Case note on T-85/09 Yassin Abdullah Kadi v European Commission
On 15 October 1999 the Security Council (SC) adopted Resolution 1267, which provides that all the States must “freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban”. This Resolution was later strengthened and reaffirmed by subsequent Resolutions.
In order to implement the sanctions the European Council adopted Regulation No 467/2001. At the third amendment of this regulation, the name of Al-Qadi, Yasin (Kadi) was added to the list. Mr. Kadi brought an action before the Court of First Instance (CFI) for annulment of Regulations No 467/2001 (the applicant later extended his claims also to Regulation No 881/2002) and 2062/2001, in so far as those regulations concerned him, on the grounds, inter alia, that those measures breached his right to be heard, his right to effective judicial protection and that they constituted a disproportionate breach of his property rights.
The CFI reaffirmed the position of the International Court of Justice that some human rights norms constitute intransgressible principles of international customary law, however, it rejected the challenge by Kadi to his listing. The court argued that there had been no violation of jus cogens norms and the CFI therefore had no jurisdiction to review the lawfulness of blacklisting decisions. In 2008, the European Court of Justice (ECJ) overturned the decision and held that EU Courts must ensure the full review of the lawfulness of all Community acts in the light of the fundamental rights, including those implementing SC resolutions. In 2008, a new regulation maintaining the freeze of Mr Kadi’s funds was adopted by the European Commission, which Mr Kadi desired to annul before the European General Court (EGC), this time initiating proceedings only against the European Commission.
The legal question raised in this case is essentially the impact of the above mentioned blacklist on the right to judicial protection of the listed individuals and entities. This is the main question because it is well known that some key elements of the UN sanctions regimes are not in accordance with international law principles of legitimacy, transparency and the observance of human rights. Ironically, it was the international community's concerns about the human rights implications of general sanctions that led the SC to implement targeted sanctions and now this regime was challenged due to the fact that it was violating the same rights it was envisaged to protect.
Inevitably however, a second legal question was implicitly raised. This concerns the legality of the SC measures, although the claimant had not directly challenged this point. As the Regulations had transposed the relevant SC resolutions almost word by word, any review of the substance of the challenged Regulations would necessarily amount to indirect review of the legality of the relevant SC measures.
The EGC’s understanding of the relationship between the EU and the UN order
The ECJ regards the constitutional framework created by the EC Treaty as an autonomous legal system, not subject to the higher rules of international law. Within this autonomous legal order fundamental rights form an integral part of the general and constitutional principles. The rationale behind this is that the EU is built on “the principle of liberty, democracy and respect for human rights and fundamental freedoms”. As a result, they cannot be prejudiced by an international agreement, be it the UN Charter or otherwise, “despite the fact that the treaty in question, in this case the UN Charter, maintains its primacy under the international law”. The reason why this judgment of the ECJ was described as somewhat rebellious is because it indirectly “calls into question this primacy of the UN Security Council” by advocating this dualistic approach with regard to the UN legal order.
This horizontal relationship between the UN and EU order is opposed to the view of the CFI, which stated that there is a vertical relationship between the UN and EU order (a hierarchy between them), and the EU courts have no authority to call in question, even indirectly, the lawfulness of SC resolutions in the light of Community law.
In the present case the EGC is not bound by the points of law decided by the ECJ. It is obvious from the judgment of the EGC that is not comfortable with the ECJ’s reasoning, acknowledging that the criticisms brought against the judgment are not without foundation. Although, the court is not bound by the ECJ judgment, “the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the EGC revisiting points of law which have been decided” by the ECJ”.
As a consequence of this horizontal relationship, the ECJ declared that the courts must ensure the full review of the lawfulness of all Community acts, including measures designed to give effect to the resolutions adopted by SC. The EGC follows this line of argumentation rejecting the argument for marginal review, disassociating the international from the domestic measure, and engaging in “full review” as required by ECJ.
The author of this case note submits the EGC understanding of the relationship is better, because it wants to reconcile the ECJ’s demand for full review and in the same time not to question the supremacy of the UN Charter. However, this is a difficult task and presently the court cannot do anything, but to grudgingly follow the line of argumentation of the ECJ. We have to keep in mind, that questioning the supremacy of the UN, which is responsible for the maintenance of peace, can create dangerous precedents.
The critiques lodged by the EGC in 2010 against the UN system
Firstly, the EGC considers that the SC has still not considered it appropriate to set up an independent and impartial body responsible for “hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee”. It is true that, “Office of the Ombudsperson” (OO) was established, but this is not a tribunal within the meaning of the International Covenant on Civil and Political Rights (ICCPR) and lacks the authority to grant relief in cases where human rights have been violated. Moreover, the Court deems that “neither the focal point mechanism nor the Office of the Ombudsperson affects the principle that removal of a person from the Sanctions Committee’s list requires consensus within the committee”. As a result, the procedures for delisting under Resolution 1989 "continue to fall short of the standards required to ensure a fair and public hearing by a competent, independent and impartial tribunal established by law".
Secondly, the EGC complains about the regime of evidences, according to which the State which proposed the inclusion of an individual or entity on the Sanctions Committee’s list has total discretion regarding the disclosure of evidence to the person concerned. In addition, “there is no mechanism to ensure that sufficient information be made available to the person concerned in order to allow him to defend himself effectively”. In the present case, the applicant was not even granted minimal access to the evidence against him. As a consequence, no balance was struck between his interests and the need to protect the confidential nature of the information in question.
To sum up, the creation of the OO is definitely a step closer to guaranteeing the rights of the enlisted individuals and entities, but falls short from creating an effective judicial procedure for review of decisions of the Sanctions Committee by a competent and independent review mechanism, the right to counsel with respect to all proceedings, and the right to an effective remedy. Furthermore, the current regime of evidence is incompatible with due process rights.
The extent to which Security Council Resolutions 1267 and 1989 answer the critiques of the EGC
As a result of increasing criticism regarding due process concerns from regional courts (as shown before) the SC subjected the 1267 regime to a number of reforms. Most importantly, resolution 1904 introduced an impartial and independent body, the OO, to receive requests from individuals and entities seeking to be removed from the Consolidated List.
Moreover, through Resolution 1989 the de-listing procedures in the OO were improved. According to this Resolution the Ombudsperson can present to the Sanctions Committee observations and a recommendation either to retain the listing or that the Committee consider delisting. Another improvement is that the designating State also has the power to de-list, which was lacking until now.
However, the most important provision of the above mentioned Resolution is that it shifts the burden of consensus onto the decision to retain the sanctioning measures. In other words, in cases where the designating State or the Ombudsperson proposes to the Committee to consider a de-listing, States are required to end the sanctions measures against those individuals, groups, undertakings or entities after the Committee has considered the Comprehensive Report. States have 60 days to terminate the sanctions, unless the Committee decides by consensus that the measure shall remain in place, or a Committee Member decides to refer the matter to the SC. Therefore, the proposal to delist will by default become the decision, unless reversed by consensus.
If it would become a practice for States not to contest the delisting recommendations, then the Ombudsperson could be considered as a de facto review mechanism. EU courts could even expect a listed individual to seek delisting through the OO, before turning to domestic courts.
A political solution for the issue of the disclosure of evidence was suggested by Ginsborg and Scheinin. Having in mind that at any given time there are at least 2 EU member states in the Security Council, one of these states could block any listing proposal made to the 1267 Committee, where the proposing state does not accepts to disclose the information used for the listing decision. Furthermore, this information should be disclosed in a manner that would enable the EU courts to exercise judicial review over the implementation of the resulting sanctions thus resolving the issue of disclosure.
Balancing between human rights and security considerations
The right of access to the courts is a principle recognised by both the Universal Declaration of Human Rights and the ICCPR. However, this is not an absolute right. On the one hand, at a time of public emergency which threatens the life of the nation, measures may be taken derogating from that right, as provided for on certain conditions by Article 4(1) of that Covenant. In this context the European Court of Human Rights recognises that the use of confidential information may be necessary when national security is concerned, but that does not mean, that national authorities are free from any review by the national courts. The CFI embraced this idea in the OMPI case and later in the Kadi judgment. The EGC stated that considerations relating to safety of the Community may militate against the communication of certain information to the persons involved. However, in such a case the Community judicature should apply in the course of the judicial review “techniques which accommodate, the legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned with the need to accord the individual a sufficient measure of procedural justice”.
Courts confronted with targeted sanctions are increasingly trying to ensure that a fair hearing is guaranteed for blacklisted persons. But, a more preferable alternative would be to introduce some form of independent and impartial review at the UN level itself or judicial review by regional or national courts. However, there are fears that this could lead to non-implementation of SC measures and thus could lead to structural erosion of the UN system of collective security. The recent developments in the Kadi case must be seen as a challenge addressed to the SC to further develop international law in order to put an end to the present legal limbo. It remains to be seen how the SC will respond to this new challenge.
 Security Council, Resolution 1267 (1999), para. 4(b).
 Case T-315/01 Kadi v Council and Commission, Judgment of 21.09.2005, para. 18.
 Id., para. 24.
 Id., para. 59.
 The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226, paragraph 79.
 Kadi 2005, supra note 2, paras. 252, 276, 291.
 Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008, para. 326.
 L. Herik & N. Schrijver, Eroding the Primacy of the UN System of Collective Security: The Judgment of the European Court of Justice in the Cases of Kadi and Al Barakaat, 5 IOLR 329, at 331 (2008).
 J. Genser & K. Barth, When Due Process Concerns Become Dangerous: The Security Council’s 1267 regime and the need to reform, 33 BCI&CLR 1, at 3 (2010).
 Schrijver, supra note 8, at 331-332.
 Kadi 2008, supra note 7, para. 316.
 E. de Wet, Human rights Considerations in the Enforcement of Security Council Sanctions in the EU Legal Order, at 8 in B. Fassebender, The United Nations Security Council and Human Rights (2011).
 2006, Consolidated Versions of the Treaty of the EU and of the Treaty Establishing the EC, Article 6(1).
 Wet, supra note 12. at 9.
 Schrijver, supra note 8, at 330.
 Id., at 336.
 Kadi 2005, supra note 2, para. 225.
 Case T-85/09 Kadi v Commission, Judgment of 30.09.2010, para. 112.
 Id., para 121.
 Kadi 2008, supra note 7, para. 326.
 A. Tzanakopoulos, Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU, 2011. See: http://www.ejiltalk.org/kadi-ii-the-1267-sanctions-regime-back-before-the-general-court-of-the-eu/
 Case T-85/09 Kadi v Commission, Judgment of 30.09.2010, para. 128.
 1976, International Covenant on Civil and Political Rights, Article 14.
 L. Ginsborg & M. Scheinin, You Can't Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime, 8 EHRR 7, at 12 (2011).
 Kadi 2010, supra note 23, para. 128.
 Ginsborg, supra note 25, at 11.
 Kadi 2010, supra note 23, para. 128
 Id., para. 173.
 Id., para. 128.
 Ginsborg, supra note 25, at 10.
 Id., at 11.
 Id., at 13.
 Id., at 18.
 1948, Universal Declaration of Human Rights, Article 8.
 1976, International Covenant on Civil and Political Rights, Article 14.
 Öcalan v Turkey of 12 March 2003, Judgment of 12.03.2003, not published, para. 106.
 Case T-228/02, OMPI v Council of the European Union, Judgment of 12.12.2006, para. 156.
 Kadi 2010, supra note 23, para. 134.