Controlling the most dangerous branch from afar: multilayered counter-terrorist policies and the European judiciary

This working paper discusses the most recent developments in the adoption and adjudication of UN and EU counter-terrorist sanctions against individuals. It explains how, at both levels, their adoption is characterized by a deep disregard for fundamental rights. Furthermore, the paper develops how the adoption of individual sanctions has led the EU institutions and the EU Member States into an impasse. It is impossible to give effect to UN sanctions without breaching European and, for the Member States, in principle also national law and international law. However, by not giving effect to UN sanctions the EU Member States act in conflict with their obligations under the UN Charter, and the EU institutions arguably act against the objectives of the European Treaties. Finally, the paper turns to individual sanctions in the light of the doctrine of separation of powers and the changing tasks of the judiciary when faced with multilayered governance. Courts are given the power to establish a hierarchy of norms with far-reaching effects which did not exist a priori.