Monday, September 22, 2008

Kadi, the ECJ and the UN Security Council: A watershed moment for GAL?

For an account of the developments since this case was published, see here; and see here for a transcript of an NYU Colloquium on the case.

The long-awaited judgment by the ECJ in the Kadi case was handed down on the 3rd of September 2008. As we had hoped, the Court overruled the judgment of the Court of First Instance, holding that the EU Regulation implementing the Security Council Resolution that had placed Kadi on the list whose funds were to be frozen on suspicion of financing terrorism did not sufficiently respect certain fundamental rights of the appellant, namely his right to be heard, his right to property, and his right to an effective legal remedy. (In fact, a significant proportion of the judgment is concerned with other questions of EU law, and in particular the legal basis for the adoption of the contested Regulation. The ECJ did make different findings from the CFI in this regard, but arrived at the same results; in any event, this aspect of the judgment is of no real relevance from a global administrative law perspective).

In some respects at least, then, the ECJ largely followed the advice given by Advocate General Maduro in his Opinion on the case (and on which I blogged earlier here) – at least inasmuch as it held that the contested Regulation should be struck down on the basis of its failure to respect fundamental rights, despite the fact that it was intended to give effect to a Security Council Resolution that all EU Member States were obliged to implement.

In deciding that Community actions, regardless of whether taken in execution of an international obligation, must respect fundamental rights, the Court followed this basic argumentative path:

1) The Community is based on the rule of law, and neither Community Members and Institutions can avoid review of their actions for compliance with the “basic constitutional charter”, the EC Treaty (para. 281) – and the “general principles of law” of the charter include fundamental human rights (para. 283);
2) The allocation of powers or the autonomy of the European legal order, established by the Treaties, cannot be altered by any international agreement;
3) European case law has established that “measures incompatible with respect for human rights are not acceptable in the Community (para. 284);
4) Therefore, “…the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”, including respect for human rights (para. 285).
5) Any judgment by Community courts that a Community implementing measure did not respect a “higher rule of law in the Community legal order” speaks only to the Community measure, and does not affect the primacy of the international measure under international law.

(It is worth noting here also that the Court rejected the possibility, kept alive by the CFI, that Security Council action could itself be reviewed, even if only in terms of compliance with norms of jus cogens, holding instead that its jurisdiction is entirely limited to review of Community acts - para. 287).

So far, so Maduro: as I noted in my earlier post, the Advocate General’s opinion had in effect proposed that the European legal order should be treated in the same way as a dualistic domestic order; and that thus, regardless of the international liability of the EU or any of its Member States, the ECJ was bound to apply only Community law to Community measures (and thus effectively adopting the same stance towards the Security Council as had the German Constitutional Court towards the ECJ in the famous Solange case). Perhaps the most striking aspect of the ECJ’s decision is that, the above reasoning notwithstanding, they chose not to do so.

Instead, the Court went on to consider in detail the “the relationship between the international legal order under the United Nations and the Community legal order” (para. 290), attaching special importance to the role of the Security Council in maintaining international peace and security (para. 294), and engaging in legal analysis that allowed it to reach two conclusions that seem unnecessary in the light of its earlier assertions – unnecessary, that is, from a strictly dualist perspective at least. Firstly, the Court concluded that

…it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations (para. 299).

Secondly, and perhaps more boldly, the Court also considered the recent ECtHR jurisprudence, such as the controversial Behrami decision, and found that

In the instant case it must be declared that the contested regulation cannot be considered to be an act directly attributable to the United Nations as an action of one of its subsidiary organs created under Chapter VII of the Charter of the United Nations or an action falling within the exercise of powers lawfully delegated by the Security Council pursuant to that chapter (para. 314).

(This finding is, of course, all the more striking considering what the ECtHR had considered directly attributable to the UN in Behrami...)

The ECJ thus decided on the basis of the “constitutional guarantees” enshrined in the European legal order, and in particular the right to be heard, the right to an effective legal remedy, and the right to property, that the contested Regulation should be struck down. Crucially, however, it did this on the basis of an analysis of a mixture of EU, other European regional and public international law.

The Court went on to accept the view that greater deference may be shown to the implementing Regulation should the Security Council take steps to address the rights violations in its listing procedure before the Sanctions Committee; it rejected out of hand, however, the suggestion that the recently improved “re-examination procedure” was sufficient to bring such considerations into play (para. 318-322). The Court specified its concerns in terms that are of striking relevance for the global administrative law project more generally:

... although it is now open to any person or entity to approach the Sanctions Committee directly, submitting a request to be removed from the summary list at what is called the ‘focal’ point, the fact remains that the procedure before that Committee is still in essence diplomatic and intergovernmental, the persons or entities concerned having no real opportunity of asserting their rights and that committee taking its decisions by consensus, each of its members having a right of veto.

The Guidelines of the Sanctions Committee, as last amended on 12 February 2007, make it plain that an applicant submitting a request for removal from the list may in no way assert his rights himself during the procedure before the Sanctions Committee or be represented for that purpose, the Government of his State of residence or of citizenship alone having the right to submit observations on that request.

Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons. (paras. 323-325).

The ECJ then considered in a little more detail the “rights of defence” within the European context, the right to be heard and the right to effective judicial review, holding that they were “patently not respected” in the formulation of the Community implementing Regulation (para. 334). They acknowledged the need for balancing security concerns with the rights of the individuals involved (para. 344), and in particular rejected the idea that the relevant evidence should have been communicated to the suspects before the Regulation was effected, as the element of surprise could be paramount (paras. 340-342). However, this did not mean that all terrorism or security-related regulations fell effectively outwith the scope of judicial review. On the contrary,

Because the Council neither communicated to the appellants the evidence used against them to justify the restrictive measures imposed on them nor afforded them the right to be informed of that evidence within a reasonable period after those measures were enacted, the appellants were not in a position to make their point of view in that respect known to advantage. Therefore, the appellants’ rights of defence, in particular the right to be heard, were not respected.

In addition, given the failure to inform them of the evidence adduced against them and having regard to the relationship, referred to in paragraphs 336 and 337 above, between the rights of the defence and the right to an effective legal remedy, the appellants were also unable to defend their rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that their right to an effective legal remedy has also been infringed.

The Court cannot, therefore, do other than find that it is not able to undertake the review of the lawfulness of the contested regulation in so far as it concerns the appellants, with the result that it must be held that, for that reason too, the fundamental right to an effective legal remedy which they enjoy has not, in the circumstances, been observed (paras. 348-351).

(It’s worth noting that this last finding might be regarded as quite a bold move on the part of the Court: they are, in effect, claiming the right to review the substantive evidence against each listed individual if they are to find that the right to an effective legal remedy has been discharged. This can be contrasted to the position adopted by the UK House of Lords in the Al Jedda case – see my previous post here. See also the brief account of the panel discussion on the Kadi case held at NYU last Wednesday (17/9), in the next post, for a proposal on how this might be circumvented at the Security Council level).

The Court also found that, although security issues could give rise to legitimate restrictions on the right to property, it must “determine whether a fair balance has been struck between the demands of the public interest and the interest of the individuals” in applying its proportionality test (para. 360). It then went on to find that, as Kadi had no chance to put his case to the relevant authorities, the contested Regulation “constitutes an unjustified restriction of his right to property” (para. 370).

This case, as I speculated previously, may thus well turn out to be one of the single most significant advances that the emerging field of global administrative law has yet witnessed. The ECJ has insisted on the respect for certain human rights-based administrative law standards even in that most unlikely of settings: the Security Council’s fight against global terrorism. Of great interest now will be how the Security Council itself reacts: and in particular, if it will seek to correct these violations in its listing procedure before the Sanctions Committee. The smart bet, I think, is that it will. Watch this space…

1 comment:

I.M.Sharma said...

I am impressed by your explanatory note and also your earlier note presenting the Advocate General Maduro's arguments. I would like to know what is the practical effect of the ECtHR's Kadi judgment on the question of freezing funds used for terrorist purposes, certainly stealthily only.
Secondly, I would like to know whether we can reproduce your articles/notes in this Blog in our journals, for example, I edit a journal titled LAW ANIMATED WORLD, a world law fortnightly from Hyderabad, India.