Fundamental rights in the EU after Kadi and Al Barakaat

Abstract

This article takes stock of the emerging scholarship on the European Court of Justice's 2008 Kadi decision and seeks to make sense of the court's apparent evasiveness towards international law. The article argues that Kadi is best understood as an act of civil disobedience prompted by the UN Security Council's misapplication of foundational principles of the international order. In turn, the court's forceful articulation of the stakes in this case signals a prioritisation of basic rights within the supranational constitutional architectonic. In this respect, the 'domestic' constitutional implications of Kadi are just as far reaching as its consequences for the EU's status as an actor under international law.

Stepping inside? CSDP missions and EU counter-terrorism

“…The second one comprises internal aspects of EU counter-terrorism (Monar 2007, Clarke 2005, Den Boer et al 2008, Security and Defence Agenda 2010, including financial issues (Kaunert and Giovanna 2010) and the role of agencies (Kennedy 2004, Bures 2010Bures 2008, Friedrichs 2009, Kaunert 2010Bigo et al 2007 on EU security agencies). The third one focuses on the legal dimension of EU counter-terrorism (Dumitriu 2004, Wessel 2006, Guild 2008, van Thiel 2008, Eckes 2009, Isiksel 2010. While a relevant portion of the available scientific works tends to be empirically and policy oriented (Spence 2004, de Vries 2005, Coolsaet 2008, Eder and Senn 2009, the number of theoretically informed studies has been increasing as the EU's action in counter-terrorism unfolds and expands.…”

EU internal security governance: the case of counter-terrorism

“…8 Although this harmonization effort resulted originally from the need to comply with UN Security Council Resolution 1333, the EU's 'terrorist lists' 9 have generated much controversy and a substantial case law by the EU's Court of Justice and Court of First Instance because of claimed and -in some cases actual -failures of the Council to ensure adequate procedural rights for the persons and entities thus listed. While it may be true that so far no other EU internal security measure has exposed in starker terms the tension between EU internal security objectives and fundamental rights protection (Isiksel 2010, Cassella 2011, the (in)famous 'terrorist listing' can also be regarded as one of the most advanced EU cross-border law enforcement instruments as it commits all Member States to the same repressive action vis-à-vis the presumed terrorist persons and entities listed.…”

International Courts and Public Opinion: Explaining the CJEU's Role in Protecting Terror Suspects' Rights

“…The ECJ annulled the EU regulation to the extent it concerned Mr. Kadi and the Foundation, but granted the EU institutions three months to remedy the infringement of the plaintiff's right to due process. Many legal scholars and public commentators across Europe welcomed the judgment as a victory for the protection of human rights (Isiksel, ), though some voiced strong concerns about future conflicts between EU and UN law (De Búrca, ). The EU Commission initially made minimal efforts to comply with the ECJ ruling: it sent Mr. Kadi a one‐page summary of UN reasons for the listing, gave him 19 days to comment, and then decided to keep Mr. Kadi's assets frozen (Cuyvers, , p. 1762).…”