On September 3, the European Court of Justice delivered an unprecedented and stunning blow to the international terrorism sanctions regime by annulling the EU freezing of assets imposed on Yassin Al Kadi and Al Barakaat International Foundation pursuant to a UN Security Council Resolution (ECJ Press Release and ECJ ruling.pdf).
While intervening countries had raised the “absolute lack of jurisdiction of the (Court) to carry out any review of resolutions of the Security Council”, the Court claimed an indirect competence based on the fact that the UN Security Council Resolution was implemented by EU regulations, and therefore subject to the Court review. The Court added that because the sanctions were not an “act directly attributable to the United Nations as an action of one of its subsidiary organs (…) or an action falling within the exercise of powers lawfully delegated by the Security Council”, no international principle excluded the “judicial review of the internal lawfulness of the (EU) regulation in the light of fundamental freedoms.”
To establish its competence, the Court argued that “an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system”. It follows, according to the Court, that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights.”
Therefore, and despite its statement that “the review of lawfulness thus to be ensured by the Community judicature applies to the Community act intended to give effect to the international agreement at issue, and not to the latter as such”, the Court nevertheless reviewed the effectiveness of the UN sanctions procedures themselves, stating that the UN “re-examination procedure does not offer the guarantees of judicial protection” or that “the procedure before (the UN Sanctions Committee) is still in essence diplomatic and intergovernmental, the persons or entities concerned having no real opportunity of asserting their rights.”
Most of the Court’s critics addressed the absence of rights of defense for the designated individuals or entities in the implementation of the UN sanctions, notwithstanding the fact that member states had no latitude in this regard by virtue of the UN resolutions. Among these rights, the Court mentioned the absence of a “procedure for communicating the evidence justifying the inclusion of the names of the persons” and “for hearing those persons, either at the same time as that inclusion or later.” The Court ruled that “the principle of effective judicial protection has been infringed” and that the regulation imposed an “unjustified restriction of (the) right to property.”
Following an earlier opinion of the Advocate General to the European Court of Justice, the Court reversed the first instance ruling and decided to annul EU Council 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 in so far as it concerns Yassin Al Kadi and the Al Barakaat International Foundation. The Court provided nevertheless that its effect should be maintained for three months until the implementation of a new regulation to remedy the infringements found, because “Mr. Kadi and Al Barakaat might take steps seeking to prevent measures freezing funds from being applied to them again.”
The reasoning of the Court to establish its competence ignored or disregarded the most basic principles of normative hierarchy in international law. First, the Court wrongly defined the UN Security Council resolution as an “international agreement”. According to article 103 of the UN Charter, obligations under the Charter (especially binding decisions of the UN Security Council acting under Chapter VII), prevail over ”any other international agreement”, including a community agreement such as the establishment of the European Union. The EU, as any other regional community, is governed by the international legal order under the United Nations. As clearly stated in 1999 by UN Security Council Resolution 1267 (establishing the Al Qaeda and Taliban sanctions regime), member states have an obligation to “act strictly in accordance with the provisions of this resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement.”
In that regard, the Court main argument that the EU had established an “autonomous legal system which is not to be prejudiced by an international agreement” is a pure conceptual fiction that doesn’t find any legal basis in international law.
Faced with what in fact was a conflict of norms (the EU legal system versus the UN legal system) that may, according to international law principles, only be resolved in favor of UN decisions, the Court simply chose to avoid it by stating that “the question of the Court’s jurisdiction arises in the context of the internal and autonomous legal order of the Community”.
The Court failed to recognize that EU sanctions were in no way “autonomous”, but the direct result of the “binding effect” of the decisions of the UN Security Council taken under Chapter VII of the UN Charter. The best proof of the artificial construction of the Court was provided by the Court itself when it had to review the UN sanctions mechanism and procedures to determine the effectiveness of the rights of defense of the designated individuals and entities, thus recognizing that the EU was only implementing an international obligation which procedures were international in essence, not national. As evidenced in 2005 by the Court of First Instance of the European Communities in the Kadi case, the UE “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.” By reviewing the UN sanctions procedures, the ECJ exceeded its own jurisdiction, limited to the “interpretation or validity of a provision of Community law”, and conventions or measures implementing such provisions (Article 35 of the Treaty on European Union).
In failing to acknowledge the primacy of obligations under the UN Charter and in allowing itself to reverse UN sanctions, the Court followed a dangerous judicial policy trend toward the fragmentation of international law, in a way that could fundamentally jeopardize the global uniform application of UN sanctions and the coherence of the international legal system.
In trying to assert the unrealistic legal autonomy of the European legal system through an unrestrained conception of the human rights, the primary effect of this ruling is to undercut everything positive that the UN Security Council has tried to achieve in preventing and combating terrorism.
The ECJ ruling raises several legal and practical questions. Although it does not immediately affect each EU member state’s individual obligation as member of the UN, to enforce UN Security Council Resolutions, European states will be facing an obvious conflict of law if no new regulation is passed within 3 months.
At the same time, it’s hard to figure out how the UN Security Council will conceive the framing of a specific due process mechanism outside the scope of the UN legal framework without opening the way to similar claims from other regional or national entities, and thus endangering the coherence and uniformity of the entire UN sanctions regime.
As far as legal questions are involved, the UN Security Council could decide to request the advisory opinion of the International Court of Justice on this issue. According to Article 96.1 of the UN Charter “the General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”. This procedure could provide a clear legal framework for the uniform implementation and enforcement of the UN terrorism sanctions mechanism and prevent similar challenges to the sanctions regime that will now inevitably arise from other states outside the European Union.