[Volokh] Eric Posner: A Defeat for International Law and Victory for Progressive Values.

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Posted by Eric Posner:
A Defeat for International Law and Victory for Progressive Values.
http://volokh.com/archives/archive_2008_08_31-2008_09_06.shtml#1220493190


   Today, the European Court of Justice delivered an [1]opinion in the
   important case of Yassin Abdullah Kadi and Al Barakaat International
   Foundation v Council and Commission (a summary is here). The Security
   Council put Kadi on its list of suspected financiers of Al Qaida and
   the Council of the European Union froze his assets, as required by a
   Security Council resolution. Kadi challenged the regulation. The Court
   of First Instance ruled against Kadi. It pointed out that the EC
   treaty on which the Councilâs regulation was based provided that it
   would not supersede prior treaties of the EC members, including, of
   course, the UN charter, from which the Security Council derives its
   powers.

   The European Court of Justice, however, held that "the obligations
   imposed by an international agreement cannot have the effect of
   prejudicing the constitutional principles of the EC Treaty, which
   include the principle that all Community acts must respect fundamental
   rights, that respect constituting a condition of their lawfulness
   which it is for the Court to review in the framework of the complete
   system of legal remedies established by the Treaty." The Security
   Council does not give people like Kadi much process, and so a European
   Council regulation that freezes the assets of people on the Security
   Councilâs list offends European notions of due process.

   Nothing remarkable here for an American lawyer, who is accustomed to
   the idea that constitutional rules take precedence over international
   law. The European Court is a creature of the European treaty system,
   not the UN; what else is it to do when European law and international
   law conflict? However, Europeans have long complained of the American
   practice of declaring that all U.S. treaty obligations are limited by
   the U.S. Constitution. And it takes a bit of legerdemain to convert
   regional treaty obligations into a "constitution," but this is an
   [2]old story. It turns out that Europeans, too, will not allow
   international law to supersede their fundamental values. Good for
   them!

References

   Visible links
   1. http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-402/05
   2. http://www.jstor.org/sici?sici=0044-0094(199106)100%3A8%3C2403%3ATTOE%3E2.0.CO%3B2-V&cookieSet=1

   Hidden links:
   3. http://curia.europa.eu/en/actu/communiques/cp08/aff/cp080060en.pdf