Taking Stock: Assessing the Implications of the Kadi Saga for International Law and the Law of the European Union

Abstract

In the Kadi judgments, the European Court of First Instance (‘CFI’) (‘Kadi I’), European Court of Justice (‘ECJ’) (‘Kadi II’) and General Court of the European Union (‘GC’) (‘Kadi III’) each decided issues of key significance for defining the interaction between international law and the law of the European Union (‘EU’). More recently, on 18 July 2013, the Court of Justice of the European Union (‘CJEU’) delivered a further judgment in respect of these proceedings (‘Kadi IV’).

This most recent judgment affords an opportunity to take stock of how the four judgments differed in defining the identity of the European integrative project in a modern, globalised, age. Kadi IV is of particular note because it clarifies misconceptions about the ECJ’s previous judgment to provide a clear statement about the centrality of human rights within the EU legal order and the autonomy and superiority of the EU legal order as against other, external, sources of law. The judgment thus provides an illustration of the key role played by the CJEU in defining and enforcing the autonomy and authority of the EU legal order as against other (external) sources of law.

This case note examines the implications of Kadi I-III in light of this most recent judgment. It begins by providing an overview of the factual background to the Kadi litigation and the legal determinations made by the courts in the first three judgments (Part II). This case note then considers, in light of Kadi IV, the implications of the differing approaches of each of the courts for EU law and European integration by considering the messages in Kadi IV about the permissibility of (Part III), trigger for (Part IV), focus of (Part V) and deference applicable in (Part VI) the EU-level review of measures implementing United Nations Security Council (‘UNSC’) resolutions. Part VII concludes.

Keywords: Kadi, European Law, EU, Constitutionalism, security council, UN, terrorist, blacklisting