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Echoes of Kadi: Reforms to Internal Remedies at INTERPOL

In November 2016, the international police body INTERPOL adopted major reforms to its internal complaints mechanism, the Commission for the Control of INTERPOL’s Files (CCF) (see the new Statute of the CCF, entering into force in March 2017 (CCF Statute)). The reforms respond to campaigning by the NGO Fair Trials (see its response), and are welcome news for practitioners. They will also be of particular interest to observers of the case-law concerning international organisations (IOs), UN sanctions and the role of international-level remedies systems as a substitute for judicial review in municipal-level courts. The CCF Statute represents a serious effort to ensure effective access to justice within INTERPOL and, thereby, justify INTERPOL’s immunity before national courts. However, as discussed below by reference to one key aspect of the new rules (disclosure of evidence), the success of these reforms depends upon their interpretation and application by the CCF itself.

The back story: IOs and the doctrine of alternative remedies

Since the second world war, sovereign states have transferred numerous tasks to IOs such as the UN and (controversially for some) the EU. By their nature, IOs cannot be governed by the national law of a single country and are granted immunity (typically in their Headquarters Agreements) from the jurisdiction of national courts. The problem arises when the IO acts in such a way as to impact on the fundamental rights of an individual: without a court to turn to, where does he seek a remedy?

The issue first arose before the European Court of Human Rights (ECtHR) in cases relating to other IOs. In Waite and Kennedy v Germany, the German employment courts had upheld such an immunity and refused to hear a claim brought by contractors against the European Space Agency (ESA). The contractors argued a breach of their right of access to a court, protected by Article 6 of the European Convention on Human Rights (ECHR). The ECtHR found that the restriction did not impair the essence of the right, in that an appeals board within the ESA offered ‘reasonable alternative means to protect effectively their rights’ (at 68-69). That is the basic principle: the IO may escape national court jurisdiction, provided it offers an alternative system ensuring access to justice. (more…)

Mr. Kadi and Article 103 (A Poem)

Professor James Crawford SC FBA is Whewell Professor of International Law at the University of Cambridge

While wandering through a wadi
in the wastes of Saudi
I came across Mr KadiKadi
cracking rather hardy.

I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,

lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’

And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’

_________________

* Editors’ note: We are delighted to publish Professor Crawford’s poem, which he first presented last week during a lecture at The Hague Academy of International Law. Previous posts about Kadi here(Kadi pictured above, credit.)

Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ

I. Introduction

After more than a decade on the UN 1267 sanctions list, Yassin Abdullah Kadi was delisted by the UN 1267 Committee on 5 October 2012, following review of a delisting request he had submitted through the Office of Ombudsperson: a mechanism established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011)—and a mechanism which the Kadi cases before the European Union courts (along with some others in domestic courts, such as Nada, Abdelrazik, Hay, Ahmed, etc) pushed to create.

Kadi’s delisting came at a time when the European Commission, the Council of the EU, and the UK were pursuing an appeal against the General Court’s decision in Kadi II. This was the decision striking down Kadi’s re-listing by the EU following the annulment of the Regulation listing him for the first time by the ECJ in Kadi I (for comment see here). And yet the appellants did not give up their appeal. It was not just that the delisting came shortly after oral argument before the ECJ had been concluded; they also wanted a decision on the serious issues raised in Kadi II, in particular the question of the standard of review that EU courts will apply in reviewing UN-imposed terrorist sanctions against named individuals and legal entities. The importance of this jurisprudence for future cases is obvious.

The Grand Chamber of the ECJ delivered its decision on the Kadi II appeal on 18 July 2013. It upheld the decision of the GC striking down the Regulation relisting Kadi, even if it did overturn part of the GC reasoning. Most notably, it affirmed that it will continue to review EU listings implementing strict Security Council obligations in the face of lack of equivalent control at UN level, it insisted on a rather strict standard of review of such listings, and it undertook—for the first time—substantive review of the reasons for listing offered by the EU (which were in fact merely those offered in the terse ‘narrative summary of reasons for listing’ that the Security Council released). (more…)

On AG Bot’s Opinion in Kadi (IV)

Dr. Asier Garrido Muñoz is Assistant Professor of Public International Law (University of Salamanca). He has recently published Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas (Tirant lo Blanch, Valencia, 2013 here).

After Nada v. Switzerland (ECtHR) and Parliament v. Council, AG Bot has added new grounds to the debate on anti-terror lists with his opinion delivered on 19 March 2013 in the Kadi (IV) case (available here). The case has its origin in an appeal filed by the Commission, the Council and the United Kingdom against the judgment of the General Court (GC) delivered in Kadi (III). Mr Kadi and the preceding judicial decisions need no presentation here. As a consequence, this post will omit all details on Kadi (III) and the background to that decision.

The Commission (C-584/10 P), the Council (C-593/10 P) and the United Kingdom (C-595/10 P) basically supported their application on three main grounds. Firstly, the GC had erred in law in Kadi (III) by refusing to grand judicial immunity to the Regulation including Mr Kadi’s name in the 1267 list. Secondly, the standard of judicial review applied by the GC in order to supervise the inclusion of Mr Kadi in the list had been excessively demanding. Finally, the arguments of the GC concerning the violation of his rights of defense and the right to a fair trial were wrong. It must be noted that Mr Kadi was withdrawn from the UNSC 1267 list on 5 October 2012, that is, some months after the oral phase of the procedure before the ECJ had taken place. This incident provoked some surprise amongst the parties to the case but should not preclude a final ruling on a previous GC judgment.

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The Kadi case: Response by Juliane Kokott and Christoph Sobotta

We are grateful to EJIL that our article in the latest issue of the journal has been chosen for discussion in this forum. The commentaries by Yang and Tzanakopoulos help us to put our position into perspective and frame it more precisely.

 Tzanakopoulos develops the Solange argument for judicial control in multilevel systems in the way that implicitly underlies our understanding in the first part of our contribution. His argument is almost binary in its nature. Either the standards of judicial control on the other level are adequate or our level will control measures from the other level.

However, Yang provides a more nuanced image: Solange or not Solange – that is not the question. The conditions of a Solange rule are what is important. And we would add that also the consequences of the conditions are of interest. (more…)

Kadi and the Solange Argument in International Law

Antonios Tzanakopoulos is University Lecturer in Public International Law at the University of Oxford and Fellow of St Anne’s College, Oxford.

It is a pleasure to have been invited to contribute to the discussion of the article by Juliane Kokott and Christoph Sobotta on balancing constitutional core values and international law against the background of the Kadi case. At the outset I must state that I find myself in broad agreement with what I understand to be the authors’ central argument: ie that the CJEU (or ECJ) employed a variant of the Solange argument, if implicitly, in its Kadi judgment of 2008. I have in fact also argued this in a paper I presented in Oslo in 2009, which appeared in print in January 2012 (here) and indeed on this blog (here and here). I would kindly ask readers (if any) to also read the latter blog posts, as the present comment builds on the premises there laid out.

I will proceed with the discussion of three major issues that arise from the authors’ discussion of Kadi as a balancing exercise between constitutional core values and international law. The first issue refers to the perceived ‘dualism’ of Kadi and consequently of any attempt to employ a Solange argument. The second issue deals with the content of the Solange argument, in particular with the rules it seeks to establish and / or safeguard. And the final issue deals with the justification of the Solange argument in (international) law and the ‘battle for the analogy’. (more…)

Comment on Kokott/Sobotta “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?”

Nele Yang is a PhD candidate and research fellow at the Max Planck Institute for Comparative and International Law in Heidelberg.

The title of Kokott and Sobotta’s article (available free here) seems to suggest that this is another analysis of whether the 2008 Kadi decision succeeds in balancing core EU constitutional values and the effective implementation of UN anti-terrorist sanctions. Innovatively, however, the authors choose not to venture down this well-trodden path. Instead they ask what can be drawn from the Kadi judgment and the developments it has triggered in order to reduce conflict between the EU legal order and the UN Al-Qaida sanctions regime in general.

Solange – the Importance of Conditions

Kokott and Sobotta assert that the ECJ’s 2008 Kadi decision contains an approach similar to the German Federal Constitutional Court’s famous Solange. The question whether the 2008 Kadi judgment can be read as spelling out a Solange approach or at least leaving this approach open as one alternative for future action is less controversial than the article makes it out to be. Considering how much of the Kadi debate has been conducted around this issue, it is to be regretted that Kokott and Sobotta do not clarify that there is no “either/or” relationship between an approach à la Solange and a dualist approach. Moreover, Solange does not necessarily imply an attenuated form of dualism. To the contrary, depending on the conditions contained in the relative clause starting with “as long as”, the stance that it is this legal order which determines under which circumstances the other legal order will have any bearing on it might even be intensified. This is why we distinguish between Solange II and Solange I. Thus, “solange” in itself only expresses that interaction is made conditional. It does not say anything about the conditions, but the conditions are the crucial part. So the question is not so much whether a Solange approach can be drawn from the 2008 judgment but rather under which conditions the Court might in future cases practice deference.

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Discussion of Kokott and Sobotta, “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?”

Over the next few days, we shall be hosting a discussion of Juliane Kokott and Christoph Sobotta’s article “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?” which was published in the final issue of volume 23 of the European Journal of International Law (2012).  Juliane is an Advocate General at the Court of Justice of the European Union, and Christoph is a legal secretary in her chambers.  The first commentary on this article is by Nele Yang, who is a PhD candidate and research fellow at the Max Planck Institute for Comparative Public Law and International Law, and the second by Dr Antonios Tzanakopoulos, who is a lecturer in public international law at the University of Oxford and a fellow of St Anne’s College.  The final post in this discussion is a reply to Nele and Antonios’ comments by Juliane and Christoph.  You are invited to join in this conversation.

Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. (more…)

A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi

Devika Hovell is a DPhil Candidate in international law at the University of Oxford, and Associate Fellow  at Chatham House. She worked formerly as Director of the International Law Project and Lecturer in International Law at the University of New South Wales. Her doctoral thesis applies a procedural fairness framework to Security Council  decision-making on sanctions.

Recent developments following the decision of the European Court of Justice in Kadi indicate that the decision may require a more holistic response to due process by the Security Council than has been contemplated to date. The 11 June 2009 decision of the Court of First Instance in Othman v Council of the European Union, the European Commission’s proposal on 22 April 2009 to enact a regulation enabling it to second-guess Security Council sanctions listings and Mr Kadi’s initiation of new proceedings in the Court of First Instance on 26 February 2009 all provide potential new challenges to the ability of EU member states to comply with the Security Council sanctions regime. The leak sprung in the sanctions regime with the ECJ’s decision in Kadi threatens to assume a more sieve-like quality as more and more designations risk being overridden at the regional or domestic level on due process grounds. As the repercussions of the Kadi decision become increasingly pervasive, there is a sense that even the tectonic Permanent Five may be starting to shift on the issue.

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