After Kadi’s Turkish ruling: National Courts vs. UN Sanctions

In light of the Turkish decision unfreezing the assets of Yassin Al Kadi (see my earlier post), the European Court of Justice heard a similar case last year brought by the same Yassin Al Kadi seeking annulment of European sanctions implementing UN resolutions.

On September 25, 2005, the Court dismissed Kadi’s application and made the following reasoning as to its jurisdiction, and more generally on local courts jurisdiction to challenge decisions taken to implement UN sanctions (the judgment was appealed by Yassin Al Kadi on November 17, 2005).

The Court determined that “where, acting pursuant to Chapter VII of the Charter of the United Nations, the Security Council, through its Sanctions Committee, decides that the funds of certain individuals or entities must be frozen, its decision is binding on the members of the United Nations”. In implementing these sanctions, the Court stated that states have “acted under circumscribed powers, with the result that they had no autonomous discretion. In particular, they could neither directly alter the content of the resolutions at issue nor set up any mechanism capable of giving rise to such alteration”. The Court determined therefore that “any review of the internal lawfulness of the contested regulation (…) would therefore imply that the Court is to consider, indirectly, the lawfulness of those resolutions. In that hypothetical situation, in fact, the origin of the illegality alleged by the applicant would have to be sought, not in the adoption of the contested regulation but in the resolutions of the Security Council which imposed the sanctions”. The Court decided there was no basis of international law or others law that could justify its jurisdiction to review indirectly the lawfulness of the UN sanctions, and that such jurisdiction would be incompatible with the undertaking of the member states under the UN Charter.

The Court ruled that “the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court’s judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness (…). On the contrary, the Court is bound, so far as possible, to interpret and apply that law in a manner compatible with the obligations of the member states under the [UN Charter]”. The Court determined that it was only “empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible”.

The Court highlighted the fact that “the applicant’s interest in having a court hear his case on its merits is not enough to outweigh the essential public interest in the maintenance of international peace and security in the face of a threat clearly identified by the Security Council” in accordance with the UN Charter.

In addition it’s worth mentioning that the UN has defined a set of rules, including the right for an individual or an entity to petition to be de-listed (Guidelines of the 1267 Sanctions Committee).

In no way has the UN agreed for national institutions or Courts to reconsider, contradict or violate their own international obligations derived from the UN Charter and the fundamental principles of international law.

Posted in Legal Issues, Sanctions Tagged with: , , ,

About JC Brisard

Jean-Charles Brisard

Jean-Charles Brisard is an international consultant, specialized in the financing of terrorist organizations.
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