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Article Excerpt
CONTENTS
I Introduction II The UN Security Council's 1267 Listing and Delisting Procedure and Due Process A The UN Security Council's 1267 Sanctions Regime B The Listing and Delisting Procedure and Due Process Concerns III The Implementation of the UN Security Council's 1267 Regime within the EU and Challenges before the Court of First Instance A Regulations by the EU Council B The Kadi and Yusuf Cases before the Court of First Instance IV Opinions of the Advocate General V The European Court of Justice Decision in Kadi and Al Barakaat VI Significance of the Decision
I INTRODUCTION
The European Court of Justice ('ECJ') handed down its decision of Kadi and Al Barakaat on 3 September 2008. The case dealt with the implementation of the United Nations Security Council's Resolution 1267 (1) sanctions regime ('1267 sanctions regime') in the European Union. In its judgment, the Court reviewed the treatment of the case by the Court of First Instance ('CFI') with considerable attention, and then divided its conclusions into three separate but interdependent parts:
1 the competence of the Council of the EU to adopt the regulation (Regulation 881/2002 (2) and others that have followed to amend it) (3) for the freezing of financial resources by states of persons related directly or indirectly to organisations considered to engage in international terrorist activities;
2 the compatibility of the regulation with art 249 of the Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community; (4) and
3 the compliance of the regulation and its provisions with certain fundamental rights.
With regard to the first part, the ECJ found that the Council was competent to adopt Regulation 881/2001. The Court also confirmed the findings of the CFI that the contested regulation was compatible with art 249 of the Consolidated Treaties and accordingly dismissed as unfounded the appeal of Al Barakaat International Foundation ('Al Barakaat') on the second part. However, the Court rejected the findings of the CFI that the courts of the European Communities had, in principle, no jurisdiction to review EU regulations implementing UN Security Council resolutions. Instead, it held that regulations by the Council implementing international legal instruments must comply with the fundamental principles of European Community law including human rights law as endorsed by the ECJ and developed in the European context. The Court concluded that the regulations by the EU Council implementing the UN Security Council's 1267 sanctions regime violated fundamental rights as protected under Community law, including: the fight to a hearing; the right to an effective judicial review and remedy; and the fight to property.
This case note first introduces the UN Security Council's 1267 sanctions regime, which lies at the heart of the case in question. It draws particular attention to the 1267 sanctions regime's listing and delisting procedure and its inherent due process problems. The ease note then focuses on the implementation of the 1267 sanctions regime within the EU and discuss challenges to this implementation before the CFI. The CFI handed down its decisions in Kadi (5) and Yusuf (6) in September 2005. These decisions were appealed to the ECJ. (7) During the appeal process the EU Advocate General issued two (nearly identical) opinions in January 2008, which critically reviewed the CFI judgments. These will be the subject of examination in a following section. Finally, the case note will address the key findings of the ECJ's decision and briefly discuss the judgment's significance, both as far as legal and political implications are concerned.
II THE UN SECURITY COUNCIL'S 1267 LISTING AND DELISTING PROCEDURE AND DUE PROCESS
A The UN Security Council's 1267 Sanctions Regime
On 15 October 1999 the UN Security Council, acting under Chapter VII of the Charter of the United Nations ('UN Charter'), adopted Resolution 1267, which requires all states to freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale and transfer of arms and military equipment to, any individual or entity associated with al Qaeda, Osama bin Laden and/or the Taliban as designated by the Al-Qaida and Taliban Sanctions Committee (' 1267 Committee'). (8) The sanctions regime has since been modified and strengthened by subsequent resolutions, including Resolution 1333, (9) Resolution 1390, (10) Resolution 1455, (11) Resolution 1526, (12) Resolution 1617 (13) and Resolution 1735, (14) so that the sanctions now cover individuals and entities associated with al Qaeda, Osama bin Laden and/or the Taliban wherever located. In addition to overseeing the implementation of Resolution 1267 and subsequent resolutions, the 1267 Committee also maintains a list of individuals and entities with respect to al Qaeda, Osama bin Laden, the Taliban and other individuals, groups, undertakings and entities associated with them (the 'Consolidated List'). (15) States may request the 1267 Committee to add names to this list and the 1267 Committee also considers submissions by states to delete names from it. As of 20 April 2009, 508 individuals or entities were listed on the Consolidated List, which consists of the following four sections:
1 Individuals associated with the Taliban (142 individuals);
2 Entities and other groups and undertakings associated with the Taliban (none);
3 Individuals associated with the al Qaeda organisation (255 individuals); and
4 Entities and other groups and undertakings associated with al Qaeda (111 entities).
B The Listing and Delisting Procedure and Due Process Concerns
The listing and delisting procedure, as established by the 1267 sanctions regime, has been controversial from the beginning. (16) Due process concerns stemmed particularly from the fact that individuals and entities were initially not allowed to petition the 1267 Committee for delisting, nor were they granted a hearing. Petitions for delisting could only be submitted to governments, which in turn could bring the issue to the attention of the 1267 Committee. However, any decision concerning delisting was still being left to the 1267 Committee or the Security Council. (17) In November 2002, the 1267 Committee then adopted guidelines for inclusion in and removal from the list. These guidelines provided, inter alia, that the submission of names should, to the extent possible, include a statement of the basis for the designation, generally focusing on the connection between the individual or entity and al Qaeda, the Taliban or Osama bin Laden, together with identifying information for use by the national authorities implementing the sanctions. (18)
In late 2002, the Security Council adopted Resolution 1452, (19) which provided for a number of derogations from, and exceptions to, the freezing of funds and economic resources imposed by its previous resolutions. Such derogations and exceptions were to be decided by member states on humanitarian grounds and with the 1267 Committee's consent. (20) The guidelines were subsequently updated in April 2003, December 2005, November 2006, February 2007 and December 2008, and now also provide for a review mechanism for names that have not been reviewed for three years. (21) Accordingly, in March 2007, the UN Secretariat circulated to the 1267 Committee a list of 115 names that had not been updated in four or more years. However, very few were selected for review and the review ended without any changes to the Consolidated List. (22)
Subsequent to the proposals made by France, the United States, other countries and the Analytical Support and Sanctions Monitoring Team, (23) Resolution 173024 established a 'focal point' within the UN Secretariat's Security Council Subsidiary Organs Branch, which is responsible for processing submissions by listed persons and entities requesting delisting. Affected persons and entities may submit their requests directly and independently of their governments' diplomatic protection. (25) The focal point, however, denies them the right to participate or to be heard in the review process, and does not operate as an independent review mechanism. (26) No legal or quasi-legal rules exist that would oblige the 1267 Committee to grant a request if specific conditions are met. On the contrary, removal from the list is still possible only with the consent of all 1267 Committee members. (27) The impact of the establishment of the focal point has thus been relatively limited both as far as due process guarantees and actual number of petitions are concerned. Since the focal point became operative in March 2007, the 1267 Committee has received a mere 11 delisting...
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