EU Law, International Law, and Economic Sanctions Against Terrorism: The Judiciary in Distress?

This Article seeks to examine the relationship between European Union (“EU”) law, international law, and the protection of fundamental rights in light of recent case law of the European Court of Justice (“ECJ”) and the Court of First Instance (“CFI”) relating to economic sanctions against individuals. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question of whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the UNSC, whether the ECJ has jurisdiction to review Community measures implementing such resolutions, and looks at the applicable standard of judicial scrutiny. It analyzes the contrasting views of the CFI, the Advocate General, and the ECJ, taking account also of the case law of the European Court of Human Rights (“ECtHR” or “Strasbourg Court”). Further, the Article explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UNSC but by the Community. The Article concludes by welcoming the judgment of the ECJ. While its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process while recognizing the importance of public security