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Kadi and the Role of the Court of Justice of the European Union in the International Legal Order
Published online by Cambridge University Press: 27 October 2017
Abstract
This chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision in Kadi and the forthcoming Kadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do in Kadi II is adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2013
References
1 Joined Cases C-402/05 and C-415/05 P Kadi and Al Barakaat v Council and Commission [2008] ECR I-6351, hereinafter Kadi (CJEU); on appeal from Case T-315/01 Kadi v Council and Commission, Judgment of the Court of First Instance, 21 September 2005, OJ 2005/C/281/32, hereinafter Kadi (CFI).
2 Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [2008] OJ L322/25.
3 On appeal from Case T-85/09 Kadi II v Commission, Judgment of the General Court of European Communities [2010] EUECJ T-85/09, [2011] 1 CMLR 24, 30 September 2010, [50]–[52], hereinafter Kadi II (GC).
4 Ibid [135]. Although sanctions mandated against Mr Kadi were lifted in October 2012 by the Security Council and although his name no longer features on the list of suspected terrorists, the Court is unlikely to reject to hear Kadi’s claim since other individuals who are in a similar situation are eventually likely to bring the same challenge before the Court. Sooner or later, the Court will therefore have to address the question of the extent of the protection of individuals’ rights in the context of terrorism cases.
5 Security Council Resolutions 1267 (1999) and 1333 (2000) and 1390 (2002), which provided for exemptions to the sanctions regime.
6 UN Security Council, ‘Eighth Report of the Monitoring Team pursuant to resolution 1526 (2004) and extended by resolutions 1617 (2005) and 1735 (2006)’ S/2008/324, para 40.
7 Opinion of AG Maduro in Case C-402/05 P Kadi (CJEU) (n 1) [37].
8 Much like the then Court of First Instance (CFI, now the General Court) did in the initial Kadi decision.
9 Ziegler, KS, ‘Strengthening the Rule of Law, but Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights’ (2009) 9 Human Rights Law Review 288 CrossRefGoogle Scholar; Griller, S, ‘International 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 CrossRefGoogle Scholar; Besson, S ‘European Legal Pluralism after Kadi’ (2009) 5 European Constitutional Law Review 537 CrossRefGoogle Scholar; cfSabel, and Gerstenberg, O, ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’ (2010) 16 European Law Journal 511 CrossRefGoogle Scholar; Payandeh, M and Sauer, H, ‘European Union: UN Sanctions and EU Fundamental Rights’ (2009) 7 International Journal of Constitutional Law 306 CrossRefGoogle Scholar; Cannizzaro, E, ‘Security Council Resolutions and EC Fundamental Rights: Some Remarks on the ECJ Decision in the Kadi Case’ (2009) 28 Yearbook of European Law 593 CrossRefGoogle Scholar; Murkens, JEK, ‘Countering Anti-constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat’ (2009) 11 Cambridge Yearbook of European Legal Studies 15 CrossRefGoogle Scholar.
10 Regulation (EC) No 337/2000 of 14 February 2000 concerning a flight ban and a freeze of funds and other financial resources in respect of the Taliban of Afghanistan [2000] OJ L43/1; Regulation (EC) No 467/2001 of 6 March 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, and repealing Regulation (EC) No 337/2000 [2001] OJ L67/1. 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-Qaida 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 imposed specific restrictive measures directed against certain persons on the list. By Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, 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 and repealing Regulation (EC) No 337/2000 [2001] OJ L277/25. Kadi was added, with others, to the Annex I to that regulation.
11 Kadi also challenged the competence of the Community institutions to freeze individuals’ assets under provisions of the EC Treaty, which I leave aside for reasons of brevity.
12 UN Security Council, ‘Second Report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to resolution 1526 (2004) concerning Al-Qaida and the Taliban and associated individuals and entities’ S/2005/83, para 58.
13 UN Security Council (n 6) para 40.
14 UN Security Council, ‘Tenth Report of the Monitoring Team pursuant to resolution 1526 (2004) and extended by resolution 1822 (2008)’ S/2009/502, para 45; UN Security Council (n 6) para 41.
15 At most, what the Court could review in this context is the compatibility of the measures—both European and indirectly international—with jus cogens norms. Having found no such violation, the CFI upheld the EU Regulations.
16 In this sense, the CJEU’s review was also internal because it followed its previous case law, namely its decision in Bosphorus, where the Court reviewed the EU Regulation not-withstanding the fact that the Regulation implemented the Security Council Resolution. As in Bosphorus, the CJEU does not distinguish between regulations that implement Security Council Resolutions and all other regulations. Case C-84/95 Bosphorus v Minister for Transport, Energy and Communications and others [1996] ECR I-3953.
17 Al-Qadi v The State, Turkish Council of State, First Instance decision, 4 July 2006, UN Doc S/2007/132, ILDC 311 (TK 2007).
18 A, K, M, Q and G v HM Treasury [2008] EWHC 869 (Admin); Hay v HM Treasury [2009] EWHC 1677 (Admin).
19 Al-Qadi v The State (n 17) 39 [8], later overturned by the Board of Administrative Appeals of the Council of State, ILDC 311 (TK 2007).
20 Canadian Charter of Rights and Freedoms, Constitution Act of 1982, s 6(1).
21 Al-Jedda [2007] UKHL 58.
22 See HM Treasury v Mohammed Jabar Ahmed and others (FC); HM Treasury v Mohammed al-Ghabra (FC); R (Hani El Sayed Sabaei Youssef ) v HM Treasury [2010] UKSC 2 [145] (Lord Phillips) in relation to the common law right to property and access to courts, whose scope is different from well-defined ECHR rights.
23 Ibid [183] (Lord Rodger); United Nations Act 1946 (c 45) allows the Executive to undertake any measure that is ‘necessary or expedient’ to give effect to the relevant sanctions resolutions.
24 The Oxford English Dictionary ‘s definition of ‘municipal’ leaves no question of its relatedness to the ‘state’ and its ‘domestic law’.
25 Gowlland-Debbas, V, ‘Implementing Sanctions Resolutions in Domestic Law’ in Gowlland-Debbas, V (ed), National Implementation of United Nations Sanctions—A Comparative Study (Leiden, Martinus Nijhoff Publishers, 2004) 34 Google Scholar.
26 Ibid 38.
27 There are wide arrays of possibilities in adopting the international obligation into domestic law. In relation to the Security Council Resolution 1267 list, Angola and Belarus provide for automatic incorporation as part of the domestic legal order; Argentina, Brazil, Cyprus, Liechtenstein and Russia provide for incorporation by statute or governmental decree; Australia, Canada, Finland, Iceland, New Zealand, Portugal, Singapore, Slovakia and Switzerland achieve the same by enabling legislation which is used to incorporate the UN Charter or international sanctions regimes. Only in Vietnam is incorporation not needed because the list provides sufficient factual information on the basis of which legal action can be taken (Reports Submitted to the Committee Established under Resolution 1267 (1999) of the UN Security Council Pursuant to paragraphs 6 and 12 of Resolution 1455 (2003) S/AC.37/2003/(1455)).
28 Bianchi, A, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 European Journal of International Law 881, 895CrossRefGoogle Scholar.
29 In Argentina, Belgium, France, Japan, the Netherlands, Poland, Switzerland and the US, where international law is the law of the land and no transformation is required, the question is whether the international decision is sufficiently precise and complete and intended to become immediately operative at a domestic level. In Belgium, for example, the courts have on occasion indicated that some decisions of the Security Council have a self-executing character, and in Poland, Security Council Resolution 692 (1991) establishing the UN Compensation Commission appears to have been given direct effect. See Gowlland-Debbas (n 25) 40.
30 Under Security Council Resolutions 827 (1993) and 955 (1994), which require states to take any measure necessary under domestic law to comply with requests for assistance and orders issued by trial chambers, an order issued by the International Criminal Tribunal for the former Yugoslavia ICTY on 24 May 1999 calling on Germany for the freezing of the assets of Slobodan Miloševic´ and associated persons was implemented through an EC regulation.
31 Gowlland-Debbas (n 25) 47.
32 Security Council Resolution 253 (1968) on Southern Rhodesia, for example, contained specific provisions on territorial coverage, yet a French decree of 23 August 1968 prohibited trading ‘throughout the customs territory’ (territoire douanier français), whilst the resolution only limited it to the imported commodities and products from Southern Rhodesia ‘enjoyed by the port or other place where they are imported or stored’.
33 The implementation of Security Council Resolution 1483 (2003), para 22, relating to Iraqi petroleum and natural gas by the USA (US Executive Order 13303).
34 The Special Rapporteur to the Commission on Human Rights noted that this caveat is crucial. See ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ E/CN.4/2006/98, para 47.
35 For example, Liechtenstein indicates in its Report under Security Council Resolution 1267 that it will introduce into its criminal code a ‘terrorist group’ offence: ‘The inclusion of this offence will criminalize mere participation in a terrorist group as a member.’ See Report of Liechtenstein to the Security Council Committee Established Pursuant to Resolution 1267 (1999) S/AC.37/2003/(1455)/52, 5. The Australian Criminal Code enables the government to list specific organisations for the purpose of specified terrorist offences: ‘The effect of this is to criminalise a range of activities associated with those organisations, including recruitment, membership and the provision of support.’ See Report of Australia Pursuant to Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/13, para 11.
36 Judgment of 9 October 1998, Court of Appeals of Hesse, 49 Entscheidungssammlung der Verwaltungsgerichtshofs 60.
37 In this context, courts also often check whether the domestic implementing organ has the competence to undertake implementation or whether it has acted outside its powers; see, eg, Medellin v Texas 552 US 491 (2008), also raised and discussed by the CFI and the CJEU in Kadi. Yet, since legislators usually give the implementing organ extensive leeway—eg, United Nations Act 1946 which allows the executive to undertake any measure that is ‘necessary or expedient’ to give effect to the relevant sanctions resolutions—the ultra vires argument often needs to be coupled with contravention of another law. C Greenwood, ‘United Kingdom’ in V Gowlland-Debbas (n 25) 600; Case C-124/95 R v Her Majesty’s Treasury ex parte CentroCom Srl [1997] ECR 81.
38 Hay v HM Treasury (n 18).
39 This is similar to the ECHR/EU situation in Bosphorus, where Member State have not had any discretion in terms of implementing EU law. Bosphorus Hava Yollari Turizm v Ireland App No 45036/98 (ECtHR, 30 June 2005) [155]–[156].
40 Especially when decisions impose particular measures against individuals, such as the freezing of assets. See Gowlland-Debbas (n 25) 34.
41 Reinisch, A, International Organizations before National Courts (Cambridge, Cambridge University Press, 2000) 84 ff, 127 ffCrossRefGoogle Scholar.
42 Ibid 289; Manderlier v United Nations and Belgian State, Brussels Court of Appeal, 15 September 1969, 69 ILR 139.
43 In this way, the immunity doctrine itself works as a distancing device, preventing the court from adjudicating on the international institution’s actions.
44 Raz, J, ‘On the Authority and Interpretation of Constitutions’ in Alexander, L (ed), Constitutionalism: Philosophical Foundations (Cambridge, Cambridge University Press, 1988) 190 Google Scholar; Baker v Carr 369 US 186 (1962), 267 (Frankfurter), dissenting: ‘such feeling must be nourished by the Court’s complete detachment in fact, and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements’.
45 Raz (n 44) 245; McCrudden, C, ‘Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Right’ (2000) 20 OJLS 499 CrossRefGoogle Scholar, 502, citing Raz.
46 Raz (n 44) 190.
47 J Frowein and N Krisch, ‘Germany’ in V Gowlland-Debbas (n 25) 233, 257 referring to the Judgment of 9 October 1998, Court of Appeals of Hesse (n 36) 60.
48 Abdelrazik v Canada 2009 FC 580, [2010] 1 FCR 267 [3].
49 If the court does draw the distinction, it has to abstain or find the measure legal in order not to challenge the international institution. In the Dorsch Consult case, the then CFI found that the alleged damage suffered due to non-payment by Iraq for the construction of an expressway in retaliation to the imposition of economic sanctions could not, in the final analysis, be attributed to the EC regulation implementing the UN sanctions, but to the Security Council Resolution 661 (1990) imposing sanctions on Iraq. Having established that the measure originated with the international institution, the CFI then ruled that EU law did not envisage the compensation the individuals had sought, nor was it contemplated at the international level. Effectively, therefore, individuals were left without a remedy. See Case T-184/95 Dorsch Consult Ingenieurgesellschaft v Council and Commission [1998] ECR II-667.
50 Kadi II (GC) (n 3) [116], emphasis added.
51 Ibid [114].
52 Bianchi (n 28) 884: ‘to provide an evaluation of the implementation measures of relevant SC resolutions almost inevitably also entails an assessment of the latter’; Tzanakopoulos, A, ‘Domestic Court Reactions to UN Security Council Sanctions’ in Reinisch, A (ed), Challenging Acts of International Organizations before National Courts (Oxford, Oxford University Press, 2010)Google Scholar.
53 Bianchi (n 28).
54 Ibid 895.
55 Abdelrazik v Canada 2009 FC 580, [2010] 1 FCR 267 [160].
56 Sayadi and Vinck v Belgium in UN Security Council, ‘Third Report of the Monitoring Team pursuant to resolution 1526 (2004)’, S/2005/572, 48-9, paras 3–4; Sayadi and Vinck, Communication No 1472/2006, UN Human Rights Committee, CCPR/C/94/D/1472/2006.
57 In the end, it was precisely the information provided by other countries that prevented the Committee from according with Belgium’s request to delist the couple in question. They were finally delisted on 20 July 2009 (UN Press Release SC/9711 of 21 July 2009).
58 The Canadian Charter postdates many of the international treaties and in some areas provides for less protection than is guaranteed on the international level. Cf International Covenant on Civil and Political Rights (ICCPR), art 14 and Canadian Charter, s 10 in relation to the right to counsel.
59 References to regional instruments cannot be equated to references to international law since the former often impose more stringent standards.
60 Abdelrazik (n 55) [51] and [53]; however, note that these references are not in relation to the freedom of movement clause which was at stake in the case (and against which the Canadian action was evaluated), but were in relation to natural justice guarantees as mere obiter dictum. In fact, in the end, Zinn J held that ‘I find that properly interpreted the UN travel ban presents no impediment to Mr Abdelrazik returning home to Canada’: ibid [129].
61 Waldron, J, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346, 1364 ffCrossRefGoogle Scholar.
62 Cook v Sprigg [1899] AC 572 (HL).
63 Kingdom of Spain v Christie, Manson and Woods [1986] 1 WLR 1120 (ChD), 1124E–F (Sir Nicholas Browne-Wilkinson V-C).
64 Secretary of State in Council of India v Kamachee Boyee Sahaba (1859) 13 Moo PCC 22 (Lord Kingsdown).
65 Higgins, R, Problems and Process: International Law and How We Use it (Oxford, Clarendon Press, 1995) 206 CrossRefGoogle Scholar.
66 Diggs v Schultz (n 26).
67 I leave aside the argument that international judges on the court are mostly national judges and that some have argued that their decision making may suffer from democratic deficit. See CA Bradley, ‘The Federal Judicial Power and the International Legal Order’ 2006 Supreme Court Review 59, 104.
68 Baker v Carr (n 44) 217.
69 Scharpf, FW, ‘Judicial Review and the Political Question: A Functional Analysis’ (1965–66) 75 Yale Law Journal 517, 560 Google Scholar.
70 Mara’abe and Ord v Prime Minister of Israel HCJ 7957/04, ILDC 157 (IL 2005) [33]–[72].
71 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports 136.
72 Mara’abe (n 70) [74].
73 Beit Sourik Village Council v The Government of Israel HCJ 2056/04, 58(5) PD 807.
74 UN Charter, art 92; ICJ Statute, art 1.
75 Beit Sourik (n 73).
76 Sanchez-Llamas v Oregon 548 US 331 (2006).
77 LaGrand (Germany v United States of America) [2001] ICJ Reports 466; Avena (Mexico v US) [2004] ICJ Reports 12.
78 Breard v Greene 523 US 371 (1998); Medellin v Dretke 544 US 660 (2005); Medellin v Texas (n 37).
79 Young, EA, ‘Institutional Settlement in a Globalizing Judicial System’ (2005) 54 Duke Law Journal 1143, 1166Google Scholar.
80 Sanchez-Llamas (n 76) 356.
81 Ibid 335, 357.
82 Ibid 357.
83 Marbury v Madison 5 US 137 (1803), 177.
84 Massaro v US 538 US 500 (2003), 504.
85 Sanchez-Llamas (n 76) 357, emphasis added.
86 Marbury v Madison (n 83), cited by Sanchez-Llamas (n 76) 334.
87 Medellin v Texas (n 37) 520.
88 Sanchez-Llamas (n 76) 350, 356.
89 Medellin v Texas (n 37) 519.
90 Ibid 493, citing American Law Institute, Third Restatement of the law, the foreign relations law of the United States (1986), §1, Reporters’ Note 4, Comment b, 595.
91 Michaels, R, ‘Recognition and Enforcement of Foreign Judgments’ in Wolfrum, R (ed), Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press, 2009)Google Scholar; Lowenfeld, A and Silberman, L, Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute (Philadelphia, American Law Institute, 2006)Google Scholar.
92 Michaels (n 91).
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94 The standard against which they evaluate cannot be a standard of the rendering or recognising court; instead, it is an autonomous standard. See Michaels (n 91) 7.
95 Briggs, A, ‘Which Foreign Judgments Should We Recognise Today?’ (1987) 36 ICLQ 240 CrossRefGoogle Scholar.
96 Sanchez-Llamas (n 76) 333, citing Breard v Greene 523 US 371 (1998), 375.
97 Medellin v Texas (n 37) 522.
98 Kadi (CJEU) (n 1) [291].
99 Ibid [294].
100 Ibid [299].
101 Ibid [300] and [316].
102 Ibid [326].
103 Council of Canadians v Canada (Attorney-General) Case 01-CV-208141, 8 July 2005, Ontario Superior Court of Justice, Carswell Ontario Cases 2005, 2973, [41] and [43].
104 Opinion of AG Bot, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi II, 19 March 2013 [71].
105 Ibid [75].
106 Ibid [80], emphasis added.
107 Ibid [71] and [78].
108 Ibid [71].
109 Ibid [85], emphasis added.
110 Ibid [76], emphasis added.
111 Ibid, emphasis added, referring to art 220(1) TFEU and the CJEU’s judgment in Case C-130/10 Parliament v Council [2012] ECR I-0000.
112 Ibid [77].
113 Case T-228/02 OMPI [2006] ECR II-4665.
114 UN Security Council (n 12) para 58.
115 Ibid.
116 UN Security Council (n 6) para 40.
117 UN Security Council, ‘Tenth Report’ (n 14) para 45; UN Security Council (n 6) para 41.
118 UN Security Council (n 12) para 50.
119 UN Security Council, ‘Ninth Report of the Monitoring Team pursuant to resolution 1526 (2004) and extended by resolution 1822 (2008)’ S/2009/245, para 23.
120 Ibid, para 18.
121 Ibid, para 28.
122 Ibid, para 23.
123 Ibid, para 28.
124 Ibid, para 29.
125 Ibid.
126 Shany, Y, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907, 921–22CrossRefGoogle Scholar.
127 UN Security Council (n 6) para 46.
128 UN Security Council (n 12) para 56.
129 UN Security Council, ‘Tenth Report’ (n 14) para 42.
130 UN Security Council (n 6) para 41.
131 UN Security Council (n 119) para 29.
132 Ibid, para 29.
133 Damrosch, LF, Enforcing International Law through Non-forcible Measures (1997) 269 Recueil des Cours de l’Academie de Droit International de la Haye 9 Google Scholar, 156: ‘Assuming that the standards under United States constitutional law are at least as high as what international law requires, a judicial decision under constitutional rule would bring about full compliance with the international rule. No question of “enforcing international law” needs to arise.’
134 UN Security Council, ‘Tenth Report’ (n 14) para 41.
135 Tushnet argues that a dialogue needs to be established therefore about what the law means: M Tushnet, ‘Weak-Form Judicial Review and “Core” Civil Liberties’ (2006) Harvard Civil Rights-Civil Liberties Law Review 1, 3 and 17.
136 In his recent book, Connor Gearty is very critical of the approach suggested by Bot, AG, labelling it as ‘neo-democracy’: Gearty, C, Liberty and Security (Cambridge, Polity Press, 2013)Google Scholar.
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