Raccontare "Kadi" dopo "Kadi II": perché la Corte di giustizia dell’Unione europea non transige sul rispetto dei diritti umani nella lotta al terrorismo

The judgment delivered by the Court of Justice of the European Union (CJEU) on 18 July 2013 in the Kadi II case confirms that the EU judicature will not back down from protecting human rights in the fight against terrorism even in the face of strong opposition voiced by national governments, the EU political institutions other than the European Parliament, many distinguished scholars, and even segments of the EU judicature itself. The CJEU’s sticking to its pro-human rights judicial policy should be understood, not as a Eurocentric stance in defiance of the United Nations Security Council’s authority nor as a triumph of European constitutionalism, but as recognition that the EU institutions are still too imperfect to let them wield emergency powers that were never formally bestowed on them, and that stealthy conferrals of such powers cannot be judicially condoned. For the same reason the CJEU rightly rejected proposals aimed at diluting the standard of review of UN-backed anti-terror European regulations, proposals that would have turned the review into a moot exercise. Kadi II did not kill Article 103 (as in James Crawford’s EJIL: Talk! poem): it thwarted the attempt to enable the EU to play a role it cannot afford.