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 Opiniojuris.com)