A recent judgment of the European Court of Justice, Case T‑315/01 Kadi v Council and Commission and Case T‑306/01 Yusuf and Al Barakaat International Foundation v Council and Commission (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML), cancels a European Regulation (881/2002 of 27 May 2002) imposing measures directed against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. The European Union was implementing a United Nations Security Council Resolution. According to the Court, European Union institutions violated the fundamental rights of the two applicants when they decided to freeze the assets of a Saudi businessman ('Kadi') and a Sweden-based charity ('Al Barakaat') suspected of funding al-Qaeda terror groups.
The European Court of Justice was sitting in appeal of a decision by the Court of First Instance, which had made a very controversial finding that the Regulation was invalid because it conflicted with peremptory norms of international law (jus cogens). The European Court of Justice said the Regulation was invalid because it conflicted with the constitutional principles of the European Community Treaty, and in particular the requirement that all Community acts respect fundamental rights.
The earlier judgment was critiqued by our colleague Dr Laurent Pech in a casenote written in 2006 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915386)., and his approach is now endorsed by the European Court of Justice.
Earlier this year, I wrote on this blog about the violations of human rights that take place in the name of the 'war on terror'. Some of these measures, such as asset freezes and travel bans, are actually required by Security Council Resolutions. They violate fundamental principles of human rights and the rule of law. The European Court of Justice ruling is a step towards fixing this unacceptable situation.
Thanks to Laurent Pech.
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