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!

A defeat for international law and a victory for... international law. A treaty is still international law, no?
9.3.2008 10:58pm
great unknown (mail):
Forgive my ignorance, but doesn't an international treaty ratified by the Senate trump and individual's constitutional rights in this country?
9.3.2008 11:37pm
one of many:
Not under the new definition of international law which would under the previous definition scheme would have been supranational law (or was it supernational law?). International law is no longer the law between nations but has morphed to become law above nations. I'm not certain what the old international law is called these days besides treaty law, but I'm sure it has a new name.
A defeat for international law and a victory for... international law. A treaty is still international law, no?

9.4.2008 12:18am
advisory opinion:
"doesn't an international treaty ratified by the Senate trump and individual's constitutional rights in this country?"

No? Missouri v. Holland ("It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power"); Reid v. Covert ("This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. . . . It would be completely anomalous to say that a treaty need not comply with the Constitution").
9.4.2008 12:34am
Fat Man (mail):
International law, European Court of Justice, EC Treaty, what difference does it make? Idiots parsing garbage. GIGO.
9.4.2008 12:49am
anomdebus (mail):
Considering treaty ratification is a lower bar than amending the constitution, I can't see how it could be anything but..
9.4.2008 12:55am
advisory opinion:
In hierarchical terms, the 'last in time' rule (statutes or treaties, whichever come later, supersede the ones that came before) places treaties on a par with statute. It would be structurally odd if statutes had to conform to the Const. but treaties didn't have to. (This point was made in Covert but elided by my ellipsis above).
9.4.2008 1:33am
Hale Adams (mail):
I'm no constitutional lawyer (heck, I'm not any kind of lawyer), but Article Six of the Constitution seem clear enough:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Notice how treaties are mentioned after laws, and that treaties are made UNDER the authority of the United States. This suggests to my non-lawyerly mind that treaties have, AT MOST, the force of federal law.

Also, Article Five lays out the procedure for amending the Constitution, and NOWHERE are treaties mentioned as having any effect on the Constitution.

My two cents' worth....
9.4.2008 1:49am
martinned (mail) (www):
In case anyone cares, I think this ruling is wrong. It's a bit of a lengthy story, but put simply I think the EU, not being a country, was stuck between a rock (art. 103 of the UN Charter speaks of "any other international agreement", which in my book includes the EC treaty, and in the EC treaty itself, art. 307, says that the Treaty does not affect "agreements concluded before 1 January 1958", which includes the UN Charter), and the hard place of respect for human rights. For an actual state, the US approach is clearly correct, but for the EU I saw, and see, no way to legally escape this trap.

What the ECJ has done is redefine the UN system to grant more freedom for implementation than it does, and even then the question remains whether freedom to implement in accordance with national constitutional law includes the freedom not to implement at all. (par. 290-304) It then goes on to read a national-constitutional type red line into the Treaty, as an alternative basis for its holding (par. 305-330), which would have been entirely correct for treaties that have been ratified by the EC (there is precedent for that), but not for a treaty such as the UN charter that predates the EC and has been ratified by the Member States.

I'll take a look more closely later, to see if I can tell how the Court manages this conjuring trick.
9.4.2008 7:46am
Displaced Midwesterner:

Forgive my ignorance, but doesn't an international treaty ratified by the Senate trump and individual's constitutional rights in this country?

Short answer: no. A treaty trumps state laws and constitutions, and in theory at least, prior federal law.
9.4.2008 9:33am
Deoxy (mail):
It turns out that Europeans, too, will not allow international law to supersede their fundamental values. Good for them!

Now if they would only stop lecturing us to do as they SAY and not as the DO...

Nah, that's too much to hope for.
9.4.2008 12:26pm
PortlandLLM (mail):
I don't trust posts that use the word "legerdemain"!

This ECJ decision interests me for different reasons. It is a challenge to Sec Council process and is probably one of the bravest rebukes of a seemingly unchecked and uncheckable institution.
9.4.2008 1:56pm
martinned (mail) (www):
@PortlandLLM: Remind me, why is it again that the Security Council is "unchecked and uncheckable"? Aside from the Security Council black list, the EU also had a black list of its own, and in a series of cases it has already been established in recent years that people on that list have the right to prove they're not terrorists. No problem, judicial review under art. 230 EC.

But why is it so difficult to set up a review process at the UN level? Anyone?
9.4.2008 4:34pm

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