Written in January 2007, LL.M. studies, University of Amsterdam
Author: Aleksandar Ivanovski
Outline:
1. Introduction
2. Relationship between Chapter VII binding resolutions of the United Nations Security Council and European Community law
3. Fundamental rights vs. Public interest
4. New developments- CFI Organisation des Modjahedines judgment
5. Conclusion
The purpose of this paper is to discuss the relationship of the United Nations Security Council (UNSC) binding resolutions regarding the maintenance of the international peace and security and their implementation in the legal order of the European Union. One of the most problematic issues is the legal status and the transposition of these resolutions within the legal order of the European Union (EU), a fortiori, in the legal order in the European Community (EC).
The question of the concurrence of jurisdiction between the legal system of the UN and the legal order of the EC at the ground of the EU Member states became even more challenging in the aftermath of the 9/11 terrorist attacks, when the UNSC brought series of Resolutions[1] under Chapter VII of the UN Charter aimed towards the freezing of assets and funds of various terrorist entities. One of the burning issues was the question of the addressees of these resolutions. Was EC really obliged to implement these acts into its legal order?
Having in mind the fact that the perseverance of the international peace is an exclusive competence of the UNSC, the EU joined the antiterrorist measures by implementing these resolutions by virtue of its second pillar instruments[2] – Common positions, and EC Regulations and Decisions implementing the Common positions.[3] Since EU action was deemed necessary by the Council, having in mind that preservation and strengthening of the international peace and security is also one of the objectives of the European Union[4], the Council acted swiftly and without hesitations.
Although the EC implemented the financial sanctions imposed by the UNSC towards third countries even before entering into force of the Treaty of Maastricht, only the current situation will be dealt with for the purpose of this paper.
2. The relationship between Chapter VII binding resolutions of the United Nations Security Council and European Community law
The Member states of the UN are obliged to carry-on their obligation arising under the UN Charter and, thus, the Charter has primacy over any obligation arising from their membership in any other international organization.[5] The UN Member states are the addressees of the UNSC resolutions. In this common legal situation, the status of the resolutions and their transposition in the legal order of the states would be sufficiently clear. However, in the context of EC, the UNSC resolutions as part of the international law are being ‘communitarized’ and thus, become integral part of the Community law. Now, the implementation of the UNSC resolutions instead of a commitment under the UN Charter becomes an obligation arising from the acquis.[6] This has it logic in the fact that the rules of the customary international law are fully replaced by the Community law, as far as the EU member states are concerned.[7] Namely, the effect of the resolutions is intensified by virtue of the principles of the Community law, having in mind the lack of enforcement and non-compliance responsibility in the UN system vis-à-vis the strict Community system of legal procedures.
Although the validity of EC law is dependant on the system of international law, the Community nevertheless created a separate, sui generis legal order which excluded the customary international law from the area covered by the Treaties.[8] The fact that the ‘communitarized’ international law would be positioned below the Treaties, but over the conflicting secondary law, points to the supremacy of the Treaties over the UNSC resolutions in the Community legal order.[9]
In this sense, the common two layer structure becomes a three level structure, involving the international law emerging from UN, the Community law and the national law of the Member states.
The first step in the internalization of the UNSC resolutions is adopting a Common position under Article 15 TEU, which is a legal instrument of the second intergovernmental pillar. Since a Community action is necessary to implement the Common position, a Regulation is passed within the first pillar which is an instrument imposing direct effect in the legal order of each and every Member state. The Regulations pertinent to the financial smart sanctions are passed on the joined basis of Articles 60, 301 and 308 EC, which can be thus targeted not only to persons and entities associated to a certain regime, but also to various persons, groups and entities scattered throughout the world.
The questions which raised controversies regarding the UNSC financial sanctions imposed towards the alleged terrorists included the issues such as: whether the EC was addressee of these UNSC resolutions; how these people and entities are included on these lists; is there a right to redress possible; is there a right of judicial remedy guaranteed etc.
Part of the answer can be found in Yusuf, Kadi, Ayadi and the latest Organisation des Modjahedins judgments of the Court of First Instance of the European Communities (CFI), where CFI pronounced itself on this matter quite extensively, but rather surprisingly.
The approach taken by CFI in Yusuf and Kadi seems to be adopted in Ayadi as well. The Court deliberates many precedents in these judgments. Namely, the CFI finds the Community bound by the UN Charter ‘by virtue of the Treaty establishing it’,[10] secondly, by refusing to accept jurisdiction, i.e. scrutinize the contested secondary EC law acts (notably, Regulations and Decisions) and assess their compliance with the primary EC law (the Treaty), the Court refused to exercise its powers conferred on it by the Treaty; by weighing the public interest and the person’s fundamental rights- the Court introduced the UN Sanctions Committee Guidelines[11] into the Community legal order as a means of diplomatic protection of the fundamental rights.
The Court found itself not empowered to question the validity of the Community acts imposing financial sanctions to certain individuals and entities (except the reviewability under the jus cogens principles), since thus it would trespass on the prerogatives of the UNSC. By emphasizing the primacy of the UN legal order the Court infringed the well established system of legal hierarchy in the Community legal order.
Fearing not to uphold an indirect review of the UNSC resolutions, the Court went into another direction, establishing of a new, questionable hierarchy of norms in the Community legal order, putting the Treaties beneath the concept of jus cogens and the UNSC resolutions.[12]
Some commentators congratulate the Court for such an approach, since ‘[w]hat was deliberately ruled out at UN level cannot be introduced through the back door at Community level’, while others believe that the Court overlooked the constitutional character of the Treaty in the Community legal order, and thus simplified it to an ordinary international agreement.[13]
- Fundamental rights vs. public interest
The impact of the UNSC resolutions and their Community implementing acts on the fundamental rights has been vast and problematic. The manner in which the entities are counted in the lists compiled by the Sanctions Committee is determined by the Guidelines for conduct of work. The establishment of this instrument which regulates the procedure for reexamination of the listed individual cases, points towards a conclusion that the UNSC takes into account, albeit rudimentary, the “right to be heard” of a listed person or entity. Nevertheless, the way the persons and entities are listed in the first place leaves certain dilemmas. They have been listed by a diplomatic intervention of the state of origin or residence. At the end of the day, the listed entities are directed towards an address before a political body, formed by the UNSC. The fact that the UN considered it wise not to have a judicial authority competent to hear the addresses by the entities affected of such decisions, adds only to the political character of the UNSC. By its character the UNSC is a political organ, it is not a judicial organ, nor has it an obligation to subject its decisions to the principle of lis pendens.[14]
However, the EC system of legal remedies is far more developed than the UN embryonic constitutional system. Even so, CFI points in Yusuf that the right of access to a Court is not an absolute one, thus making it subject to the overriding public security reasons. After all, the Court notes that it wouldn’t review UNSC resolutions, as long as they take account and comply with the inalienable fundamental rights, protected by jus cogens. Making an attempt to fill in these lacunae in the protection of the fundamental rights, CFI in Ayadi inaugurates the Sanctions Committee Guidelines as a legal basis for redress through the national government.
Having in mind the fact that the rule of law is fundament of the European Union, it is arguable what were the legal bases for introduction of the Guidelines in the Community legal order. Notwithstanding the rights conferred to the individuals by the Guidelines, the persons affected by the very EC regulation implementing the UNSC resolution are, thus deprived of an effective judicial remedy. The diplomatic protection offered by the CFI in Ayadi with recourse to the Guidelines is far from the European human rights standards.
It is also questionable why would the CFI choose to take account and cater for the ‘responsibility’ of a political organ such as the UNSC, for the sake of the fundamental rights. A fortiori, the European Community has established a complete and thorough system of protection of the fundamental rights guaranteed by the Treaties, the ECHR and the jurisprudence of the ECJ and ECrtHR.
- New developments- Organisation des Modjahedins
Generally, the scope of the protection of the fundamental rights is considered not to be at the Community established level when the UNSC implementing acts are under scrutiny.[15] The CFI recently rendered a judgment on the case Organisation des Modjahedines vs. Council[16] where it adopted considerably different approach compared to Yusuf, Kadi and Ayadi. The ground-braking moment of this judgment is of course the annulment (as far as the applicant is concerned) of the Council Decision 2005/930/EC of 25 December 2001 implementing Article 2 (3) of Regulation No 2580/2001 EC. CFI tried to maintain that there is a difference in the protection of the fundamental rights when the Community acts under circumscribed powers, and when it acts using its own discretionary powers. This is basically how CFI makes a distinction between Yusuf and Kadi on the one hand, and Organisation des Modjahedines on the other.
Scrutinizing the right to a fair hearing, the Court points out that in Yusuf and Kadi the Union institutions were not required to hear the parties concerned, since their inclusion on the list had been performed by the Sanctions Committee without any authorization by the latter for reexaminations of the individual cases. In the case of Organisation des Modjahedines the identification of the persons, groups and entities was not established in the UNSC resolution 1373 (2001), rather by the Community itself, which involved exercise of its discretionary competences.[17] Thus, the Community was bound to observe the right of a fair hearing.
As far as the right to effective judicial protection is concerned, the Court recalls the ECHR and the relevant case law. It points out that the review carried out by the Court of the lawfulness of such decisions must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power.[18] The conclusion is that the applicant was derived the right of availing itself of its right of action before the Court.
What is very important in this judgment is the admittance of the Court, albeit without certain applicability in the similar situations affected by the UNSC resolutions implementing legislation, that the possibility of judicial review constitutes the only procedural safeguard ensuring a fair balance between the need to combat international terrorism and the protection of fundamental rights.[19]
The implications of this judgment are, anyhow, important especially for those people, groups and entities which were listed by the European Union itself. It paved the path for further challenging of the alleged terrorists’ inclusion on the
- Conclusion
The international peace and security are probably positioned very high in the axiology of the today’s society. On the other hand we face restrictions on the fundamental rights by the curtain of the “fight against terror”. The values which have to be protected are being reweighed on a daily basis by every action of the relevant international authorities. And it is also undisputable that the modern society faces many challenges in the threats arising form the terrorism. However, the legal system of the United Nations is far from being fully developed to face these challenges in a legal more than a political manner.
On the other hand, the European legal order has been developing in a complete and thorough legal system. It has established a sui generis structure which is unique in the area of the international law. After all, it has the European Court of Justice as a judicial supreme arbiter and watchdog of the Treaties. The growing importance of the human rights acquis is continuously being upheld by the both
Nevertheless, the CFI managed to diminish the internal coherence and the principles of the European legal order by accepting the supremacy of a legal system with disputable cohesion, and with lesser interest for protection of the fundamental rights. Taking into account the values of higher interest, the CFI refused to perform its competences under the Treaties.
Some treat this as establishment of ‘full harmony’[20] with the UN legal system, but still with its Organisation des Modjahedines judgment the CFI upholds, albeit partly, the very rationale of the European understanding of the fundamental rights. For the rest, the judges at the European Court of Justice are on move.
1. Bethlehem, D. “The European Union” in Gowlland- Debbas, National Implemetation of United Nations Sanctions – A Comparative Study (Leiden, 2004) pp. 126-149;
2. De Wet, Erika “The Chapter VII powers of the United Nations Security Council” Oxford University Press 2004 pp. 109-123
3. Hartley, T.C. “European Union Law in a Global Context” (CUP 2004) pp. 131-137;
4. Karayigit, Mustafa T. “The Yusuf and Kadi Judgments: The Scope of the EC Competences in Respect of Restrictive Measures” Legal Issues of Economic Integration 33(4) (2006) pp. 379-404;
5. Lavranos, N. “Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States” (ELP 2002) pp 227-228 and 238-23;
6. Lavranos, N. “Judicial Review of UN Sanctions by the Court of First Instance” European Foreign Affaires Review 11 (2006) pp. 471-490;
7. Steiner J., Woods L. and Twigg-Fleisner C. “EU Law” 9th edition (OUP 2006);
8. Tomuschat, C. “Case T-306/01, Yusuf and Al Barakaat v. Council; Case T-315/01, Kadi v. Council and Commission” Common Market Law Review 44(2006) pp. 537-551;
9. Lecture sheets EU Legal Remedies (2006-2007), University of Amsterdam;
10. Cases, UNSC Resolutions, EU legislation and the Guidelines of the Sanctions Committee, as cited in the respective footnotes.
[1] UNSC Resolution 1373 (2001) of 28 September 2001; UNSC Resolution 1390 (2002) of 16 January 2002 etc.
[2] The instruments of the third pillar – Police and judicial cooperation in criminal matters (formerly known as JHA) are also used for the facilitation of the anti-terror measures, although not directly recalling the UNSC resolutions; i.e. Council Framework Decision 2002/584/JHA of 13 June 2002
[3] Council Common Position (2001/931/CFSP) of 27 December 2001; Council Regulation (EC) No 2580/2001 of 27 December 2001; Council Decision (2006/379/EC) of 29 May 2006 etc.
[4] Art. 11 TEU
[5] Article 103 UN Charter
[6] Lavranos “Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States” ELP (2002) pp 227-228 and 238-239
[7] Hartly, “European Union law in global context” CUP (2004) pp 134-135
[8] Ibid
[9] EU Legal Remedies Lecture Sheets (2006-2007), p. 99
[10] Yusuf para 243; Emphasis added
[11] Guidelines of the Committee for the conduct of its work (Adopted on 7 November 2002, as amended on 10 April 20031, revised on 21 December 2005 and amended on 29 November 2006)
[12] EU Legal Remedies Lecture sheets p. 101
[13] Tomuschat, “Case T-306/01, Yusuf and Al Barakaat v. Council; Case T-315/01, Kadi v. Council and Commission” Common Market Law Review 43 (2006) p. 544 cf. Karayigit, “The Yusuf and Kadi Judgments: The Scope of EC Competences in Respect of Restrictive Measures” Legal Issues of Economic Integration 33(4) p. 395
[14] De Wet, “The Chapter VII powers of the United Nations Security Council” Oxford University Press 2004 p. 114
[15] Steiner, Woods and Twigg-Flesner “EU Law” 9th edition OUP (2006) p. 121
[16] Case T- 228/02 Organisation des Modjahedines du peuple d’Iran v. Council of the European Union [2006]
[17] Idem, paras 99-101, 107-108
[18] Idem, Para 159
[19] Idem, Para 155
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