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The Community responded by enacting a new regulation156 with effect from 3 December 2008, reinserting the names of the successful applicants in the Consolidated List after having communicated the narrative summaries of reasons provided by the UN Al-Qaida and Taliban Sanctions Committee (1267 Committee) to Mr. Kadi and to the Al Barakaat International Foundation, and given them the opportunity to comment on these grounds in order to make their point of view known, which both did. Eventually, the Commission came to the conclusion that the listing of Mr. Kadi and the Al Barakaat International Foundation was justified for reasons of their association with the Al-Qaida network.157

Mr. Kadi again brought an action against this continued interference with his rights. By judgment of 30 September 2010, the General Court of the EU confirmed the earlier findings in the case, therefore annulling Regulation (EC) No. 1190/2008.158 It reiterated that under Community law a person affected by measures of governmental authority must be provided with a full review of the underlying facts and the supporting evidence. The system of the Sanctions Committee was inadequate in that regard because it did not permit challenge of the relevant evidence, and under no circumstances could the requirement of effective judicial protection be forgone. One of the main grounds for the verdict was the fact that the freezing had been in effect for no less than ten years, with no end in sight, therefore causing a violation of the principle of proportionality.159 The judgment has been appealed and is currently pending before the Grand Chamber of the ECJ.

This is not the place to discuss the pros and cons of executive mechanisms on the one hand and judicial procedures on the other. The observer gets the impression that in the judgments of the European judicature the principle of judicial protection is given an importance which it does not possess at universal level – and not even under European regional law. It must be noted that article 13 ECHR – or

C. Tomuschat, ‘The Kadi Case: What Relationship is there between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?’, Yearbook of European Law 28 (2009) 654–63, at 662.

156Commission Regulation (EC) No. 1190/2008 of 28 November 2008, amending for the 101st time Council Regulation (EC) No. 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, OJ 2008 L 322/25.

157Ibid., Preamble.

158Case T-85/09, Yassin Abdullah Kadi v. European Commission [2010] ECR nyr.

159Ibid., paras. 149, 150.

article 2(3) ICCPR – does not demand that states make available to their citizens recourse to judicial bodies in a comprehensive fashion;160 explicitly, article 6(1) ECHR – and article 14(1) ICCPR – confine that requirement to specific configurations, the main one of which is criminal proceedings and disputes about ‘civil rights’. However, most of the disputes that have arisen concern ‘civil rights’ as understood by the ECtHR, in particular where assets have been frozen. Should such a case be brought to the ECtHR from a non-member of the European Union, the Strasbourg judges would be confronted with the same diffi- culty of whether to affirm the primacy of the European standard, embodied in the ECHR, or to acknowledge the superior authority of the Security Council. The UN mechanism would be on a par with judicial proceedings the day when the veto, capable of blocking any request for delisting, was to be abolished.

In the international arena, the answers given to the Kadi problematique vary enormously. In Switzerland, the Supreme Federal Court has determined that the supremacy clause of article 103 of the UN Charter must be complied with, excluding any review of the correctness of freezing orders of the Security Council.161 In the UK, by contrast, the Supreme Court held that all the improvements of the procedures of the 1267 Sanctions Committee were not enough to ensure an adequate defence of a person struck by a freezing order.162 However, the debate in the Supreme Court centred mainly on whether section 1(1) of the United

160With regard to Art. 13 ECHR, see ECtHR, M.S.S. v. Belgium and Greece (Appl. No. 30696/09), Judgment (Grand Chamber), 21 January 2011, not reported, paras. 288, 289.

161Swiss Federal Court, Nada v. SECO, Judgment, 14 November 2007, French text (translation from German), Revue suisse de droit international et de droit européen (2008) 467– 72, at 468–70, para. 5. However, the Swiss Federal Court sees the powers of the Security Council limited by the rules of jus cogens (471, para. 7), following in that respect the European CFI in Kadi. Comments by R. Kolb, ‘Le Contrôle de Résolutions Contraignantes du Conseil de Sécurité des Nations Unies par des Jurisdictions Internationales ou Nationales Sous l’Angle du Respect du Jus Cogens’, in ibid., 401–11. In NADA v. Switzerland (Appl. No. 10593/08), Judgment (Grand Chamber), 12 September 2012, the ECtHR eventually found against Switzerland for not having made use of a less burdensome measure, but did not touch upon the issue of the hierarchy between obligations under the UN Charter and obligations under the ECHR (para. 197).

162Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants) Her Majesty’s Treasury (Respondent) v. Mohammed al-Ghabra (FC) (Appellant) R (on the application of Hani El Sayed Sabaei Youssef ) (Respondent) v. Her Majesty’s Treasury (Appellant), Judgment, 27 January 2010, [2010] UKSC 2. Criticising the procedure under the 1267 Sanctions Committee were, in particular, Lord Hope (para. 80), Lord Phillips (para. 146) and Lord Mance (para. 239).

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Nations Act 1946163 provided an appropriate legal basis for the executive orders by virtue of which the freezing orders had been made.

The legal position is, of course, entirely different where the Security Council confines itself to generally enjoining states to combat terrorism, as it did through its Resolution 1373 (2001).164 Under such circumstances, states bear unrestricted responsibility for all the actions taken by them (‘autonomous listing’). They must see to it that they implement the wishes of the Security Council by taking measures in full consonance with their respective domestic orders, including their commitments under the ECHR. In such instances, the European Community/ Union is also called upon to respect fully the constitutional principles as they are laid down in the basic treaties, as well as in the applicable customary law.165 Where the act complained of is an act of the European Community/Union that directly interferes with individual rights, the responsibility of the member states cannot be engaged. Hitherto, a strict separation between Community/Union acts and national measures has been maintained; the former have never been attributed to the member states collectively.166

4.2.2.2 Freezing orders implemented through national legislation

The last class of cases to be examined comprises those where national authorities act for the implementation of directions issued by the Security

163‘If, under Article forty-one of the Charter of the United Nations … the Security Council of the United Nations call upon His Majesty’s Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order.’

164UN SC Resolution 1373 (2001) concerning terrorism, 28 September 2001, UN Doc. S/RES/1373, para. 1.

165See CFI, Case T-228/02, Organisation des Modjahedines du peuple d’Iran v. Council of the European Union [2006] ECR II-4665, paras. 99–103; Case T-47/03, Jose Maria Sison v. Council of the European Union [2009] ECR II-1483, paras. 137–55; Case T-256/07,

People’s Mojahedin Organization of Iran v. Council of the European Union [2008] ECR II-3019, paras. 130, 131; see also Opinion of Advocate-General Sharpston of 14 July 2011 in Case C-27/09 P, French Republic v. People’s Mojahedine Organization of Iran [2011] ECR nyr.

166See ECtHR, Kokkelvisserij v. Netherlands (Appl. No. 13645/05), Decision (Third Section), 20 January 2009, Reports 2009. See also Institut de droit international, Resolution on The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties, adopted at its 66th session in Lisbon, 1966, article 6, www.idi-iil.org/idiE/resolutionsE/1995_lis_02_en.pdf.

Council that were made domestically applicable by national acts of legislation. In such instances, remedies may be filed with the responsible national courts. The judicature of the European Union will not get involved, except for situations (which to date have not materialised) where a national court might find it advisable to request a preliminary ruling of the ECJ. Because, within the European Community/Union legislative, competence for freezing assets lies with the Brussels authorities, almost all relevant disputes were adjudicated by the judicature of the European Union.

Reference has been made to the Swiss case of Nada v. SECO, again a dispute about freezing bank accounts, where the Swiss Federal Tribunal held that it was debarred from reviewing the lawfulness of lists of names determined by the Security Council, since article 103 UN Charter provided for the primacy of the Charter over any other treaties.167

In the Bosphorus case, an aircraft, leased to the Turkish corporation Bosphorus by JAT, the Yugoslav Airlines, was impounded at Dublin Airport by Irish authorities. By Resolution 820 (1993), the Security Council had issued an order to all states to impound all aircraft owned by Yugoslav citizens or entities. Transposition of the resolution into the Community legal order was effected by EEC Regulation 990/93, which served as the legal basis of the impoundment on 28 May and 8 June 1993. Protracted legal battles followed. At a first stage, the ECJ was requested to give a preliminary ruling on the interpretation of Regulation 990/93, the text of which was not clear as to whether an aircraft leased to a corporation of a third state was also covered by the embargo. This was con- firmed by the ECJ on the advice of its Advocate-General.168 Curiously enough, neither one spent a single word on whether the ECJ was empowered to verify the lawfulness of the relevant Security Council resolution. At a further stage of the proceedings, the case came before the ECtHR. The Court reiterated a proposition which it had affirmed in many previous judgments, according to which a state is responsible for all acts and omissions of its organs, regardless of whether the act or omission in question was a consequence of domestic law or of the

167Nada v. SECO. It has been reported that an application was filed against the judgment with the ECtHR, see Ciampi, ‘Security Council Targeted Sanctions’, 129; and de Wet, ‘Human Rights Considerations’, at 145.

168Case C-84/95, Bosphorus Hava Yollari Turızm ve Ticaret AS v. Minister of Transport, Energy and Communications and others [1996] ECR I-3953; Opinion of AdvocateGeneral Jacobs, ibid., 3956–77, at 3967 (interesting question which need not be addressed).

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necessity to comply with international legal obligations.169 On the other hand, it took account of the fact that the European Community had evolved an autonomous system for the protection of human rights, manifesting its trust in the effectiveness of that system:

State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides … By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued …. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.

If such equivalent protection is considered to be provided by the organisation, the presumption will be that a state has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.170

These holdings clearly refer to the European Community, affirming its grown-up status as a defender of human rights. Consequently, the complaint of Bosphorus was rejected in implicit application of the principle of subsidiarity, which has received strong emphasis in the recent jurisprudence of the ECtHR: since the European Community (EC) (now European Union (EU)) handled human rights issues responsibly, there was no need for an additional stage of international review. However, on its part, too, the ECtHR failed to address the

169ECtHR, Matthews v. UK (Appl. No. 24833/94), Judgment (Grand Chamber), 18 February 1999, Reports 1999-I, para. 32; recently reconfirmed: Al-Saadoon and Mufdhi v. UK, paras. 126–8.

170ECtHR, Bosphorus Hava Yollari Turızm ve Ticaret AS v. Ireland (Appl. No. 45036/98), Judgment (Grand Chamber), 30 June 2005, Reports 2005-VI, paras. 155, 156. Confirmation of this jurisprudence in ECtHR, Biret v. France (Appl. No. 13762/04), Decision (Fifth Section), 9 December 2008, not reported, para. 2. On the other hand, in ECtHR, M.S.S. v. Belgium and Greece (Appl. No. 30696/09), Judgment (Grand Chamber), 21 January 2011, Reports 2011, paras. 338–40, the Court noted that, when acting under the Dublin Convention, Belgium had a considerable degree of discretion. Therefore, its impugned measure – the expulsion of the applicant – did not strictly fall within Belgium’s international legal obligations. Accordingly, the presumption of equivalent protection did not apply in the case.

issue of whether the binding nature of Security Council resolutions may be challenged.171 One may assume that the Court had no doubts as to the soundness of the political decision to impose an embargo on the former Yugoslavia because of its involvement in the hostilities subsequent to its collapse and the proclamations of independence of its former component republics. Accordingly, the dispute centred exclusively on the lawfulness of the relevant EEC regulation, in particular on whether the principle of proportionality had been respected.172

Not by accident, many observers have evaluated the Bosphorus judgment as a parallel to the judgment of the German Federal Constitutional Court in Solange II, where the Karlsruhe judges stated that they would refrain from reviewing acts of secondary law of the European (Economic) Community/Union as long as, in general, the level of protection of human rights at European level was equivalent to the level as ensured in Germany.173 One may, indeed, view the reservation shown by the ECtHR as a gesture of inter-institutional subsidiarity. In any event, the caveat announced by the ECtHR has not come into operation. The same could be observed in Germany. For more than a quarter of a century, the Constitutional Court has abstained from considering the merits of complaints that fundamental rights under the Basic Law had been infringed by European Community/Union acts.174

171Likewise, no attention is given to this issue in their lucid commentaries by B. Conforti, ‘Le principe d’equivalence et le contrôle sur les actes communautaires dans la jurisprudence de la cour européenne des droits de l’homme’, in S. Breitenmoser et al. (eds.),

Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber

(Zürich and Baden-Baden: Dike & Nomos, 2007) 173–82, and G. Gaja, ‘The Review by the European Court of Human Rights of Member States’ Acts Implementing European Union Law: “Solange” Yet Again?’, in M. Shaw et al. (eds.), Common Values in International Law: Essays in Honour of Christian Tomuschat (Kehl: N.P. Engel, 2006) 517–26.

172However, when a person accused before the ICTY filed a complaint against the Nether-

lands, the ECtHR noted that the ICTY offered all the guarantees required by the standard of a fair and equitable trial, see decisions in Galić and Blagojević, para. 46.

173Judgment, 22 October 1986, Entscheidungen des Bundesverfassungsgerichts 73, 339; English translation, Decisions of the Federal Constitutional Court, Vol. 1, Part II (BadenBaden: Nomos, 1992) 613.

174In the Banana Market case, BVerfGE 102, 147, 7 June 2000, the Federal Constitutional Court held that a request for a preliminary ruling on the validity of EEC Regulation No. 404/93, 13 February 1993 on the common organisation of the market in bananas failed to show that the level of protection of human rights had ‘generally’ fallen below the required level of equivalence. In the Honeywell case, BVerfGE 126, 286, 6 July 2010, the Federal Constitutional Court specified that its mandate to intervene was triggered only

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Notwithstanding the generosity the ECtHR has shown in Bosphorus, the question remains whether that judgment must be understood as a reminder that the requirements of the rule of law constitute an indispensable cornerstone of the architecture of the ECHR, entailing the need to submit any action of national authorities, irrespective of their legal background, to strict scrutiny. Did the Court wish to suggest that its holdings are generally applicable, even when the action complained of was performed in compliance with an international obligation flowing from the Security Council, or did it implicitly suggest that decisions under Chapter VII of the UN Charter enjoy a special status? For the time being, no definitive answer can be given to this question. In any event, in Gasparini v. Italy and Belgium, a case where objections were raised against NATO’s system of settling staff disputes, a section of the ECtHR reiterated its monitum to contracting parties to the ECHR:

… les Etats membres ont l’obligation, au moment où ils transfèrent une partie de leurs pouvoirs souverains à une organisation internationale à laquelle ils adhèrent, de veiller à ce que les droits garantis par la Convention reçoivent au sein de cette organisation une ‘protection équivalente’ à celle assurée par le mécanisme de la Convention. En effet, la responsabilité d’un Etat partie à la Convention pourrait être mise en jeu au regard de celle-ci s’il s’avérait ultérieurement que la protection des droits fondamentaux offerte par l’organisation internationale concernée était entachée d’une ‘insuffisance manifeste’.175

Clearly, this passage goes beyond what was stated in Bosphorus, by requiring that states must take care of adequate protection of human rights at the point in time when, through the conclusion of a treaty, they transfer powers to an international organisation. Apparently, where a structural gap can be perceived, a state may incur responsibility even if it had no decisive influence on the actual running of the organisation concerned.

by acts ultra vires which led to a ‘structurally significant shifting of powers to the detriment of member states’ (English translation, www.bverfg.de/entscheidungen/ rs20100706_2bvr266106en.html). But that case did not centre on human rights guarantees.

175 ECtHR, Gasparini v. Italy and Belgium (Appl. No. 10750/03), Judgment (Second Section), 12 May 2009, not reported; comment by E. Rebasti, ‘Corte Europea dei diritti dell’uomo e responsabilità degli stati per trasferimento di poteri ad una organizzazione internazionale’, Rivista di Diritto Internazionale 93 (2010) 65–88; Ryngaert, ‘ECtHR Approach to Responsibility’, 1005; see also Janik, ‘Die EMRK’, 165.

After the ECJ as well as the UK Supreme Court have voiced their dissatisfaction with the procedures of the different UN Sanctions Committees, the ECtHR will also be under strong pressure to align itself with that critical position if a case is submitted to it, probably from a member state of the Council of Europe that does not belong to the EU. It would then have to inquire whether the listing and delisting of persons meets the requirements of the ECHR. Some weighty reasons speak against an outcome in consonance with the jurisprudence of the ECJ. First of all, considerable improvements of the procedure of the UN Sanctions Committees have been introduced in recent years, doubtless in response to the critical voices, primarily from Europe. None of the judgments referred to above has been able to assess the impact of the latest reforms brought about, especially by Security Council Resolution 1989 (2011) of 17 June 2011.

On a technical level, one can argue that the Charter of the UN came into force in 1945, long before the ECHR was drafted. In fact, no state has the potential to demand a review of the Charter at the time of its admission.176 The Charter must be equated with a rocher de bronce. It develops essentially through practice, since to obtain the necessary consent for a formal amendment is so demanding that not even the most undisputed changes have been operated, like, for instance, the deletion of the special provisions on ‘enemy states’ (articles 53, 107).177 Only two major changes were introduced by formal amendments, namely, the increase of the number of members of the Security Council from 11 to 15, and the increase of the members of the Economic and Social Council from 18 to 54.

These ‘technical’ arguments to some extent reflect the exceptional features of the UN Charter. As already noted, the Charter is not just any one of thousands of multilateral treaties, but has acquired aspects of a constitution of the world. No single state is able to bring about an amendment of the Charter; on the other hand, states remain subject to the powers conferred on the General Assembly and the Security Council. Although accession to the UN is a voluntary act, de facto the pressure to join the nations of the world is almost irresistible. Even states that would prefer to remain outsiders are brought under the discipline of the Charter

176This is also acknowledged by Frank, ‘UNO-Sanktionen gegen Terrorismus’, 254.

177At the World Summit in 2005, consensus was reached in concluding that those provisions of the UN Charter were obsolete and should be deleted, UN GA Resolution 60/1, 16 September 2005, para. 177.

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by article 2(6). Therefore, to postulate that at the time of their joining the UN states parties to the ECHR must make sure that they can fully live up to their commitments under the ECHR, is no more than a pious wish that hurts against a wall of immutable political realities.

In Behrami and Saramati, the ECtHR has unequivocally indicated that it acknowledges the special tasks entrusted to the Security Council as the guardian of international peace and security under Chapter VII of the Charter.178 If the Security Council were bound to respect all of the constitutional and international obligations of the members of the organisation, its action would be seriously hampered. This does not mean that human rights could be thrown overboard, and neither should the level of protection be lowered to the bare minimum of jus cogens, as suggested by the CFI in Kadi I. A reasonable standard of protection must be maintained, whose precise benchmarks can only be determined on a case-by- case basis, in light of the prevailing circumstances. In any event, article 103 UN Charter cannot be the decisive argument against any restriction of the powers of the Security Council by virtue of human rights rules.179

On one hand, the international community has acknowledged the paramount authority of the Security Council through its membership in the world organisation. On the other hand, article 103 UN Charter is no blank cheque for the Security Council to engage in arbitrary conduct. Article 24(2) UN Charter provides that the Security Council ‘shall act in accordance with the Purposes and Principles of the United Nations’. This means that the rights and interests of persons affected by measures under Chapter VII may not be disregarded. Core human rights must never be interfered with. Even alleged interests of preserving peace and international security would never justify a strategy of ethnic cleansing, for example, rightly, in Al-Jedda the ECtHR has embraced a presumption with the help of which any serious difficulties may be overcome:

The Court considers that, in interpreting its resolutions [scil. the resolutions of the Security Council], there must be a presumption that the

178Behrami and Saramati, paras. 148, 149.

179See the weighty arguments advanced by Cardwell et al., ‘Comments’, 240; M. Lugato, ‘Sono le sanzioni del Consiglio di Sicurezza incompatibili con il rispetto delle garanzie procedurali?’, Rivista di Diritto Internazionale 93 (2010) 309–42, at 324; Thallinger, ‘Sense and Sensibility’, 1028. Suggestions as to the requisite balancing process have been advanced by S. Zappalà, ‘Reviewing Security Council Measures in the Light of International Human Rights Principles’, in Securing Human Rights? Achievements and Challenges of the UN Security Council (Oxford University Press, 2011) 172–94.

Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.180

An assessment should not be blinded by slogans not connected to realities. The requirement of judicial protection does not belong to the arsenal of jus cogens norms, as recently clarified by the ICJ in Germany v. Italy.181 Obviously, the individual will best be served by protective mechanisms that operate fast and effectively. As already pointed out, the listing and delisting procedures of the Security Council have been greatly improved in the recent past. In any event, remedial action by the ECtHR is conceivable only after exhaustion of all available domestic remedies, which may take many years. In contradistinction to the CJEU, the ECtHR, in particular in the recent past, has emphasised, its subsidiary role vis-à-vis national authorities, whose margin of appreciation it respects to a large extent. One of the reasons relied on by it in this respect is the better democratic legitimacy of national authorities,182 where, indeed, the ECJ is on safer ground than the ECtHR, which may be characterised as the outcome of a truly inter-governmental only system. Compliance with orders issued by the UN Security Council as the central institution of the international community is one of those choices by a state party to which the ECtHR will certainly show deference if it can be proven that the system of listing and delisting, as it has taken shape within the UN framework, operates in an appropriate manner, taking the rights of the individual into due account.

It is true that reflection on the adequate standards of protection has benefited enormously from the judgment of the ECJ in Kadi and from

180Al-Jedda v. UK, para. 102.

181Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), nyr, 3 February 2012, paras. 93–5.

182ECtHR, Hatton v. United Kingdom (Appl. No. 36022/97), Judgment (Grand Chamber), 8 July 2003, Reports 2003-VIII, para. 97; ECtHR, Van der Heijden v. Netherlands (Appl. No. 42857/05), Judgment (Grand Chamber), 3 April 2012, not reported, para. 55.