Challenging EU counter terrorism measures thorugh the courts

This collection of essays examines the implications of ECJ’s approach to UN-related counter terrorism measures against individuals (the so-called ‘smart sanctions’), as expressed by its ruling in Kadi, annulling an EC act implementing a UNSC resolution. The impact of this judgment on the EC legal order, on its relationship with the UN Charter, and on the case-law of the European Court of Human rights (‘ECtHR’) are the threads of this collection. Gaja defends the idea that the UN Charter is so special that it is inappropriate to regard it as any other international Treaty concluded by the Member States for the purpose of art. 307 TEC. Tomuschat criticises the ECJ for exempting the human rights, as they are anchored in the European system, from the subordination to the UN system, thus making them as ‘world standard.’ Cannizzaro is very critical of the ECJ’s ruling as far as the competence to review EC measures, implementing UNSC, as well as the standards of review vis-à-vis the UNSC resolutions are concerned. Critical comments are also addressed by Pavoni’s paper also commenting on the latter topic. This author argues that the ECJ could have examined whether the challenged EC measures were in line with customary international law. Lavranos takes a positive attitude toward the ECJ’s ruling; examines the Court’s interpretation of art. 307 of the TEC and praises the Court for its strong defence of human rights, as protected under the EC legal order. Tridimas’ paper specifically addresses this issue and come up with a positive assessment of the ECJ’s ruling. Cremona explores the ECJ’s reasoning on the EC competence to adopt smart sanctions without sparing critical remarks. Ciampi assesses the impact that the Kadi ruling could make on the case- law of another regional court, the ECtHR. Francioni and Condorelli focus on the UN system of targeted sanction to argue that it falls short of international human rights protection. The former is particularly critical of the distance that the ECJ takes from international human rights law. By contrast, Scheinin is a supporter of the ‘reconcilability’ argument: the outcome in the Kadi case is compatible with international human rights law and that the Kadi judgment should be seen as an affirmation of a high degree of coherence between EU law and international law.