Great Accountability Should Accompany Great Power: The ECJ and the U.N. Security Council in Kadi I & II

Abstract

Over a decade ago, the United Nations (UN) Security Council added Yassin Abdullah Kadi’s name to a list of hundreds of individuals suspected of associating with Al-Qaida and the Taliban. The Security Council directed UN Member States to freeze the listed individuals’ assets and to limit their travel. The Council of the European Union (EC) subsequently passed regulations giving direct effect to the UN sanctions regime. In 2008, the European Court of Justice (ECJ) annulled one such implementing regulation, but assigned responsibility for remedying considerable due process defects inherent in the regime to Community institutions rather than the UN Security Council. Leaving this task to the European Union (EU) presents a logistical impossibility. Instead, the Security Council should create a court to review its own listing decisions and ensure fair procedure. The ECJ should allocate responsibility to the Security Council, while preserving the EU legal order’s autonomy. In Kadi II, Mr. Kadi’s current appeal, the ECJ has the opportunity to indicate that it would accept the authority of a court dedicated to hearing challenges to listing decisions, provided it satisfies the European Court of Human Rights’ definition of an independent and impartial tribunal under Article 6 of the European Convention on Human Rights.