Two Ships in the Night or in the Same Boat Together? Why the European Court of Justice Made the Right Choice in the Kadi Case

This paper investigates the approaches to the recent Kadi case taken by both the Court of First Instance and the Advocate General and asks whether the European Court of Justice made the right choice with regard to the case’s implications for the relationship between European and international law. It argues that the Court’s judgement of 3 September 2008 in Kadi is to be welcomed, also from an internatio-nal perspective. It rightly rejected the approach presented by the Court of First Instance, which, albeit stressing the importance of the UN Charter, ultimately turned out to be a ‘false friend’ of international law. By largely following the Advocate General’s Opinion, the Court maintained the integrity and the superior human rights standard of the EU legal order. Without jeopardizing the compliance of the Member States with their UN Charter obligations right away, it sent a clear warning signal to the United Nations Security Council to exhaust its potential for reform of the targeted sanction regime to the fullest. The Court showed that in an interdependent world of multilevel governance, the different components cannot ‘pass by each other like ships in the night’. In the face of threats like global terrorism like the threat of terrorism as well as undue curtailing of human rights, we are all in the same boat together after all.

• Primary Source

RIIA: UN and EU Sanctions: Human Rights and the Fight Against Terrorism - The Kadi Case: Paper, January 2009 http://www.chathamhouse.org.uk/publications/papers/view/-/id/699/

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