‘If the legal orders don’t fit, you must acquit’: Kadi II and the Supremacy of the UN Charter

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.

While an in-depth analysis of the judgment and its implications is already in preparation, I would like to use this post to address one particular point: Did Mr Kadi get away with ‘killing’ Article 103 of the UN Charter?

Prof. James Crawford, at the same time a luminous international lawyer, one of the representatives of Mr Kadi before the CJEU and part-time poet, recently published on EJILTalk! a little piece entitled ‘Mr. Kadi and Article 103’ , which ends with the words: ‘And so went Mr Kadi / wandering down his wadi: ‘it’s all because of me; I killed Article 103!’.

But did he really? And does he, together with the CJEU, therefore deserve to be despised by all those cherishing  the supremacy of the UN Charter in international law (maybe even seeing in it a sort of world constitution?) After a recapitulation of what Article 103 entails and how it applies to the EU, the answer I propose in this post is the following: Firstly, if he did, then it was only in a highly abstract manner, devoid of any actual conflict of obligations. Secondly, in the larger picture of things, Mr Kadi and the CJEU are not the first, and probably not the last, who may contribute to situations of non-compliance with obligations under the UN Charter – for better or worse. In his case, in fact, it was for the better.

Article 103 and the EU Treaties as the ‘other’

To begin, let us recall the wording of Article 103 of the UN Charter :

‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

This puts the Charter at the apex of all international treaties, a feat which is recognized also in the Vienna Conventions on the Law of Treaties (Art. 30(1) VCLT); Art. 30(6) VCLTIO). ‘Killing’ Article 103, therefore, must  mean letting obligations from other international treaties prevail over those of the Charter, these obligations being irreconcilable.

Of course, one (too) easy way out would be to distinguish between obligations flowing directly from the Charter and those stemming from other, inferior sources of UN law. This was suggested, for instance, by Judge Malinverni of the European Court of Human Rights in the Nada judgment of September 2012, in which he proposed ‘a distinction between the Charter itself, as the primary legislation of the United Nations, and the Security Council resolutions, which, although binding (Article 25), may be regarded more as secondary or subordinate UN legislation’. (para. 22)

In view of countervailing case law of the International Court of Justice (see the Lockerbie case, para. 42) and opinion (see the report on the Fragmentation of International Law from 2006, para. 331),this view is difficult to subscribe to. The consensus seems to be rather that letting any countervailing obligations under another agreement prevail over those of the Charter, including and especially the implementation  of resolutions adopted by the Security Council under Chapter VII, would be in violation of Article 103.

For the European Union, to the continued chagrin of the more federalist among the Europhiles, its main Treaties represent such an ‘other international agreement’. The escape hatch of dualism is thus not immediately an option. Of course, states would still be violating their UN Charter obligations if they did not comply with Security Council resolutions, and hence their obligations under international law. While these could not be remedied by recourse to any other treaty obligation due to Article 103, they could barricade themselves within their domestic legal order and behind their constitutional laws, which in most cases reign supreme over any international law, from a strictly domestic point of view of course.

In addition, we should not forget Article 351 TFEU (ex-Article 307 TEC),  which states that obligations under agreements concluded by the EU Member States prior to founding/joining the EU ‘shall not be affected’ by the EU Treaties. For all the EU member states except for Germany, the UN Charter is such a prior agreement.

The story of the ‘thickening’ EU constitutionalism (to use Raz’ terminology), with the CJEU adding starch to the broth from van Gend en Loos onwards, has been told many times, and does not need to be restated here (for a good critical assessment see this piece by Matej Avbej). Suffice it to recall Opinion 1/91, in which the CJEU quite explicitly wants to make clear that the EU Treaties are simply not one of those ‘other’ agreements. In contrast  to such ordinary agreements, it ruled that

‘the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals (see, in particular, the judgment in Case 26/62 van Gend en Loos [1963] ECR 1). The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.’ (para. 21)

This of course is a theme that the Kadi case law was able to perfect, dismissing both Article 103 UN Charter and Article 351 TFEU in one sweep. In the landmark 2008 judgment, the CJEU pronounced its by now famous statement that the Union

‘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, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.’ (para. 326)

This reasoning, as soothing as it must be for EU constitutionalists,  and as neatly as it fits into the narrative of ‘constitutionalisation’ from van Gend onwards, remained contested in the latest appeal. There, the Council and a number of Member States urged the Court to reconsider this stance, arguing that this ‘wholly ignores the fact that it is the Security Council which has primary responsibility for determining the measures necessary for the maintenance of international peace and security and ignores the primacy of obligations under the United Nations Charter over those arising under any other international agreement.’ (para. 61) Furthermore, they argued that this would put  ‘States which are members both of the United Nations and of the European Union’  into ‘an impossible position as regards meeting their international obligations.’ (para. 61)

Unsurprisingly, the CJEU did not waver, stating that ‘without the primacy of a Security Council resolution at the international level thereby being called into question, the requirement that the European Union institutions should pay due regard to the institutions of the United Nations must not result in there being no review of the lawfulness of such European Union measures, in the light of the fundamental rights which are an integral part of the general principles of European Union law.’ (para. 66)

Is this then O.J. Simpson-moment of acquittal for international lawyers, where the supremacy of the UN Charter was sullied by the CJEU simply because the two legal orders ‘don’t fit’?

A crime with no body: Actual compliance in the absence of a time machine

First of all, in doing so, the CJEU opened and consolidated  the ‘domestic escape route’, by highlight the overriding importance of supreme constitutional principles which trump – within the Union legal order – obligations from the international level, including those hailing from the UN Security Council. But does this really amount to ‘killing’ Article 103 of the UN Charter?

Article 103 is styled as a ‘conflict’ between ‘obligations’. Therefore, we have to scrutinise whether in the course of the entire period, starting with Mr Kadi’s listing in 2001 and ending with the dismissal of the final appeal, there was sin fact any such conflict.

What were the obligations the EU Member States found themselves under in their capacity as UN members? The answer: Implementing the UN Security Council resolutions with regard to Mr Kadi, i.e. freezing his assets (and implementing a travel ban against him). Given the CFSP and the internal market for the movement of capital, the Member States used the Union, in particular CFSP instruments and (former Community) regulations, to comply with those obligations. In fact, Mr Kadi was put on the internal EU ‘blacklist’ within 48 hours of his listing at the UN. As I argued in a previous post on this blog, he remained there until the time of his de-listing by the UN sanctions committee on 5 October 2012. The EU only delisted him after he was removed from the UN list following the recommendation of the Ombudsperson.

This is the moment when the obligations on the Member States to implement the UN measures against him ceased to apply. Before that, the Member States,  together with the EU institutions, managed to avoid creating any state of actual non-compliance. This includes, importantly, the Court of Justice,  which in its 2008 judgment, even though annulling the contested measures, extended their effects for another three months (paras. 375-376) , thus giving the Commission time to ‘recycle’ the measures into new ones. The annulment of the latter two years later by the General Court did not take immediate effect either, thanks to the appeals lodged by the Council, Commission and UK (Article 60(2) CJEU Statute).

Hence, there was no single moment in which the UN measures were not being implemented in the EU with regard to Mr Kadi. While being on the UN list, there was no obligation under EU law (and under its treaties as the ‘other’ international agreements) to take him from the internal EU list. With the obligations under the UN Charter being honoured, can we speak of a ‘conflict’ in the sense of Article 103 of the UN Charter?

Certainly not in any tangible way. After all, at no point in time did the Member States face opposing obligations, with the UN demanding one thing and the EU requiring the opposite. At best, in a more theoretical, abstract sense, could we speak of a conflict given that the implementing measures were being judicially reviewed within the EU even though the Charter would (arguably) have demanded unquestioning compliance. What is more, with the annulment of the 2008 regulation now being effective thanks to the dismissal of the appeal by the 2013 judgement with the result that, in the CJEU’s own words ‘the contested measure is retroactively erased from the legal order and is deemed never to have existed’ (para. 134).  Thus, with retroactive effect, from 3 December 2008 till 5 October 2012, Mr Kadi is to be deemed not to have been on the EU’s list, while he was on the UN’s.

However, and especially bearing in mind the preventive nature of the sanctions regime, the historical fact remains that his assets were frozen during this entire period (even though we now know they should not have been, according to EU law). While this creates a retroactive, abstract conflict between obligations, a time machine would be required to make it an actual one, in order to create an alternative timeline – somewhat reminiscent of Back to the Future – in which Article 103 was ‘killed’ by letting obligations under the EU Treaties prevail of those under the UN Charter.

The UN Charter and its real killers

On a more general level, it is worth asking whether Mr Kadi and his able henchman the CJEU were even capable of ‘ killing’ Article 103, or whether they were just kicking the shins of a dead horse, if you will. Article 103 elevates the Charter above all other international treaties. The binding obligations from being a member of the UN should hence trump any other treaty obligation. This certainly represents a key aspect of the post-war  international legal order, and a valid starting point for discerning intimations of global constitutionalism.

Having acknowledged this, the reality remains that violations of the UN Charter remain a frequent occurrence in today’s international relations. On the one hand, maybe in Kadi, Article 103 was ‘ killed’ (if at all) in a rather abstract way, in the absence of any palpable conflict. On the other hand, crucial provisions of the Charter are regularly defiled, with actual victims and mainly without any attempts at justification by obligations under ‘other’  international agreements or legal principles such as human rights and due process standards. Rather, justifications, if offered at all, leave behind the realm of the legal and descend into the thicket of ‘morals’, ‘national interest’,  ‘religion’, ‘history’ or ‘race’.

The Kadi case law does not undermine the supremacy of the UN Charter, actual, atrocious and continuing violations of the basic principles of the Charter do. Among the more prominent examples, one can recall the US and its ‘coalition of the willing’ violating the prohibition to use force (Article 2(4) UN Charter) in 2003 when they invaded Iraq. Georgia and Russia certainly did not resolve their dispute over South Ossetia in 2008 by peaceful means (Article 33 UN Charter), while Western Sahara remains occupied by Morocco to the present day. Not to mention both the long-standing and more recent developments in the Middle East, where ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ and  ‘universal peace’ (Article 1(2) UN Charter) remain terms with a fantastic, unworldly ring to them.

Of course, breaches of the Charter do not justify others, but this goes to show that the UN has graver problems than abstract, retroactive violations of Article 103 based on the ‘constitutional’ reasoning of a supranational court. What the CJEU confirmed and consolidated in Kadi II, in fact incentivises the UN, and especially its targeted sanctions regime, to live up to the standards their very own founding documents impress upon it and the international community. This means in particular to ‘achieve international co-operation […] in promoting and encouraging respect for human rights and for fundamental freedoms’ (Article 1(3) UN Charter). Only in combatting both threats to international security and the overzealous, Kafkaesque international bureaucracy of targeted sanctions can we all live ‘in larger freedom’ (Preamble, UN Charter), not just Mr Kadi.