Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!
Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,1 Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.2 Happy Ending.
It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.
Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.
- Even had the American legal system heeded the international imperative and given the convicts a review, this, in all likelihood, would have merely delayed their grisly end. Their guilt in this case was not at issue. [↩]
- Here, too, we may be dealing with judicial gesture – the effects of the decision were stayed for three months to enable the Council (of the EU) to “put its house in order and come up with a more solid basis which would actually allow the measure to be kept in place. [↩]