Judgment of the European Court of Justice in Kadi: Challenges to International Law, the United Nations Sanctions Regime and Fundamental Rights

On 3 September 2008, the Grand Chamber of the European Court of Justice (ECJ) delivered its long-awaited judgment in joined cases C-402/05 and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission. In its decision, the ECJ set aside two judgments of the Court of First Instance (CFI), in which the CFI held that it had no jurisdiction to review measures adopted by the Community giving effect to resolutions of the United Nations Security Council. Whereas the CFI had bowed to the supremacy of international treaty law in accordance with Article 103 of the UN Charter, the ECJ emphasized the autonomy of the European Community (EC) legal order and reasserted its authority to subject all community acts to full judicial review. Thus, within a span of just under three years, the European Court delivered two fundamentally opposing opinions on the correct understanding of the relationship between European Union (EU) law and public international law, particularly with regard to the UN Charter and Security Council resolutions adopted under Chapter VII. These cases, both in the first instance and on appeal, have received considerable attention by academic writers. Consequently, the purpose of this article is to provide an overview of the various arguments presented in the courts and of some of the main issues that have been scrutinized by leading authors. While the ECJ has been accused of delivering “an unprecedented and stunning blow” to the UN sanctions regime, it is submitted that this judgment has rather served to better the sanctions regime, with an important positive effect on the cause of human rights and the coherence of their protection at national, supranational and international level. To conclude, this article briefly examines possible future developments, as similar cases are still pending before the Community courts. The article reflects developments as of September 2009.