Judicial control over the sanctions against Al-Qaeda and the Taliban in the European Union: a challenge to the powers of the Security Council?

Authors

  • JUAN SANTOS VARA

Keywords:

EU competence to adopt sanctions against non-state actors, United Nations, Security Council sanctions, 1267 Sanctions Committee, Relationship between the UN Charter and the EC legal order, Jurisdiction of the Court, Fundamental rights, Right to respect fo

Abstract

In the Kadi/Al Barakaat judgment of 3 September 2003, the European Court of Justice (ECJ) unambiguously rejects the thesis of immunity from jurisdiction of the Community acts implementing the Security Council’s resolutions adopted under Chapter VII of the UN Charter. The aim of this article is to examine the main consequences of Kadi/Al Barakaat, which go beyond the fight against the financing of terrorism, since the ECJ makes an express pronouncement regarding the relationship between the UN Charter and the EC legal order. In this regard, the ECJ adopts a constitutional solution, which is based on the autonomy of EC law and the primacy of primary law over, in the ECJ’s opinion, the UN Charter and the Security Council resolutions. However, in no way can the judgment of the ECJ be interpreted as questioning the authority of the Security Council in discharging its duties for the maintenance of international peace and security. Even though it is not easy to strike a balance between the Security Council’s primary responsibility for the maintenance of international peace and security and the establishment of safeguards of fundamental rights in the sanctions regime against Al-Qaeda and the Taliban, it is unacceptable to systematically infringe the fundamental rights of persons and entities included in the black list drawn up by the 1267 Sanctions Committee.

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Published

2009-05-20

Issue

No. 32 (2009): enero-abril

Section

NOTES

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