Thursday, August 6, 2009

Post-Kadi progress within the EU?

The second post that I wanted to flag today from over at the EJIL:Talk! blog is an excellent round-up and analysis of post-Kadi developments by Devika Howell: 'A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi'. The author discusses Kadi's new appeal, the Kadi case as precedent in the Othman judgment, and the proposal by the European Commission, on the 22nd of April 2009, for a new Council regulation.

Howell is more positive on the transformative potential last of these than I am at present. On one hand, she is correct in noting that

The proposed regulation provides for ‘a listing procedure ensuring that the fundamental rights of defence and in particular the right to be heard are respected’ in the case of all individuals and entities listed by the UN. The proposed regulation would replace the current system of automatic listing with a duty upon the Commission to consider the appropriateness of the listing independently. It also provides for a method by which to consider classified information of the UN and other member states. Due in large part to the failure of the Security Council to provide satisfactory due process protections, this proposed measure threatens to take decision-making about sanctions out of the hands of the Security Council and into the hands of a regional body.

On the other hand, however, as I have already blogged previously, the proposed regulation is little if anything more than a general formalisation of the - fairly paltry - concessions made to the individuals concerned in the light of the Kadi judgment: a short statement of reasons, an opportunity to make representations, and a promise to take these into consideration. As before, the really interesting question is whether or not the ECJ will view these as significant enough changes to fulfil human rights obligations; as it stands, I feel it is not a massively important adjustment.

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