A Defeat for International Law and Victory for Progressive Values.

Today, the European Court of Justice delivered an 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 Council's 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 Council's 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 old story. It turns out that Europeans, too, will not allow international law to supersede their fundamental values. Good for them!