This week the Court of First Instance of the Luxemburg based Court of Justice of the European Communities ruled that decisions of the United Nations Security Council take precedence over national constitutions, European law and even the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This ruling undermines the rule of law and the principles of the constitutional state and of democracy.

In a verdict of 21 September the five judges of the European Court of First Instance state literally that

“the right of access to the courts, a principle recognised by both Article 8 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966, is not absolute.”

The Court holds that even organisations (like the European Union) that are not members of the United Nations are bound by decisions of the UN Security Council. In a press release (pdf) the Court explicitly states:

“The Court of First Instance finds that, according to international law, the obligations of the Member States of the United Nations under the Charter of the United Nations prevail over any other obligation, including their obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms and under the EC Treaty. This paramountcy extends to decisions of the Security Council.

Although it is not a member of the United Nations, the [European] Community must also be considered to be bound […] Having regard to the rule of paramountcy set out above, those decisions [of the Security Council] fall, in principle, outside the ambit of the Court’s judicial review and the Court has no authority to call into question, even indirectly, their lawfulness in the light of Community law or of fundamental rights as recognised in the Community legal order.”

The Court’s verdict settled the case of one Ahmed Ali Yusuf, a Swede of Arab origin, whose funds had been frozen in November 2001 by the European authorities after a Sanctions Committee of the UN Security Council had put him on a list of alleged terrorists. Yusuf claimed that the sanctions are in breach of the Rome treaty, which states that EU law cannot lead to disciplinary actions against single individuals. He also asked to be allowed to prove his innocence in a court room.

His lawyer said that by refusing judicial review of Security Council decisions and refusing Yusuf the right to prove his innocence before a court “they [the EU] have imposed a system that denies people their legal rights. It is a pitiable verdict, and Ahmed Yusuf is a loser. But the biggest loser is the EU itself. [The verdict] is completely unacceptable [and] raises questions about the EU’s position as regards the rule of law.” Ahmed Ali Yusuf will appeal to the European Court of Justice.

PS by the editor: 

Though terrorism should be combated by the international community, Jos Verhulst pointed out that Wednesday’s verdict effectively implies that decisions of the Politburo of the Chinese Communist Party can gain precedence over the European Human Rights Convention. China is a member of the Security Council and its position can determine the outcome of Security Council decisions. What is the value of “human rights” which in the hierarchy of values rank lower than the preferences of the Chinese CP.