Cardwell, Paul James and French, Duncan and White, Nigel (2009) Case note on Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission. International and Comparative Law Quarterly, 58 (1). pp. 229-241. ISSN 0020-5893

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Abstract

The judgment of the ECJ in Kadi is a significant – though perhaps not a ground-breaking – decision in understanding the relationship between EU law and public international law, specifically the UN Charter and, more especially, the exercise of Chapter VII powers by the Security Council. The approach of the ECJ is ultimately premised upon three key understandings, namely the autonomy of the EU legal system, the constitutionality of the EU legal system and the centrality of fundamental rights to the operation of that legal system. Thus, the reason that the Kadi judgment should not be characterised as radical is because it reflects the long-standing view of the Court that the EU legal system is an autonomous legal framework independent of, and not reliant upon, public international law. Moreover, the ECJ in seeing and speaking of itself as a court protecting constitutional guarantees is also not a novel innovation. In both respects, the Court has simply applied its settled jurisprudence in a way that is consistent with past practice. The judgment raises a range of issues on both EU and international law; this note limits itself to two. First, the place of the UN Charter and UNSC resolutions in EU law, and second, whether the current understanding of article 103 UN Charter in marginalising human rights arguments in favour of security measures can be supported in the light of a less atomistic interpretation of the UN Charter.

Item Type:	Article
Additional Information:	The judgment of the ECJ in Kadi is a significant – though perhaps not a ground-breaking – decision in understanding the relationship between EU law and public international law, specifically the UN Charter and, more especially, the exercise of Chapter VII powers by the Security Council. The approach of the ECJ is ultimately premised upon three key understandings, namely the autonomy of the EU legal system, the constitutionality of the EU legal system and the centrality of fundamental rights to the operation of that legal system. Thus, the reason that the Kadi judgment should not be characterised as radical is because it reflects the long-standing view of the Court that the EU legal system is an autonomous legal framework independent of, and not reliant upon, public international law. Moreover, the ECJ in seeing and speaking of itself as a court protecting constitutional guarantees is also not a novel innovation. In both respects, the Court has simply applied its settled jurisprudence in a way that is consistent with past practice. The judgment raises a range of issues on both EU and international law; this note limits itself to two. First, the place of the UN Charter and UNSC resolutions in EU law, and second, whether the current understanding of article 103 UN Charter in marginalising human rights arguments in favour of security measures can be supported in the light of a less atomistic interpretation of the UN Charter.
Keywords:	EU legal order, terrorist listing, European Court of Justice, UN Security Council resolutions, human rights, fundamental rights, Article 103 UN Charter, separate legal orders
Subjects:	M Law > M130 Public International Law
Divisions:	College of Social Sciences > Faculty of Business & Law > Lincoln Law School
Depositing User:	Duncan French
Date Deposited:	05 May 2012 12:53
Last Modified:	08 May 2012 20:04
URI:	http://eprints.lincoln.ac.uk/id/eprint/5176

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