Christina Eckes

EU Accession to the ECHR: Between Autonomy and Adaptation

After the European Unions accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EUs primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EUs accession for its Member States.

Sanctions Against Individuals – Fighting Terrorism Within the European Legal Order

As part of the international fight against the financing of terrorism both the United Nations and the European Union have been adopting restrictive measures against natural and legal persons not directly related to the power structure of a state since 1999 and 2001 respectively. These ‘individual sanctions’, imposed both on EU citizens and third country nationals, typically consist of asset freezes and travel bans. The Union in particular adopts two types of sanctions: (1) individual sanctions implementing lists of terrorist suspects drawn up by the UN Sanctions Committee, 1 and (2) sanctions based on EU-managed lists (autonomous EU sanctions regime). Both types of European sanctions against individuals have triggered wide-spread concern amongst human rights lawyers. (3) The Parliamentary Assembly of the Council of Europe went as far as calling the practice ‘unworthy’ of an international body such as the EU. (4) Besides arguments that they infringe substantive rights, a majority agrees that they do not comply with the procedural rights guaranteed in the European legal order. In December 2006, five years after the autonomous sanctioning regime of the Union was introduced, the Court of First Instance (hereafter, CFI) annulled for the first time an EC Council decision declaring a legal entity a terrorist organisation and freezing its assets (case of OMPI). The Court found fault with the fact that those listed could not exercise their rights of the defence, that they were not even notified of their listing or informed of the underlying reasons, and that they could not exercise their right to an effective judicial remedy.

The Kadi Case: Mapping the Boundaries between the Executive and the Judiciary in Europe

Counter-terrorism policy requires a delicate balance between important interests representing fundamental values of liberal democracies. This substantive issue, however, is preceded by the question who the final authority should be to decide where the tipping line of this balance is to be placed. What is the role of courts in finding this balance, and which decisions should be reserved for the executive? Journal available online.

The European Court of Justice and (Quasi-)Judicial Bodies of International Organisations

In a considerable number of areas, the European Union has developed its own state-like foreign policy. One important dimension is participation in international legal regimes. This is membership of international organisations and the signing of multilateral conventions. Because of the EU’s internal complexity participation in international legal regimes raises many issues of a constitutional nature. The Court of Justice has repeatedly been asked to scrutinise whether a particular case of participation is in compliance with EU law. In this regard, it is fair to say that the Court of Justice’s greatest concern has been the preservation of the autonomy of the EU legal order and more specifically the autonomous interpretation of EU law by the Court itself. Indeed, the Court has not so far accepted that it must be submitted to the authority of any external (quasi-)judicial structure. The two most prominent examples of international (quasi-)judicial bodies that have had and will continue to have a normative impact on the EU are the dispute settlement mechanism of the World Trade Organization and the European Court of Human Rights. As is well known the EU is a member of the WTO, while negotiations for accession to the European Convention on Human Rights are ongoing. The underlying questions are: How does, will and should the Court of Justice deal with the decisions of these two (quasi-)judicial bodies? What could be the reasons for the Court of Justice’s concern about the autonomy of the EU legal order?

The Legal Framework of the European Union’s Counter-Terrorist Policies: Full of Good Intentions?

Terrorism has become one of the main buzz words of our times. This has not left the European Union (EU)’s policies unaffected. Indeed, it is fair to say that counter-terrorism is one of the fastest developing policy regimes within the EU. This might be particularly surprising given that it is somewhat controversial whether the EU should play a role in the fight against terrorism at all. Certainly the particularities of the European legal order create additional obstacles to adopting a coherent counter-terrorist policy regime. In the last decade both the quality and the quantity of activities aimed to contain terrorism have increased tremendously within the EU. Today, the EU has developed its own counter-terrorist policies that include measures under the former Community pillar. In particular, the European Council’s ‘Action Plan’ to fight terrorism on 21 September 2001 marks the opening of a new chapter in the EU’s counter-terrorist activities. Part of this development is that the fight against terrorism has become one of Justice (AFSJ). This both reflects and shapes the EU’s choice of taking a criminal law approach to fighting terrorism. The Council described the objectives of the AFSJ as: (1) extending free movement of persons, protecting fundamental rights, and promoting EU citizenship while facilitating the integration of third country nationals (freedom); (2) fighting against all forms of organised crime (security); (3) guaranteeing European citizens equal access to justice and facilitating cooperation between Member States’ judicial authorities (justice). The aim of this chapter is twofold. First, it will highlight and discuss the specific problems of justification that the EU faces when fighting terrorism. If one accepts that some form of action aiming at containing terrorism is necessary, it is widely accepted that states should take a role in this. By contrast, a basic doubt remains whether the EU is the right actor to adopt a counter-terrorist policy regime. Secondly, this chapter will examine how the constitutional particularities of the European legal order shape the EU’s counter-terrorist policies. This includes comparing the EU’s counterterrorist policies to international and national counter-terrorist policies. Book available online.

The reflexive relationship between internal and external sovereignty

Sovereignty is deeply contested but omnipresent. The aim of this paper is not to offer a definitive conception of this multifaceted notion. It will rather identify three different dimensions that play a role in our understanding of sovereignty and use these as a basis to explain one particular aspect that has been underexplored in the academic debate: the link between internal and external sovereignty. Firstly, sovereignty describes a legal and political status; secondly, it refers to a factual condition; and thirdly, sovereignty entails a fiction that exists independently from factual or legal changes but that pervades our understanding. These three dimensions interlink and reinforce each other both internally (within the sovereign entity) and externally (in the international context). The legal status and the factual condition usually, but not necessarily, come together. While territory, people and authority are usually considered the factual basis for legal sovereignty, there are no necessary and sufficient factual conditions that will automatically result in the legal status of being sovereign. As a fiction, sovereignty goes beyond power or legal entitlement. It grasps the deeper emotional and cultural dimension, the fear of losing control and ultimately relevance. Since popular sovereignty has replaced royal sovereignty, the internal political status is rooted in the consent of citizens. This creates a particular link of responsibility in that it aims to ensure that for any action of a sovereign entity there is ultimately an individual or a group of individuals that can be held responsible. This paper will explore to what extent this more recent understanding of internal sovereignty is and also should be relevant for our understanding of sovereignty more broadly, including external sovereignty as a condition and a fiction, but ultimately also as a legal status. Indeed, the paper argues there are pragmatic and normative arguments in favour of understanding internal and external sovereignty as a continuum. This confronts the traditional view of international law that denies this connection between the internal and external dimension of sovereignty entirely.

Individuals in a pluralist world: The implications of counterterrorist sanctions

Counterterrorist sanctions against individuals are a prime example of pluralism. Multiple claims of constitutional authority (in resolutions of the UN Security Council, under European Union law, and national law) assume to govern the same legal situation. Choosing between these different authorities has great implications for the legal situation of individuals. This paper analyses the legal position of individuals facing this plurality of claims of constitutional authority and how their rights are largely dependent on the choices of domestic courts. Attention will be given not only to procedural and judicial rights but also to the broader implications of individual sanctions as an example of pluralism. What does it mean for popular sovereignty? Do patterns or guidelines emerge of how courts should address multiple claims of authority? The paper takes into account the latest amendments of the UN sanctioning procedure (Resolutions 1988 and 1989 (2011)).