Check out the new ASIL Insight by Dr. Miša Zgonec-Rožej, analyzing a recent decision in which the European Court of Justice set aside the freezing of funds said to be linked to terrorism.
In the wake of the terrorist attacks of September 11, 2001, the U.N. Security Council set up a regime by which members are to sanction individuals and entities linked to al Qaeda and other terrorist networks. Under ECJ review in Kadi (ECJ 2008) was a Council of the European Union regulation that froze funds of 1 individual, Saudi national Yassin Abdullah Kadi, and 1 entity, the Sweden-based Al Barakaat Foundation. (credit for photo of ECJ building in Luxembourg)
Overruling the Court of First Instance below, the ECJ invoked the fundamental rights guarantees of European Community law to rule that it had jurisdiction to review the lawfulness of the governmental action -- that is, the EU measure implementing the Security Council guidelines, but not any action of the Security Council itself. Specifically, the EU measure infringed rights to have notice of adverse state action, to be hearing, to effective judicial review, and, ultimately, the right to property.
It is the 1st such action by any international or regional court, notes Zgonec-Rožej, who's served at the International Criminal Tribunal for the former Yugoslavia and at the International Court of Justice. Zgonec-Rožej points out that that compliance with the ECJ's judgment could entail the violation by European countries of Security Council measures. To avoid this, she recommends, the Security Council "might consider introducing necessary improvements, thereby avoiding undermining the authority and effectiveness of the anti-terrorist sanctions regime."