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lack of jurisdiction of the Community judicature to carry out any review of resolutions ofthe Security Council, even in the light of jus cogens.’‘281. In this connection it is to be borne in mind that the Community is based on the ruleof law, inasmuch as neither its Member States nor its institutions can avoid review of theconformity of their acts with the basic constitutional charter, the EC Treaty, whichestablished a complete system of legal remedies and procedures designed to enable theCourt of Justice to review the legality of acts of the institutions.’‘282. It is also to be recalled that an international agreement cannot affect theallocation of powers fixed by the Treaties or, consequently, the autonomy of theCommunity legal system, observance of which is ensured by the Court by virtue of theexclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has,moreover, already held to form part of the very foundations of the Community (…).’‘283. In addition, according to settled case-law, fundamental rights form an integral partof the general principles of law whose observance the Court ensures. For that purpose, theCourt draws inspiration from the constitutional traditions common to the Member Statesand from the guidelines supplied by international instruments for the protection of humanrights on which the Member States have collaborated or to which they are signatories. Inthat regard, the ECHR has special significance (…).’‘284. It is also clear from the case-law that respect for human rights is a condition of thelawfulness of Community acts (…) and that measures incompatible with respect for humanrights are not acceptable in the Community (…).’‘285. It follows from all those considerations that the obligations imposed by aninternational agreement cannot have the effect of prejudicing the constitutional principlesof the EC Treaty, which include the principle that all Community acts must respectfundamental rights, that respect constituting a condition of their lawfulness which it is forthe Court to review in the framework of the complete system of legal remedies establishedby the Treaty.’‘290. It must therefore be considered whether, as the Court of First Instance held, as aresult of the principles governing the relationship between the international legal order© Van Diepen Van der Kroef Advocaten page 92 of 99
under the United Nations and the Community legal order, any judicial review of theinternal lawfulness of the contested regulation in the light of fundamental freedoms is inprinciple excluded, notwithstanding the fact that, as is clear from the decisions referred toin paragraphs 281 to 284 above, such review is a constitutional guarantee forming part ofthe very foundations of the Community.’‘299. It follows from all those considerations that it is not a consequence of theprinciples governing the international legal order under the United Nations that anyjudicial review of the internal lawfulness of the contested regulation in the light offundamental freedoms is excluded by virtue of the fact that that measure is intended togive effect to a resolution of the Security Council adopted under Chapter VII of the Charterof the United Nations.’‘300. What is more, such immunity from jurisdiction for a Community measure like thecontested regulation, as a corollary of the principle of the primacy at the level ofinternational law of obligations under the Charter of the United Nations, especially thoserelating to the implementation of resolutions of the Security Council adopted underChapter VII of the Charter, cannot find a basis in the EC Treaty.’‘303. Those provisions (intended are: Articles 297 and 307 EU, addition of counsel)cannot, however, be understood to authorise any derogation from the principles of liberty,democracy and respect for human rights and fundamental freedoms enshrined in Article6(1) EU as a foundation of the Union.’‘304. Article 307 EC may in no circumstances permit any challenge to the principles thatform part of the very foundations of the Community legal order, one of which is theprotection of fundamental rights, including the review by the Community judicature of thelawfulness of Community measures as regards their consistency with those fundamentalrights.’‘305. Nor can an immunity from jurisdiction for the contested regulation with regard tothe review of its compatibility with fundamental rights, arising from the alleged absoluteprimacy of the resolutions of the Security Council to which that measure is designed to giveeffect, find any basis in the place that obligations under the Charter of the United Nations© Van Diepen Van der Kroef Advocaten page 93 of 99
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Against:1. The State of the Netherl
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- the motion by the State of the Ne
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options exist side by side and do n
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22. The Public Prosecutions Departm
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Explanation of ground of appeal 427
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eferred to the fact that the proces
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No legal relevant interest of the S
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The Article envisages a situation i
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The Hague District Public Prosecuto
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54. The District Court is evidently
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functional necessity. In that conte
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only in Germany. It was not dispute
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immunity of the UN has no absolute
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‘Darüber hinaus kann gefragt wer
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the purpose would become subservien
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exercise of their functions in conn
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) leads to a result which is manife
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90. The ICJ gave an Advisory Opinio
Page 42 and 43: of functional necessity for immunit
Page 44 and 45: 100. Even where the District Court
Page 46 and 47: 105. The District Court referred un
Page 48 and 49: necessary that change is there effe
Page 50 and 51: 115. It is also incomprehensible th
Page 52 and 53: consideration 3.3.6). Under legal c
Page 54 and 55: desirable that national courts do n
Page 56 and 57: evidence of the necessity of conduc
Page 58 and 59: The whole point of the Genocide Con
Page 60 and 61: prevent the genocide. Worse still,
Page 62 and 63: 137. It was known at the UN - and b
Page 64 and 65: 144. It is established as a result
Page 66 and 67: 151. The Basic Principles provide t
Page 68 and 69: Convention and the Geneva Conventio
Page 70 and 71: uling of the European Court of Huma
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Page 74 and 75: is in that connection incorrect. Th
Page 76 and 77: Ground of appeal 14178. The Distric
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Page 80 and 81: they rely for their effectiveness o
Page 82 and 83: Association et al. will below furth
Page 84 and 85: And also:‘Reaffirming their profo
Page 86 and 87: eason enjoys immunity from jurisdic
Page 88 and 89: the maintenance of international pe
Page 90 and 91: is liable to become overly responsi
Page 94 and 95: would occupy in the hierarchy of no
Page 96 and 97: 209. To conclude, the Association e
Page 98 and 99: Explanation of ground of appeal 172
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