The Relationship between European Union Law and International Law through the Prism of the Court of Justice’s ETS Judgment: Revisiting Kadi I

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Name: Ana Júlia Maurício
University: University of Cambridge


Abstract

The EU, as an international actor with legal personality, is a subject of international law. It is thus bound by certain international treaties and principles of customary international law. This article attempts to analyse the relationship between EU law and international law in the light of the recent Court of Justice’sdecision relating to the EU Emissions Trading Scheme, using ETS to revisit Kadi I. It is argued that ETS explained the conditions under which the Court of Justice will assess the validity of EU law in the light of international treaties and principles of customary international law, advancing a dialogic approach to international law. This article suggests that this line of argument differs from the deferential approach to international law applied by the General Court in Kadi I, and that it also differs from the Court of Justice’s dualist ruling in Kadi I, which seem to have lacked a much needed mutual engagement at the level of international fundamental rights.

Keywords

EU Law, International Law, International Treaties, Customary International Law, UN Charter

1. Introduction

According to Article 47 TEU,[1] the European Union (EU) has legal personality and is, therefore, subject of rights and obligations arising from international law. Article 216(2) TFEU[2] relates only to international treaties which have been concluded by the European Union, without alluding to other rules of international law. However, the Court of Justice of the European Union (Court of Justice) has admitted that other rules might bind the European Union, namely, certain rules stemming from customary international law and from international treaties which are binding on the Member States, but to which the EU is not a party.[3] Article 3(5) TEU states that the European Union shall contribute to ‘the strict observance and the development of international law’, including the respect for the principles of the Charter of the United Nations (UN Charter)[4]. However, besides international treaties, the Court of Justice has not resorted to rules or principles of international law in many cases.[5]

This article argues that the judicial decision in Air Transport Association of America and Others v Secretary of State for Energy and Climate Change (ETS)[6] explained the conditions under which the Court of Justice will assess the validity of EU law in the light of international treaties and principles of customary international law, advancing a dialogic approach to international law. This article suggests that this line of argument differs from the deferential approach to international law applied by the General Court in Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities (Kadi I),[7] and that it also differs from the Court of Justice’s dualist ruling in Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Kadi I).[8]

The Kadi I judgments seem to have lacked a much needed mutual engagement at the level of international fundamental rights, involving risks for both the EU and the international legal orders[9] and also for affected individuals. Firstly, the judgment of the General Court leaves affected individuals without an effective judicial protection of their fundamental rights. In addition, the contrasting decisions of the General Court and the Court of Justice bring uncertainty to those individuals. Secondly, whilst the General Court’s judgment, in practice, confers an unfettered prevalence to UN Security Council resolutions, the Court of Justice’s ruling could be perceived as a carte blanche for other courts and States not to comply with and enforce Security Council resolutions. Furthermore, the Court of Justice’s decision could endanger the EU’s position as a leading exemplar in the respect for international law.[10] Nonetheless, it is believed that, although ETS and Kadi I involve very different subject matters, i.e. aviation activities in the EU emissions trading scheme in contrast to asset-freezing measures that aim to combat terrorism, it took a situation where such a patent violation of fundamental human rights was not at stake for the Court of Justice to clarify and further develop the relationship between international law and European Union law. Accordingly, ETS will be the basis for reassessing Kadi I from a new prism.

2. The ETS judgment

2.1 General issue

The initial EU emissions trading scheme did not cover greenhouse emissions from air transport. However, Directive 2008/101/EC[11] changed this, as it included aviation activities in the EU emissions trading scheme from 1 January 2012. Therefore, all airlines have to acquire and surrender emission allowances for their flights that depart from and arrive at European airports.

Several airlines and airline associations, including the ones established outside the EU, contested the measures transposing Directive 2008/101 in the United Kingdom, alleging that the European Union had infringed various international treaties and principles of customary international law. The High Court of Justice of England and Wales referred the issue to the Court of Justice for a preliminary ruling. The Court of Justice examined whether Directive 2008/101 was compatible with international law, namely, with determined provisions of international treaties and principles of customary international law.

2.2 International treaties

In relation to international treaties, the Court of Justice referred to Article 216(2) TFEU,[12] according to which treaties concluded by the European Union are binding upon its institutions and, consequently, prevail over acts of the European Union.[13] The validity of an act of the EU might, therefore, be affected by the fact that it was incompatible with such rules of international law.

In order for the validity of the EU act to be assessed pursuant to those rules, a number of conditions must be fulfilled.[14] First, the European Union must be bound by those rules.[15] Second, the nature and the broader logic of the international treaty must not preclude the Court of Justice from reviewing the validity of the EU act according to the treaty.[16] Third, the provisions of such treaty, which were relied upon for the purpose of examining the validity of the EU act, must appear, as regards their content, unconditional and sufficiently precise.[17] It seems that on its third condition the Court of Justice is analogically referring to the requirements for provisions of EU law to have direct effect.[18] In that sense, a provision of an international treaty would be unconditional where it set forth an obligation that was not qualified by any condition, or subject, in its implementation or effects, to the adoption of subsequent measures. Moreover, it would be sufficiently precise to be invoked by an individual and applied by a court where the obligation was set out in unequivocal terms.

As far as the first condition is concerned, if the European Union had concluded an international treaty or had had it concluded on its behalf, the provisions of that treaty formed an integral part of the EU legal order. Thus, the first condition being fulfilled, the EU was bound by the treaty. That was the case of the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol)[19] and of the Air Transport Agreement.[20]

In relation to the Convention on International Civil Aviation (Chicago Convention),[21] the European Union was not a party to it.[22] Nonetheless, if all of its Member States were contracting parties, the EU could still be considered bound by that international treaty under certain circumstances.[23] Although Article 351(1) TFEU implied a duty on the part of the EU institutions not to impede the performance of the obligations of the Member States of international treaties such as the Chicago Convention,[24] that duty was designed to permit the Member States to perform their obligations and did not bind the European Union as regards the third states party to that treaty.[25] Consequently, for the European Union to be bound by the provisions of the Chicago Convention, the EU must have had assumed the powers previously exercised by its Member States in the field to which that international treaty applied.[26] That implied that the EU must have had transferred all the powers previously exercised by the Member States within the ambit of the Chicago Convention.[27] Although the European Union had acquired certain exclusive powers to agree commitments with third states in the area, it did not have exclusive competence in the entire field of international civil aviation as covered by the Convention.[28] Therefore, the fact that some EU acts might have the object or effect of incorporating into EU law certain provisions that were set out in the Chicago Convention was not sufficient for it to be incumbent upon the Court of Justice to review the validity of Directive 2008/101 pursuant to the Convention.[29]

Regarding the Kyoto Protocol and the Air Transport Agreement, since they were binding on the EU, the second and third conditions had to be met for Directive 2008/101 to be reviewed in light of their provisions. In the case of the Kyoto Protocol, the Court of Justice confirmed that the Protocol allowed for a degree of flexibility as to the compliance with the obligations enshrined therein and the Conference of the Parties had the responsibility of approving the necessary measures to determine and address situations of non-compliance with the Protocol.[30] Hence, the nature and broad logic of the Protocol seemed to preclude the Court of Justice from reviewing the validity of Directive 2008/101 pursuant to the Protocol’s provisions. Moreover, the Protocol’s relevant provisions, such as Article 2(2), could not be considered, as regards their content, unconditional and sufficiently precise so as to confer on individuals the right to rely on them in legal proceedings.[31] Accordingly, the Court of Justice concluded that the Kyoto Protocol could not be relied upon to assess the validity of Directive 2008/101.[32]

In contrast, the Court of Justice was of the opinion that the Air Transport Agreement established certain rules designed to apply directly and immediately to airlines, conferring upon them rights and freedoms which were capable of being relied upon. Consequently, the nature and broader logic of the Air Transport Agreement did not preclude the Court of Justice from examining the validity of Directive 2008/101 and the second condition was fulfilled.[33] As regards the third condition, the Court of Justice individually analysed the relevant provisions of the Air Transport Agreement, concluding that they contained unconditional and sufficiently precise obligations.[34] Therefore, the validity of Directive 2008/101 could be assessed in the light of the provisions of the Air Transport Agreement, namely, Articles 7, 11(1) and (2c), and 15(3) read in conjunction with Articles 2 and 3(4).[35] The Court of Justice concluded that Directive 2008/101 did not infringe any of those provisions.[36]

2.3 Customary international law

In relation to customary international law, the European Union is to contribute to the strict observance and the development of international law (Article 3(5) TEU).[37] Advocate General Kokott proposed guidelines to assess when and to what extent a principle of customary international law could serve as a benchmark against which the validity of EU law could be reviewed.[38] The Advocate General affirmed that the same requirements that applied for provisions of international treaties to be relied on by individuals and applied by the Court of Justice should be satisfied in order for the lawfulness of EU law to be assessed in relation to principles of customary international law. Firstly, the principle of customary international law must be binding on the European Union. Secondly, the nature and broad logic of that particular principle must not preclude such a review of validity. Finally, the principle in question must also appear, as regards its content, unconditional and sufficiently precise.

However, the Court of Justice did not follow the Advocate General in this aspect and did not extend the conditions used for international treaties to principles of customary international law, denying an analogous direct effect-type analysis. Instead, the Court of Justice examined, in order to conclude whether Directive 2008/101 could be assessed in the light of such principles, whether the principles invoked were recognised as forming part of customary international law and, if so, whether and to what extent they might be relied upon by individuals.[39]

Regarding the first requirement, three of the principles invoked, i.e. the principle of State sovereignty over its airspace, the principle stating the prohibition of sovereign claims over the high seas and the principle of freedom to fly over the high seas, were recognised as being part of customary international law.[40] However, there was insufficient evidence to establish that the principle of customary international law that a vessel on the high seas is in principle governed by the law of its flag would apply by analogy to aircrafts overflying the high seas.[41]

Pursuant to the second requirement, it involved verifying, first, whether those principles were capable of calling into question the competence of the European Union to adopt that act and, second, whether the act was liable to affect rights which the individual derived from EU law or to create obligations under EU law.[42] The Court of Justice considered that the claimants could rely on the first three principles.[43] However, given the lower level of precision of such principles of customary law when compared with norms of international treaties, the Court would only apply a marginal judicial review test.[44]  The Court concluded that the EU institutions had not made manifest errors of assessment concerning the conditions for applying those principles, and that the EU had competence in the light of those principles to adopt Directive 2008/101.[45] Therefore, the Court of Justice held that Directive 2008/101 was not invalid.

2.4 Interim conclusion

In ETS, the Court of Justice expressly engaged in defining the requirements under which international law binds the European Union and the circumstances under which it will review EU acts in the light of international law, whether international treaties or principles of customary law. It thus appears that the Court of Justice assumed the existence of an international legal order, recognising the need to address conflicts between provisions of EU law and of international law by reference to set conditions. This suggests that the Court of Justice somehow adopted a soft constitutionalist approach, similar to Gráinne De Búrca’s proposition,[46] as it sought to mediate the relationship between the norms of the different legal systems. This clearly differs from the absolute priority given by the General Court to the UN Charter in Kadi I and from the emphasised autonomy of the EU legal order present in the Court of Justice’s decision in Kadi I. The next section aims to revisit Kadi I through the prism of ETS.

3. Revisiting Kadi I in the light of ETS

3.1 General issue

Mr Kadi had been listed by the United Nations (UN) Security Council’s Sanctions Committee as a suspect of supporting terrorism and his assets were, therefore, to be frozen. Kadi I dealt with the issue of the lawfulness of the Council Regulation (EC) No 881/2002,[47] which implemented the freezing order in the European Union. The General Court and the Court of Justice were asked to analyse whether the European Community had competence to adopt that Council Regulation, and whether it had violated Mr Kadi’s fundamental rights, namely, the right to respect for property, the right to be heard and the right to effective judicial review. In doing so, both courts delineated their understandings of the relationship between international law and EU law.

3.2 Is the European Union bound by the UN Charter?

3.2.1 Impact of the Treaty of Lisbon

This subsection examines the impact of the Treaty of Lisbon,[48] questioning if it brought any clarifications to the issue of whether the European Union is bound by the UN Charter. Article 3(5) TEU, which mentions that the European Union shall contribute to the respect for the principles of the UN Charter, does not seem to be an express affirmation that the European Union is bound by it and should not be read in that sense. Its possible meaning is analysed below, but it seems to refer to the UN Charter as encompassing principles of customary international law.

The Declaration concerning the Common Foreign and Security Policy (Declaration 13)[49] could also be possibly relevant to the clarification of this issue, because it affirms that the European Union and its Member States remain bound by the provisions of the UN Charter. It adds that the EU and its Member states remain bound, in particular, by the primary responsibility of the Security Council and of its Member States for the maintenance of international peace and security. Although Declaration 13 could be interpreted as determining that the European Union is undoubtedly bound by the UN Charter, that does not seem to be the correct illation. While this might show a political intention to adhere to the UN Charter, it is argued that the fact that the Declaration refers to the European Union remaining bound indicates that a change to the previous status was not intended. Furthermore, the fact that it reserves the primary responsibility in the area of international peace and security to the Member States should be interpreted in the sense that this is still not an area in which all the powers have been assumed by the European Union.

Following the proposition that the Treaty of Lisbon did not clarify this issue, the subsequent subsections, highlighting some of the crucial points of the General Court’s reasoning in Kadi I, enquire whether the UN Charter, namely, the resolutions adopted by the Security Council under Chapter VII of the UN Charter, binds the European Union.

3.2.2 Criticising the General Court’s findings

The General Court in Kadi I, after assessing the issue of the competence of the European Community to adopt Council Regulation 881/2002,[50] focused on the relationship between international law, i.e. the obligations stemming from the resolutions adopted by the Security Council under Chapter VII of the UN Charter, and European Union law.[51] The Court of Justice began by analysing the issue from the ‘standpoint of international law’, affirming that the obligations of the Member States under the UN Charter, to which they were all signatories, clearly prevailed over obligations of national law, EU law and other international treaties.[52] In accordance with Article 25 of the UN Charter, under which the members of the UN consented to accept and execute the decisions of the Security Council, that ‘primacy’ also included Security Council resolutions.[53] However, since the EU was not a signatory of the UN Charter, the Charter and the Security Council resolutions did not bind the EU by virtue of international law.[54] Nonetheless, the Court of Justice concluded that the European Union was bound by the UN Charter and ‘was required to give effect to the Security Council resolutions’ by virtue of EU law, namely, Articles 351 and 347 TFEU and in accordance with International Fruit Company.[55] Hence, the Court found that the binding effect of the UN Charter prevented it from reviewing the validity of the contested Council Regulation 881/2002 on the basis of EU law, as that would imply that the Court considered indirectly the lawfulness of the Security Council resolutions.[56] Instead, the Court considered that it had competence to review the lawfulness of the Security Council resolutions indirectly with regard to jus cogens, concluding that the rights to respect for property, to be heard and to effective judicial review had not been breached.[57]

The General Court’s reasoning and conclusion that the EU was bound by the UN Charter and by the obligations deriving from the resolutions adopted by the Security Council under Chapter VII of the UN Charter should be examined in the light of the requirements defined in ETS. In relation to the UN Charter as an international treaty, the General Court was right to concede that the European Union is not formally bound by the UN Charter.[58] Nonetheless, the UN Charter and more specifically the resolutions adopted by the Security Council under Chapter VII of the UN Charter are binding on all the Member States of the European Union. It should thus be considered whether the EU’s practice of adopting measures, such as Council Regulation 881/2002, to give effect to Security Council resolutions entails that it is de facto bound by them.

The General Court considered that the European Union must be considered to be bound by the obligations under the UN Charter in the same way as its Member States by virtue of EU law.[59] However, Articles 351(1) and 347 TFEU solely imply a duty on the part of the EU institutions not to hinder the performance of the obligations of the Member States under international treaties like the UN Charter. The reasoning behind that duty is to allow Member States to perform their international obligations, but not to bind the European Union as regards the third states party to that treaty.[60]

Moreover, according to the General Court, insofar as the European Union assumed powers previously exercised by the Member States in the area governed by the UN Charter, its provisions had the effect of binding the European Union.[61] This assertion seems to be making an incorrect analogy with the considerations of International Fruit Company.[62] As clarified by ETS,[63] the fact that the European Union adopted measures which give effect to UN Security Council resolutions does not mean that it is bound by those Security Council resolutions. In fact, although the European Union has some powers in this area, the set up of the EU shows that it has not assumed such powers in their entirety.[64] Actually, significant powers in the area of international peace and security are reserved to the Member States, remaining their sole responsibility. Although all the Member States are signatories of the UN Charter, the Charter, especially its Chapter VII, does not fall within an area in which the European Union has assumed exclusive responsibility.[65]

Accordingly, the General Court’s conclusions in Kadi I, which differed from the Court of Justice’s reasoning in ETS, do not seem to be convincing. The European Union is not bound by the UN Charter, including Security Council resolutions deriving from Chapter VII, and it is not incumbent upon the Court of Justice to review the legality of EU acts in the light of that international treaty. Nevertheless, despite the fact that the General Court’s deferential approach towards the UN Charter does not seem to be founded on acceptable premises, by paying ‘its respects to international law’,[66] the General Court revealed that it is generally receptive to a dialogic approach to international law.

3.2.3 UN Charter as customary international law

Continuing the analysis of the situation present in Kadi I in parallel with the requirements set forth in ETS under which an act of EU law would be reviewed in the light of international law, it is possible to enquire whether Chapter VII of the UN Charter could bind the EU as forming part of customary international law. The provision contained in Article 3(5) TEU broadly refers to the relations of the European Union with the international community. Its aim is not to define the conditions under which the European Union is bound by international law. Hence, one cannot conclude from it that the European Union is bound by the UN Charter. Article 3(5) TEU seems, instead, to be referring to the principles of the UN Charter as part of principles of customary international law.

According to Article 38(1b) of the Statute of the International Court of Justice, international customary law is defined ‘as evidence of a general practice accepted as law’.[67] Hence, in order for a principle or norm to be part of international customary law two basic elements must be present, namely, the actual behaviour of States constituting the material facts and the ‘subjective belief that such behaviour is “law”’.[68] Regarding the material fact, evidence of a general practice can be found by examining the practice of States, for instance, by observing the States’ behaviours and interactions. Once a general practice has been established, it is then necessary to enquire the reasoning behind it, i.e. whether the States ‘recognize an obligation to adopt a certain course’.[69] This ‘belief that a state activity is legally obligatory’ is the opinio juris.[70]

Although certain provisions of the UN Charter fulfil the criteria for the existence of customary international law, being ‘to that extent universally binding’,[71] its Chapter VII does not meet the two necessary conditions. For instance, there neither is sufficient evidence of a general practice nor opinio juris. Therefore, Chapter VII of the UN Charter cannot be binding on the European Union as customary international law. Applying the requisites defined by the Court of Justice in ETS, the first one, which requires that the principles invoked are recognised as forming part of customary international law, was not satisfied.[72] Accordingly, the validity of an act of EU law was not to be assessed in the light of Chapter VII of the UN Charter.

3.3 Kadi I v ETS: a different approach and scope for dialogue?

3.3.1 Court of Justice’s findings

After a detailed analysis of the issue of the legal basis of Council Regulation 881/2002[73] and before assessing the alleged infringements of the rights to respect for property, to be heard and to effective judicial review,[74] the Court of Justice held that the European Union was based on the rule of law[75] and that neither the Member States nor the EU institutions could prevent the Court of Justice from reviewing the compliance of their acts with EU law, which was the ‘basic constitutional charter’.[76] Moreover, the Court of Justice stressed that fundamental rights formed an integral part of the general principles of EU law and that their respect was a condition of the lawfulness of acts of the EU.[77] Therefore, an international treaty could not affect the autonomy of the EU legal order and the obligations deriving from such a treaty could not prevent EU acts from being reviewed in the light of the constitutional principles of the European Union.[78]

3.3.2 A different approach

Gráinne De Búrca has classified the Court of Justice’s reasoning in Kadi I as ‘robustly dualist’,[79] due to its repeated emphasis on the separateness and autonomy of the EU from other legal systems and from the international legal order.[80] Gráinne De Búrca considered that the ‘strong pluralist approach’[81] that supports the Court of Justice’s decision contradicts the traditional embrace of international law by the European Union, that it carries risks for the EU and for the international legal order in the message it conveys, and that it risks damaging the image of the EU as a ‘virtuous international actor’[82] which is committed to the observance and the development of international law. While certain aspects of Gráinne De Búrca’s analysis are very convincing and will be considered, there are other possible interpretations of the Court of Justice’s decision.

The Court of Justice’s argument that it was not reviewing the validity of the underlying UN Security Council resolution, but merely the EU act in the light of EU law,[83] although legally accurate, cannot disguise the fact that it configured a de facto judgment about the listing procedure at the UN level.[84] The Court of Justice even asserted that the re-examination procedure before the Sanctions Committee does not offer guarantees of judicial protection,[85] so its declaration can be considered somewhat of a façade.

The Court of Justice should have engaged in the process of shaping customary international law.[86] It could have insisted on the respect for principles of due process and human rights protection under international law, even though these are neglected within the existing Security Council listing and de-listing procedures. The Court of Justice failed to address the issue of due process as being part of customary international law and also of which fundamental human rights are recognised as customary international law.

It seems that in this aspect the Court of Justice’s approach clearly differed from the one in ETS, and that in Kadi I it should have carried out an analysis of whether the principles invoked are recognised as forming part of customary international law and, if so, whether and to what extent they may be relied upon by individuals.[87] As proposed by Andrea Gattini,[88] the Court of Justice could have strengthened its conclusions by acknowledging customary international law with regard to the fundamental rights invoked, and there is no reason why the Court of Justice should not have recognised, at least in principle, a constitutional and fundamental status of those rights under international law, as well as under EU law.

It is true that the circumstances of Kadi I were very particular, ‘dramatic’[89] and novel, involving violations of fundamental rights and the effectiveness of the fight against terrorism, which could explain to a certain extent the lack of a clear mutual engagement at the level of international fundamental rights.[90] Nevertheless, ETS shows that the significance of Kadi I has not gone beyond the context of UN targeted sanctions. Furthermore, the engaging approach taken in ETS could have been applied in Kadi I and should be used in future cases alike. It seems that Gráinne De Búrca’s worries need not be confirmed.[91]

3.3.2 Scope for dialogue?

It is submitted that the Court of Justice’s ruling need not be read as a strong pluralist approach, and that it did not necessarily close the door to a dialogue à la Solange/Bosphorus[92]in future cases. The passage in Kadi I, in which the Court of Justice affirmed that the existence of the re-examination procedure could not ‘give rise to generalised immunity from jurisdiction within the internal legal order’[93] of the EU, could be read as leaving a possibility open for a future partial immunity of the United Nations, rather than as a rejection of even a theoretical possibility of a Solange-type deference.[94] As in Solange I, it could be said that for now, in cases relating to similar issues as in Kadi I, the Court of Justice will review every case so long as the listing and de-listing procedures do not provide a sufficient level of fundamental rights protection.

In Kadi I, in addition to opening the door to a future dialogue, the Court of Justice seems to have also defined its basic terms. The Court of Justice did so by identifying a set of principles which constitute the ‘very foundations’[95] of the EU legal order, namely, the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Articles 2 and 6 TEU. This core is to be read as absolutely inviolable, and all EU acts are susceptible of having their lawfulness reviewed by the European Union judicature as regards these principles, in particular, their consistency with fundamental rights.[96]

Maybe, in the future, the re-examination procedure before the UN Sanctions Committee could benefit from a limited form of immunity from judicial review within the EU legal order if it offered adequate protection for fundamental rights.[97] This seems to have been Advocate General Maduro’s intention when affirming that:

Had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order.[98]

The Court of Justice could arguably adopt an analogous approach to the one taken in Solange II or in Bosphorus.[99] This would mean that the Court of Justice would refrain from reviewing every case, due to a finding of equivalent protection of fundamental rights. Such finding would not be final and would be susceptible of review. Namely, the presumption would be rebutted if the very foundations of the EU legal order were endangered.

This absolute core rightly identified by the Court of Justice in Kadi I should not be affected in any case, even in the case of international treaties which bind the European Union. In the case of customary international law, there should not be, in principle, a conflict of this nature. However, in the unlikely event that such a conflict is suggested, the European Union must still strive to protect its core values.[100] Therefore, the Court of Justice highlighted an ultimate exception to the respect due by the European Union to international law.

 

3.3.3 Interim conclusion

The Court of Justice followed different approaches in Kadi I and ETS. However, they need not be interpreted as irreconcilable. It is argued that the Court of Justice’s decision in Kadi I left scope for dialogue between international law and EU law, although anticipating an ultimate protection of the core values of the EU legal system. The Court of Justice created its ‘own somewhat modified Solange doctrine and added an important safeguard against the violation of fundamental human rights in the global context’.[101] Were the Court of Justice to rule on a case similar to Kadi I in the future, it might be advisable for it to take a more reasoned approach as in ETS and to put into practice such a dialogic model.

4. Conclusion

ETS set out, positively, the relationship between international law and EU law, acknowledging the need for principles for addressing conflict and emphasising ‘universalizability’.[102] This judgment clarified and developed the requisites for the European Union to be bound by international treaties and customary international law and the conditions under which EU acts will be reviewed in the light of international law.

It is argued that ETS delineated suitable standards to revisit Kadi I in an attempt to help clarify the General Court’s and the Court of Justice’s findings. Kadi I, as far as the General Court’s approach is concerned, seems to have adopted an erroneous interpretation of previous case law in this context. Reading it in the light of ETS, it is submitted that the European Union is not bound by the obligations derived from Chapter VII of the UN Charter. In relation to the Court of Justice’s judgment in Kadi I, it missed the opportunity to shape the discussion of which fundamental rights may be considered to be part of customary international law. Nevertheless, as suggested, the Court of Justice did not totally reject a theoretical and future mutual engagement, but it should have been more explicit in that sense. Furthermore, Kadi I called attention to a desirable ultimate protection of the very foundations of the EU legal order in the relationship between international law and EU law. Thus, it seems that the door for a dialogic approach to international law remains open, which would confer certainty to individuals, strive for an adequate level of protection of fundamental rights, participate in the current debate over the accountability of the Security Council and reaffirm the European Union’s clear commitment to the promotion of the international rule of law.


* LicDir(Lisboa), LLM(Cantab), PhD candidate at the University of Cambridge. The author would like to express her gratitude to Dr Alicia Hinarejos and Dr Eva Nanopoulos for their helpful comments on earlier versions of this article. The author would also like to thank the KSLR anonymous reviewers.

[1] Consolidated Version of the Treaty on European Union [2010] OJ C83/01.

[2] Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/01.

[3] See, for example, Case C-286/90 Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp [1992] ECR I-6019, para 9 (thereafter Poulsen); Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-03655, para 46 (thereafter Racke).

[4] Charter of the United Nations [1945] 1 UNTS XVI.

[5] Generally, Paul Craig and Gráinne De Búrca, EU Law: Text, Cases and Materials (5th ed. Oxford University Press, Oxford 2011) 340-344.

[6] Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011] not yet reported.

[7] Case T-315/01 Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities [2005] ECR II-3649.

[8] Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351.

[9] This article agrees with Gráinne De Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51(1) HarvInt’lLJ 1, as regards the possible risks of the Court of Justice’s decision in Kadi I. Thereafter Gráinne De Búrca 2010.

[10] Referring that the Court of Justice’s decision in Kadi I could undermine the EU’s image of a ‘virtuous international actor committed to the international rule of law’, Gráinne De Búrca, ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values: Three Replies to Pasquale De Sena and Maria Chiara Vitucci’ (2009) 20(3) EJIL 853, 862. Thereafter Gráinne De Búrca 2009.

[11] Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2008] OJ L8. Thereafter Directive 2008/101.

[12] ETS (n 6) para 50.

[13] See, for example, Case C-61/94 Commission v Germany [1996] ECR I-3989, para 52; Case C-311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I-609, para 25; Case C-308/06 The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECR I-4057, para 42 (thereafter Intertanko).

[14] Intertanko (n 13) para 43 and ETS (n 6) para 51.

[15] Joined Cases 21-24/72 International Fruit Company NV and others v Produktschap voor Groenten en Fruit [1972] ECR 1219, para 7 (thereafter International Fruit Company). Intertanko (n 13) para 44 and ETS (n 6) para 52.

[16] ETS (n 6) para 53.

[17] ETS (n 6) paras 54-55 and Intertanko (n 13) para 45.

[18] See, for example, Joined Cases C-246/94, C-247/94, C-248/94 and C-249/94 Cooperativa Agricola Zootecnica S. Antonio and others v Amministrazione delle finanze dello Stato [1996] ECR I-4373, paras 18-19; Case C-317/05 G. Pohl-Boskamp GmbH & Co. KG v Gemeinsamer Bundesausschuss [2006] ECR I-10611, para 41; Case C-194/08 Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung [2010] ECR I-6281, para 45.

[19] Kyoto Protocol to the United Nations Framework Convention on Climate Change [1997] 2303 UNTS. ETS (n 6) para 73.

[20] Air Transport Agreement between the European Community and its Member States, on the one hand, and the United States of America, on the other hand [2007] OJ L134/4. Mentioned as Open Skies Agreement in the ETS judgment (ibid para 16). See ibid para 79.

[21] Convention on International Civil Aviation [1944] 15 UNTS 295.

[22] ETS (n 6) para 60.

[23] ibid paras 61-63.

[24] Article 351(1) TFEU indicates that the provisions of the Treaties shall not affect the rights and obligations of the Member States arising from treaties which they concluded before 1 January 1958 or before the date of the Member States’ accession.

[25] ETS (n 6) para 61.

[26] ibid para 62; International Fruit Company (n 15) para 18; Case C-301/08 Irène Bogiatzi, married name Ventouras v Deutscher Luftpool and Others [2009] ECR I-10185, para 25 (thereafter Irène Bogiatzi).

[27] Intertanko (n 13) para 49, ETS (n 6) para 63 and Irène Bogiatzi (n 26) para33.

[28] ETS (n 6) para 69.

[29] Intertanko (n 13) para 50 and ETS (n 6) paras 63, 71-72.

[30] ETS (n 6) paras 73-76.

[31] ibid para 77.

[32] ibid para 78.

[33] ibid paras 79-84.

[34] ibid paras 85-100.

[35] ibid paras 131-156.

[36] ibid para 157.

[37] Poulsen (n 3) paras 9-10, Racke (n 3) paras 45-46 and ETS (n 6) para 101.

[38] Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011] not yet reported, Opinion of Advocate General Kokott, paras 108-113.

[39] ETS (n 6) para 102.

[40] ibid para 103-105.

[41] ibid para 106.

[42] ibid para 107.

[43] ibid para 109.

[44] ETS (n 6) para 110 and Racke (n 3) para 52.

[45] ETS (n 6) paras 121-130.

[46] Gráinne De Búrca 2010 (n 9) 4 and note 11. Criticising the Court of Justice’s decision in Kadi I for being ‘strongly pluralist’, Gráinne De Búrca proposed a soft constitutionalist approach that could be generally used by the European courts to ‘mediate the relationship between the norms of different legal orders’.In accordance, soft constitutional approaches would ‘assume the existence of an international community, posit the need for common norms and principles for addressing conflict, and emphasize universalizability. They do not insist on a clear hierarchy of rules, but rather on commonly negotiated and shared principles for addressing conflict’.

[47] Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ L139. Thereafter Council Regulation 881/2002.

[48] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306.

[49] Declaration concerning the Common Foreign and Security Policy, as annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon [2010] OJ C83/01.

[50] General Court’s decision in Kadi I (n 7) paras 87-135.

[51] ibid para 178.

[52] ibid paras 181-183.

[53] ibid para 184.

[54] ibid para 192.

[55] ibid paras 185-207. International Fruit Company (n 15) paras 11-18. For a classification of the theory developed by the Court of Justice in International Fruit Company as theory of substitution see Takis Tridimas, ‘Terrorism and the ECJ: Empowerment and Democracy in the EC Legal Order’ (2009) ELRev 103, 110 and note 39: ‘This theory posits that, where under the EC Treaties the Community assumes powers previously exercised by the Member States in an area governed by an international agreement, the provisions of that agreement become binding on the Community’. Thereafter Takis Tridimas. For its classification as doctrine of functional succession, Robert Schütze, ‘The “Succession Doctrine” and the European Union’ in Anthony Arnull and others(eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, Oxford 2011), 475-481. Thereafter Robert Schütze.

[56] General Court’s decision in Kadi I (n 7) paras 215-225.

[57] The Court of Justice defined jus cogens as ‘a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible’, ibid paras 226-292.

[58] ibid para 192. Parallel with ETS (n 6) para 52.

[59] General Court’s decision in Kadi I (n 7) para 193.

[60] Parallel with ETS (n 6) para 61.

[61] General Court’s decision in Kadi I (n 7) paras 196, 198, 200, 203.

[62] International Fruit Company (n 15) paras 11-18. In contrast, Piet Eeckhout, ‘Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions: In Search of the Right Fit’ (2007) 3 EuConst 183, 191, 197, considering that the arguments put forward by the General Court as regards the analogy with International Fruit Company are persuasive. However, the author criticises the proposed judicial review in the light of jus cogens. It is disputable that the Court of Justice had jurisdiction to review a Security Council resolution and it ‘risks turning the UN Security Council into a supreme, unfettered legislature’, containing the ‘worst of both worlds’. Thereafter Piet Eeckhout.

[63] ETS (n 6) para 63.

[64] Similarly, Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights: the Case of Individual Sanctions (Oxford University Press, Oxford 2009) 231-232. Thereafter Christina Eckes.

[65] These, i.e. all the Member States being part of an international treaty and that treaty falling within an area where the EU has assumed exclusive responsibility, are the two elements of the European doctrine of functional succession identified by Robert Schütze (n 55) 481.

[66] Piet Eeckhout (n 62) 190.

[67] The Statute of the International Court of Justice of 26 June 1945 forms an integral part of the UN Charter. See, generally, Antonio Cassese, International Law (2nded. Oxford University Press, New York 2005) 153-169; Malcolm Shaw, International Law (6th ed. Cambridge University Press, Cambridge 2008) 72-93 (thereafter Malcolm Shaw); Andrew Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th ed. Oxford University Press, Oxford 2012) 57-63 (thereafter Andrew Clapham); James Crawford, Brownlie’s Principles of Public International Law (8th ed. Oxford University Press, Oxford 2012) 6-12. For an analysis of different approaches to the two elements of custom and of the difficulty to determine its existence, Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 AJIL 757.

[68] Malcolm Shaw (n 67) 74.

[69] Andrew Clapham (n 67) 57.

[70] Malcolm Shaw (n 67) 84.

[71] Christina Eckes (n 64) 229.

[72] ETS (n 6) para 102.

[73] Court of Justice’s decision in Kadi I (n 8) paras 121-236.

[74] ibid paras 331-376.

[75] Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, para 23.

[76] Court of Justice’s decision in Kadi I (n 8) para 281.

[77] ibid paras 283-284.

[78] ibid paras 282, 285.

[79] Gráinne De Búrca 2010 (n 9) 23.

[80] For example, Takis Tridimas (n 55) 111 classified the Court of Justice’s approach as ‘firmly a sovereignist one’.

[81] Gráinne De Búrca 2010 (n 9) 41.

[82] ibid 3.

[83] Court of Justice’s decision in Kadi I (n 8) paras 286-287.

[84] Siiri Aulik, ‘Judgment of the European Court of Justice in Kadi: Challenges to International Law, the United Nations Sanctions Regime and Fundamental Rights’ (2009/2010) 4 Acta Societatis Martensis 25, 40. Thereafter Siiri Aulik. The author added that although from a legal point of view the annulment of the EU implementing measure of the Security Council resolutions would not affect the validity of the resolutions in international law, that would be of ‘little practical value’ if the Member States were not free to implement the Security Council resolutions on their own.

[85] Court of Justice’s decision in Kadi I (n 8) para 322.

[86] As rightly pointed out by Gráinne De Búrca 2010 (n 9) 49.

[87] Gráinne De Búrca 2009 (n 10) 856, 860, added that Kadi I presented an ‘opportunity to engage in the evolving legal debate over the accountability of the Security Council, and to participate in shaping the legal and political context in which the Security Council exercises its powers under the Charter’.

[88] Andrea Gattini, ‘Joined Cases C-402/05 P & C-415/05 P, Yassin Abdullah Kadi, Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Judgment of the Grand Chamber of 3 September 2008, nyr’ (2009) 46 CMLRev 213 (note), 231-232.

[89] Gráinne De Búrca 2009 (n 10) 860.

[90] Some authors have focused on the issue of the substantive values in question in Kadi I, aiming to go beyond the ‘formal aspects of the lines of reasoning’ regarding the question of the relationship between the EU and international legal orders.See Pasqualle De Sena and Maria Chiara Vitucci, ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values’ (2009) 20(1) EJIL 193, 196, 227, where it is proposed that the ‘need to assess the substantive values at stake can be deemed the prevalent need emerging from the Kadi judgment’. Gráinne De Búrca 2009(n 10) 853, 856, passim, directly replied to these propositions, arguing that the formal and institutional reasoning in Kadi I regarding the ‘relationship between different systems in the transnational legal domain’ are also questions of substance, which are very important for several reasons, in particular, because the EU courts’ attitude ‘to the authority of international legal norms is a highly significant one as the EU develops its international identity and seeks a stronger global role’.

[91] Gráinne De Búrca 2010 (n 9) passim.

[92] BVerfGE 37, 271 2 BvL 52/71 Solange I-Beschluß (thereafter Solange I) and BVerfGE 73, 339 2 BvR 197/83 Solange II-Beschluß (thereafter Solange II); Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland ECHR 2005-VI (Bosphorus).

[93] Court of Justice’s decision in Kadi I (n 8) paras 321-322 (emphasis added).

[94] Such a rejection is argued by Daniel Halbertstam and Eric Stein, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46 CMLRev 19, 60. It is also mentioned by Siiri Aulik (n 84) 49.

[95] Court of Justice’s decision in Kadi I (n 8) paras 303-304.

[96] Robert Schütze (n 55) 472-473; Tarcisio Gazzini and Ester Herlin-Karnell, ‘Restrictive Measures Adopted by the EU from the Standpoint of International and EU Law’ (2011) 36 ELRev 798, 810-811 (thereafter Tarcisio Gazzini and Ester Herlin-Karnell); Christina Eckes, ‘Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?’ (2012) 18 ELJ 230, 241.

[97] Bjørn Kunoy and Anthony Dawes, ‘Plate Tectonics in Luxembourg: The Ménage à Trois between EC Law, International Law and the European Convention on Human Rights following the UN Sanctions Cases’ (2009) 46 CMLRev 73, 81-82.

[98] Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351, Opinion of Advocate General Maduro, para 54.

[99] Bosphorus (n 12) paras 155-156.

[100] Values of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Articles 2 and 6 TEU.

[101] Tarcisio Gazzini and Ester Herlin-Karnell (n 96) 811.

[102] ‘Universalizability’ as ‘the Kantian notion of decision-making that seeks validity beyond the preferences of the decision-maker’, Gráinne De Búrca 2010 (n 9) 39.