CASE LAW: Global Security and Procedural Due Process of Law between the United Nations and the European Union: Yassin Abdullah Kadi & Al Barakaat International Foundation v. Council

15 Colum. J. Eur. L. 511 (2009)

Giacinto della Cananea. Ph.D., The European University Institute (Florence); Professor of Public Law and E.U. Law, University of Naples “Federico II.”

In the first decisions concerning the anti-terrorism measures provided by the resolutions adopted by the Security Council of United Nations (UN), the Court of First Instance (CFI) of the European Union (EU) has clearly shown deference towards political choices adopted at the global level. Such decisions were based on two assumptions: that EU institutions had to comply with UN law and that the latter took precedence over all other treaties, including those protecting human rights, such as the European Convention on Human Rights (ECHR), except where jus cogens applied. On appeal, the European Court of Justice (ECJ) quashed the decision of the CFI precisely on these grounds. While explicitly excluding UN law from the scope of its judgment and recognizing the primacy of international law, the ECJ has emphasized the autonomy of the EU legal order. Accordingly, though confirming that such regulations were not ultra vires, it has affirmed that respect for human rights is a condition of the lawfulness of the acts adopted by EU institutions, such as the contested Regulations. It has found that such Regulations had the effect of prejudicing fundamental procedural safeguards such as the right to be heard and to seek judicial redress, and as a result, has annulled them. Interestingly, moreover, the ECJ has referred to the process which is “due” not only to EU citizens, but to everyone, including aliens.