The Quest for Fundamental Rights Protection in the 'War on Terror'; from the Yusuf case to the Lisbon Treaty

Abstract: As the observer of international peace and security, the UNSC has the power to decide upon what constitutes of a threat to world peace. By adopting Resolutions, the UNSC creates binding decisions that must be pursued by all members of the UN. Article 103 UN states that the UN Charter prevail over any other treaty obligation, why the EU must follow the decisions of the UNSC due to the obligations of its Member States. Consequently, the EU must implement the UN Resolutions in EC Regulations which become legally binding upon its Member States. Moreover, the EU has the power to decide upon sanctions of its own through its Common Foreign and Security Policy. The primacy of the UN Charter can create complex situations for countries like Sweden, who is a member of the UN but also a Member State of the EU. Not only are the Member States legally bound by the EC Regulations, but they must also observe the decisions of the UNSC. This thesis has its starting-point in the judgment by the CFI in the Yusuf case where a Swedish citizen, Mr. Yusuf, and an entity based in Sweden, the Al Barakaat Foundation, have their financial assets frozen due to an EC Regulation implementing a UNSC Resolution. The practice of blacklisting individuals through targeted sanctions is a result of the fight against terrorism carried out by the UN. The practice of targeting individuals on blacklists has been an issue of much controversy since the individuals have no right to be heard or to examine the evidence against him. These fundamental rights that are protected both in the Swedish constitution as well as by the EU are constantly being neglected by the international community in the fight against terrorism. The case of the Swedish citizen Mr. Yusuf was no exception. The CFI judged that in fact the right to a fair hearing and judicial review is a fundamental right protected in the EU, but that it was unable to review the EC Regulation since it had merely implemented the UN Resolution. The supremacy of the UN Charter and the fear of underminig the role of the UNSC were key factors in the judgment. However, the CFI was capable of reviewing the Regulation from a perspective of compliance to peremptory norms of jus cogens. After having conducted a proportionality test, the CFI states that neither did the Regulation and the freezing of the funds breach the applicants' right to a fair hearing, nor the right to judicial review. The EU will accede to the ECHR when the Lisbon Treaty will come into force and hopfully the fundamental rights will have a more secure status in the Community legal system. The international situation also calls upon the members of the UN to demand the adherence to fundamental rights, or else the fight against terrorism will lose all credibility and the 'war on terror' will never be won.