Is the Kadi case law of the Court of Justice of the EU to public international lawyers what the acquittal of O.J. Simpson in 1995 was to conservative white people in the USA? Did the CJEU simply sacrifice the supremacy of the UN Charter because it bought into the legal tricks of a Saudi businessman and his legal team, persuading the judges in Luxembourg by arguing that, to paraphrase the late Johnnie Cochran: ‘If the legal orders don’t fit, you must acquit’?
This July, the CJEU handed down the latest – and probably final – instalment of this legal saga which has captivated both EU and international law scholars for many years. Thanks what is commonly known as the Kadi II judgment, the academic year 2013/14 starts off with the end of what was undoubtedly one of the most vividly discussed series of cases in Luxembourg, not least if you’re interested in EU constitutionalism, fundamental rights and due process, external relations, international security and the fight against global terrorism, as well as, last but not least, the supremacy of the UN Charter in international law.
In a series of recent judgments, the Fourth Chamber of the General Court of the European Union (“the General Court”) annulled the designation of some of the largest privately held commercial Iranian banks on the EU’s sanctions list. On 11 December 2012, sanctions against Sina Bank (Case T-15/11 Sina Bank v. Council) were annulled. Similarly, sanctions against Bank Mellat (Case T-496/10 Bank Mellat v. Council) were struck down on 29 January 2013. On 5 February, sanctions targeting Bank Saderat (Case T-494/10 Bank Saderat Iran v. Council) met the same fate, further illustrating the General Court’s willingness to annul sanctions if their adoption is not based on sufficient evidence and if the entity concerned is not given ample time to review and respond to the evidence against it.
The EU has significantly tightened its sanctions regime against Iran over the last two years in order to end the proliferation of sensitive nuclear activities and to halt the program the Western world fears is aimed at creating a nuclear bomb. To date, some 30 cases concerning EU sanctions against Iran are still pending before the General Court which include applications by the Central Bank of Iran and the National Iranian Oil Company.
Below, I discuss the Bank Mallat and Bank Saderat judgments before reflecting on the potential implications – if any – of the recent Opinion in Kadi II and the possible ramifications of the cases on the EU’s foreign policy agenda. Continue reading