Kadi v. Council and Commission

The United Nations (UN) Security Council issued regulations requiring its members to freeze the assets of any individual designated by the UN Sanctions Committee as being associated with the Al Qaeda network, Osama bin Laden, or the Taliban. Article 25 of the UN Charter requires members to “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Additionally, under Article 103 of the UN Charter, obligations under the Charter prevail over obligations under any other international agreement in the event of a conflict. The UN Sanctions Committee designated Yassin Abdullah Kadi, a Saudi Arabian national, and Al Barakaat International Foundation (Foundation), a Swedish entity, as individuals whose assets should be frozen. Pursuant to a European Union regulation implementing the UN Security Council regulations, assets belonging to both Kadi and the Foundation in the European Community were frozen. Kadi, the Foundation, and another individual, Ahmed Ali Yusuf, sought annulment of this regulation through actions brought in the European Court of First Instance (CFI). The CFI upheld the regulation as valid. Additionally, the CFI ruled that the European Community courts had no jurisdiction in principle to review the validity of a regulation adopted in implementation of a Security Council resolution, except when required to conform to overriding rules of jus cogens. Kadi appealed on two grounds. First, he argued that the CFI erred in its interpretation of international law as applied to his specific fundamental rights. This argument contained five separate claims. First, Kadi argued that the CFI erred by confusing the question of the importance of the obligations of the UN Charter among all the competing obligations for States, with the question of the binding effect of UN Security Council decisions. Second, Kadi argued that the CFI erred when concluding that obligations adopted under Chapter VII of the UN Charter automatically become law for members of the UN. Third, Kadi argued that the CFI erred by holding that it had no power to review the lawfulness of resolutions of the Security Council adopted under Chapter VII of the UN Charter. Fourth, Kadi argued that the CFI’s reasoning on jus cogens is incoherent and that no matters covered by jus cogens constitute an exception to the principle that resolutions of the UN Security Council may not be subject to judicial review and thus enjoy immunity from CFI jurisdiction. Finally, Kadi argued that the fact that the UN Security Council has not established an independent international court responsible for ruling on actions brought against individual decisions made by the Sanctions Committee does not mean that individual member States of the UN do not have the power to conduct their own findings of fact relating to the decisions and craft their own legal remedies.