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FUNDAMENTAL RIGHTS IN MULTI-LEVEL LEGAL SYSTEMS:
RECENT DEVELOPMENTS IN EUROPEAN HUMAN RIGHTS PRACTICE
Clemens A. Miiller*
I. INTRODUCTION
As long as the European Union (EU) Constitution Treaty is not in force,

the interaction between courts within the European System still remains a
challenge. However, it is not only the relationship between the European
Court of Human Rights (ECtHR) and the European Court of Justice (ECJ)
which raises questions. The role which national states have to play in a world
of globalisation and international constitutionalism' seems more and more
important. Many State acts are performed in compliance with international
regulations and therefore often without discretion. Delegation of sovereign
rights from states to supra-national organisations like the EU or international
organisations like the World Trade Organisation (WTO) causes new interre-
lations and fragmentation in international law. As a consequence, the legisla-
tion of these institutions affects each other and often individuals are the real
addressees of adopted decisions. Particularly when it comes to human rights
interferences, individuals are often without a remedy at all or-if available-
the proper judicial institution remains uncertain.
The sanction regime by the United Nations (UN) Security Council ex-
poses this assumption particularly well: Going from the general to the particu-
lar, the Council acts visibly in some disputes as a 'world legislature'.3 The
adoption of the resolution 1267 for example imposes, inter alia, upon member
states to freeze the assets of persons suspected of being involved in terrorist
activity. At international level, affected persons cannot invoke the Interna-
tional Court of Justice (ICJ) to assess the lawfulness of this act.4 At regional
level, like the European Community (EC), UN resolutions dealing with eco-
nomic sanctions are implemented by EC Regulations and therefore individu-
als could call on the ECtHR or ECJ. While the access to the latter is very re-
* Dipl. iur. (University of Hamburg, Germany), LL.M. candidate (National Uni-

versity of Ireland, Galway), Scholarship holder by the German Academic Exchange
Service (DAAD). The author is grateful to Shane Brown for the correction of language
shortcomings and to Dr. Ray Murphy for supervision. The manuscript of this paper
was finished in spring 2007.
' See, e.g., L. Wildhaber, A ConstitutionalFuture for the European Court of Human
Rights, 23 HRLJ (2002), p. i6i; D. Chalmers et al. (ed.), EUROPEAN UNION LAW
(2OO6), chapter 2, p. 44 et seq.; J.P. Trachtman, The Constitutions of the UNTO, 17 EJIL
2006, p. 623; A. Peters, Compensatoiy Constitutionalism: The Function and Potential of
FundamentalInternationalNorms and Structures, 19 LJIL (2oo6), p. 579.
2 See Report of the Study Group of International Law, "Fragmentation of interna-
tional law: Difficulties arising from the diversification and expansion of international
law", UN Doc. A/CN. 4 /L.682, i6 April 2006. See for the WTO & EC Relationship:
S. Peers, FundamentalRight or Political Whim? TTO Law and the European Court ofjus-
tice, in G. de Btirca & J. Scott, THE EU AND THE WTO (2003), p. III; see further
Cases: C-149/96, Portugal v. Council; C-392/98 Christian Dior and Layher; C-II/99
L~on van Parys. All Judgements of the ECJ and Court of First Instance (CFI) are
available at http://curia.europa.eu/.
I See S. Talmon, The Security Council as World Legislature, 99 AJIL (2005), p. 175.
4 Art. 34 ICJ Statute.
34 InterdisciplinaqyJournalof Human Rights Law [Vol. 2:1
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
14 See Bundesverfassungsgericht Case No. 2 BvR 2236/04 Judgement i8.July

2005. See further: H. Satzger & T. Pohl, The Geman Con titutional Court and the Euro-
peai Arr-est Warrant,4JICJ (2oo6), p. 585; C. Tomuschat, Ungereimtes- Zum Urteil des
Bundesvefasmngsgericht vor 18. Juli 2005 fiber den Europdischen Hfrbefehl, 32 EuGRZ
(2005), P- 453-
" This is the case for Austria. In the Netherlands, the Convention has even pri-
macy to the domestic constitution. See in particular: H. Tretter, Au.stria, in R. Black-
burn & J. Polakiewicz (ed.), FUNDAMENTAL RIGHTS IN EUROPE: THE EUROPEAN
CONVENTION ON HUMAN RIGHTS AND ITS MEMBER STATES (2001), p. 1O3; L. F. Zwaak,
Netherlands, ibid., p. 595.
i6 This is the case, e.g., in Germany, Italy, Norway, Sweden, Finland, San Marino
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.
II. THE BOSPHORUS CASE AND THE RELATIONSHIP BETWEEN

THE EUROPEAN COMMUNITY AND THE ECTHR
i. Previous cases
The Bosphorus case has to be considered in light of the previous case-law

concerning the relationship between the ECtHR and the European Commu-
nity. As the EC/EU is not a member of the ECHR, the issue is whether
member states can be held responsible for violations of Convention rights
when implementing EC/EU regulations. The first decision considering that
problem was made by the European Commission of Human Rights in its
Melchers" case. The Court had to examine an executive act by the German
Minister of Justice who was implementing a decision by the EC Commission
" 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.
concerning fines. The Commission of Human Rights stated that member

states cannot evade their responsibility under the Convention by transferring
powers to international organisations and that acts of national authorities re-
main under the obligations of the ECHR and the control of the ECtHR if
implementing EU obligations.6 However, the complaint was declared inad-
missible, as the human rights standard provided within the European Com-
munity is equivalent to that provided under the ECHR and further scrutiny is
not compatible with the sovereignty of supranational organisations. This
"equal protection" doctrine was later compared by scholars to the Solange
cases the German Federal Constitutional Court delivered with regard to its
relationship to the ECJ and the EC legal order. 7 In similar cases the Euro-
pean Commission for Human Rights reiterated its findings, 2 while the
ECtHR was more restrained 9 . The Strasbourg Court made a change in its
Matthews case were it has to review the ECAct on Direct Elections of 1976 which
was akin to EC primary law but without jurisdiction to the ECJ. 3° Matthews, a
citizen of Gibraltar, alleged a violation of her right to participate in elections
set forth in Article 3 First Additional Protocol, as Gibraltar, not belonging to
the British Territory, was excluded by the Act on Direct Elections. The Court
found the complaint admissible based on the assumption that the member
states had took part in the negotiation and adoption of the Election Act and
the Maastricht treaty. By doing so, the member states had used their jurisdic-
tion enshrined in Article i of the Convention. The Court reiterated the
Melchers finding that the member states remain responsible under the ECHR
if transferring powers to supra-national organisations, but did not make a con-
straint based on "equal protection". Rather the "practical and effective" guar-
antee of the Convention rights is determined. Therefore, for the first time
Strasbourg found a violation of the Convention by a member state acting
within the framework of the EC.
In the aftermath of the Matthews decision the Court missed several op-
portunities to clarify the inherent ambiguity left in the term "equivalent pro-
tection". Many applicants approached the Court on the issue of Article 6, al-
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)
7 6A Decisions Reports 125.

2, Pafitis v. Greece 1998- 1436 (1999) 27 EHRR 566.
0 See Matthews v. United Kingdom, Application No. 24833/94, Judgement i8
February i999; J. Kokott & R. Sch6lch, Denise Matthews v. The United Kingdom, 93
AJIL (i999), p. 682; H. G. Schermers, Matthews v. United Kingdom, 36 CMLR
(1999) p. 673.
38 Interdisciplinay Journalof Human Rights Law [Vol. 2:1
leging a breach in the context of competition law proceedings before the

ECJ. 3' In the Emesa Sugar case the applicants complained of a breach of Arti-
cle 6 in proceedings before the ECJ as the right to respond to the Advocate
General's Opinion was refused. The Court considered the application inad-
missible, as the claimed right is not applicable to all, but rather to criminal
proceedings and some civil rights. 31 Considering the application illogically in-
admissible on the matter ratione materiae and not ratione personae, the Court
avoided strengthening its Matthews reasoning based on accession to supra-
33
national organisations and not on national implementation acts as such.
z. The Bosphorus case
2.1 The facts
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,
Bosphorus Airways filed a complaint before the European Commission

on Human rights alleging a breach of Article I Protocol No. I through a loss
of three years of its four-year lease. 37 The case was referred to the ECtHR and
relinquished to the Grand Chamber.
2.2 The decision
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
The Court proceeded to assess if the impugned impoundment was justi-

fied under the requirements of Article I § 3 Optional Protocol No. i. Here it
found that the required "general interest" was the compliance with legal obli-
gations flowing from Ireland's membership of the EC 43 and examined whether
this compliance can justify the interference with the applicant's rights. Here,
in this most important part of the judgment, the court reiterates its findings in
Melchers and Matthews that the Convention does not prohibit the transference
of sovereignty to an international/supra-national organisation and that such
organisations are not responsible under the Convention as long as they are
not a party to it. 44 Otherwise, the contracting state could be held responsible
under Article i for all acts or omissions of its organs, including those arising
from compliance with international obligations. In reconciling these conflict-
ing findings, the Court mentioned the equivalent protection doctrine and
stated:
However, any such finding of equivalence could not be final

and would be susceptible to review in the light of any rele-
vant change in fundamental rights protection. If such equiva-
lent protection is considered to be provided by the organisa-
tion, the presumption will be that a State has not departed
when it does no more than implement legal obligations flow-
ing from its membership of the organisation. However, any
such presumption can be rebutted if, in the circumstances of
a particular case, it is considered that the protection of Con-
vention rights was manifestly deficient. In such cases, the in-
terest of international cooperation would be outweighed by
the Convention's role as a "constitutional instrument of pub-
lic order" in the field of human rights protection. It remains
the case that a state would be fully responsible under the
4'Bosphorus case, smpra note 20, para. 138.

42Ibid. para. 145.
41Ibid. para. 150.
44Ibid. para. 152.
Convention for all acts falling outside its strict international

45
obligations.
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.
4 Bosphorus case, supra note 20, para. 155 -157.

46 Ibid., para. 159-165
47 In the case Cantoni v. France, App. No. 17862/91, Judgement 15. November
1999, the Court reviewed a French law, implementing an EC directive.
4' F. Hoffmeister, Bosphorus v. Ireland, ioo AJIL (2oo6), p. 442, 446. Hofmeister
emphasized Article 299 ECT, and mentioned that EC law does also apply on the terri-
tory of the member states. The Court had already considered this issue in the case
CFDT v. European Commission (1978), 13 Decisions Reports, p. 23 1.
41 See Bosphorus case, supra note 20, Joint Concurring Opinion of Judges Rozakis,
Tulkens, Traja, Botoucharova, Zagrebelsky and Garliki. In regard to article 234 TEC
the Judges emphasizing (para. 3): "Although the interpretation of Community law
given by the Court of Justice of the European Communities is binding on the court
which made the referral, the latter retains full discretion in deciding how to apply that
ruling in concreto when resolving the dispute before it."
" See C. Costello, The Bosphorus ruling of the European Court of Human Rights: Fun-
damental Rights and Blurred Boundaries in Europe, 6 HRLR (2oo6), p. 87, io9. Costello
referred to the Schmidberger case where the ECJ held that member states have a broad
discretion when acting under Article io TEC obligations.
42 InterdisciplinaiyJournal of Human Rights Law [Vol. 2:1
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.
" See Third Report of Special Rapporteur G. Gaja on Responsibility of Interna-

tional Organisations, UN Doc. A/CN. 4 / 5 5 3 , 13 May 2005, para. 25-44 (evaluating
Bosphorus in para. 33). See firther draft article i5, UN Doc. A/CN.4 /L.666/Rev.i, i
June 2005.
52A. Cassese, International Law (2005), pp. 241.
53F. Hoffneister, supra note 48, p. 446,447.
'4 See Pauger v. Austria, App. No. 16717/90, Judgement of 28 May 1997; F.
Jacobs/R. White, The European Convention on Human Rights (2oo6), p. 488.
" See Address by L. Wildhaber, The Coordination of the Protection of Funda-
mental Rights in Europe, 8. September 2005.
2.3. 1 The "equivalentprotection" doctrine and the "manifest deficiency" test
As the "equivalent protection" doctrine was criticized after its establish-

ment in the Melchers case and in Matthews, now the Court seems to have
taken such criticism into account. The general approach, which would declare
International or supra-national organisations immune from any supervision by
the ECtHR was abandoned in favour of a more particular form of scrutiny
through a mechanism of "rebuttable presumption". However, in ruling that
"equivalent protection" does not mean "identical" but rather "comparable"
Strasbourg consequently permitted a lower standard within the compared le-
gal system. The argument that an identical protection could run counter to
the interest of international cooperation fails to respect the ECHR as a mini-
mum standard of fundamental rights.
Trying to assess the meaning of the term equivalent protection, it is
worth noting that the scope of application of the doctrine is only relevant in
the context of actions of international or supra-national organizations like the
EC, and where member states of those organisations are implementing acts
without discretion. 56 The amount of equivalent protection requires "protec-
tion of fundamental rights both in the substantive guarantees provided and in
the mechanisms controlling their observance". 57 The question which there-
fore arises and the Court affirmed is whether the EC legal order comprises a
human rights standard equivalent to that set forth in the ECHR. As the ECJ
cannot rely on statutory norms containing human rights protection within the
EC, one has to look to the Luxembourg jurisprudence citing the ECHR or
findings of the ECtHR. Spielmann concluded in an analysis published in
1999, that "divergent interpretation is possible in certain areas such as Euro-
pean competition law, although the ECJ, in recent cases, seems to have taken
a similar line to the European Court of Human Rights, referring not only to
the Convention as the minimum standard, but taking into account the Stras-
bourg jurisprudence" 511 . A similar conclusion was made by Douglas-Scott in
2oo6, stating that the ECJ is more and more willing to refer to the ECHR and
the ECtHR jurisprudence. 59 Also, Wildhaber has stated that the interrelation
between both European courts' jurisprudence is "demonstrating a clear com-
mitment to ensure harmony". 6° The danger of human rights double standards
between Strasbourg and Luxembourg seems thus to be unlikely.
Considering the equivalent protection of fundamental rights between the
ECHR and the EC, attention should be paid to the right of individual applica-
tion. As the Court itself emphasises in its reasoning "it is true that access of
6 C. Costello, supra note 50, p. 107.

57Ibid.,
p. iii.
" See D. Spielnann, Human Rights Case Law in the Strasbourg and Luxembourg
Courts: Conflicts, Inconsistencies, and Complementaritiesin P. Alston (ed.), THE EU AND
HUMAN RIGHTS, p. 757, 777.
" See S. Douglas-Scott, supra note 21, p. 650. See, e.g., the cases: 36/78 Rutili v.
Minister for the Interior [19751 ECR 1219; C-185/95 Baustahlgewerbe v. Commission
[1988] ECR 1-8417; C-I 3/94 P v. S & Cornwall County Council [1996] ECR I- 143;
C-I 12/00 Schmidberger v. Austria [2003] ECR-I 5659.
6 See L. Wildhaber, supra note 55, P. 5 highlighting the recent decision of the
ECJ in the case Pupino.
44 InterdisciplinmyJournal of Human Rights Law [Vol. 2:1
individuals to the ECJ is limited". 6 However, after mentioning the indirect

benefits for individuals by acts of member states pursuant to their comple-
mentary role, the ECtHR concluded that, despite the lack of individual rem-
edy, the protection of fundamental rights of the EC law is equivalent to that
of the Convention. This reasoning was criticized by concurring opinions. The
joint concurring Judges were not "entirely convinced" and stated that the
"right of individual application is one of the basic obligations assumed by the
States on ratifying the Convention. It is therefore difficult to accept that they
should have been able to reduce the effectiveness of this right for persons
within their jurisdiction on the ground that they have transferred certain pow-
ers to the European Communities".6 Concurring Judge Ress also expressed
his concerns regarding individual remedies and said that Art. 230 TEC should
be interpreted in the lights of Article 6 § i ECHR more extensively. 63 Both
objections are well founded considering the fact that the absence of a direct
individual control within the EC is indeed a challenge for the protection of
human rights. It is therefore crucial how the "manifest deficiency" test will be
practised by the Court in the future. Insufficient access to the ECJ remains a
64
challenge where the Court may consider cases admissible.
An assessment of the mechanism of "manifest deficiency" leads to the as-
sumption that the standard for the protection of fundamental rights within the
compared legal order can be lower than that set fort in the ECHR because the
presumption of equivalent protection is only rebutted by a manifest deficiency
and not a deficiency as such. Also, the threshold for rebutting the presump-
tion of equivalence is vague, and the Court gives neither a definition nor any
hint. At first glance three possible cases can be assumed: first, when there is no
adequate review in the particular case because the ECJ has no competence,
second when the ECJ has been too restrictive in its interpretation of individ-
ual access to it, or third, where there has been an obvious misinterpretation or
misapplication by the ECJ of the guarantees of the Convention right.6 An-
other case could be the ECJ aberrance from the settled case-law of the
ECtHR. All this examples seems in fact likely to occur. 66 As the manifest defi-
ciency test is held to work on a cases-by-case basis a general definition of its
application is inappropriate with its purpose. It relies on Strasbourg to show
that it is more than a catch phrase.
2.3.2 Conclusion andperspective
In conclusion, the Bosphorus case can be assessed as strengthening the

human rights protection within the European system. Although the Court
could not find a violation in the present case it is not to deny that the obvious
6 Bosphorus case, supra note 20, para. 162.

62 Bosphorus case, Joint Concurring Opinion, supra note 20, para. 3.
63 Bosphorus case, Concurring Opinion Judge Ress, supra note 20, para. 3.
64 See C. Costello, supra note 50, p. 150.
6 See Bosphorus case, Concurring Opinion Judge Ress, supra note 20, para. 3. See
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-
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.
III. THE JUSUF CASE AND THE RELATIONSHIP BETWEEN THE

EUROPEAN COMMUNITY AND THE UN LEGAL ORDER
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
Although the attacks of ii September 2001 boosted anti-terror activities,

global terrorism is not a new phenomenon and counter terrorism measures at
UN level were installed before this date. Among these counter terrorism
measures are financial sanctions regimes which form part of so called "smart
sanctions", intended to be directed at individuals, companies and organiza-
tions, or restrict trade with key commodities.7 Established by the UN Secu-
rity Council under Chapter VII of the UN Charter they aim to avoid negative
humanitarian consequences for the civilian population or third countries by
calling on member states, inter alia, to freeze funds or financial assets of sus-
pected terrorists.
Recently two different types of financial sanctions regimes can be distin-
guished. The first one, the UN financial sanctions regime against persons and
entities associated with Al-Qaida and the Taliban, is established by Security
Council resolution 1267 of 15 October 1999. Secondly, a general UN finan-
cial sanctions regime against terrorism, created by resolution 1373 of Septem-
ber 2001. The regimes differ insofar as the latter resolution does not list per-
sons or entities and instead allows member states to decide who is falling un-
der the resolution. Resolution 1373 is accompanied by a Counter Terrorism
Committee, a subsidiary-body pursuant to Article 29 UN Charter, which
74
monitors the implementation by considering state reports.
The regime the CFI had to examine was that established under resolution
1267 of October 1999. It is a very complex regime expanded after the attacks
of the ii September 2001 by Security Council resolutions 1333, 1390, 1452,
. 75
1526 and 1617 A so called "Committee 1267" 6-flanked by a monitoring
group-determines which persons are to be listed. Therefore, UN member
states have to give relevant information to the Committee on persons sus-
pected to be associated with Usama bin Laden, Taliban or Al-Qaida, and the
Committee updates its list on a periodic basis. Additional guidelines for the
conduct of the Committee's work were adopted in November 2002 contain-
71 See Dorsch case, supra note 22, para. 88.

72 The following review is only considering the Jusuf case as both judgements,
Jusuf and Kadi, were delivered by the Court at the same day and contain the same rea-
soning.
71 Other forms of targeted sanctions are, e.g., trade restrictions on particular goods
or services, travel restrictions, diplomatic constrains, cultural and sport or air traffic re-
strictions.
74See http://www.un.org/sc/ctc/.
75 UN Doc. S/RES/I 3 3 3 , i December 2ooo; UN Doc. S/RES/I 39 O, i6 January
2002; UN Doc. S/RES/1 4 5 2, 20 December 2002; UN Doc. S/RES/I 5 26, 30 January
2004; UN Doc. S/RES/I6I 7 , 29 July 2005. All UN documents are available at
http://documents.un.org/default.asp.
76See http://www.un.org/Docs/sc/committees/i267Template.htm.
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
"Jusuf case, supra note 23, para. 164- 170.

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.
regulation provides under the Sanctions Committee in some circumstances.

Therefore, the Court could not find that the right of property was infringed.
With regard to the right to be heard, the applicants alleged a breach in so
far as they were not heard before the imposition of the sanctions and did not
have the opportunity to defend themselves. The Court first distinguished be-
tween the right to be heard before the Sanctions Committee and the right to
be heard by EC institutions before the adoption of the regulations. The Court
dismissed the former by stating that this right is not provided by the UN Se-
curity Council Resolutions and the Court could also not find a norm ofjus co-
gens which contains a right under these circumstances. Apart from that, the
Court based its argument on the surprise effect which is inherent in such
measures and the general procedure before the Sanctions Committee for de-
listing. Although the procedure before the Sanctions Committee is, as indi-
viduals have to call for a state's petition, a diplomatic one, the Court could not
find that this restriction violates any fundamental right having status ofjus co-
gens The Court also dismissed the right to be heard before the adoption of the
EC regulation by applying the jurisprudence of the ECJ. It reiterates its find-
ings that the EC institutions had no discretion and therefore no power to in-
stall any mechanism when implementing the legally binding UN Security
Council resolution.
Considering the right to judicial review 88 the Court stressed the fact that
the applicants had invoked the CFI on the legal basis of article 230 TEC.
However, as it is not the role of the Court to control the political assessment
of the Security Council's measures taken in responsibility for the maintenance
of international peace and security, the Court stated that there existed a lack
of judicial remedy as the Security Council had not established an international
court reviewing individual complaints against decisions by the Sanction
Committee. This lacuna is, in the opinion of the CFI, not a breach ofjus co-
gens as those higher rules of international law are not absolute in regard to the
right of judicial review. Here, the Court mentioned article 8 of the Universal
declaration of Human Rights and article 14 of the International Covenant of
Civil and Political Rights (ICCPR) and the possibility of derogation at a time
of public emergency set forth in article 4 ICCPR. The Court also refers to the
doctrine of state immunity and the immunity of international organisations as
an inherent restriction of the right to judicial review. In the context of the de-
cision made by the Security Council, such a immunity follows in the view of
the court from article 25 and 103 UN Charter In conclusion, as none of the
pleas were successful, the Court dismissed the application.
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
88 Ibid., para. 332- 347.

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.
3. 1 The legal basis
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-
9 Particularly in disagreement with the Courts reasoning is A. Garde, k it really

for the European Community to implement anti-terrorism UN Security Council resolutions?,
56 CLJ 2006, p. 281, 282.
" See S. Steinbarth, INDIVIDUALRECHTSSCHUTZ GEGEN MASSNAHMEN. The legal ba-
sis for the implementation of economic sanctions is, from a fundamental rights per-
spective, 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 free-
doms 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
der EG zur Bekfimpfing des internationalen Terrorismus, Zeitschrift ffir Europiische
Studien 2/2oo6, p. 269, 276.
52 InterdisciplinatyJournalof Human Rights Law [Vol. 2:1
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.
3.2 The relationshipbetween EC/UN
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.
unlike EC acts, "directly applicable" within the domestic

97
legal order, but have
to be implemented by an incorporating national act.
This situation differs for the EC as it is not a member of the UN and can
not be one pursuant to article 4 (i) UN Charter. 98 However, the analogy the
CFI made in respect to its findings on international trade law leads to a subju-
gation of the EC legal order under the UN legal order in cases of binding acts
of the UN Security Council. 99 The assumption that the EC is indirectly
bound through its member states has to be distinguished from the question of
whether the EC was held to implement the Security Council resolution by an
EC regulation. This is to negate the fact that the EC has the competence to
adopt an implementing regulation does not mean that the EC has to act.'
But once the EC decided to act, it is bound by the Security Council resolu-
tion, because an abandonment of the resolution in the framework of a directly
applicable EC regulation would violate the principle pursuant to article io
TEC and obligations which the member states have in respect to the UN
Charter. As a consequence of the judgment the CFI delivered, EC member
states lose sovereignty once more, here in the field of the UN and economic
sanctions. With regard to fundamental rights, such transfer of powers is of
concern if the human rights standard within the two legal systems is not alike.
It can lead to an erosion if the legal order which prevails rules on a lower
standard. This aspect has to be borne in mind by considering the EC legal or-
der and the national legal order as well as the UN legal order and the EC le-
gal order.
3.3 Jus cogens and the scope of review
The Court concluded from the paramountcy of the UN Security Council

resolution that it has no authority to review those acts directly. It drew the
same conclusion with regard to a review of the EC implementation act as this
would mean an indirect review of the Security Council resolution on the stan-
dard of the fundamental rights acknowledged in the EC. Here, the Court ob-
viously differs from the Bosphorus findings of the ECJ on the ground that the
EC institutions had no discretion when transferring the resolution into the
EC legal order, as this was not the case in Bosphorus.
The most doubtful part of the decision is the fact that the Court found it-
self authorised to review the Security Council resolution on the yardstick of
jus cogens. This right of review was derived by the CFI from the doctrine ofjus
cogens itself but without giving a reasonable argumentation. The assumption
that the Security Council is bound byjus cogens does not answer the question
of who has the power to control the compliance. Although this assumption
7 See A. Cassese, INTERNATIONAL LAW, p. 232-234.

98In some resolutions the Security Council also addressed non-member states and
international organisations to act in accordance with the provisions of the resolution.
See S. Bohr, Sanctions by the United Nations Security Council and the European Community,
4 EJIL (1993), p. 256, 262.
99See for an detailed comparison between the reasoning in the InternationalFruit
Company case on GATT 1947 and the UN system already P. Eeckhout, EXTERNAL
RELATIONS OF THE EUROPEAN UNION (2004), pp. 437-439.
- See K. Schmalenbach, Terrori'usvs. Normentheorie: der Vorrang des UN-Rechts
vor EU-Recht, JURISTISCHE ZEITUNG 7/2oo6, p. 349, 352.
54 Interdisciplinay Journalof Human Rights Law [Vol. 2:1
convinces as a conclusion, the reasoning the Court used in getting there is

not. Therefore, it is worth focusing on the concept ofjus cogens in general and
on the question of whether Security Council acts are subject to judicial re-
view.
3.3. 1 The concept ofjus cogens
The Report on fragmentation of international law of the Study Group of

the International Law Commission (ILC) states that although the interna-
tional legal system has a "horizontal" nature, "there is an important practice
that gives effect to the informal sense that some norms are more important
than other norms and that in cases of conflict, those important norms should
be given effect to".' ° ' To this "informal hierarchy of international law" be-
longs the concept of jus cogens, obligations erga omnes and article 103 UN
Charter. In recent international law disputes the notion ofjus cogens has been
one of the most controversial issues along scholars and although it is not really
a new concept, the scope of application and content is still unclear.'0 2 The CFI
refers in its decision to article 5 3 and 64 of the Vienna Convention of the Law
of Treaties. The UN Charter is a simple multilateral treaty and was adopted
before the VCLT, thus the effect which the VCLT set forth in its provisions
in regard to jus cogens are irrelevant in terms of the relationship to the UN
Charter.0 3 Therefore, the Court rightly confers in its judgement to the UN
Charter itself and the status of the VCLT as customary international law.°4
The definition set forth in the VCLT onjus cogens is also contested and par-
tially described as "very defective".' °5 Trying to determine the content ofjus
cogens one can neither find a general and abstract definition nor a list of ap-
propriate examples. 6 The difficulties the CFI had while assessing whether
the applicants right have such a status were obvious, and even the Court often
fails to undertake such an attempt. However, the concept of jus cogens attracts
wide interest along national and international Courts, particularly on the topic
of state and head of state immunity in regard to universal jurisdiction. 0 7 Nev-
See Report of the Study Group of the ILC, supra note

... 2, para. 327.
112 See on the concept of jus cogens in general: L. Hannikainen, PEREMPTORY
NORMS (,us Cogens) IN INTERNATIONAL LAW (1988); A. Orakelashvilli, PEREMPTORY
NORMS IN INTERNATIONAL LAW (2006); S. Kadelbach, Jus Cogens, Obligations Erga Om-
nes and other Rules - The Identification of Fundamental Norms, in C. Tomuschat and J.-
M. Thouvenin (eds.), THE FUNDAMENTAL RULES OF THE INTERNATIONAL LEGAL ORDER;
Jus Cogens AND OBLIGATIONS Erga Omnes (2006).
"I See Report of the Study Group of the ILC, supra note 2, para. 367.
-4 Jusuf case, supra note 23, para 278, 279.
"oSee A. Cassese, INTERNATIONAL LAW, p. 201, citingJ. de Ar6chaga.
-6 See Kadelbach, supra note 1O2; D. Shelton, Normative Hierarchy in International
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.
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
The CFI concluded that it is authorised to an indirect review of UN Se-

curity Council resolutions on the yardstick ofjus cogens as the Security Coun-
cil itself is bound. This reasoning is not fully convincing.
First, the court's finding that the Security Council itself is bound by
norms ofjus cogens is in accordance with the accepted opinion along scholars
-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.
and international courts." 4 Here, the wording of Article 24 (2) UN Charter is

a good starting point but the Court could have enforced its argument by re-
ferring to existing case law. For instance, Judge Lauterpacht had drawn the
same conclusion in a separate opinion in the ICJ case concerning the Applica-
5
tion of the Genocide Convention between Bosnia Herzegovina and Yugoslavia.'
However, this conclusion does not solve the problem of who has the
power to review the compliance withjus cogens. As Shelton stressed: "One may
suppose that each state, each Court and each international institution may de-
termine whether or not this violation has occurred." It is not inherent in the
concept ofjus cogens, that a breach is subject to judicial review." 6 This is espe-
cially true of the right to review the lawfulness of Security Council resolu-
tions, as this organ has, pursuant to article 24 (I) UN Charter the primary re-
sponsibility for the maintenance of peace and security. It is often stated that a
judicial review would jeopardize this important role and would run counter to
the Council's margin of appreciation. A detailed analysis of this issue would
go beyond the scope of this essay, but two arguments are worth mentioning.
First, the likelihood that the Security Council imposes obligations on its
member states contrary to jus cogens norms is almost impossible. But even if it
does, a judicial assessment of incompatibility would not jeopardize the author-
ity of the Security Council as the norms of jus cogens "give legal form to the
most fundamental policies or goals of the international community"" . Sec-
ondly, the fact that the Security Council appears increasingly as a "world leg-
islator" calls for a comprehensive balance on the international community
level. Therefore, the CFI approach is welcomed from a human rights perspec-
tive and one may wish it could rule similarly to the Solange jurisprudence of
the German Constitution Court."8 As such an attempt is incompatible with
the paramountcy of the UN legal order, the decision of the CFI, however,
clearly showed the lack of a fully-fledged human-rights review within the UN
structure. This gap can obviously not be filled within the European legal or-
der and therefore the yardstick ofjus cogens, applied by the CFI, was a blunt
sword. The role for a comprehensive judicial review is at the UN level itself,
for instance, by the ICJ or-in future-an International Court of Human
Rights." 9 As long as such a mechanism is not in force, the CFI decision serves
to strengthen the recognition of international human rights and pays tribute
to a concept of constitutionalism in international law. But the Court should
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-
staatliche Gerichte, 66 Za6RV (2006), p. 41, 57

"7 See also case Congo v. Rwanda, separate opinion of Judge Dugard, supra note
io8, para. io.
uS For a comparison see: A. Arnold, UN-Sanktionen und gemeinschaftswechtlicher
Grandrechtschutz,Die ,,Soweit-Rechtsprechung" des Europdischen Gerichts erster Instanz, 44

AVR (2oo6), p. 201.
119 For proposing the JCJ, see: A. Wessel, The U/A, the EUandJus Cogens, 3 IOLR
2006, p. i, p. 5-
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
3.3.3 Fundamentalrightsprotected byjus cogens
As a consequence of the application of the yardstick ofjus cogens the Court

could not find any infringement of the fundamental rights of the applicants.
Neither the right to property, nor the right to a defence nor the right to effec-
tive judicial review were violated. As pointed out above, the Courts' reasoning
in regard to the fundamental rights is not persuasive as no detailed subsump-
tion whether the right is part ofjus cogens or not took place.
Considering first the right to property, the Court only mentioned article
17 (2) of the Universal Declaration of Human Rights. The Universal declara-
tion of Human Rights is a resolution of the UN General Assembly, hence a
non legally binding document. Here, the Court should have scrutinized
whether the right to property has the status of customary international law.'2
It should have looked at the two Covenants and-as neither of the two ac-
knowledge the right of property, to the Additional Protocol No. I of the
ECHR and the jurisprudence of the ECtHR, the American Convention of
Human Rights and the African Charter of Human and Peoples' Rights. The
freezing of funds and assets does also have a serious impact on human dignity,
the right to food and the right to life. Instead, the Court relied on the assump-
tion that the impugned measures were not inhuman and degrading treatment
or an arbitrary deprivation of the right to property. The former term, inhu-
man and degrading treatment, is part of the definition enshrined in the Con-
vention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment. The prohibition of torture is part ofjus cogens.'22 The ECtHR
also found that the destruction of possessions can constituted inhuman and
degrading treatment.'2 While the CFI were right in concluding that the pos-
sible exemptions and derogations set forth in the guidelines of the UN Sanc-
121 See Sub-commission on the promotion and protection

of human rights, UN
Doc. E/CN. 4 /Sub.2/2000/i 3 , 15 June 2000, para. 63, cited in D. Shelton, smpra note
io6, p. 29i, 294.
121 Cf C. Tomuschat, Primacy of United Nations Law:
Innovative features in the
Community Legal Order, 43 CMLR (2oo6), p. 537, 547-
122 See, e.g., S. Marks & A. Clapham, INTERNATIONAL HUMAN RIGHTS LEXICON
(2005), p. 363; Judgement of the International Tribunal for the former Yugoslavia,
Prosecutor v. Furundzija (Case IT-95-I7/I-T), io December 1998, para. 153.
,21The ECtHR had to rule on the destruction of houses during operations by se-
curity forces in Turkey and Romania. See Belgin v. Turkey, App. No. 23819/94,
Judgement of 16 November 2000. See further F. Jacobs & R. White, THE EUROPEAN
CONVENTION ON HUMAN RIGHTS (2006), p. 488.
58 InterdisciplinayJournalof Human Rights Law [Vol. 2:1
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
,14Case Waite and Kennedy v. Germany, App. No. 26o83/94, Judgement of i8

February 1999.
125See also C. Tomuschat, supra note 121, p. 537, 550.
-6 SimilarM. Bultermann, supra note 78, p. 753, 771 -
,27See 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/61/267, i6 August 2006, para. 39.
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.
-8 UN Doc. A/RES/6o/i, 16 May 2005, para. 1o9.

-2 See, e.g., B. Fassbender, Quisjudicabit?The Security Council, its powers and its legal
control, ii EJIL (2005), p. 219.
See N. Blokker et al., UN-Reform Symposium, 2 IOLR (2005), p. 361-436.
The Queen (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secre-
tary of State of Defence, Judgement of 12 August 2005, [2005] EWHC 18o9.
1,2 See R. Ahmed & I. de Jesfis Butler, supra note 6, p. 788. The authors
pointed
out that under an international law perspective the principle of succession is broader
than this one accepted under the ECJ jurisprudence as it does not require a exclusive
competence by the EC/EU.
6o Interdisciplinay Journal of Human Rights Law
IV. PROSPECTIVE AND CONCLUDING REMARKS
A comparison of both cases analysed above implies two similarities.

Firstly, both decisions anticipate regulations set forth in the European Consti-
tution Treaty. The CFI, when relying upon the legal basis for the imposition
of economic sanctions on individuals and the ECtHR by an indirect examina-
tion of EC acts regardless of accession. While the latter is welcomed from a
fundamental rights perspective, legitimacy questions arise as the ratification
process is still stagnating. Secondly, the ECtHR and the CFI both examined
the judicial interactions critically and were not reluctant to strengthen the re-
spective role they have to play. The ECtHR, by developing a manifest defi-
ciency test and the CFI by confidently applyingjus cogens. Both concepts are
installed to ensure a non-erosion of fundamental rights within the legal order
in question and have a similarity of structure to the Solange jurisprudence of
the German Constitutional Court. In Solange II, the German Constitutional
Court conditionally accepted the primacy of community law as long as the
ECJ protects fundamental rights within the EC. This case was preceded by
Solange Iwere it held the contrary. It is well accepted among speakers that this
jurisprudence has strengthened the development of fundamental rights within
the EC legal order. Regarding the cases mentioned in this article, the same
conclusion can be made. The manifest deficiency test demands the EC Courts
be more aware of the ECHR. Regarding the UN legal order, a direct com-
parison to the Solange jurisprudence fails because of the clearly regulated pri-
macy. The CFI ruling, however, pointed out the obligations of the Security
Council and drew a line to limits the Court will accept.
In regard to the UN legal order, the CFI called for an independent inter-
national court.'33 Such an "International Human Rights Court" seems neces-
sary if the Security Council is adopting resolution directly against individuals.
An effective judicial review within the UN Sanctions Committee can only be a
provisional measure. Early this year a Unified Standing Treaty Body was pro-
posed by the Inter-Committee Meeting. 3 4 Considering the individual com-
plaints mechanism, the establishment of an International Human Rights
Court could also encompasses the possibility to resolve the ongoing problems
within the UN Human Rights Monitoring System.
The ]usuf case is now on appeal before the ECJ and one might well be
curious if the same conclusion will be drawn. In the event that the ECJ con-
cluded no breach of the applicants fundamental rights, it might be presumed
that the ECtHR will be invoked by the applicants on the same issue. Here,
Strasbourg can hardly refer to its Bosphorus ruling but rather hold the EU
member states collectively responsible.' 3 5It has to answer the remaining ques-
tion on the relationship between the ECHR and the UN legal order. The
moment of truth will also come for the "manifest deficiency test", if the ECJ
likewise avoids a full-fledged scrutiny of the applicants fundamental rights.
"IJusuf case, supra note 23, para. 340.

134 See Concept Paper on the High Commissioner's Proposal for a Unified Stand-
ing Treaty Body, UN Doc. HRI/MC/2oo6/2, 22 March 2oo6.
,' See F. Hoffneister, supra note 48, p. 442, 448.

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Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

As long as the European Union (EU) Constitution Treaty is not in force,

* Dipl. iur. (University of Hamburg, Germany), LL.M. candidate (National Uni-

14 See Bundesverfassungsgericht Case No. 2 BvR 2236/04 Judgement i8.July

II. THE BOSPHORUS CASE AND THE RELATIONSHIP BETWEEN

The Bosphorus case has to be considered in light of the previous case-law

concerning fines. The Commission of Human Rights stated that member

7 6A Decisions Reports 125.

leging a breach in the context of competition law proceedings before the

z. The Bosphorus case

2.1 The facts

Bosphorus Airways filed a complaint before the European Commission

2.2 The decision

The Court proceeded to assess if the impugned impoundment was justi-

However, any such finding of equivalence could not be final

4'Bosphorus case, smpra note 20, para. 138.

Convention for all acts falling outside its strict international

4 Bosphorus case, supra note 20, para. 155 -157.

" See Third Report of Special Rapporteur G. Gaja on Responsibility of Interna-

2.3. 1 The "equivalentprotection" doctrine and the "manifest deficiency" test

As the "equivalent protection" doctrine was criticized after its establish-

6 C. Costello, supra note 50, p. 107.

individuals to the ECJ is limited". 6 However, after mentioning the indirect

2.3.2 Conclusion andperspective

In conclusion, the Bosphorus case can be assessed as strengthening the

6 Bosphorus case, supra note 20, para. 162.

III. THE JUSUF CASE AND THE RELATIONSHIP BETWEEN THE

Although the attacks of ii September 2001 boosted anti-terror activities,

71 See Dorsch case, supra note 22, para. 88.

"Jusuf case, supra note 23, para. 164- 170.

regulation provides under the Sanctions Committee in some circumstances.

88 Ibid., para. 332- 347.

3. 1 The legal basis

9 Particularly in disagreement with the Courts reasoning is A. Garde, k it really

3.2 The relationshipbetween EC/UN

unlike EC acts, "directly applicable" within the domestic

3.3 Jus cogens and the scope of review

The Court concluded from the paramountcy of the UN Security Council

7 See A. Cassese, INTERNATIONAL LAW, p. 232-234.

convinces as a conclusion, the reasoning the Court used in getting there is

3.3. 1 The concept ofjus cogens

The Report on fragmentation of international law of the Study Group of

See Report of the Study Group of the ILC, supra note

The CFI concluded that it is authorised to an indirect review of UN Se-

and international courts." 4 Here, the wording of Article 24 (2) UN Charter is

staatliche Gerichte, 66 Za6RV (2006), p. 41, 57

Grandrechtschutz,Die ,,Soweit-Rechtsprechung" des Europdischen Gerichts erster Instanz, 44

3.3.3 Fundamentalrightsprotected byjus cogens

As a consequence of the application of the yardstick ofjus cogens the Court

121 See Sub-commission on the promotion and protection

,14Case Waite and Kennedy v. Germany, App. No. 26o83/94, Judgement of i8

-8 UN Doc. A/RES/6o/i, 16 May 2005, para. 1o9.

IV. PROSPECTIVE AND CONCLUDING REMARKS