In short, one of the tools at the disposal of the UN Security Council is to impose international sanctions on countries, groups, individuals, regimes and, of course, terrorists. Those sanctions are political, which is fine since the UN is politics. UN Member States are bound to apply the sanctions – like any other UN obligation or decision. Designated sanctions regimes, however, create a problem when imposing on individuals without any possible challenge. That is, without due process and access to Justice, fundamental rights guaranteed by Constitutions and international instruments, the most importants of which the European Convention of Human Rights – but also the UN’s own International Covenant on Civil and Political Rights. After the initial wake of sanctions and the international community’s uniting to fight terrorism, criticism arose on terrorists being deprived of due process, which criminals have the benefit of. Beyond that criticism there were then legal challenges brought by parties affected by sanctions in UN Member States implementing sanctions regimes. This due process problem was discussed and acknowledged, but never fixed, in UN circles and even before the General Assembly. Out of schizophrenia, while reaffirming several times that they should respect human rights which are one of its pillars, and even saying openly that human rights should be respected in implementing sanctions regimes, the UN wants its Member States to apply the sanctions without any recourse whatsoever. Or so do the Member States think. That is with absolute precedence of the sanctions as UN decisions over Member States’ constitutional principles, or even over international instruments allowing a valid legal challenge of such implementation before internal courts. Which is the precedence instituted by art. 103 of its Charter.
This of course doesn’t fly. But stands, beyond comprehension – and with the help of uninspired and unexperienced national courts. And shocks. But Justice always makes its way. Even if it needs several tries and going after windmills. After a first Kadi appellate judgment of the European Court of Justice of September 2008 [1], consecrating access to Justice as being mandatory out of the EU public order notwithstanding art. 103, was in its substance and on due process blatantly disregarded by the EU Commission, the EU General (first instance) Court hit it this time much harder – in the new and third Kadi judgment of September 30, 2010 [2] (here for the press release [3]). A true delight for defense lawyers and anyone committed to having due process « concretely and effectively » enforced. Near quite perfect. How and why? Just one strong paragraph in a thirty pages judgment, § 125, taking the quintessence of the September 2008 judgment of the Court. A must read. This § and this judgment are a milestone by affirming that “…that the review, by the Court of Justice, of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an ‘international agreement’ (paragraph 316), and that accordingly ‘the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which … are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations’ (paragraph 326).”
Why is this so quintessential? Because the Court and now the General Court needed to affirm the autonomy of the EU legal order to allow access to Justice arising out of it. This has a non-unsignificant collateral but unavoidable damage, in disregarding, and thus weakening, art. 103 of the UN Charter. This is regrettable – because of how necessary the UN and Security Council are in maintaining peace and security in the world. But even more so that the UN planted this nail in art. 103’s own coffin alone – for having ununderstandbly ignored principles which come above all, and created incredulity and disappointment for disregarding principles which are, or should have been here more than ever, one of its own pillars. But that’s not all Folks. The new Kadi judgment is sweet and well deserved music in three other respects where it is not stonewalling like many (and like the Commission’s actions and arguments), but goes to the full extent of the legal protection intended by due process. At § 150 it acknowledges that a ten years interim measure amounts to a material violation (here of property rights). In §§ 153-184, it strongly reaffirms that the notification of charges is essential and must be concrete and material, and thus not only formal and superficial, and that when charges are not properly laid down, there is a violation of access to Justice – i.e. of the compulsory effectiveness of such. Reference is (duly) made to the ECourtHR case law on this at § 176. Bravo. Nothing more to say… than we want more of those!