The Kadi Case: What Relationship is

there between the Universal Legal Order

under the Auspices of the United Nations
and the EU Legal Order?
Christian Tomuschat*

I. Introduction
The two cases of Kadi1 and Yusuf 2 as well as the later Ayadi3 case, adjudicated
by the two European Community Courts,4 have stirred up both reflection and
emotion among legal scholars. The facts are well known. What legal protection
is enjoyed by a person who finds himselfare there any women on the list?5
all of a sudden on a Consolidated List established by one of the Sanctions
Committees of the Security Council, as a suspected terrorist or as a sympathizer
of terrorism and whose assets thereupon become inaccessible overnight by virtue
of a freezing order, not just for one day, but perhaps for weeks, months, or even
years? It is not only the tragedy which an individual hit by such measures of
constraint has to endure that has attracted the attention of international lawyers.
The conundrum of the three cases is the conflict that they encapsulate between
the legal order of the European Union and the law of the United Nations.
Under the latter, hardly any legal constraints limit the action of the Security
Council. No direct remedy is available that could be filed against a resolution of
the Security Council deemed unlawful by one of its addressees. Not even States
can institute proceedings against the Security Council, and individuals have
no place whatsoever as holders of rights within the institutional framework of
the Charter.
* Professor em. of constitutional, international and European law, Humbolt University Berlin,
Faculty of Law; Member of the Institute of International Law.
1
Case T-315/01 Kadi and Al Barakaat v Council and Commission, Court of First Instance, 21
September 2005; Court of Justice of the European Communities, Case C-402/05 P, 3 September,
Advocate General Maduro, Opinion of 16 January 2008.
2
Case T-306/01 Yusuf and Al Barakaat v Council and Commission, Court of First Instance,
3
21 September 2005.
Case T-253/02 Ayadi v Council, 12 July 2006.
4
A judgment on appeal was rendered only in Kadi.
5
I have found no female name on the list which is easily accessible through the Internet.

What Relationship between Universal Legal Order and EU Legal Order? 655
It is a recent phenomenon that the Security Council targets individuals
through its resolutions. Back in 1945, the framers of the Charter proceeded
from the assumption that the Security Council would deal almost exclusively
with States, and in any event not with individuals. De jure this situation remains
unchanged. The Security Council continues to address its orders mainly to
States, sometimes also to other subjects of international law, and sometimes even
to groups that do not enjoy personality under international lawbut human
beings as such are never addressed individually. The Security Council does not
attempt to directly impose specific duties upon them. Many reasons dictate that
solution, among them the fact that the Security Council also lacks an enforcement mechanism of worldwide scope. Therefore, it confines itself to imparting
orders to States which are then required to take the appropriate measures of
implementation. But the Security Council has taken to identifying by name
those persons that should be hit by the sanctions it has determined. Thus, the
States to which the relevant determinations are addressed have no freedom of
choice. They are bound to implement, name by name, as a rule on the basis of
specific legislative acts, the lists which the Security Council has established.
Inevitably, the question arises as to who can be made accountable if the Security
Council has based its findings on faulty evidence. Is it the Stateor an international organization replacing itthat has to bear responsibility, notwithstanding its lack of discretionary leeway in implementing the decisions of the
Security Council, or must the blame be put on the Security Council? The former alternative is much more advantageous for the individual victim inasmuch
as the Security Council is located at astronomic heights above any challenge by
mortals. Only if the implementing machinery can be called into question does
the victim have any chance of successfully asserting the rights which he feels have
been infringed by his placement on a list of suspicion.
We know that such a conflict arose between the three applicants Kadi, Yusuf,
and Ayadi, and we also know that the Court of First Instance as well as the ECJ
itself experienced considerable difficulties in finding the correct answers to
clarifying the legal position. The existence of a conflict of laws could not be
denied. Should the determinations of the Security Council prevail without any
modification or reservation, or was the European Community entitled to insist
on respect for basic human rights which, according to its view, had not been
complied with by the Security Council?

II. The Point of Departure

From the viewpoint of the Charter, no major difficulties arise. The Charter
provides that resolutions of the Security Council under Chapter VII are binding
(Articles 25 and 41). Additionally, Article 103 states that in the event of a
conflict between the obligations of a member of the United Nations and its

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Tomuschat

obligations under any other international agreement, the obligations under the
Charter shall prevail. Thus, the Charter gives unreserved primacy to its stipulations. However, technically it addresses only members of the Organization (see
Article 48 of the Charter). On the other hand, the European Treaties have
refrained from comprehensively regulating the effect of other rules of international law within the European legal order. It can be deduced from Article 300
(6) EC that international treaties concluded by the European Community are
hierarchically subordinated to the EC Treaty itself; by contrast, according to
the jurisprudence of the Court of Justice, they prevail over enactments of secondary law.6 Other judgments have established the proposition that general
rules of international law are also to be considered as part and parcel of community law, similarly taking precedence over acts of secondary legislation.7 In
principle, therefore, the European legal order can be said to open its gates to
international law according to a monist conception of the mutual relationship.

III. The Binding Effect of the UN Charter on the EC/EU

Yet the European treaties remain silent about the effect, within the European
legal order, of treaties to which the European Community is not a party. If one
applies the maxim pacta tertiis nec prosunt nec nocent, as enshrined in both
Vienna Conventions on the Law of Treaties (Article 34), one can easily argue
that the law of the Charter and the secondary law derived therefrom can have no
bearing on the European legal order.8 Yet things are not so simple. The Charter
is not a treaty like any other treaty. It embodies the fundamental principles of
todays international legal order. Moreover, all of the Member States of the
European Union are at the same time members of the United Nations inasmuch
as membership of the world organization today is almost universal, with the sole
exceptions of Kosovo and Taiwan.
Thus, the first question to be answered is: does the Charter have a directly
binding effect on the European Community/European Union (EC/EU) as a
subject of international law? The Court of First Instance deals at length with this
issue.9 Referring to its earlier decision in Dorsch Consult,10 it states quite categorically (para 192) that 11
6

See recently Case C-308/06 Intertanko, 3 June 2008, para 42.

Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, para 9; Case C-162/96
Racke [1998] ECR I-3655, para 45.
8
Article 34 of the 1986 Vienna Convention II states a proposition that requires careful examination. The personality of an international organization does not have the same degree of
autonomy as the sovereignty of a State. Still, the States Parties to the statute of an organization are
the masters of that organization. The comments by Emmanuel Klimis, in: Olivier Corten and
Pierre Klein, Les Conventions de Vienne sur le droit des traites, Vol. II (Brussels, 2006) pp 1417
9
1423, do not perceive the issue.
Kadi, paras 177208.
10
11
Case T-184/95, [1998] ECR II-667, para 74.
All the references are to the Kadi case.
7

What Relationship between Universal Legal Order and EU Legal Order? 657
unlike its Member States, the Community as such is not directly bound by the Charter
of the United Nations and that it is not therefore required, as an obligation of general
public international law, to accept and carry out the decisions of the Security Council in
accordance with Article 25 of that Charter.

But it then proceeds to derive the binding force of the Charter from the EC Treaty
where the Member States have expressed their will to abide by the commitments
arising for them at UN level. While it remains the case that the Court does not
recognize the Charter as the source of those commitments (para 207), it eventually
subordinates the EC legal order to the UN legal system by applying the doctrine of
functional succession as resorted to in United Fruit12 in respect of the GATT. On
the whole, therefore, the Court of First Instance can be deemed to advocate the
unity of the international legal order, a truly monistic concept of international law
in accordance with the general orientation of the jurisprudence of the ECJ.
This concept also underlies the observation of the Court of First Instance that
the powers of the Security Council are limited by any applicable rules of jus
cogens. If indeed the international legal order constitutes an integrated whole, the
necessary inference is that the Security Council does not operate in a vacuum.
The general rules that the international community has embraced as the foundation of its existence must also then apply to the Security Council. The
Security Council does not lead an existence outside and above the law. To sum
up, one may conclude that the Court of First Instance presents a logically
coherent concept.
Curiously enough, the ECJ itself does not squarely address the question as to
whether the EC/EU is directly bound by the Charter. Before coming to that
question, it first of all heralds that (para 285)
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.

Initially, no hint is made as to the legal reasons that would support the proposition that the Community is placed under a legal obligation to abide by United
Nations law, the issue which the ECJ had to deal with in the case at hand. At a
later stage, such reasons are provided, albeit in very general terms. Thus, in
paragraph 291, the ECJ observes that the European Community must respect
international law in the exercise of its powers, yet its reference to the two earlier
judgments of Poulsen and Diva Navigation13 and Racke14 is not really to the
point, since general rules of international law must of course be binding on
12
13
14

Joined Cases 21/72 to 24/72, [1972] ECR 1219, para 18.

Above n 7.
Above n 7.

658

Tomuschat

international organizations which cannot have a better status than States, the
main actors in international law. Likewise, the statement in paragraph 292 to the
effect that the powers under Articles 177 to 181 EC in the field of development
cooperation must be exercised in observance of the undertakings given in the
context of the United Nations and other international organizations15 is not very
helpful: if commitments have been entered into, they must of course be complied
with. All of a sudden (para 293), the ECJ then speaks of the undertakings given
in the context of the United Nations in the sphere of the maintenance of international peace and security, underlining that the Community must
attach special importance to the fact that, in accordance with Article 24 of the Charter of
the United Nations, the adoption by the Security Council of resolutions under Chapter
VII of the Charter constitutes the exercise of the primary responsibility with which that
international body is invested for the maintenance of peace and security at the global
level, a responsibility which, under Chapter VII, includes the power to determine what
and who poses a threat to international peace and security and to take the measures
necessary to maintain or restore them.

This observation sounds like a full-fledged endorsement of the special position

of the United Nations within the architecture of todays international law,
without any regard for arguments that would fit into the traditional classes of
legal reasoning. In particular, the pacta tertiis rule is totally left aside. The ECJ
appears to recognize the overriding importance of the system of the United
Nations with its pivotal institution, the Security Council.
However, the ECJ is not entirely happy with this result. Returning to its
introductory remarks on the ideological foundations of the European legal order,
it downgrades in what follows its acceptance of the emanations of the political
process at the United Nations. In paragraph 296, it avoids the words abide or
comply, but says instead that the Community must, when implementing a
Security Council resolution, take due account of the terms and objectives of the
resolution concerned and of the relevant obligations under the Charter of the
United Nations. Furthermore, the ECJ suddenly mixes up two different issues;
on the one hand the actual issue of substantive law, the emerging conflict of laws,
and the issue of how to implement commitments resulting from the United
Nations system. Logically, the first question is to what extent the European legal
order owes deference to the United Nations system. Are there any core values
which Europe must defend against interference by the United Nations? Is there a
need to draw boundary lines in order to check the decision-making processes at
the Security Council? Only thereafter, as a second step, would the question arise
by what procedural means the assumed core values should be defended.
Regarding the first issue, the ECJ makes very blunt statements, demonstrating that it puts little faith in the conformity of the UN system with the rule of
15

Case C-91/05 Commission v Council, 20 May 2008, para 65.

What Relationship between Universal Legal Order and EU Legal Order? 659
law and human rights. According to paragraph 303 of the judgment, which
reiterates the language used in paragraph 285, there can be no derogation from
the principles of liberty, democracy, and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as the foundation of the Union.
This sentence can be read in the most diverse ways. Does the ECJ require that
those principles must be maintained to their full extent as understood within the
European system, or do the Luxemburg judges only wish to protect the core
substance of those principles? According to the former reading, the judgment
would be more radical than even the Solange I jurisprudence of the German
Constitutional Court.16
Following this, when dealing with the methodology of implementation, the
ECJ abandons the position it had affirmed in paragraph 293 by belittling the
hierarchical position, within the European legal edifice, of the UN Charter
which it equates with a treaty concluded by the Community. Hypothetically, it
inquires as to what place obligations under the Charter of the United Nations
would occupy in the hierarchy of norms within the Community legal order if
those obligations were to be classified in that hierarchy (para 305), coming
eventually to the conclusion that they could not affect the primary law of the
Community.
This is a curious mixture of arguments moving in totally opposite directions.
On the one hand, the ECJ takes note of the specific role of the United Nations
within the framework of the international legal order. It acknowledges that the
Charter and the organization brought into being by it, the United Nations, are
the core elements of the system for the protection and maintenance of international peace and security and that, accordingly, deference is owed to them. In
fact, their paramount importance has been recognized by all the Member States
of the EC/EU through their acceptance of Article 103 of the Charter. Since the
Member States are all bound by their obligations under the Charter, they of
course cannot escape those commitments by establishing an international
organization or other entity to which they transfer certain elements of their
sovereign powers. Thus, for instance, NATO is bound by the principle of nonuse of force laid down in Article 2(4) of the Charter despite not being a member
of the United Nations. Pursuant to the jurisprudence of the European Court of
Human Rights both in Matthews17 and in Bosphorus,18 individual States cannot
completely shed their responsibility for complying with their obligations under
the European Convention on Human Rights through their involvement in the
European Community.19 On the other hand, however, the Court eventually
embraces a dualist model where the law of the Community prevails over any
16

37 BVerfGE 271, 29 May 1974.

Judgment of 18 February 1999, Application no 24833/94, 3234.
Judgment of 30 June 2005, Application no 45036/98, 154156.
19
See also Behrami and Saramati, decision of 2 May 2007, Application nos 71412/01 and
78166/01, 145.
17
18

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Tomuschat

requirements resulting from the UN legal order if some core elements of the
Community system are affected. In this second part of its reasoning, the ECJ
openly disregards Article 103 of the Charter, which is not even mentioned. In
this respect, it follows Advocate General Maduro who deals with this provision
in an extremely light-handed way in paragraph 39 of his Opinion.

IV. Grounds for Defending the Autonomy

of the European Legal Order
Whatever the answer to the question of the binding effect of the Charter on the
EU/EC, for the Court the decisive criterion is the necessity of defending basic
human rights against disproportionate interference by the Security Council. Of
course, the EC/EU cannot invoke its sovereignty, the classic tool of States,
when defending its human rights acquis since its area of jurisdiction cannot be
classified as sovereignty, which is a term reserved to States. In substance, however, no relevant difference can be seen between sovereignty, on the one hand,
and competence, on the other. If contradictory claims are made by entities
wielding public power, the ensuing conflicts must be resolved. Today, such
conflicts are more often than not fought with substantive arguments. Thus, in
Solange I the German Constitutional Court criticized in exactly the same way as
the CJEC the lack of adequate human rights guarantees in Community law. For
the ECJ, the dualist construction of the relationship between the two competing
legal orders is rendered necessary by the perceived inadequacy of the mechanisms for the protection of human rights within the UN system. However, is the
alleged lack of adequate protection real, or does the ECJ ride roughshod over
international mechanisms that have their own logic and justification?
It must be openly acknowledged that the machinery available at UN level for
the protection of individual human rights falls short of the demands consecrated
by the relevant human rights treaties, the International Covenant on Civil and
Political Rights as well as the existing regional treaties. As a general rule, for the
defence of private (civil) rights judicial protection is provided for.20 No such
judicial mechanism exists at the United Nations. The UN Administrative Tribunal21 has a limited mandate only as an institution entrusted with adjudicating
disputes between the world organization and its staff. Obviously, the Security
Council is not eager to be placed under judicial review. Although the establishment of an administrative tribunal tasked with reviewing decisions of one of
the Sanctions Committees, ie within a limited area ratione materiae, would not
amount to subjecting the Security Council generally to judicial oversight, such a
measure would have high symbolic value as a first step towards the introduction
20
21

ICCPR, Article 14 (1); ECHR, Article 6(1).

Established by UN GA resolution 351 (IV ), 1949.

What Relationship between Universal Legal Order and EU Legal Order? 661
of a system of constitutional justice at the United Nations. Reflection on whether to embark on such a course has already proved abortive: the Security
Council is not prepared to accept such a mechanism.22
Is the current system of diplomatic protection of such poor quality that
indeed it cannot be recognized as a substitute for judicial review proper? Martin
Scheinin will focus on this issue in greater detail, which however cannot be
totally eclipsed here because the alleged defects of the mechanism provide the
justification for the ECJs rejection of the mechanism as satisfying the criteria of
due process and thereby its insistence on the autonomy of the European legal
order. It seems that the ECJ dealt fairly hastily with the requirements of due
process, stating quite categorically that only a judicial mechanism meets the
appropriate standard. One may call that observation into question. On the other
hand, the considerations advanced by the Court of First Instance are not fully
satisfactory either. It concludes too quickly that the limitations on access to
justice are inherent in a system organized under the auspices of the Security
Council. Contrary to the view held by the Court of First Instance (para 284),
the mechanism in operation should at least be able to ensure that there has been
no error of assessment of the facts and evidence relied on by the Security
Council. On the other hand, the potential of a procedure of diplomatic protection, where the affected individual has the support of his/her State, has not
been sufficiently explored.23 The ECJ states (para 323):
In that regard, although it is now open to any person or entity to approach the Sanctions
Committee directly, submitting a request to be removed from the summary list at what
is called the focal point, the fact remains that the procedure before that Committee is
still in essence diplomatic and intergovernmental, the persons or entities concerned
having no real opportunity of asserting their rights and that committee taking its decisions by consensus, each of its members having a right of veto.

The fact that a body with power of determination does not enjoy judicial
independence should not be rated as an obstacle to its being recognized as being
able to ensure due process. It is true that the guarantee of access to justice
in matters concerning monetary rights counts among the guarantees that are
considered indispensable in Europe. But, precisely as the establishment of the
mechanism of the Sanctions Committee shows, there is simply no universal
agreement that this should be so. Due process and judicial procedure are not
synonyms. However, the ECJ has clearly diagnosed two of the major defects
of the applicable mechanism, namely the veto right which each one of its
membersall the members of the Security Council are representedenjoys and
the lack of opportunity for the individual to effectively assert his/her rights,
22
See Bardo Fassbender, Targeted Sanctions Imposed by the UN Security Council and Due
Process Rights (2006) 3 International Organizations Law Review 437, at 438.
23
See Christian Tomuschat, Comment on the Kadi judgment of 21 September 2005 (2006)
CML Rev 43, 537551.

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Tomuschat

albeit subsequent to the listing decision. The Guidelines of the Sanctions

Committee provide (section 4(a)) that decisions shall be made by consensus of
its Members. This procedure is adequate for the listing of a person. But it may
become grossly unfair if a request for delisting must be decided upon. Pursuant
to this rule, a person may be kept on the list even if all the other 14 members of
the Security Council have pronounced themselves against retention of the relevant name on the list. As far as the right to be heard is concerned, great strides
have been made in that the individual concerned was authorized, by Security
Council resolution 1730 (2006), to submit a petition for delisting directly to the
so-called Focal Point of the Sanctions Committee.24
Procedural details are not the main subject-matter of this contribution. They
have only been discussed because the distancing from international law opted for
by the ECJ requires explanation. One may agree that it is not incumbent on a
court to reflect on the wider repercussions of its decisionsalthough a good
judge always takes such repercussions into account. Obviously, what the ECJ has
done, namely to indirectly denounce the procedure of the Sanctions Committee
as falling short of adequate human rights standards and therefore to deny the
legal validity of the regulations designed to give effect to the Security Council
resolutions, can also be done by other judges anywhere in the world. Thomas
Franck has called the approach taken by the ECJ the texasization of the
European Union,25 referring to the judgment of the US Supreme Court in
Medelln v Texas.26 Others might feel tempted to apply in a new European
version the ironical adage: Am deutschen Wesen soll die Welt genesen, as: European
standards shall be world standards. This was the unquestioned Leitmotiv of the
Opinion of Advocate General Maduro who did not pay much heed to the
functioning of the anti-terror regime, but focused solely on the applicable
European human rights principles, deeply immersed dans le bonheur europeen.
Le bonheur europeencan it sometimes be parochial, campanilistico?

V. Concluding Observations
One may fear that the anti-terror regime established by the Security Council
may suffer a shock from which it will not be able to recover easily. On the other
hand, one may also nurture the hope that the judgment of the Court will stimulate efforts to improve the existing mechanism of listing and delisting up to a
point where only one major defect will remainnamely, that the procedure
24
Generally, it seems that thinking in stereotypes is prevalent in the discussion on the necessity
of judicial protection. A procedure in a group of 15 experienced diplomats the factual bases of
which are highly transparent can easily be more effective than a procedure before a judge who
knows very little about the background and the context. Empirical studies would be needed to
clarify the issue.
25
Panel discussion at NYU, 17 September 2008, <http://globaladminlaw.blogspot.com/2008/
26
552 US (25 March 2008).
10/nyu-kadi-panel-discussion-in-full.html>.

What Relationship between Universal Legal Order and EU Legal Order? 663
applied by the Sanctions Committee lies in the hands of diplomats and not of
judges. An ultimate possibility would be to grant access to a judge at domestic
level so that judicial review would occur at the implementation stage and not at
the stage of law-making through the Security Council. However, how should
national judges be able to assess the relevant evidencewhich is not before
them? The new European regulation that will have to be put into force to
replace the regulation declared tainted by legal error in the judgment of 3 September 2008 has not yet been elaborated. In the Kadi case, where the ECJ
granted three months for an adjustment of the situation, the remedy has consisted of prolonging the freezing period by a specific Commission act.
On the whole, the ECJ seems to lose faith in international law as soon as its
own interests are seriously affected by following the path of international normativity. One may well understand that the Court has denied the GATT direct
applicability, given the fact that many other countries see the agreements
assembled under the roof of the WTO rather as a political arrangement than as a
bundle of firmly binding legal agreements. In Kadi, however, the Court and its
Advocate General have distanced themselves quite resolutely from a mechanism
of international cooperation which could by no means be characterized as an
untenable sub-standard quagmire, and even more dramatic is the recent case of
Intertanko27 where the Court, by denying the direct applicability of the UN Law
of the Sea Convention, also deviated from an international consensus in order to
pursue its self-defined policies. Human rights should never suffer. Yet, the EC/
EU and its Court should attempt to remain within the agreed international
frameworks rather than opting for the construction of a fortress Europe.

27

Above n 6.

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