chapter  15
20 Pages

The relationship between Community law and international law after Kadi: did the ECJ slam the door on effective multilateralism?: Aurel Sari

Never before has a case generated quite as much excitement and debate among European and international lawyers as the judgment delivered by the European Court of Justice (ECJ) in the joined cases of Kadi and Al-Barakaat in September 2008.1 The cases mainly turned on the question of whether the Community courts are competent to exercise their powers of judicial review over Community measures designed to implement sanctions adopted by the Security Council under Chapter VII of the Charter of the United Nations on the ground that these measures are contrary to fundamental human rights protected by Community law.2 In September 2005, the Court of First Instance (CFI) held that it lacked the authority to annul Council Regulation (EC) No. 881/2002 of 27 May 2002 which imposed sanctions against certain persons and entities associated with Usama bin Laden, Al-Qaida and the Taliban,3 as doing so would amount to an indirect review of the UN sanctions regime in contravention of both Community law and the UN Charter.4 Nevertheless, the Court found that it was entitled to subject resolutions of the Security Council to a more limited form of scrutiny by testing their compatibility with jus cogens norms. On appeal, the ECJ rejected this line of reasoning and declared that obligations imposed on the member states by the UN Charter cannot prevail over principles that ‘form part of the very foundations’ of the

must ensure the review of ‘all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures…designed to give effect to the resolutions adopted by the Security Council’.6