Judicial Review by the European Court of Justice of UN ‘Smart Sanctions’ Against Terror in the Kadi Dispute

Abstract

In September 2008, the European Court of Justice found EU measures implementing UN Security Council resolutions which had called for the imposition of financial sanctions against certain persons and entities associated with Usama bin Laden, the Taliban and the Al– Qaeda network to be illegal. In a robust, inward–looking, human rights oriented, constitutionbased judgment, the ECJ provided a venue for indirect judicial review of Security Council resolutions and restored the EU legal order to its constitutional foundations. The ECJ furthermore buttressed the bridges between the EU legal order and the ECHR legal order, while erecting high walls between the former and the international law–UN legal order. The dispute before the EU judiciary highlights the multifaceted nature of modern, multilevel governance (multilateral: UN; regional: European; and national). It juxtaposes multilateralism with regionalism; the need to effectively combat international terrorism with the need to protect human rights; and the predominance in international relations of politics and diplomacy with the predominance of international and EU law. This article tackles all these themes, highlights the importance and complexities of the issues involved and analyses the commendable manner in which the ECJ addressed them.