Constitutionalism
The Kadi Case
Sara, Alessia, Emmi, Johanna & Mette
28TH September 2001
The world is in panic after the 9/11 attacks. The UNSC
imposes a new regulation as a counter terrorism act,
binding for all member states.
The resolution includes smart sanctions as a measure
of impeding the work of potential terrorists, meaning
that whoever is suspect of terrorism will be blacklisted
without any notice and have his/her financial assets
frozen…..
Did they
really agree
to this?!!
Meanwhile, on Twitter….
Actual
George
Bush
quote
The European Council adopted the
regulation EC 881/2002 in order to
implement the resolution into EU law.
A regulation has direct effect on all EU
membership countries.
Soon, some people feel the immediate
consequences… Back to twitter…
Youssef Kadi is accused of having provided
funds for terrorists.
Kadi, feeling that his fundamental rights
have been violated, takes his case to the
European Court of Justice after having first
tried at the Court of First Instance.
Long story made short:
Advocate General Miguel
Maduro argues:
This guy
The EU should rule according to
the UN charter.
Fundamental human rights have
to be protected.
Following Maduro’s opinion,
The ECJ rules in favor of Kadi
and annuls against the initial
judgements of the CFI and
against the council regulation
881/2002.
This ruling caused quite a debacle.
Grainne de Burca (picture) argued that this
ruling questions UN authority and disrupts
the development of international law
NOT Happy
with this ruling.
This pessimism is not shared by
everyone
Turkuler Isiksel is content with the outcome of the
ECJ’s ruling, expecting to see a shift in the
priorities of the EU towards human rights.
SO happy!
The debate around the Kadi Case captures
the academic community investigating
constitutionalism.
No hacking of twitter accounts was
committed during the making of this slide
show.
All tweets are purely fictional.
Presentation Outline
1.
2.
3.
4.
5.
6.
Main research Question
Method
Clarifying questions and comments
Summary of main arguing points
Conclusion/Criticism
Looking ahead - Discussion
Research question
What happens when UN legislation
interferes with fundamental human
rights?
Method
•
•
•
•
Initial RQ
PBL & Funnel-Method
Comparative analysis: Artificial debate
Wish to make the debate accessible
What are the Consequences of the ECJ
making efforts to promote Human Rights?
• Kadi as occasion for ECJ to send a Message about…
• “the autonomy of the European legal order” (5) “
• a prioritisation of the status of fundamental rights norms within
the supranational constitutional architectonic” (552)
• Normative Power EU?!
NORMS
• Deviation from EU’s former role as “a
‘normative power’ committed to effective
multilateralism under international law”
(3)
• Intensification of normative power
possibility of “a new constitutional primacy
for fundamental rights” (556)
What are the Consequences of the ECJ
making efforts to promote Human Rights?
• ECJ’s motives for pluralist approach:
Authority Consolidation
Civil Disobedience
• Effects on domestic law
– “ […] local constitutional norms as a barrier to the
enforcement of international law” (de Burca: 49)
– “national courts to engage in similar acts against the ECJ´s
authority.” (Isiksel: 569)
What are the Consequences of the ECJ
making efforts to promote Human Rights?
• “accountability dilemmas of
international governance” (de Búrca 7)
Confused accountability
Clarified accountability
Is promotion of cosmopolitanism in terms of protecting the
individual disturbing fruitful collaboration of international
institutions?
• Cohen:
– Security matters have grown most important – bad
development
– Only illegitimate orders are disturbed - the individual
needs a court where he or her rights can be defended
– The cooperation becomes a goal in itself, disturbing the
proper focus --> global law and community values
rather international peace per se.
Is promotion of cosmopolitanism in terms of protecting the
individual disturbing fruitful collaboration of international
institutions?
• Isiksel:
– No - and the promotion of Human Rights is superior to
successful cooperation
– The ruling of the ECJ should not be interpreted as hostile as
De Burca argues, but it is an act of civil disobedience.
Is promotion of cosmopolitanism in terms of protecting the
individual disturbing fruitful collaboration of international
institutions?
• De Burca: YES
Has big faith in international cooperation
– Protection of Human Rights does not depend on
cosmopolitanism. The necessary institutions exist – they
only need reforms.
– “There is no reason why a carefully tailored set of
accountability principles should not be capable of
navigating successfully between the risk of defensive
practices arising from too high a standard of responsibility
and the risk of abuse arising from impunity” (10)"
Summary
Getting de Burca involved
• A need for strong international cooperation
• Positive outcome of Kadi; triggering reform
in the UNSC process
• Critique ECJ; not grounded in international
law
• UNSC:
– needs to respect procedural fairness
– flawed institution
– still performs an important role
Criticism
• Stepping back: The perception of
constitutionalism will shape the entire
debate
• Monist vs. Pluralist
• Different definitions – same debate?
Our journey from the funnel- to the
hour-glass method
Looking ahead
• Would you prefer the development of the
UN to head towards further
constitutionalism or would your prefer it to
scale back its powers?
– No wrong answers 
Thank you for your attention
Special thanks to
@GlobalGirl a.k.a Grainne de Burca
@IR-Queen a.k.a Antje Wiener
For inputs and assistance
© Constitutional Turn – Group 3 2012