Kadi De-listed – a cause for celebration?

It finally happened: After more than a decade, Mr Yassin Abdullah Kadi is no longer ‘blacklisted’ by the UN and the EU.

To recall, on 17 October 2001, the United Nations Security Council added Mr Kadi to a so-called ‘blacklist’, thus  requiring his financial assets to be frozen in view of his suspected involvement in the financing of international terrorism. Two days later, the EU followed suit by adding Mr Kadi on its own list and thus subjecting him to EU measures implementing the Security Council resolutions, which Mr Kadi subsequently challenged before the EU courts. Fast forward almost eleven years: On 5 October 2012, the Security Council removed Mr Kadi from the UN list, ‘after concluding its consideration of the delisting request submitted by this individual through the Ombudsperson’. A week later, the EU followed suit once more and took Mr Kadi off its list as well.

A decade of compliance with international law

In short, Mr Kadi has at no moment in time, not for the blink of an eye, been off the EU list while he was on the UN list. Only once the decision to de-list him was taken at the UN level was the EU prepared to remove him off its own list. This means that as a matter of fact, the EU has always been in full compliance with the resolutions of the UN Security Council (and the decisions of its ‘1267 Committee’) as far as Mr Kadi was concerned. In this post, I will argue that neither a decade of compliance with UN obligations nor a decade of litigation before the EU courts, taken on their own, serve as a cause for celebration. However, it is the interaction between the different levels which gives rise to cautious optimism.

The ‘the strict observance and the development of international law, including respect for the principles of the United Nations Charter’ is one of the objectives of the European Union (Art. 3(5) TEU). This alone may justify the approval of the course of events by those among us who stress the importance of a strong and unified international response to terrorism, as well as those that want to see the EU as a ‘model student’ on the international legal plane. For others, however, who are more concerned with accountability and the effectiveness of legal remedies for individuals, it may be disconcerting that Mr Kadi had his assets frozen for almost eleven years, and that his various legal challenges within the EU (the ‘Community based on the rule of law’, as we know since the Les Verts judgement) were to no avail, at least not in an immediately palpable sense.

A blog post is certainly not the place to address all the questions this raises in detail. An in-depth analysis of the aftermath of the Kadi saga will be more properly tackled in book-length and from a variety of perspectives (see the forthcoming Routledge volume edited by Matej Avbelj, Filippo Fontanelli and Giuseppe Martinico, Kadi on Trial: A multifaceted analysis of the Kadi judgment, which will also feature an elaboration of my argument sketched out in this post). The point here is simply that what finished the seemingly never-ending story of Mr Kadi’s listing was not judicial intervention by the EU, but the UN Security Council responding to its own Ombudsperson. After legal academia has been zealously devouring, digesting and regurgitating the wisdom of the EU judiciary for the past years, this particular ending may leave a bit of a sour aftertaste. Nevertheless, as will be argued here, the EU courts did play their (indirect) part in the long way towards the de-listing of Mr Kadi.

Kadi before the EU courts: A seemingly never-ending legal drama

I will briefly recall the main acts this legal drama within the European legal order (noting though that similar litigation also played out in Switzerland and the US), in which the General Court, the Advocate General and the Court of Justice took turns in presenting us with different conceptions of the relationship between the international and EU legal orders, as well as the right balance between the need to pursue international security and effective protection of fundamental rights. In a nutshell, the General Court in its 2005 judgement ‘discovered’ a ius cogens standard which allowed it to review the EU implementing measures as well as, vicariously, the UN measures. It concluded, however, that against such a standard, no fundamental rights breaches could be detected and rejected Mr Kadi’s challenge.

Subsequently, Advocate General Maduro in his Opinion of January 2008 took up the cudgels for the autonomy of the Union legal order and for the effective protection of fundamental rights. The Court of Justice in its landmark judgement of September 2008 largely followed the AG in terms of reasoning, but did not go as far as to invalidate the challenged EU measures right away. Instead, it kept them in effect for three months, allowing the Commission to remedy the situation from the point of view of protecting fundamental rights.

Thus, the Commission sent Mr Kadi a letter, to which he replied, following which the Commission decided to re-list him under a new implementing measure before the expirey of the three-month period. Mr Kadi then went on to challenge the new measure before the General Court. The latter, in its judgement of September 2010 (grudgingly) adopted the reasoning of the Court of Justice (so adieu to the ius cogens standard) and found in favour of Mr Kadi, ruling that the Commission had only paid heed to fundamental rights considerations in the most marginal fashion. However, Mr Kadi still remained on the list, as the timely appeal by the Commission, Council and the United Kingdom prevented the challenged measures from being invalidated.

Notwithstanding his de-listing in early October, the hearings for the appeal took place in mid-October, with an Opinion being expected for early 2013, and a judgement to be handed down around autumn that year — as an epilogue to the drama, if you will.

No judicial intervention, but judicial pressure shaping of the UN sanctions system

What emerges as a pattern from all this case law is the following: The EU judiciary never failed to stress the overarching importance of effective judicial protection and fundamental rights, but at the same time managed to keep Mr Kadi on the list and consequently the EU in compliance with UN obligations (I will not go into whether, how and to which extent the EU is actually bound to the UN). Commenting on the 2008 judgement, I considered this a good middle ground. The Court managed to  ‘square the circle’ between these two positions and hinted at ways in which judicial protection can be improved at the UN level (which I called ‘upward solanging’). And indeed, the threat of judicially enforced non-compliance with the UN is likely to have had its impact on the UN sanctions mechanism. The reports of the Monitoring Team of the ‘1267 Committee’ of the Security Council consistently referred to the Kadi litigation in the EU and on how improvements on the UN level can be made to avoid adverse judgements.

While clear-cut cause and effect will be hard to establish, as a matter of fact it was request lodged with the Ombudsperson — an institution that was set up for no other reason than to respond to fundamental rights and accountability concerns  — whose report then legally paved the way for Mr Kadi’s de-listing at he UN.

Admittedly, the General Court in its 2010 judgement did not consider the office of the Ombudsperson as sufficient for relinquishing its own review powers:

In essence, the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee. Furthermore, neither the focal point mechanism nor the Office of the Ombusdperson affects the principle that removal of a person from the Sanctions Committee’s list requires consensus within the committee. Moreover, the evidence which may be disclosed to the person concerned continues to be a matter entirely at the discretion of the State which proposed that he be included on the Sanctions Committee’s list and there is no mechanism to ensure that sufficient information be made available to the person concerned in order to allow him to defend himself effectively (he need not even be informed of the identity of the State which has requested his inclusion on the Sanctions Committee’s list). For those reasons at least, the creation of the focal point and the Office of the Ombudsperson cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee […].’ (paragraph 28)

Nonetheless, this was the mechanism through which Mr Kadi’s actual de-listing was achieved in the end. In this context, it should be recalled that the EU Treaty does not call for unquestioning obedience with international law (völkerrechtlicher Kadavergehorsam, as you could call it in German), but also for the ‘development of international law’ (Art. 3(5) TEU) as well as ‘multilateral solutions to common problems, in particular in the framework of the United Nations’ (Art. 21(1) TEU). In putting pressure on the UN level, the EU courts did contribute to such a development and a multilateral solution.

A cause for cautious optimism

From this point of view, the approach of the Court of Justice does not seem so ‘chauvinist and parochial’ anymore, as Gráinne de Búrca put it when commenting on the 2008 judgement. Rather, they appear as acts in what this same author calls the ‘governance mode’ of EU external relations, i.e. acts in the service of commonly shared goals and achieved through multilateral means (forthcoming in the Oxford volume edited by Bart van Vooren, Steven Blockmans and Jan Wouters, The EU’s Role in Global Governance: The Legal Dimension). From a more legal-theoretical point of view, it can also be seen as legal pluralism in action. In the latter sense, the EU and international legal orders did indeed not end up sailing past each other ‘like ships in the night’, to use the words of Advocate General Maduro, himself an academic advocate of legal pluralism.

In sum, the fact that it took close to eleven years to resolve this issue is certainly rather a cause for critical reflection on the effectiveness of multilevel governance than a reason for elation. Furthermore, neither is the fact, on its own, of the EU being compliant with international obligations a joyful occasion, nor is that of the UN finding a solution on its own terms. Taken together though, and recognizing the interaction between these different levels and actors, certainly is, if not a cause for celebration, a reason for cautious optimism.