Do Fundamental Human Rights Take Precedence Over UN Security Council Resolutions?

 

A leading European Judge has delivered a landmark Opinion on this question following an appeal brought by Saudi Arabian businessman and philanthropist, Sheikh Yassin Abdullah Kadi, against European asset freezing regulations applied in the aftermath of the 9/11 terrorist atrocity.

On 16 January 2008 Advocate General Poiares Maduro of the Grand Chamber of the European Court of Justice (ECJ) in Luxembourg delivered his opinion that the European freezing measures imposed in 2001 breached Mr Kadi’s fundamental right to property, his right to be heard and his right to effective judicial review.

The Advocate General stated that he believed Mr Kadi’s challenge to be “well-founded” and urged the ECJ to rule that the measures against Mr Kadi should be annulled.

In the immediate aftermath of 9/11, Mr Kadi was one of a number of individuals and organisations against whom the United Nations imposed worldwide asset freezing measures, by way of a number of Security Council Resolutions. These Resolutions were made at the request of the United States, and given effect in the European Union by way of EU Regulation. While Mr Kadi has consistently and vigorously refuted each and every allegation against him, neither before the UN nor the EU was he permitted access to any independent court; nor was he even allowed any opportunity to be heard to make representations.

Carter-Ruck is representing Mr Kadi in his appeal to the ECJ. It is a test case of defining importance not only for considering the balance between fundamental human rights and the fight against terrorism, but for the interrelationship between the institutions of the European Union and public international law.

In his Opinion, the Advocate General rejected the proposition, advanced by the European institutions responsible for the freezing measures, that judicial review by the courts in cases of this nature would be inappropriate because of the “political” nature of the issues. He considered that the mere claim by those institutions that a freezing measure is “necessary for the maintenance of international peace and security” cannot operate so as “to silence the general principles of Community law and deprive individuals of their fundamental rights”. On the contrary, he decided that in such cases it is the duty of the courts to uphold the rule of law with increased vigilance.

The Advocate General considered that rather than refer the matter back to the lower Court of First Instance (which would result in delay to a final determination of the issues), the ECJ should itself give judgment on the question of whether the Regulation infringes Mr Kadi’s fundamental rights.

The Advocate General’s Opinion comes in the wake of a December 2007 decision by Switzerland to discontinue its six-year criminal investigation against Mr Kadi. This decision itself followed a thorough investigation by the Swiss authorities (working with law enforcement authorities from many other countries around the world) lasting more than six years. The Swiss authorities have lifted the criminal freezing of Mr Kadi’s accounts in Switzerland although the funds will remain frozen under UN administrative procedures.

The Opinion of the Advocate General is not binding on the ECJ: it is the role of the Advocate General to propose to the Court a legal solution to a case. The ruling of the Grand Chamber is now awaited on the appeal.

Mr Kadi’s legal team included Partner Guy Martin, Managing Partner Cameron Doley and solicitor Athalie Matthews, working with London-based Consultant Maitre Saad Djebbar. They instructed a team of advocates comprising the pre-eminent public international lawyer Ian Brownlie, CBE, QC (Chairman of the International Law Commission of the United Nations) and Pushpinder Saini QC, both of Blackstone Chambers, London, together with leading European law experts David Anderson QC of Brick Court Chambers, London and Piet Eeckhout, Professor of European Law at King’s College, London.

Get Carter-Ruck
Summer 2008