Multi-Level Anti-Terrorism Governance and the Rule of Law - The Judgment of the Court of Justice of the European Communities in the Y.A. Kadi v. Council Case

Abstract

The recent resurgence of international terrorism has imposed a difficult challenge on States where public power is democratically legitimated and where the rule of law prevails. Many States have created specific legal provisions, so called emergency laws, for the fight against contemporary terrorism giving extra powers to State bodies. These laws intruding into the private spheres of individuals and their organizations were often based on obligations in international law. The anti-terrorism resolutions of the UN Security Council, while leaving considerable room for implementation on the State level, determined unquestionably the duties of States in the fight against global terrorism.

The main question addressed in this paper is whether multi-level systems of governance may rely on innovative concepts and solutions which appeared in the new constitutionalism discourse in order to ensure the legality of measures adopted on different levels within the system. Basically, a multi-level system may ensure compliance with the rule of law by ensuring and enhancing open intra-systemic communication among the levels of governance, the levels being able to correct the constitutional shortcomings of the other levels, by means of which the legality of measures will depend on the constitutionality of the system as a whole. Conversely, the constitutional functioning of multi-level systems may require the levels to impose full constitutional requirements independently without relying on the constitutional safeguards offered on the other levels of governance. In the case law of Community Courts this dilemma manifested in the question whether the constitutional safeguards available to the individuals affected should be guaranteed on the European Union level to a full extent or the constitutional safeguards should be guaranteed in cooperation with the other levels of governance joined together in the multi-level system of global anti-terrorism governance.

Keywords: terrorism, multi-level governance, new constitutionalism, multi-level constitutionalism, Kadi, Yusuf, anti-terrorism, anti-terrorism governance