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FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS:
RECENT DEVELOPMENTS IN EUROPEAN HUMAN RIGHTS PRACTICE
Clemens A. Miiller*
I. INTRODUCTION
strictive for individual&s, the ECtHR can not examine EU/EC acts, as the
EU/EC is not a member of the European Convention of Human Rights
(ECHR or "Convention"). The only possibility which remains is an indirect
control of the implementation through considering the state act itself.
This example shows that as long as an "International Court of Human
Rights" is not in place and as long as the EU is not a member of the ECHR,
great uncertainty and a lack of judicial remedy could remain. It also points out
the judicial interaction between the international, national and regional level
with regard to the protection of human rights. All in all, within the European
system four levels of interrelation can be assumed: first, the relationship be-
tween the UN legal order and the Community legal order and second, the le-
gal order set forth in the ECHR and the Community legal order. Further-
more, the national legal order and the Community legal order as well as the
national legal order and the ECtHR.
The only relationship which seems to be somewhat clear in that muddle is
that between the national and EC legislation. 6 The EC legal order claimed di-
rect effect and supremacy. 7 The ECJ has also created a doctrine of protection
of human rights. Starting with the Stauder8 case in 1969, the Court revisited
its protection of fundamental rights in the case of Internationale Handelsgse-
sellschaft9 and later in the cases Nold'" and Hauer" in 1974 and 1979 made its
first references to the ECHR. After the creation of the EU at Maastricht in
1992 and the adoption of the treaties of Amsterdam and Nizza, the protection
of human rights is set forth in Article 6 (2) TEU and the (not yet binding)
Charter of Fundamental Rights of the European Union'", which is incorpo-
rated in the EU Constitution Treaty in part II. However, the ECJ's ad hoc
treatment of human rights through a doctrine of principles of fundamental
rights seems to take into account concerns which member states have regard-
ing their constitutional rights and their loss of competence. Indeed, it is also
an unavoidable way to save the principle of supremacy. A recent development
in the ECJ jurisprudence is the application of ECtHR case-law to the Third-
Pillar of the EU (Police and Judicial Co-Operation in Criminal Matter). 3
Here, a new conflict between national courts and Luxembourg seems to
evolve. The German Federal Constitutional Court had declared the national
Art. 2 3 OTEC.
6 See on this well discussed topic P. Alston (ed.), THE EU UND HuMAN RIGHTS
(I999); A. von Bogdandy, The EU as a Human Rights Organisation?Human rights and
the Core of the European Union, 37 CMLR 2000, p. 1307. R. Ahmed & I. de Jes6s But-
ler, The European Union and Human Rights: An InternationalLaw Perspective, 17 EJIL
(2006) p. 771; S. Besson, The European Union and Human Rights: Towards a Post-
National Human Rights Institution?, 6 HRLR (2oo6), p. 323.
7Case 16/64 Costa v. Enel [1964] ECR 585. Further: P. Craig & G. de Birca, EU
Law, Chapter 6, p. 255.
Case 26/29 Stauder v. City of Ulm [1969] ECR 419.
Case 11/70 Internationale Handelsgesellschaft [197o] ECR 11 25.
Case 4/73 Nold v. Commission [19741 ECR 491.
Case 44/79 Hauer v. Reihnland-Pfalz [19791 ECR 3740.
See EU Network of Independent Experts on Fundamental Rights, Commentary
of the Charter of Fundamental Rights of the European Union, June 2006,
http://ec.europa.eu/justice home/cfr cdf/index en.htm.
" Case 105/03 Pupino, [2005] ECR 1-5285. See 26 HRLJ (2005), p. 75.
2007] FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS
EU Arrest Warrant Act as contrary to the German Basic Law, without men-
4
tioning the ECJ findings in the Pupino Case.'
The relationship between the ECtHR and the national legal order is var-
ied among the member states, as the ECHR itself does not make provision for
the methods of its incorporation into national law. The status of the Conven-
tion in the member states of the Council of Europe can be divided in several
different types: First, states where the Convention has the Status of the Con-
stitution 5, second, states where the Convention has the same rank as domestic
law' 6, and third, states where the Convention has a rank between the constitu-
tion and the domestic law' 7 . This causes more for some member than for oth-
ers as far as the relationship to the ECtHR is concerned. 8 E.g. in Austria, be-
longing to the first group of member states, the rights enshrined in the
ECHR are applicable in the Austrian Constitutional Court in the same way as
those set fort in the Austrian Bill of Rights. Therefore the human rights stan-
dard in Austria is at a very high level as individuals, administrative authorities
and legislature are aware of their Convention rights. On the contrary Ger-
many, belonging to the second group, the status of the ECHR and the role of
the ECtHR is not yet very clear. In the recent Gdgili case the German Fed-
eral Constitutional Court made an ambiguous statement with regard to the
execution and effects of the decisions of the ECtHR.' 9 In the aftermath many
statements by those responsible were made in an effort to avert further dam-
age, while the anxiety not to lose legal competence is unmistakable. Indeed,
most of the German judges consider the rights enshrined in the ECHR as less
and Denmark.
7 E.g., Belgium, Cyprus, Croatia, Eastland, France, Great Britain, Greece, Ire-
land, Luxemburg, Malta, Portugal, Slovakia, Slovenia, Spain.
i8 See J. Polakiewicz, The Status of the Convention in National Law, in R.
Black-
burn & J.Polakiewicz (Ed.), smpra note 14, p. 3i.
9 BVerfG 74, 358. Translation in: 25 HRLJ (2004), p. 99. See frther: Cremer,
Zur Bindungswirkung von EGMR-Urteilen, EuGRZ 2004, p. 683. The Court states:
"Within the German legal system, the European Convention on Human Rights and its
protocols, to the extent that they have come into force for the Federal Republic of
Germany, have the status of a federal statute. This classification means that German
Courts must observe and apply the Convention within the limits of the canons ofju.tif-
able interpretation like other statute law of the Federal Government [...] (para. 32, em-
phasis added)." In taking into account decisions of the ECtHR, the state bodies must
include the effects on the national legal system in their application of the law. This ap-
plies in particular with regard to a partial system of domestic law whose legal conse-
quences are balanced and that is intended to achieve an equilibrium between differing
fundamental rights." (para. 57)-
36 InterdisciplinayJournal of Human Rights Law [Vol. 2:1
important and the approach of the Federal Constitutional Court does not
really clarify the matter for them.
The two remaining relationships mentioned above are between the Euro-
pean Communities and the UN legal order and the ECJ in Luxembourg and
the ECtHR in Strasbourg. The latter nearly seemed clarified until the
ECtHR came up with the Bosphorus" case in June 200 5 , where it had to con-
sider a national act based on an EC regulation implementing a UN resolution.
The change the court made in the relationship is worth analysing as the deci-
sion can be seen as a new "leading case"". It involves assessing whether the
court's findings are appropriate for a sustainable individual human rights
strengthening within the European system.
The interaction between the UN and the European legal order was un-
settled up to now, as both European courts were silent in regard to that." The
example of freezing assets of suspected terrorists was decided by the Court of
First Instance (CFI) in the cases of Yusuf, Kadi" in 2005 and Hassan,Ayadi 4 in
2006. Here, the CFI had to answer the question of which legal rule-EC or
UN-prevails, and whether Community courts are authorized to rule on the
lawfulness of UN resolutions.
The following article will illuminate these two relationships on the basis
of the recent cases and give a prospect for a coherent human rights framework
within the regional European system.
i. Previous cases
" Bosphorus Hava yollari Turizm Ve Ticaret AS v. Ireland, App. No. 45036/98,
Judgement 30 June 2005 (hereinafter "Bosphorus"). All ECtHR Judgements are avail-
able at HUDOC, http://cmiskp.echr.coe.int/tkp i97/search.asp?skin=hudoc-en.
21 S. Douglas-Scott, A tale of Two Courts: Luxembourg, Strasbourg and the Growing
European Human RightsAcquis, 43 CMLR (2006) p. 629, 637.
22 See Case T-184/95, Dorsch Consult v. Council and Commission, [1998] ECR
II-667; Bosphorus Case, supra note 20.
2, Case T-3o6/0I, Ahmed Ali Yusuf and Al Barakaat International Foundation v.
Council and Commission, Judgement 21 September 2005. (hereinafter "Yusuf"); Case
T-315/ O I, Yassin Abdullah Kadi v. Council and Commsion, Judgement 21 September
2005. (hereinafter "Kadi")
24 Case T-49/04, Faraj Hassan v. Council and Commission, Judgement 12 July
2006. (hereinafter "Hassan"); Case T.253/02, Chafiq Ayadi v. Council and Commis-
sion, Judgement 12 July 2oo6. (hereinafter "Ayadi")
25M & Co. 64 Decisions Reports, p. 138.
2007] FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS
26 See at 145: "The Convention does not prohibit a Member State from transfer-
ring powers to international organisations. Nonetheless a transfer of powers does not
necessarily exclude a State's responsibility under the Convention with regard to the ex-
ercise of transferred powers. Otherwise the guarantees of the Convention could wan-
tonly be limited or exclude and thus be deprived of their peremptory character. The
object and purpose of the Convention as an instrument for the protection of individual
human beings requires that provisions be interpreted so as to make its safeguards prac-
tical and effective. Therefore the transfer of powers to an international organisation is
not incompatible with the Convention provided that within that organisation funda-
mental rights will receive an equivalent protection."
27 See BVerfGE 73, 339 (Solange II) translated in 3 CMLR (1987), p. 225; Bver-
fGE 89, 155 (Maastricht); BVerfGE 102, 147 (Bannanenmarktordnung).
28 Heinz v. Contracting States also Parties to the European Convention (1994)
Bosphorus was a long pending case, starting in 1993 before the Irish na-
tional courts and ending in 2005 before Strasbourg. The applicant is a Turk-
ish airline charter company ("Bosphorus Airways") which leased two airplanes
from Yugoslav Airlines in 1992 and registered them in Turkey. One of the
applicants' aircraft was seized in May 1993 by Irish authorities in Dublin air-
port were it had been for maintenance work with the state-controlled com-
pany TEAM Aer Lingus. The impoundment was disposed by a decision of the
Irish Minister for Transport based on Article 8 EC Regulation 990/9334. This
EC Regulation came into force in April 1993 and implemented UN Security
Council Resolution 820 (1993) 5 imposing sanctions against former Yugosla-
via. The Minister's decision was considered before the Irish High Court and
Irish Supreme Court after Bosphorus Airway challenged its lawfulness. The
Irish High Court held in 1994 that the EC Regulation was not applicable to
the aircraft, whereas the Irish Supreme Court, invoked on appeal by the Min-
ister for Transport, referred a question under Article 249 EC Treaty to the
ECJ, asking whether Article 8 EC Regulation applied. The ECJ ruled that the
aircraft was covered by the Regulation and therefore the Supreme Court held
the Minister's appeal successful.36
3 See e.g. Kress v. France, App. No. 39954/98, Judgement 7 June 2001.
32Emesa Sugar BV v. Netherlands, Application No. 62032/oo, Admissibility De-
cision of 13 January 2005.
33See J. Br6hmer, Die Bosphorus Entscheidung des Europilischen Gerichtshoffiir Men-
schenrechte- Der Schutz der Grund- und MAemchenrechte in der EU und das Verhiltnis zur
EMRK, EuZW 2006, p.71, 75.
14 Council regulation 990/93 of 26 April 1993 Concerning Trade between the
European Economic Community and the Federal Republic of Yugoslavia (Serbia and
Montenegro). Article 8 is worded as follows: "All vessels, freight vehicles, rolling stock
and aircraft in which a majority or controlling interest is held by a person or undertak-
ing in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro)
shall be impounded by the competent authorities of the Member States."
35UN Doc. S/RES/82o, 17 April 1993.
36 Case 84/95 Bosphorus Airways [1996] ECR 1-3953. The ECJ ruled that neither
the right to peaceful enjoyment of property nor the fundamental right to pursue a
commercial activity was absolute. It reiterates the fundamental rights standard within
the EC legal order and found the interference proportionate. See hereunto: I. Connor,
2007] FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS
The Chamber first considered the admissibility of the case and obtained
several third party submissions by the European Commission, the Italian
Government, the Government of the United Kingdom and the Institut de
Formation en Droits de l'Homme du Barreau de Paris ("Institut"). The ad-
missibility was challenged by the Irish Government and the third party inter-
veners, except the Institut. They argued that the impugned act by the Minis-
ter was not an exercise of discretion and also to appeal the judgment of the
High Court and to make a reference pursuant to Article 234 TEC to the ECJ
was obliged under Article IO TEC and the duty of loyal-cooperation. In em-
phasising the Melchers and Matthews cases they maintained that the protection
under the EC and the UN was equivalent to that under the ECHR, hence the
application was inadmissible, as the ECtHR could not consider acts of the
EU. The European Commission further stressed that "to require a state to re-
view for Convention compliance an act of the EC before implementing would
pose an incalculable threat to the very foundations of the EC" and also "sub-
jecting individual EC acts to Convention scrutiny would amount to making
the EC a respondent in Convention proceedings whiteout any of the proce-
dural rights and safeguards of a contracting state to the Convention".38 On the
contrary, the applicant and the Institut argued that the equivalent protection
doctrine is not applicable as the matter in dispute is not the EC Regulation or
the sanction regime per se and that the Irish government had "a real and re-
viewable" discretion. The applicant further noted that to follow the Melchers
case law would mean "that any member state of the EC could escape its Con-
vention responsibility once its courts referred a question and implemented an
ECJ ruling" and "to accept that any state act implementing an EC obligation
does not fall within the state's Convention responsibility 39would create an un-
acceptable lacuna of human rights protection in Europe".
In considering Article I of the Convention the court held briefly that the
notion of "jurisdiction" is defined territorially under International Law and
"presumed to be exercised throughout the states territory". 4 As the im-
poundment took place on the Irish territory the applicant fell within the juris-
Can Two walk Togethe, Except They Be Agreed?, 35 CMLR (1998), p. '37; P. Koutra-
kos, EU INTERNATIONAL RELATIONS LAW (2OO6), pp. 433.
17 After the lease of the aircraft had expired and the UN sanctions against Yugo-
slavia were suspended, the aircraft was directly returned to Jugoslav Airlines.
38Bosphorus case, supra note 20, para. 124.
Ibid., para. 117. The Applicant argued further, in citing Article 234 TEC, that
the EC did not offer "equivalent protection" as individuals have no right to an refer-
ence under Article 234 TEC (para. 118).
4'Ibid., para. 135. Cf Case Bankovic et al. v. Belgium and 16 other states, App.
No. 52207/99, Decision of 12. December 2ooi; Ilascu et al. v. Moladvia and Russia,
App. No. 48787/99, Judgement of 8 July 2004.
40 InterdisciplinaiyJournal of Human Rights Law [Vol. 2:1
4
diction, hence the complaint is ratione loc, personae and materiae admissible. '
Therefore the Court went on to examine the submissions under the merits of
the complaint.
While there was an issue between the parties on the applicable rule and
the legal basis for the impugned measure, the Court held that the interference
amounted to a "control on the use of property" according to Article i § 2 Pro-
tocol No. i. The legal basis for the impugned interference, the court found,
was Article 8 EC Regulation, as directly applicable and with full effect in Ire-
land. The court also states, in following the EC Commissions submission, that
the Irish authorities did not have discretion when implementing the Regula-
tion and appealing the High Court judgment. Regarding to the UN resolu-
tion, the Court held that it was pertinent to the interpretation
4
of the Regula-
tion but did not form part of the Irish domestic law. 1
In applying this standard, the Court mentioned Article 6 (2) TEU as well as
the jurisprudence of the ECJ and the Charter of Fundamental Rights, and
found that the EC legal order contains equivalent protection for individuals,
hence Convention compliance at the relevant time was assumed. 46 The last
question the Court had to answer was if the presumption of compliance by the
Irish Government could be rebutted in the present case. Here, it found that
"there was no dysfunction in the mechanisms of control of the observance of
Convention rights", therefore the protection of the applicants rights was not
manifestly deficient and the presumption has not been rebutted. In conclusion
the Court could not find a breach of Article i Protocol No. i.
2.3 Appraisal
The recent case clarifies the indirect review of EC law by the ECtHR.
The EC act itself may not be, but implementing acts of member states are ju-
dicable. The Bosphorus ruling is an obvious departure from the approach
taken in the Melchers case. Hereby, Strasbourg filled a remaining gap in con-
sidering the legal nature of EC Regulations in the national legal order and the
national implementation act within the ECHR. 47 The admissibility is based on
Article i ECHR, except the defendant is the Community itself or their or-
gans. The Court's reasoning with regard to Article i is straightforward and
appropriate. In considering the admissibility rationepersonae the Court should
have clarified that the impugned measure was an implementation act, hence a
claim against the Community was inadmissible. Therefore, it is not clear
whether the EC or the member state is responsible for the implementing
act. 48 Arguing that the Irish authorities never had discretion, the Court also
missed an opportunity to expand on the nature of Article IO TEC and the re-
lated ECJ jurisprudence. 49 The ECJ defined the additional obligations under
5
Art. io TEC broadly.
It is also noteworthy that the ruling will have an impact on the ongoing
codification of the rules for responsibility of international organisations un-
dertaken by the International Law Commission.:' A clarification of the re-
sponsibility of International Organisations for implementing acts of their
member states seems necessary, as the Articles on Responsibility of States for
Wrongful Acts do not cover this particular case.5' A more "functional" read-
ing of the term "jurisdiction" to such an extent that the implementing acts of
member states are acts of the EC, having "distinct legal personality", appears
inappropriate. 3 Such an approach was made by Panels within the Dispute
Settlement Understanding of the WTO, as the EC is, pursuant to Article IX
WTO-Agreement, a member of the WTO. This is untenable in the frame-
work of the ECHR considering the fact that the EC is not a member of the
ECHR.
Another possibility in the recent case would have been to declare the ap-
plication inadmissible according to Article 35 (2) lit. b ECHR. Therefore, the
Court should have interpreted the term "another procedure of international
investigation or settlement" as encompassing ECJ proceedings, like it is the
case for complaints considered by the UN Human Rights Committee. 4 In-
stead, without even mentioning Article 35, Strasbourg ruled for the possibility
to consider cases as the last Court in the European system. It placed itself in a
superior position to the ECJ where it comes to human rights issues within the
EC legal order. Although the Court reserved its right to rule in a last instance,
it accepted the human rights standard within the EC and placed a high barrier
for an assessment. In modifying the equivalent protection doctrine with a
"manifest deficiency" test, Strasbourg devolved the Solange jurisprudence of
the German Federal Constitutional Court into the relationship between the
ECtHR and the ECJ. But as President Wildhaber stated, there are some deci-
sive differences between the two approaches. The Solange jurisprudence re-
quires the rebuttal of the presumption of equivalence protection a general de-
crease of the human rights standard within the EC. On the contrary, the Bos-
phorus jurisprudence is working on a case-by-case basis as the presumption
can be rebutted in each individual case, hence applications are not in principle
inadmissible ratione materiae.55 However, the ambiguity of the notion of
equivalent protection still remains, and the fact that a new manifestly deficient
test was established does not make the challenges for individual complaints
much clearer. Therefore, closer attention should be paid to both terms.
similar C. Costello, supra note 50, p. 115-S1. Costello sees the inadequate access to
the ECJ in the case of primary law, the IV Title of the TEC, the third pillar and the
common foreign and security policy under of the EU.
66 See for discussion on the accession, H.C. Kriiger & J. Polakiewicz, Proposalsfbra
CoherentHuman Rights Protection System in Europe, 22 HRLJ (2001), p. I, 3-
2007] FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS
departure from the Melchers case is welcomed from a human rights aspect.
One should also consider the time frame in which the Court delivered its
judgement. It was at the time when the ratification of the EU Constitutional
Treaty was still doubtful as France (in May) and the Netherlands (in June
2005) rejected the Constitution by referendum. As the Constitutional Treaty
provides accession for the EU to the ECHR, the Court's reasoning in Bos-
phorus can be interpreted as strengthening its role regardless of the ratifica-
tion and a possible accession.
It is not yet clear whether or not the Constitutional treaty will come into
force and it is rather unlikely that it will happen without a significant change
in its provisions. The accession of the EU to the ECHR is set forth in Article
1-9 (2) and Article 17 of the (not yet into forth) Additional Protocol No. I4,
which will amend Article 59 ECHR. These provisions overcome the lack of
competence declared by the ECJ in its Advisory Opinion.6 7 Nevertheless, an
EU accession to the ECHR does not tackle all the problems regarding the re-
lationship between the two, but nearly all of them. New questions, like the re-
lationship between the ECHR and the Charter of Fundamental Freedoms as
well as technical and legal issues of an accession will arise.S Under a new con-
stitutional framework two solutions for the relationship between the ECJ and
the ECtHR are proposed: first, a procedure whereby the ECJ invokes a pre-
liminary ruling of the ECtHR and second, an ex-post control procedure
where the ECtHR controls the ECJ pursuant to Article 34 ECHR.
The relationship between the EC and the UN legal order was, until the
recent judgments of the European Court of first Instance (CFI), unclear. Both
the ECJ and the ECtHR had, in earlier decisions avoided making statements
on this complex interrelationship. 69 The first time the ECJ was confronted
with implementation of UN Security Council resolutions was the Bosphorus
case. Here, the ECJ did not consider the UN Security Council resolution
when reviewing the actions of the Irish authorities by the yardstick of the
EC's fundamental rights because the authorities had a margin of interpreta-
tion. The ECtHR mentioned the UN sanction regime in the same case only
insofar as the resolution was pertinent to the interpretation of the EC Regula-
tion as ruled by the ECJ. 7° In the Dorsch case, where the Iraqi sanction regime
adopted by the UN Security Council caused financial damage to the appli-
cant, Luxembourg did not have to rule on the lawfulness of the sanctions re-
67With this provisions the Treaty overcomes the lack of competence which were
declared by the ECJ in its Advisory Opinio. See: Opinion 2/49 on accession by the
Community to the European Convention on Human Rights and Fundamental Free-
doms [1996] ECR-I-I759; J. Kokott & F. Hoffmeister, Case report: Opinion 2/94, 90
AJIL (1996), p. 664.
68 See for the relationship between both Article II-112 and Article II-113 of the
Constitutional Treaty.
69See M.-G. Kervel, The Jurisdictionof the European Court of Ju.tice in Respect of the
Common Foreign and Security Poliy, 55 ICLQ (2oo6), p. 77.
71See Bosphorus case, smpra note 20, para. 145.
46 InterdisciplinayJournal of Human Rights Law [Vol. 2:1
gime, as this was not at issue. The ECJ also referred to its Bosphorus reason-
7
ing. 1
In the ]usuf and Kadi cases the CFI had to answer the questions of which
legal order, UN or EC, prevails and if the Court has competence to review
the lawfulness of Security Council resolutions.7
i. The facts
ing instructions for listing and de-listing of suspected persons. 77 General criti-
cism of the Committee's work is directed at its decision making and de-listing
procedure. 7' The criteria for getting listed are vague and decisive information
is not always disclosed. Furthermore, the de-listing process is not a judicial
but rather a political one as individuals or entities have to petition the gov-
ernment of residence to review the case. The government can make a request
for de-listing to the Committee, which reach decision by consensus of its fif-
teen members. Since the adoption of Resolution 1452 in December 2002, ex-
emptions to the freezing of funds and assets are possible for covering basic ex-
79
penses like food, rent or medicine.
The resolutions described above were put into effect in the EU by Com-
mon Positions 8. under the second pillar and by Council regulations 8' ordering
the freezing of the funds of the persons and entities concerned under the first
pillar. The EC regulations have direct effect in the member states pursuant to
article 249 TEC and according to article 46 TEU the ECJ or CFI cannot re-
view acts under the second pillar. Hence, the only possibility for individuals or
entities to challenge the lawfulness of infringements caused by the implemen-
tation of the UN resolutions sanction list is an application of annulment of the
regulation pursuant to article 230 (4)TEU.
Ahmed Ali ]usuf, residing in Sweden and Al BarakaatInternationalFounda-
tion, established in Sweden, are listed in the UN sanctions list and the annex
list of the implementing EC regulation. Both lodged an application to the
CFI,claiming that the CFI should annul the regulations on the grounds of the
Council's incompetence to adopt the regulation. They also alleged a breach of
their fundamental rights.
z. The decision
The Courts' reasoning can be divided into three main parts: First, the is-
sue of whether the Council had competence to impose economic sanctions on
individuals, second the status of UN law in EC law and third, the scope of the
review of lawfulness and infringements of fundamental rights.
The applicants challenged the competence of the Council to adopt the
regulation on the basis of article 6o and 301 TEC as the wording of both pro-
77See Guidelines of the Committee for the conduct of its work, adopted on 7 No-
vember 2002 amended on io April 2003 and revised on 21 December 2005, available
at: http://www.un.org/Docs/sc/committees/1267/i26 _guidelines.pdf.
71See Report of the Special Rapporteur M. Scheinin on the promotion and pro-
tection of human rights and fundamental freedoms while countering terrorism, UN
Doc. A/61/26 7 , 16 August 2006, para. 30-41; M. Bultermann, FundamentalRights and
the United Nations Financialsanction Regime: The Kadi and Jusuf Judgements of the Court
of Fir.s In.tance of the European Communities, 19 LJIL (2oo6), p. 753, 756.
71See Un Doc. SR/RES/I 4 5 4 at § i(a), 20 December 2002; Section 9 (a) of the
Guidelines, smpra note 76.
" See Common Positions: 19 9 9 / 7 2 7 /CFSP, 15 November 1999; 20oI/I 5 4 /CFSP,
26 February 2ooi; 2002/ 4 o2/CFSP, 27 May 2002; 200 3 /I4o/CFSP, 27 February 2003.
"i See EC Regulation No. 337/2000, 14 February 2ooo; EC Regulation No.
467/2001, 6. March 2ooi; EC Regulation 881/2002, 27 May 2002; EC Regulation No.
1580/2002, 4 September 2002; EC Regulation 561/2003, 27 March 2003; EC Regula-
tion 881/2002, 19 May 2003.
48 InterdisciplinaiyJournalof Human Rights Law [Vol. 2:1
visions only authorised the imposition of measures against third states and not
individuals. In its rejoinder the Council argued that the regulation was
adopted on the grounds of article 6o, 3O and also 3o8 TEC-hence in accor-
dance with the principle of attribution of powers pursuant to article 5 TEC.
The Court primarily clarified that measures based on article 6o and 31o TEC
can be directed against individuals within the community as long as the core
of the measures seek to reduce economic relations with a third state. As the
impugned regulation implemented an UN Security Resolution not directed
on a regime or a third party but against terrorism as such, the Court held that
the EC regulation can not be based on articles 6o, 301 TEC. Also article 3o8
TEC as such is not sufficient as this provision requires action by the commu-
nity in the course of the operation of the common market objectives men-
tioned in article 2 and 3 TEC, whereas the impugned regulation adjusts aims
of the Common Foreign and Security Policy under the second pillar of the
EU (article i i TEU). It then considered articles 60, 3O and 308 in combina-
tion-the legal basis relied upon by the Council. The Court reasoned that the
requirement of consistency as laid down in article 3 TEU and the nature of
articles 6o, 3O as a bridge between the third and the second pillar as well as
the fact that "states are not longer the only source of threats to international
peace and security", justifies a recourse to article 3o8 TEC.8 Therefore, arti-
cles 6o, 301, 3o8 TEC empower the EC to impose economic and financial
sanctions against individuals and gave the Council competence to adopt the
impugned regulation.
Before considering an alleged breach of fundamental rights, the Court
had to consider the relationship between the UN and the EC legal order as
the determination of the latter directly affects the scope of review of lawful-
ness. The CFI first clarified the relationship between the Charter of the UN
and the domestic law of the UN member states. It deduced the primacy of the
UN legal order on the one hand from article 27 Vienna Convention on the
Law of Treaties (VCLT) as having the status of customary international law
and, on the other hand, from article 103 UN Charter and article 30 VCLT as
the decisive international treaty law. This primacy extends, pursuant to article
25 and the jurisprudence of the ICJ with regard to article 103 UN Charter,
also to UN Security Council resolutions. Within the EC legal framework the
primacy of UN law is ensured by articles 307 (I) and 297 TEC. Pursuant to
article 307 TEC the rights and obligations arising for EC member states from
agreements before the establishment of the EC are not affected by the ECT.
The Court then considered whether the EC itself is bound by UN deci-
sions. This is not the case, as the EC itself is not a member of the UN. How-
ever, the Court draw an analogy to international trade law and its jurispru-
dence with regard to the former General Agreement on Tariffs and Trades of
1947 (GATT 1947). The EC is a member of the WTO but wasn't member of
the GATT 1947. As the EC member states were members of the GATT 1947
but, according to article 133 TEC, did not have important competence in in-
ternational trade law, the ECJ held in the InternationalFruitCompany case that
83
the EC is the successor to the rights and obligations of the member states.
Conferred this reasoning on the UN legal order, the Court stated that "in so
far as under the EC Treaty the Community has assumed powers previously
exercised by Member States in the area governed by the Charter of the
United Nations, the provisions of that Charter have the effect of binding the
84
Community".
As a consequence of the primacy of the UN legal order with regard to the
EC legal order the Court concluded that the review of UN Security Council
resolutions fell, in principle, outside its competence. A competence for an in-
direct review of UN Security Council resolutions can, according to articles
25, 48 and 103 UN Charter and article 27 VCLT, neither be justified from a
perspective of international law nor, pursuant articles 5, 10, 297 and 307 (I)
85
TEC and article 5 TEU, from a perspective of EC law.
Here, the court could have stopped its scrutiny of the case, but instead,
and in by far the most dramatic part of the reasoning, it went on to an indirect
review of the UN Security Council Resolution on the yardstick of jus cogens.
The CFI considered jus cogens "as a body of higher rules of public interna-
tional law binding on all subjects of international law, including the bodies of
the United Nations, and from which no derogation is possible". It refers to
Article 53 and 64 of the VCLT, the Preamble of the UN Charter and the Ad-
visory Opinion of the ICJ from 1996 on the Legality of the Threat or Use of
Nuclear Weapons. The fact, thatjus cogens norms have a binding effect on the
bodies of the UN and especially the UN Security Council, concluded the
Court from article 24 (2) UN Charter. But what is missing is a reasoning why
the Court considered itself competent to review Security Council resolutions
on the yardstick of jus cogens. However, in the last part of its reasoning, the
Court examines whether fundamental rights within the ambit of jus cogens
were infringed.
The applicants alleged a breach of three fundamental rights: the right to
property, the right to a fair hearing and the right to an effective judicial rem-
edy.
The Court first assessed whether the freezing of funds infringed the right
to property.8 6 Its reasoning is somewhat confusing as it omits a detailed ex-
amination of whether the right to property has the status ofjus cogens. Instead,
the Court mentioned article 17 of the Universal Declaration of Human Rights
and hypothetical determined that even if the right to property can be consid-
ered jus cogens it is only "an arbitrary deprivation of that right that might, in
any case, be regarded as contrary tojus cogens".8 7 However, the Court did not
find an arbitrary deprivation as the freezing of funds was enacted by a Security
Council Resolution to condemn international terrorism and the fight against
terrorism is of significant importance. Also the freezing of funds does not ef-
fect the substance of the right to property but rather the use. Further, the
Court paid attention to the several derogations and exemptions which the EC
83 Cases 21/72 tO 24/72 International Fruit Company and Others, [1972] ECR
1219, para. i8.
14 Jusuf case, smpra note 23, para. 253.
'5Ibid., para. 260-276.
8
6 Jusuf case, smpra note 23, para. 285-303.
7 Ibid. para. 293.
50 InterdisciplinaqyJournalof Human Rights Law [Vol. 2:1
3. Appraisal
In the Jusuf case a European court, for the first time, ruled on the rela-
tionship between the UN legal order and the EC. It is a courageous decision
and the fact that the CFI even considered the applicants fundamental rights
on the yardstick ofjus cogens is remarkable from a human rights perspective.
Nevertheless, the reasoning remains in some parts unclear or sometimes silent
about important aspects of human rights as well as EC law. Therefore, a criti-
cal examination follows, whereby the focus will be on four aspects: first, the
recourse the Court made in respect to article 3o8 TEC for justifying the im-
position of individual sanctions, second the UN/EC relationship, third the
way the Court ruled on the meaning ofjus cogens and fourth, the survey of the
applicant's fundamental rights.
The legal basis for the implementation of economic sanctions is, from a
fundamental rights perspective, of great concern. Article 52 (I) of the Charter
of Fundamental Rights of the European Union codifies, that "any limitation
on the exercise of the rights and freedoms recognised by this Charter must be
provided for by law and respect the essence of those rights and freedoms." As
the Court itself stated, the imposition of economic sanctions on individuals
under the present circumstances interferes at least with the right of property,
the right to be heard and the right of judicial review. Not, perhaps, at the level
of jus cogens but on a level the European system provides within the legal
framework of the ECHR and the ECJ jurisprudence. The doctrine of reserva-
tion of statutory powers is a fundamental legal maxim.
The combination of articles 60, 301, 308 TEC for the legal justification
of the economic sanctions on individuals overstretched the wording of these
norms. Although the Court held the same in respect to articles 60, 301 and
308 alone, it justified the combination as a legal basis on the grounds of the
threat of international terrorism and the role of non-state actors thereby. An
act of EC institutions must be in compliance with the principle of attribution
of powers pursuant to article 5 TEC. The EC is to large extent an economic
community and has no power in the area of the fight against terrorism. The
fight against terrorism is an objective of the Common Foreign and Security
Policy and not part of the objectives of the EC as laid down in articles 2, 3 and
4. The reference the Court made to article 3 TEU is not fully convincing as it
blurs the pillar construction of the EU.8 9 The Court therefore should have
paid more attention to the relationship between the EC and the EU. As the
TEC does not contain a binding provision with regard to the requirement of
consistency pursuant to article 3 TEU, one can argue that article 3 (2) TEU
has abandoned the TEC implicitly, like article 6 (2) TEU did with regard to
fundamental rights and therefore binds the EC. 9 As a result of the Jusuf deci-
sion, the strict distinction between EC law and EU law has, relatively speak-
ing, become more similar to the Judgement the ECJ delivered in the Pupino
case. 91
Consent is the basis of its conclusion as it takes into account recent devel-
opments which the drafters of the treaties could not have foreseen. The fact
that individuals can threaten international peace and security was also recog-
nized by the Security Council when interpreting article 39 UN Charter. 9' The
EC has to be in accordance with those findings. Furthermore, the ECJ had al-
ready expanded the economic sanctions regime on non-state actors as long as
they are in control of a part of a country. 93 The last factor - the link to a third
country-was now renounced.
It should also be mentioned that the CFI anticipates the European Con-
stitution Treaty.9 4 Article 111-322 (I) of the Constitution Treaty adopts arti-
cles 60, 301 and 308 as it requires a link to a third country, whereas article III-
95
322 (2) provides for economic and financial sanctions against individuals.
The distinction the Court made in its judgement between the legally
binding effect of the Security Council resolution on member states and the
EC itself is important because it clarifies the relationship within this multi-
level framework.
Assessing the legally binding effect of Security Council resolutions on
member states of the EC was not too difficult for the CFI and its appraisal of
paramountcy pursuant to article 25 and 103 UN Charter is correct. Although
the wording of article 103 UN Charter is ambiguous regarding to "obliga-
tions", it is a stable opinion that this obligation encompasses Security Council
resolutions. 6 It is also worth noting that Security Council resolutions are not,
91 There the ECJ ruled that third pillar legislation is definitely binding and that
Member States are held to implement it correctly. The Case T-105/03, Maria Pupino,
Judgement 16 June 2005.
,2See, e.g., Un Doc. S/RES/ 74 8, 31. March 1992.
13See, e.g., the sanctions against Unifo Nacional para a Independencia Total de
Angola (UNITA) in 1988, EC regulation No. 1294/1988, 28 July 1988.
14 See M.-G. Kervel, The Jurisdiction of the European Court of Justice in Respect of the
Common Foreign and Security Policy, 55 ICLQ (2oo6), p. 77, 107.
15Article III-322 (i) and (2) is worded as follows:
(i) Where a European decision is adopted in accordance with Chapter II,
provides for interruption or reduction, in part or completely, of economic
and financial relations with one or more third countries, the Council, acting
by a qualified majority on a joint proposal from the Union Minister of For-
eign Affairs and the Commission, shall adopt the necessary European regula-
tions or decisions. It shall inform the European Parliament thereof.
(2) Where a European decision adopted in accordance with Chapter II so
provides, the Council may adopt restrictive measures under the procedure re-
ferred to in paragraph I against natural or legal persons and groups or non-
state entities.
96 See R. Bernhardt, in B. Simma (ed.), THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY, Vol. II, Article 103, para. 9. For a different opinion see D. Bowett, The
Impact of Security Council Decisions to Dispute Settlement Procedures,5 EJIL (1994), p. 92.
2007] FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS
Law, io AJIL (2oo6), p. 291, 302. See ftrther: Draft Articles on State Responsibility and
Commentary, article 40, para. 3; Draft on the Law of Treaties of the ILC, ILCY 1966,
vol. II, p. 248. The Report of the Study Group of the ILC, supra note 2, para 375, con-
fers the status ofjus cogens to the following rights: prohibition of aggression; right to
self-defence; prohibition of genocide; crimes against humanity; prohibition of slavery;
prohibition of piracy; prohibition of racial discrimination and apartheid; basic rules of
international humanitarian law.
,o7See for examples D. Shelton, supra note io6, p. 291, 305.
2007] FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS
ertheless the ICJ, to which the Court referred to in its decision, was very re-
luctant in mentioningjus cogens. As ad hoc Judge Dugard states in his separate
opinion in the case Congo v. Rwanda of February 2006: "this is the first occa-
sion on which the ICJ has given support to the notion of jus cogens". "8 So far,
the ICJ ruled on obligation erga omnes but implied the existence ofjus cogens.' ° 9
The most famous decision regarding obligations erga omnes is the Barcelona
traction case, where the ICJ held: "Such obligations [erga omnes] derive, for ex-
ample, in contemporary international law from the outlawing of acts of ag-
gression, and of genocide, and also from the principles and rules concerning
the basic rights of the human person, including protection from slavery and
racial discrimination ....Therefore it would have been possible for the CFI to
confer it to other regional and international courts using the concept ofjus co-
gens-quite frequently as far as human rights were concerned."' It could have
conferred, for instance, on the ECtHR and its judgement in the case Al-
Adsani. One may also wonder why the Court cited the phrase "intransgressible
principles of international customary law" which the ICJ used in its Advisory
Opinion of the Legality of the Threat or Use of Nuclear Weapons of 1996
considering international humanitarian law and not "elementary considera-
tions of humanity", the ICJ used in its Corfu Channel case in 1949."' The lat-
ter term fits better in terms of fundamental rights, which were at issue.
In sum it can be said that the way the CFI used the term jus cogens was
too broad or, as Bultermann states "the Court seems to mix up international
human rights, international humanitarian law, jus cogens and customary inter-
national law"." 3 It would have been desirable, if the CFI had explained its
perception of the concept ofjus cogens in a more detailed manner, especially
with regard to international human rights. Such an attempt might have pre-
vented the decision's shortcomings regarding to the scrutiny of the applicants
fundamental rights.
3.3.2 Security Council resolutions and the right to indirect review on its law-
fulness
-8 Case Concerning Armed Activities on the Territory of the Congo (New Appli-
cation: 2002) (Democratic Republic of the Congo v. Rwanda), separate opinion of
Judge ad hoc Dugard, para. 4
-0The difference between jus cogens and obligations erga omnes is that latter de-
termines only the scope of application to the "international community as a whole"
whereas jus cogens norms have hierarchical superiority in a case of norm conflict. See
Report of the Study Group of the ILC, supra note 2, para. 38o.
- Case concerning the Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain), ICJ Reports 1970, p. 33, para. 33-
..For an overview see case Congo v. Rwanda, separate opinion of Judge Dugard,
supra note io8, para 5.
112 Corfu Channel case (UK v. Albania), ICJ Reports
1949, p. 22.
"I See M. Bultermann, supra note 78, p. 753, 769.
56 InterdisciplinaqyJournalof Human Rights Law [Vol. 2:1
114 See, e.g., A. Orakhelashvili, The Impact of Peremptory Norms on the Interpretation
and Application of United Nations Security Council Resolutions, 16 EJIL (2oo6), p. 59, 63.
"' See case concerning the application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Yugoslavia, Provi-
sional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 440, para. ioo. See
also case Congo v. Rwanda, separate opinion of Judge Dugard, supra note io8, para. 8
ii6 See M. Payandeh, Rechtskontrolle des UN-Sicherheitsrates durch staatliche und fiber-
not have argued on the concept ofjus cogens as this is too vulnerable and sub-
verts the Courts authority. Rather, a reasoning along international law as such
and a derivation of its competence to an indirect review of the resolution from
the deficiency of the UN system and the importance of international human
rights within the UN would have been consistent. As the UN Special Rappor-
teur on globalisation and its impact on the full enjoyment of human rights
stated: "the primacy of human rights law over all other regimes of interna-
tional law
'2
is a basic and fundamental principle that should not be departed
from .' 1
tions Committee don't allow such an assumption, one might briefly consider
the right to property.
The Courts' examination of the right to be heard lacks again to clarify the
status of jus cogens. Instead, it widely applied the ECJ jurisprudence and left
the yardstick ofjus cogens it had imposed for the review of the applicants fun-
damental rights. In conclusion, the Court reconciled with the idea of diplo-
matic protection of the Sanctions Committee procedure.
In regard to the right to an effective judicial review it is conspicuous that
the Court had difficulties to justify the infringement. First, it clearly stressed
the existence of a lack of judicial remedy, as the Security Council had not es-
tablished an international court reviewing individual complaints against deci-
sions by the Sanction Committee. Afterwards, it undertook an attempt to jus-
tify this shortcoming in emphasising that this right is neither in the Universal
Declaration of Human Rights nor in the ICCPR absolute guaranteed. Also
some restrictions to that right are inherent in respect to the doctrine of state
immunity and immunity of international organisations as recognized by the
ECtHR in the case Waite and Kennedy. 114 In regard to UN Security Council
resolutions, the Court rules, such jurisdictional immunity is based on article
25 and 103 UN Charter.
This reasoning is not maintainable. Again, the reference to the non legal
binding Universal Declaration of Human Rights is in respect to jus cogens
fruitless. The jurisdictional immunity of the UN is not based on article 25 and
103 UN Charter but article 105.15 But more than that, the situation in the
case Waite and Kennedy, the Court referred to, is not comparable with the pre-
sent case.'6 In Waite and Kennedy the ECtHR ruled that there was no breach
of the right to access to the court pursuant to article 6 ECHR as it granted an
international organisation (European Space Agency) immunity from domestic
jurisdictions because under their Convention the applicants had "reasonable
alternatives" to protect effectively their rights under the ECHR. In the pre-
sent case, such reasonable alternatives are not available for the applicants. The
diplomatic procedure before the Sanctions Committee is far away from the
right to effective judicial review as it depends on the willingness of the states
to bring a complaint before the Sanctions Committee. It is not a "reasonable
alternative" to individual complaints before an international court. Consider-
ing the political listing of terrorist groups, the Special Rapporteur on Human
Rights while countering terrorism, M. Scheinin, stressed in his latest report of
2006: "If there is no proper or adequate international review available, na-
tional review procedures-even for international lists-are necessary".' 7 Also
the September 2005 World Summit Outcome adopted a resolution calling on
the Security Council "to ensure that fair and clear procedures exist for placing
individuals and entities on sanctions lists and for removing them, as well as for
granting humanitarian exemptions".'
3.4 Conclusion
The ]usuf case disclosed many shortcomings in both the UN and the EC
legal order. If the Security Council wants to be accepted as a guardian for the
maintenance of peace and security in the world, an adequate human rights
protection within its own system seems necessary. The shift by the Security
Council from abstract to concrete resolutions-through imposing economic
sanctions on individuals reveals the necessity for a judicial control. As the UN
legal order prevails, such a control should take hold on the UN level itself,
e.g. in the Sanctions Committee. The case also raises the old debate about the
judicial control of the Security Council.' 9 During the UN reform process,
such an approach was even not on the agenda.' Here, the only fitting institu-
tion seems to be the ICJ.
The CFI judgement is to be welcomed from a human rights perspective.
This becomes obvious by comparing it to a similar judgment the High Court
in England delivered in 2005 . ' In the same way, the High Court had to rule
on the superiority of Security Council resolutions adopted under chapter VII.
The High Court found the primacy of the resolution over Britain's human
rights obligations but without considering a possible breach ofjus cogens. Sure,
as the Jusuf judgement disclosed, the concept ofjus cogens is a idling cycle for a
effective human rights control as the standard set fourth in this concept is very
high. However, it is a useful concept to expand the scrutiny. In the ]usuf case,
the CI applied international human rights in general or fundamental rights
acknowledged in the EC, both far away from being subject to the concept of
jus cogens. In this way it strengthens the protection of human rights.
The most important question is whether the concept ofjus cogens encom-
passes a right to judicial review. The CFI assumed such an inherent right, but
without giving a detailed reasoning. Therefore, this approach seems untenable
and the Court should have given a reasoned argument.
With regard to the protection of fundamental rights within the EC, the
judgment sparked a discussion about whether the principle of succession can
be extended to human rights treaty obligations of the EC member states. It is
proposed that insofar as EC member states have transferred powers to the
EC, the latter is bound by the member states obligations. 3 For the EC/UN
relationship, however, such an extension is irrelevant as article 103 UN Char-
ter also applies to human rights treaties like the ICCPR or the ECHR.