Kadi: Recent Developments

I thought that, given I had already suggested that it might prove a "watershed" moment for global administrative law, leading to the "bottom up" creation of due process rights with respect to the UN Security Council's terrorist listing mechanism, I should give an update of developments in the Kadi case before the ECJ. Although it does seem likely that Security Council members were considering taking such action in the aftermath of the Kadi judgment (see e.g. the comments by Thomas Franck at the NYU colloquium on the subject here), it appears that they have decided - for the moment at least - that the measures taken immediately prior to the ECJ's decision in Security Council Resolution 1822/2008 would be sufficient from its end. Mattias Vermeulen over at The Lift blog noted as follows, in December of last year:

JAN GRAULS (Belgium), speaking as Chair of the Al-Qaida and Taliban sanctions Committee said that resolution 1822 (2008) - a milestone in the life of the Committee established pursuant to resolution 1267 (1999) on Al-Qaida and the Taliban - had introduced several important innovations with regard to the listing and de-listing procedures, the notification of sanctioned individuals and entities, the posting of narrative summaries of reasons for listing on the Committee’s website and the review mechanisms. Those improvements had added to the transparency, fairness and clarity of the sanctions regime.

However, the Chair of the Committee also, it seems, signalled that there was considerable room for improvement:

He said Committee members had committed themselves to transposing resolution 1822 (2008) in a new framework for the practical implementation of the new mechanisms before the end of the year. The new framework would form a solid basis for the next Chair. However, one could not ignore the international context in which those developments had occurred. Security Council sanctions regimes, increasingly under pressure, had recently been questioned, especially in light of the need for fair and clear procedures for listing, de-listing and granting of humanitarian exemptions. The Al-Qaida and Taliban sanctions Committee had not made significant progress in that regard... More must be done to ensure that the right individuals and entities were targeted. Due respect for fair and clear procedures could only increase the effectiveness of the sanctions regimes.

So what does the "milestone" Resolution 1822/2008 actually provide? Here are, for me, the relevant passages relating to the due process concerns relevant to GAL and the Kadi case:

- Para. 12, which "reaffirms" that, where proposing an individual or entity for listing, Member States shall provide a detailed statement of case, indicating which parts may be made publicly available;
- Para. 13, which "directs" the Committee to make available on its website a "summary narrative of reasons" for any decision to list;
- Para. 16, which "underlines" the need for prompt updates of the consolidated list on the Committee's website;
- Para. 16, which "demands" that Member States notify individuals not only that they have been listed, but also provide the reasons for listing that are publicly available, a description of the effects of listing, and information on the de-listing procedure;

There then follow (paras. 19-22) some provisions effectively reiterating and welcoming the provisions of Resolution 1730 (2006) on the establishment of the "focal point" to which listed individuals can make requests for delisting; there is little if anything new here, however. The few remaining paragraphs of relevance (24-26) provide that the Committee should carry out a review of all names on the list by 30 June 2010, and subsequently annually on all names that have not been reviewed for three or more years, "in order to ensure the Consolidated List is as updated and accurate as possible and to confirm that listing remains appropriate".

That there isn't a huge amount of progress here in terms of due process seems a fairly banal assertion; however, the remainder of Resolution 1822 (2008) - which precedes the above procedural tweaks - makes clear that the obligations relating to listed individuals are to be implemented regardless. The very first paragraph of the Resolution "[d]ecides that all States shall take the measures as previously imposed" with regard to individuals on the consolidated list, and, in case we had forgotted, para. 8 "[r]eiterates the obligation of all Member States to implement and enforce the measures set out in paragraph 1 above, and urges all States to redouble their efforts in this regard".

The UN Security Council thus appears to have decided - for the time being at least - that Kadi is Europe's problem; how, then, is Europe dealing with it? With the remarkable Commission Regulation EC 1190/2008, which aims to remedy the infringements found by the ECJ in the Kadi judgment. The Commission, it seems, has decided that these infringements were not particularly serious at all:

3. In order to comply with the judgment of the Court of Justice, the Commission has communicated the narrative summaries of reasons provided by the UN Al-Qaida and Taliban Sanctions Committee, to Mr Kadi and to Al Barakaat International Foundation and given them the opportunity to comment on these grounds in order to make their point of view known.
...
6. After having carefully considered the comments received from Mr Kadi in a letter dated 10 November 2008, and given the preventive nature of the freezing of funds and economic resources, the Commission considers that the listing of Mr Kadi is justified for reasons of his association with the Al-Qaida network.

That's it. They sent Kadi a summary of reasons for his listing, "carefully considered" his comments, and decided that they had been right all along. And this is to remedy the infringements of the "constitutional guarantees" of the EU in relation to individual rights to be heard, to an effective legal remedy, and to property found by the ECJ in one of its highest profile cases of recent years.

Not entirely surprisingly, on the 26th of February 2009, a new action was brought by Kadi:

First, the applicant submits that the contested regulation lacks a sufficient legal basis because it appears to amend Regulation 881/2002 without relevant determination by United Nations which, in the applicant's opinion, is precondition for the amendment of that regulation.

Second, the applicant claims that the contested regulation violates his rights of defence, both the right to an effective hearing and the right to effective judicial protection, and fails to remedy the infringements of those rights as found by the Court in joined cases C-402/05 and C­415/05. He further contends that the contested regulation provides no procedure for communicating to the applicant the evidence on which the decision to freeze his assets was based, or for enabling him to comment meaningfully on that evidence.

Third, the applicant submits that the Commission failed to provide compelling reasons for maintaining the asset freeze against the applicant, in violation of its obligation under Article 253 EC.

Fourth, it claims that the Commission failed to undertake an assessment of all relevant facts and circumstances in deciding whether to enact the contested regulation and therefore manifestly erred in its assessments.

Fifth, the applicant contends that the contested regulation constitutes an unjustified and disproportionate restriction on his right to property which is not justified by compelling evidence.

This promises to be an interesting test, firstly of the credibility of the ECJ, and (if it passes that) secondly of just how far it is prepared to push its defence of the due process rights within the EU in the face of strong pressure from Member States and from the Security Council. Although it is always risky to make predictions in cases such as these, I am not sure how, in the light of its previous judgment, the ECJ could accept these extremely superficial "corrections" made by the Commission as genuine remedies of the infringements it identified whilst retaining credibility. If it does so, rather than being an important decision for the development of global administrative law, the Kadi judgment may becomes rather an important illustration of GAL's "dark side": of how, with remarkably little effort, violations of established rights can be legitimated by a superficial veneer of due process and administrative law talk. (For a similar argument in a different context, that of the WTO's Shrimp/Turtle decision, see this excellent article by B.S. Chimni). To be honest, however, I can't see this happen here.

However, even if it does reject them as insufficient, it may well feel itself compelled to specify more clearly precisely what is required in order to ensure compatibility with the constitutional guarantees of the European Union; and, given that it left itself significant "wiggle room" in its previous judgment, these may fall well short of what some might hope or expect. In this regard, Kadi's first claim above - that the judgment cannot be enforced while he remains on the Security Council's list - strikes me as a bit of a non-starter, given how reluctant the ECJ was to suggest any power over the Security Council in the previous case. The rest, however, seem fairly compelling...

Anyway - here we go again. Hat tip to Professor Monica Claes at the University of Tilburg for bringing this to my attention.