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In the Kadi case, the European Court of Justice (ECJ) was required to decide whether a resolution of the United Nations Security Council have primacy over EU law. The court decided that no such primacy could be given to the UNSC resolution over the EU law. In essence, what the court has done is to accept the dualist approach to international law instead of adopting a monist approach, where it would have to consider which law would have primacy considering UN law and EU law to be part of the same legal system. Instead of adopting this approach, the court held that EU regulation transposing a UNSC resolution cannot be implemented if the procedure for adopting the resolution violated rights guaranteed by the EU law.
The judgment in Kadi is appreciable to the extent that the court has sought to protect the integrity of the human rights system in EU law from external interferences. By refusing to implement a regulation implementing a UNSC resolution on the ground that the procedure for the regulation’s adoption had breached the fundamental rights of the appellants, the ECJ managed to ensure that it did not allow the watering down of the human rights guarantees in EU law by giving primacy to the UNSC resolution. Doing otherwise would have also led to a precedent for future actions of similar kind. It should be noted here that the safeguards in EU law for human rights do happen to be strong and from a human rights perspective, it is desirable to ensure continued protections to the individuals. I can agree to the Kadi judgment in that it seeks to ensure continued protection of human rights. The ECJ was of the view that protection of fundamental rights goes to the very foundations of the EU legal order. However, the ECJ did not wish to review the lawfulness of the UNSC measures and held that such review of can only be done for EU measures. Therefore, the review by ECJ is to the extent of assessing whether the EU regulation transposing UNSC resolution was compliant with fundamental rights or not. Regardless of whether the ECJ reviewed the UNSC regulation’s compliance with fundamental rights regime or not, I would argue that there is a possible outcome of this decision in the context of application of international law in the EU, particularly the UNSC resolutions. The judgment of the court does not foreclose the possibility of application of UNSC resolutions with primacy provided that UNSC measures include sufficient safeguards for human rights. Or to put it in a converse form, any international measures that may violate EU law guarantees on fundamental rights can be considered to be inapplicable to the EU even under the law made by the EU. Therefore, international law primacy in the case of UNSC resolutions may still be relevant to EU law in light of Kadi judgment as the court did not decide on the issue of primacy. However, it would also be necessary that such international measures are compliant with the EU fundamental rights regime.
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