Aftermath of an Unwise Decision: The U.N. Terrorist Sanctions Regime After Kadi II

Abstract

The European Court of Justice (ECJ) in Kadi II sought to promote certainty, but instead produced a dangerous muddle. In requiring more formal judicial review of decisions by the United Nations Sanctions Committee to freeze the assets of suspected terrorist financiers, the ECJ failed to observe appropriate limits for EU institutions in a complex and comprehensive United Nations regime. Kadi II failed to display the appropriate level of deference to Sanctions Committee decisions, which are issued pursuant to the Security Council’s mandate to maintain international peace. The ECJ also failed to defer to common sense inferences drawn by the Sanctions Committee, and ignored the procedural safeguard supplied by the 2009 establishment of the Committee’s Office of the Ombudsperson. These flaws put European Union (EU) states in a no-win position, caught between their duty to comply with the decisions of EU tribunals and their duty to comply with Security Council resolutions. While the Security Council and EU member states may be able to establish a tribunal that meets the ECJ’s concerns, that effort will require compromises that may undermine the sanctions program.