Albert Posch, THE KADI CASE: RETHINKING THE RELATIONSHIP BETWEEN EU LAW AND INTERNATIONAL LAW?, 15 Colum. J. Eur. L. Online 1 (2009)Conclusion:
The ECJ’s Kadi judgment leaves us with a number of open questions regarding its effects on the structure of the international legal order.[27] Indeed, the question must be asked whether the primacy of UN Charter obligations is jeopardized.[28]
In fact, the ECJ did not establish a new hierarchical structure regarding the interplay between international law and European law. Rather, the Court emphasized the primacy of obligations under the UN Charter. It also highlighted that the (European) review of lawfulness applies only to Community acts and never to acts of the UN Security Council under Chapter VII of the UN Charter, even if such a review were to be limited to examination of the compatibility of that resolution with jus cogens. Thus, at first the ECJ did not challenge the existing hierarchy of norms within the international legal order. But at the same time, by emphasizing the rule of law the Court stated that the judicial review also covers all Community acts, even if they are designed merely to give effect to resolutions adopted by the UN Security Council.
In effect, this approach of reciprocal concessions only works if there is a way to implement UN Security Council resolutions in conformity with fundamental rights of the EU. If it would only be possible to put a resolution into effect by adopting a Community act which breaches fundamental rights-if there were a real conflict between obligations arising under the UN Charter on the one hand and EU fundamental rights as “principles that form part of the very foundations of the Community legal order” (para. 304) on the other-EU fundamental rights prevail. Thus, the ECJ’s commitment to accept the primacy of UN Charter obligations and the integrity of UN Security Council resolutions ends in the absence of discretional power to implement such resolutions in a fundamental rights-friendly way. Therefore, a lack of discretion implies an obligation to give preference to fundamental rights even if this means a breach of UN Charter obligations; this could entail a “challenge to the primacy of that resolution in international law,” in contradiction to the explanations of the ECJ (para. 288).
The judgment of the ECJ in Kadi represents a strong commitment to fundamental rights and the (European) rule of law. Advocate General Maduro found an appropriate summary in advance: “[M]easures which are incompatible with the observance of human rights . . . are not acceptable in the Community.”[31] From a global perspective, the ECJ’s insistance on the protection of European fundamental rights standards means that political bodies are now on the ball. The ECJ made it harder for the UN Security Council to adhere to violations of fundamental rights. As such, Kadi stands for a new bottom-up process in which a regional court pressures the UN Security Council to change its policy towards fundamental rights.
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