The Kadi Case:

The International Position of the European

Union after the Ruling
Shelly Danosh
12/2009

I would like to thank my supervisor, Dr. Guy Harpaz, for his time and his readiness to advise. I
would also like to express my sincere gratitude to the Konrad Adenauer Foundation and to the
European Forum at the Hebrew University of Jerusalem for their generous support.

Table of contents
Introduction

Part One: BackgroundThe Kadi Case

The Facts and Legal Basis

The CFI Ruling (September 2005)

The Advocate Generals Opinion (January 2008)

12

The ECJ Judgment (September 2008)

15

The Main Issues of the ruling

21

Community Law vs. International Law

21

The apparent violation of Human Rights

23

Part Two: The European Union and the United Nations

26

Background, principles of action, and ideology

26

EU operations within the UN and specifically the Security Council

27

Part Three: Human Rights Law

32

Background

32

Human Rights Laws in Europe and specifically in the European Union

32

The Struggle against International Terror vs. the Protection of Human Rights

35

Part Four: Discussion

39

The Security Councils Controversial Activity

39

The ECJ and the ECtHR

43

Possible Ramifications of the ECJ ruling

44

Conclusions from the Kadi Case and the Likethe international Status of the

47

European Union
Conclusions

52

Bibliography

54

Appendixes

58

Introduction
The European Union is a new and significant actor in the international arena. In the last two decades,
the European Union has invested energy and resources in trying to minimize the gap between its
power as an economic giant and its lesser influence in the international sphere, which has affixed the
EU as a political dwarf. As a means of foreign diplomacy, the EU has opted for multilateral,
collective, action through international institutions and organizations, chiefly the United Nations.
The EU and the UN have a unique relationship, due to the fundamental difference between the
two organizations. One is a regional organization based on the transfer of national sovereignty to
independent institutions while the other is an international organization founded upon diplomatic
relations between sovereign nation-states. Therefore, the European Unions activity within the UN is
characterized by coordination between its member states and by the constant effort to form a unified
European voice.
In the last few years, in its attempt to create a common foreign and security policy, the EU has
been forced to cope not only with the different traditions and interests of member states, but also
with the discrepancy between the security it wishes to provide its citizens and the preservation of
basic human rights. Like other national governments and international entities, the EU endeavors to
find the balance between providing the utmost security for the citizens of Europe, after the series of
attacks they suffered in the years 20042006, and the moral obligation to advance, safeguard, and
respect human rights in all the areas under its powera responsibility that is a founding principle of
the European Union.
The widespread agreement between states regarding the international war against terror has
made international forums very significant in this respect. The UN, and specifically the Security
Council, has become the primary arena for discussion, decision-making, and actions regarding the
war on terror. As for the EU, the fact that it is not a member of the UN, the broadest assembly of the
worlds states, makes it even more difficult for it to have an influence on processes and policies.
This paper is an analysis of a legal case that exemplifies the above-mentioned dilemmas: war on
terror vs. human rights, how modern international law contends with supra-national entities, the EU
as a unique body within the UN, and more. This is the case of Kadi, a Muslim citizen of Saudi
Arabia, whose assets were frozenby a regulation adopted by the Council of the European Union
implementing a resolution of the United Nations Security Councilbased on the claim that he was

suspected of funding Afghan terror. Kadis appeal to the European Court of Justice, where his assets
were frozen, raised a legal discussion regarding the aforesaid dilemmas. When the Court of First
Instance rejected Kadis claim four years ago, the global atmosphere was more permissive with
respect to the accepted means in the international war on terror. The publication of the Advocate
Generals opinion in January 2008, and the final ECJ ruling in September 2008, brought renewed
debate regarding Europes obligation to human rights and its belief in the preeminence of
Community law.
The purpose of this study is to present an updated and relevant analysis that ties together a
number of topicsthe relationship between the EU and the UN, the voice of the EU within the UN
in general and in the Security Council specifically, how European law deals with the global war
against terror, and the potential infringement upon human rights. The following sections will also
explore the various decisions made by the European Courts and the trends that can be inferred from
these decisions, as well as conclusions and predictions for the future. This is in order to present the
European Unions international role after the ruling, and to assert that the ruling, in spite of its
controversial aspects, ultimately strengthens the perception of the EU as an influential international
actor.
In light of the Kadi case, this study will attempt to answer the following questions: how does the
EU act within the UN and in the implementation of UN decisions? How did the EU act in the
implementation of the sanctions regime against al-Qaeda and what dilemmas were raised in the
European Court in this regard? What position did the European Court of Justice (ECJ) assume in the
Kadi ruling, as a regional and international legal entity under the constant tension between the war
on terror and the preservation of human rights? What ramifications will the ECJ ruling have on the
relationship between the EU and the UN in general and the Security Council specificallyregarding
its influence, efficacy, implementation, etc? I wish to focus on the latter by examining the question
of whether the ruling will strengthen or weaken the international role that the EU has attempted to
adopt in the past two decades. The widespread approach among researchers holds that the court
ruling has strengthened the EU as an independent entity in the international sphere. However, recent
publications raise new voices, making this question more intriguing by asserting that the courts
ruling has distanced the EU from fulfilling its foreign policy goals and thus weakened its
international status.

This study is based on my thesis for my Master of Arts degree in European Studies. In order to
place this case in the proper context, I have used writings on EU-UN relations, a body of literature
that has expanded in recent years along with the fluctuations in the level of cooperation between the
two organizations, as compared to the literature dealing with the cooperation between the UN and
other regional organizations (I would like to note the studies of Hill, 1993; Whitman, 1998; and
Ginsberg, 1999, which provided general background relevant to my specific topic). In recent years,
Wallensteen 2005; Laatikainen 2006; and Drieskens 2007, have written on the topic. As far as the
writing in the field of international law, this case has been investigated from various angles: the
conflict between human rights and the international struggle against terror (Hoffman 2004); the study
of a unique legal process conducted by the EU by power of the community, including a broad
description of the decision in the First Instance and the appeal (Eckes, 2008; Achmed & de Jesus
Butler, 2006; de Burca, 2009); as well as the criticism directed at the Security Council (Vilda, 2006).
The distinct contribution of this study is the fusion of the numerous issues mentioned earlier and
an analysis of their intersection in the Kadi ruling. The fact that the ruling raised the aforementioned
dilemmas in the courtroom itself created a situation in which the legal tribunal had to make a
decision that was to serve as a road map for the EUs future enactment of UN resolutions
(specifically Security Council sanctions). Therefore, there is great importance in an updated analysis
of the answers provided by the court for these issues (even if it chose not to deal with certain topics
directly) and their influence on the international perception of the European Union.

Part One: BackgroundThe Kadi Case

The Facts and Legal Basis1
The employment of economic sanctions as a means of implementing international decisions is not
new in the United Nations. The most intensive known sanctions regime was that imposed on Iraq in
the 1990s, which caused the state serious economic damage. Despite the fact that the sanctions were
directed against the Iraqi government, they had a significant humanitarian impact on the citizens of
the country (causing a slowdown in the states economic activity and leading to a shortage). For one
reason or another, the

mechanism of

targeted

sanctions, directed against individual

citizens/companies, with no territorial attribution, is perceived as a smarter mode of action, being

directed against specific citizens while not hurting the economy of the entire nation or involving
innocent people (Wallensteen, 2005).
After the attacks on the American Embassy in Africa in 1998, the UN Security Council adopted
a series of decisions directed against al-Qaeda. On October 15, 1999, the Security Council adopted
Resolution 1267, condemning the ongoing use of Afghan territory for sheltering and training
terrorists, reaffirming the claim that suppression of international terrorism is essential for the
maintenance of international peace and security, and decrying the fact that the Taliban continues to
supply a safe haven for Osama bin Laden and others associated with him. In the second paragraph of
the resolution, the Council demands that the Taliban turn over Osama bin Laden to the appropriate
authorities without further delay.
In order to ensure international cooperation on this resolution, paragraph 4(b) determines that all
states must freeze funds and other financial resources, including funds derived or generated from
property owned or controlled directly or indirectly by the Taliban, as designated by the Committee
established by the Council for this purpose, and ensure that they will not be made available, by their
nationals or by any persons within their territory, to or for the benefit of the Taliban, except as may
be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need.2
In paragraph 6 of the resolution, the Security Council establishes a committee composed of
representatives from all members of the Security Council (the Sanctions Committee), which is
1

Judgment of the Court of First Instance, delivered on 21 September 2005. Case T-315/01 P: Yassin Abdullah Kadi v
Council of the European Union and Commission of the European Communities; http://curia.eu.int/jurisp/cgibin/form.pl?lang=en.
2
Resolution 1267 (1999). http://daccessdds.un.org/doc/UNDOC/GEN/N99/300/44/PDF/N9930044.pdf?OpenElement.

responsible for ensuring that states implement the steps outlined in paragraph 4 in order to define the
list of financial resources and properties, and to deliberate requests for removal from the list
(delisting).3 In a number of adjustments and amendments since 1999, different mechanisms were
added to the method of listing the names of citizens earmarked for sanctions. Resolutions 1455,
1526, 1617, 1730, 1735, and more, require states to hand over names, contact information, the details
of the case, and the individuals relationship with al-Qaeda.
In order to implement the resolution in the European Union, the Council of the European Union
(henceforth the Council or Council of Ministers), must enact it. On November 15, 1999, the
Council adopted a common position as part of the Common Foreign and Security Policy (CFSP),
regarding actions against the Taliban. Paragraph 2 of this resolution declares that the assets and
financial resources held by the Taliban abroad are to be frozen, according to the conditions set forth
by the Security Council resolution. On February 14, 2000, the Council adopted Regulation 337/2000,
which toughens the flight ban and extends the freezing of funds and other financial resources of the
Taliban. The European Unions regulations were in essence (and in form) a complete implementation
of the Security Council decisions, without additional content.
On December 19, 2000, the Security Council adopted Resolution 1333, in which it demanded
that the Taliban act according to Resolution 1267 and, specifically, stop funding terror and turn over
Osama bin Laden. The Security Council decided to toughen the flight ban and extend the freezing of
funds. The resolution insists again that states freeze the funds without delay, including the funds of
individuals who were found by the Sanctions Committee to have connections with Bin Laden. The
Security Council instructed the Sanctions Committee to prepare an updated list of individuals and
organizations that had ties with Bin Laden. The steps were to be implemented over twelve months
and at the end of this period, the Security Council would decide whether or not to prolong them.
On February 26, 2001, the Council adopted the Common Foreign and Security Policy
CFSP/2001/154, which outlined additional measures against the Taliban according to the conditions
in the UNSC resolution. On March 6, 2001, the Council adopted Regulation 467/2001 prohibiting
the export of certain goods and services to Afghanistan, strengthening the flight ban and ratifying
Regulation 337/2000 regarding the freezing of funds. All the funds that were defined by the
Sanctions Committee in appendix 1 were frozen.

The guidelines of the committees work are found at: http://www.un.org/Docs/sc/committees/1267/1267_guidelines.pdf.

On March 8, 2001, the Sanctions Committee published a list of entities and individuals whose
assets were intended to be frozen. Since then, the list has been adjusted and amended several times
(as of October 2006 the list contained 400 names). On October 19, 2001, the Sanctions Committee
published a new addition to the list, in which the name Kadi, Sheikh Yassin Abdullah appeared.
The name was also added to the regulation enacted by the European Commission following the
Committees addition.
On January 16, 2002, the Security Council decided upon a continuation of the freezing of assets
that had been decided upon in the past, stipulating that it would be reassessed in the future. In
accordance with the Security Council, the European Commission made the same decision and
adopted Regulation 881/2002 in May 2002, to which an appendix was added with Kadis name.4
The Sanctions Committee (and following it the EU institutions) allows for the cancellation of the
freezing of funds if it is determined by the appropriate authorities that those funds are essential for
fulfilling basic needs. The petition is then transferred to the Sanctions Committee where it can be
discussed and the freezing of funds cancelled. A request to the Sanctions Committee for de-listing
can only be made through the individuals nation-state, following which a decision must be reached
by a consensus of all members of the Committee. Kadi claimed that he turned to the government of
Saudi Arabia so that it would direct his petition to the Sanctions Committee and never received an
answer.

On December 18, 2001, Kadi filed a petition to the Court of First Instance, the first instance of the
European Union judicial system, seeking the annulment of the Regulation (from the first regulation
and all those following it) in all respects pertaining to him (also demanding that the EUs institutions
reimburse him for his legal expenses). He claimed that the regulation violates his rights, specifically
the right to property and the right to a fair hearing. On September 21, 2005, the CFI rejected the
4

All of the Councils decisions were based on articles 301, 60, and 308 of the treaty, written as follows:
Article 301 EC: Where it is provided, in a common position or in a joint action adopted according to the provisions of
the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to
interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take
the necessary urgent measures. The Council shall act by a qualified majority on a proposal from the Commission.
Article 60(1) EC: If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council
may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement
of capital and on payments as regards the third countries concerned.
Article 308 EC: If action by the Community should prove necessary to attain, in the course of the operation of the
common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the
Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament,
take the appropriate measures.

petition. On November 17, 2005, Kadi appealed against the Council, the Commission, and Britain
(the respondents) based on the same claims, to reverse the decision of the CFI and to annul the
Councils regulation. Kadis claims in the appeal were: first, under the articles presented by the
respondents, the Council does not have the authority to legislate regulations that violate economic
relations with individuals that are not connected to the government of a third country. Second, the
CFI was wrong in its claim that according to international law, the EUs institutions must implement
the decisions of the Security Council without having an opportunity to set up a tribunal to examine
the cases of individuals who wish to contend Security Council decisions.
On January 18, 2008, the Advocate General of the European Court of Justice, Maduro, presented
his opinion to the court. His landmark opinion undermines the CFI decision. He advises the ECJ to
reverse the CFI ruling and to annul the Councils regulation regarding anything pertaining to the
petitioner because it contradicts the EUs principles of human rights. This approach was accepted by
the ECJ, the European Unions High Court of Justice, in its final ruling on September 3, 2008.

The CFI Ruling (September 2005)5

1.

The Legal Framework of the Ruling6: The ruling begins with a presentation of the sources on

which it is based. First, article 24 of the UN Charter, which authorizes the Security Council to act on
behalf of member states on issues of international peace and security. Second, article 25 of the UN
Charter, which declares that member states are bound to carry out the decisions of the Security
Council. Third, article 48 of the UN Charter, according to which member states are required to carry
out the decisions of the Security Council (directly or indirectly through the appropriate international
agencies). Fourth, article 103 of the UN Charter, which determines that members obligations under
the UN Charter override their obligations under any other international treaties. Fifth, article 11 of
the EU Treaty, which lists the goals of the EUs common foreign and security policies. Sixth, article
301 of the EU Treaty, which permits the interruption or reduction of economic relations with one or
more third countries. Seventh, article 60(1) of the EU Treaty, which outlines the economic sanctions
that may be imposed under article 301. Finally, article 308 of the EU Treaty, according to which the

Judgment of the Court of First Instance, delivered on 21 September 2005. Case T-315/01 P: Yassin Abdullah Kadi v
Council of the European Union and Commission of the European Communities; http://curia.eu.int/jurisp/cgibin/form.pl?lang=en.
6
See Appendix 1.

Council of Ministers can undertake the necessary actions in order to attain the objectives of the
Community, regarding the common market.
2.

The Councils competency to enforce economic sanctions on individuals7: The court rules

that since the Treaty authorizes the Council to infringe upon the economic relations with third
countries in order to meet foreign and security policy objectives (Articles 60, 301, and 308 of the
Treaty are read together.), the Council is also authorized to enforce sanctions on individuals.
3.

The preeminence of UN decisions over Community law8: According to international law, UN

member states are required to comply with UNSC resolutions under the UN Charter, an international
treaty that overrides Community law, including obligations under the European Convention for the
Protection of Human Rights9 and of the EU. Even though the EU Commission is not a member of the
UN, it is still bound by the UN Charter to the same obligations as are nation-states. Therefore, the
Commission cannot stand in the way of states obligations to the UN. In addition, it must adopt
relevant regulations in order to allow the nation-states to fulfill their duties.
4.

The CFI reviews the legality of the decision10: The Commissions regulation is an

implementation of a Security Council decision. Therefore, judicial review of the regulation is in fact
a review of the Security Councils decision. UNSC decisions cannot be reviewed by the court
(including, e.g., indirect examination and examination of the implementing regulation). The court
does not have jurisdiction to examine the compliance of these decisions with the preservation of
human rights in Community law. Moreover, the court is obligated to interpret and implement the
decisions in a way that conforms to the Security Councils intentions.
However, the court does have jurisdiction to examine whether the Councils regulation (and thus
the Security Councils decision), is compliant with international laws that are considered jus
cogens11, which are paramount even to UN decisions (to all rules of international law). This is the
first time that the European court conducts such an examination.

Articles 61, 64-135 in the CFI ruling.

Articles 181-208 in the CFI ruling.
9
More details in Part Two of this paper.
10
Articles 209-231 in the CFI ruling.
11
The theoretical justification for jus cogens is that there are basic values, peremptory norms that are common to the
entire international community and cannot be violated. Thus, any instruction that contradicts jus cogens is null. The laws
that are the core of jus cogens are the prohibition of genocide, slavery and slave-trade, and torture (Shany & Ben Naftali,
2006).
8

10

5.

The rights of the petitioner protected by jus cogens12 norms: The court finds that the

Councils regulation does not violate the petitioners jus cogens rights.
The regulation allows access to funds to cover necessary expenses (including additional
expenses if a request be made to the Sanctions Committee); thus, it is evident that the objective of
freezing funds is not an inhuman or degrading procedure. There is also no confiscation of property.
According to the Universal Declaration of Human Rights (adopted by the UN in 1948), the arbitrary
freezing of funds may violate jus cogens norms. However, in this case, the process was not arbitrary
and the freezing of funds was one of many legitimate avenues pursued by the Security Council in the
war on terror (i.e., a public interest). There is no substantial or unreasonable violation of the right to
property, only a restriction in the use of that property. Furthermore, the Security Councils decision
offers the option to appeal to the Sanctions Committee. As for the right to a fair hearing, the court
emphasizes its commitment to conduct a fair preliminary trial for the individual who may be harmed
as a result of the decision. However, this procedure is invalid in this case, since the jurisdiction and
decision-making were not in the hands of EU institutions. Had there been a hearing, the EU would
not have been able to annul or amend the list. As for the Security Council, there is no law demanding
that it conduct an individual trial for individuals harmed by the resolution. Even so, the court
acknowledges the procedure that allows an individual to petition the Sanctions Committee through
their nation-state or their state of citizenship, and indicates that the purpose of this procedure is to
uphold the individuals basic human rights. In addition, the court rules that the protection of human
rights does not demand that all the evidence against the petitioner be exposed, if it may cause
security problems. Regarding the right to effective judicial review, the court examined the efficacy
and the proportionality of the regulation enacting the UNSC resolution as well as the de-listing
procedure. As mentioned, the Court found that it does not have jurisdiction to review the UNSC
resolution directly, or the Security Councils evaluation of this specific case. The decision as to
whether an individual or an organization poses a security threat is a political one that must be made
by a political entity certified by the international community for that purpose, i.e., the Security
Council. In this case, there is no legal recourse available for the petitioner. The court also mentions
that the right to a fair hearing is not absolute; the petitioners interest in having the court hear his
pleas does not override the public interest in maintaining international peace and security in the face
of a clear threat. The court points out that the option of petitioning the Sanctions Committee is a
12

Articles 201-233 in the CFI ruling.

11

reasonable procedure that is in congruence with the preservation of human rights as protected by jus
cogens norms.

Ergo, the CFI rejects all of Kadis pleas and upheld the regulation.

The Advocate Generals Opinion13 (January 2008)14

A. The legality of the regulation and the relationship between Community law and international
law15:
The first claim of the petitioner, Kadi, relates to the legality of the regulation. According to the CFI,
various articles in the EU Treaty (articles 60, 301, 308) authorize the Community to adopt the
resolution. (The various respondentsthe Council, the Commission, and Britainbase their
response on different articles in the treaties.) Even though this entails a formal legal discussion, I
would like to refer to the topic briefly since these articles serve to enhance the EUs competency to
act in the international arena and accentuate its complexity as an international actor.
The Advocate General relates to the articles on which the Council of Ministers based its
decision, i.e., the articles that allow the Council to infringe upon the economic relations of the EU
with a third country. The CFI relied on a broad interpretation of these articles that includes
individuals who reside within these third countries, thus providing a legal foundation for the
Councils regulation.
The Advocate General disagrees with the broad interpretation presented by the CFI, but
nonetheless claims that articles 60 and 301 alone provide sufficient legal foundation for its ruling. He
also mentions the need to expand the discussion regarding the breaching of fundamental rights, so
that the ruling will not be based solely on a procedural process.
The Advocate General analyzes the relationship between international law and the Community
legal order. Community law is autonomous, but it plays an active role in international law. The
Community courts carefully examine the international obligations of the Community. However,
these obligations must be reviewed in light of the conditions set forth by Community law and under
13

The Advocate General offers legal advice to judges in cases being reviewed by the European Court of Justice. It is not
compulsory to take this advice, but in the majority of rulings, the judges accept the opinion.
14
Opinion of Advocate General, Poiares Maduro, delivered on 16 January 2008. Case C-402/05 P: Yassin Abdullah Kadi
v
Council
of
the
European
Union
and
Commission
of
the
European
Communities;
http://curia.europa.eu/jurisp/cgibin/form.pl?lang=EN&Submit=rechercher&numaff=C-402/05.
15
Paragraphs 11-40 in the Advocate Generals opinion.

12

the Community legal orderthe order of treaties. International law must exist in the Community
within the framework of Community law, under the general principles of Community law, which
includes respect of human rights and basic freedoms. In order to emphasize this unique separation
and the autonomy of the Community legal order, the Advocate General relies on a precedent ruling
of the ECJ.16
According to the Advocate General, it is incorrect to say that the Community must yield to
international law unconditionally and to implement it entirely. The question in this case is whether
the Community legal order grants preeminence in order to implement the Security Councils
decision. Moreover, the Advocate General claims that, as members of the Security Council, states
that are also members of the Community ought to prevent a decision that may contradict Community
law in order to minimize the possible conflict between Community law and international law.
In brief, the Advocate Generals opinion emphasizes that while the EU respects and aims to
advance its international obligations, it is the Community legal order itself that ultimately determines
the effect of international obligations on the EU and the conditions to meet these obligations. Thus,
the Advocate Generals opinion highlights the complexity found in the EUs international activities.
The Advocate General warns the EU that multilateral actions can only be enacted if they correspond
to the principles of Community law. In the war on terror, this kind of warning means that the EU
might not fully cooperate with other international entities. I will elaborate on this topic later.

The respondents also claim that this specific case is in essence a political question and therefore
any legal judgment is inappropriate. The Advocate General rejects this claim as well. In his view, the
claim that a given measure is necessary for the maintenance of international peace and security
cannot silence the general principles of Community law and deprive individuals of their fundamental
rights.
The Advocate General argues that when the risks to public security are believed to be
extraordinarily high, pressure increases to take measures that disregard individual rights, especially
against individuals who do not have direct access to the political process. This pressure must drive
the courts to review with greater vigilance whether the restraints on human rights are proportional to
the objectives.

16

Case 26/62 Van Gend en Loos [1963] ECR 1, Case 294/83 Les Verts [1986] ECR 1339.

13

The respondents claim that the European Court of Human Rights is responsible for enforcing
human rights. In response, the Advocate General asserts that the European Court of Human Rights is
first and foremost an institution that enforces bilateral obligations between states that signed the
European Convention of Human Rights by intergovernmental agreement.17 The ECJ, on the other
hand, operates within an autonomous, supra-national legal order under which citizens have direct
rights and obligations. Thus, the European Court of Human Rights cannot be expected to address the
issue. In effect, the Advocate General holds that the ECJ must serve as a high court to which a
citizen may petition against the UN, which represents international law. The Security Council should
be able to cope with this challenge (the challenge of judgment).
To summarize this section, the Advocate General rejected the claims of the Council and the
Commission, accusing them of remaining silent in the face of the Security Council. He held that the
Court of First Instance erred in finding that the Community courts had only limited jurisdiction to
review the regulation with respect to the breaching of human rights under Community law.
B. The alleged infringement of human rights18:
The Advocate General suggests that instead of referring the case back to the CFI, the ECJ ought to
overturn the judgment. The respondents maintained that the court must conduct a lenient review
granting minimal weight in its decision to human rightsout of consideration for the struggle
against international terror. The Advocate General contends: the respondents opinion is similar to
that of the CFI, which claims that this question is of a political nature and therefore the court must
not intervene, in order to avoid being detrimental to the global struggle against terror.
As per the Advocate General, the accelerated political process of the struggle against terror
serves as an immediate response to public pressure, at the expense of maintaining human rights. The
role of the court is to safeguard these rights during these times. There is no place for a limited
review; the courts must simply answer the question whether the struggle against terror requires the
breaching of the petitioners rights and whether or not it is reasonable.
There was indeed a violation of the petitioners right to property because there was no clear-cut
proof that he was associated with terror. Furthermore, he did not have the opportunity to be heard,
nor were all measures taken (including the right to judicial review) in order to ensure that the
17

It can be added to this claim that the European Court of Human Rights also refused to examine the organizations that
implemented Security Council decisions, see the discussion chapter.
18
Paragraphs 41-55 in the Advocate Generals opinion.

14

sanction was issued against the right individual. The respondents claimed that had they operated in
accordance with the petitioners right to a fair hearing or to judicial review, they would have been
undermining the decision of the Security Council and thus jeopardizing the international struggle
against terror.
The Advocate General concludes that the petitioner was not given his right to be heard nor was
he provided with access to information about getting de-listed. Obviously, without a hearing, there
could be no judicial review and thus it is possible that the freezing of funds that was enacted against
him was disproportionate or even wrong, moreover that it is for an indefinite period? The court
cannot know if this was the case, but even such an option cannot be permitted in a Community based
on the rule of law.
In the absence of a tribunal to which individuals can petition at the UN level, the EU institutions
must protect the individual from the breaching of his rights by Security Council resolutions. Had
such a tribunal existed, it is possible that the European courts would have been exempt from this
duty.
C. Conclusions19:
The court must:
1.

Reject the CFI judgment of 2005.

2.

The regulation that was enacted by the EU Commission should be annulled in so far as it

concerns the petitioner.

The ECJ Judgment (September 2008)20

After long deliberation, the ECJ handed down its judgment on the joint cases of Kadi21 and Al
Barakaat (see footnote 54).
The parties claims22:
1. Regarding the Councils competency to implement the UNSC Resolution by means of a
Community regulation based on the legal foundation presented in the CFI: Kadi appeals against the
19

Paragraph 56 in the Advocate Generals opinion.

Judgment of the Court of Justice, delivered on 3 September 2008. In joint cases C-402/05 P and C-415/05 P Yassin
Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the
European Communities; http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-402/05.
21
See Appendix 2.
22
Case C-402/05, paragraphs 121-157.
20

15

CFI ruling for having accepted articles 301, 60, and 308 of the EC Treaty as the legal basis for the
regulation. The Court of First Instance broadly interpreted these articles and ignored the separation
made in the articles between the powers of the Community and the powers of the Union. The
respondents, on the other hand, claim that these articles complement one another and give the Union
the authority to enact measures against individuals and non-state entities. They claim that article 301
provides the legal basis for enacting economic measures (by power of the Community) in order to
meet the objectives of the CFSP (the objectives of the Union).
The Commission claims that articles 60 and 301 alone form the legal basis for the regulation.
Article 301 is broad enough to include sanctions against individuals. The fact that there is similar
wording in article 41 of the UN Charter and in article 301 of the EU Treaty shows that the writers of
the latter intended this article to serve the Community when enacting UNSC decisions. The
Commission regards article 301 as a procedural bridge between the actions of the Union and the
Community.
Kadi, as well as Britain and France (on the respondent side), object to the Commissions claim.
They differentiate between regular economic sanctions, which are derived from the Charters
articles and are imposed against rulers or countries, and smart sanctions, which are directed against
individuals within a state. Furthermore, article 301 of the EC Treaty relates specifically to the
Community (not the Union), and there is no similarity between it and article 41 of the UN Charter.
Since the contested regulation does not discuss relations between the EU and a third country, it
cannot be derived from the common trade policy.
2. The claims regarding the alleged violation of the petitioners rights are essentially identical to
those raised before the CFI.
The ECJ concludes23:
1. The Councils competency to enact the regulation, based on the legal foundation presented
to the CFI24: The ECJ determines that articles 60 and 301 of the EC Treaty do in fact refer to
economic sanctions aimed against third countries and their governments, and do not refer to
sanctions against individuals in those countries, who are not connected with the government. The
ECJ rejects the broad interpretation of the Council, which holds that these articles also refer to

23
24

Case C-402/05, paragraphs 158-376.

Case C-402/05, paragraphs 158-236.

16

individuals. Moreover, the ECJ points out that the objective of the regulation was not to harm the
economic relations with third countries in any way. Thus, the ECJ rejects the Councils claim that
there is similarity in the wording of article 301 of the EC Treaty and article 41 of the UN Charter,
these articles refer to different instruments and have different objectives. The ECJ also rejects the
Councils claim that article 301 is a procedural bridge between the authorities of the Community
and the authorities of the Union. According to the ECJ, article 301 allots specific authorities to the
Community regarding trade policy.
According to the ECJ, the objective of the regulation that was adopted is to fight international
terror. Thus, it cannot be based upon articles that refer to trade relations between states, since the
regulation was not intended to govern or harm trade relations between states in any way. Therefore,
there is no connection to the powers vested in the Community regarding the trade relations of states.
The ECJ also rejects the connection made in the CFI between the authorities of the Community
regarding trade, and the Unions objectives within the CFSP, as article 308, to which the CFI
referred explicitly, states that it refers to the fulfillment of Community goals. The pillar structure of
the EU and the structural separation between the Union and the Community prevent the Court from
making a broad connection between the authority of the Community and that of the Union. Thus, in
the absence of a specific justification in the Charters, the Court rejects the CFI claim that the
regulation finds its legal basis in articles 60, 308, and 301 (without another justification). The
combination of articles does not allow using Community means (economic sanctions) to achieve
Union objectives (in the area of foreign policy). Therefore, the ECJ rejects the CFI decision
regarding the legal foundation on which the regulation is based. In doing so, the Court adopts the
opinion of the Advocate General (albeit using a different explanation).
2. The alleged violation of human rights and the legality of the regulation25: The respondents
claim that the CFI erred when it reviewed the UNSC decision in light of jus cogens. Furthermore, it
erred in interpreting the rights presented by Kadi as jus cogens norms, since the right to property and
the right to a fair hearing are both rights that can be limited or reduced. According to the
Commission, the Court can review a case only when there is a clear violation of human rights.
However, this is not the case since there is a mechanism of review in the Security Councils
Sanctions Committee, which upholds security interests.
25

Case C-402/05, paragraphs 248-376.

17

According to the Court, the respect of human rights is a condition for the legality of a
Community action. Thus, an international obligation cannot evade general principles on which the
Community is founded. The Court calls the judicial review a constitutional principle, which
constitutes part of the Community legal order. The Court determines that when the EU implements a
Security Council decision, it must consider the objectives that endorse it and its wording. The UN
Charter allows member states autonomy in implementing UNSC decisions within the national legal
order. From this, the Court deduces that the international order does not prevent judicial review of
the regulation (thus recognizing that the UN Charter is like any other international agreement).
The Court does not find any justification within the EC Treaty that certain situations permit
regulations that infringe fundamental human rights and freedoms. Although UN decisions take
precedence over the EUs secondary legislation, they do not take precedence over primary
legislation, especially regarding the fundamental principle of human rights.
The essence of the court ruling for this case is as follows: the review by the Court of the validity
of any Community measure in the light of fundamental rights, must be considered to be the
expression, in a community based on the rule of law, of a constitutional guarantee stemming from
the EC Treaty as an autonomous legal system which may not be prejudiced by an international
agreement. The Court determines that it has jurisdiction to conduct a comprehensive, broad, and
inclusive review of the regulation, and not a review in light of jus cogens alone.
The ECJ goes on to rule that there is a fundamental difference between cases in which even the
ECtHR avoids judicial review of UN decisions, since these cases involve actions that were executed
by the UN directly (or by a direct organ of the UN), not in the territory of a member state and do not
require any action on behalf of the member state in order to be enacted.26
The Commissions contention against the Courts review is based on the different amendments
made in the Security Councils mechanism for receiving de-listing requests. As far as the
Commission is concerned, the existence of this mechanism is sufficient evidence of the consideration
of human rights. While the Court on the other hand, asserts that since the amendments were made
after the petitions were turned in, they cannot be considered. In any case, according to the Court, a
UN mechanism cannot serve as an alternative to judicial review by the EU. In the absence of judicial
review, there will be a significant decline in the high standard of protecting human rights as
determined by the EC Treaty.
26

Behrami and Behrami v. France and Saramati v. France, Germany and Norway, 2 May 2007.

18

According to the ECJ, the process proposed by the Sanctions Committee remains a diplomatic
inter-state process. This is because decisions are made by consensus, each member having veto
power, and because petitions can only be turned in by the petitioners nation-state. In addition, the
process (even after various reforms) does not compel the Sanctions Committee to explain to the
petitioner why his name appears on the list of individuals earmarked for the freezing of their assets,
nor why their petition was rejected. Thus, the judicial power of the Community courts must ensure
the review, in principle the full review, of the lawfulness of all Community acts in the light of the
fundamental rights, including review of Community measures which, like the contested regulation,
are designed to give effect to resolutions adopted by the Security Council. The CFI erred in
determining that a regulation of this sort cannot undergo judicial review due to the relationship
between the UN and the EU.
The ECJ determines that the petitioners claims are proven in this case. Therefore the court finds
no need to review the claims that concern jus cogens. The CFI also erred in reviewing the regulation
only against the rights that the petitioner raised in front of the court. It was the Courts duty to review
the regulation against all the rights that establish the constitutional principle of Community law.
The right to a fair hearing and the right to effective judicial review were not upheld under the
circumstances under which the petitioners name was added to the Sanction Committees list.
Traditionally, the right to effective judicial review is one of the constitutional principles of human
rights set by Community law in the ECHR and the Charter of Fundamental Rights of the European
Union. Respecting this right means communicating the evidence justifying the inclusion of the
accused in the list, either at the same time as, or after, that inclusion (to impose sanctions). This is in
order to allow the individual to use the legal means available to him. Moreover, exposing the
information would have allowed the Court to conduct judicial review according to its obligations
under the EC Treaty.
As for the right to be heard, the Court acknowledges that were the Community to conduct a
hearing prior to the addition of an individuals name to the list, the efficacy of freezing assets would
be damaged. In order to achieve its objectives, the freezing of assets must have the effect of surprise
and be applied immediately. Even so, the Court indicates that the fact that the regulation pertains to
issues of national security and the war on terror does not mean that the review of the regulation is
beyond the boundaries of the Community legal order. The legal system must balance between
security needs and the need to provide the individual with due legal process. The Council of

19

Ministers did not provide such a system, neither before the petitioner was added to the list nor after.
Thus, the individuals right to defense and his right to be heard were breached. Therefore, it is
evident that the individual did not have a real chance to present his claims and that his right to
effective judicial review was violated as well.
The Court finds that it does not have a real capacity to review the legality of the regulation as
pertains to the petitioner, due to the fact that the Security Council did not expose the allegations
against him. The petitioner did not raise these allegations before the Court because he was unaware
of them. His claims regarding the infringement of fundamental rightsthe right to be heard and the
right to effective judicial reviewwere found to have legal basis.
The right to property is one of the rights mentioned in the General Principles of European
Community Law. However, it is not an absolute right and must be reviewed in light of its purpose.
This right can be limited in order to protect the public interest, so long as the violation is reasonable.
The freezing of assets is intended as a limited and preventative instrument, and is not meant to
amount to the confiscation of an individuals assets. On the other hand, since the freezing of funds
had been enacted against Kadi since 2001, it did in fact eradicate all access to his assets, and the
question is whether there is justification for doing so. Simply because the objective of freezing assets
is to succeed in the war on terror, the freezing of assets belonging to anyone who is suspected of
having connections with Bin Laden or al-Qaeda should not be unreasonable or disproportionate.
Moreover, the Security Council allows the competent national authorities to unfreeze the funds
necessary to cover basic expenses (payment of rent, medical expenses, etc.). Thus, it can be
determined that, in light of the objective, freezing assets is justified. However, since there was no
guarantee enabling Kadi to petition his case to the competent authorities, the freezing of funds
constitutes an unjustified restriction of his right to property.
The ECJ Ruling27: The following deduced from the above:
1.

The Court rejects the CFI ruling of 2005 for both cases.

2.

The Court annuls the Councils regulation of 2002 in so far as it freezes the assets of Kadi and

Al Barakaat, since it violates the norms of the EU regarding due process and the protection of
personal property.

27

Case C-402/05, paragraphs 380.

20

3.

The Court will maintain the effects of the regulation for a period of no more than three months,

in order to allow the Council to remedy the infringements found.

4.

The institutions of the European Union must pay half of Kadi and Al Barakaats legal expenses.

The Main Issues of the Ruling:

Throughout academic publications and the press, there were heated discussions regarding the CFI
ruling, which were aroused upon the publication of the Advocate Generals opinion, and of course
upon the final ECJ ruling. The various analyses criticize the two rulings with different intensities.
Generally speaking, there was disagreement with the CFI, based on the same claims made by the
Advocate General, and agreement and support of the ECJ ruling.
In brief, the CFI ruling was criticized due to the fact that it reduced judicial review to a
minimum. That is to say, it focused on the question of whether there had been a violation of jus
cogens norms and claimed it had no jurisdiction over further review. In addition, the CFI ruling gave
UNSC decisions preeminence over the EU laws. The different researchers contemplated what
significance was left of the European Human Rights Laws after 2005. Has the EU become a
secondary agent between the individual and the international entity that enacts the sanctions
(Vleck, 2007; Eckes, 2008)?
To a certain degree, the overturning of the CFI ruling by the ECJ could have been expected
considering the criticism that awakened after the 2005 ruling. This criticism focused on two topics:
Community law vs. international law; and the apparent infringement of the petitioners rights. As I
present these critiques in the following sections I will tie the issues into the question of the EUs
international status after September 2008.

Community Law vs. International Law

The CFI ruled that the Community is bound by the UN in the same way that its member states are
bound by it. Eckes, on the other hand, claims that since the Community is not a member of the UN, it
is obligated to the EC Treaty and not the UN Charter. In the CFI ruling, she claims, the EU
institutions hid behind the obligation to the UN and abandoned obligations to the ECHR (Eckes,
2008).
In addition, the CFI considered the decision to add an individual to the list of those intended to
have their assets frozen as a direct decision of the Security Council and thus of the UN. It regarded

21

both decisions as equally binding, as an obligation derived from the UN Charter. There is
disagreement regarding this issue as well. The Sanctions Committee receives its mandate from the
Security Council but, even if the decision to enact Security Council sanctions cannot be appealed, the
decision as to whether to include an individual in the list is a different/secondary decision.
Regarding the laws of the Community, even though they impose a certain degree of restriction
on the Court, Eckes claims that there is no restriction on the judicial review of the regulation.
Moreover, the courts are bound by the EC Treaty to preserve the law in its implementationto
preserve the Community law and with it human rights laws, as part of the General Principles of the
Community. The fact that the Community is bound by the UN does not prevent it from conducting
judicial review of its decisions. This is therefore is a restriction that the CFI imposed on itself.
In my opinion, claiming that the EU is obligated to UN decisions (since the members of the EU
are members of the UN), and that UN decisions override Community law, turns the EU into a
regular international organization. This clearly does not describe the current economic and
political state or the character of the EU. It seems that the CFI decision shrunk the EU. In holding
this opinion I join many researchers who supported the ECJ decision because it restored the EUs
autonomy and its moral and physical status as well.
The Advocate Generals opinion and the ECJ ruling revealed a completely different approach
than that of the CFI. According to de Burca, the Court adopted a dualistic approach to the
relationship between international law and the Community legal order. This approach holds that
international and Community law operate in different spheres. Local law determines the conditions
for the implementation of international law within the Community legal order of the organization or
state. (This contradicts the monolithic approach, according to which both regimes belong to the same
system, and are subject to immediate application one on the other.) This approach can also be
interpreted as being derived from a pluralistic approach, which emphasizes the variance between
constitutional regimes (and considers this variance as necessary and inspiring). Either way, there is
an emphasis on the responsibility of the EU (or any other international organization) to fulfill, first
and foremost, the constitutional order by which it was established; respecting other international
institutions is essential only if they are founded upon similar values and are committed to protect
them (de Burca, 2009).
Contrary to Meyers assumption (see Part Two) that the ECJ would uphold the multilateralism of
international actions, the Court accentuated the autonomy of the Community legal order. It may even

22

be that the court ruling does not comply with the approach of Javier Solana28 and the writers of the
Common Security Strategy (see Part Two), regarding the EUs obligation to strengthen the UN and
the international institutions (more on the subject in Part Four).

The Apparent Violation of Human Rights

The critics repeated claim was that the judicial review of jus cogens norms, as conducted in the CFI,
created the impression of judicial review without allowing for a real examination of the instruments
that the Security Council chose to enact. The inclusion of the rights that Kadi claimed were violated
under jus cogens was not an obvious choice on the part of the CFI and was derived from a very broad
view of those laws.
Furthermore, the Court did, in fact, review the Security Councils procedures, in determining
that the Sanctions Committees de-listing mechanism constituted an upholding of the individual
rights to a fair hearing and judicial remedy. However, if the Court had continued to examine the
procedure of preparing the Security Councils lists, it is possible that it would have concluded that
this procedure breaches even jus cogens (Eckes, 2008; Hudson, 2007).
In a later case (2006) with a similar background, the CFI chose a braver approach regarding
the right to effective judicial review. It presented itself as the only procedural mechanism that
promises to find a fair balance between the necessity to fight terror and the protection of human
rights. Thus, the Court must be allowed to examine evidence that was gathered against the
individual/company as a result of which his name was added to the list of sanctions.29 The difference
between the CFI rulings in the two cases can be related to the time that had passed between the
rulings and the change in international public opinion, which gradually began to express doubts on
far-reaching violations of human rights in the name of the war on terror.30
28

International law is the guiding spirit and lifeblood of our multilateral system. That system is made strong through
our commitment to upholding and developing international law. The establishment of the International Criminal Court
has shown that the multilateral system can be adapted and strengthened to meet new challenges. We have a responsibility
now to ensure that it can do its job. We have a responsibility also to ensure that the UN can do its job; that it is made
effective and equipped to fulfill its responsibilities. The United Nations cannot function unless we are prepared to act to
uphold its rules when they are broken. speech by Javier Solana at the Stockholm Conference on preventing genocide,
Brussels
28
January
2004
on
the
EUs
commitment
to
effective
multilateralism.
http://www.europa-eu-un.org/articles/en/article_3176_en.htm.
29
Case T-228/02 Organisation des Modjahedines du peuple dIran (OMPI) v Council, [2006] ECR II-4665, paragraph
155, (Tridimas and Gutierrez-Fons, 2008).
30
It must be noted that in this case (see footnote 30), the court reviewed a list that was expanded by the European
Council itself and not by the Security Council. In this case, the court allowed itself to broaden the discussion regarding
the proper procedure that ought to be provided to the individuals added by the EU to the sanctions list. It also discussed

23

There is also criticism regarding the fact that the CFI chose not to review the legality of the
Security Councils sanctions. As for the right to a fair hearing,31 Hudson claims that since the UNSC
sanctions are semi-criminal in character (that is, they accuse individuals of criminal acts); they
violate the core of the right to a fair hearing as defined in the UN Treaties of 1966. A citizen must
convince his state for his de-listing plea to be brought before the Sanctions Committee. It can be
assumed that this stage is a huge obstacle for the individual, mainly because states do not want to be
suspected of supporting terror. It is important to note that the nation-states of most of the citizens
whose names appear on the lists are not democratic and transparent, for example, Afghanistan, Saudi
Arabia, Yemen, etc. Thus, the citizens option of petition through the state is not a realistic one. The
fact that only five citizens were de-listed since the process began points out that the procedure may
exist de jure but not de facto32 (Hudson, 2007). In addition, the Security Council did not publish the
criteria for the Committees decisions, but rather only the topics it may or may not consider.33
The right to property is an inherently limited right as defined by the ECHR.34 With a certain
degree of justification, governments are permitted to infringe a persons right to his possessions.
However, previous rulings have permitted this mainly when it is a temporary violation and the
reasons were known to the individual. In this case, the freezing of assets did not have a time limit
and the justification for it was not exposed to the individual. Thus, the violation could not be justified
(Gutherie, 2004). The CFI relied on a previous ruling of the ECJ, which included the right to
property as jus cogens35 even though the content of jus cogens is traditionally ambiguous and narrow
(de Burca, 2009).
In my opinion, the CFIs justifications for the violation of human rights reflect the global
atmosphere following the 2001 terrorist attacks in the United States. In those years, there was great
difficulty in putting aside the war on terror in favor of human rights. Thus, the justifications for the
violations of human rights that the Court chose to emphasize were only partial justifications, making
clear the preeminence of the war on terror. As the years passed, the global mood changed and voices
in detail, the procedure for exposing the evidence before the court and the time frame to notify the individual that he is on
the list of those intended to have sanctions imposed on them. The court did not delve into such detail when the UN and
Security Council were involved.
31
Article 6, the European Convention on Human Rights.
32
In 2006, the Security Council determines that petitioners seeking to submit a request for de-listing can do so directly
through the UN via the focal point process, where states are updated regarding the addition of names to the list.
S.C. Res. 1730, U.N. Doc. S/RES/1730 (Dec. 19, 2006)
33
http://www.un.org/Docs/sc/committees/1267/1267_guidelines.pdf.
34
Article 1, the First Protocol to the European Convention on Human Rights.
35
Case C84/95 Bosphorus v Minister for Transport [1996] ECR I3953.

24

around the world that opposed the prevailing approach to the war on terror began to increase. The
argument between the leading states in the EU regarding the declaration of war on Iraq demonstrates
the fundamental disagreement regarding the use of force without international concurrence. As is the
case with any other international organization, the CFI and ECJ rulings mirror the changes that
surfaced in global public opinion, changes that were exposed in the media, in governments
(including the election of Barack Obama to the United States presidency), in academia, and in
judicial rulings.
The Kadi ruling is all the more interesting since it raises essential issues in the relationship
between the EU and the UN and the Security Council. Thus, its ramifications and its significance
extend beyond the narrow boundaries of the relationship between the two entities. In order to
evaluate these effects, the normative relationship between the EU and the UN must be examined.
Part Two is dedicated to this matter.

25

Part Two: The European Union and the United Nations

Background, principles of action, and ideology
In the midst of the United Nations 60th anniversary celebrations, voices rose from inside and outside
the organization questioning the future of the multilateral modus operandi.36 The UNs recent
accomplishments in international law and in the idea of collective security were not considered
significant in the international arena. Therefore, many researchers and politicians believe that the UN
is undergoing a crisis; but there is debate regarding the reasons for this crisis. Some believe that the
source of the crisis is the unilateral superiority of the United States (manifested in the war against
Iraq). Others hold that the source of the crisis lies in the inability of multilateral institutions to deal
with 21st-century threats like terror, nuclear weapons, and so forth. It can be said that the crisis is a
result of both these problems.
A central question is whether the current crisis is essentially different from the ever-present
criticism against the UN, for such things as passiveness in cases like Rwanda and Darfur and failures
in conflict management in the Middle East. It seems, however, that there is widespread agreement
that the ideology upon which the UN Charter is founded and on which the UN institutions and the
Security Council are based, does not provide effective tools for dealing with international threats.
The familiar criticism against multilateralism claims that it focuses on finding the lowest
common denominator between states and frequently relies on a hegemonic power in the
international system to drive processes and impel states to fulfill their obligations. Since the United
States abandoned multilateralism there has not been such hegemony in the international system. The
UN has even been accused of functioning as the executive branch of American foreign policy
(Laatikainen, 2006).

In the past decade, the European Union, an example of successful multilateral action, has stressed the
value of unified action within the framework of the UN. The EU institutions declared their desire to
expand EU-UN cooperation in various areas, including conflict management and humanitarian aid.
Alongside these declarations, the EU representatives in the UN emphasized that the organization
36

A diplomatic/institutional action that organizes the relations between three or more states and is founded upon the
principles of cooperation. Both the UN and the EU can be classified as multilateral organizations. At the core of the
multilateral theory is the assumption that national interests can sometimes be attained more easily through cooperation
between states rather than by competition (Laatikainen, 2006, 5-6).

26

must remain flexible in responding to new threats while simultaneously remaining relevant in
old threats and challenges (Council of the European Union 20042005, quoted in Laatikainen,
2006, 2).
In December 2003, the EU drafted the European Security Strategy, ESS, in which it stresses the
importance of a strong international community, operative international institutions, and a global
order based on the rule of law. All of the EUs objectives regarding security policy are written in this
document from a multilateral perspective.37 In addition, the EU ratified its commitment to strengthen
the UN. The EU is a unique international entity to fulfill this commitment, politically, economically,
socially, and militarily. Furthermore, this declaration serves as a framework for continuous
consultation, decision-making, and cooperation between the EU and the UN (Ortega, 2005).
Laatikainen claims that the EUs effect on reforms within the UN depends upon the agreement
of member states on the desired reform. The development of a unanimous European voice is a
primary criterion for effective foreign policy (Laatikainen, 2006). Contrary to this, the UN is
founded upon the sovereignty of states as central actors, and the decision-making processes within
the UN and its institutions (first and foremost the Security Council) are fashioned accordingly. Thus,
the gap between the ideologies of the UN and the EU affects the way members of the EU choose to
act within the UN institutions. Up until a decade ago, cooperation between the two organizations was
considered unnatural due to their different characters. The UN felt that cooperating with regional
organizations lowers its status (i.e., positioning the UN at the same level as regional
organizations). The EU, for its part, made autonomous attempts to draft the CFSP and the ESDP
(security and defense policies) without any reference to another international organization (Ortega,
2005).

EU operations within the UN and specifically the Security Council

In the assembly of the Council of Europe on December 12, 2003, the European Union drafted the
European Security Strategy. This document declares that the Security Council has the primary
responsibility of maintaining international peace and security. Moreover, the ESS acknowledges the
necessity of military action as a last resort and only under the instruction and command of the
37

Even though the document was written after the crisis that erupted following the invasion of Iraq, the ESS symbolizes
the shared values of EU member states and was adopted unanimously by the European Council. Therefore, it serves as an
important milestone toward the development of a common European defense strategy. European Cooperation Against
Terrorism, Conference, 2004.

27

Security Council. The EU reiterated this view in various UN forums during 2004 and stated that it
regards the Security Council as the voice of the international community in the area of collective
security.38
Generally speaking, the UN and the EU share the same outlook regarding modern collective
security that involves non-state actors and unconventional threats such as diseases and environmental
threats. Thus, the EU serves as one of the great supporters of the UNs multilateral modus operandi.
However, the influential power of the EU is not greater than that of other actors (i.e. there is no
evidence that the EU manages to convert its support into practical influence at the state level)
(Biscop and Drieskens in Laatikainen, 2006).
When Laatikainen reviews the effectiveness of the EU within the UN, she differentiates between
two aspects of efficacy. The EUs internal effectiveness is measured by the degree to which the
positions, voting repertoire, and actions of member states exhibit values of the EU (especially among
Britain and France, who are permanent members of the Security Council, which rejected any attempt
to advance a single seat for the EU in the Security Council, a suggestion raised by Javier Solana in
2003). In addition to internal coherency between the states (see appendix 3), Laatikainen searches for
external effectiveness in attaining objectives of the EU within the UN and in its influence on other
actors. In short, is the EU considered a leading actor in the UN?
Researchers found that the key to internal effectiveness is the distribution of power within the
EUfor example, issues under supranational authority (i.e., of the EU institutions) as opposed to
issues under inter-governmental authority (i.e., of member states). Members of the EU manage to
agree unanimously only on narrow issues in the UN (mainly environmental awareness), which
embodies the common interest between them and the EU institutions. On other topics, the EU
Commission faced opposition from member states when it acted autonomously within the UN. In
topics such as security and human rights, researchers conclude that the Commission is simply not a
significant actor and functions as a reactant more than an initiator (Laatikainen, 2006).
As for external effectiveness, researchers found increasing coherency in the positions of EU
members. Furthermore, they found a growing number of joint declarations in the name of the EU
(see appendix 4). However, when the states do not agree, the EU institutions are not strong enough to
compel them to agree. Moreover, the amount of energy spent on coordination between all EU
members comes at the expense of the energy needed to invest in diplomatic activity between EU
38

Quoted in Laatikainen, 2006, 2.

28

institutions and other members of the UN. On the other hand, a power that unites 27 members of the
UN, including two permanent members of the Security Council, cannot be overlooked (and has
influence on states that are candidates for joining).

Hill (in Laatikainen, 2006) examines the EUs activity in the Security Council. Understanding the
dynamics within the Security Council is vital for understanding the dynamics in the UN, because, as
the major source of legitimacy for collective international action, the Security Council is the center
of UN activity. France and Britain, as permanent members of the Security Council and as members
of the EU who are committed to European solidarity, do not always agree with one another (even in
publicas seen in the crisis following the invasion of Iraq in 2003). Britain and France aim to
advance different national interests alongside their attempt to create a unified European foreign and
security policy (CFSP). Furthermore, they must deal with proposals for reform including the
suggestion of one EU seat in the Security Council (a proposal they clearly opposed).
As part of the regular activity in the UN institutions, the highest number of declarations made by
the EU is to the Security Council and the most prevalent subject is peace and security (see appendix
4). It is interesting that the EU is most active in an issue that is the greatest obstacle for integration
among members; this demonstrates the dilemma between the desire to be effective and the desire to
create a unified European voice.
The discussions regarding Security Council resolutions are mostly informal or conducted in
closed meetings. Even though the EU is a substantial partner in consultations and open meetings
(usually through declarations submitted by states that hold the EU Presidency joined by the other
members, and sometimes other European countries), the EUs influence on the decision-making
process is variable and depends mainly on the good will of the permanent members of the Security
Council.
The decision-making process in the Security Council is a clear depiction of the hierarchy in the
international arena, while the topics usually have direct influence on the sovereignty of states. Hill
concludes that the primary common interest between Britain and France in the Security Council is to
preserve their place as permanent members in the Council. However, their ideological concord varies
from subject to subject, while American hegemony and the US alliance with Britain hover overhead.
There is also the ever-present incongruity between the decisions, made by the permanent members of
the Council, and the execution of these decisions, which in the past two decades has been done

29

mainly by states that are not part of the decision-making process like Bangladesh, Ethiopia, India,
etc. This discrepancy has lead to a persistent call for real reform in the Security Council (Laurenti
in Ortega, 2005).
Therefore, it seems that there is a lack of assimilation and harmonization, which affects the
positions of both states within the UNSC. The voice of the EU in the Security Council is best heard
when either Britain or France holds the position of the rotating EU Presidency and thus serve a dual
role in Security Council discussions.
Article J5 of the Maastricht Treaty specifies that the two permanent members of the Security
Council are obligated to consult and update the other members of the EU, and to uphold European
interests in voting in the Security Council. Even in the drafting of the treaty, Britain and France
reserved the right to fulfill their national interests first in the Security Council. They promoted an
explicit wording of this statement. (Even if in theory the European obligation and the national
obligation to the UN will not necessarily clash, experience teaches that there is such a possibility.)
The two states feel that their obligation to the UN to fulfill their global roles, overrides their
obligation to the CFSP. Therefore, most researchers claim that there is no realistic chance to
implement the proposal for a European seat in the Security Council. The foreign policies of Paris and
London are derived from their positions in the UNSC. Thus, even if a strong and effective CFSP will
develop in the future, France and Britain will be the dominant voices in that policy.
In addition, because the dynamics in the Security Council are (relatively) fast-paced, they suit
the objective of short-term crisis management. Even if the EU fosters a certain level of cooperation
and coordination among its members (the Lisbon Treaty continuing the trend of efficiency in
decision-making), this coordination regards mostly long-term propositions in drawn-out discussions.
Thus, from an institutional perspective, there is a gap between decision-making in the EU and in the
Security Council (Marchesi 2008).

In the debate on the international status of the EU, the relationship that developed between the EU
and the UN is very significant. As discussed, there are inherent problems with the EUs activity in
various UN forums along with difficulties in implementing UN decisions in the EU. All these will no
doubt affect the EU as an international political entity and outline the existing discrepancy between
expectations and capabilities.

30

Based on Robert Kagans article, Power and Weakness, Meyers writes (before the ECJ ruling)
that the different approaches regarding the appropriate modus operandi in the international arena,
affect the way Security Council resolutions are implemented in the United States and Europe. In
other words, since Europe handed over the responsibility for its security to international
organizations, it believes that collective security is attained by multilateral cooperation. Europe (in
this sense he is referring to the European Union) implements Security Council resolutions verbatim
and these do not undergo judicial review. The United States, on the other hand, implements the
resolutions only if they are in accordance with its national law. Meyers criticism demonstrates the
importance the international communitys perception of the European Union as an international
actor. The question is whether, after the Kadi ruling, a dissonance will develop between multilateral
commitments and the autonomy of Community law (Meyers, 2008).

31

Part Three: Human Rights Laws

Background
The roots of the modern human rights movement are found in the Enlightenment era, which
developed in Europe in the 17th and 18th centuries. The political-philosophic writings of that era
(Kant, Locke, Hobbes, and Rousseau) empowered the individual, honored individual life and dignity,
and considered the state an essential social framework for the preservation of the individuals natural
rights. Until the 19th century, the issue of human rights was dealt with under national law. However,
over the course of the 20th century, human rights have become obligations erga omnes in
international law.
The term Human Rights is outlined in the introduction and in articles 1-2 of the 1948
Universal Declaration of Human Rights, for all human beings without distinction of any kind.
Human rights are inherent, equal, and irrevocable. While individual rights cannot be taken, some
may be limited and even revoked based on the persons actions.
Some of the modern rights are considered jus cogens; the right to life and the prohibition of
torture, slavery, and racial discrimination. However, even jus cogens norms are not necessarily
unlimited. In general, the restriction of human rights is permitted if it is required in order to protect
the rights of other individuals or of a general interest that must be defended in a democratic society
(Shany & Ben Naftali, 2006).
The global mechanisms for enforcing international human rights laws are considered weak, even
relative to other issues in international law. This is in light of the fact that the classical mechanisms
for enforcing international law (such as bilateral sanctions) are inappropriate when dealing with a
states violation against individuals. The regional mechanism, like the European case, is considered
more effective (further elaboration on the subject later).

Human Rights Laws in Europe and specifically in the European Union

In discussing human rights in Europe, one must distinguish between two European regimes: The
European Court of Human Rights (ECtHR), established after World War II, and the ECJ, which
operates by power of the constitutive treaties of the EU.

32

The European human rights system operates under the Council of Europe. The Council of
Europe was founded in 1949 and is a regional organization for the advancement of cooperation
between 46 states. At the heart of the European human rights mechanism is the Convention for the
Protection of Human Rights and Fundamental Freedoms of 1950 (ECHR). The Convention created a
supranational mechanism with constitutional characteristics for the protection of human rights, and
was amended over the years by 14 complementary protocols adding the protection of additional
rights. The problematic aspect for states in this regard, is the establishment of an organ to which
individuals have recourse regarding violations of their rights. Until 1998, the Convention was
enforced by the European Human Rights Commission. In 1998, the enforcement mechanism
underwent an extreme reform; the Commission was cancelled and its powers were transferred to the
courts, to which all the members of the convention are subject (Ehlers, 2007).
The European Court of Human Rights has jurisdiction to review any petition of an individual
against a member state or the petition of a member state against another member state. Following the
reform, the number of petitions to the court increased dramatically, up to thousands of cases a year.
These include rulings on broad political subjects, since the Court examines, among other things,
whether the rulings of the national courts are in accord with the European Convention of Human
Rights (Shany & Ben Naftali, 2006). The ECtHR determines that all the legal options available to the
petitioner must be utilized to the fullest before approaching the Court (in the European context, this
also includes all the instances of the ECJ).
The decisions of the Court are characterized by a dynamic and constitutional interpretation of the
Convention, but the Court restrains its level of intervention in internal state matters. Thus, it has
earned the trust of member states. All the members of the European Union joined the ECtHR
mechanism and ratified the Convention as part of the national law (for the members that joined in
2004, this was prerequisite).

Until the 1960s, the ECJ avoided reviewing human rights issues, mainly because of the breaching of
state sovereignty. Later, the ECJ determined that the principle of basic rights is one of the general
principles of Community law (in the Community legal order). This is because it is based on the
common traditions of the members and on international treaties.
The ECJ refers to international treaties on human rights only as sources of inspiration and not as
binding precedents, unless they are agreements/treaties that members signed before joining the EU

33

(according to article 307 of the EC Treaty,39 these treaties are binding). To this day the EC Treaty
does not determine whether previous international agreements/treaties of this kind bind the EU itself
(i.e., its institutions), although court rulings have adopted this approach40 (Ahmed & de Jesus Butler,
2006). In the Kadi case, the CFI relied on this principle in giving further justification to the
preeminence of international law over Community law, as the UN Charter had been signed by
member states before they joined the EU.
In the last decades, the Court has established its commitment to human rights through dozens of
rulings, even those rights that do not appear explicitly in treaties. The EU institutions, along with the
Court, paved the way for the inclusion of human rights as an integral part of treaties. However, until
the inclusion of human rights in treaties, the court must deal with a constitutional deficit, which
subverts the primacy of Community law. According to the principle of the supremacy of Community
law, the Community regime overrides national law, but does not provide the citizens of member
states with consistent constitutional rights regarding human rights. The court provides a partial
solution for this in adopting the claim that the constitutional principles of the EU, including human
rights, are based on the common traditions of member states. The European Unions human rights
regime thus developed progressively, with every case reviewed by the court serving as a precedent
for the inclusion of the right it examines41 (Napoli, 1995; Defeis, 2000).
Regarding the interpretation of the ECHR, the ECJ restricted itself to the interpretation of the
European Court of Human Rights (Strasbourg) as an exclusive source. Furthermore, the ECJ refuses
to accept the ECHR as a binding legal document in Community law, and thus it remains a secondary
legal source that is subject to interpretation. In the past, the ECJ used different approaches when
reviewing a case that had already been discussed in the ECtHR. These approaches point to the
different interpretation of human rights in the two regimes (such as the right to privacy or the
prohibition of discrimination based on gender,42 to which the ECtHR shows more sensitivity than the
ECJ), or the difference between the broad jurisdiction of the ECtHR as opposed to that of the ECJ
(Defeis 2000). The ECtHR does not hesitate to review cases in which human rights were violated by
member states of the EU in their implementation of EU legislation. This is based on the ECtHRs
39

The rights and obligations arising from agreements concluded before 1 January 1958, or, for acceding states, before
the date of their accession, between one or more Member states on the one hand, and one or more third countries on the
other, shall not be affected by the provisions of this Treaty (TEU, 1992).
40
Case T-315/01; paragraphs 198, 203-204.
41
Case 4/73, Nold v Commission, 1974. Case 36/75 Rutili v Minister for the Interior, 1975.
42
See Hoechst, 4 C.M.L.R 410 (1991). Case 249/96, Grant v. South-West Trains, 1 C.M.L.R 993 (1998). Smith and
Grady v. United Kingdom, 33985/96 & 33986/96 (1999).

34

approach (called the Bosphorus approach after a case it reviewed in 2005), which assumes that the
human rights regime in the EU (or in any other international organization that is not a side to a
treaty) has similar standards as those of the ECHR43 (de Burca, 2009).
The problems with the EUs official entrance into the ECHR system remain mainly
procedural. It is clear that there is a need to prevent duplication and to give an official legal
authorization for the accepted list of human rights in Community law. In the discussions regarding
the draft of the Constitutional Treaty (2004), the EU voiced an explicit intention to join the ECHR
system (Ehlers, 2007).44
Finally, even though there is no human rights policy per se in the EU, the court clarified
through various rulings that in every place in which national institutions operate under Community
law, they are obligated to protect human rights by the general principle of Community law.
Moreover, the preservation of human rights was added as a condition in the agreements for new
members of the EU.
In spite of the separate development processes of the ECHR and the human rights law of the EU,
and despite the fact that they do not coexist under a uniform European legal order, they do share
similar characteristics, in part due to a common historical background. The ECJ ruling in the Kadi
case proves it is dedicated to upholding high standards of human rights, similar to those of the
ECtHR, and its adamancy that EU institutions maintain those standards in all their actions (Ehlers
2007).

The Struggle against International Terror vs. the Protection of Human Rights
As part of the global struggle against terror, many governments centralize more power in order to
react effectively and decisively. There is no disagreement regarding the need for international
reaction against terror, yet questions arise about the character of this struggle, whose results are
unknown. Much of the criticism was directed against the United States, which, following the
September 11 attacks greatly increased the authority of federal bodies dealing with defense, and was
involved in wide-range defense operations within the state and outside of it, some of which were
only semi-legal. This included waves of mass arrests, disappearances of those being interrogated, use
43

Bosphorus Airways v Ireland, Appl 45036/98, judgment of the ECtHR 7 July 2005. a judgment of the ECJ (1995) that
was confirmed by the ECtHR.
44
The relationship between the ECtHR and the ECJ as they appear in the ECJ ruling on the Kadi case is discussed in the
discussion part.

35

of torture as a means of interrogation, actions against citizens, etc. Other states also significantly
expanded the definition of collaboration with terrorist activity and established special tribunals for
security issues (Fitzpatrick, 2003).
Many researchers of human rights, lawyers, and activists in international organizations called for
a reexamination of the legality of some of the instruments employed by states in the war on terror. I
will review their central claims in order to elucidate the intrinsic dilemma the EU faces in
establishing its international status, having to deal with the issue like any other international entity
and with greater vigor in the Kadi case and other similar cases.
Hoffman (2004), the Chair of the Executive Committee of Amnesty International, writes that a
war on terror that is declared without respect to the rule of law depletes the very same values it seeks
to preserve. According to Hoffman, governments have a duty to find a balance between freedom
and security by ratification of a human rights regime, which allows the use of legal and effective
instruments in the war on terror. Furthermore, Hoffman doubts the claim that the September 11
attacks changed the world in such a way that necessarily leads to the desertion of several existing
international agreements. Fitzpatrick writes that even though the legal framework has not changed
since September 11, 2001, the atmosphere has changed completely (Fitzpatrick, 2003; Hoffman,
2004).
According to Hoffman, abandoning a legal framework of human rights is a violation of
individual security. The legal framework of human rights must serve as a starting point in the
creation of a world that is not threatened by terror because it contains values that are agreed upon by
the entire international community. Over the last sixty years, he adds, human rights laws have not
posed an obstacle for the legitimate actions of governments/states in their reaction to terrorist acts.
The human rights framework does not threaten the war on terror, including the potential suspension
of some of these rights as part of a declared state of emergency that is defined by law. Researchers
agree that the war on terror does not coincide with the accepted paradigms of the law, but it is clear
that it must be subject to human rights laws (According to them, it cannot be otherwise.) (Hoffman,
2004).
A state that violates human rights makes it easier for terrorism to mobilize within its territory,
due to the alienation experienced by those whose rights are breached. The potential violation of
human rights undermines the foundation on which international cooperation is established. This
foundation is necessary to make the struggle against terror an effective one.

36

Fitzpatrick points out the broader ramifications of the war on terror. The effacement of the legal
framework of human rights toughens immigration laws and disregards the agreed-upon treatment of
refugees and asylum seekers, who are hurt by the governments general hardening of policy
(Fitzpatrick, 2003). Thus, most of those held in administrative detention in Britain since September
2001 are refugees or asylum seekers. This is due to the growing tendency to perceive immigration as
a security risk. This trend delegitimizes the extensive struggle against terror among widespread
populations and instills a general feeling of estrangement towards governments.

In conclusion, the effort to apply human rights laws in a state of war has been a growing challenge in
the past years. Human rights organizations and lawyers understand that there may be a certain
violation of human rights under a state of emergency. However, the violation must be reasonable and
there must be an international agreement regarding the violation. Creative solutions were raised in
various forums, but it is difficult to see how they can be implemented politically.
The question is whether the existing human rights laws represent a proper balance between the
rights of the individual and the security needs of the state along with the rights of potential terror
victims. In the future, the human rights movement will have to find ways to allow adjustments in the
existing law in order to cope with the changing political reality, without relinquishing the values
behind these laws (Shany & Ben Naftali, 2007).
The central challenge for governments and international entities, and most of all for the Security
Council, is the question of how to reconcile the competing concerns of freedom and security. The
European Union also tries to find this middle ground. In its common security strategy45 the EU
reiterates that there are fundamental freedoms that must be considered in matters of intelligence,
surveillance, and police operations. This challenge should be addressed by joint steps of the
legislative, executive, and judicial branches, and by the development of quick and effective
instruments (the same instruments that the Security Council seeks to implement). It is possible that in
the future, the Kadi ruling will be remembered as a significant step toward finding the balance
between freedom and security. The ECJ demanded that the Council of Ministers apply this balance in
a renewed legislation of the regulation.
Having presented the normative-judicial framework of human rights in the EU and the problems
that arise as a result of the war on international terror, it is possible go ahead and discuss the central
45

European Cooperation against Terrorism Conference, 2004.

37

and complex question, of which human rights are just one stratum. What are the effects of the ECJ
ruling on the international status of the EU in light of its activity in the UN and in light of the
developing human rights regime? The following chapter will treat these questions.

38

Part Four: Discussion

The Security Councils Controversial Activity
Alongside other factors in the international system, the global war on terror spurred a process that
strengthens the Security Council as an international entity responsible for the maintenance of
international peace and security. It must be noted that, in its traditional role, the Security Council was
intended to be an executive and not a legislative body. Today it is perceived as both efficient and
strong in the international sphere. The importance of the Security Council increased when it was
authorized to deal with core issues, usually under national sovereignty, such as terror, natural
disasters, humanitarian crises, etc. (under article VII of the UN Charter). In enacting the sanctions
regime, the Security Council demonstrated its ability to operate like a nation-state, having a
monopoly over punishment.
Hurd considers the paradox inherent in the operations of an international entity to be fully
expressed in the operations of the Security Council. The Council has great formal power, which it
receives from the UN, first and foremost the role of maintaining peace and security.46 Still, it seems
that in the post-cold war world, any attempt by the Security Council to use its power is controversial.
The use of force becomes problematic and raises the question regarding the legitimacy of Security
Council actions, especially concerning smart sanctions (Hurd, 2007).
In discussing the powers of the Security Council, one must consider the term accountability.
This issue is controversial because it raises the sensitive subject of control of public authority, which
was clear in the era of the nation-states. The EU also encounters the problem of legitimacy, and has
struggled over the years to fill the democratic deficit. The situation becomes even more
complicated when it comes to the Security Council. The question is to whom is the Security Council
accountable, to the nation-states or to individuals, as members of the international community. The
question regarding its source of authority grows more complex when one considers that the vote
within the UNSC is unequal among all member states although its decisions directly affect the lives
of individuals around the world and are legally binding (de Wet 2008). The UN Charter does,
however, restrict the Security Council by a decision-making mechanism that demands a consensus

46

Chapter VII of the UN Charter: the Security Council is empowered to determine the existence of any threat to the
peace, breach of the peace, or act of aggression and to decide what measures shall be taken to maintain or restore
international peace and security including measures not involving the use of armed force such as economic sanctions.

39

among the permanent members to balance the wide-array of decisions made. There is no obligation
to a certain standard of human rights, as proven by numerous petitions against actions taken in the
name of the UN all over the world (Reich, 2008).
The dilemma of accountability in international organizations clearly arises in the Kadi case, and
is clarified all the more so due to the character and the missions of the Security Council. Thus, the
question arises of how the criticism of the Security Councils authorities and activities will be
executed. This discussion deals with the existing tension between the importance of an international
organizations independence on the one hand, and the need to protect the third party that is affected
by the international organizations activity (Wilde 2006)in this case, the individuals directly
affected by the sanctions regime. The Security Council, in its decision to employ sanctions in the war
on international terror, felt that the sources of its authority (first and foremost the consensus among
its members) allow the enforcement of policy on each member state of the UN. The UNSC draws
this authority from the fact that it is the only international organization responsible for maintaining
global peace and security, issues that are core UN values. The Security Councils effectiveness and
its ability to act immediately are the roots of its self-image as an essential operative entity.
Another aspect of efficacy is found in the activation of mechanisms of supervision, especially for
sanctions that are enacted against individuals. There is no tradition of ruling against international
organizations in international courts, because this undermines their authority and there is no clear-cut
decision regarding the responsibility of member states. Therefore, in order to settle the tension
between accountability and efficacy, international organizations must undergo a process of
democratization (transparency) and tribunals must be established for judicial review (especially in
light of article 103 of the UN Charter, which binds members to UN decisions) (Wilde 2006).
The Security Councils lack of authoritativeness is coupled by the problematic sanctions
regime. The Security Council is no longer just an enforcing body but also a global legislator. The
UNSC created an extensive regime of war on terror through a series of resolutions. The struggle
against terror enhances the Security Councils traditional role by broadening the definition of
maintaining peace and security, which is the core purpose of the Security Council. The war on terror
intensifies the debate on the Security Councils role in the international arena and as a legislator in
the international sphere. In addition, the legality of sanctions enacted by an inter-state entity against
individuals and the risk of violating human rights are also controversial (Eckes, 2008).

40

Voeten examined the Security Councils sources of legitimacy in light of its decision-making
process, the norms of discussion, openness, the preservation of the common global welfare, its
establishment as an alliance of the elite, etc. He concludes that of all these sources of legitimacy,
the Security Councils authority is derived from its (unique) ability to grant wide international
legitimacy to the use of force and to provide an operative response (in some cases). Voeten claims
that there is a strong normative force that acts upon the states, leading them to believe that a violation
of Security Council resolutions has a high price (Voeten, 2005).
On this subject, it is important to note the fact that the origin of the Security Councils role to
preserve international peace and security lies in a political definition of peace and security. In
pragmatic terms, this means a consensus among the five permanent members of the Security
Council. In recent years, the Security Council has been criticized for its lack of action in the Darfur
crisis. This criticism is a reminder that there is no (and will not be any) objective definition of a
global threat to security.
The crisis regarding the invasion of Iraq in 2003 raised the debate on the authority and the
legitimacy of the Security Council to the headlines of the international media. The United States
choice to attack Iraq without consensus in the Security Council and without UN cooperation,
symbolizes a rift in the Councils strength in the eyes of many. Hurd, on the other hand, claims that
this crisis reaffirmed the Security Councils legitimacy, due to the effort invested by the US in order
to reach a UNSC decision regarding the attack on Iraq (Hurd, 2007). The crisis symbolizes the
political price that a state must pay in choosing to act unilaterally, as opposed to the collective
legitimacy it receives by acting with UN cooperation.
The Sanctions Committee, established by resolution 1267, is a secondary entity authorized to
enact direct sanctions against individuals, and all members of the UN are obligated to fulfill its
decisions. Can the power granted directly to the Security Council be transferred to an organ
functioning under the UNSC without an international agreement? It is important to note that the
committee and the sanctions regime do not have a time limit and are maintained so long as the
Security Council does not decide otherwise (Eckes, 2008). Furthermore, the composition of the
Sanctions Committee is an exact replica of the Security Council; thus, it is hard to believe that the
UNSC would cancel or amend a committees decision (de Wet 2008).
The Kadi case is an example of the existing trend that aspires to have international organizations
subject to constitutional norms. While the Security Council gains power as an international entity

41

with executive authorities, resting on the UN as an inclusive body and on the UN Charter as a sort of
international constitution, there is growing international pressure to subject the Security Council to
constitutional norms such as democratization, equal representation, and transparency in the decisionmaking process.47 In the Kadi case, the CFI, the Advocate General and the ECJ represent different
approaches to the question of the Security Councils accountability. They represent a different
understanding of the nature, the source and the normative authority structure in the international
arena.48
In examining the Kadi case through the point of view of the constitutional trend in the
international system, one must ask which entity in the post-national international system has
legislative and executive authorities and may review the legality of decisions that relate to states but
affect individuals? Granting these authorities to the Security Council expands its operational ability
but demands the establishment of supervisory mechanisms and democratization (Ley, 2007). Such
mechanisms do not exist at the UN level and as of yet no international legal entity has taken this
complicated issue upon itself.
Several ideas have been raised in various studies regarding the establishment of supervising
mechanisms over international entities, mainly in light of the vast increase in the last decade of cases
reviewed in national and international instances. It is possible to apply supervision over an
international organization in a balanced fashion that does not undermine its regular activity or create
an overly broad legal range for existing tribunals. Applying such mechanisms will fill the vacuum
that was created in the place where the nation-state is no longer accountable and the international
organization operates de facto (de Burca, 2009).
The conclusion that is derived from the criticism against the sanctions regime is that the Security
Council and other such entities must be subject to democratic norms as a critical step toward
effective activity under international law. Democracy is still the dominant regime type of the 21st
century and the preservation of human rights has become a new instrument in these regimes. With
the expansion of the trend to make human rights a constitutional norm in the international sphere,

47

Examples of writing on the topic of the constitutional trends in the international sphere:
Erica de Wet, The International Constitutional Order, International and Comparative Law Quarterly 55, pp. 51-76
(2006); Armin von Bogdandy, Constitutionalism in International Law: Comments on a Proposal from Germany,
Harvard International Law Journal 47, pp. 223-242 (2006).
48
More on this topic:
Grainne de Burca, The European Court of Justice and the International Legal Order after Kadi, Jean Monnet Working
Paper 01/0.

42

one can hope that human rights will soon be able to serve as a source of authority for international
entities.
To conclude this topic, democratic decision-making and efficacy seem to be two sides of the
same coin in the war on terror. If a decision does not have a consensus, its implementation is not
completely effective. The problematic aspect, of course, lies in the question of who will perform
judicial review in the absence of legislation on the issue. The sanctions regime did not pass as
reasonable in the ECJs review, because it does not respect human rights. Thus, the collective
objectives were not obtained and the resolution became ineffective, operatively speaking.

The ECJ and the ECtHR

The ECJ was one of the first tribunals to rule on the legality of the Security Councils sanctions
regime, even if indirectly. This active step has turned the ECJ into an initiator and leader in the
subject of human rights, while, as described earlier, the ECtHR was the stronger tribunal in this
subject. A review of the ECJ ruling raises the question of where it aspires to position itself in relation
to the ECHR, in which the EU is not an official member. Furthermore, how is the relationship
between the two regimes manifested in the ruling?
According to Moshe Hirsch, the ECJ emphasized the ECHR as a constitutional regime that is
external to Community law, but attempted to tie the two by relating to ECtHR rulings. Guy Harpaz
claims that while there is some coherency between the ECJ and the ECHR, the rift will still exist so
long as the composition of members within the two regimes is different, as expressed in the varying
obligation to human rights (mainly in the different interpretations that states give to basic rights and
to defending them).49 As mentioned earlier, the ECJ chose to differentiate itself from the ECtHR,
which had decided not to examine UN resolutions directly. The ECtHR acted in agreement with the
constitutional approach that grants preeminence to UN decisions by power of the broad international
agreement that it represents. The ECtHR positioned itself under the UNs collective security system,
while the ECJ adopted a pluralistic approach that views the UN and the EU as two different parallel
systems, without granting any hierarchical supremacy to UN decisions within the Community order
(see de Burca in Part One).

49

Professor Moshe Hirsch and Dr. Guy Harpaz spoke about the Kadi trial in the ECJ and the ECtHR at a conference at
the Hebrew University of Jerusalem in November 2008.

43

De Wet uses the ECtHR as an example of a court whose decisions preserve the supremacy of the
European Human Rights Regime. For its part, the ECHR has not yet received a leading normative
status in the international hierarchy. Its rulings and the fact that it has dealt with a wide array of
topics determined its standpoint (both ethical and practical) regarding the obligations of its member
states. According to this standpoint, it looks as though the ECtHR perceives all of the rights
mentioned in the ECHR as superior to almost all other international obligation. The Court even
expects the ECHRs steadfast stance to have a spillover effect that will strengthen other human rights
regimes in Europe in general and specifically in other national and regional courts, committees and
among decision makers. The supremacy of the ECHR is perceived as a preliminary sign of the
formation of an international constitutional hierarchy in which human rights are paramount.
According to de Wet, the CFI ruling in the Kadi case opposes this existing trend (de Wet, 2007). One
can infer from this that de Wet believes that the ECJ reinforces this trend and contributes to the
formation of human rights norms as international constitutional principles. The relationship between
the two regimes adds another aspect to the discussion on the topic of the EUs international status
after the ruling. Even if it is reasonable to say that the political status of the EU grown weaker, the
ethical stance adopted by the EU cannot be overlooked, as part of the trend described by de Burca.

Possible Ramifications of the ECJ Ruling

Considering the numerous factors involved at the national and international levels and the media
response, it is clear that the ECJ ruling has extensive ramifications.
Even though annulling the Council of Ministers regulation that enacted the sanctions constitutes
a violation of a UN decision, the ECJ opened a window of opportunity for the Council of Ministers
to change the legislation in such a way as to include mechanisms that address the need in respecting
the petitioners rights. Among members of the EU and its institutions, where there is a feeling of
trust, it can be assumed that a process based on intelligence cooperation has a chance of succeeding
and that the regulation can become effective. The ruling in itself though is not a direct violation of
the UNSC resolution.
Furthermore, this significant ruling unavoidably leads to the perception of EU institutions as
autonomous actors within the UN. Today, there is an impression that the presence of EU institutions
(and in this case the EU itself) in the UNSC decision-making process is diminishing; the EU is
present behind the scenes but is not an official member of the Security Council (Vleck, 2007). The

44

ECJ ruling emphasizes the autonomy of the European Union and demonstrates that, even if there is
no uniform standpoint in the everyday activity of the UN, the ECJ will not abandon the integrative
standard of Community law. Moreover, as a result of this ruling, the European members of the
Security Council (Britain and France) have encountered a conflicting situation between their
obligation to the Security Council and their obligations to the EU. This issue intensifies in light of
the EUs struggle in recent years to create a common foreign and security policy. It is also important
to note the close relations with the United States, a leading power in the Security Council and a
strong advocate of the sanctions regime.
Vleck analyzed the declarations of EU representativesas participants and observers that do not
have voting powerin various Security Council forums between 1999 and 2006. His analysis
revealed that most of the declarations were on the topic of the sanctions regime and reconciling its
activities with the rights of those accused of sponsoring terror. The declarations also show
commitment to the creation of a proper procedure for appealing against the accusations to the
Sanctions Committee and to increasing the transparency of the Committees activities (Vleck, 2007).
However, these declarations apparently did not have the desired effect on the Committee members,
and the need for strong-handed action overrode the obligation to human rights as presented by the
EU. Furthermore, there was no reference to these declarations in either court instance, even though
Britain, as one of the respondents, supported the Commission and the Council of Ministers. In this
case, the actions overrode the declarations as a result of political negotiation.
Other cases that have similar backgrounds will also be dependent upon the European Court of
Law50 and it is clear that there will be a strong mutual effect. As mentioned, some of the protests and
legal processes succeeded in improving the appeal process to the Sanctions Committee. They also
succeeded in leading the UN to establish various forums (initiated by member states) in order to
examine the efficacy of the sanctions regime51 (Vleck, 2007). The objective of the various forums
was to improve the efficacy of the sanctions regime so that it would not be harmed or annulled by the
court instances, and not necessarily regarding its accordance with human rights laws. This pragmatic
50

Case T-253/02 Ayadi v Council, judgment of 12 July 2006; Case T-49/04 Hassan v Council and Commission,
judgment of 12 July 2006; Case T-362/04 Minin v Council, judgment of 31 January 2007; Case T-47/03 Sison v Council,
judgment of 11 July 2007.
51
A joint initiative between Germany, Sweden, and Switzerland to establish a process that aims to reform the Sanctions
Regime, while maintaining efficacy and basic freedoms. See: TARGETED FINANCIAL SANCTIONS. A MANUAL
FOR DESIGN AND IMPLEMENTATION. CONTRIBUTIONS FROM THE INTERLAKEN PROCESS (The Swiss
Confederation, United Nations Secretariat, Watson Institute for International Studies, eds., 2001),
www.eda.admin.ch/eda/en/home/topics/intorg/un/sanct.html.

45

perception reflects the current balance between freedom and security as presented by the Security
Council.
The courageous ruling of the ECJ, even if it is considered problematic by some world leaders
and international organizations, presents the European Union as greater than the sum of its parts and
as a determined actor in the international arena that is willing to pay the price in order to safeguard
the rights of its citizens and of all individuals in general. This ruling places the EU at odds with the
United States, a hegemonic power in the area of security.52 On the other hand, it is possible that the
ruling distances the EU from the multilateral approach in its foreign policy and thus weakens its
international status.
It is important to understand that the legitimacy of Security Council decisions is now being
challenged in the world. In several studies, researchers have indicated that due to the incrimination of
citizens and companies, which was later found to be partially or completely unjust, the public image
of the sanctions regime and of the Security Council was damaged.53
As mentioned, considerable doubts arose in Sweden and other countries regarding the necessity
and efficiency of draconian regulations. These doubts have intensified ever since the weakness of the
American intelligence was exposed. As a supranational entity for which human rights are a basic
principle, the ECJs ruling may have effects on this issue while providing support for the criticism of
the sanctions regime.
However, it is highly probable that as long as the sanctions regime is not reformed, petitions will
continue to be made to local/regional courts of law. Even if some of the rulings adopt the CFI
approach, there may ultimately be variance among the rulings. This undermines both the sanctions

52

It can be assumed that the Council of Ministers will act according to the ECJ ruling, even though the Council refused
to fulfill the instructions of the CFI in a similar case. That is, the CFI demanded the removal of a name from the list of
individuals accused of funding terror in the case of:
T-228/02, PMOI v Council judgment, 12 December 2006.
In Regulation 1190/2008 (November 28, 2008), the Commission stated that it heard declarations from Kadi and AlBarakaat and in, light of these declarations, it believes that it is justified to keep their names on the list of those intended
to have their assets frozen for suspicions of funding terror. On October 21, 2008, the Security Council gave information
to the EU Presidency regarding Kadi and Al-Barakaat, which was also considered by the Commission (De Burca, 2009,
37).
53
Special mention ought to be made of the Somalian Al-Barakaat Company and its three employees, all of whom were
added to the Security Council Sanction Committees list following a US request, and their assets in Sweden, the US and
Britain were frozen. After three years of investigation by the Swedish government and negotiation for US agreement, the
names of the workers were removed from the list. Later, the FBIs weak evidence tying the workers to al-Qaeda was
exposed. This case aroused public attention in Sweden, including the establishment of a donation fund for the three
workers. This fund is considered a violation of the Security Council decision in itself. The final ruling in this case was
joined with the Kadi ruling in September 2008 (Vleck, 2007).

46

regime and the Security Council.54 The ruling has brought attention to the problematic aspects of the
sanctions regime, to which the ECJ, too, failed to find an encompassing solution. In the current
situation, states must choose between the supremacy of the UN (which leaves very little room for
judgment in implementing resolutions) and the supremacy of the European Community regime
(risking violation of UN resolutions, as in the case of the ECJ ruling) (Reich 2008). It seems that
only an autonomous mechanism for reform, erected at the UN level can find a way to simultaneously
preserve both the necessary framework for collective security and the principles of the rule of law.
In addition, the ECJ can be seen as leading an initiative to achieve constitutional integration
within the EU, since this would enforce the founding principles of the EU treaties, in contrast to the
futile attempts to advance political integration (the failure to ratify the constitution and the reform
treaty in 2005-2008). In the ruling, the ECJ mentions the preeminence of Community law and
references the constitutional principles of Community law. In other words, the ECJ takes the
initiative to strengthen the EU to at judicial-political level. The two instances indirectly reviewed the
implementation of the CFSP, an intergovernmental pillar of the EU. The CFI was prepared to bridge
the gap between the powers of the Community and the powers of the Union and the gap between
supranational and intergovernmental actions. All these point to the trend to increase constitutional
integration in the EU (Ley, 2007).
Which audience is targeted by the ruling? The ruling is possibly geared toward the national
courts of member states, conveying the message regarding its commitment to the European
Convention of Human Rights. It may also be that the ruling is meant to address the Security Council,
signaling the need for reform in the sanctions regime (de Burca, 2009).

Conclusions from the Kadi Case and the Likethe International Status of the
European Union
The discussion above discussion yields the impression that the ECJ ruling is a crossroads in the
relationship between the EU and the Security Council and the UN. Even if the ECJ ruling does not
violate the UN resolution, it certainly increases the criticism against the sanctions regime, and
54

In Resolution 1822 (2008) from June 30, 2008, the Security Council decided to publish (on the Security Council
website) some of the reasons for which states turn to the sanctions committee for listing an individual someone
suspected of funding terror. In addition, the resolution calls for the Sanctions Committee to retroactively publish some of
the reasons for past additions of individuals to the list, and asks states to notify people who were listed or are intended for
listing about this fact. It is unclear whether the Sanctions Committee will choose to cooperate with the Security Council
on this issue.

47

positions the EU as the first international organization whose tribunal ruled that the sanctions regime
is not in accord with human rights.
The CFI approach, which determined that the court cannot review a UNSC resolution even if it
was enacted by the EU, had already been subverted by the British Supreme Court in the Al Jedda
case.55 The British House of Lords determined that the British forces were responsible for the
violation of human rights and could not be exempted from this responsibility simply because they
were acting to implement a UNSC resolution. Thus, the ECJ ruling joins the trend in which the
implementation of a resolution does not exempt from the responsibility of maintaining human rights
and certainly not from judicial review.
According to Harpaz and Hirsch (2008), the ECJ ruling attempts to build a bridge between the
EU and the UN, but on the other hand completely distinguishes between the UN and the EU and
Community law.56 The CFI subjected Community law to the UN Charter and even to the Security
Council; however, the ECJ overturned the hierarchy and emphasized the preeminence of Community
law. The ECJ ruling exemplifies the perception of the absolute autonomy of Community law, by
stressing that the court reviews an EU regulation, not a UNSC resolution (even if the regulation is
one that enacts a UNSC resolution). The ECJ declares that, as the guardian of Community law, it
must fulfill its duty to respect Community law, and above all, the founding principles among which
are human rights. In this respect, I believe that the ECJ is committed to strengthening the EU as an
international entity and to ruling in favor of the ability of EU institutions to legislate and make
decisions regarding the fulfillment of international obligations. The ECJ fortifies the autonomous
regime of Community law, which gives EU institutions significant means for international
cooperation.
European values should also be mentioned with regard to the ruling, namely, the common values
referred to by the Court, mainly democratic values and human rights. One possible interpretation is
that the ECJ ruling (following the Advocate Generals opinion) is a subtle critique of the subjugation
of these values to international security needs, a trend that is recognized in the actions of the United
States and the UN.

55
56

R (Al Jedda) v Secretary of State for the Home Department, 12 December 2007, [2007] UKHL 58.
Supra note 50.

48

On the other hand, some commentators criticized the ECJ ruling, which based the ruling on the
supremacy of Community law and failed to denounce UNSC resolutions explicitly. In other words,
even after the ruling, there is no direct pressure on the Security Council to reform. Thus, some claim
that the ECJ did not take advantage of this window of opportunity in order to apply pressure for
significant reform in the sanctions regime. The Court chose to base the ruling solely on the autonomy
of the Community legal order, and not on the UN Charter itself (even though it mentioned that
according to the Charter a state can decide how to enact UNSC resolutions into the national legal
order). Thus, some believe that the ECJ missed the opportunity to contribute to the international
discussion on the proper procedure that should be adopted in order to find the balance between
maintaining human rights and the struggle against terror (de Burca 2009). This is contrary to the ECJ
ruling in the Bosphorus case (1995),57 in which the European Court was asked to review the
proportionality of the violation of the petitioners right to property in the EUs implementation of the
UNSC resolution. The Court determined that the violation is reasonable (the ECtHR, in this same
case, claimed that reviewing UN resolutions is beyond the boundaries of its jurisdiction and was
subsequently criticized for abandoning its revolutionary and dynamic approach toward the protection
of human rights).
In the past, the ECJ did not hesitate to review cases in which the implementation of UNSC
resolutions violated human rights, but refrained from this review in the Kadi case. De Wet concludes
that the Kadi ruling proves that the regional and national courts do not offer a true response to the
Security Councils lack of accountability. This is because they have not succeeded in conducting real
judicial review in individual cases in which human rights are violated by the direct implementation
of UNSC resolutions (de Wet 2008).

It will be interesting to see what effects the ruling has on the EUs international status. De Burca
claims that the ruling is inconsistent with the way the EU has presented itself until today. The EU
tended to present itself as an actor that is loyal to the international order (as opposed to the maverick
US). The Court, however, adopted an approach that does not concur with the political ambition to be
an influential actor, the commitment to multilateralism, or an effective decision-making processes.
According to the ECJ, there is a substantial gap between the collective security system under the UN
and the EUs Community order in all that pertains to the respect of human rights. From a judicial
57

Case C84/95 Bosphorus v Minister for Transport [1996] ECR I3953.

49

perspective, there is great significance in the fact that this message is delivered by an international
organization (albeit not a normative one) that is a product of international law, and not by a national
organ (de Burca, 2009).
De Burcas claim is different and refreshing in light of the other responses to the ECJ ruling. I
will therefore use her claims in the conclusion to this study. I join the other researchers in arguing
that the ECJ ruling in fact strengthens the international status of the European Union. De Burca on
the other hand, asserts that the ruling damaged the EUs political influence and thus weakened its
international status. I believe that the EUs international status is composed of various complex
factors in addition to the political aspect. As presented in this chapter, there are other factors that
must be considered regarding this question. The controversial activity of the Security Council
emphasized the need to apply judicial review to international entities; and the ECJ was the first
tribunal to do so, preceding even the Strasbourg Court. Thus, the ECJ created a unique niche for the
EU, one that contains much more than just political beliefs.
Regarding involvement in the decision-making process, which de Burca mentions, the Court
ruling has not changed the relationship between the EU and the UN, despite its undermining of the
Security Council decision. Today, the necessary reform to the Security Council seems farther away
than ever. As long as the decision-making process within the Security Council remains the same, the
EU will not be heard in this forum. The EU will continue to make its mark through declarations and
through cooperation in commissions and the various professional entities within the UN. However, it
still does not serve as a central junction for decision-making or as the unified voice of its 27 member
states and thus it seems like there is no change. The EU leaders, whose belief in multilateralism
remains unaltered, will continue to strive for international cooperation, certainly with regard to
collective security.
At the same time, the EU is marching forward, strengthening its international impact in parallel
to the UN. In a world in which the nation-state is one of many actors, one cannot overlook the
economic power of the EU, which makes it a leader in the area of trade policies. The economic
advantages of trading with the EU serve as a tool in its foreign policy and can surely make an impact
on rebellious states in the international system (which may have been proven had the sanctions on
Iran been imposed in all their might). In this way, the EU can continue to affix itself as a leading
power, while mitigating the diplomatic-political weaknesses mentioned by de Burca. After the EU
determines its next objective, the member states will be able to work on a common foreign and

50

security policy that will be evident in international institutions. The EU must cope with the
ambivalence displayed by its institutions between multilateralism on the one hand (primarily in the
attempt to differentiate itself from the United States), while on the other hand actively protecting the
autonomy of the Community order.
The ECJ ruling presents the EU as an influential entity on the topic of human rights in the
international sphere, an alternative channel for making an impact. After a terrible failure in the
intervention in the war in Yugoslavia, which has not yet been forgotten, the EU can choose an
unwavering moral stance that places human rights as a chief principle. The ECJ (in a long and
arduous process) proved that it is possible to reconcile human rights with legislation aimed at
fighting terror. It cannot be assumed that the citizens of Europe, having experienced the trepidation
of international terror, will settle on this matter. It is possible that the ECJ, joined by the ECtHR, can
mold content into the constitutional principles of human rights. In the precedent Kadi case, the Court
was criticized for choosing not to take advantage of its position to impact the UN directly.
The EU, in its attempt to differentiate itself from the European nation-states, demonstrates that
the founding principle of human rights could be the foundation in forming a European identity. This
civil strength, parallel to the global trend of respecting human rights in international entities, can earn
the EU a place of honor within the international system.

51

Conclusions
Being a discourse study of descriptive and analytical articles, my conclusions were revealed over the
course of writing this study. However, I would like to add a number of personal thoughts that arose
while writing this paper and at the end of the integrative discussion.
It seems that we are nearing a boiling point in the global war on terror, at which international
institution will have to rule in one way or another regarding the balance between human rights and
security needs. The media exposure of harsh realities is proof that the widespread wave of human
rights violations and the resulting human rights-free areas is an untenable situation. It seems that
international opinion, especially but not exclusively in the Muslim world, is that the checks and
balances that were disregarded in the international war on terror, must be reexamined. This applies to
the Security Council as well, which, notwithstanding its apparently being the strongest international
entity in the world today, cannot evade judicial review and oversight by the international community.
The ECJ ruling in the Kadi case was published almost a decade after the petition was made, and
in a different international political and social environment, even with respect to security. I feel that
the Kadi case proves that even under the present human rights regime, the war on terror can be
fought aggressively. Moreover, the use of legal instruments increases the legitimacy of the entities
fighting terrorism, such as the Security Council. This adds another aspect to the eternal question
regarding the Security Councils sources of authority and legitimacy.
I share the opinion of Israeli supreme court justice Aharon Barak (who was quoted in the
Advocate Generals opinion to the ECJ in the Kadi case), who writes that the state must fight
terrorism with one hand tied behind its back; thus demonstrating a superior morality to that of the
terrorists.58 Baraks description suits the global imbalance between states and terrorist organizations,
under which the ECJ reviewed the Kadi case and others like it. I claim that the ECJ can lead this
trend and, along with the ECtHR, serve as a moral compass for human rights, while simultaneously
strengthening the international status of the EU as a significant organ that does not automatically
align with the United States. The first step in this direction is the fact that the ECJ chose not to bend
in the face of the Security Council, regardless of the latters expertise and exclusive authority in the
maintenance of international peace and security.
58

Supreme Court of Israel, HCJ 769/02 [2006] The Public Committee Against Torture in Israel et. al. v. The Government
of Israel et. al., paragraphs 61 and 62.

52

The Kadi ruling is evidence of a new order in the international system, according to which no
international organ can act alone on issues of international peace and security. Organizations must
rely on other organizations, even in areas that were considered to be under national sovereignty in
the past, like the protection of basic rights. In many areas, international obligations overlap or even
contradict one another (de Wet, 2007).
Based on the ruling and the reasons it lays out, it is clear that the ramifications of this case
extend beyond the specific criticism against the Security Council and the UN presented in this paper.
The ECJ speaks confidently and liberally, even a bit sarcastically, about the international order. It
can also be assumed that the timing of the ruling was not incidental; the Court delivered a clear
message, at the appropriate hour, regarding the autonomy of the European Community order.
In order to try to assess the international status of the EU after the ruling and its activity vis--vis
the UN and the Security Council, I chose to contend with de Burca (2009) who claims that the
autonomy that the ECJ demonstrates in fact distances Community law from the UN, establishing the
entities as two different spheres. Even considering the judgment that the Court did not uphold the
multilateral approach presented by the leaders of the EU in the CFSP, I still hold that the ruling will
strengthen the international status of the EU, from a holistic perspective. In approaching this
question, I raised other influential factors such as the debate on authority and judicial review in the
international system as well as the ECtHRs standpoint on the implementation of UNSC resolutions.
Having described the background of the EUs activity within the UN, I asserted that the ruling will
not change the EUs impact on the decision-making process in the UN. However, the ruling may
potentially establish a strong autonomous position for the EU in the international system that is not
based on political strength but on a common European moral identity.

This paper gave me the opportunity to process a topic and analyze it from various angles, ultimately
creating an encompassing depiction of the topic. I enjoyed studying a relevant and dynamic issue,
which outlines the inherent dilemma in the global war on terror. I believe that a balance between the
multilateral approach toward collective security and the preservation of the principle of respecting
human rights sheds light on the complexity of the European Unions venture in the past years. It will
be interesting to see how this dynamic endeavor develops.

53

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57

Appendix 1 - Legal context CFI

1. Under Article 24(1) of the Charter of the United Nations, signed at San Francisco (United States
of America) on 26 June 1945, the members of the United Nations confer on the Security Council
primary responsibility for the maintenance of international peace and security, and agree that
in carrying out its duties under this responsibility the Security Council acts on their behalf.
2. Under Article 25 of the Charter of the United Nations, [t]he Members of the United Nations agree
to accept and carry out the decisions of the Security Council in accordance with the present
Charter.
3. In accordance with Article 48(2) of the Charter of the United Nations, the decisions of the Security
Council for the maintenance of international peace and security shall be carried out by the
Members of the United Nations directly and through their action in the appropriate international
agencies of which they are members.
4. According to Article 103 of the Charter of the United Nations, [i]n the event of a conflict between
the obligations of the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present Charter shall
prevail.
5. In accordance with Article 11(1) EU: The Union shall define and implement a common foreign
and security policy covering all areas of foreign and security policy, the objectives of which shall be:
to safeguard the common values, fundamental interests, independence and integrity of the Union in
conformity with the principles of the United Nations Charter, to strengthen the security of the
Union in all ways, to preserve peace and strengthen international security, in accordance with the
principles of the United Nations Charter
6. Under Article 301 EC: Where it is provided, in a common position or in a joint action adopted
according to the provisions of the Treaty on European Union relating to the common foreign and
security policy, for an action by the Community to interrupt or to reduce, in part or completely,
economic relations with one or more third countries, the Council shall take the necessary urgent
measures. The Council shall act by a qualified majority on a proposal from the Commission.
7. Article 60(1) EC provides: If, in the cases envisaged in Article 301, action by the Community is
deemed necessary, the Council may, in accordance with the procedure provided for in Article 301,
take the necessary urgent measures on the movement of capital and on payments as regards
the third countries concerned.
8. Lastly, Article 308 EC provides: If action by the Community should prove necessary to attain, in
the course of the operation of the common market, one of the objectives of the Community, and
this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a
proposal from the Commission and after consulting the European Parliament, take the appropriate
measures.

58

Appendix 2 - Legal context ECJ

1. Under Article 1(1) and (3) of the Charter of the United Nations, signed at San Francisco (United
States of America) on 26 June 1945, the purposes of the United Nations are inter alia [t]o maintain
international peace and security and [t]o achieve international cooperation in solving international
problems of an economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion.
2. Under Article 24(1) and (2) of the Charter of the United Nations:
1. In order to ensure prompt and effective action by the United Nations, its Members confer
on the Security Council primary responsibility for the maintenance of international peace
and security, and agree that in carrying out its duties under this responsibility the Security
Council acts on their behalf.
2. In discharging these duties the Security Council shall act in accordance with the Purposes
and Principles of the United Nations. The specific powers granted to the Security Council
for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.
3. Article 25 of the Charter of the United Nations provides that [t]he Members of the United Nations
agree to accept and carry out the decisions of the Security Council in accordance with the present
Charter.
4. Articles 39, 41 and 48 of the Charter of the United Nations form part of Chapter VII thereof,
headed Action with respect to threats to the peace, breaches of the peace, and acts of aggression.
5. In accordance with Article 39 of the Charter of the United Nations: The Security Council shall
determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall
make recommendations, or decide what measures shall be taken in accordance with Articles 41 and
42, to maintain or restore international peace and security.
6. Article 41 of the Charter of the United Nations is worded as follows: The Security Council may
decide what measures not involving the use of armed force are to be employed to give effect to its
decisions, and it may call upon the Members of the United Nations to apply such measures. These
may include complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
7. By virtue of Article 48(2) of the Charter of the United Nations, the decisions of the Security
Council for the maintenance of international peace and security shall be carried out by the Members
of the United Nations directly and through their action in the appropriate international agencies of
which they are members.
8. Article 103 of the Charter of the United Nations states that [i]n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present Charter shall prevail.

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