Saturday, 26 January 2008

Maduro and the Kadi, a weapon of colossal force

The Kadi case arose from the EU Regulation transposing the UN Security Council Resolution's guidelines permitting the freezing of assets by banks belonging to persons suspected of financing or being involved in terrorist activities. The evidential threshold for such terrorist "involvement" was never concretely defined and the discretion afforded to national jurisdictions by the Regulation has been widely criticized, but matters have been exacerbated.

His means of recourse exhausted, Kadi turned to the Community arena to challenge the UK and the Council Regulation that had breached a number of his fundamental rights; namely, the right to the enjoyment of property and the right to an effective remedy. This challenge creates two concerns:

i. By challenging the Council Regulation, Kadi is challenging the Security Council's Resolution and is in fact asking the European Court to indirectly review the validity of these international provisions; and

ii. By challenging the Security Council, the European Court would question the supremacy of the UN Charter over the Treaty, avoiding particularly the authority of Article 103 and (re)asserting the Community's powers of review.

AG Maduro (in his Opinion delivered 16 January 2008) believes that the Community has the right to review the Resolution. He notes a number of eminent cases (e.g. Bosphorus, Schmidberger, Germany v Council, etc) where the European Court has trumped international and inter-state agreements in the name of human rights and the core values upheld by Article 6(1) of the Treaty (with no possible derogation through Article 307(1)).

His more provocative assertions are with regards to the relationship between the European and international legal orders. He notes that to reject the Resolution does not mean that "the Community's municipal legal order and the international legal order pass by each other like ships in the night" (para. 22 of the Opinion). However, he boldly asserts that the "relationship between international law and the Community legal order is governed by the Community legal order itself," meaning that "international law can permeate that legal order only under the conditions set by the constitutional principles of the Community" (para. 24). He notes that although this "may inconvenience the Community and its Member States in their dealings with the international stage, the application of these principles by the Court of Justice is without prejudice to the application of international rules on State responsibility" (para. 39). So, in essence, come and get us!

I am urged to draw your attention to Maduro's use of Aharon Barak's prose from the Supreme Court of Israel at para. 45:

"It is when the cannons roar that we especially need the laws … Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no “black holes”. … The reason at the foundation of this approach is not only the pragmatic consequence of the political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law, while violating it. The war against terrorism is also law’s war against those who rise up against it."

There is an ideological and institutional clash between the Security Council's Resolution and its transposition into Community law, and on the other hand, the institutional authority of the European Court of Justice to review activities undertaken by the supreme body of the 'world government' in the name of championing the virginity of human rights. Instead of separating the political discourse from the ideological struggle of humanity for the protection of "the fundamental values that lie at the basis of the Community legal other"(para. 44), they are left to meddle with each other in the same pot.

If the Court chooses to instrumentalize the 'Kadi' to perpetrate an offensive, it must be willing to pay the incommensurable price of potentially isolating the Community legal jurisdiction, or possibly worse, causing an international uprising.

A direct collision, where 27 states unanimously assert that they are first European Member States, and second, Member States of the UN, seems unlikely. At the utmost extreme, the Court may adopt Maduro's own interpretation by declaring the complimentary nature of the relationship between the two jurisdictions and conceding that "the right to judicial review by an independent tribunal has not been secured at the level of the United Nations" (para. 54).

Any thoughts or anxieties?

(See also the discussion on

Thursday, 10 January 2008

IHL - Toothless and delegalized in Jerusalem

Bush is visiting Olmert and Abbas in Jerusalem and Ramallah these days to engage in a series of toothless 'tittle tattle' on the jaded, politicized legal questions of Jerusalem, refugees and settlements that sit at the top of the agenda for the resolution of conflict and detangling of events in the region.

Mr. Bush declared this a “historic moment, a historic opportunity” to overcome the deep skepticism here and elsewhere that the peace efforts begun in Annapolis, Md., in November would succeed. (see

The senior official added that Israel was determined to continue building in Jerusalem, and that there was no change in the position on the issue despite the rare criticism by America's top diplomat. (see

If east-Jerusalem is not recognized as "occupied territory" under the Fourth Geneva Convention (regardless of the length of the occupation), if the right to return in international law is not afforded to the some 2 million Palestinian refugees, and if the rules of jus in bello pertaining to the conduct of the occupying power are not enforced, there is absolutely no place for soft, leaky diplomatic chatter. Or is there?

The aged state of international humanitarian law (IHL) has been a topic for debate in recent years with the emerging face of the twenty-first-century armed conflict (i.e. state against non-state actor). It's body being not only unsuitable for the traditional IHL outfit, but has further ripped this traditional outfit apart exposing its inherent deficiencies in operability.

In creating and maintaining the 'big prison', i.e. the Gaza Strip, for the past two years the Israeli authorities have been supported by American officials that had chosen to endorse 'national security' and 'the fight against terrorism' to negate hard rights, obligations and soft politico-legal agreements that today form the very creature of IHL and international human rights law.

Before the law is applied by both sides, even in the very denuded state in which it is found today, delegalised politics is a means for reinforcing the present state of paralysis and rejecting the validity of the fundamental aspirations of the international community for its peaceful coexistence and collective struggle against the horrors with which it is presently faced.

Thursday, 3 January 2008

International human wrongs in Kenya

The death toll is exceeding the 300s as the Kenyan people continue to fight against what was an openly rigged election process in dire hope to grab hold of what is left of their fundamental civil and political rights. The world is watching in awe.

Is this not an appropriate time to ask ourselves, the international community of state, non-state actors and individuals, a number of critical questions: where have the politico-legal norms for a fair and free election process originated (if not Western societies)? Why have the monitoring teams representing the European Union, and a considerable number of IGOs and NGOs disappeared in the midst of all this chaos? and Who is going to be the catalyst to bring about, if not at the very least support, the securing of peace in a nation found today in profound turmoil and despair.

The international system of governance has once again reaffirmed its state of utter impotence. Not even the UN Security Council reacts to the atrocities, let alone the UNHCHR and its organs. Our best bet, we seem to believe, is to leave them be altogether. Refraining from arousing even regional conversations amongst the African nations we choose to remain in our barracks, numbed by the lessons we think we should have learned from more recent humanitarian interventions. Sadly, still unable to realize that inaction and passivity is sure to secure neither us, nor humanity, a brighter, more stable and promising future.

Kenyans were praised for their utter dedication to the principles of democracy and the political process as they stood in line to the voting polls for hours. An expressive number of organizations and governmental delegations (less Pan-Africanist than expected) were on site to support the process and assure the purity of the demos (or demon in disguise) at work. A case that reminds us more recently of Nigeria and more boldly (remarking the inappropriate nature of such impossible-to-oversee puppet shows) of Iraq.

This is a very sorrowful implication of the unravelling nature of the operation of identity building that Western society has chosen to achieve through the institution of human rights, amongst others. Whose rights and where do they originate? About these we have blatantly forgotten. After all, Kenya today is a mirror of a people, reflecting the face of humanity, that 'want' to express the universal dignity bestowed upon them as human beings on account of their own humanity.