Suspected Terrorists' Rights Between the Fragmentation and Merger of Legal Orders: Reflections in the Margin of the Kadi ECJ Appeal Judgment

In a time of non-conventional global threats evocatively characterized as "the age of terror," (1) the United Nations ("U.N.") and regional organizations are expected to address compelling security demands efficiently while at the same time preserving the fundamental human rights of alleged terrorists. How to achieve a fair compromise between such critical objectives is no new dilemma, as states have faced it individually in their endeavors against domestic terrorism. However, in the framework of international action, the impasse is compounded by the interplay between the multiple institutional actors and sources of law involved. In fact, the delegation by states of extensive mandatory powers to intergovernmental organizations has caused international law to pervade into municipal legal systems, and there is an increased use of international norms by domestic courts. (2) The law-making process within international organizations is no longer limited to the regulation of inter-state relations, but also results in the production of rights, obligations, and sanctions for private persons. (3) Perhaps in that sense international law can no longer be accurately described as the "law of nations," insofar as it is also becoming a law for individuals. The U.N. sanctions targeting private persons suspected of association with terrorist organizations of global reach illustrate the direct bearing of international activity on the life of national communities and individual subjects. An unexpected clash between U.N. collective security action and human rights standards has grown from the de facto expansion of the Security Council's post-9/11 prerogatives to an extent hardly foreseeable by the drafters of the U.N. Charter ("Charter"). Arguably, from a "policeman" of the international community of states, the Security Council ("Council") is developing into a world law-enforcement super-structure, using its mandatory Chapter VII powers to take measures immediately impacting the situation of private individuals rather than states. (4) We are witnessing an unprecedented merger of traditionally distinct legal orders, domestic and international. Nonetheless, supporters of monism should not be deluded: as emphasized below, the disorderly expansion of international law, through the multiplication of decision-making fora outside a coherent hierarchic system, often determines a sharp divide. Within this intricate normative context, the role of the judiciary in delimiting admissible qualifications of human rights by national and international authoritative bodies is an increasingly arduous one.