Between a Rock and a Hard Place: The Kadi Decision and Judicial Review of Security Council Resolutions

Abstract

The U.N. Security Council sanctions regime, which targets Al-Qaeda and the Taliban, is
binding on U.N. Member States and has been implemented within the European Community
through European Council regulations. Questions about the lack of due process protections within
the regime were considered by the European Court of Justice in Kadi v. Council. The Court
annulled the implementing Council regulations, holding that it had jurisdiction to review the
regulations and that they infringed fundamental rights under Community law. The immediate
effect of this decision has been to create a direct conflict for EU Member States between their
obligations under the U.N. Charter and at the European level. This Article will consider the Kadi
decision in terms of the relationship between the U.N. Security Council and national and regional
legal orders, and the implications of binding U.N. Security Council resolutions being subject to
judicial review. It will be argued that it is, on balance, not desirable to subject binding U.N.
Security Council resolutions to judicial review at the national or regional levels, and that the
decision places Community members in a difficult position given the conflict between their
regional and international obligations.