Tuesday, October 14, 2008

The NYU Kadi panel discussion in full

What follows is the full and attributed account of the recent panel discussion at NYU on the Kadi judgment, held in the framework of the IILJ’s Hauser Colloquium on Globalization and Legal Theory, 17th September 2008. Involved in the discussions were the following professors and visiting faculty at NYU: Benedict Kingsbury (moderator), Richard Stewart, Thomas Franck, Eric Posner, Mattias Kumm, Robert Keohane, Robert Howse, Sujit Choudhry, David Dyzenhaus and Eyal Benvenisti. There is also an abridged, unattributed version available here, with some additional commentary from myself. For a GAL-related account of the judgment itself, see here; for some comment on the Advocate General's opinion, written prior to the judgment itself, see here and here. For an account of developments in the months after the judgment was handed down, see here.


Thomas Franck opened discussions with the observation that the Kadi judgment represented what he referred to as the “Texasization” of the European Union in its relations to the international law. This was in reference to the judgment of the US Supreme Court in Medellin v. Texas, in which it held that international treaty commitments entered into by the US Government (in this case, the Vienna Convention on Consular Relations) could not override the applicable criminal law standards of the State of Texas unless Congress had specifically legislated to that effect. Franck suggested that, in effectively granting national constitutional law precedence over international obligations, the ECJ had effectively mirrored the decision of the US Supreme Court in this regard.

He noted, however, that the ECJ in Kadi had created for itself a considerable amount of room for maneuver in striking down the Regulation implementing the Security Council’s Resolution. Firstly, in terms of timing: rather than annulling the Regulation with immediate effect, the Court allowed it to continue in effect for a brief period – not exceeding three months from the date of the judgment – in order to allow the Council to remedy the infringements of fundamental rights that the Court had found. Secondly, Franck noted that the Court explicitly mooted the possibility that any mechanisms created by the Security Council in order to increase the rights protection of those listed by its Sanctions Committee could in future result in it adopting a more deferential attitude towards Security Council Resolutions.

Franck stressed the importance of protecting the Security Council’s role in combating international terrorism, and the need for a coherent and universally binding approach to the issue of freezing the funds of those suspected of financing terrorism. He noted also the need for secrecy in such a process: funds can be moved or hidden with relative ease should advanced warning be given of any plans to freeze them; and the standard security concerns over making public evidence and sources also apply in this context. It is necessary, then, that a balance be struck between these considerations and the protection of individual rights; a balance that, in Franck’s view, the Security Council has not managed to achieve satisfactorily to date.

Franck concluded his comments with a proposal for improving the Security Council procedures, noting that it was being seriously considered by US officials. His proposal focuses on the idea of establishing “probable cause” for freezing funds, rather than “proof” that they will be used to finance terrorism, stressing in doing so that, firstly, the measures taken by the Security Council are temporary, not permanent; and secondly, that they involve merely a freezing of funds and not an expropriation, so that title to the property stays with the suspected individual. Franck suggested that the country seeking the listing of an individual or organization should give the name of perhaps 6 individuals, prominent legal scholars who do not work for the government in question and have not done so for a significant period of time, who would be cleared to see all of the evidence against the suspected individual, and could then give an opinion to the Sanctions Committee as to whether probable cause existed.

Although acknowledging that this, even if instituted, may not “pass muster” in a subsequent review by the ECJ, Franck felt that this kind of independent review might encourage the Court to be more deferential to the obligations imposed on Members by Security Council regulations in this field. In this regard, Franck noted that ordinarily, where one legitimate system has established the existence of probable cause, others will normally recognize that judgment without the need for further investigation – as happens as a matter of course in, for example, extradition proceedings. In his view, it would not be appropriate to establish another standing international court at the UN level to deal with this issue: there are too many of these already; this issue would not generate the workload necessary to justify a standing body; and in any event, it would be preferable to have different investigators used in each case, not a single group of judges.

Eric Posner began his comments by drawing attention to para. 285 of the judgment, according to which “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty”.

This, Posner suggested, was an extremely strong statement on behalf of the ECJ, and not one that it was compelled to take. In effect, the Court held that the constitutional principles of the European legal order will take precedence not only over international law, but over the UN Charter itself. As a result, Posner argued that what we have witnessed with the Kadi judgment is further evidence of the maturing of the European State.

Historically, States have been created through war and violence. Even if neither is present in this case, it might be observed that the birth of states nonetheless always violates international law. This, Posner suggested, could perhaps be explained as a matter of political psychology: that the new State feels the need to reassure its own people that they are its first priority, and that their values will be defended in the face of conflicts with any other legal orders, including the international one.

Posner suggested 4 different implications that the Kadi decision may have:

1) There was a real risk that it would weaken international law, undermining its coherence and favouring instead increased fragmentation, particularly as this decision may well encourage other national courts to adopt a similar stance. However, he also acknowledged that it may have the opposite effect: if the EU is indeed emerging and beginning to act as a single, powerful state, then its traditionally strong support for international law could ultimately lead to a strengthening of the system. Lastly, he noted that the ECJ had sent a clear message to France and Britain that they cannot expect their positions as permanent members of the Security Council to lead to any special treatment.
2) The judgment also raised significant questions over the issue of European constitutionalism. Given that recent attempts to bring an actual “European Constitution” into force have been rejected by the publics of a number of different EU Member States, it is perhaps surprising to see the ECJ rely so heavily on the idea of “constitutional principles” of the European legal order in this judgment. Although this is by no means a new tactic by the Court, the question remains of whether recalcitrant European publics will accept this judicial advancement of the European constitution, when the political route has been blocked.
3) There is a risk that the judgment might undermine the putative universality of human rights law, as the ECJ relies only upon the European human rights regime.
4) Lastly, there is a sense in which the European criticism of the US Supreme Court, and its frequent refusals to consider international law as a factor in its judgments, now rings hollow. Echoing Franck, Posner suggests that the ECJ has simply reaffirmed the US Supreme Court’s view that national constitutional standards take precedence over international law.

Mattias Kumm noted that there is always a temptation in analyzing judgments such as Kadi to place them into one of two categories: either as representative of a monist order, in which international law stands superior to any conflicting national laws; or as supporting a more traditional, dualist position, in which domestic courts apply domestic laws even where these conflict with international commitments.

The Kadi decision, Kumm argued, does not fit into either model. It clearly is not monist; neither, however, does it adopt a traditionally dualist attitude in its interaction with international law. Rather, it adopted an approach that has been central to the European integration project more generally – an approach that respects the principles of European law, but also recognizes and interacts with the wider context in which these are situated in a complex and jurisdictionally sensitive manner. The ECJ both referred to and acknowledged the special role of the Security Council in maintaining international peace and security and gave EU institutions some time to fix the problem without in the meantime undermining the effectiveness of the sanctions. It did not simply ignore the Council, but rather sought to engage in dialogue with it. In this way, it represents a third way of interacting with international law that can be reduced neither to monist or dualist categories.

In deciding in this way the ECJ has ensured that Member States cannot use Community institutions to circumvent national constitutional protections: in many Member States, national constitutional courts may well have struck down implementing legislation if it were introduced domestically – but, generally, actions of Community institutions are not subject to judicial review by national constitutional courts. Furthermore the ECJ protected its authority against possible challenges by national constitutional courts: a different decision by the ECJ may have led some of these national courts – such as, for example, the German Constitutional Court – to challenge the authority of the ECJ by refusing to recognize the ECJ's position as a final arbiter on individual rights. Furthermore the decision takes away the option of Member States to enforce the Sanctions through national rather than EU legislation by insisting that that EU standards regarding human rights would also apply to national implementation measures. In this way the ECJ ensured that the EU would remain the relevant institution to address the implementation of UN Sanctions.

Finally, Kumm observed that, as it currently operates, the UN listing procedure effectively enables the executive branches of government to act in a thoroughly authoritarian manner. The impact upon the human rights of those listed is extremely significant, and would never be countenanced in the context of a democratic state. It is, he said, in a real sense Kafkaesque – an individual can wake up one morning to find that he has no way of accessing any of his funds, but with no idea of what he is suspected of doing, of the evidence against him, or of any meaningful action he can take to remedy the situation.

Robert Keohane introduced a political science perspective to the discussion, noting that sometimes one of the most important consequences of a court decision is to open up a political process that had previously become frozen. There had been little opposition to the US in the Security Council and the Sanctions Committee given its position of dominance – there were few that could challenge it politically and force it to accept procedural guarantees for individuals in the listing procedure. However, this judgment – and the possibility that it will act as a catalyst for similar judgments in other national courts throughout the world – may well have the effect of unblocking the process.

Richard Stewart then suggested that the ECJ could have followed an alternative path to its result, using principles of clear statement used by the US Supreme Court in dealing with congressional statutes delegating very broad discretion to the executive, which exercised the discretion, e.g. to deny passports to asserted Communist sympathizers or denying them security clearances without a hearing, in ways that infringed basic liberty interests. Rather than ruling these actions unconstitutional, the Court found that they had not been authorized by the statutes in question. It stated that notwithstanding their apparent breadth, they should be construed narrowly where basic rights are at risk, thus “remanding” the matter to Congress if it chose to enact more specific legislation. In Kadi, the Security Council resolution was broad in terms but did not specifically prohibit states from providing due process hearing rights to those listed. The ECJ might thus have applied clear statement principles to conclude that those rights were not excluded, effectively requiring the Security Council to address the issue explicitly, perhaps generating a modified resolution that explicitly provides for a measure of procedural protections for listed individuals, while reserving the opportunity to address the “constitutional” relation between Security Council resolutions and Community law on a later occasion if required.

Robert Howse, picking up on Stewart’s suggestion, argued that a careful reading of the Kadi judgment suggests that the ECJ is hinting that there may be a hermeneutic solution to the problem. He cites, for example, para. 296 of the judgment, in which the Court states that “…the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations” in relation to measures taken to implement Security Council Resolutions. It is thus open for the Community institutions, interpreting human rights protection as forming part of the goals of the UN and thus of any action taken by the Security Council, to assume that any implementing legislation must not violate those rights. Thus, para. 296 opens up the possibility for the EU to interpret the Security Council’s intentions as being to act in accordance with human rights, forcing the Council into explicitly stating the contrary should it so desire. The judgment contains no actual statement from the ECJ that the Security Council has obliged States to act in a manner that violates human or fundamental rights.

Sujit Choudhry noted that, notwithstanding the ECJ’s statement that it would not review the legality of Security Council resolutions under international law, it proceeded to offer an interpretation of Chapter VII in para. 298 of the judgment, as it states that “[i]t must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each Member of the United Nations”. Although the ECJ did not explicitly say so, the requirements of a “domestic legal order” would include constitutional guarantees of human rights, such as those found in the EU. There are two ways to read para. 298. First, it may establish a clear statement rule, as Howse suggested. This approach to confining the scope of the Security Council’s powers under Chapter VII arguably underlies the recent decision of the UK House of Lords in the Al Jedda Case, in which it had found that a Security Council authorization to UK and US forces in Iraq to detain suspects without trial “where necessary for imperative reasons of security” did not entirely override Article 5(1) of the European Convention on Human Rights (on the right to liberty and protection against arbitrary detention), but rather merely modified or qualified its application (see para. 39 of that judgment: “the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee's rights under article 5 are not infringed to any greater extent than is inherent in such detention”).

Second, Choudhry also suggested that para. 298 may even be read in such a manner as to imply a doctrine of ultra vires applicable to the Security Council – i.e. that its powers are bounded by the human rights obligations that form part of the object and purposes of the United Nations. Benedict Kingsbury challenged this proposition, however, noting that it the Court seemed to have gone out of its way to avoid saying anything that could be construed in this manner, refusing even to consider the question, as the Court of First Instance had done, of whether the actions of Security Council could themselves be reviewed (as opposed to actions of Community institutions implementing them) for potential violations of jus cogens obligations.

David Dyzenhaus read the following passage from an early English case, Cooper v. The Board of Works for the Wandsworth District (1893), in which the Court referred to “…a long course of decisions, beginning with Dr. Bentley's case, and ending with some very recent cases, [which] establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, ‘The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), ‘where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?’”. Again, then, this seemed to provide further support for the idea, already suggested by a number of commentators, that an intention to grant a hearing to the accused should be attributed to any legislator, unless the latter explicitly states to the contrary.

Eyal Benvenisti, referring to the likelihood that the Kadi judgment would lead to the creation of some kind of hearings and review mechanism within the Sanctions Committee, argued that what we are witnessing is not (or not only) the birth of the European State, but also the Europeanization of the UN system. In further support of this, he referred to Advocate General Maduro’s suggestion, in his Opinion in the Kadi case and which displayed, in some respects at least, the same logic as that relied on by the Court, that all Member States are compelled, in all of their activities, to act in accordance with the basic principles of European law. “As Members of the United Nations, the Member States, and particularly – in the context of the present case – those belonging to the Security Council, have to act in such a way as to prevent, as far as possible, the adoption of decisions by organs of the United Nations that are liable to enter into conflict with the core principles of the Community legal order. The Member States themselves, therefore, carry a responsibility to minimise the risk of conflicts between the Community legal order and international law” (see para. 32 of the Opinion). This could, if it is an accurate reflection of EU law, have huge implications for the future direction of the UN. Benedict Kingsbury, however, noted that the ECJ itself had remained completely silent on this question.

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