusiastic about the sanctions regime

than they were in the past. In some cases, the States consider that the proceedings that lead to listing and

delisting are not fair (ibid, paras 8, 10 and 26).

6See B. Fassbender, Targeted Sanctions and Due Process (20 March 2006) (f‌inal), available at http://

www.coe.int/t/e/legal_affairs/legal_co-operation/Public_international_law; I. Cameron, The European

Convention on Human Rights, Due Process and United Nations Security Counter-Terrorism Sanctions,

Committee of Legal Advisers On Public International Law (CAHDI), Doc. CAHDI (2006) 22, available

at http://www.coe.int/cahdi.

7The measures implementing the decisions of 1267 Sanctions Committee have been challenged in, at the

very least, Belgium, Italy, Switzerland, the Netherlands, Pakistan, Turkey, UK, USA and EU. See

Seventh Report of the Analytical Support and Sanctions Monitoring Team, n 4 supra, pp 40–42 and

Annex to Eight Report of the Analytical Support and Sanctions Monitoring Team pursuant to Resolution

1735 (2006) concerning Al-Qaeda and the Taliban and Associated Individuals and Entities (UN Doc

S/2008/324, 14 May 2008).

March 2011 The Consequences of Kadi

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