Is the ECJ Ruling in Kadi Incompatible with International Law?

Abstract

This chapter discusses the Kadi ruling by the European Court of Justice from the perspective of public international law. Its main thesis is that instead of using Kadi as evidence of a conflict between the normative orders of the European Union and the United Nations, it is more useful to speak about tensions that exist within both legal orders. While the forms in which those tensions express themselves, and perhaps even the outcomes of efforts to resolve the tensions, may differ, the existence of a tension between the imperative of taking decisive and effective measures against terrorism, and the obligation to respect the fundamental rights of the individual while doing so, is a factor creating unity between the two normative orders. While complete harmony may not have been obtained through the first wave of cases litigated in EU and UN fora, this should not be seen as evidence of the two legal orders being irreconcilable or developing in two different directions. Rather, the existing discrepancies between the two regimes should be seen as a challenge that needs to be met through increased attention to the uniting factors, with a view to fully utilizing the existing potential for harmonizing interpretation. The three following sections of this contribution seek to demonstrate the following: (I) the outcome in the Kadi case is compatible with international human rights law, as expressed in United Nations human rights treaties, (II) the ECJ ruling in Kadi should be seen as an affirmation of a high degree of coherence between EU law and international law, and (III) the outcome in the Kadi case also has much support in institutional United Nations law. The last section (IV) of the chapter discusses whether there is a feasible alternative to a coherence- based reading of Kadi.