Balancing fundamental principles of the EU and the primacy of UN law: in search of a multilateral approach to the protection of human rights

Abstract

Which model should be applied to regulate the interaction between the UN and EU legal systems in the particular field of human rights, when international peace and security are at stake in the fight against terrorism? And how to reach a viable multilateral approach to the protection of said human rights? Starting from these questions this research focuses on the complex relationship between UN and EU law, particularly, with regard to individual counter-terrorism measures established by the UN Security Council and their implementation by the EU; a relationship that very much depends on the particular nature of the European Union as an international organisation, and the unique structure of its legal system. While a number of conflicts have aroused over the years between the two legal orders, the most relevant ones are related to the level of protection afforded to human rights and fundamental freedoms, regarded as ‘constitutional’ values of the EU. In fact, the most severe conflicts were sparked by the UN blacklisting system, aimed at preventing and combating the financing of transnational terrorism, and by the measures adopted at the EU level to give effect to such system. Solutions to these problems provided by a number of scholars and institutions failed to achieve a long-term balance between EU fundamental principles and the primacy of UN law, preventing the development of a multilateral and shared approach to the protection of human rights, while safeguarding international peace and security. Starting from the analysis of the well-known Kadi I case before the General Court and the Court of Justice, this research outlines the inadequacy of the monistic and dualistic approaches to settle the conflicts between UN and EU law in this particular field, proposing a more nuanced solution, based on a rigorous interpretation of the EU Treaties and of the UN Charter. In order to ground this approach, the second part of this research addresses Article 103 of the UN Charter, to maintain that it shouldn’t be interpreted as a rule of hierarchy, but rather as a particular kind of conflict avoidance clause. The final part of this work takes the diachronic evolution of UN counter-terrorism blacklists and their implementation by the EU as a case-study, to test the proposed solution and maintain that promoting the globalisation of EU fundamental values while safeguarding the primacy of UN law is – in fact – possible through the action and common attitude that EU Member States are bound to adopt at the UN level.