Judicial Review in International Law

EJIL Talk reports of the decision of the European Court of Justice in Kadi as one destined to become a landmark in the annals of international law. While the blog compares this decision to one of the US Supreme Court in Medellin, I propose to give another view point of this decision in terms of having a standard of judicial review in International Law.

Pursuant to the UN Security Council resolutions on terrorism and funding of terrorist groups, the Council of the EU adopted a regulation ordering the freezing of the funds and other assets of the persons and entities appearing in a list annexed to the regulation. In this list were Mr. Kadi, a national of Saudi Arabia, and Al Barakaat, an organization established in Sweden, whose assets were frozen as being allegedly associated with Al-Qaeda. These two ‘persons’ challenged the regulation as being violative of their fundamental rights and the European Court of Justice was called upon to decide the question in appeal.

What the appellants were essentially arguing for was a standard of judicial review for regulations framed under International law provisions. Before this, the only reminiscences of judicial review existed in Article 53 of the Vienna Convention on the Law of Treaties stating that a treaty may be violated/breached if it were against a jus cogens norm. Even this provision did not declare a treaty invalid.

It may be argued that these regulations did not have the status of international law and that EU Council regulations should have the status of domestic law. If this be the case, then my argument and inference fails. However, I am inclined to think otherwise. The Court stated that ;

“the Court  concludes that, in the light of the actual circumstances surrounding the inclusion of the appellants’ names in the list of persons and entities whose funds are to be frozen, it must be held that the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.”

And then asked the EU Council to remedy such infirmities in the Regulation.

Noted points made by the Court include;

“the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”

And finally,

“any judgment by the Community judicature deciding that a Community measure intended to give effect to … a [UNSC] resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.”

In as much as the Court has tried to be rational and not contravene the UN Resolution per se, this decision has a profound impact on international law and I would say that it is a welcome change. More often that not, we have seen International law taking sides and being hypocritical (as in Israel) and in that context blatantly violating due process. This judgment should do some good then.

EJIL Talk says that they would be putting up a detailed analysis of this case in a while. The opinions in this post come from an amateur like myself and it would be interesting what that post would have to say.