Mr. Kadi and Article 103 (A Poem by Prof James Crawford)

Professor James Crawford, the Poet-Jurist

Professor James Crawford, the Poet-Jurist

This is a poem by Professor James Crawford, who is one of the most famous and prominent international jurist in the world today, from the University of Cambridge, and was first presented during a lecture at the Hague Academy of International Law.

——————————

While wandering through a wadi

In the wastes of Saudi

I came across Mr Kadi

Cracking rather hardy.

.

I said ‘you must feel blue

at what they’ve done to you’.

He said to me ‘that’s true

but I’ve got the CJEU,

.

lacking whose authority

the P5 sorority

are now a small minority,

who’ve lost their old priority’

.

And so went Mr Kadi

Wondering down his wadi

‘it’s all because of me;

I killed article 103!”

——————————

Notes:

I know most of you wont understand what is going on in the poem, and why the hell is Prof. Crawford, who has authored tons of books and articles, made such a poem. Let me explain briefly.

1.  Kadi, or Sheikh Yasin Abdullah Ezzedine al-Qadi is some rich Arab guy. Two UN Security Council Resolutions (No. 1267 and 1333) declared him (among others) suspected to be one of those who financially supported terrorist groups and part of the network. Among the things ordered by the UNSC Resolution (under Chapter VII of the UN Charter, means that it gives binding legal obligations for the designated states to cooperate) was to freeze his assets, which was then done by the European Union through a policy.

2. Article 103 of the UN Charter reads as follows:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

Basically confirming that any member states of the UN should abide by the legal obligations rising out from the UN (including most especially UNSC Resolutions under Chapter VII) even if it means breaching other international legal obligations.

3. Kadi appealed to the EU policy freezing his assets. In essence, he said that such a policy (and therefore, also the UNSC Resolution backing it) violates his rights to fair trial and due process. Usually, freezing assets can only be done proceeding certain judicial measures where he would have rights to defend himself etc. His lawyers point out that the EU Policy (and UNSC Resolution) were in conflict with Kadi’s rights under International and European human rights law. Reading Article 103 of the UN Charter, the UNSC Resolution (therefore the EU Policy) would prevail.

4. After series of court and appeals, the final court (the European Court of Justice) granted Kadi’s appeal. The EU Policy was therefore revoked, and Kadi’s assets were no longer to be frozen.

5. Some scholars note that the ECJ’s reasoning was somewhat cheeky. They did not go down the path in arguing that the UNSC Resolution was Ultra Vires (beyond capacity), which is one of the controversial issues about the Security Council accountability. Instead, they simply said that the ECJ has nothing to do with the UNSC Resolutions, but they are simply judging whether or not an EU Policy is against the European Human Rights standards. There are some critics to this reasoning, as the legal obligations from the UN Charter cannot be simply dismissed, but this happened anyway.

6. The UNSC ended up removing Kadi from the terrorist list anyways.

I dunno, I just thought that this was fun to share. LoL

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