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


Richard Sál said...

Silent enim leges inter arma

'in times of war, the law falls silent'

Even the romans managed to figure it out.

luis peraza said...

Being on a blacklist is always a bad thing. Nobody knows what criteria are based for formulating and rarely made public. The fight against terrorism has led national and international agencies to the two most representative of the international community, the United Nations and the European Union to draft them and to provide them with substantial and serious effects.
An interesting and controversial phenomenon that contributes to international justice but also weakens if not applicable under international law is the possibility that a committee, known by the number 1267 1999 and request of the Security Council, enter into a blacklist individuals and institutions allegedly linked to terrorism. The consequences of being included (there are currently about 360 individuals and about 120 companies or organizations) are really pernicious, since it requires all States in the international community, as they have been compulsorily taken under Chapter VII of the Charter of the United Nations, which will prevent them from travelling and freeze all their financial resources and banking, and finally establishing an arms embargo.

His most serious shortcoming is that not mentioning the party, not give it the right to a hearing and there is no possibility of appeal. It is also true that they would hardly appear before this committee on a voluntary basis in New York suspected of having ties with Al-Qa'ida, Bin Laden and the Taliban wherever they are found. Qualified this list system by their detractors as a dangerous and continuing erosion of fundamental rights and freedoms, as well as a discrediting of the international fight against terrorism, the European Union develops a procedure virtually identical equally open to criticism. Both procedures breach seriously the European Convention on Human Rights which guarantees, like most of the constitutions of the world, the right to a fair trial and the right to be heard.

As decided in law the Court of First Instance of the European Union in its ruling Yusuf September 2005, "the powers of sanction that the Security Council has in the exercise of responsibility for the maintenance of peace should be used when respect for international law and, in particular, the purposes and principles of the United Nations. International law also allows there to be a limit at the beginning of the binding effect of the sanctions of the Security Council: they must respect the fundamental provisions peremptory Right international imperative. Otherwise, they will not be mandatory or to the states, members of the United Nations or the European Community. "

Leaving the list is complicated because the affected neither seek nor can argue anything in his favour. It is the country of origin which must be requested and unanimity in the Security Council. No compensation is provided for cases of mistaken inclusion on the list. To make it a reliable procedure outlined would require at least the right to be heard, an opportunity to appeal through a court of the United Nations or an advocate of fines, or the possibility of an obligation to protect diplomatic or national investigation of the country where is original. The States guarantors of the fundamental rights of every human being to develop some form of national appeal before an international sanction such that it lacks the slightest guarantee of a fair trial.

The secrecy and the violation of fundamental rights remains a common feature of these blacklists. These systems show a dirty war on behalf of the international community that could lead to an indictment sustainable terrorism from international agencies

On the same day that UN sanctioned three citizens of Kuwait 16 january 2008 by including them on a blacklist for allegedly participating in the financing of Al Qaeda, there was a hopeful sign. The attorney general of the Court of Justice of the European Communities, Poiares Maduro, drafted a proposal for a ruling, non-binding for judges but with traditional persuasive authority, which recommended the cancellation of a regulation issued by the EU Council thanks to which the funds of anyone can be freeze who is suspected of having links with a terrorist.

In his view, the Community courts can control measures taken by the EU aimed at implementing resolutions of the Security Council of United Nations. Moreover, he rejects the alleged political nature of the issue and deepens the need for judicial scrutiny because of the high risk to public safety and by the strong pressures for measures that restrict individual rights. At these times, the Community Courts must exercise extreme care of its rule of law. The European Court of First Instance ruled against in the same case and at a lower level, but also noted the absence of an international court that can prosecute the Security Council resolutions of the UN, whose struggle against terrorism, embodied in the public interest essential for the maintenance of international peace and security, triumphed in his battle with the individual right to be heard.

On the other hand, the ever fighter MEP Marty, who uncovered the scandal of secret CIA prisons in Europe and the flights being made stopovers at European airports en route to torture in a third country, has requested the revision of procedure blacklists that violate human rights, are based on mere suspicion and are completely unrelated to the fact that injustice is the best ally of terrorism.

Marty comes to affirm that States must implement these sanctions violate their obligations under the European Convention on Human Rights, and encourages national and European courts to provide remedies necessary to the victims. The procedure minimum includes receive adequate information out the charges against him, be heard and be able to defend itself, able to appeal expeditiously to an impartial body that would be able to amend or annul the decision and to be compensated in the event of violation of a right.

Although the movement for transparency and due process only enjoy discreet impetus, Europe can be the model to be followed by United Nations. A model that puts the dignity of man, even an alleged terrorist, as a backbone and engine of the whole performance.

Valentina Azarov said...

Thank you Luis, it was a pleasure to read your detailed contribution.

I agree with you. It is indeed a moment for Europe to step up and take a leading role in an ideological fight that should not be dehumanized and desensitized by the political and racial discourse by which it is currently surrounded. If the latter are contagious and they will only bring the rights and values institutions back to their initial paralysis, based on the empire of law and the repressive ways our society instrumentalizes for its economic pursuits.

This brings me back to the point I perused through in my original post. It saddens me to witness two parallel, interdependent but by no means the same, issues intermeddling with each other. The ideological aside, this is a question of institutional heirarchies and a certain analogous situation to the mechanisms of checks and balances that take role in such scenarios and restore the equilibrium where it has been lost - in the present case, for instance, where a regional institution is cornered in such a way that it is unable to respond in any other way but by rejecting the authority of indeed the most powerful international body.

This allows me to further make the point on a legal policy basis that the current miscoordination and absence of any operative network between the regional systems (i.e. African, Inter-American, European, Arab etc) is making us lose out on quite a lot of what we could have been doing so far, pertaining both to the political but mainly to the legal enforcement of instruments of an international scope of application.

Standing up against the CIA is not (contrary to common belief) standing up against the Security Council, at least in theory and not in practice. I cannot imagine what would happen if indeed this would be the case here and the ECJ decides to annul the Regulation based on the Resolution. In practice, possibly not much, but this would set an abhorrent precedent perverting the validity of all foundational doctrines of international law and eschew it into a dark isolation cell; this would promise to disable its remaining working limbs.

I wonder, however, what is thought of a scenario where the ECJ would present itself with a right to polish or perfect international legal instruments such as the resolutions issued under Chapter VII of the UN Charter. Is there any difference between review and rejections and can one not say that there should be, as I not above, a mechanism internal to the UN system that continuously coordinates and consults the regional jurisdictions in case of such bold and far-reaching decisions that it would expect to be implemented in a particular manner. In this light, if the storm indeed passes, we need to think about the prospects of such a mechanism and the overall importance of promoting cooperation between international and regional bodies, namely where the latter become the ones to implement them.

albert venn dicey said...

The Kadi case can seriously stir up the blood in any lawyer's veins. It's so interesting. But equally interesting is the Madellin case, currently pending before the USSC. The interplay between international and domestic legal orders, and between different levels of domestic legal orders - state and federal, and between diferent branches of goverment - executive and judicial - it's all there. I eagerly awaiting for a decision in both cases.

albert venn dicey said...

Yesterday the USSC handed down its Maddelin opinion. I don't wanna attempt to summarize it, but I wanna say that If I were to write the Kadi judgment, I would pay great attention and indeed cite Chief Justice Roberts majority opinion. One point running throughout the opinion, but not expressly stated in the Madellin opinion, is that UN is not a world government, as the Court of First Instance in practice held in itsKadi judgment