Towards a Normative Superiority of EU Human Rights Norms? - An Analysis of the Emerging EU Human Rights Hierarchy in the Light of Kadi and Al Barakaat

Abstract: The legal status of EU human rights norms is not clearly defined. The initial goals of the European Community were primarily of economic nature, and social and political rights were merely welcomed as secondary effects of the single market aim. Human rights concerns were at the end of the Second World War reserved for the Council of Europe and the founding of the European Convention on Human Rights and Fundamental Freedoms. Over the past decades, the importance of human rights protection within the EU legal order has however increased, and is now defined in Article 6 of the Treaty of the European Union as one of the founding principles of the EU. This development, which is almost exclusively based on the case law of the European Court of Justice (ECJ), has now been codified in the yet non-binding European Charter of Fundamental Rights and Freedoms (ECFR). In the much-debated Kadi and Al Barakaat judgment given by the ECJ on 3 September 2008, the status of EU human rights norms was once again at issue, this time in an international context. The appellants whose names had been included in a United Nations Security Council (UNSC) sanctions list, claimed that the EC regulation that was adopted in order to give effect to the UNSC resolution to which the list was annexed, breached several of their human rights, specifically their right to be heard, the right to effective judicial protection and the right to property. The case raises a number of interesting legal and political issues, but in essence it concerns the normative hierarchy of EU law versus International law and, effectively, the apprehension of the United Nations as a potential threat to EU human rights. While the Court of First Instance (CFI), notably cautious not to challenge the primacy of the UN Charter, considered that the political sensitivity of the case made it unfit for judicial review and subsequently settled for only a marginal review of the contested regulations' compliance with jus cogens, the ECJ firmly established that the effects of international obligations within the Community is to be determined by the Community Courts, by reference to Community law and with human rights as a benchmark. The judgment obviously reaffirms the status of the EU human rights norms as a fundamental principle of the EU legal order, and in my opinion, it is possible that the terminology used by the Court in its judgment can be interpreted as to elevate those norms to yet another level of normative superiority that trumps even International law I case of a conflict.