European Judicial Responses to Security Council Resolutions : A Consequentialist Assessment [1 ed.] 9789004345263, 9789004345256

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European Judicial Responses to Security Council Resolutions

European Judicial Responses to Security Council Resolutions A Consequentialist Assessment By

Kushtrim Istrefi

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Istrefi, Kushtrim, author. Title: European Judicial Responses to Security Council Resolutions : a Consequentialist Assessment / by Kushtrim Istrefi. Description: Leiden ; Boston : Brill/Nijhoff, [2018] | Includes bibliographical references. Identifiers: LCCN 2018047058 | ISBN 9789004345256 Subjects: LCSH: Human rights. | Civil rights. | United Nations. Security Council–Resolutions. | United Nations–Sanctions. | Economic sanctions, European. | Sanctions (International law) | United Nations. Charter. | Detention of persons. | Due process of law. Classification: LCC K3240 .I88 2018 | DDC 341.4/8–dc23 LC record available at https://lccn.loc.gov/2018047058

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. ISBN 978-90-04-34525-6 (hardback) ISBN 978-90-04-34526-3 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

For my family

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Contents Acknowledgments xi List of Abbreviations xiii 1 Introduction 1 A Setting the Scene 1 B Structure 3 C The Purpose of the Study 5 2 Security Council Resolutions Affecting Human Rights: Targeted Sanctions and Security Detentions 8 A Security Council in the New Terrain of Unconventional Threats 8 B Security Council Targeted Sanctions: Targeting Individuals in the Name of Peace 12 I The Evolution of Targeted Sanctions 12 II Applying Targeted Sanctions 14 I I I UN Institutional Avenues for De-​listing: the Focal Point and the Office of the Ombudsperson 20 I V Implementation of Targeted Sanctions by Member States 25 V Targeted Sanctions and the (Un)intended Consequences for Human Rights 28 VI UN Initiatives to Incorporate Human Rights in the Context of Targeted Sanctions 37 C Security Detentions Authorised by the Security Council 44 I Resolutions Authorising Prolonged Detention 44 II Displacing Human Rights through Indefinite Detentions 48 I I I The UN Human Rights Initiatives in the Context of Security Detentions 50 D Conclusions 51 3 Duty to Comply with Security Council Resolutions: the Force of the UN Charter 54 A The Universal Reach of Security Council Resolutions 54 B The Place of the UN Charter in UN Member States 56 I Are All Security Council Resolutions in Compliance with the Charter? 58 C The Place of the UN Charter in Non-​UN Members 60 I General Remarks 60

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The Expected Observance of UN Charter Obligations by Non-​UN Members 61 I I I The UN Charter in the EU Legal Order 65 D Conclusions 75 4 European Judicial Responses to Security Council Resolutions Affecting Individual Rights 77 A Modes of Engagement 77 B Subordination 81 I Al-​Jedda before the UK Courts 82 II Yusuf and Kadi before the EU Court of First Instance 84 I I I Subsequent case-​law of the EU Court of First Instance: Hassan v Council of the EU and Commission and Ayadi v Council of the EU 86 I V Nada before the Swiss Federal Tribunal 87 V Al-​Dulimi before the Swiss Federal Tribunal 88 VI General Observations 89 C Detachment 90 I Kadi I 91 II Kadi II 94 I I I What Triggers EU Disobedience: between Autonomy and Human Rights 97 D National Resistance through Constitutional Dualism 99 I Ahmed before the UK Supreme Court 99 E Harmonisation 106 I Al-​Jedda before the ECtHR 106 II Nada before the ECtHR: Harmonisation at the Level of Implementation of Security Council Resolutions 119 I I I General Observations on Al-​Jedda and Nada: the Two-​Level Harmonisation Approach 121 I V Al-​Dulimi before the ECtHR: a Temporary Stop in the Bosphorus and Back to Harmonisation 122 F Conclusions 134 5 The Effects of the European Jurisprudence: Human Rights, Due Process Reform and the UN Charter 135 A Raising Awareness: a Wave of Droit-​de-​l’hommisme in Times of Crisis 135 B Ensuring Genuine Protection of Human Rights? 139 I Implementation of Court Decisions 139

Contents

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II Mr Kadi 140 I I I Mr Ayadi 141 I V Mr Ahmed 142 V Mr Abdulrahim 144 VI Mr Nada 145 V I I Mr Sayadi and Ms Vinck 146 V I I I Mr Al-Jedda 149 Encouraging Security Council Due Process Reform? 150 I The Initial Impact of the European Courts—Contributing to the Establishment of the UN Office of the Ombudsperson 150 II Splitting Apart on Future Reform: between ‘One-​Size-​Fits-​All’ and Contextual Due Process 152 D Clarifying Security Council Authorisations on Security Detentions? 159 I The Limits of Security Detentions 159 II Remaining Challenges Concerning Security Council Resolutions Authorising Detentions 161 E Testing the Legal Force of the UN Charter? 164 F Conclusions 168

6 Conclusion 173 A Overview 173 B The Relevance of This Contribution for Future Engagement by European Courts with Security Council Resolutions 175 Bibliography 179 Index 201

Acknowledgments This book is a product of more than three years of PhD research conducted at the University of Graz, Lauterpacht Centre for International Law at the University of Cambridge, Max Planck Institute for Comparative Public Law and International Law, the Graduate Institute for International and Development Studies, The Grotius Centre for International Legal Studies at Leiden University and the European Court of Human Rights. I wish to acknowledge those who, during this period, took their time to provide academic guidance and support. I am very grateful to Professor Wolfgang Benedek and Professor Hubert Isak, the supervisors of my doctoral dissertation, for their valuable academic instruction and support. I am indebted to Professor Benedek for having given me an opportunity to partake in various projects and for his unconditional support to my academic career. I also wish to thank Professor Gerd Oberleitner, Christian Pippan, Lisa Heschl and Stefan Salomon for their continued support and hospitality while in Graz. I would like to extend my profound gratitude to Professor Marcelo G. Kohen for his expert guidance and stimulating discussions during a year of my research work at the Graduate Institute in Geneva. I would also like to thank Arianna Whelan, Pola Cebulak, Soledad Rodríguez Sanchez-​Tabernero, Ilia Siatitsa, María de la Colina, Luca Pasquet, León Arturo Castellanos Jankiewicz and Stefan Graziadei for their support and friendship. Very special thanks are due to Bethany Houghton for timely support with proofreading this book. I am thankful to Judge James Crawford, Professor Marc Weller, Professor Olivier de Frouville, Bjørn Kunoy and Moritz Moelle for taking their time to discuss first parts of my PhD research while at the Lauterpacht Centre in Cambridge. I also wish to extend my gratitude to Professor Armin von Bogdandi, Danae Azaria, Marjolein Schaap and Federica Favuzza for intellectual exchange at the Max Planck Institute in Heidelberg. I am also grateful to Judges Mārtiņš Mits, and Ledi Bianku, as well as Hasan Mutaf and Maia Titberidze from the European Court of Human Rights, for their encouragement during the last phase of completing my doctoral dissertation. I also appreciate the kind support extended to me by the staff of the library of the European Court of Human Rights. I would also like to thank the staff of the Riga Graduate School of Law, the International Law Department of the University of Pristina, the EU Law Department of the University of Zagreb, the The Grotius Centre in The Hague, as

xii Acknowledgments well as Emma Irving, Wouter Vandenhole and Janja Hojnik for having invited me to cooperate at different stages of my early academic life. I am thankful to brill | Nijhoff for excellent cooperation and patience in the course of completing this book. I  also wish to thank Ineta Ziemele and George Ulrich, the editors of International Law in Times of Crisis (oup, 2019), as well as the anonymous reviewers of the European Yearbook on Human Rights, Hague Yearbook of International Law and European Journal of Legal Studies for valuable comments on my publications that were subsequently developed as parts of this book. I am most grateful to my partner Zane, my daughter Ariana, my siblings and late parents for their love and support.

Abbreviations aqo Al-​Qaida and Taliban Order 2006 cfi Court of First Instance cjeu Court of Justice of the European Union comkfor Commander of Kosovo Force EC European Community echr European Convention on Human Rights ecj European Court of Justice ecsc European Coal and Steal Community ECtHR European Court of Human Rights eec European Economic Community EU European Union eulex European Rule of Law Mission in Kosovo gceu General Court of the European Union HM Her Majesty’s iccpr International Covenant on Civil and Political Rights icj International Court of Justice icty International Criminal Tribunal for the Former Yugoslavia ilc International Law Commission ildc International Law in Domestic Courts kfor Kosovo Force nato North Atlantic Treaty Organization ngo Non-​Governmental Organization oida Office of the Independent Designations Adjudicator pca Permanent Court of Arbitration srsg Special Representative of the Secretary General TO Terrorism Order 2006 UK United Kingdom UN United Nations unami United Nations Assistance Mission for Iraq unita Union Nationale pour l’indépendance Totale unmik United Nations Interim Administration Mission in Kosovo US United States vclt Vienna Convention on the Law of Treaties wto World Trade Organization

­c hapter 1

Introduction A

Setting the Scene

There are two areas in which Security Council resolutions contain explicit or implicit terms triggering interference with basic human rights, namely targeted sanctions and security detentions in UN authorised operations. Targeted sanctions –​Security Council measures such as asset freezes and travel bans against targeted individuals or entities  –​may interfere with, inter alia, the right to property, the right to private and family life and freedom of movement. Through the terms “all necessary means” and “all necessary measures”, security detentions in Security Council resolutions were employed by States as legal justification for prolonged detentions without judicial review. This interferes with, inter alia, the right to liberty and security of the person. Both measures of the Security Council, though ideated as temporary and preventive, result in having no time limits. For this reason, it is unsurprising that many targeted individuals blacklisted for more than a decade consider themselves in “financial Guantanamos”.1 Likewise, indefinite internments of individuals have resulted in de facto sentencing without them even knowing the reasons of arrest. Under both Security Council measures, individuals have scarce access to adequate review mechanisms. The limited mechanisms available for the review of such measures within the UN system led to individual complaints before national and regional courts, particularly in the European hemisphere, triggering tensions between human rights and international security. From the normative standpoint, all these cases trigger the application of the sources of law of the respective European legal order where the case is adjudicated and of the UN Charter from where the measures emanate. Almost any decision of the European courts on Security Council targeted sanctions and security detentions triggers fundamental questions not only as regards human rights and international security but also of the place of the UN Charter in national and regional legal orders, the powers of the Security Council, the unity

1 See Press Release of Carter-​ Ruck of 1 December 2014  accessed 6 May 2018.

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2 Chapter 1 of the international legal order, regionalism and autonomy of treaty regimes, judicial activism, treaty interpretation, hierarchy of norms, to name a few. This book addresses only a few of the aforementioned dynamics. In particular, it analyses the normative and policy implications of European jurisprudence on Security Council resolutions. To that end, it develops a taxonomy on modes of judicial engagement with Security Council resolutions and examines the multiple effects of their decisions as regards genuine protection of human rights, sanctions decision-​making reform and the universal character and primacy of the UN Charter. The study takes into account two important developments in Europe, first the place of human rights and second the legal nature of the EU legal order. They are relevant for any critical examination of the relationship between European human rights and international security. As regards the first issue, it has been argued that human rights have achieved “an iconographical position in European culture”.2 According to Joseph Weiler, in Europe [w]‌e raise the mirror of human rights, as evidenced by both national and transnational instruments before our collective face, and smile with satisfaction: Yes, WE are the fairest of them all.3 It is evident that this wave of droit de l’hommisme guided the European courts to seek accommodation of human rights even during challenging security circumstances.4 Although human rights instruments have become the subject of attack by an ever-​growing number of populist governments in Europe, it is too early to suggest that human rights in Europe are in decline.5 Second, the EU, according to its courts, is an autonomous legal order barely affected by any foreign law. This development brings uncertainty on the way international law and Security Council resolutions are accommodated in the EU legal order. 2 Joseph H. H. Weiler, ‘Human Rights, Constitutionalism and Integration: Iconography and Fetishism’ (2001) 3 International Law FORUM du droit international 227. 3 ibid. 4 See e.g. Case 10/​04437 Mothers of Srebrenica et al v State of The Netherlands and the United Nations Judgment of the Supreme Court of 13 April 2012; Case C/​09/​295241/​HA ZA 07-​2973 Judgment of The Hague District Court of 17 July 2014; Kirsten Boon, ‘Mothers of Srebrenica Decision: Dutch Court holds The Netherlands Reponsible for 300 Deaths in 1995 Massacre’, Opinio Juris, 17 July 2014, . accessed 6 May 2018. 5 Thorbjorn Jagland, ‘Don’t Caricature Europe’s Court’ The New York Times, 12 December 2016.

Introduction

3

B Structure This book is structured in six parts. Following the introductory remarks, ­chapter 2 maps the areas where Security Council resolutions affect individual rights and explains the processes where such interference takes place. This is examined in four chapters. Section A examines the willingness and ability of individuals to threaten international security, and the mandate of the Security Council to respond to such threats. Particularly in the areas of terrorism, individuals acting as ‘lone wolves’ or as members of non-​State groups have proved the ability to threaten international security, and thereby challenge the very raison d’être of the UN Organisation.6 The changes in the nature of threats have triggered the Security Council to adopt measures directly or indirectly affecting individuals associated with such threats. Sections B and C examine targeted sanctions and security detentions for interference in human rights. Section B outlines the evolution of targeted sanctions as well as mechanisms established to apply and implement them. In addition, it depicts the flaws of the system, possibilities of misapplication of measures, particularly with regard to counter-​terrorism, and their significant effects on human rights. This part identifies some of the human rights affected by targeted sanctions and discusses the UN initiatives to improve human rights and due process. In the same structural order, section C analyses the human rights implications of security detentions carried out under UN authorisations. It examines what terms of Security Council resolutions are employed to justify security detentions and whether such terms provide for displacement of human rights. Furthermore, it describes the institutional avenues available to review detention complaints and the UN reforms in this area. Section D wraps up with concluding remarks. Overall, ­chapter 2 provides a normative and institutional analysis of Security Council resolutions affecting individual rights. This part focuses on only the relevant terms of Security Council resolutions regarding targeted sanctions and security detentions and explains what provisions of international human rights treaties they affect. With regard to institutions, it scrutinises organs and mechanisms mandated to apply Security Council measures and institutions working on human rights reform. It provides an overview of what the law and institutions are and not how they ought to be. Chapter 2 does not examine other areas where the work of the Security Council may undermine human rights. 6 UNSC Res 2249 (20 November 2015) UN Doc S/​RES/​2249, fifth preambular paragraph.

4 Chapter 1 After having identified problematic areas of Security Council interference with individual rights, and the limited UN institutional avenues available to review individual complaints, Chapter 3 examines to what extent States and regional organisations are obliged to comply with Security Council decisions. In this light, it examines the legal effects of the UN Charter for members and non-​members of the UN. This part provides a normative analysis of the UN Charter. It also provides an analysis of State practice regarding the application of UN Charter obligations. A specific section is dedicated to analysing the EU legal order, as a non-​UN Member. This assessment is made by examining claims regarding EU autonomy, the constitutional character of EU treaties and the views that EU institutions and Member States share regarding the place of the UN Charter in the EU legal order. Chapter 4 examines the jurisprudence of European national and regional courts on Security Council resolutions regarding targeted sanctions and security detentions. The jurisdictional choice was made for the following reasons. Firstly, national and regional European courts are guided by similar, if not identical, sources of human rights law which allows the analysis to sidestep issues of differences in substantive rights. Furthermore, it is common that a case, including those concerning Security Council resolutions, starts at the national level and ends at the regional level, thereby creating a practice for other courts in Europe. By analysing the similarities and differences of judicial engagement with Security Council resolutions, ­chapter 4 develops a taxonomy of approaches or modes of engagement. It identifies four different modes of engagement: the subordination approach, detachment, resistance through national dualism and the two-​level harmonisation approach. Each approach or mode of European judicial engagement with Security Council resolutions is examined for techniques of treaty interpretation and motives to reach a certain outcome. Concluding remarks in c­ hapter 4 summarise the key challenges of these responses. Chapter 5 examines the effects of the European jurisprudence in four areas. The first area of focus is whether the European jurisprudence has had an impact in ensuring real and practical respect for human rights for the petitioners. The findings are based on the information provided by legal representatives of the applicants, Government institutions, media and other reports. Second, whether the European jurisprudence has had an impact in encouraging the Security Council’s due process reform will be examined. This is measured by, among others, analysing how the UN institutions working on due process reform see the reasoning of European court decisions. The third effect to be considered is whether the judicial engagement in Europe has clarified of Security

Introduction

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Council authorisations on security detentions. The findings consider whether the interpretive tools used to read resolutions restrictively have caused, or will cause, the Security Council to be more explicit if it wishes States to set aside human rights. The final effect of European jurisprudence to be considered is whether the modes of interpretation of international law by the European courts encroach on the work of the Security Council and weaken the legal effects of the UN Charter. This is analysed by observing the discourse regarding the legal force of the Charter in the aftermath of European decisions concerning Security Council resolutions. The assessment in ­chapter  5 is consequentialist7 in nature as it aims to (i)  identify the ultimate value and (ii) encourage actions that maximise the value in question.8 The present contribution considers that the genuine protection of human rights is the ultimate value, and it presumes that different actors who engage with Security Council targeted sanctions and security detentions are proponents of this value. In terms of the actions to be encouraged, it views that actions that advance sanctions decision-​making reform and limit the use of Security Council resolutions as a legal basis for indefinite security detentions are the adequate actions.9 Chapter 6 highlights the key findings of this study and identifies areas where this research could contribute to future engagement of European courts with Security Council resolutions. C

The Purpose of the Study

Sir Hersch Lauterpacht argued, decades ago, that ‘international courts not only give a decision in a particular dispute, but that they also are fundamental to 7 For the purpose of this contribution, consequentialism is not employed to adhere to or engage with a strict theory of moral philosophy. It is applied, as Paul Hurley calls it, ‘beyond philosophy consequentialism’ in the area of contemporary jurisprudence to assess, inter alia, the right strategy taken to maximise the overall benefit. As Justice Breyer argues, the focus on consequences ‘allows us to gauge whether and to what extent we have succeeded in facilitating workable outcomes’. See Paul Hurley, Beyond Consequentialism (oup 2009) 2; Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Alfred A. Knopf 2005) 115. 8 Paul Hurley, ‘Consequentialising and Deontologising: Clogging the Consequentialist Vacuum’ in Mark Timmons (ed), Oxford Studies in Normative Ethics: Volume iii (oup 2013) 127. 9 The assessment of policy effects of the European jurisprudence on targeted sanctions and security detentions through the notion of consequentialism is not applied to refuse the existence of other ultimate values, or actions that could maximise them. Furthermore, the author rejects a radical reading of consequentialism by which any action or policy that achieves the desired aim could be justified.

6 Chapter 1 making international law a more complete and effective law’.10 Philippe Sands maintained that international courts should also contribute to raising public consciousness and contribute to offering working, effective solutions that are backed up by the special authority of the law.11 This role of international courts applies, at times, also in the context of national and regional courts. This can be said with regard to cases where they respond to the issues of international community interest,12 or where they examine, even if indirectly, laws or policies affecting other legal regimes.13 Such judicial responses may have a twofold purpose. According to Dworkin, by applying arguments of principle, courts aim to establish an individual right and, by applying arguments of policy, they aim to establish a collective goal.14 While the arguments of principle may be relevant to the individual concerned and the domestic legal order, the arguments of policy may aim to reach other legal regimes or the international community as a whole. The European jurisprudence on Security Council resolutions and human rights has such legal and policy significance, as the measures triggering the respective proceedings were rooted in another legal order, namely, that of the UN. Therefore, through their findings in such cases, the European courts have conveyed certain messages to the UN and other legal regimes. They have also contributed to a debate on the value-​based system of international law, given that the proceedings concerned international security and human rights.15 This book is grounded on the foregoing premises as regards the role of European courts and wider effects of their jurisprudence in cases concerning

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Hersch Lauterpacht, The Function of International Law in the International Community (Clarendon Press 1933) 423–​425. Philippe Sands, ‘Climate Change & Rule of Law’ (lecture held at the UK Supreme Court, 17 September 2015)  . C/​09/​295241/​HA ZA 07-​2973 (The Hague District Court 2014) ; C/​09/​456689 /​ HA ZA 13-​1396 (The Hague District Court 2015)  . Al-​Jedda v The United Kingdom App No 27021/​08 (echr, 7 July 2011); Nada v Switzerland App No 10593/​08 (echr, 12 September 2012); Joined Cases C-​402/​05 P and C-​415/​05 P Kadi and Yusuf v Council and Commission [2008] ecr i-​6351. Ronald Dworkin, ‘Hard Cases’ [1975] 88 HLR 1057, 1067. See Erika de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611; Erika de Wet, ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law:  Evidence of Constitutionalisation?’ (2009) 5 European Constitutional Law Review 284.

Introduction

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Security Council resolutions affecting individual rights. In this vein, this study aims to address three broad questions. First, what is the mode of engagement of European courts with Security Council resolutions affecting individual rights? Second, what normative and policy considerations guide the European courts when deciding such cases? Third, when the European courts decide such cases, do they have any effect and if so in what areas? In particular, do they (i) ensure the realisation of real and practical human rights of individual applicants, (ii) encourage due process reform in the Security Council, (iii) limit the use of Security Council authorised indefinite detentions, and (iv) effect the implementation of UN Charter obligations at the national and regional legal orders. These research questions are examined in a comprehensive study by taking into account regime interactions in the plurality of legal orders.

Chapter 2

Security Council Resolutions Affecting Human Rights: Targeted Sanctions and Security Detentions This part of the book maps the areas where Security Council resolutions affect individual rights and explains the processes of how such interferences occur. In line with the focus of the book, it contains the analysis to resolutions regarding targeted sanctions and security detentions. The part provides both a normative and institutional analysis of resolutions affecting individual rights. A

Security Council in the New Terrain of Unconventional Threats

The maintenance of international peace and security, as enshrined in Article 1 of the UN Charter, is a pivotal purpose of the establishment of the UN Organisation. Its underlying rationale was the desire of States to agree upon common rules that promote peace and security in the aftermath of the two devastating World Wars.1 To realise this universal and ambitious project, the UN Charter vests the Security Council, a principal organ of the UN, with the primary responsibility to take measures deemed necessary for the maintenance or restoration of international peace.2 To that end, the Security Council is authorised to take a wide range of coercive and non-​coercive measures. Article 39 of the UN Charter provides that [t]‌he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. This provision, according to its language and the travaux préparatoires, empowers the Security Council with wide discretion in determining whether a

1 Charter of the United Nations, 24 October 1945, unts xvi, preamble. 2 ibid, Article 24; See also Hans Kelsen, The Law of the United Nations: a Critical Analysis of its Fundamental Problems (Stevens & Sons, 1950) 283.

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threat to the peace, a breach of the peace, or an act of aggression exists.3 When the Security Council makes such a determination,4 it enjoys discretion in the choice of measures it can employ. Under Article 41, it “may decide what measures not involving the use of armed force are to be employed to give effect to its decisions”. The measures under Article 41 include but are not limited to, arms embargoes, travel bans and asset freezes.5 Providing that non-​military measures are inadequate or inefficient, Article 42 empowers the Security Council to use force as may be necessary to maintain or restore international peace.6 Security Council measures for the maintenance of international peace were primarily conceived for States.7 At the time the of adoption of the UN Charter, States were considered to be the main, if not the only subject capable of endangering international peace and security.8 This is unsurprising, as the threat

3 David L. Bosco, Five to Rule Them All: The UN Security Council and the Making of the Modern World (Oxford University Press, 2009); Report of Mr Paul-​Boncour, Rapporteur on Chapter VIII, Section B, United Nations Conference on International Organization, 10 June 1945, Doc 881 III/​3/​46, 505; Nico Krisch, ‘Article 39’ in Bruno Simma et al. (eds), The United Nations Charter: A Commentary (3rd edn, Oxford University Press, 2012) 1274–​1275; W. Michael Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87 American Journal of International Law 83, 93–​4; Yoram Dinstein, War, Aggression and Self-​Defence (3rd ed, Cambridge University Press, 2001) 251; Terry D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers Under Chapter vii of the Charter’ (1995) 26 Netherlands Yearbook of International Law 33, 42; Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (University of Pennsylvania Press, 1996) 172, 240, 241. 4 While the Charter grants the Security Council the right to act for the maintenance and/​or restoration of peace, the Council is under no obligation to do so even if it considers that a threat to or breach of the peace exists. See Nico Krisch, ‘Article 39’ (n 3) 1275. 5 See e.g., UNSC Res 864 (15 September 1993) UN Doc S/​RES/​864 on Angola; UNSC Res 1521 (22 December 2003) UN Doc S/​RES/​1521 on Liberia; UNSC Res 1988 (17 June 2011) UN Doc S/​RES/​ 1988 para 1; UNSC Res 1989 (17 June 2011) UN Doc S/​RES/​1989 para 1; UNSC Res 1467 (18 March 2003) UN Doc S/​RES/​1467; UNSC Res 1540 (28 April 2004) UN Doc S/​RES/​1540. 6 Article 42 of the UN Charter provides “[s]‌hould the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations”. 7 The Security Council has employed military and non-​military measures to secure international peace in, inter alia, UNSC Res 144 (19 July 1960) UN Doc S/​RES/​144; UNSC Res 145 (22 July 1960) UN Doc S/​RES/​145. 8 Noah Birkhäuser, ‘Sanctions of the Security Council Against Individuals  –​Some Human Rights Problems’ (European Society of International Law 2005)  accessed 6 May 2018.

10 Chapter 2 to international peace was traditionally triggered through the threat or the use of force by one State against another State. Since the end of the Cold War, however, we have witnessed the emergence of new threats to international peace and new actors causing them, thereby adding difficulties for the Security Council to exercise its mandate under these new circumstances.9 In 2004, the Security Council determined that situations of early emergence of internal armed conflict might constitute a threat to the peace and security.10 Taking note of this development, the European Court of Human Rights observed [t]‌he notion of a “threat to the peace” within the meaning of Article 39 has evolved to include internal conflicts which threaten to “spill over” or concern serious violations of fundamental international (often humanitarian) norms. Large scale cross border displacement of refugees can also render a threat international.11 The Security Council has further considered that even epidemics may constitute a threat to international peace and security.12 In Resolution 2177, the Security Council determined that “the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security”.13 In relation to hiv/​a ids, the Council also held that the pandemic “may pose a risk to stability and security”.14 In the list of modern challenges to international peace, however, terrorism presents “one of the most compelling threats of our times”.15 The Security Council has reaffirmed that “terrorism in all forms and manifestations constitutes one of the most serious and unprecedented threats to international

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For a classification of situations that may trigger a threat to the peace, breach of the peace, or act of aggression, see Nico Krisch, ‘Article 39’ (n 3) 1280 -​ 1294. To this effect, see UNSC Res 1529 (29 February 2004) UN Doc S/​RES/​1529 on Haiti. Behrami v France, Saramati v France, Germany and Norway App No. 71412/​01 & 78166/​01 (ECtHR, 2 May 2007) para 23. See also Maurizio Arcari and Paolo Palchetti, ‘The Security Council as a global ‘health-​ keeper’? Resolution 2177 (2014) and Ebola as a threat to the peace’, (Questions of International Law 2014)  accessed 6 May 2018. UNSC Res 2177 (18 September 2014) UN Doc S/​RES/​2177, fifth preambular paragraph. UNSC Res 1308 (17 July 2000) UN Doc S/​RES/​1308, eleventh preambular paragraph. Andrea Bianchi, ‘Security Council’s Anti-​terror Resolutions and their Implementation by Member States’ (2006) 4 Journal of International Criminal Justice 1044, 1044–​5.

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peace and security”.16 Guided by violent extremist ideologies, terrorist groups have attacked civilian, religious, cultural, diplomatic, military, trade and other sites. Their violent tactics and barbaric executions terrorised international society as a whole.17 In this light, terrorist activities wherever committed became a concern of the international community as a whole. The Security Council has stated that the global threat of terrorism “affects all regions and Member States, even those far from conflict zones”.18 Significantly, this violent enterprise is exercised by non-​State actors. In this vein, terrorism has demonstrated the possibility that individuals acting alone or as part of so-​called “violent non-​State actors”19 may present a serious threat to international peace. The Security Council has explicitly recognised the ‘capability’ of terrorists to endanger international peace, that is, the very raison d’être of the UN Organisation.20 While recognising the change in the nature of threats, the Security Council was ill prepared to counter some of these traditional and unconventional threats, lacking ready-​made effective measures and policies. The UN High-​ Level Panel on Threats, Challenges and Change has already noted that “[t]‌he attacks of 11 September 2001 revealed that States, as well as collective security institutions, have failed to keep pace with changes in the nature of threats”.21 To keep up with some of these changes and coordinate global responses to, inter alia, terrorism, the Security Council has had to act not only as a peace enforcer but also as a world government.22 It was mobilised to adopt policies quickly and apply harsh measures. However, these measures, applied particularly against individuals and non-​State actors, came at a significant cost 16 17

1 8 19 2 0 21 22

UNSC Res 2249 (20 November 2015), UN Doc S/​RES/​2249, fourth and seventh preambular paragraphs (emphasis added). The Australian Prime Minister Tony Abbott described terrorism as a death cult. See Hellen Lock, “Tony Abbott brands Isis a ‘death cult’ –​and says Australia will send military force to fight extremists”, The Independent, 20 February 2015, accessed 6 May 2018. UNSC Res 2249 (n 16) fifth preambular paragraph. For the purpose of this contribution, the term “violent non-​State actors” follows the definition employed by Daphne Josselin and William Wallace (eds), Non-​State Actors in World Politics (Palgrave, 2001) 3. SC Res 2249 (n 16) para 1. Report of the High-​Level Panel on Threats, Challenges, and Change, ‘A More Secure World, Our Shared Responsibility’ UN Doc. 1/​59/​656 of 2 December 2004, para 16. Andrea Bianchi, ‘Security Council’s Anti-​terror Resolutions and their Implementation by Member States’ (n 15) 1045.

12 Chapter 2 for human rights. Some Security Council resolutions in the field of counter-​ terrorism and military operations called for actions that led to inevitable limitations or displacement of human rights. The following section will examine the dynamics of Security Council measures affecting individual rights in the areas of targeted sanctions and security detention. In particular, it will discuss the evolution of Security Council resolutions in these fields, uncover their flaws, identify pertinent human rights concerns, and map the institutional reforms the United Nations is undertaking to accommodate human rights and security concerns. B

Security Council Targeted Sanctions: Targeting Individuals in the Name of Peace

I The Evolution of Targeted Sanctions UN sanctions against entities other than sovereign States are not an entirely new phenomenon. Indeed, the first Security Council sanctions were taken against the leadership of Southern Rhodesia, at the time a British colony, not a sovereign State.23 Sanctions against non-​State actors were also utilised in the early 90s, first against the Khmer Rouge in Cambodia and later against unita members in Angola.24 They were also applied against the political leaders and rebel groups believed to be responsible for a breach of or threat to international peace and security.25 In recent years, however, Security Council targeted sanctions have become an essential tool in tackling the decentralised roots of widespread violent enterprises that exceed the reach of the nation State, one of these being modern terrorism. The G8 leaders in the 2007 summit in Germany recognised that “the UN is the sole organisation with the stature and reach to achieve universal agreement on the condemnation of terrorism and to

2 3 24 25

UNSC Res 232 (16 December 1996) UN Doc S/​RES/​232. UNSC Res 792 (30 November 1992) UN Doc S/​RES/​792, UNSC Res 1127 (28 August 1997) UN Doc S/​RES/​1127, UNSC Res 1173 (12 June 1998) UN Doc S/​RES/​1173 and UNSC Res 1176 (24 June 1998) UN Doc S/​RES/​1176. For the early use of Security Council sanctions against violent non-​State actors in Cambodia, Angola, Bosnia and Herzegovina, Congo, Rwanda, Sierra Leone and Afghanistan see e.g. UNSC Res 792 (n 24), UNSC Res 864 (n 5), UNSC Res 918 (17 May 1994) UN Doc S/​RES/​ 918, UNSC Res 1132 (8 October 1997) UN Doc S/​RES/​1132. See also, Helmut Freudenschuß, ‘Collective Security’ in Franz Cede and Lilly Sucharipa-​Behrmann (eds), The United Nations: Law and Practice (Kluwer Law International 2001) 80–​81.

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effectively address key aspects of the terrorist threat in a comprehensive manner”.26 In the aftermath of the 1998 bombings of US embassies in Kenya and Tanzania –​believed to have been carried out by members of Al Qaida and Egyptian Islamic Jihad –​the Security Council promptly responded by adopting several resolutions, particularly against the Taliban authorities for sheltering and aiding terrorist entities.27 In Resolution 1267, the Security Council determined that the refusal of the Taliban authorities to stop providing shelter and training to Al Qaida and to extradite suspected terrorists, including Usama bin Laden, constituted a threat to international peace and security.28 The sanctions followed an embargo on Afghan air traffic and freezing of the Taliban’s assets worldwide.29 Following the heinous crimes of 9/​11, committed in the vicinity of the UN Headquarters in New York, terrorism promptly became a widespread epidemic that could no longer be associated with a single territory or entity. This development required targeting individuals and entities supporting terrorism in any given space. The Security Council responded by adopting a resolution in the form of a universal legislative act similar to that of an international convention on terrorism.30 Security Council Resolution 1373 encouraged blacklisting of individuals associated with terrorism at the UN and national level.31 The measures to be taken against all blacklisted individuals and entities may include asset freezes, travel bans and arms embargoes.32 As part of financial sanctions, asset freezes deny the individual or entity concerned the ability to access, move, sell or rent their funds, cheques, bank deposits, stocks, shares,

26 27 2 8 29 30 31 32

G8 Summit Statement on Counter Terrorism, ‘Security in the Era of Globalization Heiligendamm, Germany’ 8 June 2007, accessed 6 May 2018. UNSC Res 1189 (13 August 1998) UN Doc S/​RES/​1189, UNSC Res 1193 (28 August 1998) UN Doc S/​RES/​1193 and UNSC Res 1214 (8 December 1998) UN Doc S/​RES/​1214. UNSC Res 1267 (15 October 1999) UN Doc S/​RES/​1267, fifth preambular paragraph. ibid, para 4. James Crawford, Chance, Order, Change: The Course of International Law (Brill, 2014) 311–​ 313. UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373; Gavin Sullivan and Ben Hayes, ‘Blacklisted: Targeted sanctions, preemptive security and fundamental rights’ (European Centre for Constitutional and Human Rights 2010) 14. See, inter alia, UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373, UNSC Res 1390 (28 January 2002) UN Doc S/​RES/​1390, UNSC Res 1483 (22 May 2003) UN Doc S/​RES/​1483, UNSC Res 1591 (29 March 2005) UN Doc S/​RES/​1591.

14 Chapter 2 real estate or other capital. In exceptional cases, exemptions may be applied that only cover basic needs. Visa and travel bans are employed to isolate the targeted subjects by way of restricting their possibility to travel or leave the country. In the case of political leaders, such measures essentially aim to isolate them in international politics, while in the case of those allegedly supporting terrorism, travel bans aim to cut individuals off from their companies, bank accounts, recruiting and similar activities. Arms embargoes against violent State and non-​State actors aim to reduce conflicts and weaken their capacity to conduct military or other terrorist acts. The imposition of an arms embargo is aimed to deny targeted subjects access to weapons and other military equipment. To manage the ever-​rising portfolio of targeted sanctions, the Security Council has established committees, agencies and specialised bodies. They are vested with the mandate to, inter alia, list, delist and monitor the implementation of targeted sanctions. II Applying Targeted Sanctions 1 Security Council Committees a Security Council Committee on isis (Da’esh) and Al Qaida Security Council Resolution 1267 as modified has set up the isis (Da’esh) and Al Qaida Committee (also known as the 1267 Committee), comprised of 15 members of the Security Council, to oversee States’ implementation of sanctions measures, maintain the isis (Da’esh) and Al Qaida Sanctions List, and facilitate requests to add or remove names from the list. Upon State request and information, the 1267 Committee also decides whether to grant exemptions on an individual basis on humanitarian or other grounds. In addition, it decides on requests for delisting from the Office of the Ombudsperson, an institution established exclusively to hear complaints in relation to the isis (Da’esh) and Al Qaida Sanctions List. The 1267 Committee relies on the expertise of the UN Analytical Support and Sanctions Monitoring Team concerning financing and countering terrorism, arms embargoes, travel bans and other legal issues. It is primarily punitive in its intent, seeking to limit the ability of isis (Da’esh) and Al Qaida, as well as other terrorist entities, to maneuvere and finance their activities.33

33

Jane Boulden, ‘The Security Council and Terrorism’ in Vaughan Lowe et al (eds), The United Nations Security Council and War (Oxford University Press, 2008) 618.

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While Security Council Resolution 1267 was initially envisaged to cover the Taliban authorities for their support to Al Qaida, the sanctions regime as modified by subsequent resolutions34 now applies only to blacklisted individuals and entities associated with isis (Da’esh) and Al Qaida, wherever located.35 Furthermore, the isis (Da’esh) and Al Qaida Sanctions List, modified by subsequent resolutions, now also includes individuals and entities associated with other terrorist groups. It incorporates those associated with Islamic State in Iraq and the Levant (isis or isil), Al-​Nusra Front for the People of the Levant (Al-​Nusra), Egyptian Islamic Jihad and other terrorist entities.36 While these and other terrorist entities may operate under different organisational units and share other differences, the isis (Da’esh) and Al Qaida Sanctions List established by Security Council Resolution 1267 as modified has become an umbrella sanctions regime against the vast majority of terrorist cells. b Other Security Council Committees Next to the 1267 Committee, there are other Security Council Committees established to oversee the implementation of targeted sanctions adopted in relation to the peace and security situation in Somalia, Eritrea, Iraq, Liberia, Democratic Republic of Congo, Sudan, Lebanon, North Korea, Afghanistan, Iran, Libya, Guinea Bissau, Central African Republic, Yemen and recently South Sudan.37 Committee membership is consistent in each instance, with only the chairs being different.38 This to some extent allows its members to coordinate 34

3 5 36 37

38

The sanctions regime was first established by UNSC Res 1267 (n 28) and has been modified and strengthened by subsequent resolutions, including the latest UNSC Res 2253 (17 December 2015) UN Doc S/​RES/​2253, so that the sanctions measures now apply to designated individuals and entities associated with isis and Al ​Qaida, wherever located. The Taliban sanctions regime was specifically defined in the UNSC Res 1989 (n 5). The isis (Da’esh) and Al Qaida Sanctions List of 29 February 2016, . accessed 6 May 2018. See generally, UNSC Res 751 (24 April 1992) UN Doc S/​RES/​751, UNSC Res 1518 (24 November 2003) UN Doc S/​RES/​1518, UNSC Res 1907 (23 December 2009) UN Doc S/​RES/​1907, UNSC Res 1521 (n 5), UNSC Res 1533 (12 March 2004) UN Doc S/​RES/​1533, UNSC Res 1636 (31 October 2005) UN Doc S/​RES/​1636, UNSC Res 1718 (14 October 2006) UN Doc S/​RES/​ 1718, UNSC Res 1737 (23 December 2006) UN Doc S/​RES/​1737, UNSC Res 1970 (26 February 2011) UN Doc S/​RES/​1970, UNSC Res 1988 (n 5), UNSC Res 2048 (18 May 2012) UN Doc S/​RES/​2048, UNSC Res 2127 (5 December 2013) UN Doc S/​RES/​2127, UNSC Res 2140 (26 February 2014) UN Doc S/​RES/​2140, UNSC Res 2206 (3 March 2015) UN Doc S/​RES/​2206, UNSC Res (20 July 2015) UN Doc S/​RES/​2231. Jane Boulden, ‘The Security Council and Terrorism’ (n 33) 618.

16 Chapter 2 activities, although each Committee is established to achieve different objectives. In addition, a panel of experts assists each Committee with expertise in the areas concerning the relevant targeted sanction. Although the sanctions regimes operate under different Committees, for the purpose of implementation of the sanctions list, the Security Council has established a so-​called Consolidated List, containing all the names of any subjects included in targeted sanctions lists.39 2 The Reasons for Listing The measures of the Security Council are only preventive in nature. They do not necessarily imply accusations of a criminal nature. As the General Court of the EU has held in the context of terrorism … il y a lieu de relever que les mesures restrictives en cause adoptées par le Conseil dans le cadre de la lutte contre le terrorisme n’entraînent pas une confiscation des avoirs des intéressés en tant que produits du crime, mais un gel à titre conservatoire. Ces mesures ne constituent donc pas une sanction et n’impliquent, par ailleurs, aucune accusation de cette nature …40 The measures of the Security Council aim to deter blacklisted subjects from possibly supporting terrorists or other targeted entities and also to paralyse an entire set of networks that are believed to contribute to that violent enterprise.41 In this context, the Security Council encourages the listing of any entity that is believed to have been supporting terrorism. Security Council Resolution 1617 concerning the Al Qaida Sanctions provides that any undertaking or entity owned or controlled, directly or indirectly, by, or otherwise supporting, such an individual, group, undertaking or entity associated with Al-​Qaida, Usama bin Laden or the Taliban shall be eligible for designation.42 The decision to list is exercised by the respective Security Council Sanctions Committee. The Sanctions Committee bases its decisions on the 39 40 41 42

For more on The Consolidated UN Security Council Sanctions List see:  accessed 6 May 2018. Joined Cases T-​37/​07 and T-​323/​07 El Morabit v Council [2009], not published in the ecr, para 43. Joined cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P European Commission and Council v Kadi [2013] Opinion of Advocate General Bot, para 68. UNSC Res 1617 (29 July 2005) UN Doc S/​RES/​1617, para 3.

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information received from a State or an international organisation. Hence, while the Security Council Committees have the administrative authority to manage the sanctions lists, it is essentially for States to decide who should be blacklisted. When States request a Sanctions Committee to add a name to the Sanctions List, they have to submit a statement of a case containing a “narrative summary of reasons for listing”.43 These reasons, however, are only generally defined in the Security Council resolutions. Resolution 1617 enumerates the following reasons for listing in the 1267 Sanctions List participate in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of; supply, sell or transfer arms and related materiel to; recruit for; or otherwise support acts or activities of; Al-​Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter group or derivative thereof.44 The reasons for listing, the legal means of obtaining the evidence related to listing and the weight of that evidence are hardly ever reviewed by the Sanctions Committee.45 This is striking because according to a study of the Council of Europe, the information concerning blacklisting is often gathered through media reports, company registers, suspicious and unusual banking transaction reports, and reports of State intelligence agencies.46 In some cases allegations can be based on information obtained under torture, unauthorised wiretaps, covert overseas operations or any other form that could be considered illegal evidence in a due process.47 To get an idea of how the evidence is collected in the process of listing an individual or an entity, one may look at the national policies on blacklisting. The 2013 US Watchlisting Guidance, that was leaked a year later, reveals that the test for listing a suspected terrorist requires almost no definite facts. The US Watchlisting Guidance provides

4 3 44 45 46 47

UNSC Res 1822 (30 June 2008) UN Doc S/​RES/​1822, para 13. UNSC Res 1617 (n 42) para 2. Christina Eckes, EU Counter-​Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, 2009) 41. Iain Cameron, ‘The European Convention on Human Rights, Due Process and United Nations Security Council Counter-​Terrorism Sanctions’ (Council of Europe 2006) 5. See e.g. Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3.

18 Chapter 2 [t]‌o meet the reasonable suspicion standard, the nominator, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and/​or terrorist activities.48 The US Watchlisting Guidance also stipulates [i]‌n determining whether a reasonable suspicion exists, due weight should be given to the specific reasonable inferences that a nominator is entitled to draw from the facts in light of his/​her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.49 While it is evident that the criteria for blacklisting in the national and UN sanctions lists differ,50 one could anticipate that national policies and guidelines are often followed when designating individuals and entities in, inter alia, the 1267 Committee.51 This could particularly be the case since UN Member States, as already noted, make the proposals for listings in the Security Council Sanctions Committee. In the context of national security guidelines and Security Council resolutions, it is evident that the process of obtaining the reasons for listing is not always based on clearly verified evidence. Some suggest that this is to some extent understandable in the context of counter-​terrorism.52 48 49 50 51 52

National Counterterrorism Center of the United States of America, 2013 Watchlisting Guidance, 33  . accessed 6 May 2018. ibid, 34. Chiara Giorgetti, ‘Listing and De-​listing of Terrorist Organizations: the Cases of the United Nations and the United States of America’ (Centre for Humanitarian Dialogue 2006). Iain Cameron, ‘Targeted Sanctions and Legal Safeguards’ (Swedish Foreign Office 2002) . accessed 6 May 2018. Advocate General Bot of the EU Court of Justice noted [t]‌he unpredictability and the devastating impact of terrorist acts committed require the public authorities to develop all conceivable means of prevention … This calls for a highly flexible approach, because of the multi-​faceted character of the situation on the ground. The conditions underlying the threat and the fight against it may be different depending on time and place, and the genuineness and the level of the threat may vary with changes in global geopolitical conditions. See Opinion of Advocate General Bot (n 41) para 5.

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Indeed, one may rightly argue that traditional measures and procedures for combating crimes may not be equally fitting and effective to combating terrorism.53 In case of a lone wolf terrorist or a suicide bomber, it is essential that a target be stopped at an early stage of planning a crime. Yet, loose legal approaches to combating terrorism, including listing, raise concerns about the inevitable mistakes that may lead to unintended consequences for individuals not involved in activities threatening international security. 3

Targeting the ‘Unknowns’: Inevitable Chances of ‘Toxic Designation’ Someone must have been telling tales about Josef K., for one morning, without having done anything wrong, he was arrested.54

Depending on the origin and the nature of an international threat, a subject of targeted sanctions may include, inter alia, government officials, members of rebel groups, individuals and entities participating in or supporting terrorism. Ensuring reliable and accurate information about someone’s involvement in activities that threaten international security can be a challenging process. This is particularly so when proving someone’s involvement or support to terrorist groups or other violent entities operating with a degree of secrecy. Such evidence appears to be particularly difficult to obtain with regard to individuals and entities participating in recruiting, financing or otherwise indirectly supporting such violent groups. The difficulty in obtaining such evidence leads to inevitable erroneous listings. This has been recognised also by the Security Council. Cognizant of possible erroneous listings in the aftermath of 9/​11, the Security Council in its Resolution 1822 authorised the 1267 Committee to review all listed individuals and entities for potential mistakes. In its two-​year work of reviewing the so-​called ‘toxic designations’, the 1267 Committee identified 45 names of individuals and entities listed erroneously.55 Instances of toxic designations are inevitable because of difficulties in obtaining accurate evidence about involvement in activities endangering world security. The listing process also allows a degree of discretion, which at times may raise questions of abuse of authority. On these latter grounds, blacklisting 53 54 5 5

Thomas Franck, ‘Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror’ (2004) 98 American Journal of International Law 687. Franz Kafka, The Trial (Mike Mitchell tr, Oxford University Press, 2009) 5. UNSC Res 1822 (n 42) authorised the review of ‘toxic designations’, see paras 15, 25–​26.

20 Chapter 2 of certain individuals and entities may also be employed to harm certain groups or businesses that are unfriendly to a particular State.56 UN Institutional Avenues for De-​listing: the Focal Point and the Office of the Ombudsperson Following the terrorist attacks of 9/​11, one could hardly imagine that at the early and dramatic phase of adopting counter-​terrorism measures, States could advance arguments of due process and human rights protection for suspected terrorists.57 It is not an exaggeration to say that such arguments in the aftermath of 9/​11 would have been perceived as a sign of reluctance to cooperate in combating terrorism or as lacking understanding for the nations that were most affected by tragic terrorist attacks. It is unsurprising that, unlike most agreements reached at the international level through long processes of planning and negotiations, measures for combating terrorism were, at times, adopted within days. The process of bringing Security Council Resolution 1373 into life best describes this phenomenon. Security Council Resolution 1373  –​which to date remains the ‘first legislative’ resolution to combat terrorism in the form of an international convention adopted under Chapter vii58 –​was adopted in a late evening meeting of 28 September 2011 that lasted only three minutes.59 The immediate need to combat terrorism at the universal level penetrated such a legislative resolution without III

56

57 58 59

Professor Iain Cameron observed “[i]‌t is reasonable to assume that those [S]tates with economic and historical (former colonial) interests in particular target [S]tates have taken the lead in blacklisting. I have heard from various people that the main source of the names in unita travel and financial sanctions was the Angolan government. The sources for the Liberia and Sierra Leone names appear to have varied, with certain States, e.g. the US, the UK and France, suggesting some names, and other names coming from the expert panels’ reports on implementation. The main (or exclusive?) source of the names on the Afghanistan/​Al-​Quaida lists appears to have been the US”. Iain Cameron, ‘Targeted Sanctions and Legal Safeguards’ (n 51) 6. For more recent practice see the Russian proposal to blacklist two Syrian opposition groups for alleged ties with isis and Al Q ​ aida, an initiative blocked by other members of the Security Council, ‘U.S., Britain, France block Russia bid to blacklist Syria rebels’ Reuters, 11 May 2016  accessed 6 May 2018. UNSC Res 1267 (n 28) on the (then) Al Qaida and the Taliban contained a reference to human rights. However, this was only in the part where it condemned Afghanistan’s discrimination against women and girls. See third preambular paragraph. James Crawford, Chance, Order, Change: The Course of International Law (n 30) 311–​313. UNSC Res 1373 (n 32). The press release is available at .

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a debate not only on its human rights implications but also its compatibility with the UN Charter.60 In view of the foregoing, earlier counter-​terrorism measures and policies were not accompanied by a desired debate for compliance with other international norms and principles. In fact, even when UN institutions, including the UN Office of Legal Counsel, have expressed readiness to help on legal matters, the Security Council has rebuffed any assistance, declaring there were “no legal issues” involved in the listing or delisting of individuals on sanctions blacklists.61 In this vein, there were evident human rights shortcomings in the initial Security Council measures on counter-​terrorism. Those listed in the sanctions regime were not informed of the reason for their inclusion on the sanctions list and they had no guidance as to where they could challenge such measures. However, as the number of blacklisted individuals increased, particularly of those included in the then 1267 Al Qaida Sanctions Regime, so did the criticism that there was no mechanism to challenge their listing. This nurtured initial reforms in the UN delisting system.62 In the 2005 World Summit Outcome, the General Assembly called on the Security Council “to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and removing them, as well as for granting humanitarian exceptions”.63 The response of the Security Council to address human rights deficiencies regarding delisting was quick, although not impressive in its quality. In the same year it started a wave of testing procedures with Security Council Resolution 1617, and since then the search for a possible remedy to the ailment of the lack of due process in cases of blacklisting persists.64 60

61 6 2 63 64

See James Crawford, Chance, Order, Change: The Course of International Law (n 30) 312; Jochen Abraham Frowein and Nico Krisch, ‘Introduction to Chapter vii’ in Bruno Simma et al. (eds), The Charter of the United Nations: A Commentary (2nd edn, Oxford University Press 2002) 709, para 23; Nico Krisch, ‘Introduction to Chapter vii: The General Framework’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, Oxford University Press 2012) 1253, para 34. Cited in Devika Hovell, ‘Kadi:  King-​Slayer or King-​Maker? The Shifting Allocation of Decision-​Making Power between the UN Security Council and Courts’ (2016) 79 Modern Law Review 147, 149. Report of the High-​Level Panel ‘A More Secure World, Our Shared Responsibility’ (n 21). UN General Assembly Res 60/​1  ‘World Summit Outcome’ of 24 October 2005, para 109  accessed 6 May 2015. UNSC Res 1617 (n 42) requires Member States to submit a “statement of case” when proposing names for inclusion on the 1267 Al Qaida Sanctions List, see paras 4–​6. See also UNSC Res 1730 (19 December 2006) UN Doc S/​RES/​1730; UNSC Res 1735 (22 December

22 Chapter 2 This wave of post-​2005 Security Council resolutions prompted two mechanisms to address delisting requests, namely the Focal Point and the Office of the Ombudsperson. 1 The Focal Point The Focal Point for delisting is a part of the UN Secretariat that became operational only in March 2007.65 It receives delisting requests from petitioners on all sanctions lists other than the 1267 isis (Da’esh) and Al Qaida Sanctions List.66 The request for delisting can be submitted either by the applicant or through their State of residence or citizenship.67 Such requests are nevertheless not examined and decided by the Focal Point. The latter is mandated only to “[f]‌orward requests … to the designating government(s) and to the government(s) of citizenship and residence”.68 It is for a State, and not the Focal Point, to make recommendations for delisting. If a State decides not to recommend delisting, the applicant receives a negative decision by the Focal Point. If a State decides to recommend delisting, the request is forwarded to the Sanctions Committee and is placed on the Committee’s agenda.69 The ultimate decision on delisting can only be taken by the Sanctions Committee, the same body that has decided on the listing of the same applicant. In the view of its mandate, a Focal Point does not have the authority to review or decide on delisting. Instead, the body is competent to (i) receive requests, (ii) forward them to respective governments and (iii) inform the applicant. Since the establishment of the Focal Point, many requests have been processed in relation to a variety of sanctions regimes and some of them have had

65

66

6 7 68 69

2006) UN Doc S/​RES/​1735; UNSC Res 1822 (n 43); UNSC Res 1904 (17 December 2009) UN Doc S/​RES/​1904. The Focal Point was introduced by UNSC Res 1730 (n 64) and became functional only in March 2007. See the ‘Informal report of the Focal Point for De-​listing established pursuant to Security Council resolution 1730 (2006)’, covering the period from 1 January to 31 December 2015, at accessed 6 May 2018. The Focal Point has served as a delisting mechanism also for the Al Q ​ aida Sanctions List until the establishment of the Ombudsperson. For other competences of the Focal Point in relation to individuals listed in the Al ​Qaida Sanctions List see UNSC Res 2083 (17 December 2012) UN Doc S/​RES/​2083 and UNSC Res 2161 (17 June 2014) UN Doc S/​RES/​2161. See the ‘Informal report of the Focal Point for De-​listing established pursuant to Security Council resolution 1730 (2006)’ (n 65). UNSC Res 1730 (n 64). ibid, para 5. ibid, para 6.

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a successful outcome.70 This body, however, falls short of meeting the international standards of an independent and transparent review mechanism. It also fails to meet its raison d’être, outlined in the Security Council resolution, which is to ensure fair procedures for delisting.71 In facilitating communication in relation to delisting, a Focal Point, to borrow words from Christina Eckes, is no more than a mailbox.72 2 The Office of the Ombudsperson Cognizant of several flaws of the Focal Point and of the challenges to the measures imposed against Al Q ​ aida and the Taliban, Security Council Resolution 1904 established the Office of the Ombudsperson to deal exclusively with requests in relation to the Al ​Qaida Sanctions List. The Office became operational as of mid-​2010 when former icty (and the current icc) Judge Kimberly Prost was appointed Ombudsperson. Its procedures were further strengthened by resolution 1989 of 17 June 2011 and resolution 2083 of 17 December 2012. The Office of the Ombudsperson, hailed by the Security Council as an independent and impartial body, aimed at providing additional fairness and transparency in delisting requests.73 As far as procedures for delisting are concerned, there are five steps from submission to completion of a case.74 Upon receipt of a petition for delisting, the Ombudsperson has four months at its disposal for information gathering.75 In this phase, the Ombudsperson communicates the delisting request to the Sanctions Committee, Monitoring Team, relevant UN bodies, State(s) that have recommended the applicant’s listing and State(s) of the applicant’s nationality and/​or residence. The Ombudsperson asks all these stakeholders to provide information on the case. After having gathered information, the next step is to communicate that information, unless it remains confidential, to the applicant and engage in active dialogue. The third phase includes drafting of a Comprehensive Report, in which the Ombudsperson recommends to the Sanctions Committee how to rule on the case. The following phase is a meeting of the Sanctions Committee in which the applicant’s case is addressed. The

70 7 1 72 73 74 75

Loraine Sievers and Sam Daws, The Procedure of the UN Security Council (4th edn, Oxford University Press 2014) 543. UNSC Res 1730 (n 64) preamble. Christina Eckes, EU Counter-​Terrorist Policies and Fundamental Rights (n 45) 406. UNSC Res 1904 (n 64) preamble. See also UNSC Res 2161 (n 66) preamble. UNSC Res 2161 (n 66) Annex II. Unlike the Focal Point, the Ombudsperson receives delisting requests only from the listed individuals and entities.

24 Chapter 2 Ombudsperson is invited to attend this to answer additional questions that may be raised by its members. Lastly, once the Sanctions Committee takes a decision, the Ombudsperson communicates it to the applicant. The process of delisting through the Ombudsperson differs from that of the Focal Point. The Ombudsperson leads the entire process from submission to completion of the case. Unlike the Focal Point, where the applicant bears the exclusive burden of proof to provide reasons for delisting, with the Ombudsperson this burden is shifted onto those that suggested listing. By engaging all stakeholders in the process and making final recommendations for delisting, State(s) that decide not to endorse the Ombudsperson’s opinion must ensure, at least pro forma, that there exist reasons for it. Furthermore, if the Ombudsperson’s recommends delisting an individual or an entity, the Sanctions Committee may reverse the outcome only with a unanimous decision of each member of the Committee. The ‘reverse consensus’ established pursuant to Security Council Resolution 1989 has strengthened the Ombudsperson procedure despite the fact that the Committee retain the final authority to delist. Yet, it has been noted that the Office of the Ombudsperson may not be able to ensure a fair and transparent process so long as Committee decisions are not reasoned.76 In briefing the Security Council, the Ombudsperson has stated that fair/​due process can never be assessed based on results or outcome. In fact it is the contrary, fair process means that regardless of the result, fair and reasonable steps were followed in reaching the decision. And in this particular case a reasoned decision is what distinguishes a fair process from an arbitrary one.77 While deficiencies in the sanctions decision-​making process remain, the Office of the Ombudsperson remains a milestone in advancing due process reform. What remains highly problematic is the limited mandate of the Office of the Ombudsperson to handle only petitions from the isis (Da’esh) and Al Qaida Sanctions List. Ensuring the protection of human rights for the isis (Da’esh)

76 77

Security Council Open debate on the theme ‘Working Methods of the Security Council’, S/​2014/​725, Annex to the letter from the Permanent Representative of Argentina to the United Nations. Briefing of the Ombudsperson ‘Enhancing Due Process in Sanctions Regimes’ addressed to the Security Council’s Open Debate on ‘Working Methods of the Security Council’ S/​ 2014/​725, 23 October 2014, 3  accessed 6 May 2018.

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and Al Qaida Sanctions List while limiting rights of others leaves the impression that the Ombudsperson is established because there exist higher chances for toxic designation for those listed in the isis (Da’esh) and Al Qaida Sanctions. Any other argument would imply that those listed in the isis (Da’esh) and Al Qaida Sanctions List are more privileged than individuals blacklisted by other sanction regimes. This rationale would imply that the more dangerous the threat, the better fairness should be applied in delisting process. The Ombudsperson, as well as some of the UN Member States, continuously insisted on expanding the mandate of the Ombudsperson to other sanctions regimes, however this view has not been endorsed by the Security Council so far.78 The two aforementioned mechanisms, namely the Focal Point and the Ombudsperson, remain the only bodies mandated by the Security Council to process requests for delisting and humanitarian exemptions for individuals and entities listed in the UN sanctions regimes. The lack of judicial review at the UN level has prompted procedural and substantive legal problems at the State and regional levels when examining alleged human rights violations emanating from the UN legal order. It has also puzzled individuals concerned as to the existence of alternative judicial bodies to which they may address their complaints. IV Implementation of Targeted Sanctions by Member States While the Security Council targeted sanctions are managed by the Committees, they can only be effective if States implement them. Hence, the implementation of targeted sanctions is entirely dependent on the willingness and ability of Member States to incorporate such measures in their domestic legal framework and, most importantly, to enforce them. The implementation of targeted sanctions, particularly in the area of counter-​terrorism, has resulted in State’s amending national legislation and or creating new mechanisms. At the legislative level, some States have criminalised the financing of terrorism, regulated the forms of incorporation of UN blacklisting at the national level, extradited their own citizens etc.79 To effectively enforce counter-​terrorism 78

79

Group of Like-​minded States on Targeted Sanctions, ‘Improving fair and clear procedures for a more effective United Nations sanctions system’, S/​2012/​805 of 9 November 2012; Security Council Open debate on the theme ‘Working Methods of the Security Council’ (n 77); Briefing of the Ombudsperson ‘Enhancing Due Process in Sanctions Regimes’ (n 77) 1–​2. See the reports of UN Member States on the implementation of targeted sanctions concerning isis (Da’esh) and Al Qaida at . accessed 6 May 2018.

26 Chapter 2 measures, States have had to improve border controls and raise awareness among national judges and prosecutors about the application of relevant treaties or Security Council resolutions, to name just a few.80 The practice shows that States were committed to implementing Security Council targeted sanctions, and willing to allocate necessary financial and human resources in that regard.81 This is partly because most States, though affected in unequal ways, are under some degree of threat and thus benefit from global regulation and enforcement of, inter alia, counter-​terrorism measures.82 In addition, States are committed to effectively enforcing targeted sanctions to honour their obligations under Chapter vii of the Charter. Such comprehensive approaches, where there are no loopholes in enforcing global Security Council measures, are necessary in order to produce effective results.83 It is also important to note that States tend not to use other excuses of a domestic character, such as bank secrecy systems, when applying targeted sanctions.84 In examining the reports of Liechtenstein, Luxembourg and Switzerland, it appears that offshore banks hardly prevent States from fully implementing the anti-​financing provisions of Security Council Resolution 1373.85 Likewise, while not all States share an understanding about the definition on 80 81 82 83 84 85

Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-​terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 European Journal of International Law 881, 895–​897. ibid, 893–​900. Anne L. Clunan, ‘The Fight Against Terrorist Financing’ (2006) 121 Political Science Quarterly 569, 572; Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American Journal of International Law 1, 20. Richard Barrett, ‘Time to Reexamine Regulation Designed to Counter the Financing of Terrorism’ (2009) 41 Case Western Reserve Journal of International Law 7, 11. Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-​terrorism Measures: The Quest for Legitimacy and Cohesion’ (n 80) 898–​899. See e.g., Report of the Principality of Liechtenstein to the Counter-​Terrorism Committee Established Pursuant to UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373, S/​2001/​ 1253, 9; Report of the Grand Duchy of Luxembourg to the Committee Established Pursuant to UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373, S/​2002/​6, 4; Report on Counter-​Terrorism submitted by Switzerland to the Security Council Committee Established Pursuant to UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373, S/​2001/​1224, 5. Nevertheless, Panama appears to present a controversial case. The Panama Papers leak revealed cases of hidden transactions with blacklisted companies. See e.g., The International Consortium of Investigative Journalists, ‘Gian Leak of Offshore Financial Records Exposes Global Array of Crime and Corruption’, Panama Papers, 3 April 2015, accessed 6 May 2018. See also Maya Lester, ‘Panama papers may suggest sanctions breaches’, European Sanctions, 5 April 2016, accessed 6 May 2018.

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the crime of terrorism, such domestic or regional arguments have –​so far –​not been employed to undermine the implementation of counter-​terrorism measures.86 States have also not referred to other international law instruments, particularly EU law or regional human rights conventions, to effectively disobey Security Council measures concerning targeted sanctions. The willingness to implement Security Council targeted sanctions at the national level, has, however, triggered serious human rights concerns. The implementation of such measures interfered with human rights in two ways. Firstly, as targeted sanctions are applied universally and require immediate observance, States, during the implementation of such measures, lacked sufficient latitude to examine their compatibility with human rights. Secondly, practice reveals that some States used the counter-​terrorism discourse as a tool to criminalise political dissidents and other groups challenging the political or religious beliefs in certain political regimes. For example, the anti-​terror laws in Saudi Arabia have brought atheists and peaceful protesters under the heading of terrorism. Human Rights Watch reports that according to the Penal Law for Crimes of Terrorism and its Financing, “terrorism” provisions include the following: Article 1:  Calling for atheist thought in any form, or calling into question the fundamentals of the Islamic religion on which this country is based. Article 6:  Contact or correspondence with any groups, currents [of thought], or individuals hostile to the kingdom. Article 9: Attending conferences, seminars, or meetings inside or outside [the kingdom] targeting the security of society, or sowing discord in society. Article 11: Inciting or making countries, committees, or international organisations antagonistic to the kingdom.87 86

87

Compare and contrast the elements of terrorism in UNSC Res 2161 (n 66)  and Article 2 of the Organization of the Islamic Conference, Convention of the Organization of the Islamic Conference on Combating Terrorism, 1 July 1999, Annex to Resolution No 59/​26-​P. The former considers that “any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed”. At the same time the Convention of the Organization of the Islamic Conference on Combating Terrorism does not qualify all terrorist acts as terrorist crimes. The latter, in its Article 2, provides “Peoples’ struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-​determination in accordance with the principles of international law shall not be considered a terrorist crime”. Human Rights Watch, ‘Saudi Arabia: New Terrorism Regulations Assault Rights’, March 2014 accessed 6 May 2018; See also Human Rights Watch, ‘Saudi Arabia: Terrorism Law

28 Chapter 2 Commenting on Article 6 of this anti-​terror legislation in Saudi Arabia, one activist speaking to Human Rights Watch on the 12th of March 2015 explained, “[j]‌ust talking to you now is considered terrorism –​I could be prosecuted as a terrorist for this conversation.”88 Indeed, Saudi-​Arabia’s anti-​terror laws have been used to prosecute and convict independent activists and peaceful dissidents.89 The lack of an accepted international definition of terrorism appears to leave room for regimes across the world to apply counter-​terrorism measures to fight military or civil, violent or peaceful group that might endanger the stability of the political regime.90 Certainly, one has to be careful not to confuse the terms of Security Council resolutions with abusive national counter-​terrorism laws. The Security Council has repeatedly called for observation of human rights while combating terrorism. Its Resolution 1456 (2003) affirms that “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law … in particular human rights, refugee and humanitarian law.”91 Yet, the lack of a universal understanding of the definition of terrorism continues to bring challenges in the implementation of national measures on counter-​terrorism aimed at honouring Security Council resolutions. Targeted Sanctions and the (Un)intended Consequences for Human Rights 1 General Remarks It could be argued that every Security Council sanction in some way affects human rights. Lord Brown in his dissenting opinion in the Ahmed case argued that V

almost any [domestic] Order … [adopted to give effect to Security Council resolutions] is likely to interfere with somebody’s fundamental rights. Take a UN resolution imposing trading actions against some [S]‌tate. Any

8 8 89 90

91

Tramples on Rights’, 6 February 2014  accessed 6 May 2018. ibid, Human Rights Watch, ‘Saudi Arabia: New Terrorism Regulations Assault Rights’. Human Rights Watch, ‘Saudi Arabia: New Terrorism Regulations Assault Rights’ (n 90); See also https://​www.hrw.org/​world-​report/​2018/​country-​chapters/​saudi-​arabia. See e.g. the statement of Nils Muižnieks, the Council of Europe Commissioner for Human Rights, with regard to the situation in Turkey after the coup attempt https://​www. coe.int/​fi/​web/​commissioner/​-​/​measures-​taken-​under-​the-​state-​of-​emergency-​in-​turkey accessed 17 June 2018. UNSC Res 1456 (20 January 2003) UN Doc S/​RES/​1456, para 6.

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domestic measure giving effect to such a decision is bound to interfere with someone’s contractual dealings and impinge on their article 1 Protocol 1 rights and quite likely their article 8 rights too.92 In relation to comprehensive sanctions, in particular, scholars suggest that “[t]‌he suffering of civilians is not merely collateral damage, it is the primary objective of sanctions”.93 In such cases, Guglielmo Verdirame argues that “the suffering of innocents [is employed] as an instrument for exerting pressure on governments”.94 In commenting the severe effects of the comprehensive Security Council sanctions in response to the Iraqi invasion of Kuwait in 1990, the Secretary General Kofi Annan observed the humanitarian situation in Iraq poses a serious moral dilemma for this Organisation. The United Nations has always been on the side of the vulnerable and the weak, and has always sought to relieve suffering, yet here we are accused of causing suffering to an entire population. We are in danger of losing the argument, or the propaganda war –​if we haven’t already lost it –​about who is responsible for this situation in Iraq –​President Saddam Hussein or the United Nations.95 With the purpose of, inter alia, alleviating the suffering of the population, the measures in Security Council sanctions shifted from comprehensive to targeted sanctions.96 Targeted or smart sanctions were introduced to affect specific individuals or groups who were believed to be responsible for the threat to peace and security. The UN High-​Level Panel on Threats, Challenges and Change observed in its 2004 report:

92 93 94 95 96

Ahmed v Her Majesty’s Treasury [2010] UKSC 2, para 196. Guglielmo Verdirame, The UN and Human Rights:  Who Guards the Guardians? (Cambridge University Press 2011) 301 (emphasis added). ibid. See also the ejil Symposium on: ‘The Impact on International Law of a Decade of Sanctions against Iraq’ (2002) 13 European Journal of International Law 1. Secretary General Kofi Annan, speech addressing the Security Council at its 4120th Meeting to deliver his Report (UN Doc. S/​2000/​208) on the situation between Iraq and Kuwait, 24 March 2000. Djacoba Liva Tehindrazanarivelo, ‘Targeted Sanctions and Obligations of States on Listing and De-​listing Procedures’ in Laurence Boisson de Chazournes and Marcelo Kohen (eds), International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-​ Debbas (Brill 2010) 127–​131.

30 Chapter 2 [a]‌s a result of growing concern over the humanitarian impact of comprehensive sanctions, the Security Council stopped imposing them after the cases of Iraq, former Yugoslavia and Haiti, and turned exclusively to the use of financial diplomatic, arms, aviation, travel and commodity sanctions, targeting the belligerents and policy makers most directly responsible for reprehensible policies.97 While targeted measures were designed to reduce the human suffering resulting from the collateral damage caused by comprehensive sanctions, over time the process of blacklisting and implementation measures is threatening to become the antonym of fundamental rights. The human rights challenges associated with targeted sanctions appear to be a result of, inter alia, insufficient procedural guarantees at the UN level. Several human rights guaranteed under domestic and international law have been limited while giving effect to targeted measures. This includes, the right to a fair trial, the right to a remedy, the right to property, and the right to private and family life, to name just a few. These measures are also believed to fall short of the principle of nullum crimen nulla poena sine lege. Some measures and offences related to targeted sanctions may not always be clearly provided for by law.98 At the EU level, sanctions have also affected some specific rights, including the right to freedom of movement, that are of fundamental importance at the regional level. The following will set out some of the human rights secured in international human rights conventions that are affected by measures implementing targeted sanctions. 2 Access to a Court and the Right to a Fair Trial The right to a fair trial is an indispensable safeguard ensuring that any substantive human right guaranteed in times of peace and war will be secured by an independent and judicial body. The enjoyment of other rights, including the right to life, is at times intertwined with the right to a fair trial.99 It is for this reason that a fair trial is not only enshrined as a fundamental right in human

97 98 99

Report of the High-​Level Panel ‘A More Secure World, Our Shared Responsibility’ (n 21) para 80. Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-​terrorism Measures: The Quest for Legitimacy and Cohesion’ (n 80) 907. ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Report to the General Assembly’ (6 August 2008) UN Doc A/​63/​223, 5.

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rights conventions, but its elements can be found in treaties dealing with international humanitarian law and international criminal law.100 To trigger the right to a fair trial, guaranteed inter alia under Article 6 of the echr, a case must relate either to a criminal charge or a dispute over civil rights, private life, property rights or the right to an effective remedy. While the Security Council has repeatedly reiterated that targeted sanctions, including blacklisting, are not criminal in nature, one could argue that such measures lead to criminal punishment in at least two situations. Firstly, in their national implementation measures, many States have introduced legislation to combat terrorism, which criminalises inter alia the financing of terrorism. In such circumstances, a national court would be obliged to grant access to domestic judicial review for such implementing measures. Secondly, although the Security Council presents targeted sanctions as interim measures, the “indefinite freezing of the assets of those listed … without a right to be de-​listed … amounts to a criminal punishment due to the severity of the sanction.”101 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism suggested that [e]‌ven where listing does not result in the indefinite freezing of assets, … [it] holds other consequences which might fall short of a criminal punishment…. At a minimum, the standards required to ensure a fair hearing must include [inter alia] … the right to be heard within a reasonable time by the relevant decision-​making body; the right to effective review by a competent and independent review mechanism; the right to counsel with respect to all proceedings; and the right to an effective remedy.102 For the European Court of Human Rights, a criminal charge does not exclusively depend on the legal definition in national laws. The ECtHR has repeatedly held that a criminal charge “may in some instances take the form of other measures which carry the implication of such an allegation and which likewise

100

See, inter alia, Article 6 of the European Convention on Human Rights, Article 14 of the International Covenant on Civil and Political Rights, Article 8 of the American Convention on Human Rights, Article 7 of the African Charter on Human and People’s Rights, Article 13 of the Revised Arab Charter on Human Rights, Article 67 (1) of the Rome Statute, Common Article 3(1)(d) of the Geneva Conventions of 1949, Article 17 of the International Convention for the Suppression of the Financing of Terrorism. 101 ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2008 (n 99) para 16. 1 02 ibid.

32 Chapter 2 substantially affect the situation of the suspect”.103 The ECtHR has found that even loss of remission or a driving licence may relate to a criminal charge.104 In this vein, it can be argued that, in principle, measures against blacklisted individuals may also amount to a criminal punishment for the purpose of Article 6 of the echr. Furthermore, Article 6 may also be concerned in cases of civil disputes emanating from targeted sanctions and implementing measures. This certainly includes cases of financial sanctions. According to Andrea Bianchi it is “beyond controversy that [Article 6] would apply to any suit in which the right to property is involved”.105 The right to inherit, own or use property is a “civil right” within the meaning of Article 6, triggering a right of access to court.106 Blacklisting for an indefinite period and association with terrorism can be also considered to attack one’s reputation. In such civil cases, the right to reputation would be triggered. The individual concerned should be entitled to bring defamation proceedings before a national court to challenge any such accusations or allegations. Only a judicial determination can rule on the aptitude of such measures.107 While it remains possible to make the argument that Article 6 echr is triggered in targeted sanctions, it must be recalled that ECtHR case law provides that this right is not absolute. It may be limited in at least two situations: for security reasons and to honour obligations from other treaty regimes. For security reasons, limitations on access to a court are justified when the measures pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought.108 One could argue about the importance of the international peace and security objectives of targeted 103

Foti and Others v Italy (App No 7719/​76, 7781/​77, 7913/​77) ECHR 10 December 1982, para 52; see also Eckle v Germany (App No. 8130/​78) ECHR 15 July 1982, para 73; 104 Campbell and Fell v UK (App No 7819/​77 & 7878/​77) ECHR 28 June 1984; Malige v France (App No 27812/​95) ECHR 23 September 1998. 105 Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-​terrorism Measures: The Quest for Legitimacy and Cohesion’ (n 80) 907. 1 06 Iain Cameron, ‘Targeted Sanctions and Legal Safeguards’ (n 51) 12. 1 07 Golder v UK (App No 4451/​70) ECHR 21 February 1975, Rotaru v Romania (App No 28341/​ 95) ECHR 4 May 2000, Niemietz v Germany (App No 13710/​88) ECHR 16 December 1992, para 37. The right to reputation is not as such protected by Article 8, see Gunnarsson v Iceland (App No 4591/​04) ECHR 20 October 2005. However, where national law recognises this right it falls under the scope of Article 6 of the echr. See Iain Cameron, ‘Targeted Sanctions and Legal Safeguards’ (n 51) 11. 108 Cudak v Lithuania, (App No 15869/​02) ECHR 23 March 2010, para 55; Waite and Kennedy v Germany (App No 26083/​94) ECHR 18 February 1999, para 59; T.P. and K.M. v the United Kingdom (App No 28945/​95) ECHR10 May 2001, para 98.

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sanctions employed by the Security Council. In support of the sanctions, Advocate General Bot has questioned “why should prevention be any shorter than the threat?”.109 This point certainly holds true, and the courts should be cognizant of it. However, such arguments, particularly when employed for a long period of time, may run at odds with, inter alia, the proportionality test. Concerning the duty to honour international legal obligations, there is no single answer to this issue in European jurisprudence. Some courts appear to suggest that limitations to Article 6 echr would be valid only when another treaty regime possesses an equivalent protection mechanism. This implies that a treaty regime which has prompted the alleged violation of human rights must have a judicial body and a set of rights that secure human rights “at least equivalent” to those in the echr.110 The ECtHR has held that [s]‌uch presumption [otherwise known as Bosphorus] could be rebutted if, in the circumstances of a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights.111 While the third part in this book will engage in a more detailed analysis of the relevant European jurisprudence, it will suffice to say here that access to a court and a fair trial rights are triggered while implementing targeted sanctions to honour, inter alia, Security Council obligations. 3 The Right to Private and Family Life The measures related to targeted sanctions, including travel ban and assets freezes, may prevent the blacklisted individuals from seeing family members and performing professional duties. In some cases, it may also prevent them from seeing their doctors in a foreign country. In this vein, the right to respect for home, private and family life as guaranteed under Article 8 echr as well as other human rights may be at stake. It remains problematic to reconcile restrictions on travel with one’s right to see, inter alia, family members in other parts of the world. In the Nada case, the ECtHR found that measures isolating the applicant in a rather small area interfered with Article 8.1 echr. The Strasbourg Court viewed that 1 09 Opinion of Advocate General Bot (n 42) para 68. 110 Klausecker v Germany (App No 415/​07) ECHR 6 January 2015, para 95. 111 ibid.

34 Chapter 2 the measure preventing the applicant from leaving the very confined area of Campione d’Italia for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with others –​in particular his friends and family –​living outside the enclave.112 The rights under Article 8 of the echr can be restricted if certain conditions are met. The ECtHR considers that [a]‌n interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are relevant and sufficient.113 While blacklisting cases may pass the legitimate aim test, difficulties remain in justifying the proportionality of measures applied for an indefinite period of time coupled with insufficient reasons for the accusations.114 On this last matter, the UN Human Rights Committee challenged the reasons for blacklisting applicants Sayadi and Vinck when finding that “as a result of the actions of the State party, there has been an unlawful attack on the authors’ honour and reputation”.115 Over the years, counter-​terrorism measures have been enhanced and toughened. As a result, one may anticipate that blacklisted individuals may at some point encounter at least a de facto employment ban. Although Article 8 echr does not cover the right to employment as such, a far-​reaching employment ban, particularly in the private sector, may breach one’s rights under Article 8 echr in conjunction with the discrimination clause under Article 14 echr. In Sidabras and Džiautas v Lithuania, a case concerning a former kgb employee, the ECtHR found that a far-​reaching ban on taking up private sector employment interfered with his private life.116 Professor Iain Cameron considers that this case is applicable mutatis mutandis to blacklisting.117

112 113 114 115

Nada v Switzerland (App No 10593/​08) ECHR 12 September 2012, paras 165–​166. ibid, para 181. ibid, paras 181–​199. UN Human Rights Committee, Communication No. 1472/​2006, U.N. Doc. CCPR/​C/​94/​D/​ 1472/​2006 (2008) 35. 116 Sidabras and Džiautas v Lithuania (App No 55480/​00 & 59330/​00) ECHR 27 July 2004, para 59. 117 Iain Cameron, ‘Targeted Sanctions and Legal Safeguards’ (n 51) 15–​16.

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Cognizant of harsh consequences that can result from a strict application of assets freezes, the Security Council has ensured that in certain circumstances ‘humanitarian exemptions’ may apply. This implies that a State may allow the blacklisted individual to access the financial assets to fulfil basic needs. While ‘humanitarian exemptions’ provide the legal means to ensure that blacklisted individuals continue to have access to funds for basic needs, this alone may not overcome the interference with Article 8 echr. 4 The Right to Property Restrictions on the access to and use of funds are one of the main tools employed in targeted sanctions. This is rightly so, as the financing of targeted entities that pose a threat to international security is a central concern. It is evident that only a network of sustainable financial resources could maintain the military and other equipment of terrorist entities capable of undertaking attacks equivalent to those by a State. The Security Council has responded with tough financial sanctions to combat the financing of blacklisted entities. In some cases, the Security Council has ordered the freezing of funds of individuals and entities as a precautionary measure, while in other cases it has ordered confiscation and transfer of funds to other entities. For example, Security Council Resolution 1483 provides for the confiscation and transfer to the Development Fund for Iraq of the financial assets and economic resources removed from Iraq or acquired by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members.118 In other cases, and particularly in counter-​terrorism measures, the Security Council has ordered only the freezing of funds. Unlike confiscation, which affects the right to property, the temporary nature of restricting the access and use of funds, may not present a prima facie violation of Article 1 of Protocol No. 1 echr. This is particularly the case as exceptions to the enjoyment of this right are provided for security reasons, on which the Security Council measures are grounded.119 However, this argument is becoming unsustainable as the originally ideated temporary character of asset freezing is increasingly of indefinite nature. In this regard, the United Nations High Commissioner for Human Rights noted that

1 18 UNSC Res 1483 (n 32) para 23. 119 Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-​terrorism Measures: The Quest for Legitimacy and Cohesion’ (n 80) 908–​909.

36 Chapter 2 [b]‌ecause individual listings are currently open-​ended in duration, they may result in a temporary freeze of assets becoming permanent which, in turn, may amount to criminal punishment due to the severity of the sanction. This threatens to go well beyond the purpose of the United Nations to combat the terrorist threat posed by an individual case. In addition, there is no uniformity in relation to evidentiary standards and procedures. This poses serious human rights issues, as all punitive decisions should be either judicial or subject to judicial review.120 Like other measures employed in countering terrorism, the restrictions on accessing and using funds has raised concerns for compliance with the right to property. The indefinite character of these measures, in some cases lasting over a decade, provides that such sanctions could remain legitimate and proportional only if rendered by a judicial body. 5 The Right to a Remedy The right to an effective remedy is a fundamental procedural safeguard that ensures that those suffering from alleged human rights violations may have access to redress before a national authority. Judge Cançado Trindade views it as “a remedy before a local court regularly instituted according to the provisions of municipal law, and which is competent to examine the matter which forms the object of the claim, and which is competent to render a decision on the subject”.121 This right enshrined in Article 13 echr has two important facets. It intends to guarantee a right for individuals claiming a violation of their human rights and simultaneously ensures that prior to submitting an application before an international court, the individual has to exhaust local remedies.122 It appears that the right to an effective remedy will not be observed in blacklisting cases as long as the UN and Member States lack adequate avenues to rule on the merits of listing in the UN sanctions regime and the respective implementing measures by States. The lack of procedural guarantees in targeted

120 ‘Report on the protection of human rights and fundamental freedoms while countering terrorism:  Report to the General Assembly’ (2 September 2009)  UN Doc A/​HRC/​12/​22, para 42. 121 A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law (Cambridge University Press 1983) 113. 122 Harmen van der Wilt and Sandra Lyngdorf, ‘Procedural Obligations Under the European Convention on Human Rights: Useful Guidelines for the Assessment of “Unwillingness” and “Inability” in the Context of the Complementarity Principle’ (2009) 9 International Criminal Law Review 39, 47.

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sanctions have been criticised by States and international organisations as well as judicial and quasi-​judicial bodies.123 Hence, while there is evidence of the lack of due process guarantees, the debate continues as to whether the right to an effective remedy could be bypassed by reasons of national or international security. Although the ECtHR leaves States some margin of appreciation on the mode and form of which they avail of this procedural safeguard in cases of national security, it has been unequivocal in holding that “the remedy required by Article 13 must be effective in practice as well as in law.”124 The Court has maintained this position even in cases of measures implementing Security Council targeted sanctions.125 UN Initiatives to Incorporate Human Rights in the Context of Targeted Sanctions UN Member States and institutions have been concerned about unintended human rights violations in cases of targeted sanctions. Since 2003 the General Assembly and the Security Council have considered that human rights and due process should guide counter-​terrorism initiatives. In Resolution 1456 (2003), the Security Council called on its Member States to ensure that VI

any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.126 It has been reiterated in the Security Council that “respect for human rights [is] an indispensable element for lasting peace”.127

123 See e.g. Briefing of the Ombudsperson ‘Enhancing Due Process in Sanctions Regimes’ (n 77) 3; Statement on behalf of the group of Like-​Minded States on targeted sanctions, delivered by H.E. Ambassador Geir O. Pedersen Permanent Representative, Norway, on 23 October 2014, accessed 6 May 2016. 124 Al-​Nashif v Bulgaria (App No 50963/​99) ECHR 20 June 2002, para 136. 125 Nada v Switzerland (n 112) para 214. 126 UNSC Res 1456 (n 94) para 6. 127 Statement of the President of the Security Council, PRST/​2006/​28 of 22 June 2006  accessed 6 May 2018.

38 Chapter 2 The General Assembly in its World Summit Outcome of 2005 made concrete suggestions for improvement of due process mechanisms in relation to listing and delisting. The General Assembly called upon the Security Council, with the support of the Secretary General, to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions.128 The Security Council’s commitment to ensuring due process reform was guided not only by its human rights agenda but also by the fact that the fate of its targeted sanctions, as a foreign policy tool to counter terrorism, appeared to be dependent on procedural safeguards for delisting. Over the years many States have become reluctant to submit new listings because of insufficient procedures for review. In this connection, Katja Creutz rightly observes that [in] order for targeted sanctions to be a credible foreign policy instrument, due process concerns must be met. It is crucial to place targeted sanctions within at least a minimalist understanding of the rule of law, namely a climate of legality.129 The US Deputy Ambassador to the UN in a Wikileaks cable revealing his communication with the (then) Chairman of the 1267 Committee recognised that “appropriate delistings could serve as an important incentive to keep States engaged in improving the 1267 list”.130 In addition to the ongoing due process reform, a matter broadly addressed throughout this monograph, there were three essential developments in the UN organisation related to human rights protection in counter-​terrorism. First, the Security Council integrated a human rights clause in its resolutions related to terrorism. Second, the UN appointed a Special Rapporteur on human rights while countering terrorism. Third, an informal group of UN Member States was formed to demand further Security Council reform on due process and

1 28 UN General Assembly Res 60/​1 ‘World Summit Outcome’ (n 63) para 109. 129 Katja Creutz, ‘Balancing Targeted Sanctions: Effectiveness Through a Climate of Legality’ (2015) FIIA Briefing Paper 169, 8. 130 ‘UN/​1267 Sanctions: Belgians request U.S. reconsider case to delist Sayadi and Vinck’, Canonical ID: 08USUNNEWYORK209_​a, Wikileaks, 6 March 2008  accessed 6 May 2018.

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targeted sanctions.131 These developments, discussed below, emerged upon the initiative of UN institutions and Member States. 1

Incorporating a Human Rights Clause in Security Council Resolutions In the aftermath of the terrorist attacks of 9/​11, the words ‘due process’ and ‘human rights’ were not on the radar of Security Council resolutions related to counter-​terrorism.132 However, as human rights problems emerged over the first years of implementation of sanctions, the Security Council introduced human rights clauses in its resolutions related to counter-​terrorism. References to the protection of human rights were made in Security Council resolutions 1456 (2003), 1535 (2004) and other statements and resolutions adopted in the following years.133 The clause, phrased identically in all resolutions, was directed to States and provided that counter-​terrorism measures should be taken in accordance with human rights.134 In relation to the isis (Da’esh) and Al Qaida sanctions regime, however, the first Security Council resolution containing a human rights clause was only introduced in 2008.135 The human rights clause of Security Council Resolution 1822 (2008), replicated in all other post-​2008 Al Qaida resolutions, was directed to the Security Council.136 The clause provides that terrorism should be combated “by all means, in accordance with the Charter of the United Nations and international law, including applicable international human rights …”.137 This development does not suggest that the human rights clause has brought significant changes in ensuring the genuine protection of human rights while 131 There have been other initiatives in this regard, including the establishment of the UN Office of Counter-​Terrorism and the creation of the position of the UN Under-​Secretary-​ General on Counter-​Terrorism. These and other initiatives are not discussed here because such institutions do not deal directly with human rights protection in the context of targeted sanctions in general and counter-​terrorism in particular. 132 UNSC Res 1267 (n 28) contained a reference to human rights. However, this was only in the part condemning Afghanistan’s discrimination against women and girls. See third preambular paragraph. 133 See e.g. UNSC Res 1535 (26 March 2004) UN Doc S/​RES/​1535; Statement PRST/​2006/​28 of 22 June 2006; UNSC Res 1787 (10 December 2007) UN Doc S/​RES/​1787. 134 UNSC Res 1535 (n 133), fourth preambular paragraph. 135 UNSC Res 1822 (n 43)  third preambular paragraph. This resolution was adopted a few months before the Kadi decision of the European Court of Justice. Hence, this development cannot be associated with the findings of the European courts. 136 See UNSC Res 1904 (n 64); UNSC Res 1989 (n 5); UNSC Res 2083 (n 66) and UNSC Res 2161 (n 66). 137 UNSC Res 1822 (n 43) third preambular paragraph.

40 Chapter 2 combating terrorism. However, the clause creates a normative expectation of compliance with human rights while countering terrorism. 2

Due Process Reform Encouraged by the UN Group of Like-​Minded States Since the emergence of smart or targeted sanctions, several States have taken initiatives to make smart sanctions smarter and improve the targeting process.138 In March 1988, the Swiss Government, a non-​UN Member at the time, organised the Interlaken Process, focusing on financial sanctions reform.139 The process was followed up by Germany. In 2000, Germany organised the so-​ called Bonn-​Berlin Process, which addressed the issues of arms embargoes and travel related sanctions.140 In 2002, in the aftermath of terrorist attacks in the United States, Sweden organised the Stockholm Process, focusing on implementation of targeted sanctions.141 The Final Report of the Stockholm Process starts by emphasising the “need of peaceful ways to react to international threats against peace and security”.142 The Report repeatedly calls for the need to ensure human rights while countering terrorism and in particular calls the Security Council to ensure “that procedures for compiling lists of sanctions targets are transparent and in conformity with international human rights norms and due process”.143 The Interlaken, Bonn-​Berlin and Stockholm Processes that started in the form of workshops and diplomatic meetings led to the creation of the informal group of like-​minded States on targeted sanctions (the Group or the Like-​Minded States). The Group is comprised of Austria, Belgium, Costa Rica, Denmark, Germany, Finland, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland.144

138

139 1 40 141 142 143 144

Michael Brzoska, Design and Implementation of Arms Embargoes and Travel and Aviation Related Sanctions:  Results of the Bonn-​Berlin Process (bicc 2001)  9, accessed 6 May 2018. For more on the Interlaken Process see . accessed 6 May 2018. See Michael Brzoska (n 138) 9. Peter Wallensteen, Carina Staibano and Mikael Eriksson, Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Option (Uppsala University 2003). ibid, iii. ibid, para 63. Letter dated 13 July 2015 from the Ombudsperson to the President of the Security Council, S/​2015/​533, at para 20.

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The Like-​Minded States have had a very active role in the standard-​setting process of targeted sanctions reform. They have made concrete proposals on how to reform the due process mechanism, enhance competences of the Office of the Ombudsperson, encourage uniformity in the delisting review process, and many other issues.145 In its 2014 paper entitled ‘Improving fair and clear procedures for a more effective United Nations sanctions system’, the Like-​Minded States also suggested long-​term solutions to the problems associated with targeted sanctions.146 The paper suggests, inter alia, that the Office of the Ombudsperson become permanent and have the ultimate authority to decide on delisting, and calls for more transparency and cooperation between States and the Office of the Ombudsperson. With their active engagement in human rights reform and effectiveness of targeted sanctions mechanisms, the Like-​Minded States become the watchdog of the Security Council’s work. Despite this, after 2015, the work of the Like-​ Minded States can be hardly traced. Their reduced visibility is a matter of concern for maintaining the pressure on the Security Council to further sanctions decision-​making reform. 3 Special Rapporteur on Counter-​Terrorism and Human Rights The human rights clauses in resolutions of Security Council and General Assembly provide that UN institutions and Member States are cognizant that targeted sanctions have to integrate a human rights perspective. Yet there is no evidence to suggest that the human rights clause reduced the number of

145 See e.g. Proposal to the United Nations Security Council by the Group of Like-​Minded States on targeted sanctions, 12 November 2015, accessed 6 May 2018; Letter dated 17 April 2014 from the Permanent Representatives of Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland to the United Nations addressed to the President of the Security Council, S/​2014/​286, accessed 6 May 2018; Letter dated 18 June 2015 from the Representative of Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, Netherlands, Norway, Sweden and Switzerland to the United Nations, S/​2015/​459  accessed 6 May 2018. See also Douglas Cantwell, ‘A Tale of Two Kadis: Kadi II, Kadi v Geithner and U.S. Counterterrorism Finance Efforts’ (2015) 53 Columbia Journal of Transnational Law 652, 662 and 669. 146 ibid, Letter dated 17 April 2014 from the Permanent Representatives of Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland to the United Nations.

42 Chapter 2 human rights violations while countering terrorism nor provided concrete suggestions on how to achieve that aim. In the light of these developments, in 2005 the (then) UN Commission on Human Rights decided to appoint a Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (the Special Rapporteur or the Special Rapporteur on Counter-​Terrorism and Human Rights).147 The Special Rapporteur was mandated, inter alia, [to] make concrete recommendations on the promotion and protection of human rights and fundamental freedoms while countering terrorism … [and]… [to] identify … and promote best practices on measures to counter terrorism that respect human rights and fundamental freedoms.148 Accordingly, Mr Martin Scheinin and Mr Ben Emmerson, namely the first and the second Special Rapporteurs, have produced reports with concrete recommendations on which human rights standards and review mechanisms should be in place when countering terrorism.149 While the two Special Rapporteurs have reflected different views on the alternative ways of challenging the listing of Security Council targeted individuals, both suggested that the Security Council should further advance human rights while countering terrorism.150 Special Rapporteur Ben Emmerson has made concrete proposals for a long-​ term solution to the remaining due process deficiencies in the mandate of the Office of the Ombudsperson. He suggested that the Security Council establish the Office of the Independent Designations Adjudicator (oida)151 which would be mandated to 147 60th meeting of the Office of the High Commissioner for Human Rights, Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Resolution 2005/​80 of 21 April 2005, para 14. 148 ibid. 149 See in particular ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Report to the General Assembly’ 2008 (n 99); ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Report to the General Assembly’ (26 September 2012) UN Doc A/​67/​396. 150 ibid, compare and contrast para 16 of the ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2008 with para 32 of the ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2012 (n 149). 151 The Special Rapporteur Ben Emmerson suggests that the oida replace the Office of the Ombudsperson.

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authorise, … receive and determine petitions from [all] designated individuals or entities …, for their removal from the Consolidated List and … for the authorisation of humanitarian exemptions; and to render a determination that is accepted as final by the Al-​Qaida Sanctions Committee and the Security Council.152 According to the Special Rapporteur, the Security Council has the power, pursuant to Chapter vii, to establish the oida as an independent adjudicator with jurisdiction to review and overturn a designation by the Sanctions Committee.153 There are several interesting features of the oida proposal. First, the Special Rapporteur made sure to clarify that the work of the oida would not affect the powers of the Security Council but only assist it in completing a sanctions decision-​making process.154 According to Ben Emmerson, the “[review] by an independent adjudicator would not be directed to decisions of the Council, but to those of a subordinate body exercising delegated executive powers”.155 As such, the oida gains attainability by not threatening the autonomy of the Security Council. Second, the Special Rapporteur has clarified that the Security Council would retain the power to revoke or amend the resolutions related to the powers of the oida at all times. In that vein, the mechanism itself, though independent in exercising its mandate, remains under the institutional authority of the Security Council.156 Third, the oida is presented as a mechanism that aims not only to fill in the human rights deficiency but also to strengthen the enforcement of the targeted sanctions regime as a foreign policy tool.157 Through such aims, it is presented as a mechanism that will put an end to domestic and regional legal challenges to the implementation of the sanctions regime. Fourth, according to the Special Rapporteur, the oida would only be an enhanced mandate of the Office of the Ombudsperson and not a new legal edifice in the form of a court. Thus, the oida is presented as a mechanism that could be established by adjusting an already existing body.

152 ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2012 (n 149) para 59 (a). 153 ibid, para 23. 154 ibid. 155 ibid. 156 ibid. 157 ibid.

44 Chapter 2 In light of the foregoing, the oida is presented as a quasi-​adjudicator, a mixture of the existing UN Ombudsperson and perhaps the UN review panels in peacekeeping operations, such as the United Nations Interim Administration Mission in Kosovo (unmik) Human Rights Advisory Panel. The latter was mandated to “examine complaints from any person or group of individuals claiming to be the victim of a violation by unmik of the human rights”.158 The features of the oida are comparable to other institutions that have been established under the authority of the Security Council. The Special Rapporteur Ben Emmerson appears to have been more cognizant of the realpolitik in the Security Council and the legal implications of any judicial or quasi-​judicial review mechanism for sanctions decision-​making. The success of the oida proposal depends not only on the Security Council but also on the way national and regional courts as well as other actors engaging with human rights and targeted sanctions respond to the initiatives. The Security Council may be discouraged to carry out the reform if national and regional courts or other actors undermine the adequacy of the oida proposal. This matter is further discussed in the last part of the monograph. C

Security Detentions Authorised by the Security Council

I Resolutions Authorising Prolonged Detention Another area where the Security Council became particularly active since its post-​ Cold War revitalisation was in international military operations.159 To restore or secure international peace and security, the Security Council has adopted various forms of military operations, including peacekeeping operations, administration of territories and other operations acting in support of governments that have requested assistance to stabilise their countries.160

158 See UNMIK Regulation No. 2006/​12 (23 March 2006)  on the Establishment of the Human Rights Advisory Panel, ;accessed 6 May 2018; Human Rights Review Panel, Annual Report 2012, 39. 159 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de Droit International, 265. 160 See e.g. Introduction of the Copenhagen Process on the Handling of Detainees in International Military Operations, prepared for the first Copenhagen Conference on 11–​12 October 2007.

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Lacking the in-​house military resources required to enforce such enforcement measures,161 the Security Council delegated its own powers under Chapter vii authorising States and coalitions to deploy armed forces and take all necessary measures to maintain or restore international peace and security.162 In numerous resolutions, the Security Council has authorised States to take “all necessary means” and “all necessary measures” in the implementation of its mandates.163 These phrases in the Security Council resolutions were perceived, though not without controversy, as providing States implementing the mandate with a legal basis on which to detain individuals, when necessary.164 Detentions undertaken in this context are usually known as preventive detentions or internments.165 Both terms are used interchangeably and are applied to describe detention as necessary to prevent a potential threat or danger from occurring.166 The Copenhagen Process on the Handling of Detainees in International Military Operations, prepared for the first Copenhagen Conference on 11–​12 October 2007 stated [t]‌he legal basis for military forces to detain persons typically derives from the mandate of a given operation. The types of operations … are typically based on a Chapter vii resolution of the [unsc] … A unsc resolution may contain or refer to text on detention, and supplementary regulation may be found, for example, in standard operating procedures, rules of engagement and status-​of-​forces agreements …

161 The original intention was that the UN would directly carry out such measures. See Frederic L. Kirgis Jr., ‘The Security Council’s First Fifty Years’ (1995) 89 American Journal of International Law 506. 162 ibid; Helmut Freudenschuß, ‘Between Unilateralism and Collective Security:  Authorizations of the Use of Force by the UN Security Council’ (1994) 5 European Journal of International Law 492; Nigel D. White and Özlem Ülgen, ‘The Security Council and the Decentralised Military Option: Constitutionality and Function’ (1997) 44 Netherlands International Law Review 378; Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Clarendon Press 1999). 163 Nico Krisch, ‘Article 39’ (n 3) 1237. 164 Sean Aughey and Aurel Sari, ‘Targeting and Detention in Non-​International Armed Conflict: Serdar Mohammed and the Limits of Human Rights Convergence’ (2015) 91 International Law Studies 60, 78. 165 See Stella Burch Elias, ‘Rethinking “Preventive Detention” from a Comparative Perspective:  Three Frameworks for Detaining Terrorist Suspects’ (2009) 41 Columbia Human Rights Law Review 99. 166 ibid.

46 Chapter 2 In these circumstances, the mandate to detain is often based on the traditional wording of unsc resolutions giving a military force the mandate to ‘take all necessary measures’ in order to fulfil the given task. When a UN resolution is unclear or contains no text on the mandate to detain, the right to self-​defence may contain an inherent yet limited right to detain.167 A practice evidencing this understanding can be found in many international military operations in times of peace and of conflict. It is unsurprising that international missions acting under the Security Council authorisation have adopted rules regulating the arrest and internment of individuals without charge. These rules were adopted, presumably, in compliance with Security Council resolutions, and were perceived to be part of the mission’s mandate. In The Law and Practice of International Territorial Administration Carsten Stahn observes these examples of detentions in the vast majority of international civilian and military operations.168 The regulation and the use of detentions by the UN and nato troops in Kosovo is a good illustration. As regards UN troops in Kosovo, unmik Regulation No. 1999/​2 deliberately authorised preventive detention to secure public peace and order.169 While that regulation provided that preventive detention should be no longer than 12 hours, the unmik Special Representative of the Secretary-​General could, and did, grant extensions through Executive Orders.170 The srsg Executive Orders contained no information about the grounds for the continued detention and gave no right to challenge its lawfulness.171 It must be recalled that unmik Regulations were adopted pursuant to Security Council Resolution 1244. According to the icj, unmik regulations were an integral part of international law. In its Advisory Opinion on Kosovo the icj held 167 Copenhagen Process on the Handling of Detainees in International Military Operations, prepared for the first Copenhagen Conference on 11–​12 October 2007. 168 Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press 2008) 690–​700. 169 UNMIK Regulation No 1999/​2 (12 August 1999) Section 2  accessed 6 May 2018. 170 ibid, Section 2.2. 171 See generally Elizabeth Abraham, ‘The Sins of the Savior: Hold the United Nations Accountable to International Human Rights Standards for Executive Order Detentions in its Mission in Kosovo’ (2003) 52 American University Law Review 5. Concerning the unmik’s position, see UNMIK Refutes Allegations of Judicial Bias and Lack of Strategy, 25 June 2001 .

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unmik regulations … are adopted by the Special Representative of the Secretary-​General on the basis of the authority derived from Security Council resolution 1244 (1999) … and thus ultimately from the United Nations Charter. [unmik Regulation] … derives its binding force from the binding character of resolution 1244 (1999) and thus from international law.172 The authority of unmik police to detain was considered to emanate from the UN Charter, namely the terms of Security Council Resolution and unmik regulations. This power also appears to have extended to the nato troops in Kosovo, kfor. Pursuant to Security Council Resolution 1244, kfor adopted a similar Detention Directive providing for detentions without judicial review initially for one month, but with the authority to extend such detentions.173 In the Behrami and Saramati, all respondent States suggested that kfor had the mandate to detain pursuant to Security Council Resolution 1244.174 The Court in its assessment also endorsed this argument when it held [h]‌aving regard to the … unsc Resolution 1244 (paragraph 9 as well as paragraph 4 of Annex 2 to the Resolution) as confirmed by … comkfor Detention Directive 42 …, the Court considers it evident that kfor’s security mandate included issuing detention orders.175 The right to detain has been understood not only by implication in the phrases “all necessary means” and “all necessary measures”, but also by explicit mention of detention. Such phrases can be found, inter alia, in the statement attached to Security Council Resolution 1546. In that Resolution, it was provided that “activities [of the Multi-​National Force] necessary to counter ongoing security threats [in Iraq] include … internment where necessary for imperative reasons of security…”.176 While one may argue that the annexed letter does not have the same legal force as the Resolution itself, its terms continue to remain decisive

172

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo International Court of Justice [2010] Advisory Opinion ICJ Rep para 88. 173 See comkfor Directive 42 of 9 October 2001, Section 4. See also Section 2 (e) of this Directive providing ‘‘this authority to detain is a military decision, not a judicial one’’. 174 Behrami and Saramati (n 11) paras 86 and 92. 175 ibid, para 124. 176 UNSC Res 1546 (8 June 2004) UN Doc S/​RES/​1546, Annex.

48 Chapter 2 when interpreting Security Council resolutions. The icj has already held that the interpretation of Security Council resolutions may require an analysis of statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions.177 The language of the resolutions and State practice allows the suggestion that the right to detain, as practiced in international military operations authorised by the Security Council, is considered to have its legal basis in the Security Council resolutions. On the other hand, the power to detain indefinitely is at odds with international human rights obligations. There remain divergent views on whether the right to detain amounts to displacement of human rights, whether the alleged authorisation to detain amounts to an obligation under the UN Charter and so on. In the following section, some of these considerations will be examined. II Displacing Human Rights through Indefinite Detentions The alleged power to undertake preventive detention pursuant to Security Council resolutions or mission regulations affects the right to habeas corpus, regulated in great detail under Article 5 of the echr. Article 5.1 of the echr provides that no one shall be deprived of his liberty except in one of the circumstances set out in sub-​paragraphs (a)  to (f). The ECtHR has repeatedly held that “the list of grounds of permissible detention in Article 5[.1] does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time”.178 Furthermore, Article 5.2 requires that the detainee should be informed promptly of the reasons for his arrest and Article 5.4 guarantees that every detainee should be entitled to

177 178

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (n 172) para 94. Hassan v the United Kingdom (App No 29750/​09) ECHR 16 September 2014, para 96. See also Lawless v Ireland (App No 332/​57) ECHR 1 July 1961, paras 13 and 14; Ireland v the United Kingdom (App No 55310/​71) ECHR 18 January 1978, para 196; Guzzardi v Italy (App No 7367/​76) ECHR 6 November 1980, para 102; Jėčius v Lithuania (App No 34578/​97) ECHR 31 July 2000, paras 47–​52; Al-​Jedda v The United Kingdom (App No 27021/​08) ECHR 7 July 2011, para 100.

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take proceedings to have the lawfulness of his detention decided speedily by a court. As such, there appears to be no space under Article 5 of echr to justify preventive detention even when that is exercised in the light of Security Council resolutions or missions regulations. While one may argue that the obligations in Security Council resolutions may prevail over Article 5 of the echr, such a determination can only be made by an independent judicial body. The latter would have to assess, in individual cases, whether the terms of a Security Council resolution provided for an obligation or authorisation to detain, whether the period of internment can be limited or indefinite and to what extend preventive detention should accommodate human rights obligations of habeas corpus. As with cases of targeted sanctions, there is no available judicial mechanism at the UN level to examine human rights complaints emanating from the conduct of States operating under Security Council authorisations. Such complaints can, at best and where applicable, be addressed by the human rights advisory mechanisms established in the context of a mission operating under the Security Council resolution. In such situations, human rights advisory mechanisms with non-​binding powers were established to review individual claims in relation to acts and omissions of that mission. An example of such a mechanism is that established in relation to Kosovo.179 The unmik Human Rights Advisory Panel was established partly as a result of continued detentions “on the basis of military decisions not subject to any independent review”.180 The mechanism was considered to fall short of the standards of independent review, and its delayed decisions have been largely non-​implemented.181 In the vast majority of cases, where such human rights mechanisms are absent, domestic and regional courts remain the remedies of last resort to address individual complaints. Like the cases of targeted sanctions, human rights claims related to preventive detentions have also reached various domestic and regional courts to review such measures against the requirements of the right to habeas corpus.

179 UNMIK Regulation No 12/​2006 (23 March 2006)  on the establishment of the Human Rights Advisory Panel. 180 Venice Commission, ‘Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms’, Opinion No 280/​2004 (11 October 2004) para 51. 181 See Carsten Stahn (n 168) 627.

50 Chapter 2 The UN Human Rights Initiatives in the Context of Security Detentions As cases of security detentions increased over the years, the UN bodies and its Member States have taken several initiatives to set long-​term standards on the handling of detainees, including in cases authorised by the Security Council. There are at least three recognisable examples of such developments. First, the UN has established a Working Group on Arbitrary Detentions to identify problems and propose solutions concerning arbitrary detentions. The Working Group on Arbitrary Detentions has produced several reports with concrete recommendations on improving human rights security detentions, including those in the context of international missions.182 The 2015 draft report of the Working Group titled United Nations Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court183 addresses aspects of the legality of detentions and aims to provide guidance to States on the fundamental principles on which the laws and procedures regulating the aforementioned right should be based.184 Second, the Danish Government through its Copenhagen Process has led a process supported by many States on the identification of law and policies in the handling of detainees, including in cases authorised by the Security Council. This project commenced during the Danish presidency of the UN Security Council in mid-​2006,185 resulted in a publication of the report The Copenhagen Process: Principles and Guidelines on the Handling of Detainees in International Military Operations.186 To date, this document remains the essential guideline for assisting States and the Security Council in handling current challenges related to detentions. It has been heralded as holding the potential to “greatly III

182 Regarding the mandate and reports of the Working Group on Arbitrary Detentions see accessed 6 May 2018. 183 Draft Report of the Working Group on Arbitrary Detention ‘United Nations Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court’, Report to the General Assembly, UN Doc A/​ HRC/​30/​xx of June 2015  accessed 6 May 2018. 184 ibid, para 7. 185 Letter from the Permanent Representative of Denmark to the United Nations addressed to the Secretary-​General, UN Doc S/​2006/​367 (7 June 2006) . accessed 6 May 2018. 186 Copenhagen Process on the Handling of Detainees in International Military Operations, prepared for the first Copenhagen Conference on 11–​12 October 2007.

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assist in the progressive development of the law concerning the handling of detainees”.187 Third, the UN Security Council in its international missions has already explored quasi-​judicial mechanisms to review complaints of alleged human rights violations committed by the UN missions, including in cases of detentions. As already noted, one such mechanism was installed by the unmik administration in Kosovo. The Special Representative of the Secretary General in Kosovo, pursuant to the authority given to him under the Security Council Resolution 1244, set up a Human Rights Advisory Panel mandated to review human rights complaints regarding violations perpetrated by unmik. This mechanism had the mandate to review also cases of security or prolonged detentions, excessive use of force by the UN police and other acts and omissions giving rise to infringements of international human rights conventions.188 Given the foregoing developments, it appears that the initiatives of the UN bodies and Member States have been concrete in bringing normative, policy and institutional improvements in promoting human rights in cases of security detentions. However, despite the Security Council’s efforts to address arbitrary detentions, human rights concerns remain present. Some of these challenges will be presented in the chapter dedicated to judicial responses, including in cases of security detentions. D Conclusions In recent years, the Security Council has been faced with unconventional threats to international peace, caused by old and new actors. The Security Council has considered, inter alia, epidemics, terrorism and internal armed conflicts to present a threat to international security. Furthermore, the Strasbourg Court has noted that “[l]‌arge scale cross border displacement of refugees can also render a threat international”.189 In response to threats coming from State and non-​State actors, the Security Council has struggled to identify the adequate measures to maintain peace. This submission demonstrates that some of its security measures have

187 Bruce Ossie Oswald and Thomas Winkler, ‘The Copenhagen Process:  Principles and Guidelines on the Handling of Detainees in International Military Operations’ (2014) 83 Nordic Journal of International Law 138, 166. 188 See Article 1 (2) of the UNMIK Regulation No 2006/​12 (n 158). 189 Behrami and Saramati (n 11) para 23.

52 Chapter 2 developed in isolation from other values and principles of international law, including human rights. Some of the Security Council resolutions providing for targeted sanctions and security detentions were understood to provide explicit or implicit legal authorisations to limit or derogate from human rights. In terms of listing in the Security Council sanctions regimes, the flaws in the process of listing of individuals and entities result in inevitable errors and chances for toxic designations. At the same time, the reform process as regards delisting remains incomplete, allowing access to the Office of the Ombudsperson only to individuals and entities listed in the isis (Da’esh) and Al Qaida sanctions regime. Furthermore, while the Office of the Ombudsperson is the most advanced mechanism at the Security Council, concerns regarding due process remain present. With regard to security detentions, the Security Council resolutions provide authorisations for States participating in UN missions to detain individuals believed to present a threat to security. These resolutions have been understood by States to provide an authorisation backed by the UN Charter for prolonged detentions. The individuals concerned are deprived of their liberty, at times for many years, and have no access to a court. Both measures, namely listing in cases of counter-​terrorism and detentions in UN-​authorised missions are presented as preventive measures and not criminal charges. Practice, however, reveals that these measures, originally intended to be temporary in nature, have resulted in years of arbitrary listings and detentions with severe effects on the human rights of the individuals concerned. The Security Council’s internal review has itself found numerous errors with regard to toxic designations and arbitrary detentions in UN-​authorised missions. The imbalanced evolution of certain security measures and review mechanisms for the protection of human rights has changed the long-​perceived positive correlation between the work of Security Council and the protection of human rights. Bardo Fassbender rightly observes that “[t]‌he idea that the work of the UN Security Council could interfere or come into conflict with international protected human rights had surely not been contemplated by the founders of the United Nations”.190 Indeed, while historically the work of the Security Council contributed to the advancement and protection of human rights through promotion of international peace, the post-​Cold War measures

190

Bardo Fassbender, Securing Human Rights? Achievements and Challenges of the UN Security Council (Oxford University Press 2011) 3.

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related to international security instead became intrinsically linked to interference with human rights.191 Now, the Security Council’s targeted sanctions and security detentions mostly hit the headlines for their negative impact on human rights. Cognizant of these human rights deficiencies, UN institutions and Member States have undertaken important initiatives to incorporate human rights concerns in Council measures and policies regarding the maintenance of international peace. While some of the initiatives examined above have led to significant improvements, serious concerns remain as to how to accommodate all human rights in the work of Security Council. 191 The preambular of UNGA Res 39/​11 (12 November 1984) provides that “[l]‌ife without war … serves as the primary international prerequisite … for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations”.

Chapter 3

Duty to Comply with Security Council Resolutions: the Force of the UN Charter This part examines the extent to which States, both members and non-​ members, and regional organisations are obliged to comply with Security Council decisions. It first charts the development of Security Council resolutions, and then continues to perform a normative analysis of the UN Charter. As the book is focused on European jurisprudence, it includes a section analysing the effects of the UN Charter on the EU legal order as a non-​member constituted of members. A

The Universal Reach of Security Council Resolutions

The UN Charter is an international treaty adopted by and for the interest of its parties. Yet, in view of the context, content and purposes of its adoption, the Charter has –​unlike other treaties –​been portrayed as having a “special, possible ‘constitutional’ character”,1 being a “higher law”2 and a “Constitution of the international community”.3 It was also perceived as a “noble undertaking [of] humanity”4 and as “the indispensable common house of the entire human family.”5 Others, by reference to projects of legal philosophy, depict the UN and its Charter as stepping stone towards the realisation of the Kantian vision of a cosmopolitan constitutional order.6 1 Anne Peters, ‘Article 25’ in Bruno Simma et al (eds), The United Nations Charter: A Commentary (3rd edn, Oxford University Press 2012) 803. 2 Hersch Lauterpacht, ‘The Covenant as the “Higher Law” ’ (1936) British Yearbook of International Law, referring to Article 20 of the Covenant of the League of Nations. 3 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de Droit International, 262; See also Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff 2009); UK House of Commons, ‘The Fourth Report of the Foreign Affairs Committee’ (23 May 2000) para 128, referring to the UN Charter as the “basic law of the international community” accessed 6 May 2018. 4 Preamble of the Charter of the Organization of American States (Bogota, 30 April 1948). 5 UNGA Res 55/​2 (18 September 2000) United Nations Millennium Declaration, 32. 6 Jürgen Habermas, The Divided West (Polity 2006) 135.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004345263_004

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While some of these characterisations have been challenged and may be considered ambitious or imprecise, there is a wide acceptance that the Charter has brought some revolutionary and innovative steps to modern international law.7 Unlike its predecessor, the League of Nations, the UN has introduced the capacity for a body, the Security Council, to issue binding decisions on UN Members for the maintenance of international peace.8 Furthermore, some decisions of the Security Council have a universal appeal and aim to reach the entire international community. These measures, therefore, affect the legal orders of members and non-​members of the UN alike. This understanding of the legal effects and universal reach of the UN Charter leaves the Security Council in a position to take any measures deemed necessary for the maintenance of international peace without considering whether such measures will be accepted by the addressees. In doing so, the Security Council does not seem to be concerned whether the legal orders affected, including non-​UN Members, have consented to be bound by the UN Charter. Instead, when the Security Council acts, it only considers whether the Charter has vested it with the authority to decide what constitutes a threat to international peace and security, to identify the responsible State or non-​State actors for the threat or breach of international peace, and, at best, provide instructions on how its measures should be carried out. In fact, the Security Council hardly concerns itself with whether the Charter grants very explicit powers. It is a truism, which the Security Council’s political “operation within the law, rather than decision according to the law”,9 allows it to focus on the achievement of its goals without explaining the legal grounds of that process and its consequences. In the age of fragmentation of international law and proliferation of international courts and tribunals, however, there is a practical need to examine to what extent the measures of the Security Council are binding on Members, but also non-​UN Members. The following section will, therefore, examine the place of the UN Charter in legal orders of UN Members States and non-​UN-​ Members, including the European Union.

7 Concerning the challenges see e.g. Al-​Dulimi and Montana Management Inc. v Switzerland (App No 5809/​08) ECHR GC 21 June 2016, concurring opinion of Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal and Dedov. Concerning the innovative steps, see Anne Peters, ‘Article 25’ (n 1) 709. 8 ibid, Anne Peters ‘Article 25’ (n 1). 9 Rosalyn Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’ (1970) 64 American Journal of International Law 1, 16.

56 Chapter 3 B

The Place of the UN Charter in UN Member States

Article 25 of the UN Charter provides that “[t]‌he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. According to Kelsen, the verb “agree to accept” emphasises the contractual character of the obligation.10 This refers to the overall consent given by States upon ratification of the UN Charter.11 Furthermore, as the consent is given to carry out the future decisions of the Security Council, one may call it as an expression of readiness for ‘eternal’ compliance. This consent comes partly because Member States themselves set up the Security Council to act on their behalf and for their interest. At least this is what they agree to in ratifying the UN Charter [i]‌n order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.12 Reading this in conjunction with the clear terms of Article 25 of the Charter, Member States are deprived of the ability to decide in each case whether to accept or reject a decision of the Security Council.13 States therefore consent to honour ‘unknown’ terms of future Security Council resolutions. This pre-​ agreed consent also forbids Member States from finding excuses for non-​ implementation of future decisions of the Security Council.14 Article 25 nevertheless does not establish an obligation for Member States to carry out every decision of the Security Council, including those of non-​ binding character. Instead, only those decisions that are binding in accordance with the Charter create obligations for Member States. In the early days of the UN Charter, it was believed that Article 25 encapsulated only decisions of the Security Council taken under Chapter vii.15 However, 10 1 1 12 13 14 15

Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (Stevens & Sons, 1950) 95. Anne Peters, ‘Article 25’ (n 1) 795. Article 24 (1) of the UN Charter. Anne Peters, ‘Article 25’ (n 1) 795. ibid. Jost Delbrück, ‘Article 25’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (1st edn, Oxford University Press 2002) 453–​458.

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over the course of time, it has been accepted that binding decisions of the Security Council are not limited only to Chapter vii, but also cover Chapter vi decisions on dispute settlement.16 Although there is no taxonomy on this matter, it has been argued that binding character derives from the language and purpose of each decision of the Security Council. In the Advisory Opinion on Namibia, the icj held: Article 25 is not confined to decisions in regard to enforcement action but applies to ‘the decisions of the Security Council’ adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter vii, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter.17 The rationale of Article 25 is that “the Members are obliged to carry out [only those] resolutions of the Security Council which the Security Council is authorised by the Charter to issue with the intention to bind the Members at whom they are directed”.18 The practice of the Security Council reveals that the failure to comply with binding decisions constitutes a violation of the Charter. In a resolution addressing the situation in Angola, the Security Council stressed the obligation of all Member States to comply fully with the measures imposed against unita contained in resolutions 864 (1993), 1127 (1997) and 1173 (1998), and [emphasised] that non-​compliance with those measures constitutes a violation of the provisions of the Charter of the United Nations.19

1 6 17 18 19

Anne Peters, ‘Article 25’ (n 1) 793. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-​ West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971], Advisory Opinion, ICJ Rep 16, para 113. Hans Kelsen, The Law of the United Nations (n 10) 95. UNSC Res 1295 (18 April 2000) UN Doc S/​RES/​1295 on the situation in Angola. See also UNSC Res 1474 (8 April 2003) UN Doc S/​RES/​1474, para 1; UNSC Res 1519 (16 December 2003) UN Doc S/​RES/​1519, para 1.

58 Chapter 3 Furthermore, a failure to comply with binding decisions may in itself constitute a threat to international peace. Kelsen had suggested that [i]‌f non-​compliance with the decision of an organ of the United Nations constitutes a threat to, or breach of, the peace, the Security Council may continue the enforcement action taken under Article 39 against the recalcitrant [S]tate until the latter has complied with the decision concerned, in so far as only then –​in the opinion of the Security Council –​international peace and security are maintained or restored.20 The practice of the Security Council endorses this view. Security Council Resolution 1267 “[determined] that the failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214 (1998) constitutes a threat to international peace and security”.21 In conclusion, Article 25 read in conjunction with the language of the Charter and the practice of the Security Council provides that decisions of the Security Council taken under Chapter vii, and possibly some decisions under Chapter vi, create binding obligations at least in so far as UN Members are concerned. Member States agree to accept and carry out such decisions without making recourse to domestic law. I Are All Security Council Resolutions in Compliance with the Charter? Article 24.2 provides that the Security Council, in discharging its duties, shall act in accordance with the Purposes and Principles of the United Nations. Judge Weeramantry, in his dissenting opinion in Lockerbie, remarked that the duty of the Security Council to act in accordance with the Purposes and Principles of the Charter is imperative and the limits are categorically stated.22 It has been argued that Article 25 also sets legal limits to the scope of action by the Security Council. The phrase “decisions of the Security Council in accordance with the present Charter” has been interpreted to suggest that the Security Council shall, inter alia, observe the Charter and international law when creating obligations for UN Member States. Some more ‘radical’23 views consider that decisions under Article 25 are binding on States only if they were 20 21 22 23

Hans Kelsen, The Law of the United Nations (n 10) 294. UNSC Res 1267 (15 October 1999) UN Doc S/​RES/​1267, eighth preambular paragraph. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v United Kingdom) and (Libya v United States of America) [1993] ICJ Rep, 544. The term has been used by Anne Peters. See Anne Peters, ‘Article 25’ (n 1) 809.

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adopted in accordance with the Charter.24 In this vein, Dan Ciobanu has argued that when a decision by a UN body is clearly erroneous, any State is entitled to ignore such a decision as a “right of last resort”.25 This argument appears to suggest, however, that Member States are entitled to examine when a decision of the Security Council is in compliance with the Charter and international law and when it is not. This understanding would encourage autonomous interpretations of the Charter which could, inevitably, lead to different and sometimes opposing arguments being used when States decide on (non)compliance with decisions of Security Council. This view leaves unanswered issues of authoritative interpretations of Security Council resolutions, legal certainty, and universal application of the Charter obligations.26 While the drafters of the UN Charter did not intend such a radical interpretation,27 one should rightly look for legal limits if the Security Council takes unjust or erroneous decisions. If the terms of Security Council resolutions clearly contradict the purposes and principles of the Charter, it could be considered that States might commence a civil disobedience of sorts through ‘filtering’ which decisions to honour, and which not.28 By not offering a blank check to decisions of the Security Council, they may show resistance to the implementation of some specific terms.29 24

25 26

27 28

29

Legal Consequences for States of the Continued Presence of South Africa in Namibia (n 17) para 115 “[t]‌he decisions made by the Security Council … were adopted in conformity with the purposes and principles of the Charter and in accordance with its Articles 24 and 25. The decisions are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out”. Dan Ciobanu, Preliminary Objections Related to the Jurisdiction of the United Nations Political Organs, (Martinus Nijhoff 1975) 173–​9. Regarding the interpretation of Security Council resolutions and the UN Charter see Michael C. Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Yearbook of United Nations Law 73; José J.  Alvares, International Organizations as Law-​ makers (Oxford University Press 2005) 65–​109. See Louis B Stahn, ‘Interpreting the Law’ in Oscar Schachter and Christopher C. Joyner (eds), United Nations Legal Order (Harvard University Press 1995) 169–​173. See e.g. Motion 09.3719 Submitted to the Swiss Council of States by Dick Marty (12 June 2009). The Motion provides that Switzerland must not “[implement] sanctions against individuals included on the 1267 Consolidated List in cases where the individual: (1) has been on the list for more than 3 years and not been brought before the court, (2) has not had the possibility to resort to an independent institution for a remedy, (3) has had no indictment issued, and (4) has not had new incriminating evidence brought forward since listing”. See generally Antonios Tzanakopoulos, Disobeying the Security Council Countermeasures against Wrongful Sanctions (Oxford University Press 2013).

60 Chapter 3 Overall, the presumption of legality of Security Council decisions is connected with the expectation that the Security Council, in discharging its duties, complies with the purposes and principles of the Charter.30 On the other hand, some States may argue that the principles and purposes of the Charter may not always lead to harmonious ends. Thus, if for instance the Security Council decides to take decisions on targeted sanctions, they may comply with principles calling for maintenance of international security. Yet, that decision may not fully observe the purposes of the Charter, namely Article 1.3, calling for promotion of human rights. In such circumstances, the tension between purposes and principles of the Charter would trigger the question of the legality of Security Council decisions. As the Security Council is primarily concerned with the maintenance of international peace, it would be unsurprising if its measures focus heavily on security issues. The difficulty in reconciling purposes and principles of the Charter, however, does not necessarily make Security Council resolutions more or less legal. Indeed, it does not appear easy to give a legal answer regarding the legal limits of the Security Council resolutions.31 This issue could perhaps be better approached through the prism of legitimacy. In particular, while the decisions of the Security Council can hardly be contested on legal grounds, States may, in exceptional circumstances, be unwilling to honour certain of its terms in cases where human rights are systematically and prima facie compromised. This form of political revolt may be considered legitimate and it could pressure the Security Council to be more receptive to human rights. C

The Place of the UN Charter in Non-​UN Members

I General Remarks The relevance of the UN Charter for non-​UN Member States becomes relevant only when obligations of the Charter require application and respect of its terms by third States. Likewise, non-​UN Members engage with UN law and establish its place in their domestic legal order only after it has affected some of their constitutional prerogatives. Under such circumstances, non-​UN Members take a stance on the alleged external effects of the UN Charter. 3 0 31

José J Alvares (n 26) 80. See also Devon Whittle, ‘The limits of legality and the United Nations Security Council: Applying the Extra-​Legal Measures Model to Chapter VII Action’ (2015) 26 European Journal of International Law 671.

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In particular, those external effects are related to, inter alia, the primary responsibility of the Security Council to decide on peace and security measures at the global level and, the primacy of the decisions of the Security Council when in conflict with other treaty regimes. The latter, also known as normative primacy, is accorded by virtue of Article 103 of the Charter. The Expected Observance of UN Charter Obligations by Non-​UN Members Although the wording of Article 25 could be said to create obligations only for Member States, other provisions of the Charter demand similar respect from both Member States and non-​UN Members, including States and international organisations. The Charter’s repeated reference to any State or non-​Members of the UN Charter32 is employed to encapsulate all UN Member and non-​Member States and appeal to the latter for a degree of observance and obedience in the field of international peace and security. Article 2.6 of the UN Charter is of particular significance in stating that II

the Organisation [of the UN] shall ensure that [S]‌tates which are not Members of the United Nations act in accordance with [the] … Principles [of the Charter] so far as may be necessary for the maintenance of international peace and security.33 Since the Charter places no geographical limits on the performance of Security Council competencies, its Article 2.6 comes as a logical addendum to the international reach of the Council’s decisions, including extending their scope to non-​UN Members. Yet, there remain diverging views on whether Article 2.6 can be considered to create an obligation for non-​UN Members. According to Kelsen, this revolutionary provision is an exception to the pacta tertiis rule, as it provides that the Charter could also impose obligations on non-​Members in the interest of international peace and security.34 Bardo Fassbender has argued that the UN

32 3 3 34

See e.g. Articles 2 (4), 2 (5), 2 (6), 2 (7), 11 (2), 31, 32, 35, 50, 53 (2), 80 (1), 93, 107 of the UN Charter. Charter of the United Nations, 24 October 1945, UNTS XVI, article 2.6. Hans Kelsen, The Law of the United Nations (n 10) 110; Hans Kelsen, ‘Sanctions in International Law under the Charter of the United Nations’ (1946) 31 Iowa Law Review 499, 502. See also Ian Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008) 689.

62 Chapter 3 Charter does not depend on acceptance and thus is binding on all subjects, notwithstanding their legal ties with the UN.35 This is enshrined in the principle of universality or inclusiveness of the UN Charter.36 These views, nevertheless, are not immune from criticism. The vast majority of legal scholars consider that non-​UN Members “cannot be bound by an obligation under the Charter to which they are not a party, unless the Charter obligation is reflective of an obligation under customary international law”.37 Practice reveals that the Security Council’s call upon non-​UN Members for cooperation and observance of its resolutions has been crafted carefully over time. Throughout 40s and 50s, Security Council resolutions called only on Members of the UN Charter to implement its resolutions. Non-​UN Members were not called upon to observe Security Council resolutions, even when their terms related to the armed attack on the Republic of Korea by North Korean forces.38 It was only in the 1960s that the Security Council started to call upon all States to refrain from certain actions, in relation to the situations in Congo and Cuba.39 The first mandatory sanctions that also urged non-​UN Members to fully implement the resolutions of the Security Council were related to the situation in Southern Rhodesia. In 1965, the Security Council called upon all States not to recognise Southern Rhodesia40 and in subsequent resolutions continued to appeal to “all States not to render financial or other economic aid to the illegal racist regime in Southern Rhodesia”.41 In the resolutions relating to the situation in Southern Rhodesia, the Security Council started to establish a practice providing that its powers equally extend to non-​UN Members. It was only in 1972, however, that the Security Council made an explicit reference to Article 2.6 of the UN Charter when it called upon non-​UN Members

35 36 37

38 39 4 0 41

Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (n 3). ibid, 109. Stefan Talmon, ‘Article 2 (6)’ in Bruno Simma et al (eds), The United Nations Charter: A Commentary (3rd edn, Oxford University Press 2012) 255. See also Kelvin Widdows, ‘Security Council Resolutions and Non-​Members of the United Nations’ (1978) 27 International and Comparative Law Quarterly 469; Christian Tomuschat, ‘Obligations Arising for States against Their Will’ (1993 IV) 241 Recueil des Cours de l’Académie de Droit International, 252. See e.g. UNSC Res 82 (25 June 1950) UN Doc S/​RES82; UNSC Res 83 (27 June 1950) UN Doc S/​RES/​83. UNSC Res 144 (19 July 1960) UN Doc S/​RES/​144 para 3; UNSC Res 145 (22 July 1960) UN Doc S/​RES/​145 para 2. UNSC Res 217 (12 November 1965) UN Doc S/​RES/​217 para 6. UNSC Res 232 (16 December 1966) UN Doc S/​RES/​232 preamble and para 5.

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to comply with its decisions. In paragraph 2 and 3 of Resolution 314 of 28 February 1972, the Security Council [urged] all States to implement fully all Security Council resolutions establishing sanctions against Southern Rhodesia, in accordance with their obligations under Article 25 and Article 2, paragraph 6, of the Charter of the United Nations … [Declared] that any legislation passed, or act taken, by any State with a view to permitting, directly or indirectly, the importation from Southern Rhodesia of any commodity falling within the scope of the obligations imposed by resolution 253 (1968) … would undermine sanctions and would be contrary to the obligations of States.42 It is noteworthy that the power of Article 2.6 of the Charter has not been openly challenged by non-​UN Member States. In the light of the practice of the Security Council resolutions, Christian Tomuschat observed [s]‌ignificantly enough, there are hardly any voices challenging the lawfulness of the Security Council’s interpretation of its powers vis-​à-​vis third States. Members of the Security Council have never made it a point of principle, and the dissenting or abstaining States’ reluctance was in no case prompted by any reservations concerning the treatment meted out, through the all-​States clause, to third States.43 Interestingly, in the case of Kosovo, a non-​UN Member, the judges of the European Rule of Law Mission in Kosovo (eulex) found Kosovo had an obligation to observe Security Council resolutions after it declared independence. Measures persuant to Chapter vii of the UN Charter were declared “valid and enforceable for everybody regardless [of] whether he is [a]‌member of the United Nations or not.” In assessing the power of the law of the United Nations, the Court argued that such law is not dependent on the “acceptance of the addressee,” signalling observance is not an expectation, but a requirement.44 4 2 43 44

UNSC Res 314 (28 February 1972) UN Doc S/​RES/​314 (emphasis added). Christian Tomuschat (n 37) 256. Decision SCA-​09-​0042 (29 November 2012) of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, panel of eulex judges, 4. For a critical analysis see, Kushtrim Istrefi, ‘ILDC 2089’ (2014) Oxford Reports on International Law.

64 Chapter 3 Although the mixed panel of eulex judges did not employ Article 2.6 of the Charter or other sources of law to support their findings, the decision remains notable for its presumption regarding the powers of Security Council resolutions and the UN Charter vis-​à-​vis third States. While in academic circles there has been a rise in criticism of the legality of Article 2.6 of the Charter,45 the external effects of Security Council resolutions have only continued to expand over the years. Non-​State entities, as well as regional and universal organisations, have been called upon to observe Security Council decisions.46 As noted by Fassbender, [t]‌he Security Council has adopted a practice of ‘calling upon’ international organisations to act in accordance with its resolutions. Although the Council does not use the words ‘decides that’ at the beginning of the relevant paragraphs, its ‘call’ is more than just an appeal or request of a political character because legal consequences are attached to it. In fact, the Council presupposes that intergovernmental organisations are generally required to comply with Council resolutions –​a responsibility which can only be based on the Charter.47 This understanding may be inferred from Articles 52 and 53 of the Charter. These provisions provide, inter alia, that other organisations and agencies should act consistently with the purposes and principles of the United Nations, and that the Security Council may utilise them whenever deemed necessary. UN Charter rules relating to international organisations were also based on a lack of consent.48 While imposing treaty obligations without expressed consent is contrary to the law of treaties,49 the practice of the Security Council operating within the 45

46 47 48

49

See Kelvin Widdows (n 38); Benedetto Conforti and Carlo Focarelli, The Law and Practice of the United Nations (4th edn, Martinus Nijhoff 2010) 152; Rain Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 International and Comparative Law Quarterly 595. Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (n 3) 148–​150. ibid, 149. Yet, many international and regional organizations contain provisions for compliance with obligations of the UN Charter. In relation to the EU, see e.g., Preamble, Protocol No. 10 and Declaration 13 of the Consolidated Version of the Treaty on European Union [2008] OJ C115/​13 (tfeu). Article of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS 331 (vclt) provides: ‘[a]‌treaty does not create either obligations or rights for a third State without its consent’.

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framework of the UN Charter, leaves the impression that all States and international organisations have explicitly or tacitly agreed that the purposes and principles of the UN Charter are the primum verum,50 or a grundnorm in a Kelsenian transcendental-​logical sense.51 This absolutist view of the external effects of the UN Charter has long been examined against very scarce practice. Switzerland was an example of a State that observed UN Charter obligations in a voluntary fashion and Kosovo has taken a unilateral approach to being bound by the UN Charter.52 However, the emergence of the EU legal order has reignited this debate. In this vein, the issue of the external effects of the UN Charter has regained relevance more than ever. The following section will examine the normative relationship between the two as it sets the scene for a later examination of European jurisprudence on Security Council resolutions. III The UN Charter in the EU Legal Order Notwithstanding the question of whether the EU is a State-​like legal order or an international organisation, it appears that the EU cannot be immune from the ‘external effects’ of the UN Charter. From the perspective of EU law, the Lisbon Treaty also provides for an understanding that the EU must observe the UN Charter. The reference and respect to principles of the UN Charter is set out in Article 21 teu and the preamble of the Lisbon Treaty. A forceful position on this matter is to be found in Declaration 13 of the Treaty, which provides in its pertinent section

50

51 52

In theological studies, “primum verum” is used to describe the undisputed prime truth, the first truth or the universal truth, namely God. See Marsilio Ficino, ‘Platonic Theology’ in James Hankins (ed), The I Tatti Renaissance Library: Volume 4 Books XII-​XIV, (Michael JB Allen tr, Harvard University Press 2004) 227. Hans Kelsen, Pure Theory of Law (Max Knight tr, The Lawbook Exchange, Ltd. 2009) 216. Switzerland participated in the implementation of UN sanctions in the aftermath of the Cold War although it became a UN Member only in 2002. With regard to implementation of UN Charter obligations prior to its membership, the Swiss government insisted that the UN Charter does not legally bind Switzerland, but that it had decided autonomously and voluntarily (autonomer Nachvollzug) to observe its binding decisions. See Mathias-​Charles Krafft, Daniel Thürer and Julie-​Antoinette Stadelhofer, ‘Switzerland’ in Vera Gowlland-​Debbas (ed) National Implementation of United Nations Sanctions: A Comparative Study (Martinus Nijhoff 2004) 523, 525–​6; Although Kosovo is not a member of the UN, in paragraph 8 of the Kosovo Declaration of Independence of 17 February 2008 it expressed the will to be bound by the UN Charter. See also Article 19 of the Kosovo Constitution.

66 Chapter 3 the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.53 EU courts, in their embryonic engagement with international law and the UN Charter, have also reflected this understanding of the place of international law in the EU legal order. In Paulsen and Diva, the ecj observed, “that the European Community must respect international law in the exercise of its powers”.54 In a later case that concerned EC sanctions regulations implementing a UN Security Council resolution against Serbia and Montenegro, the ecj considered that the EC must respect international law.55 The EC Court reached this finding in the Racke case by making direct reference to a ruling of the icj.56 Through more careful consideration, the ecj has also been receptive of Security Council resolutions in the Ebony Maritime and Bosphorus cases.57 Despite the language of the EU treaties requiring respect of the UN Charter and the initial case-​law of the EU courts indicating such respect would be shown, a more careful look at the evolution of the EU legal order leads to the conclusion that there exists an uneasy relationship between the two. This is to a large extent a result of the changing nature of the EU legal order. The following section examines certain features of the EU’s legal personality, the purported constitutional character of the EU treaties, and autonomy. These matters are essential to understanding the complex relationship that exists between the EU and the UN Charter. 1

The EU as an Autonomous Legal Order from International Law [A]‌n international organisation … is not a native, but nor is it a visitor from abroad. It comes from the invisible depths of outer space.58

53 54 55 56 57 58

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/​01, Declaration 13. Case C-​286/​90 Poulsen and Diva Navigation [1992] E.C.R. I-​6019, para 9. Case C-​162/​96 Racke GmbH & Co. v Hauptzollamt Mainz [1998] E.C.R. I-​3688. ibid, para 50. See also Inge Govaere, ‘The importance of International Developments in the case-​law of the European Court of Justice: Kadi and the autonomy of the EC legal order’ (2009) Research Papers in Law of the College of Europe No 1/​2009. Case C-​177/​95 Ebony Maritime [1997] E.C.R. I-​1111; Case C-​84/​95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others. [1996] ECR I-​3953. Lord Donaldson MR in Arab Monetary Fund v Hashim (No. 3) [1990] 2 ALL ER 769, 775.

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The concept of autonomy is not perceived identically in all social sciences. In Immanuel Kant’s moral philosophy, autonomy denotes freedom and independent thinking that is free from the dictates of external authority.59 In Life’s Dominion, Ronald Dworkin brings the concept of individual autonomy to label the sanctity of individual life in response to questions of abortion and euthanasia.60 In the law of statehood, the concept of territorial autonomy appears to have a different meaning. An autonomous territory struggling for independence might view autonomy as hostile to independence. Autonomy, in this case, implies that an entity remains under the dominion and sovereign dependence of a parent State, although having a degree of political self-​government. In her work Law’s Relations: A Relational Theory of Self, Autonomy, and Law, Jennifer Nedelsky observes that autonomy is one of the core concepts of legal and political thought, yet also one of the least understood.61 By implying different degrees or levels of autonomy, the same concept may be associated with more or less independence. Such varying connotations applied to the concept of autonomy are a helpful starting point in dispelling misconceptions that seem to exist between international and European legal scholarship and in understanding the concept of autonomy of the EU legal regime. In the prevailing international law discourse, the autonomy of the EU legal regime is characterised by the EU being an international treaty regime with a degree of self-​government which operates within the system of the international legal order. Hence, the autonomy of the EU legal regime is grouped together with claims of autonomy of other treaty regimes, such as wto or icty. International lawyers employ autonomy to describe the positive (e.g. functionality)62 and negative (e.g. hegemony, incoherence)63 effects of the fragmentation of

59 60 61 62 63

Immanuel Kant, An Answer to the Question: ‘What is Enlightment? (HB Nisbet tr, Penguin Books 2009). See also Robert Johnson, ‘Kant’s Moral Philosophy’ (2011) The Stanford Encyclopedia of Philosophy. Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia and Individual Freedom (Alfred A. Knopf 1993). Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford Unviersity Press 2011). Jonathan Charney, ‘Is International Law Threatened by Multiple Tribunals?’ (1998) 271 Recueil des Cours de l’Académie de Droit International 101, 115. Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1.

68 Chapter 3 international law and proliferation of international courts and tribunals.64 Overall, this approach shows that the concept of autonomy of the EU legal regime means nothing different to the autonomy of other treaty regimes, such as wto or icty. By contrast, in European circles, the concept of autonomy of the EU legal regime is often utilised to describe an independent identity that could be seen as a disguised claim to sovereignty.65 Katja Ziegler rightly observes that “the cjeu has increasingly focused on the autonomy of the legal order, not just in relation to the Member States, but also in relation to international law up to the point of constructing a notion of autonomy akin to [S]‌tate sovereignty”.66 The autonomy of the EU legal regime is aimed at establishing a domestic self-​contained federalist construct whose law is self-​executing and has supremacy over the law of the Member States.67 Externally, the autonomy of the EU legal regime ensures that the reception of international law in the EU legal order does not operate through the law of treaties but through domestic constitutional choices. By reviewing the ordinariness and uniqueness of EU treaties against international and European doctrinal discourses and judicial practices, this section does not search for the semantics of this problématique. Instead, it aims to understand what EU autonomy entails in relation to international law and from whom the EU legal regime is claiming autonomy. This examination may shed light on the relationship between the EU legal order and international law and the UN law in particular. 2 EU Treaties as Constitutional Projects? If one looks at the genesis of the EU, it is not difficult to depict it as an international organisation governed by rules of international law. The founding

64

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Fragmentation of International Law:  Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (13 April 2006) UN Doc A/​CN.4/​L.682 (ilc Report on Fragmentation); Karel Wellens, ‘Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: The Role of the Judiciary in Closing the Gap’ (2004) 25 Michigan Journal of International Law 1159. Ramses A.  Wessel and Steven Blockmans, Between Autonomy and Dependence:  The EU Legal Order Under the Influence of International Organizations (T.M.C. Asser Press 2013) 2. Katja Ziegler, ‘Autonomy: From Myth to Reality –​or Hubris on a Tightrope? EU Law, Human Rights and International Law’ (2015) University of Leicester School of Law, Research Paper No. 15–​25, 1. See Case 26/​62, Van Gend en Loos v Administratie der Belastingen [1963] ECR 1; Case 6/​64, Flaminio Costa v E.N.E.L., [1964] E.C.R. 585.

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fathers and strong proponents of EU federalism were keen that the EU treaties should be adopted and operate like other international treaties.68 The Schuman Declaration, which prompted the adoption of the first EC treaty, namely the European Coal and Steel Community (ecsc) reads [a]‌representative of the United Nations will be accredited to the Authority [now the European Commission], and will be instructed to make a public report to the United Nations twice yearly, giving an account of the working of the new organisation, particularly as concerns the safeguarding of its objectives.69 The foregoing provides for the political willingness to establish an organisation of an international character that is eager to observe the UN’s role and report to it. From the legal standpoint, the evolution of the EU has followed a treaty path guided by ordinary rules of international law. The Treaty of Paris of 1951 establishing the ecsc and the Treaty of Rome of 1957 establishing the European Economic Community (eec) are ordinary public international law treaties. The same public international law rules were used for the revision of all treaties, including the Lisbon Treaty. As Professor Bruno de Witte explains [s]‌ince the 1960s, revisions of the so-​called ‘founding treaties’ … were … from the international law perspective, cases of amendment of multilateral treaties, the legal regime of which is set out in Article 39 to 41 of the Vienna Convention on the Law of Treaties.70 Indeed, even the EU Constitutional Treaty, which was rejected in a referendum by French and Dutch citizens and thus never came to life, was, in the view of its drafters, a genuine international treaty, intended to revise the previous treaties and not to create an entirely new legal edifice.71

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The Schuman Declaration, presented by the French foreign minister Robert Schuman on 9 May 1950 reads “the essential principles and undertakings defined above will be the subject of a treaty signed between the States and submitted for the ratification of their parliaments”. ibid. Bruno de Witte, ‘International Law as a Tool for the European Union’ (2009) 5 European Constitutional Law Review 265, 267–​268. ibid.

70 Chapter 3 Notwithstanding the observations above, one has to recognise that since the adoption of the first EC Treaty, the EU has significantly expanded its competencies and institutions, and increased in number of Member States and citizens. Member States agreed to transfer more power to the EU not only on issues related to economic cooperation but also in fields that were typically reserved to domestic authorities, including but not limited to foreign affairs, justice and police. This transformation of the EU has had a significant impact in reshaping its relations with the Member States. Yet, from the perspective of international law, little if anything has changed. An international lawyer might only observe that the EU has benefited from the rich and flexible rules of the Vienna Convention on the Law of Treaties, which “allows [S]‌tates to include in treaties such amendment provisions as they wish”.72 Essentially, the international law character of the EU treaties has remained the same because the EU treaties are revised and enforced according to clauses on ratification of international agreements contained in the domestic constitutions of the EU Member States. The EU treaties as international law constructs denote that the law of treaties also guide their interaction with other treaty regimes. International law may particularly offer some guidance on mitigating cases of normative conflicts between the EU and other treaty regimes.73 However, all such theories suggest that the EU is within the international legal system and thus has to play by the rules of international law. Such integration to the international legal system drastically differs from the European 72 73

Anthony Aust, Modern Treaty Law and Practice (Cambridge University Press 2000) 214. See e.g., ILC Report on Fragmentation (n 64); Jan Klabbers, Anne Peters, and Geir Ulfstein (eds), The Constitutionalization of International Law (Oxford University Press 2009); Erika de Wet and Jure Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (Oxford University Press 2012); Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (n 3) 217–​384, esp. 233; Pierre-​Marie Dupuy, ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’ (2005) 16 European Journal of International Law 131; Jean d’Aspremant and Frédéric Dopagne, ‘The Constitutionalism in Europe: Pursuing an Articulation of the European and International Legal Orders’ (2008) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 941; Erika de Wet, ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law: Evidence of Constitutionalisation?’ (2009) 5 European Constitutional Law Review 284; Andreas Paulus and Johann Leiß, ‘Article 103’ in Bruno Simma et al. (eds), The United Nations Charter: A Commentary (3rd edn, Oxford University Press 2012) 2112; Michael Wood, ‘The Law of Treaties and the UN Security Council’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 253; Benedetto Conforti, ‘Consistency among Treaty Obligations’ in Enzo Cannizzaro (ed) The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 189.

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understanding of the autonomy of the EU legal regime and the peculiar character of the EU treaties. Focusing on the similarity in terminology and form of the EU treaties with other treaty regimes and disregarding their substance may lead to a legal fallacy. While international law scholarship takes the concerns of EU fundamental rights seriously, it does not seem to provide a full picture of the uniqueness of the EU legal regime, thus disregarding the supposedly constitutional features of the EU treaties.74 The next section scrutinises whether there is indeed myopia in international law scholarship, or whether there exists a legitimate and legal claim to the uniqueness of the EU legal regime. 3

The Transformative Character of the EU We, human beings and human societies, become what we think we are. If we have conflicting ideas of what we are, we become a puzzle to ourselves and to others. If we have no clear idea of what we are, we become what circumstances make us.75

While the Schuman Declaration did indeed refer to the EC as an organisation of an international character it also asserted that the first EC treaty “should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe”.76 Speaking of the transformative character of the EC political project, the Schuman Declaration provides Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements [by growing] a wider and deeper community between countries.77 At its time of conception, the EU was a very unprecedented political project that is unknown in the ambitions of international organisations. It appears that some of the founding fathers of the EC/​EU political project had an ultimate telos of transforming the international organisation into a federal

74 75 7 6 77

See e.g. Armin Von Bogdandy, ‘Funding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16 European Law Journal 95; Piet Eeckhout, EU External Relations Law (Oxford University Press 2011) 1–​135. Philip Allot, The Health of Nations: Society and Law Beyond the State (Cambridge University Press 2002) 230. The Schuman Declaration (n 68). ibid.

72 Chapter 3 project. The founding Treaties are entirely grounded on the idea that there are objectives of paramount constitutional importance that the EU must attain.78 To this end, the President of the cjeu Koen Lenaerts argues that the EU is a purpose-​driven legal order.79 Such a unique process of transformation of the EC/​EU requires a unique and flexible legal infrastructure that is built to allow the gradual realisation of the ultimate goal of the EU political project. In this vein, EU law ensures constant change and transformation for the realisation of the EU political project. In capturing the EU as an object in motion, EU law makes sense only when taken together with the historical and political considerations on the evolution of the EU project.80 Only such an inclusive and non-​orthodox approach permits the demystification of the EU’s understanding of its autonomy, the supposed constitutional character of the EU treaties, the extensive law-​making role of the EU courts, and above all the occasional ‘paranoid’ responses of the EU courts when confronted with foreign norms, be it those of Member States or of other international organisations. Like the EU courts, the vast majority of European law scholars scrutinises the EU treaties by focusing on their substance, thus explaining what the EU is and what its treaties ought to be. This proposition may not be seen as particularly atypical since the EU possesses a sui generis legal personality that is more associated with a domestic legal order than a classical treaty regime. As early as in 1964, the ecj stated that “[b]‌y contrast with ordinary international treaties, the eec Treaty has created its own legal system which … became an integral part of the legal systems of the Member States and which their courts are bound to apply”.81 Through the principles of supremacy and direct effect developed by the Court of Justice, this integration goes so far that it does not merely affect its Member States, but also subjects within a State, namely natural and legal persons.82

78 79 80 81 82

Koen Lenaerts and José A. Gutiérrez-​Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) EUI Working Papers AEL 2013/​ 9, 24. ibid, 13. For this reason, it is common that textbooks on EU law commence with a section on historical and political aspects of the EU integration. Even the ilc Report on Fragmentation (n 259) follows this pattern in outlining the EU law, see paras 218–​219. Case 6/​64, Flaminio Costa v E.N.E.L., [1964] E.C.R. 593. See also Ramses A.  Wessel, ‘The Constitutional Relationship between the European Union and the European Community: Consequences for the Relationship with the Member States’ (2003) Jean Monnet Working Paper 9/​03 of the Max Planck Institute for Comparative Public Law and International Law, 26.

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The peculiarities of the EU legal order were well articulated by the Court of Justice in its Opinion 1/​91 [a]‌s the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only the Member States but also their nationals … The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nations and to the Member States themselves.83 In this vein, scholars have observed that EU primary law has the functions and semantics of a constitutional law.84 The cjeu appears to reflect the view that only by establishing a full autonomy from other legal orders, namely the law of Member States or international organisations, it can advance the EU constitutional project and achieve the aims of the founding fathers of an ever-​closer Union. The cjeu has already held that [t]‌he autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of [EU law] be ensured within the framework of the structure and objectives of the EU.85 For this reason, the Court is of the view that “an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the EU legal system”.86 For the attainment of this goal, the Court considers itself mandated to act as a guardian of the EU autonomy. In Opinion 2/​13, the Court held

83 84

85 86

Opinion 1/​91, [1991] ECR 1991 I-​06079 delivered pursuant to Article 228(1) of the Treaty on the Agreement relating to the creation of the European Economic Area, 21. Armin Von Bogdandy (n 74) 96. See also Daniel Halberstam, ‘It’s the Autonomy, Stupid! A Modest Defence of Opinion 2/​13 and a Way Forward’ (2015) Michigan University Public Law and Legal Theory Research Paper Series, Paper No 432, p. 9; Joined Cases C-​402/​05 P and C-​415/​05 P Kadi and Yusuf v Council and Commission [2008] ECR I-​635, 285, 290. Opinion 2/​13 [2014] ECLI:EU:C:2014:2454, 170. ibid, 201.

74 Chapter 3 [i]‌n order to ensure that the specific characteristics and the autonomy of that legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law.87 If the saying “law is what the courts say it is”88 is true, then it is clear that EU autonomy is used to denote independence from international law, including the UN Charter. No foreign law can affect the core values and principles of EU law. The position is cemented even more by EU jurists siding with the EU courts on issues of constitutional law. The latter, according to Martin Shapiro, play an important role in determining the contours of EU law.89 Already in the late 70’s, scholars viewed the [European] Community as a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the correct implications of the constitutional text; and the constitutional court as the disembodied voice of right reason and constitutional theology.90 Despite the clear position of the EU courts and the vast majority of EU scholars, the debate on the place of the UN Charter and international law in the EU legal order still persists. Indeed, one cannot underestimate the opinion of the Council, Commission and Member States regarding the character of the EU treaties and thereby the place of the UN Charter in EU.91 One such Member State opinion was proffered in December 2015 by the influential German Federal Constitutional Court in recalling that [t]‌he European Union is … founded on international treaties concluded by the Member States. As ‘masters of the treaties’ (Herren der Verträge), Member States decide through national legal arrangements if and to

87 88 89 90 91

ibid, 174. Famously lamented by Oliver Wendell Holmes. See Joseph Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403. Martin Shapiro, ‘Comparative Law and Comparative Politics’ (1980) 52 Southern California Law Review, 537. Appeals brought in relation to joined Cases C-​584/​10 P, C-​593/​10 P, C-​595/​10 P [2010].

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what extent Union law is applicable and is accorded precedence in the respective national legal order.92 If Member States, as masters of the treaties, remain committed to ensuring the primacy of the UN Charter in the field of international security, the EU courts may not prevent them from implementing Charter obligations that do not comply with EU principles. Such an outcome, as will be discussed in the following chapters, may have legal and policy implications for the EU, Member States and international law. D Conclusions The significance of the UN Charter does not emanate from the importance of its being an international agreement. The power of the UN Charter is highly correlated with its aims of maintaining world peace, the impact of the UN in the progress of humankind and the political strength of the organisation. Notwithstanding the numerous failures, flaws and obstacles in the work of the organisation, “in our rapidly changing world, the United Nations remains humankind’s invaluable instrument of common progress”.93 On the occasion of 70th anniversary of the United Nations, the (then) Secretary General Ban Ki-​moon observed [e]‌very day, the United Nations makes a positive difference for millions of people: vaccinating children; distributing food aid; sheltering refugees; deploying peacekeepers; protecting the environment; seeking the peaceful resolution of disputes and supporting democratic elections, gender equality, human rights and the rule of law.94 It is this indispensable political role of the UN organisation that makes its Charter a law of a special character. The UN more generally, and the Security Council in particular, are justified in adopting measures that impact the international community as a whole in pursuing these aims, whether States 92 93 94

2 BvR 2735/​14, Order of 15 December 2015. The English Press Release No, 4/​2016 of 26 January 2016, . accessed 6 May 2018. Speech of the Secretary-​General’s on the occasion of the 70th anniversary of the United Nations, accessed 6 May 2018. ibid.

76 Chapter 3 concerned are Members or non-​Members of the organisation. The provisions of the UN Charter also back up this justification. From the legal standpoint, the Security Council expects its binding decisions to be respected by all addressees, including non-​UN Members. The practice reveals the willingness of non-​UN Members to observe UN obligations. The voluntary observance of the UN Charter by non-​UN Members, namely Switzerland and Kosovo, and the position of international organisations with regard to the role of the UN Charter, support the view that certain external effects of the decisions of the Security Council are to be observed by the international community as a whole. This view is also endorsed by the earlier case-​law of the EU courts and provisions in the Lisbon Treaty. This general understanding of the special place of the UN Charter, however, remains at odds with regard to the EU legal order. The concept of EU autonomy and supremacy has been presented as a possible justification for conditional observation of the Charter.95 This understanding, though not shared by all EU institutions and EU Member States, presents the risk of undermining the force of the UN Charter. The force of the Charter, however, can also be reduced if the Security Council chooses to overlook human rights in the exercise of its powers. The constitutional character of the Charter can only be justified if the organisation itself is guided by the rule of law. The next chapter will begin to analyse how Security Council decisions affecting individual rights have been tackled by European courts. 95

Ramses A. Wessel and Steven Blockmans (n 65) 2.

Chapter 4

European Judicial Responses to Security Council Resolutions Affecting Individual Rights In this part, the jurisprudence of European national and regional courts on Security Council resolutions regarding targeted sanctions and security detentions is examined and analysed. It develops a taxonomy of modes of engagement identifying four judicial approaches: subordination, detachment, resistance through national dualism, and harmonisation. A

Modes of Engagement

As already explained in previous chapters, the tension between Security Council resolutions and human rights can be seen primarily in the areas of targeted sanctions and detentions in military operations. Although the two situations are different in many ways, they both raise similar issues of law. In both situations, displacement or limitations of human rights are considered to emanate from the terms of Security Council resolutions. As a consequence, States justify their actions by recourse to the binding character of Security Council resolutions. This justification is also used when setting aside other human rights obligations deriving from other conventions or constitutional rights. In cases of conflicting obligations, States employ Article 103 of the UN Charter in order to honour UN Charter obligations over other obligations. Article 103 of the UN Charter in a rather unambiguous articulation, provides that, “[i]‌n 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”.1 The reference to any other international agreement reveals the external character of this clause, which presents an exception to the horizontal nature of international law.2 Furthermore, the legal force of Article 103 extends 1 Article 103 of the UN Charter is inherited from Article 20 of the Covenant of the League of Nations (the ‘Covenant’). For more on Article 20 of the Covenant, see Hersch Lauterpacht, ‘The Covenant as the “Higher Law” ’ (1936) British Yearbook of International Law, 54–​65. 2 Jus cogens and erga omnes obligations also belong to the vocabulary of ‘informal hierarchy in international law’, see Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the

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78 Chapter 4 not only to UN Member States, but also to “international and regional organisations … private contracts, licences and permits”.3 In view of the purposes of the UN Charter and the operation of the Security Council, the legitimacy of Article 103 emanates from the widespread acceptance of this principle by UN Member States,4 international courts and tribunals,5 other international treaties,6 the work of the International Law Commission,7 and the opinions of academics.8 It appears that the legitimacy of Article 103 clearly stems from the idea that obligations under the Charter serve a common and higher interest, which may not be opted out of by States in their reciprocal treaty relations, while fostering a structural transformation of the system.9

3 4 5

6

7 8

9

International Law Commission (13 April 2006) UN Doc A/​CN.4/​L.682 (ilc Report on Fragmentation) 327. Other authors argue that Article 103 of the Charter should be considered as a mere conflict, rather than hierarchy, rule. See e.g., Antonios Tzanakopoulos, ‘Collective Security and Human Rights’ in Erika de Wet and Jure Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012) 66. Arnold Pronto and Michael Wood, The International Law Commission 1999–​2009, IV (Oxford University Press, 2010) 756; See eg UNSC Res 748 (31 March 1992) UN Doc S/​RES/​748; UNSC Res 1267 (15 October 1999) UN Doc S/​RES/​1267. Rudolf Bernhard, ‘Article 103’ in Bruno Simma et al. (eds), The Charter of the United Nations: A Commentary (2nd edn, Oxford University Press, 2002) 1293. See eg Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v United Kingdom) and (Libya v United States of America) [1993] ICJ Rep, 39–​41; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1985] ICJ Rep, para 107; Case T-​315/​01, Kadi v Council and Commission [2005] E.C.R. II-​3649, paras 183–​204; Case T-​306/​01, Yusuf and Al Barakaat v Council and Commission [2005] E.C.R. II-​3533, paras 233–​254; Case T-​49/​04, Hassan v Council and Commission [2006] E.C.R. II-​52, paras 91–​93; Case T-​253/​02 Ayadi v Council [2006] E.C.R. II-​2139, para 116; Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/​ 01 & 78166/​01) ECHR 2 May 2007 paras 61, 141; Berić and Others v Bosnia and Herzegovina (App No 36257/​04) ECHR 16 October 2007, para 29. See e.g. Article 30 (1) Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) unts 1155 (vclt); Article 131 Charter of the Organization of American States (30 April 1948); Seventh Principle of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (24 October 1970). ilc Report on Fragmentation (n 2) 324–​409. See e.g. Rudolf Bernhard, ‘Article 103’ (n 4)  1292–​1302; Benedetto Conforti, ‘Consistency among Treaty Obligations’ in Enzo Cannizzaro (ed) The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 189–​190; Michael Wood, ‘The Law of Treaties and the UN Security Council’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 253–​254. Santiago Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 European Journal of International Law, 404–​405.

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Following the generalised acceptance of this UN superior norm, it has been argued that through the consideration of “the whole international community” the principle of Article 103 has become a customary rule, rather than merely a principle.”10 Against this background, one would expect that when an issue arises on the basis of Article 103 of the UN Charter, no legal system would attempt to redefine its scope and effects, since, as Anthony Aust has put it, “no wise judge (international or national) wants to reinvent the wheel.”11 Nevertheless, in recent judicial and doctrinal dialogues, Security Council resolutions vested with a higher force under Article 103 of the Charter have not been accepted without resistance when the claim to universality had to trump obligations of other legal orders relating to individual fundamental rights. Even (then) icj Judge Bruno Simma, a proponent of universalism, argued that “[i]‌f … universal institutions like the UN cannot maintain a system of adequate protection of human rights, considerations of human rights deserve trump arguments of universality”.12 Recalling that the Security Council in its Resolution 1530 (2004) mistakenly blamed the Basque group eta as responsible for the 2004 Madrid bombings,13 there are reasons to believe that individuals could be victims of similar “sorry tales of the Security Council”.14 Such errors are anticipated in the listing of individuals suspected of supporting terrorism and in cases of internment of individuals in peacekeeping operations conducted by States under the authorisation of Security Council resolutions. Particularly with regard to procedures for designating suspected terrorists, the possibility that a person may be blacklisted without presenting a sufficient degree of risk may occur. In other cases, individuals posing national threats to a Security Council Member may also be brought within the Security Council mechanism. While at the national level certain procedural and judicial guarantees for challenging the errors or decisions of the executive branch remain, the lack 1 0 11 12 13 14

Benedetto Conforti, ‘Consistency among Treaty Obligations’ (n 8) 189. Anthony Aust, ‘Peaceful Settlement of Disputes: A Proliferation Problem?’ in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, Liber Amicorum Judge Thomas A. Mensah (Martinus Nijhoff 2007) 137. Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20 European Journal of International Law 265, 294. It appears that Al Qaida was responsible for this terrorist attack. Spanish authorities arrested several radicals associated with the Al-​Qaeda organization in relation to 2004 Madrid bombing. Therese O’Donnell, ‘Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004)’ (2007) 17 European Journal of International Law 945.

80 Chapter 4 of sufficient procedural guarantees or right to judicial review at the UN level has triggered scholars and courts to seek proper responses to some ‘arbitrary’ Security Council resolutions. In the context of Security Council resolutions blacklisting suspects of supporting terrorism, Justice Zinn, sitting in the Canadian Federal Court in the Abdelrazik case, stated that “there is nothing in the listing or de-​listing procedure that recognises the principles of natural justice or that provides for basic procedural fairness”.15 The lack of respect for rights was found to be the procedural system itself.16 This was partly the result of a substantial imbalance between the level of evolution of the measures to fight terrorism, and that of the judicial protection system in the global legal order.17 While judicial bodies worldwide have been struggling to balance human rights and respect for Security Council resolutions, this has been particularly sensitive for European courts, where protection of fundamental rights is of paramount importance in the hierarchy of norms. When placed between the UN obligations vested with Article 103 power and domestic fundamental rights, from the methodological point of view, European courts appear to have adopted at least four different approaches, namely ‘subordination’, ‘detachment’, ‘national resistance’, and ‘harmonisation’. Oscillation between these approaches affects not only the rights of the individuals concerned, but also legal certainty in international law. The ‘subordination’ approach was for a long time a mainstream approach in dealing with obligations emanating from the Security Council. This approach provides that fundamental rights enshrined in national constitutions or regional Conventions are trumped when they conflict with Security Council resolutions, by considering it impossible to simultaneously accommodate two obligations stemming from two different legal orders.18 The ‘detachment’ 15 16 17

18

Case T-​727/​08 Abdelrazik v Minister of Foreign Affairs and Attorney General of Canada [2009] FC 580, para 51. Salvatore Zappalà, ‘Reviewing Security Council Measures in the Light of International Human Rights Principles’ in Bardo Fassbender (ed), Securing Human Rights? Achievements and Challenges of the UN Security Council (Oxford University Press, 2011)182. See also Eleanor Spaventa, ‘Fundamental Rights: the Interference between Second and Third Pillar’ in Alan Dashwood and Marc Maresceau (eds), Law and Practice of EU External Relations -​Salient Features of a Changing Landscape (Cambridge: Cambridge University Press, 2008) 129. Kadi v Council and Commission 2005 (n 5); Yusuf and Al Barakaat v Council and Commission 2005 (n 5); Behrami and, Saramati (n 5) para 61, 141; Berić and Others v Bosnia and Herzegovina (n 5); R (Al-​Jedda) v Secretary of State for Defence [2007] UKHL 58 (2008); Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment of 14 November 2007, BGE 133 II 450, 1A 45/​2007.

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from the UN system is a reverse approach to ‘subordination’, also generated by a narrow understanding of Article 103.19 This approach is specifically peculiar to the EU legal order, which in the widely debated Kadi case considered EU law to be the supreme law of the land and developed an approach20 that led to detachment from UN supremacy. The UK’s approach in the Ahmed case is also relevant, as the UK’s dualism has been utilised to ‘resist’ some arbitrary measures associated with the UN Charter. ‘Harmonisation’ is an approach developed by the ECtHR in the Al-​Jedda, Nada and Al-​Dulimi cases.21 This approach provides that by utilising techniques and norms of treaty interpretation, courts can balance simultaneous obligations stemming from the UN Charter and the Convention. In the same structural order, this part examines the responses of European courts and also analyses theoretical considerations on treaty interpretations. The conclusion highlights the key features of these approaches and considers their relevance in the ongoing discussion on regime interaction in international law. B Subordination In examining judicial responses to Security Council resolutions, it is evident that many courts in Europe have been reluctant to engage in any interpretation or review of such resolutions. By granting a special legal status to the UN Charter, it appears that some courts understand their role as limited to rubber-​ stamping Security Council resolutions. This might be a consequence of the lack of any jurisdiction to engage with the interpretation of Security Council resolutions at the domestic level. One such example came from the High Court of Ireland when it considered that “it is neither permissible nor appropriate … to seek to interpret a resolution of the Security Council”.22 The Constitutional Court of Croatia went a step 19 20

21 22

Joined Cases C-​402/​05 P and C-​415/​05 P Kadi and Yusuf v Council and Commission [2008] ECR I-​6351; T-​85/​09 Kadi v Commission [2010] E.C.R II-​05177. ‘Strong pluralist approaches deny the possibility of a shared, universally-​oriented system of values and question the meaningfulness of the idea of an international community’ in Gráinne de Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 Harvard International Law Journal 1, fn 10. Al-​Jedda v. The United Kingdom (App No 27021/​08) ECHR 7 July 2011; Nada v Switzerland App No 10593/​08 (ECHR, 12 September 2012); Al-​Dulimi and Montana Management Inc. v. Switzerland (App No 5809/​08) ECHR GC 21 June 2016. Dubsky v Government of Ireland (Judgment of 13 December 2005) [2005] IEHC 442 para 91.

82 Chapter 4 further when it ruled that it lacked jurisdiction to render decisions against any individual decision passed [not only by the Security Council itself but also] by any United Nations body.23 Other higher courts in Europe have shared a similar view.24 This wide-​ranging and cross-​regime acceptance of Security Council resolutions was reflected in most European case law, even when conformity with such resolutions resulted in jeopardising domestic fundamental rights. The House of Lords of the United Kingdom in the Al-​Jedda case,25 the Swiss Federal Tribunal in the Nada26 and Al-​Dulimi27 cases, and the General Court of the EU in the earlier Yusuf and Kadi cases28 all enriched the case law providing for the subordination approach, whereby both European domestic higher courts unanimously held that Article 103 gave primacy to resolutions of the Security Council, even in relation to human rights agreements. The following section analyses the leading European cases concerning Security Council targeted sanctions and security detentions that qualify for the subordination approach. I Al-​Jedda before the UK Courts This case concerned the internment of Mr Al-​Jedda, a British citizen, on security grounds by British forces operating in Iraq as part of a multinational force authorised by the UN Security Council. Though no criminal charges were brought against him, Mr Al-​Jedda was suspected of involvement in terrorist activities, and he was interned for three years at a detention centre run by British forces in Basrah City. During his internment, there was no disclosure of evidence or detention hearing. In the national proceedings before UK courts, Al-​Jedda brought a judicial review claim challenging inter alia the lawfulness of his continued detention.29

23 24 25 26 27 28 29

Bobetko Report, Croatia, Review of Constitutionality and Legality, Case No U-​X-​2271/​ 2002, ILDC 383 (HR 2002), 12th November 2002, Croatia, para 3. German Federal Court in Criminal Matters, BGHSt 41, 127, 130 (Judgment of 21 April 1995) cited in Anne Peters, ‘Article 25’ in Bruno Simma et al. (eds.), The United Nations Charter: A Commentary (3rd edn, Oxford University Press, 2012), Al-​Jedda v Secretary of State for Defence [2007] UKHL (n 18) Nada v State Secretariat Administrative Appeal Judgment 2007 (n 18) Decisions BGE 2A.783/​2006; BGE 2A.784/​2006; BGE 2A.785/​2006 of the Swiss Federal Tribunal of 23 January 2008. Kadi v Council and Commission 2005 (n 5) paras 221–​231; Yusuf and Al Barakaat v Council and Commission 2005 (n 5) paras 277–​282. See Al-​Jedda v The United Kingdom (n 21) para 16.

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He complained that his detention had been in breach of Article 5.1 of the echr and the UK’s Human Rights Act 1998. At the same time, the British military operation in Iraq had been authorised by UN Security Council Resolution 1546.30 Thus, it also was necessary to address whether said Resolution, mandated by Article 25 of the UN Charter, authorised UK troops in Iraq to detain individuals without due process. Hence, the question was whether the effect of Article 103 of the Charter could make the UN Security Council Resolution prevail over obligations under other international treaties, specifically the echr. The Divisional Court in its judgement of 12 August 2005, while discussing the relationship between the UN Charter and all other treaty obligations, did not hesitate to make unambiguous statements with regard to subordination to the UN superior norm. The Court concluded that Security Council Resolution 1546 “by virtue of Articles 25 and 103 of the Charter, in principle override Article 5 of the Convention in relation to the claimant’s detention.”31 As far as the relationship between Article 103 of the UN Charter and obligations under the echr are concerned, the Court of Appeal reiterated the same argument.32 In the last domestic judicial review, the House of Lords delivered a unanimous verdict that by virtue of Article 103 of the Charter primacy was to given to Security Council resolutions, even when in conflict with human rights instruments.33 Lord Bingham, with whom the other Law Lords agreed, explained: [e]‌mphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to “any other international agreement” leaves no room for any excepted category, and such appears to be the consensus of learned opinion.34 The reasoning of the UK courts prompted a further debate in international courts and the academic writings of jurists. The ilc Report on Fragmentation devoted special consideration to the UK’s approach in the application of the Article 103 conflict norm.35 In addition, at a rather early stage of the case,

3 0 31 32 33 34 35

UNSC Res 1546 (8 June 2004) UN Doc S/​RES/​1546. R (Al-​Jedda) v Secretary of State for Defence [2005] EWHC 1809 (Admin) para 122. See R (Al-​Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, [2007] QB 621. Al-​Jedda v Secretary of State for Defence [2007] UKHL (n 18); Nada v State Secretariat, Administrative Appeal Judgment 2007 (n 18) para 20. Al-​Jedda v Secretary of State for Defence [2007] UKHL (n 18) Bingham LJ, para 35. ILC Report on Fragmentation (n 2) 336–​339.

84 Chapter 4 scholars brought attention to the way Article 103 was being applied.36 The case was then referred to the European Court of Human Rights wherein the Strasbourg Court also had an opportunity to examine the merits of this case. II Yusuf and Kadi before the EU Court of First Instance The case concerned the UN targeted sanctions of assets freezes and travel bans against Mr Yusuf and his company Al Barakaat as well as against Mr Kadi, citizens of Sweden and Saudi Arabia respectively, allegedly associated with Al ​Qaida. Following the designation of Mr Yusuf and Mr Kadi in 2001 in UN Security Council resolutions 1267 and 1333, the EU adopted several legal instruments to give effect to the resolutions, including taking sanctions against the two individuals.37 Mr Yusuf and Mr Kadi, both having substantial financial interests in the EU, brought the case before the EU Court of First Instance (cfi)38 arguing for annulment of the pertinent EU regulations39 as far as these related to their listing. In support of their claims, Mr Yusuf and Mr Kadi argued that the EU regulations in question violated inter alia the right to a fair hearing, the right to respect for property and the right to effective judicial review.40 Mr Kadi argued that the contested regulation is clearly in breach of those fundamental principles, in that it makes it possible for the [EU] to freeze the applicant’s funds indefinitely without giving him any opportunity to make known his views on the correctness and relevance of the facts and circumstances alleged and on the evidence adduced against [them].41 The applicant first explained that fundamental rights form an integral part of the Community legal order.42 Secondly, he suggested that the EU is a legal order independent from the United Nations.43 In merging the two arguments, Mr 36 37 38 3 9 40 41 42 43

See Michael Wood, ‘Detention during International Military Operations: Article 103 of the Charter and the Al-​Jedda case’ (2009) 47 Revue de Droit Militaire et de Droit de la Guerre/​ The Military Law and the Law of War Review 139. Council Regulation No 467/​2001 of 6 March 2001 as amended, Common Position 2002/​ 402/​CFSP and Regulation 881/​2002 of 27 May 2002, repealing Regulation No 467/​2001. After the entry into force of the Consolidated Version of the Treaty on European Union [2008] OJ C115/​13 (tfeu), the Court of First Instance is known as the General Court of the European Union. Council Regulation No 467/​2001 (n 37) and Regulation 881/​2002 (n 37). Kadi v Council and Commission 2005 (n 5) para 69; Yusuf and Al Barakaat v Council and Commission 2005 (n 5) para 190. Kadi v Council and Commission 2005 (n 5) para 143. ibid, para 138. ibid, para 140.

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Kadi considered that “the Security Council resolutions relied on by the [EU] do not confer on [its] institutions the power to abrogate … fundamental rights”.44 The cfi considered that “any review of the internal lawfulness of the [EU] contested regulation … would … imply that the Court is to consider, indirectly, the lawfulness of [the Security Council] resolutions”.45 Hence, prior to engaging with the origin of the problem, namely the Security Council resolution, the Court analysed whether the peculiar relationship between the UN Charter on the one hand and EU law and the domestic law of EU Member States on the other permitted any degree of review of the contested EU regulation. Concerning the relationship between the UN Charter and domestic law of the Member States, the Court considered that pursuant to customary international law, an EU Member State “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.46 As far as the relationship with UN law was concerned, the cfi considered that according to Article 103 of the UN Charter and Article 30 of the vclt, UN Charter obligations have primacy over EU treaties.47 Furthermore, the Court held that both according to the EU treaty as well as the case law of the ecj, the “[EU] must be considered to be bound by the obligations under the [UN Charter] in the same way as its Member States”.48 The Court recalled that pursuant to Article 307 of the tec, “the rights and obligations arising from agreements concluded before … the date of their accession [to EC/​EU], between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty”.49 According to the cfi, the finalité of this provision was not to affect the duty of the Member State concerned to respect a prior agreement and to perform its obligations thereunder. Since all Member States were members of the United Nations before accession to the EC/​EU,50 Article 307 read together with Article 297 EC allowed for observation of the rule of primacy of the UN Charter.51 44 45 46 47 48 49 50

51

ibid, para 140. ibid, para 215; Yusuf and Al Barakaat v Council and Commission 2005 (n 5) para 206. ibid, Kadi para 182; Yusuf and Al Barakaat, para 232. ibid, Kadi, para 183; Yusuf and Al Barakaat, para 233. ibid, Kadi, paras 185–​193; Yusuf and Al Barakaat, para 243. ibid, Kadi, para 185; Yusuf and Al Barakaat, para 235. The Court noted that “while it is true that the Federal Republic of Germany was not formally admitted as a member of the UN until 18 September 1973, its duty to perform its obligations under the Charter of the United Nations also predates 1 January 1958, as is apparent from the Final Act of the Conference held in London from 28 September to 3 October 1954 … and the Paris Agreements signed on 23 October 1954”, Ibid, Kadi, para 187; Yusuf and Al Barakaat, para 237. ibid, Kadi, para 188; Yusuf and Al Barakaat, para 238.

86 Chapter 4 Furthermore, the Court referred to its prior cases of Poulsen and Diva Navigation, Racke and Van Duyn to explain that the Community must respect international law in the exercise of its powers and, consequently, that Community law must be interpreted in light of the relevant rules of international law.52 The Court also referred to the International Fruit Company case, thereby implying that the functional succession doctrine applies also with regard to the UN Charter. The functional succession doctrine implies that the EU is bound by international agreements to which all EU Member States are parties.53 After setting the scene on the relationship between the UN Charter, EC law and the domestic law of its Member States, the Court held that the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court’s judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness in the light of Community law.54 However, the Court considered that it had the competence to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.55 The case was nevertheless dismissed, as the Court considered that none of the rights concerned in this case could be considered jus cogens.56 Subsequent Case-​law of the EU Court of First Instance: Hassan v Council of the EU and Commission and Ayadi v Council of the EU In a nearly identical situation to that of Mr Yusuf and Mr Kadi, in 2006 the cfi ruled in the Hassan57 and Ayadi58 cases. Both cases concerned a claim for annulment of pertinent EU regulations –​implementing Security Council resolutions –​on the grounds of human rights. The cfi dismissed the Hassan and III

52 53 54 55 56 57 58

ibid, Kadi, para 199; Yusuf and Al Barakaat, para 249. ibid, Kadi, para 200; Yusuf and Al Barakaat, para 250. ibid, Kadi, para 225; Yusuf and Al Barakaat, para 276. ibid, Kadi, para 226; Yusuf and Al Barakaat, para 277. ibid, Kadi, paras 252, 276, 291–​292; Yusuf and Al Barakaat, para 347. Hassan v Council and Commission 2006 (n 5). Ayadi v Council 2006 (n 5).

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Ayadi cases by maintaining its position in Yusuf and Kadi. The Court referred to its “exhaustive answers” in Yusuf and Kadi regarding the primacy of the UN Charter, the obligations to carry out the decisions of the Security Council as well as the lack of any “autonomous discretion” to review contested EU regulations designed to implement Security Council resolutions.59 The Court also held that it remains “empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens”.60 No such violations were found in the cases in question. IV Nada before the Swiss Federal Tribunal The Nada case concerned the assets freeze and a travel ban against Mr Nada, pursuant to UN targeted sanctions. Mr Nada, an Italian citizen living in Switzerland, was allegedly connected to various organisations and associated with Al ​Qaida, Osama bin Laden and the Taliban. To enforce the UN targeted sanctions, including the ones on Mr Nada, on 9 November 2000 Switzerland listed Mr Nada in the Swiss Ordinance on measures against persons and entities connected with terrorism (Swiss Ordinance). Between 2005 and 2006, Mr Nada lodged several administrative appeals before the Swiss Federal Council requesting the removal of his name and the names of the organisations connected with him from the Swiss Ordinance. The position of the Swiss Federal Council was that in order to remove his name from the Swiss Ordinance, it was necessary that he be de-​listed by the UN sanctions committee. In July 2006, Mr Nada brought the claim before the Swiss Federal Tribunal, arguing that Switzerland was obliged to grant judicial review pursuant to Article 6.1 of the echr. Like the UK courts in the Al-Jedda case, the Swiss Federal Tribunal considered that Article 6.1 of the echr should be considered together with Article 103 and other pertinent provisions of the UN Charter. The Tribunal held that according to Article 103 of the UN Charter, obligations of UN Member States under the Charter prevailed over their obligations under any other international agreements, including Article 6.1 of the echr.61 The Swiss Tribunal considered that the obligation to apply Security Council resolutions was only limited by jus cogens. However, since Article 6.1 does not constitute part of jus cogens, no contradiction between the Security Council resolution and jus cogens was at stake.62 5 9 60 61 62

ibid, para 116; Hassan v Council and Commission 2006 (n 5) paras 91–​93. ibid, para 92; Ayadi, para 116. Nada v State Secretariat, Administrative Appeal Judgment 2007 (n 18) para 5. ibid, para 7.

88 Chapter 4 Although the Tribunal recognised that the UN de-​listing procedure was not in conformity with Article 6.1 of the echr, it further held that the situation could only be corrected at the UN level by introducing an effective control mechanism.63 The Tribunal also ruled that while the Security Council was bound to act in accordance with, inter alia, human rights recognised in Article 1.3 of the Charter, Switzerland was not entitled to escape the obligations of the Charter, including the obligation to ensure the implementation of Security Council resolutions.64 V Al-​Dulimi before the Swiss Federal Tribunal The Al-​Dulimi case concerned the sanctions regime in relation to Iraq.65 As noted above, a review by the Ombudsperson was not available with regard to said regime.66 Security Council Resolution 1483 prescribed the freezing of assets and economic resources belonging to the previous Government of Iraq, or those acquired by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled directly or indirectly by them.67 In accordance with the resolution, Mr Al-​ Dulimi and Montana Management Inc., a company incorporated under the laws of Panama, were listed. Mr Al-​Dulimi and Montana Management lodged three administrative-​law appeals before the Swiss Federal Tribunal against the Federal Department’s decision of 16 November 2006 concerning the confiscation of the assets frozen in Switzerland. They argued, inter alia, that the procedure leading to the listing of their names had breached the basic procedural safeguards under Article 6 echr. The Swiss Federal Tribunal’s attention was later drawn to the opinion delivered on 16 January 2008 by the Advocate General in Kadi.68

63 64 65 66

6 7 68

ibid, para 8. ibid, para 5. Tribunal fédéral Suisse, A. v Département fédéral de l’économie, Arrêts du 23 Janvier 2008, 2A.783/​2006; 2A.784/​2006; B2A.785/​2006. UN Member States have also raised a concern that the Ombudsperson’s mandate covers only petitioners whose names are inscribed on the Al ​Qaida Sanctions List. See, for example, Security Council Open debate on the theme ‘Working Methods of the Security Council’ Security Council Open debate on the theme ‘Working Methods of the Security Council’, S/​2014/​725 5. UNSC Res 1483 (22 May 2003) UN Doc S/​RES/​1483 para 23. See Al-​Dulimi and Montana Management Inc. v Switzerland (App No 5809/​08) ECHR 26 November 2013, paras 16, 17, 32, 33 and 37.

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On 23 January 2008 the Swiss Federal Tribunal dismissed the appeals on the merits, in three near-​identical judgments.69 Similarly to Nada, referring to the rule of primacy contained in Article 103 of the UN Charter, it deemed that in case of conflict between Switzerland’s obligations under the Charter and under the echr, the Charter obligations in principle prevailed. With the exception of an examination of a possible breach of jus cogens norms, Switzerland was not authorised to examine the validity of Security Council Resolution 1483, not even concerning the Council’s compliance with procedural safeguards.70 VI General Observations The common denominator of the subordination approach of the European courts is that in implementing certain Security Council decisions, courts chose to obey the obligations imposed by the Security Council and set aside their respective fundamental rights. They did so without seeking harmonisation of competing rights and obligations. This approach, where courts are unable to reach synergy between apparently conflicting norms, provides for a narrow interpretation of norm conflict “where giving effect to one international obligation unavoidably leads to the breach of another obligation or right”.71 It could be said that in the cases analysed here, the courts looked at the terms of conflicting obligations in clinical isolation without any attempt to seek “regime compatibility”72 or harmonisation between the Security Council obligations in relation to international peace and the protection of fundamental rights in the European or domestic legal order. Following a broader interpretation of Article 103, the European courts could have considered whether the Security Council resolutions associated with limitations of human rights are in line with the UN Charter provisions on human rights. Article 24.2 of the Charter provides that the Security Council in discharging its duties, inter alia, under Chapter vii “shall act in accordance with the Purposes and Principles of the United Nations”. Indeed, one of the purposes of the UN, as provided by Article 1.3, is to “achieve international co-​ operation in … promoting and encouraging respect for human rights and for

69 70 71 72

ibid, 38; A. v Département fédéral de l’économie 2008 (n 65). A. v Département fédéral de l’économie 2008 (n 65) 7.2 and 10.1. Erika de Wet and Jure Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (Oxford University Press 2012) 1. See also C Wilfred Jenks, ‘Conflict of Law-​Making Treaties’ (1953) 30 British Yearbook of International Law 401. Dirk Pulkowski, ‘Universal International Law’s Grammar’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 154.

90 Chapter 4 fundamental freedoms”. As the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (icty) asserted in the Tadić case, “neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law)”.73 In discussing the confrontation between the Security Council resolutions and fundamental rights in the Nada case, in his dissenting opinion, ECtHR Judge Giorgio Malinverni observed that “one does not need to be a genius to conclude that the Security Council itself must also respect human rights”.74 In this vein, one could expect that “the Security Council would be estopped from behaviour that violates the core elements of the human rights norms underpinning Article 1.3 of the Charter”75 or at least would consider engaging in a synergy with human rights protection systems. In sum, while subordination approach might appear to be less harmful for the unity of international law, two deficiencies of this method can be identified from the point of view of international law. First, the failure to attempt harmonisation of competing legal obligations between different treaty rule systems is not in compliance with the international law’s strong presumption against normative conflict.76 Second, the failure to accommodate human rights in the implementation of Security Council resolutions creates an understanding that the Security Council in discharging its duties intends to disregard human rights. This approach, portraying Article 103 as the antonym of fundamental rights, further provokes arguments that the effects of the UN superior norm deserve to be challenged by arguments of morality and the values of other legal orders, with the justification of protecting fundamental rights. C Detachment The subordination approach provides for responses where domestic courts consider themselves to be bound by the UN Charter. Despite employing different legal interpretations, all courts considered the importance of the UN

73 74 75 76

IT-​94-​AR72, Prosecutor v Dusko Tadić a/​k/​a/​“Dule”, ICTY Appeals Chamber, Interlocutory Judgment on Jurisdiction of 2 October 1995, 28. Nada v Switzerland (n 19) concurring opinion of Judge Malinverni, 15. Erika de Wet, ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law: Evidence of Constitutionalisation?’ (2009) 5 European Constitutional Law Review 292, 293. ilc Report on Fragmentation (n 2) para 37.

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Charter and the binding character of Security Council decisions in their respective legal regimes. Unlike in the aforementioned subordination approach cases, the cjeu in Kadi considers the EU to be a wholly autonomous legal order, thereby recognising a more limited force of Security Council resolutions. Such autonomy and limitation form the basis of the detachment approach. I Kadi I In its decision on the appeal to the Kadi judgment of 2005, the Court of Justice of the European Union (cjeu)77 departed from the position of the cfi with regard to the relationship between UN and EU law. Unlike the Court of First Instance, the cjeu considered itself competent to provide in principle the full review of the lawfulness of the contested EU regulation.78 The Court considered that “the lawfulness of any legislation adopted by the [EU] institutions, including an act intended to give effect to a resolution of the Security Council remains subject, by virtue of [EU] law, to full review by the Court, regardless of its origin”.79 It further held that “such review is a constitutional guarantee forming part of the very foundations of the [EU]”.80 In assessing the alleged human rights violations, the cjeu annulled the contested EU regulation in so far as it concerns Kadi and his company by considering that the restrictive measures laid down by the EU contested regulation in respect of Kadi were unjustified.81 The Court nevertheless held that any judgment given by the [EU] judicature deciding that [an EU] measure intended to give effect to such a resolution is contrary to a higher rule of law in the [EU] legal order would not entail any challenge to the primacy of that [SC] resolution in international law.82 Such comments imply that the Court’s judgment was focused only on the contested EU legislation and did not affect the legality of the Security Council resolution in question. Furthermore, the cjeu considered that EU courts are

77 78 79 80 81 82

Before the entry into force of the tfeu, the cjeu was known as the European Court of Justice (ecj). Kadi and Yusuf v Council and Commission 2008 (n 19) para 326. See also Kadi v Commission 2010 (n 19) para 126 (emphasis added). Kadi and Yusuf v Council and Commission 2008 (n 19) para 278. ibid, para 290. ibid, paras 370–​372. ibid, para 288.

92 Chapter 4 not empowered to review the lawfulness of Security Council resolutions or any other international body, even if such a review were limited to examining the compatibility of that resolution with jus cogens.83 While the Court suggested that it neither challenged nor reviewed the legality of the Security Council resolution, its findings had unavoidable implications for the implementation of Security Council resolutions. The Kadi case prompted political and legal tensions. From a political perspective, the EU Member States, obliged to respect both Security Council resolutions and the supremacy of the EU law, were left to respond with the principle of political decision. This principle, suggested by Manfred Zuleeg, provides that “the [S]‌tate concerned simply has to make a political decision which commitment to prefer”.84 Against this background, the Court appears to have overlooked the collateral effects of its judgment, namely the responsibility of the EU Member States towards the UN, and the importance of the law of the UN Charter. The cjeu’s approach vis-​à-​vis the UN system was largely based on its understanding that “the constitutional framework created by the EC Treaty as a wholly autonomous legal order, [is] not subject to the higher rules of international law –​in this case the law deriving from the Charter of the United Nations”.85 The Court considered that while by virtue of EU law86 an international agreement, including the UN Charter, may have primacy over acts of secondary [EU] law, that primacy “would not, however, extend to [EU] primary law, in particular to the general principles of which fundamental rights form part”.87 Lavranos observes that Court of Justice established an EU hierarchy of norms through its jurisprudence in the following manner: (i) primary EU law (EU Treaties and the echr) is the ‘supreme law’ of the land, that is, at the top of the hierarchy; (ii) all international law sources (international treaties, decisions of international organisations, international customary law) are situated below primary EU law, but supersede (conflicting) secondary EU law (Regulations, Directives); and (iii) at the bottom we find national (constitutional)

83 84 85 8 6 87

ibid, para 287. Manfred Zuleeg, ‘Vertragskonkurrenz im Völkerrecht. Teil I:  Verträge zwischen souveränen Staaten’ (1977) 20 German Yearbook of International Law 246, cited in Jan Klabbers, Treaty Conflict and the European Union (Cambridge University Press, 2009) 88. Kadi v Commission 2010 (n 19) the gceu summarising the reasoning of the cjeu in Kadi and Yusuf v Council and Commission 2008 (n 19) para 119 (emphasis added). Namely Articles 300 (7), 300 and 297 of the EC Treaty. Kadi and Yusuf v Council and Commission 2008 (n 19) paras 307–​309.

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law.88 In the Kadi case, the UN Charter was equated to any other international agreement and subordinated to the primacy of EU law.89 One might argue that the cjeu marginalised the ‘special’ character of the UN Charter90 and disregarded the position of EU Member States on this matter. The EU Member States were explicit in Declaration 13 of the Lisbon Treaty in providing that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security. The Court’s approach to the relationship between UN and EU law unsurprisingly caused dissent within its legal order. In 2008 and again in 2010, the Commission, the Council and the majority of the EU Member States filed another appeal and intervened in Kadi, arguing that the EU must consider itself bound by the UN Chater and Security Council decisions.91 They found that nature the EU’s obligation of compliance stems from Articles 3.5 and 21 teu and Article 351 and the obligations of Member States to comply with decisions of the Security Council.92 If the two EU legislative institutions and the majority of its Member States claim to have a different understanding of the relationship between EU law and UN law, the EU courts should pay due regard to the position that EU law is solely within the discretion of its judges. In fact, even in cases when judges make law, Ronald Dworkin suggests that “they should act as deputy to the appropriate legislature, enacting the law that they suppose the legislature 88

89 90

9 1 92

Nikos Lavranos, ‘Revisiting Article 307 EC: The Untouchable Core of Fundamental European Constitutional Values and Principles’ in Filippo Fontanelli, Giuseppe Martinico and Paolo Carrozza (eds), Shaping the Rule of Law Through Dialogue (Europa Law, 2009) 122. Lavranos also indicates that the cjeu has developed the concept of ‘very foundations of the Community’, which indicates that there exists something even more fundamental than EC primary law and reflects what is commonly understood as the essentials of the European constitutional law. See Nikos Lavranos, ‘Protecting European Law from International Law’ (2010) 15 European Foreign Affairs Review 265, 269–​271. ibid, Nikos Lavranos, ‘Revisiting Article 307 EC: The Untouchable Core of Fundamental European Constitutional Values and Principles’, 122. The gceu in Kadi v Commission 2010 (n 19) criticised the approach taken by the cjeu in Kadi and Yusuf v Council and Commission 2008 (n 19). However, its conclusions do not much differ from those of the cjeu. See particularly Armin Cuyvers, ‘The Kadi II Judgment of the General Court: The ECJ’s Predicament and the Consequences for Member States’ (2011) 7 European Constitutional Law Review 481. Joined Cases C-​584/​10 P, C-​593/​10 P, C-​595/​10 P. Appeals brought on 10 December 2010. C-​595/​10 P, appeal brought by the United Kingdom of Great Britain and Northern Ireland.

94 Chapter 4 would enact if seized of the problem”.93 Immanuel Kant also argues that the “law establishes the omnilateral or ‘general united will’ of a community”.94 This will is understood as an “all-​sided will” or, … “all the Wills of a Community together”.95 Such a will does not suggest that the EU courts should be receptive to political pressures of EU institutions and Member States, but rather that they should seek a more balanced interpretation when dealing with UN obligations that might affect the responsibility of EU Member States. As Gráinne de Búrca emphasised, the cjeu in Kadi “instead of adopting a strongly pluralist approach to international law, […] could and should have followed the soft-​constitutionalist approach which it and other European courts have used on different occasions to mediate the relationship between the norms of the different legal orders”.96 Hence, the cjeu should have tried to alleviate treaty conflicts by means of treaty interpretation. II Kadi II By the time the cjeu rendered its judgment in Kadi II, two important developments had taken place at the UN level: first, the Office of the Ombudsperson was established and its institutional mandate on delisting continuously enhanced; second, Mr Kadi had been delisted from the UN sanctions list, upon the recommendation of the Office of the Ombudsperson. In light of these developments, and the special status of the UN Charter, Advocate General Bot invited the cjeu to perform a lower-​intensity judicial review of Security Council measures.97 He advanced, inter alia, the following arguments in favour of establishing a relationship of comity with obligations under the UN Charter. First, the preventive nature of the Security Council sanctions measures; second, the need to balance counter-​terrorism measures with human rights; third, the political nature of sanctions; and fourth, the procedural improvements with the Office of the Ombudsperson.98 Despite the calls of Advocate General Bot, the EU institutions and EU Member States, the cjeu in Kadi II again dissected the relationship between the UN 9 3 94 95 96 97 98

Ronald Dworkin, ‘Hard Cases’ [1975] 88 Harvard Law Review 1057, 1058. Patrick Capps and Julian Rivers, ‘Kant’s Concept Of International Law’ (2010) 16 Legal Theory 229, 233. ibid, 233. See also Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as a Science of Right (William Hastie tr, T&T, Clark 1887) 84. Gráinne de Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (n 20) 4 (emphasis added). Joined cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P European Commission and Council v Kadi [2013] Opinion of Advocate General Bot, paras 10, 68, 69, 71, 81. ibid, paras 5, 61, 67, 76, 80, 81.

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and EU law, reinforcing its position on two things. Firstly, it highlighted that Security Council resolutions are subject to the primacy of constitutional guarantees of the EU when implemented at the European level, and secondly, it stated that it would continue to perform full judicial review at least for as long as the Security Council lacked a full-​blown court procedure to offer effective judicial protection.99 On the latter issue, it made it clear that the Security Council due process reform is incomplete and without effect so long as it lacks a court. The cjeu further detailed the type of judicial protection the Security Council must have, leaving the latter no latitude to shape its due process reform based on contextual circumstances [t]‌he essence of effective judicial protection must be that it should enable the person concerned to obtain declaration from a court, by means of a judgment ordering annulment whereby the contested measures is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re-​establish the reputation of that person or constitute for him a form of reparation for the non-​material harm he has suffered.100 This type of Solange argument employed by the EU courts, which originates from national constitutional courts,101 may not necessarily be adequate in the context of international organisations. As Tzanakopoulos observes, from the perspective of the international legal order the Solange argument employed by the EU courts in the Kadi cases is quite without formal significance or impact. It cannot, in and of itself legally ‘justify’ disobedience of [Security Council] decisions, even if it may well explain it. The Solange argument thus needs to be translated into a cognizable international legal argument if it is to offer any meaningful legal justification for disobeying the [Security Council].102 99

Joined Cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P European Commission and Others v Yassin Abdullah Kadi [2013] E.C.R. 00000, paras 22 and 119. 100 ibid, para 134 (emphasis added). 1 01 Jo Eric Khushal Murkens, From Empire to Union: Conceptions of German Constitutional Law since 1871 (Oxford University Press 2013) 160–​175. 102 Antonios Tzanakopoulos, ‘The Solange argument as a justification for disobeying the Security Council in the Kadi judgments’ in Matej Avbelj, Filippo Fontanelli, and Giuseppe Martinico (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge 2014) 133.

96 Chapter 4 Furthermore, the cjeu in Kadi II failed to mention, let alone examine, whether the Office of the Ombudsperson or a similar quasi-​judicial procedure can be adequate in the context of Security Council sanctions decision-​making. While the Office of the Ombudsperson certainly requires further improvements, scholars have rightly noted that the mechanism itself may have more advantages over judicial review for at least four reasons the Ombudsperson has the power to engage in de novo review of the fairness of sanctions listings by reference to present circumstances, in contrast to judicial review which is frozen in time at the point of the initial listing. Secondly, the Ombudsperson carries out review by reference to contextually appropriate and consistent standards, namely, ‘whether there is sufficient information to provide a reasonable and credible basis for the listing’. Third, the Ombudsperson has expertise in processing the intelligence information at issue, and is clearly in a far better position than international or domestic courts to interpret and assess the weight of information. Finally, and perhaps most significantly, the Ombudsperson is in a unique position to place pressure on [S]‌tates to gain access to relevant information.103 Notwithstanding the foregoing considerations, other parts of the Kadi II reasoning provide a departure from its earlier decisions. In contrast to its earlier decisions, the cjeu in Kadi II lowered the standard of evidence required to satisfy the rights of the defense and right to effective judicial protection.104 Lavranos and Vatsov considered that the cjeu “showed understanding that in certain circumstances disclosure of information is for security reasons not possible, meaning that the summary of the Sanctions Committee is considered sufficient to undertake a judicial review”.105 They contrasted this with Kadi I, where the “ecj said that, due to the lack of evidence, it was not able to undertake the review of the lawfulness of the contested regulation”.106 These changes

103 Devika Hovell, ‘Kadi:  King-​Slayer or King-​Maker? The Shifting Allocation of Decision-​ Making Power between the UN Security Council and Courts’ (2016) 79 Modern Law Review 147, 162. 104 Nikos Lavranos and Mihail Vatsov, ‘Kadi II: backtracking from Kadi I?’ in Matej Avbelj, Filippo Fontanelli, and Giuseppe Martinico (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge 2014) 115. 105 ibid, 116. 106 ibid.

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in the Kadi II as regards “the accuracy and reliability of the evidence” were also noted in the Youssef judgment of the UK Supreme Court of 27 January 2016.107 Overall, the cjeu in Kadi II paradoxically shows signs of further normative rebellion but also of backtracking. For Hovell, the cjeu in Kadi II has become more parochial and has mistakenly transformed “the justifiable act of rebellion by the ecj in Kadi into an enduring normative approach108”. Tzanakopoulos considers that in Kadi II, the cjeu may have overshot the target.109 For Lavranos and Vatsov, however, the cjeu in Kadi II has started to crumble under the political pressure by lowering the threshold for the evidence necessary to be provided for blacklisting thereby giving significant margin of appreciation back to the Commission, Council, and, ultimately, to the UN Security Council.110 Lavranos may be correct in his observations if this type of ‘backtracking’ is seen from the point of view of EU law. Yet, as far as the UN law and institutions are concerned, the cjeu in Kadi II neither showed signs of operating in a pluralised international legal order, nor of accepting any context-​based procedures that might fit in other organisations, including the Security Council. Furthermore, as regards the UN Charter in particular, the period “[between] 2005 and 2013, the arc swung 180 degrees from a recognition of Security Council supremacy by the cfi to a claim to judicial supremacy by the cjeu.”111 What Triggers EU Disobedience: between Autonomy and Human Rights The Kadi decisions received overwhelming support for defending human rights in times of crisis. This was embraced even at the cost of Security Council resolutions.112 III

107 Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 para 10. 108 Devika Hovell, ‘Kadi:  King-​Slayer or King-​Maker? The Shifting Allocation of Decision-​ Making Power between the UN Security Council and Courts’ (n 104), 160. 109 Antonios Tzanakopoulos, ‘The Solange argument as a justification for disobeying the Security Council in the Kadi judgments’ (n 103) 134. 110 Nikos Lavranos and Mihail Vatsov, ‘Kadi II: backtracking from Kadi I?’ (n 105) 119. 111 Devika Hovell, ‘Kadi:  King-​Slayer or King-​Maker? The Shifting Allocation of Decision-​ Making Power between the UN Security Council and Courts’ (n 104) 161. 112 Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (n 12) 294.

98 Chapter 4 However, it appears that the Kadi decisions are remembered as much for their ‘human rightism’ as for EU autonomy. This understanding derives from the way Kadi decisions are perceived by other legal orders. Other courts in the European hemisphere made a distinction with the EU courts when responding to Security Council resolutions affecting individual rights. The Law Lords of the UK Supreme Court in the Ahmed case, as well as the ECtHR in the Al-Dulimi case, perceived the position of the cjeu in Kadi as a result of the EU itself being a self-​contained regime not bound by the UN Charter. In the Ahmed case, Lord Brown considered that the Kadi decision was unsurprising because of course, the European Community is not a member [S]‌tate of the UN: unlike the UK, it is not under an international law obligation to implement Security Council decisions under article 41 of Chapter vii of the Charter and, more particularly, to do so in the light of article 103 of the Charter.113 Lord Philips advanced an argument that the Kadi “decision was about the legitimacy of a Council Regulation judged against the rules of the autonomous and self-​contained regime instituted under the EC Treaty”.114 Lord Hope, with whom Lord Walker and Lady Hale agreed, also considered that the ecj was not faced in Kadi … with the problem that article 103 of the UN Charter gives rise to in member [S]‌tates in international law, as the institutions of the European Community are not party to the UN Charter.115 A similar understanding concerning the nature of the EU legal order appears to be shared by judges Lorenzen, Raimondi and Jociene of the ECtHR. The latter held in the Al-Dulimi judgment that “the Kadi case exclusively related to a measure adopted by an institution within the legal system of the European Union, which is not itself a party to the UN Charter”.116 As such, the cjeu’s position in omitting the binding effects of the Security Council appears to be justified because the EU is not a party to the UN Charter. 113 114 115 116

Ahmed v Her Majesty’s Treasury [2010] UKSC 2, para 203. ibid, para 104. ibid, para 71. Al-​Dulimi and Montana Management Inc. v Switzerland 2013 (n 68), dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 69.

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This understanding firstly portrays the EU legal order as being equivalent to that of a State and not an international organisation operating on the basis of international agreements. Otherwise, if EU treaties were considered international agreements, Article 103 of the UN Charter would come into play. Secondly, the reasoning of the Law Lords in the Ahmed case also reveals that obligations to respect the decisions of the Security Council are reserved only for Member States. This consideration of the Kadi judgment is unsurprising as the cjeu itself pronounced that “the constitutional framework created by the EC Treaty as a wholly autonomous legal order, [is] not subject to the higher rules of international law  –​in this case the law deriving from the Charter of the United Nations”.117 Whether the EU is indeed a wholly autonomous legal order and unbound by international law remains a matter of legal debate. In scrutinising the Ahmed and Al-Dulimi cases, it appears that some courts have accepted the cjeu’s understanding of the separateness of the EU legal order from the existing nature of international law. Despite this, overall, there still remain diverging views between the cjeu and other EU institutions and Member States concerning the place of the UN Charter in the EU legal order. The continuing dissent of EU Member States regarding the cjeu’s understanding of its relationship with the UN Charter and the potential accession of the EU to the UN makes this relationship a work in progress that could change on the grounds of new circumstances. D

National Resistance through Constitutional Dualism

Whilst the two previous approaches have focused on the different extent of the binding nature of the UN Charter, this chapter develops a third approach. This approach, national resistance through constitutional dualism, focuses on constitutional niceties of the domestic jurisdiction in question. Through the use of national doctrines of dualism and ultra vires review, national courts can resist Security Council resolutions which affect individual rights. I Ahmed before the UK Supreme Court The Ahmed case concerned five British citizens who were subject to asset freezes under two UK measures adopted pursuant the United Nations Act 1946 117

Kadi v Commission 2010 (n 19) para 119.

100 Chapter 4 (1946 Act).118 The rights of A, K, M, G and Hay were affected either by the UK Terrorism Order 2006 (TO) or the UK Al-​Qaida and Taliban Order 2006 (aqo). Both the TO and the aqo measures were adopted to give effect to Security Council Resolution 1267 and other subsequent resolutions related to the sanctions regime on Al Qaida. The TO and the aqo, passed without Parliamentary approval, provided for the possibility for the executive, namely the Treasury, to freeze the assets of individuals without any procedural guarantee on the right of access to a court. The listing of individuals under the TO was made on the basis of ‘reasonable suspicion’ while the aqo transposed the Security Council Resolution concerning the Taliban into domestic law. Against this background, the newly established UK Supreme Court chose to review the legality of TO and aqo from the perspective of UK domestic law. In particular, the Court examined whether pursuant to Section 1(1) of the 1946 Act, the Treasury had the power to make the TO and aqo, thus freezing assets on the grounds of ‘reasonable suspicion’ and providing no access to a court for the listed individuals.119 The Court held that the test of ‘reasonable suspicion’ was not provided in Security Council Resolution 1373, to which the TO aimed to give effect.120 On the contrary, that Resolution refers to persons “who commit, or attempt to commit, terrorist acts”. The preamble refers to “acts of terrorism”. The standard of proof is not addressed. The question how persons falling within the ambit of the decision are to be identified is left to the member [S]‌tates.121 The Court thus ruled that by introducing the reasonable suspicion test as a means of giving effect to [Security Council resolution 1373], the Treasury exceeded their powers 118 Ahmed [2010] (n 114). 119 Section 1(1) of the 1946 Act reads: “[i]‌f, under Article 41 of the Charter of the United Nations … (being the Article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majesty’s Government in the United Kingdom [namely, the Treasury] to apply any measures to give effect to any decision of that Council, [Treasury] … may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order.” 120 Ahmed [2010] (n 114) para 58. 121 ibid.

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under section 1(1) of the 1946 Act. This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament … As Lord Hoffmann said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, fundamental rights cannot be overridden by general or ambiguous words. The absence of any indication that Parliament had the imposition of restrictions on the freedom of individuals in mind when the provisions of the 1946 Act were being debated makes it impossible to say that it squarely confronted those effects and was willing to accept the political cost when that measure was enacted.122 With respect to the aqo, the Court also held that the absence of judicial review for listed individuals made the measure under the 1946 Act ultra vires and thus had to be quashed.123 In the Court’s reasoning, rights triggered by the aqo, namely the peaceful enjoyment of property and unimpeded access to a court, are parts of domestic law and are embraced by the principle of legality, which lies at the heart of the relationship between Parliament and the citizen. [Such] fundamental rights may not be overridden by general words. This can only be done by express language or by necessary implications. So it was not open to the Treasury to use its powers under the general wording of section 1(1) of the 1946 Act to subject individuals to a regime which had these effects.124 The Court clarified that the review of the legality of the TO and aqo does not amount to an interference of the will of Parliament by the judiciary. Lord Rodger held that “[o]‌n the contrary it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country”.125 He further asserted that even such draconian measures would be lawful provided that Parliament passed a law. Thus, the issue at stake here was that the executive order was not within the purview of UK law passed by Parliament. He held that the 1946 Act would authorise [the Treasury] to make an Order in Council, even with these far-​reaching effects, provided that it had only a limited life-​span 122 123 124 125

ibid, para 61. ibid, para 81. ibid, para 75. ibid, para 157.

102 Chapter 4 and was replaced, as soon as practically possible, by equivalent legislation passed by Parliament. In this way the United Kingdom could promptly fulfil its obligations under the United Nations Charter.126 Although the Court limited its analysis to UK law, its position on the aqo is highly pertinent for the place of the UN Charter in the UK legal order as the aqo gave precise effect to UN Security Council resolutions. Cognizant of the inextricable link between the aqo and the Security Council resolution, the Court was not hesitant to engage with part of international law. The UK Supreme Court in Ahmed found itself bound by the precedent of Al-Jedda with respect to the legal force of Article 103 of the UN Charter.127 The Supreme Court considered that the present state of the law provides that in case of a conflict between the UN Charter and the echr, obligations under the UN Charter prevail.128 Further, in citing the Behrami case, the UK Supreme Court considered that “the Grand Chamber was prepared to recognise the primacy of obligations under the UN Charter over obligations under the Convention”.129 However, the UK Supreme Court considered that by invoking fundamental rights that are part of domestic law, Article 103 of the UN Charter could not be affected.130 One might argue that Article 103 of the UN Charter is indeed only relevant in so far as the mitigation of norm conflicts emanating from competing international agreements is concerned but that it does not extend to conflicts with domestic law. However, if this argument is employed, a domestic court should still remain cognizant of other obligations that a State has under the UN Charter. One such obligation is that to accept and carry out the decisions of the Security Council, as provided in Article 25 of the Charter, and the primacy and powers conferred by Member States to the Security Council to maintain international peace and security in Article 24.1 of the Charter which were particularly affected by the aqo. Such situations raise concerns of whether obligations emanating from the Security Council were neglected in the Ahmed case. 1 Dissenting Opinion of Lord Brown In his dissenting opinion, Lord Brown distinguished the issue of legality with regard to the TO and the aqo from the perspective of domestic and 126 127 128 129 130

ibid, para 176. ibid, para 71. ibid, para 74. ibid, para 98. ibid, para 75.

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international law. Regarding the TO, he agreed with the majority that the Treasury acted ultra vires when it employed the ‘reasonable suspicion’ test.131 That the test was not envisaged in Security Council Resolution 1373 to which the TO aimed to give effect was indicative of the executive overreach.132 However, with respect to the aqo, Lord Brown considered that the UK Order “faithfully implemented” the pertinent Security Council resolutions.133 He reinforced the legality of the aqo as the Security Council by Resolution 1267 unambiguously stated what was required of the UK and the 1946 Act equally unambiguously provided that that measure could be implemented by Order in Council.134 Lord Brown further argued that the fact that human rights were compromised in the case at hand did not suffice for a finding of illegality of the aqo. In fact, he accepted the aqo regime was contrary to the principles of human rights, but found that this was the “inevitable consequence of implementing Resolution 1267”.135 He thus suggested that human rights are inevitably compromised whenever a domestic law implements Security Council sanctions. He further argued that almost any Order made under section 1(1) of the 1946 Act is likely to interfere with somebody’s fundamental rights. Take a UN resolution imposing trading actions against some [S]‌tate. Any domestic measure giving effect to such a decision is bound to interfere with someone’s contractual dealings and impinge on their article 1 Protocol 1 rights and quite likely their article 8 rights too.136 Against this background, any such executive orders remain lawful as long as they implement a specific UN decision and the implementing measure does not go beyond the terms of the Security Council resolution.137 Such was the case with the aqo. Further interference with human rights is also lawful if such measures are properly introduced by primary legislation.138 131 132 133 134 135 136 137 138

ibid, para 197. ibid, para 197. ibid, para 197. ibid, para 204. ibid, para 203. ibid, para 196. ibid, para 196. ibid, para 196.

104 Chapter 4 In contending the position taken by the majority of judges, Lord Brown was concerned that the position of the Court in the Ahmed case might weaken the UK’s commitment to the UN Charter.139 2 Concluding Observations The Ahmed judgment is the first decision of a domestic European court that quashed domestic orders of the executive branch, adopted to give direct effect and comply with obligations of Security Council resolutions. By ruling on the TO and particularly the aqo as being ultra vires, the Ahmed judgment sheds some light on the adjudication of certain ‘arbitrary’ measures that emanate from Security Council obligations. First, the judgment provides that human rights cannot be trumped by executive orders, unless otherwise explicitly required by a law adopted by Parliament. Like the ECtHR in the Al-Jedda case, the UK Supreme Court seems to adopt the view that if there are ambiguous terms in law, preference should be given to the protection of human rights. Second, the Court’s ruling on the illegality of the TO and the aqo did not challenge the Parliament’s power and legitimacy to adopt laws that might contradict basic fundamental human rights. Thus, the judgment should not be seen as a form of judicial legislative activism limiting the powers of Parliament. Instead, the judgment concerns the issue of separation of powers between the executive and legislative, where the executive can abrogate human rights only with clear laws adopted by Parliament.140 Third, when scrutinising the Court’s examination of the compliance of the TO and the aqo with UK domestic law and not with international law, one has to bear in mind the dualist character of the UK legal system. As has already been established in UK case law, international law has no domestic effect unless and until it is enacted by domestic legislation.141 Hence, the implementing act determines the scope and application of the rules of international law in question. Against this background, the Supreme Court’s general approach to the examination of the compliance of the TO and the aqo with the 1946 Act is consistent with the court’s case law. Such constitutional features imply that even if the Ahmed judgment showed signs of ‘detachment’ from UN

139 ibid, para 206. 140 ibid, para 85; R v Secretary of State for Home Department: Ex parte Simms [2000] 2 AC 115, para 131. 141 J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418. See also the arguments brought by councils in the Ahmed [2010] (n 114) para 244.

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obligations, this should not be seen as a result of the court’s hegemonic disobedience either of the UK Parliament or the Security Council resolution. Although the UK Supreme Court made an analysis based on domestic law, it did not pronounce on the autonomy of the UK legal order, the non-​binding effects of the UN Charter, or the constraints on the law-​making powers of the UK Parliament. Nonetheless, it remains dubious whether the Treasury acted ultra vires in adopting the aqo, which as noted by Lord Brown, provided no more and no less than what was explicitly required by the Security Council resolution.142 As the 1946 Act was adopted to mandate the executive to give effect to obligations emanating from the UN Charter, the Treasury adopted the aqo to comply with obligations of the UN Charter, even if that implied abrogating certain human rights.143 The Court considered that the 1946 Act did not allow the executive to override fundamental rights protected under UK law –​such as the right to a fair trial.144 However, it is hardly conceivable that the Treasury could have acted in any other way in order to comply with Security Council obligations, to which, according to its domestic law, it was supposed to give effect. In this vein, it appears that the assessment of the legality of the aqo was also guided by considerations on how poorly equipped the UN system is to protect individual fundamental rights. This could be inferred from reading the Court’s criticism of part of the UN mechanisms introduced to deal with such fundamental rights. The UK Supreme Court did not consider the Office of the Ombudsperson on the (then) Taliban and Al Qaida regime as a radical step that deserves its deference, as access to a court still remains absent.145 Hence, reading the Court’s reasoning on the ultra vires nature of the aqo in conjunction with its overall criticism of the Security Council system on human rights, the Ahmed judgment cannot be said to be either obedient or sympathetic towards the UN Charter. Yet the Court was also cautious not to set a precedent that questions either the force of Article 103 of the UN Charter or the UK Parliament’s ‘unlimited’ power to legislate.

142 Ahmed [2010] (n 114) para 198. 143 ibid, para 197. 144 ibid, para 80, quoting the Federal Court of Canada in Abdelrazik (n 15) para 51. See also Antonios Tzanakopoulos, ‘Falling Short:  UN Security Council Delisting Procedural Reforms Before European Court’ (2013) Sanctions & Security Research Program. 145 ibid, paras 78, 80, 239. See also Antonios Tzanakopoulos, ‘The UK Supreme Court Quashes Domestic Measures Implementing UN Sanctions’, EJIL: Talk!, 23 February 2010  accessed 6 May 2018.

106 Chapter 4 E Harmonisation The subordination approach of the European courts has been a target of scholarly debates and criticism as the number of cases pertaining to blacklisting of individuals has only increased over time. As a result of this, courts have searched for solutions that allow the coexistence of Security Council resolutions and fundamental rights. This search has resulted in an approach of ‘harmonisation’. In examining the Al-Jedda, Nada and Al-​Dulimi cases of the ECtHR, the analysis will reveal tools of treaty interpretation that could be used to ease the ever-​ growing tension between Security Council resolutions and the human rights protected by international conventions and national constitutions. I Al-​Jedda before the ECtHR On 7 July 2011, the Grand Chamber of the Strasbourg Court in Al-​Jedda v the United Kingdom addressed two burning topics of international law: the attribution of UN military operations to the State, and the relationship between the Security Council resolutions and the echr. While the Court’s reasoning on the attribution of UN military operations is invaluable for revisiting its prior case law in Behrami and Saramati,146 this part is concerned with the Court’s application of Article 103 of the UN Charter in the European legal system. In particular, it will examine whether Article 103 can displace Article 5.1 of the echr. The case will be analysed in depth, as it is the first case to provide for harmonisation of competing obligations between peace and security and human rights. The Court’s reasoning and the arguments brought by the parties are an addendum to the overall discussion on the law of treaties. 1 Application of Article 103 of the UN Charter As far as Security Council resolutions are concerned, the ECtHR had “effectively avoided engaging in any incidental review”.147 Like the UK courts in Al-​Jedda, the prior case-​law of the ECtHR is reluctant to challenge any term emanating from the UN Charter even when it triggers issues of echr rights.148

146 Behrami and Saramati (n 5). 147 Erika de Wet, ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law: Evidence of Constitutionalisation?’ (n 75) 298. 148 For discussion see Berić and Others v Bosnia and Herzegovina (n 5) para 29.

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However, following the immense criticism of its previous case law in Behrami and Saramati149 and in line with the emerging jurisprudence and doctrines that, particularly in the European context, support fundamental human rights taking precedence over any other legal obligations, the Strasbourg Court had to revisit the gentle approach it had taken towards the UN Security Council resolutions. As already illustrated, Al-​Jedda’s factual background required the ECtHR to assess inter alia the parties’ positions on whether the terms of Security Council Resolution 1546 displaced Article 5 of the echr. 2 Arguments of the Parties The UK Government had to address whether Resolution 1546 contained any provisions on internment, and if so, whether those provisions contained recommendations or obligations for the purposes of applying Article 103 of the UN Charter. Depending on the terms of the resolution, Article 103 might be (de) activated. First, with regard to Security Council Resolution 1546, paragraph 10 provides that the Multi-​National Force had the “authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution …”.150 The annexed letter expressly referred to internment as one of the tasks which the Multi-​National Force was to perform.151 Given this provision, it was obvious to the UK Government that “Resolution 1546 could not have been clearer in terms of authorising the Multi-​National Force to use preventive detention where ‘necessary for imperative reasons of security in Iraq’ ”.152 As a second step, the UK Government had to convince the Court that Security Council Resolution 1546 had created an obligation under the UN Charter and, pursuant to Article 103 of the Charter, could justify non-​observation of Article 5 echr. The importance of this cannot be understated as Article 103 stipulates that only obligations deriving from the UN Charter would prevail over other international agreements.153 It has been suggested that decisions taken ultra vires and non-​binding resolutions adopted by UN organs, including

149 See Andrew Clapham, ‘The Subject of Subjects and the Attribution of Attribution’ in Laurence Boisson de Chazournes and Marcelo Kohen (eds), International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-​Debbas (Brill 2010) 45–​59. 150 UNSC Res 1546 (n 30) para 10. 151 Al-​Jedda v The United Kingdom (n 21) para 103. 152 ibid, para 88. 153 ilc Report on Fragmentation (n 2) para 331.

108 Chapter 4 the Security Council, are not covered by Article 103.154 To understand when there is a binding obligation, the icj has considered that “the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect”.155 In this light, the UK argued that even though Resolution 1546 referred to authorisation, it did not mean that Article 103 could not be applied, particularly in the area of military operations. Indeed, ‘authorisations –​delegations’ form a category which is neither subsumed under the heading of ‘recommendation’, nor under the traditional heading of ‘obligation’.156 Its sui generis character required an analysis of where it might fall under the text and spirit of Article 103, without being stopped in limine litis by a word, ‘obligations’, that did not possess a determined legal meaning.157 The UK asserted that as long as there was no agreement under Article 43 of the UN Charter by the Member States to make troops available to the UN, no State could be required to take military action. It further developed its logical argument and stated [u]‌nless the Security Council could proceed by authorisation, it would be unable to take military measures at all, thus frustrating an important part of the Chapter vii machinery. However, if a resolution authorising military action did not engage Article 103 of the Charter, the result would be that any State acting under that authorisation would breach any conflicting treaty obligations, which would fatally undermine the whole system of the Charter for the protection of international peace and security. It was plain that this was not the way that States had regarded the legal position under any of the numerous resolutions issued by the Security Council authorising military action. It had also been the view of the most authoritative commentators; as Lord Bingham observed at § 33 of the House of Lords judgment, there is “a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable 154

ilc Report on Fragmentation (n 2) para 331. See also Robert Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 21. 155 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-​ West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971], Advisory Opinion, icj Rep 16, para 114. 156 Robert Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’ (n 155) 34. 1 57 ibid.

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where conduct is authorised by the Security Council as where it is required”.158 The UK Government, being convinced that Article 103 was applicable in the case at hand, further argued that such obligations could displace the provisions of the echr. Referring to the interpretation of Article 103 in the Lockerbie case and the legal literature, the UK Government reasoned that “application of Article 5 of the Convention was displaced by the legal regime established by the United Nations Security Council Resolution 1546 by reason of the operation of Articles 25 and 103 of the United Nations Charter, to the extent that Article 5 was not compatible with that legal regime”.159 It further noted that it was the Grand Chamber of the ECtHR that in Behrami and Saramati “explicitly recognised that the Convention should not be applied in such a way as to undermine or conflict with the actions taken under Chapter vii by the Security Council”.160 It has to be noted that the Government did not however raise the argument as to whether internment in Iraq was justified by the provisions of the echr. This could have been raised particularly by reference to Article 15 of the Convention, which allows a State “[i]‌n time of war or other public emergency threatening the life of the nation …” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation …”.161 In response, Al-​Jedda challenged all the arguments raised by the Government, including arguing that Article 103 did not apply in the case. This first argument was put forward upon consideration that Security Council Resolution 1546 did not contain any mandatory provision on internment. Further, the applicant argued that, even if such provisions had been explicitly articulated in the Resolution 1546, they would not displace the requirement to respect human rights of the echr legal order.162 This position was introduced with reference to the Kadi case. Regarding the first argument, the applicant stated that the Resolution “did not require a State to take action incompatible with its human rights obligations, but instead left the State discretion as to whether, when and how to contribute to the maintenance of security”.163

158 159 160 161 162 163

Al-​Jedda v The United Kingdom (n 18) para 90. ibid, para 91. ibid. European Convention on Human Rights 1950, art 15. ibid, paras 93–​94. ibid, para 93.

110 Chapter 4 Indeed, Resolution 1546 contained a reminder for Member States Security Council authorisation should be used with due regard to their obligations under other human rights conventions. In particular, the resolutions appealed to “all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law …”.164 As noted by the UN Assistance Mission for Iraq (unami), “[i]‌nternational law includes human rights law”,165 and “[i]nternees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”.166 The applicant made reference to unami and other reports in demonstrating that indefinite detention is arbitrary and in violation of international law. The UN Secretary General has pointed out that “[o]‌ne of the major human rights challenges remains the detention of thousands of persons without due process”, and “[p]rolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency”.167 It was also voiced that such “de facto arbitrary detention … is not consistent with the provisions of international law governing internment for imperative reasons of security”.168 The reports and interpretations noted above strongly signalled that there was no intent and moreover no consent for the displacement of human rights obligations under other human rights treaties by the authorisation to contribute to maintenance of security and stability in Iraq. Al-​Jedda’s second argument was based on the autonomy of the echr. By referring to Kadi, Al-​Jedda suggested that even if the terms of the Security Council resolution were mandatory, they would not displace obligations under the echr. Here, the applicant put forward that “[t]‌he essence of the judgment in Kadi was that obligations arising from United Nations Security Council resolutions do not displace the requirements of human rights as guaranteed in Community law”.169 Further, he contended that this rationale applied mutatis 1 64 UNSC Res 1546 (n 30) preamble. 165 UN Assistance Mission for Iraq, Human Rights Report, 1 April–​30 June 2007, para 77; See also Al-​Jedda v The United Kingdom (n 21) para 41. 166 UN Assistance Mission for Iraq, Human Rights Report, 1 July–​31 August 2005, para 12; See also Al-​Jedda v The United Kingdom (n 21) para 41. 167 Report of the Secretary General pursuant to paragraph 30 of UNSC Res 1546 (8 June 2004), Document of 7 June 2005, S/​2005/​373, para 72. See Al-​Jedda v The United Kingdom (n 21) paras 40–​41. 168 Al-​Jedda v The United Kingdom (n21) para 40. See also, Report of the Secretary General, ibid, para 54. 169 Al-​Jedda v The United Kingdom (n 21) para 94.

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mutandis to the echr, otherwise “[i]f it were accepted that international law obligations displaced substantive provisions of the Convention …” such a stance “would be contrary to the principle expressed by the Court in the judgment in Bosphorus”.170 The Bosphorus case concerned the implementation of a European Community Regulation giving effect to UN sanctions, where the Court applied the criterion of ‘equivalence’ of human rights guarantees in the European legal system compared to those under the Convention, and concluded that Ireland did not incur responsibility.171 It seems that the applicant raised the second argument as a safeguard in case the ECtHR viewed Resolution 1546 as sufficiently clear with regard to internment. By advancing the Kadi approach, the applicant invited the ECtHR to insist on the separateness of its legal regime from UN law and not jeopardise its fundamental rights by embracing the primacy of UN Charter obligations. 3 Response of the ECtHR The ECtHR, being the guardian of a separate legal regime, did not, however, borrow the cjeu’s approach in Kadi and instead fashioned an alternative response to potentially arbitrary actions taken under a Security Council resolution. The Court considered that since Article 103 would prevail only in the event of conflicting obligations, it “must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5.1 of the Convention”.172 In this regard, two aspects of the Court’s reasoning require closer observation. First, the placement of human rights in the UN Charter, and second the status of internment under Security Council Resolution 1546. As to the first issue, the Court emphasised the importance of the fundamental human rights contained in the UN Charter. By referring to the human rights provisions articulated in the principles and purposes of the UN Charter, the Court considered that “in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights”.173 The ECtHR did not rule that Security Council resolutions could be displaced in light of human rights considerations generally. It asserted, however, that absent the provisions in a resolution requiring States to take measures in conflict 170 171 172 173

ibid, para 95. Case C-​84/​95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others. [1996] ECR I-​3953paras 15, 109, 111, 155. Al-​Jedda v The United Kingdom (n 21) para 101. ibid, para 102.

112 Chapter 4 with their obligations under international human rights law, it would interpret ambiguous terms of any such resolution in the most Convention-​compliant manner.174 Consequently, the Court genuinely applied its Convention rights based on the argument that no explicit provisions of the resolution were at stake. On the second point, the Court did not engage in a direct review of the mandatory status of authorisations in Resolution 1546, but rather analysed the wording and purpose of the Resolution as containing explicit provisions on internment. The Court found that internment had been listed in the annexed letter to Resolution 1546 as an example of the broad range of tasks which the Multi-​ National Force stood ready to undertake. At the same time, the Court appeared to emphasise that internment had not explicitly been referred to in the Resolution.175 Such a distinction made by the Court could be viewed as contradictory. On the one hand, the Court accepted that the annexed letter contained explicit terms on internment, even if listed under a “broad range of tasks”, and, on the other hand, it made the reservation that the Resolution as such did not refer to internment. The Court also remained silent as to whether the authorisation stemming from the Security Council Resolution amounted to a recommendation or an obligation for the purpose of (de)activating Article 103 of the UN Charter. Instead, the Court chose to view Resolution 1546 as placing no obligation on Member States to use internment, also invoking the objections repeatedly made by the UN Secretary General and unami on the use of internment by the Multi-​National Force. Indeed, the findings of the UN Secretary General and unami played an essential role in determining the intent and content of the terms of Resolution 1546 as far as internment was concerned. It can be questioned how the Court would rule in the circumstances of the case, if the UN Secretary General and unami had been more silent on the matter. In conclusion, the Court decided that since no superior norm collided with echr rights, no rule of any other treaty regime displaced the requirement for compliance with Article 5 of the echr. In the concluding part the Court stipulated in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of

174 175

ibid, para 102. ibid, paras 103–​105.

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the United Nations and its obligations under Article 5  § 1 of the Convention. In these circumstances, where the provisions of Article 5  § 1 were not displaced and none of the grounds for detention set out in sub-​ paragraphs (a) to (f) applied, the Court finds that the applicant’s detention constituted a violation of Article 5 § 1.176 One may suggest that the last determination of the Court leaves sufficient room to assert that Article 5.1 could be displaced if there was an explicit binding requirement to use internment in obligations deriving from the UN Charter. 4 Avoiding Norm and Value Conflicts Rules appear as compatible or in conflict as a result of interpretation.177 Although the ECtHR used all means of treaty interpretation to avoid the conflict, one could argue that the case involved a prima facie conflict of obligations. The letter annexed to the Security Council Resolution explicitly employed the term ‘internment’. Whether this could be classified as a recommendation or an obligation would be an issue for further discussion. However, a conflict existed at least in a literal interpretation of Article 103 of the UN Charter and Article 5 of the echr. Therefore, if it had chosen to do so, the Court had an opportunity to engage in a lengthy normative and doctrinal debate on the hierarchy and conflict of norms and values. In this context, one could recall the ‘international value system’ approach advanced by de Wet, which would require that a serious discussion based on values be undertaken. De Wet has argued that organs of the UN, including the Security Council, would be bound by the core content of the human rights contained in all UN human rights treaties, despite the fact that the UN is not a party to any of them.178 De Wet further contends that the hierarchy of norms within international law should be based on an ‘international value system’ where jus cogens and erga omnes norms would be superior to any Security Council resolution.179 This proposition, therefore, rejects the notion that the 176 ibid, paras 109–​110. 177 ilc Report on Fragmentation (n 2) para 412. 178 Erika de Wet, ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law:  Evidence of Constitutionalisation?’ (n 75)  292. See generally Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing 2004). 179 Erika de Wet, ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law’ (n 149) 289–​292. While treaty conflicts resulting from law can usually be easily solved, as Klabbers suggests, conflicts are unsolvable as a matter of law as soon as they emanate from clashes of values. Overall, no argument could be convincing

114 Chapter 4 Security Council could deviate from international human rights standards when adopting binding measures under Chapter vii of the Charter.180 While de Wet seems to vest all erga omnes norms with supremacy, an ilc Report suggests that “[a]‌lthough in practice norms recognised as having an erga omnes validity set up undoubtedly important obligations, this importance does not translate into a hierarchical superiority similar to that of Article 103 and jus cogens”.181 Nollkaemper similarly observes that in cases of a conflict of obligations pursuant to Security Council resolutions and international human rights, which are not at the level of ius cogens, the obligation of the Resolution would prevail as Article 103 would be the superior obligation.182 5 Favouring Harmonisation It would appear that in developing its reasoning the Strasbourg Court was mindful of a smooth assessment of the case. The Court managed to refrain from a mechanical debate on the hierarchy of norms and treaty conflicts through the means of treaty interpretation. As can be inferred from the ilc Report, in case of conflicting or overlapping treaties of different regimes, both treaties should be implemented as far as possible with a view to mutual accommodation and in accordance with the principle of harmonisation.183 The principle of harmonisation requires that in the event of a prima facie conflict, the two norms be interpreted as compatible. This entails mutual accommodation and protection of rights. As Dirk Pulkowski argues, “while the substantive legal prescriptions under various regimes differ widely, all these regimes also have important commonalities”.184 This would serve as encouragement for the courts to seek commonalities between different treaty rule systems by means of treaty interpretation. In view of the foregoing, it would appear that by referring to the human rights principles of the UN Charter, the ECtHR sought to mutually accommodate the human rights provisions of both legal orders. In this way, the Court managed to support its reasoning on the ‘ambiguous terms’ of the Security Council resolution. enough to strike an absolute balance between two legal orders with different focuses underlying their legal structures and objectives. It may be an unrealistic expectation, particularly in hard cases, that all discrepancies will be resolved. See Jan Klabbers, Treaty Conflict and the European Union (n 85) 35. 180 ibid, de Wet. 181 ilc Report on Fragmentation (n 2) para 380. 182 André Nollkaemper, ‘Rethinking the Supremacy of International Law’ (2010) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65, 80. 1 83 ilc Report on Fragmentation (n 259) paras 37–​43, 276–​279. 184 Dirk Pulkowski, ‘Universal International Law’s Grammar’ (n 72) 139.

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This approach can find certain reflections in the words of Neil MacCormick, that “coherence is a consequence of one of two things: either several rules or decisions can be comprehended as the realisation of some common value or values; or they can be interpreted as fulfilling some common principle or principles”.185 The Court in Al-​Jedda, by focusing on common principles and values while adhering to its autonomous standards, succeeded in accommodating both treaty regimes in arriving at the same result. The grace of the Al-​Jedda reasoning is that the Court neither took a strong pluralist approach,186 nor attempted to resolve the matter through a value-​ based hierarchy of international law. Instead, it found an effective mechanism to address the ‘arbitrariness’ in the implementation of the resolution while not resisting the primacy of the UN Charter. The Court thus showed full respect to superior norms of the UN Charter and simultaneously applied its Convention. 6

The Method of Treaty Interpretation and the Application of Systemic Integration As observed above, the ECtHR’s reasoning in Al-​Jedda represents a genuinely inclusive approach taken by an international court in accommodating and harmonising various treaty rule systems in the context of its regime. Though the ECtHR made no formal reference to the principle of systemic integration, the Court accurately reflected the requirements of Article 31.3.c of the Vienna Convention on the Law of Treaties (vclt).187 Article 31.3.c urges that in cases of treaty interpretation, together with the context, “any relevant rules of international law applicable in the relations between the parties” should be taken into account. Systemic integration is “an exhortation that the relevant instruments should always be read as compatible with each other … within an overall obligation to cooperate”.188

185 Neil MacCormick, ‘Coherence in Legal Justification’ in Aleksander Peczenik et al. (eds), Theory of Legal Science (D. Reidel 1984), cited in Dirk Pulkowski, ‘Universal International Law’s Grammar’ (n 72) 151. 186 On pluralism and strong pluralism see Gráinne de Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (n 21) 4: “pluralist approaches to the international legal order are those that emphasise the existence of a multiplicity of distinct and diverse normative systems, and the likelihood of clashes of authority-​claims and competition for primacy amongst these. Strong pluralist approaches deny the possibility of a shared, universally-​oriented system of values and question the meaningfulness of the idea of an international community” and [t]‌hey advocate agonistic, ad hoc, pragmatic, and political processes of interaction rather coordination between legal systems”. 187 The Vienna Convention on the Law of Treaties 1980, art 31(3)(c). 188 ILC Report on Fragmentation (n 2) para 271.

116 Chapter 4 Klabbers asserted that this provision “is presently often regarded as a possible remedy to an ailment of the fragmentation”.189 Article 31.3.c. therefore is also applied to complete the legal picture or fill gaps in a treaty by reference to general international law, deriving guidance from parallel treaty provisions, resolving conflicting obligations under different treaties and taking into account international law developments.190 Based on Article 31.3.c, an international court in interpreting its treaty provisions needs to seek an accurate reference to other applicable norms of international law. The principle of systemic integration serves a function analogous to that of a master-​key in a large building.191 As put by McLachlan .

[m]‌ostly the use of individual keys will suffice to open the door to a particular room. But, in exceptional circumstances, it is necessary to utilise a master-​key which permits access to all of the rooms. In the same way, a treaty will normally be capable of interpretation and application according to its own terms and context. But in hard cases, it may be necessary to invoke an express justification for looking outside the four corners of a particular treaty to its place in the broader framework of international law.192 It has therefore been suggested that an international court should not act solely as guardian of its treaty in clinical isolation but must seek international justice by applying principles and rules of other treaty regimes. Practice reveals that international courts do face situations prompting them to look at other treaty regimes. In the context of the relationship between the UN Convention on the Law of the Sea 1982 and a fisheries treaty, The Arbitral Tribunal in the Southern Bluefin Tuna case stated, “it is a commonplace of international law and State practice for more than one treaty to bear upon a particular dispute … [t]‌here is frequently a parallelism of treaties … [t]he

189 Jan Klabbers, ‘Reluctant Grundnormen: Article 31(3)(C) and 42 of the Vienna Convention on the Law of Treaties and the Fragmentation of International Law’ in Matthew Craven, Malgosia Fitzmaurice and Maria Vogiatzi (eds) Time, History and International Law (Martinus Nijhoff, 2007) 156. 190 Richard K. Gardiner, Treaty Interpretation (Oxford University Press 2008) 260. 191 Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279, 280–​281. 192 ibid.

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current range of international legal obligations benefits from a process of accretion and accumulation …”.193 The Arbitral Tribunal here addressed the application of more than one treaty to a particular dispute. It undertook an inclusive approach highlighting that “the doctrine of ‘treaty parallelism’ addresses precisely the need to coordinate the reading of particular instruments or to see them in a ‘mutually supportive’ light.”194 However, not all international courts have been so willing to apply such an inclusive approach. This reluctance can be considered to derive from those who apply the law themselves, who occasionally are under political obligations “to make their decisions cohere with the preferences and expectations of the community whose law they administer”.195 As Koskenniemi reasons, international courts and tribunals struggle for “institutional hegemony”.196 Despite such a label, Judge Simma has suggested this “has hitherto been one among friends”, and “the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent construction of international law”.197 The truth may lie somewhere in between. In the author’s view, it is unfeasible to qualify the debate on fragmentation among a growing number of international courts as either a struggle for hegemony or comity. International courts are guided by different legal and policy considerations and this may at times determine their response to other legal regimes. Another difficulty in the application of systemic integration could be based on the non-​binding effect of the vclt upon the States and international organisations not party to the Convention. This concern is, however, overcome by the international customary nature of Article 31. This argument was addressed in the Iron Rhine arbitral award by the Permanent Court of Arbitration. The Court held that Articles 31 … of the Convention reflect pre-​existing customary international law, and thus may be (unless there are particular indications to the 193

Southern Bluefin Tuna case (Australia and New Zealand v Japan) [2000], Arbitral Tribunal constituted under Annex vii of the unclos, Award on Jurisdiction and Admissibility, para 52. 194 ilc Report on Fragmentation (n 2) para 417. 195 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1977) cited in ilc Report on Fragmentation (n 2) para 35. 196 See Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’ (2004) 17 Cambridge Review of International Affairs 197; Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law Review 1. 1 97 Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (n 12) 289–​290.

118 Chapter 4 contrary) applied to treaties concluded before the entering into force of the Vienna Convention in 1980. The International Court of Justice has applied customary rules of interpretation, now reflected in Articles 31 … of the Vienna Convention, to a treaty concluded in 1955 … and to a treaty concluded in 1980, bearing on rights of States that even on the day of the Judgment were still not parties to the Vienna Convention. …198 While given the preceding considerations, international courts could reasonably be expected to apply systemic integration and harmonisation irrespective of the status as to the vclt, the courts have no pre-​determined guidance or checklist as to what law is applicable, its weight, and the relevance of the norms of different treaty regimes. In this respect, the reasoning of the ECtHR in Al-​Jedda provides a valuable contribution to application of systemic integration. Paragraphs 42–​58 of Al-​Jedda enumerate binding and non-​binding material which potentially could have direct or indirect relevance in the case. Thus, while Article 31.3.c. requires that courts take into account rules “applicable in the relations between the parties”, the ECtHR went, to use the words of Simma and Hernandez, “beyond the Vienna Convention, without leaving it behind”,199 by applying any relevant material, even outside the parties’ referral, that was of judicial and doctrinal pertinence. Apart from Resolution 1546, which the parties brought to the Court’s attention, the Court expanded the list of sources by including national jurisprudence,200 materials of the International Law Commission,201 and governmental initiatives such as those of the Copenhagen Process on The Handling of Detainees in International Military Operations.202 Given said categories of sources, the ECtHR in Al-​Jedda went beyond the constraints of systemic integration and reasoned with topical jurisprudence by trying to identify common places or topoi that could be relevant for the case. In particular, the ECtHR attempted “to apply the methodology of rhetoric to the investigation of legal texts and legal reasoning.”203 198

Arbitration regarding the Iron Rhine (Ijzeren Rijn) Railway (Belgium v the Netherlands) [2005] PCA Rep, para 45. 199 Bruno Simma and Gleider I. Hernandez, ‘Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 66. 2 00 Al-​Jedda v The United Kingdom (n 19) para 54. 2 01 ibid, paras 55–​57. 2 02 ibid, para 58. 203 Anita Soboleva, ‘Topical Jurisprudence:  Reconciliation of Law and Rhetoric’ in Anne Wagner, Wouter Werner and Deborah Cao (eds), Interpretation, Law and the Construction

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Such jurisprudence, common in different legal systems and cultures higher Courts is traditionally premised on looking for the starting points of legal reasoning.”204 The application of topical jurisprudence does not extend to situations where a judge makes law and therefore is free to apply any kind of legal or non-​ legal text as a source of his or her inspiration. Instead, legal certainty should be minded in determining the applicable sources in response to challenges of legal plurality. When considering which topoi must be applied, in the words of Jack Balkin “we must begin with the presumption that they make sense –​that they represent an intelligible and defensible scheme of regulation”.205 The application of systemic integration and particularly topical jurisprudence reveals how treaty regimes can reach a harmony settlement by not challenging the co-​existence of fundamental norms and principles of various treaty regimes. These techniques of treaty interpretation demonstrate that international regimes remain, to a certain extent, compatible with one another, although it remains dubious whether harmonisation can at all times be attainable. Nada before the ECtHR: Harmonisation at the Level of Implementation of Security Council Resolutions The Nada judgment of the ECtHR confirms that the Al-​Jedda model of harmonisation is not an accidental response to situations when the echr is juxtaposed with Security Council obligations. On 12 September 2012, the Strasbourg Court in its Nada judgment asserted II

[w]‌here a number of apparently contradictory instruments are simultaneously applicable, international case-​law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law.206 of Meaning: Collected Papers on Legal Interpretation in Theory, Adjudication and Political Practice (Springer 2006)  49. See generally Ineta Ziemele, ‘Other Rules of International Law and the European Court of Human Rights: A Question of a Simple Collateral Benefit?’ in Dean Spielmann, Marialena Tsirli and Panayotis Voyatzis (eds), The European Convention on Human Rights, a living instrument: Essays in Honour of Christos L. Rozakis (Bruylant 2011); Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford University Press 2010). 204 ibid, Anita Soboleva, 51–​52. 205 Cited in Dirk Pulkowski, ‘Universal International Law’s Grammar’ (n 72) 152. 2 06 Nada v Switzerland (n 21) para 170.

120 Chapter 4 While the ECtHR in the Nada case reiterated its readiness to pursue simultaneous accommodation of fundamental rights and Security Council obligations, the facts surrounding Mr Nada’s case should be distinguished from the facts in Al-​Jedda. In particular, the situation in Nada emanated from more explicit terms of the Security Council Resolution 1390 (2002), requiring, inter alia, an asset freeze, and application of the entry and transit ban against Mr Nada.207 The listing of Mr Nada in the ‘Taliban Ordinance’, associating him with serious terrorist activities, created a situation that differed from that in Al-​Jedda, and reflected similarities to Kadi. In this regard, the ECtHR recognised contrary to the situation in Al-​Jedda, … Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, the … [Al-​Jedda] presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that resolution (… in paragraph 7 of Resolution 1267 (1999) … the Security Council was even more explicit in setting aside any other international obligations that might be incompatible with the resolution).208 Although the ECtHR acknowledged that the clear and explicit terms of Resolution 1390 obliged Switzerland to take measures that may breach human rights, it also found that “the Charter in principle leaves to UN Member States a free choice among the various possible models of transposition of those resolutions into their domestic legal order”.209 Next, the ECtHR moved on to its ‘linguistic ambiguity exercise’, an approach adopted in Al-​Jedda, by identifying spaces in the terms of Security Council Resolution 1390 in which to accommodate fundamental rights.210 In this manner, the ECtHR held that the wording employed in Resolution 1390 where appropriate and necessary comprised on the part of the national authorities “certain flexibility in the mode of implementation of the resolution”.211 In support of this argument, the ECtHR took into account the Swiss Parliament’s statement

2 07 208 209 210 211

UNSC Res 1390 (28 January 2002) UN Doc S/​RES/​1390 part 2 (a) and 2 (b). Nada v Switzerland (n 21) para 172 (emphasis added). ibid, para 176. Marko Milanovic, ‘European Court Decides Nada v Switzerland’ EJIL: Talk!, 14 September 2012  accessed 6 May 2018. Nada v Switzerland (n 21) para 178.

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to the UN Security Council “that it would no longer unconditionally be applying the sanctions prescribed against individuals under the counter-​terrorism resolutions”.212 In this light, the ECtHR in Nada concluded that “Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the UN Security Council”.213 In this ‘hard case’ of the rather straightforward language of the Security Council Resolution 1390, the ECtHR maneuvered to preserve both the primacy of Article 103 of the UN Charter, and fundamental rights. The Court did so by having recourse to a linguistic test which, as one may observe, centres on spaces in Security Council resolutions. The ECtHR’s substantial findings flowing from the less clear Security Council resolutions in Al-​Jedda, and, more recently, in Nada, constitute an alarm for the Security Council that more precision should be expected in the language of its resolutions, particularly when these trigger human rights issues. Overall, the ECtHR holdings in Al-​Jedda and Nada are a result of a broader interpretation of norm conflict and provide invaluable examples on how to avoid the debate on the hierarchy of norms outside the ‘either, or’ constraints when dealing with two prima facie conflicting obligations. General Observations on Al-​Jedda and Nada: the Two-​Level Harmonisation Approach In the Al-​Jedda and Nada cases, the Strasbourg Court endeavoured to harmonise its treaty regime when the rights arising under it were confronted by Security Council resolutions. In those cases, the Strasbourg Court strived for compatibility between the systems of the echr and UN. It did so first by searching for spaces in the language of a Security Council resolution allowing for accommodation of fundamental rights,214 and, second –​where the language posed clear limitations –​it looked for latitude in the implementation of Security Council resolutions.215 This could be characterised as a two-​level harmonisation approach. In this manner, in Al-​Jedda the ECtHR set a standard according to which, unless a Security Council resolution contained an explicit derogation from a given right, the presumption, in the view of Article 1.3 of the UN Charter, was that the Security Council intended States to comply with their obligations III

212 213 214 215

ibid, para 179. ibid, para 180. Al-​Jedda v The United Kingdom (n 21). Nada v Switzerland (n 21).

122 Chapter 4 under international human rights law.216 This harmonisation approach was further developed in the subsequent case of Nada, where, in contrast to the situation in Al-​Jedda, the Security Council resolution in question contained clear and explicit language, imposing on States an obligation to take measures capable of breaching human rights. Even in that case, the Strasbourg Court searched for any latitude afforded to a State in the implementation of a Security Council resolution, in order to accommodate human rights.217 Although one could take the view that the Security Council resolutions discussed in Al-​Jedda and Nada contained rather unambiguous terms, the ECtHR still made room for its two-​level harmonisation approach. By identifying either spaces in the language of a Security Council resolution or latitude in its implementation, the ECtHR has so far managed to preserve Convention rights.218 Al-​Dulimi before the ECtHR: a Temporary Stop in the Bosphorus and Back to Harmonisation 1 The Limits of Harmonisation Approach? While recognising the value of Al-​Jedda and Nada in developing treaty interpretation techniques, one may put forward that the ECtHR’s two-​level harmonisation approach is not a one-​size-​fits-​all methodology capable of resolving all cases involving Security Council resolutions, particularly those having clear and firm terms. In this regard, the observations of Joost Pauwelyn may be recalled when he stated “if the reconciliation between the two norms is not feasible, that is where the presumption [against normative conflict] ends”.219 The attempt of harmonisation, thus, entails limitations in the possibility of avoiding conflicting obligations of different rule systems. The Chamber decision in Al-​Dulimi is one such test of the limits of the approach employed by the ECtHR so far. IV

216 Kushtrim Istrefi and Zane Ratniece, ‘Think Globally, Act Locally: Al-​Jedda’s Oscillation between the Coherence of International Law and Autonomy of the European Legal Order’ (2012) 24 Hague Yearbook of International Law 231, 247–​8. 217 Nada v Switzerland (n 21) paras 172 and 180. See also Jean Paul Jacqué, ‘A propos de Nada contre Suisse:  Les résolutions du Conseil de Sécurité devant la Cour européenne des droits de l’Homme’ (2013) European Yearbook on Human Rights 308; Marko Milanovic, ‘European Court Decides Nada v Switzerland’ (n 211). 218 Kushtrim Istrefi, ‘The Application of Article 103 of the United Nations Charter in the European Courts: the Quest for Regime Compatibility on Fundamental Rights’ (2013) 5 European Journal of Legal Studies 89. 219 Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge University Press 2003) 242 (emphasis added).

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2 Chamber Decision in Al-​Dulimi Security Council Resolution 1483 was rather firm in requiring States to take the measures it required.220 Furthermore, in contrast to the situation in the case of Nada, the resolution did not confer on the States concerned any discretion in the implementation of the obligations it imposed.221 The Court, therefore, proceeded to examine whether the protection of fundamental rights provided by the UN system was equivalent to the protection afforded by the echr.222 This was the first case in which the ECtHR considered the so-​called Bosphorus presumption with respect to the UN. Hence, the Strasbourg Court did not grant States a blank cheque in their implementation of Security Council resolutions governed by Article 103 of the Charter. The Court, instead, considered as follows if such equivalent protection is considered to be provided by [UN], the presumption will be that [Switzerland] […] has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its [UN] membership.223 With that in mind, the Court shared the view that –​even though the creation of the Office of the Ombudsperson had brought due process improvements –​ the Al Q ​ aida sanctions regime continued to fall short of international minimum standards. As no such mechanism had been established in relation to the sanctions regime against the former Iraqi Government under Security Council Resolution 1483, it followed, all the more so, that the protection afforded by the UN system in that context was not equivalent to that required by the Convention. This shortcoming had not been compensated for at the domestic level since the Swiss Federal Tribunal had refused to consider the merits of the impugned measures.224 Having found that the presumption of equivalent protection was rebutted, the Court proceeded to scrutinise the applicants’ allegation of whether

220

Al-​Dulimi and Montana Management Inc. v Switzerland 2013 (n 68) para 117. See Anne Peters, ‘Targeted Sanctions after Affaire Al-​Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-​22 for UN Members?’, EJIL: Talk! 4 December 2013  accessed 6 May 2018. 221 ibid, Al-​Dulimi 2013, para 113. 222 ibid, para 114–​116. 223 ibid, para 114. 224 ibid, paras 119 and 120.

124 Chapter 4 Switzerland had violated the right of access to a court guaranteed under Article 6 of the Convention. 1 Examining Compliance with Article 6 echr The Court accepted the argument brought by Switzerland that the right of access to a court was not absolute. However, it clarified that this right could be limited provided that the restriction pursued a legitimate aim and was proportionate to that aim.225 It further examined whether these conditions had been met in the case at hand. The Chamber considered that the aim of the maintenance of international peace and security could justify a restriction of the right of access to a court. More specifically, it considered that Security Council Resolution 1483 was aimed at contributing to the stability and development of Iraq,226 and further held the assets and property of the senior officials of the former Iraqi regime, including [Mr Al-​Dulimi], who, according to the Security Council, was a former head of finance of the Iraqi secret services, would be transferred to the Development Fund for Iraq and, accordingly, returned to the Iraqi people for their own benefit, such an aim being fully compatible with the Convention.227 The Chamber nevertheless considered that the Swiss Federal Tribunal’s refusal to examine the merits of the request of Mr Al-​Dulimi and Montana Management Inc. for the annulment of the confiscation measure was disproportionate to the aim sought. As such, the restriction on the right of access to a court under Article 6 echr was not justified. Insofar as the Strasbourg Court’s reasoning in that regard is concerned, it is significant that the Court analysed the nature of the threat to international peace and security in connection with post-​conflict Iraq and expressed its position on the (in)adequacy of the maintained measures. The Chamber considered that unlike in Nada, where the threat of terrorism was particularly serious at the time of the adoption of resolutions at issue, in the instant case Security Council Resolution 1483 was concerned, inter alia, with “re-​establishing the autonomy and sovereignty of the Iraqi Government”.228 It reasoned as follows 2 25 226 227 228

ibid, paras 103 and 124. ibid, para 127. ibid, para 127. ibid, para 129 and 130. This quoted text does not appear in UNSC Res 1483 (22 May 2003) UN Doc S/​RES/​1483 and the accuracy of the formulation “sovereignty of government” can be contested.

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unlike the situation giving rise to the measures complained of by the applicant in Nada […] it was not a question […] with the adoption of Resolution 1483 (2003), of responding to an imminent threat of terrorism […] [as] the impugned measures were taken in the wake of an armed conflict, which originated in 1990 […] more differentiated and specifically targeted measures would probably have been more conducive to the effective implementation of the resolutions.229 The above-​noted language of the Chamber leaves an impression that –​because the impugned measures under Security Council Resolution 1483 concerned a post-​conflict situation –​the degree of (imminent) threat to international peace and security that could justify the maintained measures was not attained.230 Notably, the dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė grasped this concern in the following terms [i]‌f what is stated in paragraph 130 of the judgment intends to say that Resolution 1483 (2003) should be attributed less importance because its aim is not to prevent an immediate threat of terrorism but to re-​establish the autonomy and sovereignty of the Iraqi Government and to give the Iraqi people the possibility of determining their political future and controlling their natural resources, I am not able to agree with such an interpretation. The Resolution states expressly that the situation in Iraq continues to threaten international peace and security, and in any event it is not for the Court to make an assessment of whether the Security Council was justified in prescribing the measures in the Resolution.231 It therefore remains unclear whether the ECtHR possessed a mandate and furthermore the expertise to assess the adequacy of the measures adopted by the Security Council. The measures appropriate for the maintenance of international peace has traditionally been the domaine réservé of the Security Council

229 ibid, para 130. As this finding may be considered to also trigger the principle of proportionality of Security Council measures displacing human rights, see in that regard Eric Rosand, ‘The Security Council as “Global Legislator”:  Ultra Vires or Ultra Innovative?’ (2004) 28 Fordham International Law Journal 557. 230 The escalation of the situation in Iraq particularly as of summer 2014 signals, as a matter of principle, that it may not be appropriate to qualify through judicial intervention a situation allowing measures to be taken under a Security Council resolution. 231 Al-​Dulimi and Montana Management Inc. v Switzerland 2013 (n 68) dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jociene, 69.

126 Chapter 4 and not of regional courts.232 The Strasbourg Court has previously acquiesced to this when it held that “… the unsc has primary responsibility, as well as extensive means under Chapter vii, to fulfil this objective, notably through the use of coercive measures”.233 Furthermore, as the Court appeared to accept that Switzerland had enjoyed no latitude in implementing Security Council Resolution 1483, its analysis regarding the situation justifying the measures at issue would ultimately be directed towards the Security Council. Although it had designed the measures, the Court found that these had been implemented at a national level by Swiss authorities and the alleged violations of the echr were thus imputable to Switzerland.234 Consequently, the Chamber found for as long as there is no effective and independent judicial review, at the level of the United Nations, of the legitimacy of adding individuals and entities to the relevant lists, it is essential that such individuals and entities should be authorised to request the review by the national courts of any measure adopted pursuant to the sanctions regime.235 The unavailability of such a review for Mr Al-​Dulimi and Montana Management Inc. had led to a violation of Article 6.1 echr, the right of access to a court.236 2 Tension between the echr and the UN Charter Although an argument based, inter alia, on Article 103 of the UN Charter was raised before the Chamber, the latter refrained from ruling on whether Security Council Resolution 1483 prevailed over obligations arising from the echr. This silence does not, however, mean that the judges were unaware of the tension in that respect. Dissenting and partly dissenting opinions reveal that the majority of the judges, four out of seven, considered that Security Council resolutions 232 See Article 39 of the UN Charter. See also W. Michael Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87 American Journal of International Law 83, 93 and 94; Terry D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers Under Chapter VII of the Charter’ (1995) 26 Netherlands Yearbook of International Law 33, 42; Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (Manchester University Press 1997) 34–​36. 233 Behrami and Saramati (n 5) 148. 234 Al-​Dulimi and Montana Management Inc. v Switzerland 2013 (n 68) para 91. 235 ibid, para 134. 236 ibid, paras 134 and 135.

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prevailed over echr. Judges Lorenzen, Raimondi and Jočienė opined that “the priority for implementing” binding Security Council resolutions belonged to a category of exceptions to the right of access to a court under Article 6.1 echr.237 Judge Sajó regarded that Security Council resolutions enjoyed supremacy over any other international agreements.238 However, with regard to his joining the majority, Judge Sajó commented Given the inflexibility of Resolution 1483, the case should have been declared inadmissible […] [ratione personae]. As the case has proceeded, however, to a judgment on the merits, I join the majority regarding the finding of a violation with respect to Article 6 of the Convention.239 As will be discussed below, Judge Sajó’s position reveals the complexity of the relationship between the echr and the UN Charter. 3 Partly Dissenting Opinion of Judge Sajó While Judge Sajó made it clear that the case should have been declared inadmissible, his reasoning for joining the majority on the violation of Article 6 echr deserves closer scrutiny. He considered as follows [t]‌he discharge of an unconditional duty that arises once the Security Council has determined that the situation in Iraq continues to constitute a threat to international peace and security under Chapter vii reduces State action to that of an agent of the UN. In this case, Switzerland’s choices were limited to the form of promulgation, as determined by domestic law.240 Judge Sajó, therefore, appeared to recognise that States had no latitude in implementing the measures under Security Council Resolution 1483. It was further his view that Switzerland “[had] made a genuine effort to harmonise its unscr and Convention obligations, while respecting the supremacy of the Charter”.241 It remains unclear, however, how these considerations might be reconciled with his favouring the finding of a violation. 2 37 238 239 240 241

ibid, dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 69. ibid, partly dissenting opinion of Judge Sajó, 63 and 64. ibid, partly dissenting opinion of Judge Sajó, 63 and 66. ibid, partly dissenting opinion of Judge Sajó, 65. ibid, partly dissenting opinion of Judge Sajó, 65 and 66.

128 Chapter 4 Equally noteworthy is that while Judge Sajó agreed with the majority, in his partly dissenting opinion, he expressed criticism towards the judgment of the then Court of Justice of the European Communities in Kadi (2008), referenced in the Chamber judgment,242 and outlined [t]‌he increasing tendency of some regional and national bodies to adopt pluralistic approaches which put domestic constitutional or regional orders in competition with the UN Charter risks fragmenting the existing system at significant expense to international order and stability.243 It is evident that, unlike the judgment in Kadi, the Chamber judgment in Al-​Dulimi did not describe the echr as an autonomous legal system, the constitutional principles of which could not allegedly be prejudiced by an international agreement.244 At the same time, the Chamber’s outcome did not differ much from Kadi insofar as the UN Charter is concerned. The endorsement of the equivalent protection principle with regard to the UN and the test of the adequacy of Security Council measures can hardly be reconciled with Judge Sajó’s call in his partly dissenting opinion of sympathy for the UN system, international stability and unity of international law.245 The oscillation between unity and equivalent protection in the opinion of Judge Sajó reveals the difficulty of mitigating norm (and, it appears, value) conflicts between the Convention and the UN Charter.246 In connection with Judge Sajó’s opinion, Anne Peters commented:  “Switzerland’s (or other UN members’) implementing measures could be qualified as internationally wrongful acts attributable to the UN.”247 The basic rationale behind this was that “[t]‌he human rights problems seem to root directly in the decisions [of the Security Council]”.248 Be that as it may, and with due regard to a signal that such an approach may send about the reforms of the relevant UN mechanisms, it is a basic rule that only 242 243 244 245

ibid, para 131. ibid, partly dissenting opinion of Judge Sajó, 64. Kadi and Yusuf v Council and Commission 2008 (n 5) paras 285 and 316. Al-​Dulimi and Montana Management Inc. v Switzerland 2013 (n 68) partly dissenting opinion of Judge Sajó, 64. 246 See generally Erika de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611, 620. 2 47 Anne Peters, ‘Targeted Sanctions after Affaire Al-​Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-​22 for UN Members?’ (n 221). 248 ibid.

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States parties to the echr can be held responsible for a failure to comply with their obligations under it. That was also affirmed by the Chamber in Al-​Dulimi the Convention does not prohibit Contracting Parties from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity. States nevertheless remain responsible under the Convention for all acts and omissions of their organs stemming from domestic law or from the necessity to comply with international legal obligations.249 It is thus evident that whatever the intention of Judge Sajó might have been, his decisive vote made Switzerland, and not the UN, responsible for the violation of Article 6 of the Convention on account of the failure to provide access to a court when implementing Security Council Resolution 1483. 4

Dissenting Opinion of Judge Lorenzen Joined by Judges Raimondi and Jočienė The three Judges opined that the lack of access to a court was solely the result of the unconditional terms of the Security Council Resolution 1483. They stated in the following manner [a]‌crucial question is […] whether [the lack of access to a court] was justified by the fact that the decision to confiscate [the applicants’] assets was taken in order to comply with Resolution 1483.250 In their opinion, in the present case, there was an unavoidable conflict between Security Council Resolution 1483 and Article 6 echr. In such circumstances, they suggested that, as long as Article 6 was not an absolute right of jus cogens, the conflict could have only been resolved by giving priority either to the Convention or to the UN Charter. Furthermore, the principle of equivalent protection was not sufficient to resolve that conflict.251 Considering the importance of Article 103 of the UN Charter and the terms of Security Council Resolution 1483, the three judges were persuaded by the reasoning of the Swiss Federal Tribunal. In their opinion

249 Al-​Dulimi and Montana Management Inc. v Switzerland 2013 (n 68) para 114. 250 ibid, dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 67. 251 ibid, dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 68.

130 Chapter 4 […] the decision of the Swiss authorities to confiscate the applicants’ assets in order to comply with Resolution 1483 (2003) could not be judged on the merits in national court proceedings, as the outcome of such proceedings might have had the effect of setting aside the obligations imposed on member States by the Resolution.252 Judges Lorenzen, Raimondi and Jočienė outlined a different model for dealing with restrictions under Article 6 emanating from the UN Charter. In their view, a suitable methodology had already been developed by the Court in its case-​ law. They referred to the cases of Al-​Adsani and A. v the UK where “the Court [had] accepted limitations which left little, if anything at all, of the right of access to a court”.253 In this vein, “[t]‌he priority for implementing binding resolutions of the UN Security Council [could] be said to belong to this category of exceptions”.254 5 The Jus Cogens Test Similarities may be detected between the dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė and the first Kadi judgment of 2005. This observation could also be, at least partially, made with regard to the dissenting opinion of Judge Sajó. The four judges supported in substance the primacy of a Security Council resolution. They considered that an exception to the primacy of a Security Council resolution would exist in the case of a conflict with a norm of jus cogens.255 While Judges Lorenzen, Raimondi and Jočienė did not elaborate why the right of access to a court did not qualify as jus cogens, Judge Sajó, referring to the writings of scholars, reached that conclusion by observing as follows [e]‌stablished peremptory norms […] do not include the enjoyment of possessions, economic freedom or access to a court or tribunal, particularly in civil proceedings. Nor have these rights yet attained the status of customary international law. Consequently, they do not fall under the jus cogens exception limiting States’ duties to implement non-​conforming Security Council resolutions.256 2 52 253 254 255

ibid, dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 68. ibid, dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 69. ibid, dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 69. ibid, partly dissenting opinion of Judge Sajó and Dissenting opinion of Judge Lorenzen joined by Judges Raimondi and Jočienė, 64, 65 and 68. 256 ibid, partly dissenting opinion of Judge Sajó, 64 and 65.

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6 General Observations Insofar as the relationship between the echr and the UN Charter is concerned, the Chamber’s approach in Al-​Dulimi brings new developments. Having accepted that there was a lack of spaces at the language-​level or implementation-​level of the pertinent Security Council resolution, four out of seven judges of the Chamber voted in favour of the finding of a breach of Article 6 echr. One may consider that this outcome of the case before the Chamber was at the expense of the relevant Security Council resolution and Article 103 of the UN Charter. At the same time, the Chamber’s reasoning, read in conjunction with the dissenting and partly dissenting opinions, reveals that the majority of the judges, four out of seven, deemed that in the circumstances of the case the obligations under the UN Charter would prevail by virtue of its Article 103. The Chamber’s findings remain significant for several reasons. Firstly, by applying the principle of equivalent protection with regard to the UN, the Chamber treated the system resting on the UN Charter and its Article 103, in particular, in an ordinary fashion. This approach implies that, as long as the UN does not establish an appropriate mechanism, Security Council resolutions putting fundamental rights at risk will prima facie face challenges in the Strasbourg Court. Secondly, in the context of systemic integration, it may be observed that Al-​ Dulimi referred to Article 31.3.c vclt.257 This could have created the impression that the door was open for Article 103 of the UN Charter. Yet, it appears that the Chamber utilised the vclt to confirm the lack of latitude in the language and in the implementation of Security Council Resolution 1483 and, thus, the impossibility to harmonise the two systems.258 The judgment remained silent on the relevance of Article 103 of the UN Charter in the event of conflicting obligations. As a general observation, Al-​Dulimi revealed a new response to challenges posed by Security Council resolutions allegedly displacing human rights. The Chamber followed the trend of judicial awareness of securing fundamental rights. Yet, its proportionality assessment of the measures under Security Council Resolution 1483 signals that limitations to the rights under Article 6 of the Convention could be justified provided that a higher degree of threat to international peace and security existed.

2 57 ibid, para 112. 258 ibid, paras 113 and 114.

132 Chapter 4 3

Al-​Dulimi Judgment of the Grand Chamber: Back to Harmonisation On 21 of June 2016, the Grand Chamber of the Strasbourg Court confirmed that Switzerland had violated Article 6.1 of the echr.259 However, the legal reasoning by which it arrived at this conclusion differed substantially. Unlike the Chamber, it found the application of the equivalent protection test to be “nugatory”,260 given that the case did not concern a conflict of obligations between the UN Charter and the Convention system. The Grand Chamber maintained its Al-​Jedda presumption “that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights”.261 At the same time, it noted that “sanctions imposed by the Security Council entails practical interferences that may be extremely serious for the Convention rights”262 and, for that reason, courts must perform adequate judicial review to ensure that sanctions are applied in most harmony with the Convention. In particular, in view of the seriousness of the consequences for the Convention rights of those persons, where a resolution such as that in the present case, namely Resolution 1483, [did] not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided. By limiting that scrutiny to arbitrariness, the Court takes account of the nature and purpose of the measures provided for by the Resolution in question, in order to strike a fair balance between the necessity of ensuring respect for human rights and the imperatives of the protection of international peace and security.263 In the discussion of the new arbitrariness test, the Grand Chamber indicated that the national authorities had a duty to ensure that the listing was not arbitrary. (…) The applicants should (…) have been afforded at least a genuine opportunity to submit 259 260 261 262 263

Al-​Dulimi and Montana Management Inc. v Switzerland GC 2016 (n 21). ibid, para 149. ibid, para 140. ibid, para 145. ibid, para 146.

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appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the impugned lists had been arbitrary.264 The Court found that the failure of the Swiss Federal Court to review the listing of Mr Al-​Dulimi and his company had led to a violation of Article 6.1 of the Convention.265 Overall, the Grand Chamber left normative concerns regarding the place of Article 103 of the UN Charter in the Convention system unanswered. It did not clarify the question of State responsibility in case the State failed to secure evidence furnished by another State in support of a particular listing, or if it failed to delist a person who, according to national courts, had been listed arbitrarily. Furthermore, the case offers limited guidance for national courts in the application of the arbitrariness test. Despite such drawbacks, one may praise the Grand Chamber for the policy objectives its reasoning aims to achieve by calling on national courts to filter arbitrary listings by the Security Council. As Anne Peters has observed: “[t]‌he functions of the domestic courts as stop-​gaps for securing the legitimacy of Security Council action will be crucially strengthened by Al-​Dulimi”.266 Furthermore, the lack of clearer guidance by the Grand Chamber in Al-​ Dulimi267 may prove to have been a “practical attitude”268 allowing national authorities to ‘test’ different legislative, political and judicial manoeuvres outside normative orthodoxy in their efforts to prevent arbitrariness and ensure timely and genuine realisation of human rights. Whilst the Al-​Dulimi judgment might bring a possible advantageous development in preventing arbitrariness, this still remains a mere possibility. As yet, the effects of Al-​Dulimi remain untested. Whether the Court will revert to the application of the Bosphorus principle or entrench de minimis arbitrariness domestic judicial review as a “meaningful and feasible” requirement remains to be seen.269 264 ibid, paras 150–​151. 265 ibid, para 155. 266 Anne Peters, ‘The New Arbitrariness and Competing Constitutionalisms:  Remarks on ECtHR Grand Cahmber Al-​Dulimi’ EJIL:  Talk! 30 June 2016, accessed 6 May 2018. 267 See Al-​Dulimi and Montana Management Inc. v Switzerland GC 2016 (n 21) partly dissenting opinion of Judge Ziemele, 15. 268 Stephen Breyer, America’s Supreme Court (Oxford University Press 2010) 216. 269 Marko Milanovic, ‘Grand Chamber Judgment in Al-​Dulimi v Switzerland’ EJIL: Talk! 23 June 2016, . accessed 6 May 2018.

134 Chapter 4 F Conclusions The evidence that European courts have employed diverse approaches when dealing with Security Council resolutions shows that there is no single understanding of how ‘arbitrariness’ associated with Security Council obligations should be tackled. This is unsurprising, as the European courts are guided by different motives, operate in different legal settings, and employ different techniques of interpretation and legal justifications. It is difficult for example to draw a strict analogy between Ahmed of the UK Supreme Court with Kadi of the ecj and Nada and Al-Dulimi of Swiss courts and ECtHR. Issues of constitutional dualism and the legal personality of the regional treaty regime also play a role. The overall awareness and momentum to protect human rights over claims of international security remain relevant as well. European case-​law on Security Council resolutions and human rights, although diverse, has contributed to re-​examining some fundamental issues of international law. These topics include, but are not limited to, the normative value of the UN Charter and the universal reach of the decisions of Security Council resolutions, the coordination of legal regimes (or the lack thereof) and the quest to balance competing norms and values, such as international security and human rights. The next part of this book will take a step further and examine whether European jurisprudence has made any contribution to restoring individual rights in cases of targeted sanctions and security detentions. In addition, it will look into whether its engagement with Security Council sanctions has had any impact on due process reform. Finally, it will look at whether the case law reinforces or challenges the effects of the UN Charter on international stability. On these grounds, current European jurisprudence can be observed for its normative and policy legacy in the ongoing debate on balancing international security and human rights in a plurality of legal orders.

Chapter 5

The Effects of the European Jurisprudence: Human Rights, Due Process Reform and the UN Charter In previous parts of this book, the tension between the binding nature of UN Security Council resolutions which affect individual rights and national and regional human rights protections has been outlined. The approaches of European courts have been analysed to develop a taxonomy of modes of engagement which include subordination, detachment, national resistance through constitutional dualism, and harmonisation. This part of the book builds upon these analyses to investigate and outline the effects of the judicial engagement previously outlined. It uses a consequentialist assessment which identifies the genuine protection of human rights as the ultimate value which is encouraged by actions that advance sanctions decision-​making reform and limit the use of Security Council resolutions as a legal basis for indefinite security detentions. This part commences with a section on how European courts decisions on targeted sanctions and security detentions have raised awareness of the importance of protecting human rights in challenging security times. It then focuses on four effects of European jurisprudence: (1) ensuring real and practical respect for the human rights of those subject to targeted sanctions or security detentions, (2) encouraging Security Council due process reform, (3) clarifying Security Council authorisations on security detention, and (4) testing the legal force of the UN Charter. A

Raising Awareness: a Wave of Droit-​de-​l’hommisme in Times of Crisis

Prior to outlining the four areas in which European jurisprudence has had legal effect, it is important to note briefly how judicial engagement can raise awareness of the importance of protecting human rights. “To tell the truth is revolutionary”, once said Ferdinand Lassalle.1 Perhaps the significance of the European courts’ decisions lies in the courage to tell the 1 A saying of Ferdinand Lassalle that appeared in 1921 on the first n of L’Ordine Nuovo, a Communist newspaper lunched by Antonio Gramsci. The comments are often misattributed to Antonio Gramsci. See Philippe Marliere, ‘The Politics of Mendacity’ in Kate Averis and

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004345263_006

136 Chapter 5 truth about certain deficiencies of the Security Council, and at times challenge the implementation of certain obligations that interfere with fundamental rights. As “megaphones” of the truth,2 the European courts found that the failure to ensure due process guarantees for targeted individuals violated individual rights in times of peace and war.3 They also clarified that indefinite internment for security reasons violates basic human rights.4 Through key findings or obiter dicta,5 courts have condemned, inter alia, the measures of Security Council affecting individual rights. For this reason, Eyal Benvenisti is right in observing that the ways in which […] courts have reacted to their executive’s security-​ related claims since 11 September 2001, … speak of a new phase in the way democracies are addressing the threat of terrorism: executive unilateralism is being challenged by […] courts in what could perhaps be a globally coordinated move.6 It is important to recall that courts have not always been so courageous vis-​ à-​vis the executive when confronted with executive and legislative measures dealing with sensitive issues of national security. This was the case particularly in times of war and crises. In the Rehman case before the UK House of Lords, Lord Hoffmann justified the Secretary of State’s decision to deport a Pakistani national without engaging in judicial review of the accusations of the executive branch [t]‌he question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries,

2 3 4 5 6

Matthey Moran, Le mensonge:  Multidisciplinary Perspectives in French Studies (Cambridge Scholars 2010) 9. Philip Allott, ‘The Idealist’s Dilemma: Re-​Imagining International Society’, EJIL: Talk! 9 June 2014, accessed 6 May 2018. See e.g. Joined Cases C-​402/​05 P and C-​415/​05 P Kadi and Yusuf v Council and Commission [2008] ECR I-​6351; Al-​Jedda v. The United Kingdom (App No 27021/​08) ECHR 7 July 2011. Al-​Jedda v The United Kingdom (n 3). See e.g. Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment of 14 November 2007, BGE 133 II 450, 1A 45/​ 2007 para 8. Eyal Benvenisti, ‘United We Stand: National Courts Reviewing Counterterrorism Measures’ in Andrea Bianchi and Alexis Keller (eds), Counterterrorism:  Democracy’s Challenge (Hart Publishing 2008) 254.

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decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.7 Rehman does not represent an isolated case where courts considered themselves unable or inadequate to examine the legality of executive orders infringing fundamental rights.8 In Liversidge v Anderson, the UK courts examined whether the order of the Home Secretary to detain Mr Liversidge had violated his civil rights.9 During the Second World War, Mr Liversidge was detained for 20 months for his alleged ties with the enemy.10 Mr Liversidge, relying on the rules of Magna Carta and the Bill of Rights, asked the UK courts to declare his detention unlawful and invited the Home Secretary to present evidence for his allegations.11 Viscount Maugham rejected Mr Liversidge’s arguments and held “that the suggested rule [of Magna Carta and the Bill of Rights] has no relevance in dealing with an executive measure by way of preventing a public danger when the safety of the State is involved”.12 Lord Atkin, the sole dissenter in the case, passionately criticised the Court’s position and stated [i]‌n view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive … In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges 7 8 9 10 11 12

Secretary of State for the Home Department v Rehman [2001] 3 WLR 877 para 50. See also Richard A. Edwards, ‘Judicial Deference under the Human Rights Act’ (2002) 65 Modern Law Review 859. Liversidge v Anderson [1942] AC 206 (HL 1941). AW Brian Simpson, ‘Rhetoric, Reality, and Regulation 18B’ (1988) 3 Denning Law Journal 123, 142. Liversidge v Anderson (n 9). See also Eyal Benvenisti, ‘National Courts and the “War on Terrorism” ’ in Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing 2004) 311. ibid, Liversidge, 218–​219. The Magna Carta and Bill of Rights, while having fundamental constitutional status, form only a part of the common law rights of the UK constitution. The persistence of parliamentary sovereignty and resulting weakness of common law rights which lack the teeth of entrenched provisions may also be a factor in the outcome of the case.

138 Chapter 5 are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.13 Similar judicial responses can be found in other jurisdictions. The US Supreme Court in Eugene Dennis, et  al. v United States ruled that members of the US Communist Party were not entitled to exercise the First Amendment to the US Constitution.14 Accordingly, their right to exercise free speech, publication and assembly did not apply when they circulated books and pamphlets by Karl Marx and advocated his thoughts. Judge Hand, with whom the majority of judges agreed, held “in each case [courts] must ask whether the gravity of the ‘evil’, discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger”.15 Justice Black dissented from the majority and held [s]‌o long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress … There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.16 Indeed, in calmer times the Dennis and other rulings were corrected, and the First Amendment and other fundamental rights were brought back to where they belonged.17 Yet, the foregoing case-​law shows that in times of crisis, courts have oftentimes failed to protect individual rights by advocating unlimited powers for the executive.

13 14 15 16 17

ibid, 244. Eugene Dennis, et al v United States, 341 US 494 (1951). ibid, 510, quoting from the lower court opinion at 183 F.2d 201, 212 (2d Cir. 1950). ibid, 580–​1. See Clarence Brandenburg v State of Ohio, 395 US 444 (1969). For prior decisions of the US courts see Robert McKay, ‘The Preference for Freedom’ (1959) 34 New York University Law Review 1182.

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Contrasting this case-​law with recent European jurisprudence concerning Security Council resolutions affecting individual rights, one can observe an emerging wave of judicial droit-​de-​l’hommisme. Notwithstanding this welcome development, however, it remains legitimate to examine whether the recent European jurisprudence is not only legally and morally right but also successful in ensuring genuine protection of the human rights of its applicants. In this vein, the following section will examine whether the decisions of the European courts analysed above on Security Council resolutions and human rights have managed to restore the applicant’s human rights and brought due process reform to the Security Council. These issues pertain to all the European case-​law on Security Council targeted sanctions and security detentions examined. B

Ensuring Genuine Protection of Human Rights?

I Implementation of Court Decisions It is generally expected that when a court renders a decision, the executive and legislature will take all the necessary steps to implement it.18 This expectation encourages litigants to make the use of judicial bodies around the world, believing that its decisions will achieve more than a mere acknowledgement of human rights violations. In the light of this expectation, European jurisprudence on targeted sanctions and security detentions should not be seen only for its legal reasoning but also for its impact in restoring the human rights of the applicants. For this purpose, the next section will examine the aftermath of European court decisions in cases of targeted sanctions and security detentions. The analysis aims to verify whether or not the decisions of European courts have been implemented, and if so to what extent they have ensured genuine protection of human rights for individuals affected by Security Council resolutions. 18

The executive and legislatures can undermine court decisions and its role by, inter alia, use of presidential pardons or amnesty laws. The latter measures not only make victims helpless but also undermine the role of the courts as the final interpreters of law and guardians of human rights. To recall the amnesty law in the aftermath of the Nazi regime, 792.176 people with court convictions benefitted from “privileging” (Vergünstigung) measures. See Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration (Joel Gold tr, Columbia University Press, 2002) 23; Jonathan Friedman, ‘Law and Politics in the Subsequent Nuremberg Trials, 1946–​1949’ in Patricia Heberer and Jurgen Matthaus (eds), Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (University of Nebraska Press 2008) 93.

140 Chapter 5 II Mr Kadi Mr Kadi was listed in the Security Council Al Qaida sanction regime one month after the terrorist attacks of 11 September 2001.19 Unable to challenge his designation at the level of the Security Council, he brought a case before the EU courts. After losing the first case in 2005, he subsequently won the case for delisting in 2008, 2010 and 2013.20 Those decisions, as already explained, had a significant impact on the relationship between EU and international law. However, if one examines the effects of these Court decisions in relation to the genuine protection of Mr Kadi’s human rights, the impact is much more limited. In 2008, 2010 and 2013, Mr Kadi experienced European judicial recognition of the interference with basic human rights by Security Council measures. Despite that, at no moment in time, not even for the blink of an eye, was Mr Kadi taken off the EU list while he remained on the UN list.21 Indeed, even after the EU court decisions, Mr Kadi described himself as living in a financial Guantanamo that caused him, his family and businesses an incalculable amount of damage, anxiety and suffering.22 UN sanctions against Mr Kadi were terminated only after he filed a delisting petition with the UN Office of the Ombudsperson. Upon the recommendation of the Office of the Ombudsperson, in 2012 the UN Sanctions Committee removed his name from the Al Qaida Sanctions List.23 It is interesting to note that although his name might have been very familiar to the Security Council Sanctions Committee, this did not help to accelerate the review of his application. To the contrary, while the average de-​listing process, from filing in the Office of the Ombudsperson until the Sanctions Committee reaches a decision, takes around 8–​10 months, the case of Mr Kadi was decided in a year.24 In view of the foregoing, Mr Kadi’s fundamental rights were restored only after he approached the relevant UN delisting office. 19 20 21 22 2 3 24

Decision of the Security Council Al-​Qaida Sanctions Committee SC/​10785 of 5 October 2012, accessed 6 May 2018. Case T-​315/​01, Kadi v.  Council and Commission [2005] E.C.R. II-​3649; Kadi and Yusuf v Council and Commission 2008 (n 3); T-​85/​09 Kadi v. Commission [2010] E.C.R II-​05177; Abdullah Kadi [2013] E.C.R. 00000. Joris Larik, ‘Kadi de-​listed  –​a cause for celebration?’, European Law Blog, 30 October 2012  accessed 6 May 2018. See Press Release of Carter-​Ruck of 1 December 2014 at accessed 6 May 2018. Decision of the Security Council Al-​Qaida Sanctions Committee (n 19). See the status of cases in the Office of the Ombudsperson of the Security Council of 1267 Committee at

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In observing these developments, Joris Larik argued “what finished the seemingly never-​ending story of Mr Kadi’s listing was not judicial intervention by the EU, but the UN Security Council responding to its own Ombudsperson”.25 In his view, “after legal academia has been zealously … digesting … the wisdom of the EU judiciary for the past years, this particular ending may leave a bit of a sour aftertaste”.26 III Mr Ayadi Mr Shafiq Ayadi was listed in the Security Council targeted sanctions the same day as Mr Kadi.27 Like Mr Kadi, he pursued judicial remedies before the EU courts.28 He lost the first case in 2006 and won appeals for delisting from the EU sanctions regulations in 2009 and 2015.29 In the aftermath of these decisions, Mr Ayadi continued to live in a financial Guantanamo, to use the words of Mr Kadi. Hence, the court decisions did not have the effect of ensuring his human rights. Mr Ayadi’s fundamental rights were restored only after he pursued a claim for delisting before the UN Office of the Ombudsperson. The Security Council Sanctions Committee removed his name from the sanctions list in 2011. It is noteworthy that while the European courts had ruled in favour of Mr Kadi a year before Mr Ayadi, the Security Council delisted the latter one year before Mr Kadi. This occurred because Mr Ayadi pursued his claim before the Ombudsperson in 2010, while Mr Kadi did so only in 2011. This development confirms that what resolved the case of Mr Ayadi was not judicial intervention by the EU courts, but the UN Security Council responding to its own mechanism, namely the Ombudsperson, its own procedures and timelines. This is evident also when comparing the process and timing of delisting for Mr Ayadi with that of Mr Kadi.

2 5 26 27 28 29

accessed 6 May 2018. Out of 42 delisted cases, 25 of them were decided in less than a year, 9 of them were decided in one-​year period, and it took more than a year to decide in other 8 cases (accessed on 23 September 2015). Joris Larik, ‘Kadi de-​listed –​a cause for celebration?’ (n 21). ibid. Mr Ayadi was listed on 17 October 2001. See Decision of the Security Council Al-​Qaida Sanctions Committee SC/​10413 of 17 October 2011, accessed 6 May 2019. Case T-​253/​02 Ayadi v Council [2006] E.C.R. II-​2139. For a short summary of the court proceedings see Maya Lester, ‘Mr Ayadi Wins 2nd EU Judgments –​Another Kadi II’, European Sanctions, 22 April 2015, accessed 6 May 2018.

142 Chapter 5 IV Mr Ahmed Mr Ahmed was listed in the Security Council targeted sanctions for his alleged connections with Al Qaida. The UK implemented measures against Mr Ahmed pursuant to two UK executive orders made under a 1946 Act that gave effect to United Nations’ Security Council resolutions regarding the freezing of alleged terrorist assets.30 In January 2010, the UK Supreme Court quashed in part the two executive orders, considering them unsubstantiated by UK law. The Court further explained that “the restrictions imposed on individuals pursuant to these Orders have been imposed without authority and are of no effect in law”.31 Since the freezing of assets was based on unlawful orders, the UK Supreme Court required the lifting of those measures in the case of Mr Ahmed, at least until the UK Parliament adopted new legislation. The Government asked the UK Supreme Court to suspend the operation of the orders for a few more weeks until the UK Parliament amended the legislation that would legalise the existing measures.32 The Government submitted to the Court that “refusing a suspension would give rise to the risk of those assets being disbursed and used for the purposes of terrorism, with the attendant risk of causing serious and irreparable harm to the national interest of the United Kingdom.”33 The UK Supreme Court did not suspend the operation of the judgment and considered that the Government’s request would “obfuscate the effect of its judgment”.34 As regards the banks, the Court held that “if suspension were to have this effect this would only be because the third parties wrongly believed that it affected their legal rights and obligations”.35 A few days after the judgment was rendered, the UK Parliament adopted legislative amendments that provided for the continuation of executive orders, which until that moment were considered the impugned orders.36 With this development, it became unclear whether the UK Government had taken action to restore the rights of Mr Ahmed from the date the UK Supreme 30 31 32 33 34 35 36

Ahmed v Her Majesty’s Treasury [2010] UKSC 2. HM Treasury v Ahmed [2010] UKSC 5 (Ahmed II) para 1. Press Summary of 4 February 2010 of Ahmed II [2010] UKSC 5  accessed 6 May 2018. ibid. Ahmed II [2010], UKSC 5 (n 31) para 8. ibid, para 7. Anita Coles, ‘Liberty’s briefing on the Terrorist Asset-​Freezing (Temporary Provisions) Bill in the House of Commons’ (2010) Liberty Policy Paper, para 1  accessed 6 May 2018.

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Court rendered the judgment until the UK Parliament adopted the legislative amendments. This would have indicated whether the court had managed to ensure genuine protection of his individual rights at least until the UK Parliament made the legislative amendments. Information on this matter could not be obtained by Mr Ahmed as he was killed the same year.37 In response to a Freedom of Information request made by the author, HM Treasury, however, confirmed that they hold information regarding this matter and that [t]‌he Terrorist Asset-​Freezing (Temporary Provisions) Act 2010 was enacted on 10 February 2010. This Act ensured the validity of the previous legislation for the period from the judgment on 4 February 2010 to the enactment of the Terrorist-​Asset Freezing etc. Act 2010 in December 2010, so that the asset freezes remained in force following the judgment and designated persons were not able to access their funds.38 This answer confirms that following the judgment of the UK Supreme Court, HM Treasury did not allow Mr Ahmed to access his funds but only proceeded with necessary legislative amendments to reinforce the sanctions. This view was further shared by the Spokesperson of the UK Treasury when commenting on the Ahmed judgment this ruling [did] not challenge the UK’s obligations under the UN Charter to freeze the assets of suspected terrorists, which we will continue to meet. We will introduce fast-​track legislation to ensure there is no disruption to our terrorist asset-​freezing powers.39 Notwithstanding the clarity of the court findings regarding the illegality of the measures applied against Mr Ahmed and the inability of the Government to maintain those measures until the law was amended, the decisions did not manage to restore or impact upon the actual rights of the applicant. The reasons for the non-​implementation of the UK Supreme Court judgment, as was understood more recently, were also related to EU law. In particular, as Mr 37 38 39

Information obtained in The Bureau of Investigative Journalism https://​www.thebureauinvestigates.com/​namingthedead/​people/​nd356/​?lang=en. accessed 6 May 2018. Reply from the Information Rights Unit of the HM Treasury, Ref:  FOI2015/​22300 of 22 October 2015. Dominic Casciani, ‘Supreme Court quashes Treasury terror assets order’ BBC News, 27 January 2010  accessed 6 May 2018.

144 Chapter 5 Ahmed was also on the EU sanctions list, the pertinent Council Regulation (EC) No 881/​2002 had direct effect in the UK, thereby providing a legal justification for his listing. It is noteworthy that the UK Treasury did not initially invoke the argument on the grounds of EU law before the UK Supreme Court. Hence, when the latter rejected the request for suspension of the operation of its judgment in Ahmed, it was not aware that the UK Treasury would find an indirect route to maintain sanctions in place.40 In the Youssef judgment of 27 January 2016, the UK Supreme Court noted that [f]‌rom the victim’s point of view it may seem strange that a process which, as applied under domestic legislation, was found to involve an unacceptable interference with his property rights, should be capable of automatic and immediate reinstatement by the indirect route of a European regulation. Indeed, it is unclear from the substantive judgments in Ahmed to what extent the court was made aware of the limited practical effects of its decision.41 The legal and political developments in the case of Ahmed reveal a limited power of the UK Supreme Court decisions to ensure genuine protection of human rights when juxtaposed with executive measures in the field of international security. V Mr Abdulrahim Mr Abdulrahim was listed in the UN Security Council Al Qaida Committee in 2008.42 His designation was based on an allegation that he had participated in the Libyan Islamic Fighting Group (lifg), the latter being associated with Al Qaida. The Security Council removed his name from the Al Qaida Sanctions Committee in 2010. While his name was still on the Al Qaida Sanctions List, Mr Abdulrahim brought a case before the EU courts. The case was decided only in January 2015.43 Although the gceu made important remarks in recognising human rights violations and clarifying that Mr Abdulrahim was not associated with

40 41 42 43

Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 para 48. ibid. The facts concerning the listing and delisting of Mr Abdulrahim are available in the Judgment of the General Court of the European Union Case T-​127/​09 Abdulrahim v Council and Commission [2015]. By judgment of 28 May 2013 in Case C-​239/​12 P Abdulrahim v Council and Commission [2013] the Court of Justice set aside the order of no need to adjudicate, in so far as it had

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lifg or Al Qaida at the time of his designation, the judgment itself was neither prompt nor had any impact on the applicant.44 VI Mr Nada Unlike the foregoing cases, the delisting of Mr Nada reveals that national authorities may influence the processes within the Security Council Sanctions Committee. Mr. Nada was listed by the Security Council Sanctions Committee two months after 9/​11.45 He then lost the proceedings before the Swiss courts in 2007.46 While the Swiss courts gave effect to Article 103 of the UN Charter, they noted that the sanctions decision-​making lacked sufficient procedural guarantees.47 The Swiss and Italian authorities requested, without success, the Sanctions Committee to delist Mr. Nada. Unexpectedly, in 2009 the Sanctions Committee decided to delist him. It is interesting to observe that it was precisely during that time that there was an important legislative initiative within the Swiss Parliament. On 12 June 2009 the Upper Chamber of Parliament adopted a motion urging the State to refrain from implementation of certain Security Council sanctions48 to cease implementing sanctions against individuals included on the 1267 Consolidated List in cases where the individual: (1) has been on the list for more than 3 years and not been brought before the court, (2) has not had the possibility to resort to an independent institution for a remedy,

44 45 46 47 48

held that there was no longer any need to rule on the action for annulment and referred the case back to the General Court for it to rule again on Mr Abdulrahim’s action for annulment. The Court of Justice held, in essence, that the General Court erred in law by concluding that Mr Abdulrahim had lost his interest in bringing an action for annulment, following the adoption of Regulation No 36/​2011. Cited in Abdulrahim v Council and Commission [2015] (n 42) para 22. Abdulrahim v Council and Commission [2015] (n 42) paras 76–​77. For more details regarding the arrest and transfer, travel ban and asset freeze of Mr. Nada and his company see Nada v. Switzerland (App No 10593/​08) ECHR 12 September 2012, paras 21–​25. Mr Nada won his petition before the Strasbourg Court in 2012. Yet, since he was removed from the Security Council targeted sanctions list in 2009, the ECtHR findings in 2012 could not have had any impact on his fundamental rights. See Nada v Switzerland (n 45). Nada v State Secretariat (n 5) para 8. Motion 09.3719 Submitted to the Swiss Council of States by Dick Marty (12 June 2009) passed in the Upper Chamber on 8 September 2009. The motion was adopted by the Lower Chamber on 1 March 2010. See also Nada v Switzerland (n 45) paras 54 and 56.

146 Chapter 5 (3) has had no indictment issued, and (4) has not had new incriminating evidence brought forward since listing.49 The Upper Chamber referred to the case of Mr. Nada to justify the non-​ implementation of Security Council targeted sanctions.50 It is significant that three months after the motion the Sanctions Committee delisted Mr. Nada. This demonstrates the power that national authorities may have with regard to the work of the Sanctions Committee. VII Mr Sayadi and Ms Vinck Mr. Sayadi and Ms. Vinck, a couple of Belgian nationality were placed on the Security Council targeted sanctions in January 2003. The measures against them included, inter alia, an asset freeze and travel ban. Sayadi and Vinck were believed to have supported terrorism in their capacity as director and secretary of a European branch of the Global Relief Foundation. The latter have been on the sanctions list since October 2002.51 At the European level, the Security Council measures against Sayadi and Vinck were implemented through the EU Regulation52 and a Belgian ministerial order.53 Sayadi and Vinck challenged their listing before the UN Human Rights Committee54 and Belgian courts. In 2005, the Belgian courts ordered the government to “urgently initiate a de-​listing procedure with the United Nations Sanctions Committee”.55

49

50 51 52 53 54 55

Cited in Thomas Biersteker and Sue Eckert, ‘Addressing Challenges to Targeted Sanctions: An Update of the Watson Report’ October 2009, 9. It is interesting to note that in July 2009, the Dutch Parliament received proposals for amendment of the Constitution, in particular on the place of the international legal order in the Dutch Constitution. The proposal explicitly referred to the 1267 regime as an example of international rules that were drafted outside a proper rule of law context. See Staatscourant 10354, 9 July 2009. Nada v Switzerland (n 45) para 63. For more information concerning the facts of the case Human Rights Committee, Communication No. 1472/​2006 CCPR/​C/​94/​D/​1472/​2006 29 December 2008, para 2. Commission Regulation (EC) No. 145/​2003 of 27 January 2003 amending Regulation (EC) No. 881/​2002. Belgian Ministerial Order of 31 January 2003 amending the ministerial order of 15 June 2000 implementing the Royal Decree of 17 February 2000 concerning the restrictive measures directed against the Taliban in Afghanistan. The UN Human Rights Committee found violations of Article 12 and 17 of the iccpr in the Communication No. 1472/​2006 (n 51) para 11. Decision of the Brussels Court of First Instance of 11 February 2005, cited in Communication No. 1472/​2006 (n 51) para 2.5.

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Following the court decision, the Belgian Government requested the Security Council Sanctions Committee to delist the two Belgian nationals.56 As the latter rejected that request the Belgian Ambassador to the UN met a few times with diplomats of the designating State, namely the US, to discuss the delisting of Sayadi and Vinck. The confidential communication between the two diplomats later disclosed by Wikileaks shows political factors were significant factors leading to the delisting of Sayadi and Vinck.57 The first meeting between the Belgian and the US diplomat regarding Sayadi and Vinck was informative in nature. The former demanded to know the reasons for listing and the latter assured that the US Government is attempting to declassify additional information on the case in order to share with the Belgian authorities. He recommended that once additional information is made available, Belgium send a delegation to Washington to meet with the State Department and Treasury/​o fac to discuss thoroughly the case.58 As this meeting did not produce concrete results in relation to Sayadi and Vinck, in 2008, the Belgian and US diplomats met again to discuss the case. This time the Belgian Ambassador not only requested the delisting of the Belgian nationals but also explained that a negative response might have certain consequences. He explained that the Belgian parliament, press and public believed that there were never sufficient grounds for designation of Mr Sayadi and Ms Vinck.59 In addition, the Belgium Ambassador, who at the time was Chairman of the 1267 Sanctions Committee also underscored that representatives of many UN [M]‌ember [S]tates have told him that they are reluctant to submit names to the Committee for sanctions because they perceive the Committee takes little action to remove parties from the list, even when warranted, and that there is little likelihood of reversing sanctions once a party had been listed.60 56 57

5 8 59 60

ibid. ‘Belgium reluctant to take CTC or 1267 Chairs’, Canonical ID:  06USUNNEWYORK2182_​ a, Wikileaks, 22 November 2006. accessed 6 May 2018; ‘UN/​1267 Sanctions:  Belgians request U.S. reconsider case to delist Sayadi and Vinck’ Wikileaks (n 138) accessed 6 May 2018. ibid, ‘Belgium reluctant to take CTC or 1267 Chairs’, Wikileaks. ‘UN/​1267 Sanctions:  Belgians request U.S.  reconsider case to delist Sayadi and Vinck’ Wikileaks (n 57). ibid.

148 Chapter 5 The Belgian Ambassador made it clear that the response in the case of Sayadi and Vinck case had prompted a wave of political distrust of targeted sanctions work. This, the Ambassador suggested, could result in the unwillingness of States to submit new names to the Sanctions Committee. In response to the notes concerning the efficacy of the sanctions mechanism, the US diplomat saw a strong reason to suggest improvements in the due process mechanism and endorse the delisting of Sayadi and Vinck. He made recommendations and reported to his authorities [Belgian Ambassador’s] … point that [S]‌tates are increasingly unwilling to submit new listings to the Committee because 1267 sanctions are viewed as a life-​sentence is worth consideration. The 1267 Monitoring Team has found in consecutive reports that the list is becoming increasingly outdated as the threat of al-​Qaeda and the Taliban evolves. Without new listings, the 1267 regime will become increasingly irrelevant to global counter-​terrorism actions. Appropriate delistings could serve as an important incentive to keep [S]tates engaged in improving the 1267 list.61 He further submitted an “action request” for “renouncing terrorist ties requested by the Department of Treasury for its review of the Sayadi and Vinck case”.62 After less than a year from the submission of the “action request”, the Security Council Sanctions Committee delisted Sayadi and Vinck.63 Given the lack of clear reasons by the Security Council Sanctions Committee for the delisting the Belgian couple, it is hard to identify whether those were the national courts, public opinion, diplomacy or other factors that had the decisive impact. However, the aforementioned confidential diplomatic documents leaves to believe that the Belgian executive, pressurised by the national courts and the public, triggered the delisting of Sayadi and Vinck. They also reveal that the US diplomat may have been receptive to the idea of delisting after having realised that the active participation of States in the sanctions regime is dependent on the existence of the due process guarantees. Through these discussions and developments, the Sayadi and Vinck case reveals the role that national courts and executives may have in advancing the sanctions decision-​making reform. 61 62 63

ibid. ibid. See Decision of the Security Council Al-​Qaida and Taliban Sanctions Committee SC/​9711 of 21 July 2009, accessed 6 May 2018.

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VIII Mr Al-Jedda When the Strasbourg Court ruled with regard to indefinite detention in Iraq, Mr Al-​Jedda had another important case before the UK courts. The latter concerned the legality of an order of the UK authorities to revoke the UK citizenship of Mr Al-​Jedda. In 2013, the UK Supreme Court overturned the order that would otherwise make him stateless.64 Even after the foregoing decisions, the relationship of Mr Al-​Jedda with UK intelligence did not improve. In 2014, the UK decided to change the laws so it could revoke his citizenship for the second time.65 The (then) UK Home Secretary Theresa May introduced new measures in the Immigration Bill and explicitly connected the amendment to the loss in the case stating “[t]‌he new clause is a consequence of a specific case”.66 In introducing the new measures in the Immigration Bill, the Home Secretary and James Brokenshire, Home Office minister, mentioned Al-Jedda by name 11 times.67 The Home Secretary further stated “since we saw the result of the al Jedda case … I specifically asked officials whether there was anything that we could do to ensure that we would be able to take action against people whose activities, particularly those related to terrorism, were seriously prejudicial to the [S]tate”.68 The political circumstances in the case of Mr Al-​Jedda provide that where the executive and legislative perceive an individual to be a threat to national security, court decisions will have difficulties in restoring the fundamental rights of an individual. Such judicial responses may, in fact, have the effect of encouraging the executive and legislature to make statutory changes to “legalise” their measures, thereby resulting in further interference with individual

64 65

66

6 7 68

Secretary of State for the Home Department v Al-​Jedda [2013] UKSC 62, para 42. Jonathan Swift QC, for the UK Home Secretary, argued that the second deprivation order was based on new information received regarding the Iraqi citizenship of Mr Al-​Jedda. For this reason, the case should be viewed as distinct from the previous proceedings. Yet, the arguments made by UK Home Secretary regarding the Immigration Bill provide that the Government had the intention to make any legal changes necessary in order to revoke the citizenship of Mr Al-​Jedda. See also Hilary Stauffer, ‘Steps Towards Statelessness’, LSE Human Rights, 1 August 2014  accessed 6 May 2018. HC Deb 30 January, vol 574, col 1047; see also Alice Ross and Olivia Rudgard, ‘How one man was stripped of his UK citizenship-​twice’, openDemocracy, 11 July 2014  accessed 6 May 2018. ibid, Alice Ross and Olivia Rudgard, ‘How one man was stripped of his UK citizenship-​twice’. HC Deb 30 January, vol 574, col 1056.

150 Chapter 5 rights. This is the case at least in countries such as the UK, where the courts cannot easily limit Parliament’s will to legislate. C

Encouraging Security Council Due Process Reform?

The Initial Impact of the European Courts—Contributing to the Establishment of the UN Office of the Ombudsperson The possible impact of European jurisprudence in the UN system dates from 2008, when the European Court of Justice ruled in its memorable Kadi. Although prior decisions of the European courts have acknowledged the due process deficiencies of Security Council resolutions, only since 2008 have they aimed at rendering those resolutions effectively unenforceable at the European level.69 While no European State has, thus far, chosen to implement judicial instructions that lead to disobedience of Security Council resolutions, nothing guarantees that States will follow the same approach in the future. As already reported above with regard to delisting of Mr Nada, some States have already initiated conditions for the implementation of certain ‘arbitrary’ measures of the Security Council.70 Aware of the political ramifications of European judicial responses, the Security Council in its Resolution 1989 did recognise the domestic and regional legal challenges to the implementation of the sanctions regime.71 Furthermore, after the Kadi case, it appears that the Security Council was encouraged to introduce certain reforms in order to mitigate the tension and ‘satisfy’ the concerns raised by the European courts. In this vein, the establishment of the Office of the Ombudsperson of the Security Council has been seen as being a result of the 2008 Kadi decision. Mr Kadi himself has commented that the far-​reaching decision in his case “created the political and diplomatic pressure which led to the creation of the Office of Ombudsperson to the UN Sanctions Committee”.72 The first Ombudsperson, Ms Kimberly Prost appears to have confirmed this observation when she I

69 70 71

72

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Report to the General Assembly (26 September 2012) UN Doc A/​67/​396 para 23. Nada v Switzerland (n 45) para 63. UNSC Res 1989 (17 June 2011) UN Doc S/​RES/​1989 eleventh preambular paragraph. For this reading of the resolution see also ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2012 (n 69) para 23. See Press Release of Carter-​Ruck (n 22).

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recognised that her Office “resulted from the fair process problems related to the use of targeted sanctions, … and was driven in no small part by litigation … in Europe.”73 In her discussion of European litigation, Ms Prost referred specifically to the Kadi case. The importance of Kadi and other decisions of the European courts may have also had an impact in further enhancing the mandate of the Office of the Ombudsperson. After the European courts echoed their dissatisfaction with due process guarantees at the UN level, the Security Council did adopt new resolutions aimed at providing additional fairness and transparency in targeted sanctions.74 With these improvements, according to Ben Emmerson, the former Special Rapporteur on Counter Terrorism and Human Rights, the Office of the Ombudsperson became “effective in those cases that have so far been processed”.75 While the foregoing comments suggest that European litigation on targeted sanctions has had an impact in establishing and improving the Office of the Ombudsperson, this does not suggest that UN human rights initiatives emanating from UN institutions and Member States have had any less of an impact. As was already suggested earlier in this book, prior to the Kadi case, the UN was already seeking ways of improving due process guarantees, particularly in relation to the Al Qaida sanctions regime.76 The Office of the Ombudsperson appears to have also been encouraged by the US itself, in the hope that the mechanism would strengthen the sanctions regime. The diplomatic correspondence in relation to the Sayadi and Vinck case leaked by Wikileaks reveals that the US Deputy Ambassador to the UN was convinced that “[a]‌ppropriate delistings could serve as an important incentive to keep [S]tates engaged in improving the 1267 list”.77 He came to this conclusion after the UN Chairman of the sanctions regime informed him how UN Member States have become reluctant to submit names to the Sanctions Committee because of deficiencies in delisting.78 73

7 4 75 7 6 77 78

Kimberly Prost, Ombudsperson of the Security Council Al-​Qaida Sanctions Committee, Remarks to the 49th meeting of the Committee of Legal Advisors on Public International Law (cahdi) of the Council of Europe (Strasbourg, 20 March 2015)  accessed 6 May 2018. See UNSC Res 1989 (n 71) and UNSC Res 2083 (17 December 2012) UN Doc S/​RES/​2083. ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2012 (n 69) para 30. See Chapter 2.B.VI in this monograph. ‘UN/​1267 Sanctions:  Belgians request U.S.  reconsider case to delist Sayadi and Vinck’ Wikileaks (n 57). ibid.

152 Chapter 5 In light of these developments, the US Deputy Ambassador to the UN suggested his government consider improving the sanctions procedure for delisting so it could encourage States to add more names to the sanctions list. This proposal was made prior to the Kadi decision. As such, whilst the Office of the Ombudsperson remains highly associated with European litigation, the establishment of that institution cannot be examined in isolation from other legal and political developments that took place at the UN level. Splitting Apart on Future Reform: between ‘One-​ Size-​Fits-​All’ and Contextual Due Process There is by now a wide consensus at the level of the Security Council and of European courts that individuals should be granted access to an adequate mechanism to review decisions on targeted sanctions. It must be noted that the European courts have made an important contribution to raising this awareness. Yet, wide discrepancies remain on how that mechanism should look and what substantive and procedural rights it should guarantee. For the EU courts, the Security Council should establish a court-​style mechanism to perform full judicial review.79 Until now, the EU courts have considered themselves competent to perform judicial review of measures emanating from the Security Council. Unlike the EU courts, the Security Council and some other relevant UN institutions consider that due process reform may go only so far as modifying and enhancing the mandate of the Office of the Ombudsperson.80 The latter could function as an independent quasi-​judicial procedure for review of listing decisions in sanctions cases, “recognising that full judicial review is not always within reach”.81 II

79 80

81

Kadi v Commission 2010 (n 20); Kadi 2013 (n 20); Al-​Dulimi and Montana Management Inc. v Switzerland (App No 5809/​08) ECHR 26 November 2013. ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ 2012 (n 69); UN General Assembly Res 60/​1 ‘World Summit Outcome’ of 24 October 2005, para 109  accessed 6 May 2018. Non-​paper of the Secretary General referred to in the debate on ‘Strengthening international law: rule of law and maintenance of peace and security’ (22 June 2006) UN Doc S/​PV.5474. The International Commission of Jurists has also advocated the establishment of an “independent or quasi-​judicial complain mechanism” into the Security Council targeted sanctions. See International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-​Terrorism and Human Rights (2009). Katja Creutz, ‘Balancing Targeted Sanctions: Effectiveness Through a Climate of Legality’ (2015) FIIA Briefing Paper 169, 8.

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These two viewpoints where the EU courts insist upon the inclusion of a judicial review mechanism, whilst the Security Council is staunchly opposed to such a review, have become entrenched to the point where the debate has been described a resembling “a conversation of the deaf.”.82 Devika Hovell, in her recent work The Power of Process, argues that the fixation of the EU courts and legal scholarship with demanding a court-​based adjudicatory model of due process for Security Council sanctions decision-​making is based on two wrong assumptions. Firstly, rather than demonstrating astuteness to the contextual factors at play, the courts merely applied the legal frameworks developed in domestic settings to the idea of a procedural framework for Security Council sanctions decision-​making.83 They have failed to justify why no other institution but a court would be capable of instilling fairness in the Security Council sanctions context.84 This simplistic and “formalist legal approach has failed to persuade the Security Council, a body that operates in a setting in which the relationship between law and politics is notoriously complex”.85 Secondly, Hovell argues that the EU courts have misconceived the nature and role of due process by presenting it as a ‘one-​size-​fits-​all’ principle.86 The due process demanded by EU courts is a mere reflection of that which occurs domestically. Despite the diffusion of due process rights across most domestic legal systems, the principles, form, and scope of due process differs from jurisdiction to jurisdiction. Domestically, it is accepted that due process can be contextual, with different standards operating at dependent on the legitimate legal contexts. To apply only one iteration of due process rights is to make an error of the demands of due process.87 Hovell proposes a procedural framework for Security Council sanctions cases that aims to enhance first, the accuracy of decision-​making outcomes, second, the dignity and autonomy of the individuals concerned, and third, public accountability in decision-​making.88 She stressed the importance of creating new rules which construct a new procedural framework and are tailored to the demands of a “an emerging governmental context,” rather than focusing on reflecting the rules in existing domestic practice.89 82 83 84 85 86 87 88 89

Devika Hovell, The Power of Process: The Value of Due Process in Security Council Sanctions Decision-​Making (Oxford University Press 2016) 1–​2. ibid, 3. ibid. ibid. ibid. ibid. ibid, 5. ibid, 4.

154 Chapter 5 Hovell’s proposal may not sit comfortably with existing approaches of EU courts and a majority of EU law scholarship on the issue of Security Council due process. Yet, as the issue of targeting individuals has become an enduring situation, there is a momentum to seek workable solutions to due process decision-​making for at least two practical reasons. Firstly, the EU judicial responses, however Herculean, have not resulted in practical the realisation of human rights by way of bypassing the terms of Security Council resolutions. Secondly, it is by now a truism that the only mechanism capable of ensuring genuine protection of human rights could be one powered by the Security Council. 1

The Future Impact of European Courts on Security Council Sanctions Decision-​Making Reform The foregoing observations raise a dilemma about the way the European courts should continue to engage with Security Council measures affecting individual rights. Should they demand due process, as understood in their domestic and regional context, or should they seek out alternative modes of engagement with Security Council measures by accepting its context and realpolitik? The swing to one or another direction will also determine the impact of the European courts on future reform of Security Council due process. The Security Council may be discouraged from carrying out further reforms if domestic and regional courts continue to reject its context and instead impose domestic or regional due process standards on it, thereby continuing the era of national judicial disobedience. In this light, European courts would be least constructive if they challenged ab initio any institutional reform proposed by UN institutions that does not equate to domestic procedures. This contribution suggests that the European courts can have a higher impact on due process reform if they choose to provide more advise and less demands to the ongoing debate on Security Council reform advocated by UN institutions.90 By recognising the context and peculiarities of the Security Council, European courts would help the Group of Like-​Minded States on targeted sanctions, the Special Rapporteur on Counter-​Terrorism and Human Rights and the Office of the Ombudsperson in their internal advocacy to find a sustainable solution to due process.

90

see also ibid, 166.

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a

Least Effective Contribution of the European Courts in Security Council Due Process Reform: Losing Impact by Overshooting the Target In her speech delivered in March 2015 in Strasbourg, the (then) UN Ombudsperson Kimberly Prost explained that one of the key reasons for setbacks of her institution is currently coming from the EU courts. She stated that the absence of recognition by the cjeu in Kadi II of the Office of the Ombudsperson “[had] had a damaging effect in terms of the motivation at the political level to maintain and to expand the Ombudsperson position”.91 The Ombudsperson found it regretful that “the [cjeu] will independently decide on what is necessary in terms of fair process according to its analysis and law”.92 The failure of the EU courts to recognise the importance of the Office of the Ombudsperson and ruling on the basis of local considerations may result in their losing importance at the UN level. Following the cjeu in Kadi II, Ombudsperson Prost argued that the purpose of her Office and Security Council due process reform is not “to satisfy any individual Court or body … [but] to ensure that the use of the Security Council powers is in conformity with Article 1 of the Charter, which includes respecting international law and human rights principles.”93 The statement that Security Council reform does not aim to satisfy national and regional courts is remarkable, since the Ombudsperson has repeatedly mentioned that prior reforms, including the establishment of her Office, were encouraged by European jurisprudence. The observations and warnings of the Ombudsperson reveal concerns about the future contribution of European jurisprudence to Security Council reform on due process. While the initial rebellion of the European courts might have had a positive impact on raising awareness at the UN level on the need to establish adequate review mechanisms, the courts run the risk of losing that impact by ignoring institutional reforms at the UN level. As Antonios Tzanakopoulos argues, “after procuring some progress, … [the EU courts are] now sending the [Security Council] into regression and may end up being counterproductive”.94 This could particularly be the case if the European courts choose to ignore the significance of alternative voices within UN Member States and UN human 91 92 93 94

Ombudsperson of the Security Council Al-​Qaida Sanctions Committee, Remarks to the 49th meeting of the cahdi of the Council of Europe (n 73) 4. ibid. ibid, 5. Antonios Tzanakopoulos, ‘The Solange argument as a justification for disobeying the Security Council in the Kadi judgments’ in Matej Avbelj, Filippo Fontanelli, and Giuseppe Martinico (eds), Kadi on Trial:  A Multifaceted Analysis of the Kadi Trial (Routledge, 2014) 134.

156 Chapter 5 rights initiatives, such as that of the Office of the Ombudsperson, the Group of Like-​Minded States and the Special Rapporteur on Counter Terrorism and Human Rights. b

Effective Contribution of the European Courts: Partnering with UN Institutions in the Process of Reform Important UN bodies are interested in hearing from the European courts on due process reform. They consider that courts can have an impact even when they disagree with UN mechanisms and reform processes, providing that they recognise these and aims to perfect, rather than underestimate, them. In commenting on the Kadi II reasoning, UN Ombudsperson Prost observed: “it would have been helpful if some consideration had been given to the Office of the Ombudsperson, even if it considered that mechanism did not go far enough”.95 This type of constructive judicial engagement can perhaps be found in the Al-​Dulimi judgment of the ECtHR Grand Chamber, the Opinion of Advocate General Bot and the Youssef judgment of the UK Supreme Court. The Strasbourg Court in the Al-​Dulimi judgment has been more cautious about the wider implications of its decisions. The ECtHR has omitted a firm position on the application of the principle of equivalent protection vis-​à-​vis the UN and the place of Article 103 of the UN Charter in the Convention system.96 As regards the due process reform, the Strasbourg Court appears to have left it to the organisation itself by avoiding the notions of full-​blown court, full and intensive judicial review.97 This approach, however, does not mean that the Court is ready to rubber stamp sanctions decisions or to leave the matter unaddressed. The Court explicitly endorses “very serious, reiterated, and consistent criticisms”98 about the current review mechanism and sends a clear message that adequate procedural guarantees should be put in place. Judge Pinto de Albuquerque, joined by three other judges, noted “if the legal reasoning [in Al-​Dulimi] is fragile, the message is not: the Court is determined not to accept UN sanctions without adequate procedural guarantees”.99

95 96 97 98 99

Ombudsperson of the Security Council Al-​Qaida Sanctions Committee, Remarks to the 49th meeting of the CAHDI of the Council of Europe (n 73) 4. Al-​Dulimi and Montana Management Inc. v Switzerland (App No 5809/​08) ECHR GC 21 June 2016. ibid, para 153. The deficiencies of the current delisting procedure in the UN are looked through the reports of the UN Special Rapporteurs as well as other actors. ibid. ibid, concurring opinion of Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal and Dedov, para 58.

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At the same time, as long as the Security Council lacks adequate procedural guarantees, the Strasbourg Court aims to fill in the gap through a form of limited judicial review. In particular, the Court through its arbitrariness test urges national courts to perform a limited review of whether an individual was given “at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the lists had been arbitrary”.100 In this manner, the Court utilises the national judicial review to create a timely pressure on domestic executive authorities and ultimately on the Security Council to filter arbitrary decisions. This type of pressure coming from the national courts has, in some cases, proved to be effective. In the cases examined concerning Mr Sayadi and Ms Vinck, and Mr Nada national courts prompted national executives and legislatures to condition their cooperation with the Security Council as regards targeted sanctions by reference to procedural guarantees. The activation of national courts in Al-​Dulimi may further revitalise the reform process at the Security Council. The Opinion of Advocate General Bot in Kadi II also encourages a comity-​ based relationship with the Security Council. The Opinion of Advocate General Bot in no small part highlights the Security Council’s efforts to improve “the listing and delisting procedures in terms of equity and respect for the rights of the defence”.101 It further recognises the “significant role” of the UN Ombudsperson, “who performs her functions in complete independence and impartiality.”102 In his view, the process established with the Office of the Ombudsperson reflects a realisation within the United Nations that, despite confidentiality requirements, the listing and delisting procedures must now be implemented on the basis of a sufficient level of information, that the communication of that information to the person concerned must be encouraged, and that the statement of reasons must be adequately substantiated.103 On the basis of continuous improvements in the mandate of the Office of the Ombudsperson, and the rigorous examination carried out by the 100 ibid, 151. 101 Joined cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P European Commission and Council v Kadi [2013] Opinion of Advocate General Bot para 81. 102 ibid, para 82. 103 ibid.

158 Chapter 5 Ombudsperson in the decisions taken by the Sanctions Committee, Advocate General Bot considered “that the procedure before it can no longer be regarded as purely diplomatic and intergovernmental”.104 In this light, he considered that the listing and delisting procedures within the Sanctions Committee provide sufficient guarantees for the EU institutions to be able to presume that the decisions taken by that body are justified. The improvements to the procedure within the United Nations allow, in particular, the presumption to be made that the reasons cited in support of listing are based on sufficient evidence and information. The EU judicature should not therefore perform an intensive review of the justification for listing on the basis of the evidence and information on which the assessments made by the Sanctions Committee are based.105 The presumption of justification and trust is essential in the EU–​UN relationship because “an effective global fight against terrorism requires confidence and collaboration between the participating international, regional and national institutions, rather than mistrust”.106 Advocate General Bot called not only on the European courts, but also on the Security Council to introduce further improvements. He made it clear that “the more the procedure within the United Nations is transparent and based on information which is sufficient in terms of its quantity and reliability, the less regional and national implementing institutions will be tempted to challenge the assessments made by the Sanctions Committee”.107 The position of Advocate General Bot is based on the realities of the functioning of the Security Council and the political process of blacklisting. His observations seek a workable solution to Security Council due process reform and encourage an open dialogue between the EU courts and the Security Council. The recent Youssef judgment of the UK Supreme Court also reflects a constructive engagement with the UN Office of the Ombudsperson. In particular, the judgment is noteworthy as it relies on the findings of the Office of the Ombudsperson without questioning the adequacy of that mechanism.108 In particular, although Mr Youssef, who was designated by the 1267 Sanctions 104 105 106 107 108

ibid. ibid, para 87. ibid, para 85. ibid, para 88. Youssef v Secretary of State for Foreign and Commonwealth Affairs (n 40)  paras 5, 7, 8, 50, 61.

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Committee, denied any involvement in terrorism, the UK Supreme Court relied on the report of the Ombudsperson where he was described a vocal supporter of “Usama Bin Laden and the Al-​Qaida organisation for its various activities in different locations”.109 In light of “the material disclosed by the Ombudsperson’s report”, Lord Carnwath, with whom the other lords agreed, concluded that [t]‌he court should … be very slow to grant a substantive remedy in the circumstances now facing the court. Judicial review is a discretionary remedy. The court is not required to ignore the appellant’s own conduct or the extent to which he is the author of his own misfortunes.110 The Youssef judgment does not imply that the Office of the Ombudsperson is an equivalent judicial body capable of ensuring due process. Yet, the repeated reference to its reports and reliance on its findings has allowed the UK Supreme Court to respect the Office of the Ombudsperson without questioning its adequacy. D

Clarifying Security Council Authorisations on Security Detentions?

I The Limits of Security Detentions Issues of misapplication of Security Council resolutions by States operating in military operations have troubled a wide range of UN bodies.111 This is particularly worrisome in the context of counter-​terrorism, where security detentions are very often of indefinite nature. The (then) Special Representative of the Secretary General on Human Rights Defenders, Ms Hina Jilani, in a report presented to the Commission on Human Rights observed “there is a real danger that, in the wake of the terrorist attacks of 11 September 2001, some governments may be using the global war on terrorism as a pretext to infringe human rights”.112

1 09 ibid, paras 5 and 61. 110 ibid, para 61. 111 See e.g. Report of the Secretary General pursuant to paragraph 30 of UNSC Res 1546 (8 June 2004), Document of 7 June 2005, S/​2005/​373, para 72; See also Al-​Jedda v The United Kingdom (n 3) 40–​41. 112 Report by Ms Hina Jilani, Special Representative of Secretary General on human rights defenders, 27 February 2002, Doc E/​CN.4/​2002/​106, para 96. See also Louise Doswald-​ Beck, Human Rights in Times of Conflict and Terrorism (Oxford University Press 2011) 138.

160 Chapter 5 In Hamdi v Rumsfeld, the US Supreme Court examined the implication of the enduring nature of counter-​terrorism in cases of detention. Writing the principal opinion, Justice Sandra Day O’Connor observed [i]‌f the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.113 Justice Anthony Kennedy in his principal opinion in Boumediene v Bush also noted that in the war on terror “the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more.”114 As regards the aforementioned problématique, the European courts have made a significant contribution to elucidating the meaning and scope of Security Council resolutions authorising security detentions. In particular, the Strasbourg Court’s reasoning in Al-​Jedda has contributed in at least three ways. First, by means of treaty interpretation the Court observed that arbitrariness of continued detentions was not envisioned as being covered by Article 103 of the Charter and there could be no intent to use Article 103 to displace international human rights. This interpretation contributes to further shaping the purpose of the binding nature of Security Council resolutions, reinforces the Security Council’s legitimacy and renders its power less contested. As Kolb has observed, if a course prevails in which by reference to Article 103 “powerful governments of the days, thinking they can go to war whenever they please, without control and without constraints …” then “it will be not only Article 103 that will be brushed away, but the whole law of the Charter”.115 As certain governmental positions could be operationalised by reference to a Security Council resolution, the guidance in Al-​Jedda makes one question whether such positions can at all, and if so to what extent, be compatible with the purposes and principles of the Charter as well as other obligations deriving from UN law. In this respect, by diminishing its association with arbitrariness Al-​Jedda legitimises the effects of primacy of UN Charter obligations. 113 Hamdi v Rumsfeld, 542 U.S. 520 [2004]. 114 Boumediene v Bush, 128 S. Ct. 2270 [2008]. 115 Robert Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 21, 35.

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Second, the Strasbourg Court’s view that the terms of internment in Security Council resolutions were not sufficiently clear may ultimately have effects for the Security Council’s agenda in further clarifying the language it uses when authorising or binding the Member States. As observed in the ilc Report on Fragmentation, “[s]‌ometimes it may be useful to stress the conflicting nature of two rules or sets of rules so as to point to the need for legislative intervention”.116 Lastly, it should be noted that Al-​Jedda will contribute to fostering the process of codification of the Copenhagen Process on Handling the Detainees in International Military Operations. This initiative of the Danish Government, which aims at developing a multilateral approach to the treatment of detainees in military operations, observes [t]‌here is … a need for the Security Council to address this issue and clearly establish the legal basis for the right of the force to detain in a given operation. A clear mandate on detention will improve the possibilities for soldiers on the ground to take the right decisions on detention matters and to avoid different interpretations on the understanding of an ambiguous SC resolution. This need is further underlined by the fact that the right to detain might subsequently be challenged in court, and that officials/​soldiers of troop contributing [S]tates may be subject to prosecution for unlawful confinement under the grave breaches regime of Geneva Convention IV.117 Overall, the Court achieved this outcome by taking a restrictive and critical reading of the terms of Resolution 1546. As already stated, although ‘internment where this is necessary’ was foreseen in the letter annexed to Resolution 1546, the ECtHR did not consider this sufficiently clear to displace other human rights. Remaining Challenges Concerning Security Council Resolutions Authorising Detentions At least two situations where the Al-​Jedda reasoning cannot be considered to have resolved the human rights concerns of Security Council resolutions II

116 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (13 April 2006) UN Doc A/​CN.4/​L.682 (ILC Report on Fragmentation) para 412. 117 Copenhagen Process on the Handling of Detainees in International Military Operations, prepared for the first Copenhagen Conference on 11–​12 October 2007cited in Al-​Jedda v The United Kingdom (n 3) para 58.

162 Chapter 5 authorising security detentions remain. Firstly, there is a more recent judicial response that does not favour the restrictive interpretation of Al-​Jedda. This view, as discussed below, considers that Security Council resolutions authorising detentions can modify requirements under Article 5 echr. Secondly, detentions undertaken in peacekeeping operations, where the UN retains effective control over the acts of contributing States, would be attributable to the UN and not to the States, who might be parties to the echr. With regard to the latest judicial response, the UK Court of Appeals in the Serdar Mohammed considered that “procedural safeguards under Article 5 could be modified in an international armed conflict”.118 In particular, the Geneva Conventions and Security Council resolutions authorising detentions can provide a lawful basis for detention under Article 5 echr. With reference to the Hassan v UK case, the Court of Appeals held [i]‌n our view, by parity of reasoning, if detention under the Geneva Conventions in an international armed conflict can be a ground for detention that is compatible with Article 5 echr, it is difficult to see why detention under the UN Charter and unscrs cannot also be a ground that is compatible with Article 5.119 Sean Aughey and Aurel Sari argue that this finding of the Court of Appeals in the Serdar Mohammed case was prompted to challenge the restrictive approach of Al-​Jedda in which the Security Council resolutions vested with Article 103 of the UN Charter was seen not to establish obligations to detain.120 Indeed, the hesitancy of the UK judges in Serdar Mohammed shows that Al-​ Jedda may not be considered a one-​size-​fits-​all standard that ends the debate on indefinite detentions authorised by Security Council resolutions. The second situation where States party to the echr may detain pursuant to Security Council resolutions could take place in UN missions. If in such circumstances the UN Security Council has effective control and ultimate authority over the acts and omissions of contributing troops, and therefore, all those acts might be attributable to the United Nations and not to the Member

118

Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843, para 161. 119 ibid, para 162. 120 Sean Aughey and Aurel Sari, ‘The Authority to Detain in NIACs Revisited:  Serdar Mohammed in the Court of Appeals’ EJIL:  Talk!, 5 August 2015  accessed 6 May 2018.

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States. By attributing those actions to the UN, courts might pronounce lack of jurisdiction to rule on the merits. This approach was developed in Behrami and Saramati decision. In Saramati, the ECtHR ruled that prolonged detention undertaken by nato troops in Kosovo was not attributable to States, who were parties to the echr, but to the United Nations.121 By focusing on the level of control exercised by the UN over the acts of the contributing States, the earlier Saramati standard differs from Al-​Jedda, at least when such acts were considered to be attributable to States and not the UN. In practice, it is difficult to distinguish when such acts are attributable to States and when to the UN. Security Council resolutions do not provide very clear language to help distinguish these situations. In the Al-​Jedda case before the UK courts, Lord Rodger found that the legal basis on which the members of the nato-​led Kosovo Force (kfor) were operating in Kosovo could not be distinguished from that on which British forces in the Multinational Force were operating during the period of the applicant’s internment. He explained his views as follows [t]‌here is an obvious difference between the factual position in Kosovo that lay behind the Behrami [and Saramati] case and the factual position in Iraq that lies behind the present case. The forces making up kfor went into Kosovo, for the first time, as members of kfor and in terms of Security Council Resolution 1244. By contrast, the Coalition Forces were in Iraq and, indeed, in occupation of Iraq, for about six months before the Security Council adopted Resolution 1511, authorising the creation of the [Multinational Force], on 16 October 2003. It respectfully appears to me that the mere fact that Resolution 1244 was adopted before the forces making up kfor entered Kosovo was legally irrelevant to the issue in Behrami [and Saramati]. What mattered was that Resolution 1244 had been adopted before the French members of kfor detained Mr Saramati. So the Resolution regulated the legal position at the time of his detention. Equally, in the present case, the fact that the British and other Coalition Forces were in Iraq long before Resolution 1546 was adopted is legally irrelevant for present purposes. What matters is that Resolution 1546 was adopted before the British forces detained the

121

Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/​01 & 78166/​01) ECHR 2 May 2007.

164 Chapter 5 appellant and so it regulated the legal position at that time. As renewed, the provisions of that Resolution have continued to do so ever since. If one compares the terms of Resolution 1244 and Resolution 1511, for present purposes there appears to be no relevant legal difference between the two Forces. Of course, in the case of Kosovo, there was no civil administration and there were no bodies of troops already assembled in Kosovo whom the Security Council could authorise to assume the necessary responsibilities. In paragraph 5 of Resolution 1244 the Security Council accordingly decided ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’. Because there were no suitable troops on the ground, in paragraph 7 of Resolution 1244 the Council had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities.122 Indeed, it remains unclear whether the Strasbourg Court in the Al-​Jedda case intentionally departed from its earlier position in Behrami and Saramati. The ECtHR has not officially departed from its reasoning in Behrami and Saramati. It is for this reason that when the UN exercises full control over the acts of the troops of contributing States, detentions carried out by States may not be attributable to States but to the UN as a whole. Since the UN has a legal personality separate from that of its Member States and the organisation is not a Contracting Party to the Convention, the Court might declare such complaints incompatible ratione personae with the provisions of the Convention.123 E

Testing the Legal Force of the UN Charter? 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,

122 123

Al-​Jedda v Secretary of State for Defence [2007] UKHL 58 paras 59, 61, 87. Behrami and Saramati (n 121) 144, 152.

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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 wandering down his wadi: ‘it’s all because of me; I killed Article 103!’124 Thomas Franck once argued that Article 2.4 of the Charter has been killed because States continuously make recourse to the use of force outside the limits of the UN Charter.125 This view, however, was contested by Marcelo Kohen who considers that despite all the violations of Article 2.4, the principle and the Charter itself remain alive for the reasons given by the icj in the Nicaragua case [i]‌f a [S]tate acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.126 On this view, the practice of violation of a particular norm does not equate to making a norm vanish, particularly as long as States continue to emphasise its significance. However, it remains unclear whether this argument can be applied when courts give preference to particular rules of domestic or international law at the expense of UN obligations by simply refusing to interpret the relevance and significance of the UN Charter. This concern has emerged particularly in cases of Security Council targeted sanctions and detentions in military operations. In this regard, the UN Special Rapporteur on Counter Terrorism and Human Rights stated

124

James Crawford, ‘Mr. Kadi and Article 103’, a poem delivered at the The Hague Academy of International Law, 29 July 2013. 125 Thomas M. Franck, ‘Who Killed Article 2(4)?’ (1970) 64 American Journal of International Law 809. 1 26 Marcelo G. Kohen, ‘Is the US Practice of Using Force Changing International Law?’ (2003) World Editorial & International Law, 9.

166 Chapter 5 [w]‌hile none of the [European] judicial rulings to date has directly impugned Council resolutions, their effect has been to render those resolutions effectively unenforceable. If the measures cannot be lawfully implemented at the national and regional levels, then the logic of universal sanctions falls away.127 Judicial responses aiming at non-​enforcement of particular Security Council resolutions upon the recommendation of any domestic or regional body raise concerns about the implementation of the Charter, and in particular its Articles 25 and 103, which oblige States “to comply with binding decisions of the Council … even where this would entail violating their obligations under another international treaty”.128 In this light, scholars have argued that [t]‌he disobedience of [Security Council] decisions, whether on the basis of the Solange argument, or on the basis of countermeasures against the UN in response to a previous breach by the organisation of its own obligations, is no doubt dangerous and hugely destabilising. In the context of EU courts in particular, they have adopted an understanding that the UN Charter and international law belong to a lower hierarchy of its sources of law and thus cannot be always accommodated in its legal order. For Koskenniemi, the view of the Court of Justice on the relationship between EU law and international law follows the structures of late-​19th century German public law. He further argues [t]‌he two legal orders are separate, while for EU organs, the primacy of European law is imposed as a constitutional necessity. This is the traditional dualistic position which Hans Kelsen once analysed as in fact a monist position with the primacy of the national legal order, a position that Kelsen saw as both solipsistic and imperialistic –​this language is his. Solispsistic in the sense of capable of seeing nothing else than one’s own legal system; imperialistic because everything taking place in the world is judged from its perspective. Or, I should like to say, everything as long as this is convenient.129 127 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Report to the General Assembly (26 September 2012) UN Doc A/​67/​396 para 23. 128 ibid, para 17. 129 Martti Koskenniemi, ‘International Law: Between Fragmentation and Constitutionalism’ (Canberra, 27 November 2006) 2.

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The foregoing observations flag the concern of whether the cjeu should consider the UN Charter and international law as a branch dealing only with “ROW  –​rest of the world”,130 to use the words of Judge James Crawford, or whether it should be more open to its reception. The practice supports an overly sensitive approach of the EU courts when dealing with a simultaneous application of EU law and other treaty regimes. In the Germany v Italy case, Germany argued that “[o]‌utside the specific framework established by the treaties on European integration, the … European nations concerned continue to live with one another under the regime of general international law”.131 One could question whether this assertion applies equally when considered in reverse. In particular, if the same legal issue is regulated under the EU and another treaty regime, including the UN Charter, then an EU Member State ceases to live with other Member States under the regime of international law. Indeed, the cjeu in its Mox Plant case already explained that when an issue is regulated by EU law there is no room for forum shopping in international law.132 Judge Simma compared the exclusiveness of the cjeu with the plea in the Ten Commandments of a jealous God who commands “have no other God, besides me”.133 The foregoing arguments, and the at times harsh criticism of Kadi, should not be considered merely from the juxtaposition of EU and international law lawyers, but from whether and how the UN Charter and international law should be regarded by the cjeu. From the perspective of international law, the challenge of Article 103 based on the EU’s strong pluralism, where legal orders escape UN obligations on the basis of rules of domestic law, “may obliterate boundaries of legality”.134 As a 130 James Crawford, ‘Scottish Independence: the EU and International Law Perspectives’, debate organised by the Centre for European Legal Studies of the University of Cambridge, 27 February 2013 https://​player.fm/​series/​cels-​lunchtime-​seminar-​series/​scottish-​independence-​ the-​eu-​and-​international-​law-​perspectives-​cels-​seminar accessed 17 June 2018. 131 Application Instituting Proceedings, filed on 23 December 2008, Jurisdictional Immunities of the States (Germany v Italy) ICJ, para 6. 132 On this matter see C-​459/​03 Commission of the European Communities v Ireland [2006] E.C.R. I-​4635, paras 169, 171, 174, 177. See also Kirsten Schmalenbach, ‘Struggle for Exclusiveness: The ECJ and Competing International Tribunals’ in Isabelle Buffard, James Crawford, Alain Pellet (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Martinus Nijhoff 2008) 1045–​1068. 133 Bruno Simma, The Hudson Medal Luncheon honouring Judge Bruno Simma, Annual Meeting of the American Society of International Law ‘International Law in a Multipolar World’, 6 April 2013. 134 André Nollkaemper, ‘Rethinking the Supremacy of International Law’ (2010) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65, 74.

168 Chapter 5 consequence, the approach of the EU courts in Kadi “might reinforce perceptions of international law as non-​law (or quasi-​law) –​i.e., a loose system of non-​enforceable principles, containing little, if any real constraints on State power”.135 Indeed, the power of the Charter may weaken136 if its backbone principle of primacy contained in Article 103 is challenged by strong pluralist views of legal orders that do not apply the higher UN law. As regards the Strasbourg Court, it has been noted that its jurisprudence tries as far as possible to reconcile the obligations of the Charter with its convention rights. In this fashion, it has largely avoided a juxtaposition of obligations in the realm of norm conflicts. By referring to the human rights principles of the UN Charter, the ECtHR sought to mutually accommodate the human rights provisions of both legal orders. In this vein, the Strasbourg Court found a genuine mechanism to address the arbitrariness in implementation of the resolution while not resisting the Charter and the unity of international law. To conclude, although domestic and regional courts appears to have a common interest in finding adequate procedural mechanisms to deal with Security Council measures affecting individual rights, it is important that this judicial dialogue does not come at the cost of international stability and the unity of international law. F Conclusions This consequentialist assessment of the European jurisprudence on Security Council targeted sanctions and security detentions has found that judicial engagement provides a mixed blessing effect for human rights and the international legal order. In particular, four conclusions can be derived at this point. First, European jurisprudence on targeted sanctions and security detentions has played a major role in raising awareness of the importance of the protection of human rights while maintaining international peace and security. Even when courts were unable to mitigate the tension between certain Security Council measures and human rights they found a way to critique the arbitrary terms or the implementation of certain Security Council measures.

135 Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907, 912. 136 Or to use the words of the cjeu Judge Allan Rosas “[i]‌nternational [l]aw is dead”. See Allan Rosas, ‘The Death of International Law?’ (2011) 20 Finish Yearbook of International Law, 227.

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Furthermore, each mode of judicial engagement called for necessary improvements on, among others, due process guarantees. Second, making use of legal and other instruments, including confidential leaks, this part of the book finds that courts are dependent on other national authorities to ensure real and practical respect for human rights for the petitioners. As seen in the cases of Sayadi and Vinck and Nada they have been able to impact the due process reform when supported by executives or legislatures. Yet, as Yuval Shany observes the more the executive is likely to adopt counterterrorism policies which are underprotective of the rights and interests of terror suspects, the more it is likely to try to render courts … incapable of serving as effective corrective mechanisms.137 Given the aforementioned correlation between judiciary and other national authorities, judicial engagement may have, at times, inherent limitations to achieve the desired results. By way of example, the UK Supreme Court faced such limitations in cases concerning the revocation of Al-​Jedda’s citizenship and the freezing of Mr Ahmed’s assets. In these cases, judicial engagement led only to the legalisation of executive action, rather than the desired Security Council due process reform. Such developments may also challenge the de facto authority of national or regional courts. Karen Alter, Laurence Helfer and Mikael Rask Madsen argue that the authority of de facto courts has “two key components –​(1) recognising an obligation to comply with court rulings and (2) engaging in meaningful action pushing toward giving full effect to those rulings”.138 They consider the element of meaningful action to be particularly essential and that “[a]‌simple public statement that a judgment is legally binding is, without more, inadequate”.139 In cases such as Kadi, it cannot be argued that most EU Member States engaged in a meaningful action to implement the court decision. Third, when contributing to due process reform, the mode of engagement utilised by the court is important and a form of judicial restraint might be more effective. 137 Yuval Shany, “Guarding the Guards in the War on Terrorism” in Christopher A. Ford and Amichai Cohen (eds), Rethinking the Law of Armed Conflict in an Age of Terrorism (Lexington Books 2012) 118. 138 Karen J. Alter, Laurence R. Helfer, Mikael Rask Madsen, ‘How Context Shapes the Authority of International Courts’ (2016) 79 Law and Contemporary Problems 1, 7. 139 ibid.

170 Chapter 5 As regards the contribution of the European courts to Security Council due process reform, there appear to be two important phases. The first phase is associated with Kadi I which, despite its rebellion, raised international awareness about due process and encouraged the establishment of the UN Office of the Ombudsperson. In this phase, the acts of the European courts are largely justified. The second phase concerns the time after the establishment of the UN Office of the Ombudsperson, where the role of EU courts is seen as being negative for failing to recognise the importance of the mechanism and failing to engage in constructive dialogue for further due process reform in the context of the Security Council. This contribution considers that the EU courts should reinvent their role to contribute to Security Council due process reform and international security. EU courts must shift from the initial radical positions –​either the UN Charter and international security or human right based on domestic law –​to a comity-​based relationship with the Security Council and executives in search for a workable and sustainable solution to due process in the context of the Security Council. The limited effects of Kadi II make one question whether a form of judicial restraint could prove to be more effective. Such an approach, according to Justice Breyer, “will take account of the constitutional role of other institutions, including their responsibilities, their disabilities and the ways in which they function”.140 In performing their role, judge must display “doubt, caution, and prudence” and not become “too sure of oneself”.141 This type of restrained approach would allow the courts to consider the multiple actors involved in the sanctions decision-​making process, including national and regional institutions, the UN actors working on the due process reform and, ultimately, the Security Council. The Strasbourg Court in Al-​Dulimi appears to have channelled this approach by having a more “practical attitude”.142 It has managed to become an active participant with regard to Security Council measures by multiplying and ‘responsibilising’ the judicial and non-​judicial actors, which in turn, has an impact on the due process reform and has a possibility to ensure genuine realisation of human rights. Despite this, it has also maintained a more Herculean approach by retaining the possibility to apply the Bosphorus principle in the future, possibly, in case its approach does not lead to practical results.

140 141 142

Stephen Breyer, America’s Supreme Court (Oxford University Press 2010) 216. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Alfred A. Knopf 2005) 5–​6. Stephen Breyer, America’s Supreme Court (n 140) 216.

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While the future of due process reform is dependent on the Security Council, the continual judicial activism revitalises the concerns of the legitimacy and legality deficit within the Security Council. A setback to the reform may in turn discourage States from submitting new listings and lead to resistance on part of the national authorities to give effect to certain Security Council measures. Some of the recent developments suggest that other European courts and institutions are also exploring new modes of engagement with Security Council measures. The Opinion of the Advocate General Bot in Kadi II and the judgment of the UK Supreme Court in Youssef, reveal signs of such developments. This mode of judicial engagement must grow further by providing constructive observations on how human rights and international security can best co-​exist without encroaching upon the Security Council’s mandate and operation. European courts should be cognizant that due process reforms could be better achieved if presented not just as a human rights movement, but also as a tool to enhance the effectiveness of security measures. The delisting processes in Sayadi and Vinck reveal how due process reform can encourage further targeted sanctions and international cooperation among States in combating terrorism. Fourth, the Strasbourg Court in Al-​Jedda clarified that prolonged detentions in peace-​keeping operations authorized by the Security Council resolutions do not displace human rights. The Court appears to have been cognizant that by applying a restrictive interpretation of the terms of Security Council resolutions it would set a standard for future cases of a similar nature. This standard provides that the Strasbourg Court would find no conflict between Article 103 of the UN Charter and Article 5 echr as long as Security Council resolutions do not contain very firm language, e.g. urging States to displace human rights, or encouraging indefinite detentions. Despite the Strasbourg Court urging clarity, the politics of the Security Council make it clear that such language would not be adopted. Rather, a restrictive reading of resolutions as an interpretive tool is likely to be a sustainable approach at the Strasbourg Courts disposal. Fifth, as regards the UN Charter and international stability, this part of the book demonstrates that European judicial responses to Security Council measures affecting human rights have not have the effect of diminishing the primacy of the UN Charter. The practice shows an overwhelming support by States to honour binding decisions of the Security Council even when they have doubts about their arbitrariness and despite calls by certain courts for conditional implementation of such measures. This outcome could also be read that norms conflicts with UN Charter obligations might prove more effective if addressed through the language of harmonisation rather than by questioning, even if indirectly, the primacy of the UN Charter. This submission

172 Chapter 5 argues that the future engagement by European courts with Security Council resolutions should focus more on policy aims, namely that of encouraging further due process reform and ensuring genuine realisation of human rights, without encroaching on the powers of the Security Council or the legal effects of the UN Charter.

Chapter 6

Conclusion A Overview This book has mapped and demystified the wide-​ranging implications of certain Security Council resolutions affecting individual rights for the international legal order, particularly in the context of targeted sanctions and security detentions, and European judicial responses in that regard. Chapter 2 explained the substantial imbalance between the levels of evolution of targeted sanctions and security detentions on the one hand, and the quasi-​judicial protection system at the UN level on the other. Targeted sanctions, a preventive measure of travel bans and asset freezes left many individuals blacklisted for several years. Because the reasons for listing are not always grounded on irrefutable evidence, the process is exposed to inevitable possibilities of toxic or erroneous designations. Commenting on this matter, Lord Rodger observed in Ahmed, that the designation of someone who had no actual engagement with terrorist activity was a matter of “sooner or later”.1 As the lack of due process triggered certain human rights concerns, the Security Council established two mechanisms for delisting, the Focal Point and the Office of the Ombudsperson. Focal Point has been criticised on the basis of observations that it serves as a mailbox in channelling delisting requests to the UN Sanctions Committee and that it has no power to review or decide on the merits of a case.2 While the Office of the Ombudsperson has a more active role and authority as regards delisting requests, its opinions, however, remain non-​binding and limited to the isis (Da’esh) and Al ​Qaida sanctions regime.3 The UN Group of Like Minded States and the UN Special Rapporteur on Counter Terrorism and Human Rights have proposed quasi-​judicial due process reform to ensure that any targeted individual has access to an adequate review mechanism, a reform still not endorsed by the Security Council. In the context of security detentions in military operations, States have employed Security Council resolutions as authorisations for indefinite detentions. In the context of counter-​terrorism in particular, courts have warned of 1 HM Treasury v Ahmed [2010] UKSC 5 para 174. 2 Christina Eckes, EU Counter-​Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, 2009) 406. 3 UNSC Res 2161 (17 June 2014) UN Doc S/​RES/​2161, paras 41–​43.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004345263_007

174 Chapter 6 a “substantial prospect of perpetual detentions”.4 In most cases pertaining to prolonged detentions undertaken in Security Council military operations there are hardly any mechanisms to review possible claims of such human rights violations. This leaves the due process rights of individuals highly exposed. Chapter 3 showed that these Security Council measures, however arbitrary they may appear, are adopted under Chapter vii of the UN Charter, thereby creating obligations for UN Member States, and perhaps other legal orders. Hence, in the context of targeted sanctions, States and regional organisations including the EU took the necessary measures to implement the asset freezes and travel bans. In the context of security detentions, the contributing States to Security Council-​authorised military operations continued to employ Council resolutions as the legal basis for prolonged detentions. States, while implementing Security Council resolutions regarding targeted sanctions and security detentions, triggered, at times, possible violations of domestic and international human rights. As individuals were unable to bring complaints before the UN bodies, many of them utilised domestic and regional courts, particularly in the European hemisphere, to review the domestic measures aiming at the implementation of Security Council resolutions. Chapter 4 showed the responses of European courts, through a variety of modes of engagement, with Security Council resolutions affecting individual rights. In some instances courts took an approach of subordination. Noting the rule of primacy laid down in Article 103 of the UN Charter, courts accepted that the respective treaty regime was subordinated to obligations emanating from Security Council resolutions.5 Others, like the cjeu in Kadi, refused to give special importance to Security Council measures challenging EU fundamental rights.6 This response did not, as a matter of methodology, rest on accommodation of the respective treaty regime and the UN system, but one of detachment. The UK Supreme Court in the Ahmed case adopted a mode of resistance to national executive measures implementing Security Council resolutions. By recourse to constitutional doctrines of dualism and ultra vires review, the UK Supreme Court considered that only clear measures adopted by the Parliament and not the executive –​even if related to the implementation of Security Council measures –​can limit fundamental rights 4 Hamdi v Rumsfeld, 542 U.S. 520 [2004]. 5 E.g., Case T-​315/​01, Kadi v Council and Commission [2005] E.C.R. II-​3649 paras 183–​204; Yusuf and Al Barakaat v Council and Commission [2005] E.C.R. II-​3533, paras 233–​254. 6 Joined Cases C-​402/​05 P and C-​415/​05 P Kadi and Yusuf v Council and Commission [2008] ECR I-​6351. See also Gráinne de Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 Harvard International Law Journal 1, 3–​4.

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Lastly, the approach of harmonisation was taken by the ECtHR. In particular, the cases of Al-​Jedda, Nada and Al-​Dulimi revealed two levels at which the Strasbourg Court endeavoured to harmonise its treaty regime when its rights were confronted by Security Council resolutions. In those cases, the Strasbourg Court strived for compatibility between the systems of the echr and UN. Firstly, by searching for spaces in the language of a Security Council resolution that would allow for the accommodation of fundamental rights, and second –​where the language posed clear limitations –​it looked for latitude in the implementation of Security Council resolutions. This is characterised as the two-​level harmonisation approach. Chapter 5 showed that any form of judicial engagement with Security Council resolutions has inevitable policy implications. From a consequentialist perspective, part five examines whether the decisions of the European courts ensured the genuine protection of human rights, encouraged Security Council due process reform, clarified Security Council authorisations on security detentions, and challenged the legal force of the UN Charter. Making use of legal and other instruments, including confidential leaks, the book finds that courts are dependent on other national authorities to ensure real and practical respect for human rights for the petitioners. Forms of judicial restraint encourage SC due process reform and restrict the arbitrary use of the UN authorised security detentions. Despite concerns raised by other scholars, judicial disobediences have not have the effect of diminishing the primacy of the UN Charter. B

The Relevance of This Contribution for Future Engagement by European Courts with Security Council Resolutions we idealists don’t need to address any audience in particular. We must say urbi et orbi what we have to say and keep on saying it… The future will hear us. And the future will decide what to do with what we’ve said.7

Mary Dudziak in her excellent work War Time explains that while wartime was for long perceived as a passing event to be followed by peacetime, modern wars

7 Philip Allott, ‘The Idealist’s Dilemma: Re-​Imagining International Society’, EJIL: Talk! 9 June 2014, accessed 6 May 2018.

176 Chapter 6 and threats to international security have become an enduring condition.8 In the twenty-​first century, she argues, “we find ourselves in an era in which wartime –​the war on terror –​seems to have no endpoint.”9 This observation is alarming as it reveals that certain threats to international peace caused particularly by individuals and non-​State actors –​and as a consequence the Security Council measures countering them –​will not cease for the foreseeable future. This relatively enduring condition where the Security Council and individuals cross each others’ paths requires clear rules and institutions to ensure that the effectiveness of security measures does not come at a systematic cost for human rights. Despite the foregoing observations, this book finds that the Security Council continues to respond to counter-​terrorism with ad-​hoc and temporary measures and institutions. The temporary character of the Office of the Ombudsperson and the mandate of the institution to cover only some counter-​terrorism sanctions confirm an unsustainable solution. At the same time, courts, even when guided with a human rightist approach have not always had the desired effects. As Cian C. Murphy rightly observes, “all litigation runs the risk of unintended consequences and this is true too in respect of restrictive measures”.10 Indeed, as this monograph has considered, the, at times, lack of clear and long-​term thinking by the Security Council and European courts has had an effect on human rights and international security. In particular, while some of the judicial responses were morally just, the lack of support by the respective executive powers signalled that the implementation of court decisions are not always plausible. As a consequence, judicial responses guided by the very idea of human rights have not always been successful to ensure genuine protection of human rights or to prevent future cases from arising. Meanwhile, targeted sanctions, which are an essential tool for the Security Council to combat international terrorism, have experienced a credibility and effectiveness deficit due to insufficient due process review mechanisms. Many States became reluctant to submit new listings because of insufficient procedures for their review. The US Deputy Ambassador to the UN in a Wikileaks cable revealing his communication with the Chairman of the 1267 Committee recognised that “appropriate delistings could serve as an important incentive

8 9 10

Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press 2012) 4. ibid. Cian C. Murphy, ‘Counter-​terrorism law and judicial review: the CJEU’ (n 7) 301.

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to keep [S]‌tates engaged in improving the 1267 list”.11 They also feared that the 1267 Committee would otherwise become “increasingly irrelevant to global counter-​terrorism actions”.12 Against this background, the Security Council and European courts have a common interest in finding practical and effective solutions to Security Council resolutions that affect individual rights. European courts could contribute to achieving such solutions through an open dialogue with the UN and by considering the wider effects of its decisions. In this manner, in the words of Philippe Sands and Hersch Lauterpacht, European courts would “contribute to offering working effective solutions”13 and “making international law a more complete and effective law”.14 Through a consequentialist assessment, this book demonstrated instances where courts offered effective solutions and made international law a more complete law. The Strasbourg Court in the Al-​Jedda case had that effect. At the same time, the oscillating effects of Kadi cases on due process reform call for reflections on how to, among others, encourage institutional reforms in another legal order and ensure real and practical realisation of human right. This book does not suggest that courts should focus exclusively on the external effects of its decisions or that they should be guided by policy considerations alone. It argues, however, that cases triggering multi-​level norm tensions cannot be resolved effectively through domestic approaches and without paying due regard to the peculiarities of the legal orders with which they interact. Furthermore, issues of global governance cannot be resolved by judicial interventions alone, and require concerted efforts of other national and international institutions. The examples of delisting Sayadi and Vinck as well as Nada from targeted sanctions, and the example of non-​implementation of the UK Supreme Court judgment in Ahmed showed how the cooperation of national institutions, or the lack of it could affect institutional reforms at the UN level and the realisation of individual human rights wherever placed. Through a critical reading of multiple sources in European courts and institutions and the Security Council, this book aimed to shed some light on to

11 12 13 14

‘UN/​1267 Sanctions:  Belgians request U.S.  reconsider case to delist Sayadi and Vinck’ Wikileaks (n 138) accessed 6 May 2018. ibid. Philippe Sands, ‘Climate Change & Rule of Law’ (lecture held at the UK Supreme Court, 17 September 2015)  . Hersch Lauterpacht, The Function of International Law in the International Community (Clarendon Press 1933) 423–​425.

178 Chapter 6 what happened to, among others, petitioners, the Security Council due process reform agenda and the UN Charter after such cases as Kadi, Al-​Jedda, Ahmed, Nada, Al-​Dulimi. In the course of exploring these dynamics, two important developments took place. First, the number of individual petitions as regards Security Council resolutions before the European courts decreased. Second, institutional initiatives at the UN level on Security Council sanctions decision-​ making reform declined drastically. Further research is essential to analyse the cause of these developments. As regards the first issue, it remains vital to understand why there is scarce litigation on Security Council targeted sanctions before the European courts. Does this suggest that the petitioners are satisfied with the improvements in the UN system, including the Office of the Ombudsperson, or that they view European courts as unable to provide an effective remedy due to practices of non-​implementation of certain decisions? Courts can only engage with future Security Council resolutions if individuals are willing to litigate, and it is essential to understand why such litigation is in decline. As regards the second question, it is unclear why such bodies as the UN Rapporteur on Counter-​Terrorism and Human Rights or the Group of Like Minded States have not been vocal in the last years asking for further Security Council sanctions decision-​making reform. Further research on these and similar topics is essential to explore how to revitalise the debate on Security Council sanctions-​decision making reform and the protection of human rights. It is very essential that the academic debate on these enduring issues persist even when institutions choose to remain silent.

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180 Bibliography Breyer, S., America’s Supreme Court (New York: Oxford University Press, 2010). Breyer, S., Active Liberty: Interpreting Our Democratic Constitution (New  York:  Alfred A. Knopf, 2005). Brownlie, I., Principles of Public International Law (7th edn, Oxford: Oxford University Press, 2008). Cantwell, D., ‘A Tale of Two Kadis: Kadi II, Kadi v. Geithner and U.S. Counterterrorism Finance Efforts’ (2015) 53 Columbia Journal of Transnational Law. Capps, P. and Rivers, J., ‘Kant’s Concept Of International Law’ (2010) 16 Legal Theory. Charney, J., ‘Is International Law Threatened by Multiple Tribunals?’ (1998) 271 Recueil des Cours de l’Académie de Droit International. Ciobanu, D., Preliminary Objections Related to the Jurisdiction of the United Nations Political Organs (The Hague: Martinus Nijhoff, 1975). Clapham, A., ‘The Subject of Subjects and the Attribution of Attribution’ in Laurence Boisson de Chazournes and Marcelo Kohen (eds.), International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-​Debbas (Leiden: Brill, 2010). Clunan, A. L., ‘The Fight Against Terrorist Financing’ (2006–​7) 121 Political Science Quarterly 569. Conforti, B. and Focarelli, C., The Law and Practice of the United Nations (4th edn, Leiden: Martinus Nijhoff, 2010). Conforti, B., ‘Consistency among Treaty Obligations’ in Cannizzaro, E. (ed), The Law of Treaties Beyond the Vienna Convention (Oxford: Oxford University Press, 2011). Crawford, J., Chance, Order, Change:  The Course of International Law (The Hague: Brill, 2014). Cuyvers, A., ‘The Kadi II Judgment of the General Court: The ECJ’s Predicament and the Consequences for Member States’ (2011) 7 European Constitutional Law Review 3. d’Aspremant, J. and Dopagne, F., ‘The Constitutionalism in Europe: Pursuing an Articulation of the European and International Legal Orders’ (2008) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht. de Búrca, G., ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 Harvard International Law Journal. de Wet E. and Nollkaemper, A., ‘Review of the Security Council Decisions by National Courts’ (2003) 45 German Yearbook of International Law. de Wet, E., ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law. de Wet, E., ‘The Role of European Courts in the Development of a Hierarchy of Norms within International Law” Evidence of Constitutionalisation?’ (2009) 5 European Constitutional Law Review. de Wet, E., and Vidmar, J. (eds.), Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012).

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192 Bibliography G8 Summit Statement on Counter Terrorism, ‘Security in the Era of Globalization Heiligendamm, Germany’, June 8, 2007, available at . Group of Like-​minded States on Targeted Sanctions, ‘Improving fair and clear procedures for a more effective United Nations sanctions system’, S/​2012/​805 of 9 November 2012. Iain Cameron, ‘Targeted Sanctions and Legal Safeguards’ (2002) Report prepared for the Swedish Foreign Office, available at . Iain Cameron, ‘The European Convention on Human Rights, Due Process and United Nations Security Council Counter-​Terrorism Sanctions’ (2006) Report prepared for the Council of Europe, available at . Informal report of the Focal Point for De-​listing established pursuant to Security Council resolution 1730 (2006) covering the period from 1 January to 31 December 2015, available at . Information Rights Unit of the HM Treasury, Ref: FOI2015/​22300 of 22 October 2015 (personal communication with the UK HM Treasury). International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-​Terrorism and Human Rights (2009). Kosovo Declaration of Independence of 17 February 2008. Motion 09.3719 Submitted by Dick Marty to the Swiss Council of States (12 June 2009). Non-​paper of the Secretary General referred to in the debate on ‘Strengthening international law: rule of law and maintenance of peace and security’ (22 June 2006) UN Doc S/​PV.5474. Office of the High Commissioner for Human Rights, Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Resolution 2005/​80 of 21 April 2005. Prost, K., Ombudsperson of the Security Council Al-​Qaida Sanctions Committee, Remarks to the 49th meeting of the Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe (Strasbourg, 20 March 2015), available at . Report by Ms. Hina Jilani, Special Representative of Secretary General on human rights defenders, 27 February 2002, Doc E/​CN.4/​2002/​106. Report of Mr Paul-​Boncour, Rapporteur on Chapter VIII, Section B, United Nations Conference on International Organization, 10 June 1945, Doc 881 III/​3/​46. Report of the Grand Duchy of Luxembourg to the Committee Established Pursuant to UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373, S/​2002/​6.

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194 Bibliography UNMIK Regulation No 2006/​12 (23 March 2006)  on the Establishment of the Human Rights Advisory Panel, available at . UNMIK, Human Rights Review Panel, Annual Report 2012. Venice Commission, ‘Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms’, Opinion No 280/​2004 (11 October 2004).

D

Security Council Resolutions

UNSC Res 82 (25 June 1950) UN Doc S/​RES82. UNSC Res 83 (27 June 1950) UN Doc S/​RES/​83. UNSC Res 144 (19 July 1960) UN Doc S/​RES/​144. UNSC Res 145 (22 July 1960) UN Doc S/​RES/​145. UNSC Res 217 (12 November 1965) UN Doc S/​RES/​217. UNSC Res 232 (16 December 1966) UN Doc S/​RES/​232. UNSC Res 314 (28 February 1972) UN Doc S/​RES/​314. UNSC Res 748 (31 March 1992) UN Doc S/​RES/​748. UNSC Res 751 (24 April 1992) UN Doc S/​RES/​751. UNSC Res 792 (30 November 1992) UN Doc S/​RES/​792. UNSC Res 864 (15 September 1993) UN Doc S/​RES/​864. UNSC Res 918 (17 May 1994) UN Doc S/​RES/​918. UNSC Res 232 (16 December 1996) UN Doc S/​RES/​232. UNSC Res 1127 (28 August 1997) UN Doc S/​RES/​1127. UNSC Res 1132 (8 October 1997) UN Doc S/​RES/​1132 UNSC Res 1173 (12 June 1998) UN Doc S/​RES/​1173. UNSC Res 1176 (24 June 1998) UN Doc S/​RES/​1176. UNSC Res 1189 (13 August 1998) UN Doc S/​RES/​1189. UNSC Res 1193 (28 August 1998) UN Doc S/​RES/​1193. UNSC Res 1214 (8 December 1998) UN Doc S/​RES/​1214. UNSC Res 1267 (15 October 1999) UN Doc S/​RES/​1267. UNSC Res 1295 (18 April 2000) UN Doc S/​RES/​1295. UNSC Res 1308 (17 July 2000) UN Doc S/​RES/​1308. UNSC Res 1373 (28 September 2001) UN Doc S/​RES/​1373. UNSC Res 1390 (28 January 2002) UN Doc S/​RES/​1390. UNSC Res 1456 (20 January 2003) UN Doc S/​RES/​1456. UNSC Res 1467 (18 March 2003) UN Doc S/​RES/​1467. UNSC Res 1474 (8 April 2003) UN Doc S/​RES/​1474. UNSC Res 1483 (22 May 2003) UN Doc S/​RES/​1483. UNSC Res 1518 (24 November 2003) UN Doc S/​RES/​1518. UNSC Res 1519 (16 December 2003) UN Doc S/​RES/​1519.

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UNSC Res 1521 (22 December 2003) UN Doc S/​RES/​1521. UNSC Res 1529 (29 February 2004) UN Doc S/​RES/​1529. UNSC Res 1533 (12 March 2004) UN Doc S/​RES/​1533. UNSC Res 1535 (26 March 2004) UN Doc S/​RES/​1535. UNSC Res 1540 (28 April 2004) UN Doc S/​RES/​1540. UNSC Res 1546 (8 June 2004) UN Doc S/​RES/​1546. UNSC Res 1572 (15 November 2004) UN Doc S/​RES/​1572. UNSC Res 1591 (29 March 2005) UN Doc S/​RES/​1591. UNSC Res 1617 (29 July 2005) UN Doc S/​RES/​1617. UNSC Res 1636 (31 October 2005) UN Doc S/​RES/​1636. UNSC Res 1718 (14 October 2006) UN Doc S/​RES/​1718. UNSC Res 1730 (19 December 2006) UN Doc S/​RES/​1730. UNSC Res 1735 (22 December 2006) UN Doc S/​RES/​1735. UNSC Res 1737 (23 December 2006) UN Doc S/​RES/​1737. UNSC Res 1787 (10 December 2007) UN Doc S/​RES/​1787. UNSC Res 1822 (30 June 2008) UN Doc S/​RES/​1822. UNSC Res 1904 (17 December 2009) UN Doc S/​RES/​1904. UNSC Res 1907 (23 December 2009) UN Doc S/​RES/​1907. UNSC Res 1970 (26 February 2011) UN Doc S/​RES/​1970. UNSC Res 1988 (17 June 2011) UN Doc S/​RES/​1988. UNSC Res 2048 (18 May 2012) UN Doc S/​RES/​2048. UNSC Res 2083 (17 December 2012) UN Doc S/​RES/​2083. UNSC Res 2127 (5 December 2013) UN Doc S/​RES/​2127. UNSC Res 2140 (26 February 2014) UN Doc S/​RES/​2140. UNSC Res 2161 (17 June 2014) UN Doc S/​RES/​2161. UNSC Res 2177 (18 September 2014) UN Doc S/​RES/​2177. UNSC Res 2206 (3 March 2015) UN Doc S/​RES/​2206. UNSC Res (20 July 2015) UN Doc S/​RES/​2231. UNSC Res 2249 (20 November 2015) UN Doc S/​RES/​2249. UNSC Res 2253 (17 December 2015) UN Doc S/​RES/​2253.

E

Table of Treaties

African Union, African Charter on Human and People’s Rights, 27 June 1981, OAU Doc. CAB/​LEG/​67/​3 rev. 5, 21 I.L.M. 58 (1982). Consolidated Version of the Treaty on European Union [2008] OJ C115/​13 (TFEU). Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 221, ETS 5. International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) 12 August 1949, 75 UNTS 287.

196 Bibliography International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) 8 June 1977, 1125 UNTS 3. International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (Protocol II) 8 June 1977, 1125 UNTS 609. League of Arab States, Arab Charter on Human Rights, 15 September 1994. League of Nations, Covenant of the League of Nations, 28 April 1919 UKTS 4 (Cmd.153)/​ 1920 ATS 1/​1920 ATS 3. Organization of American States, Charter of the Organization of American States, 30 April 1948, OAS Treaty Series No. 1609 Vol. 119. Organization of the American States, American Convention on Human Rights, 22 November 1969, OAS Treaty Series No 36/​1144, UNTS 123. Organization of the Islamic Conference, Convention of the Organization of the Islamic Conference on Combating Terrorism, 1 July 1999, Annex to Resolution No 59/​26-​P. UN General Assembly, International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, 2178 UNTS 197 /​39 ILM 270 (2000) /​[2002] ATS 23. UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, UNTS 3/​[1976] ATS 5/​6 ILM 360 (1967). UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, A/​ CONF. 183/​9, 2187 UNTS 90/​37 ILM 1002 (1998)/​[2002] ATS 15. United Nations, Charter of the United Nations, 24 October 1945, UNTS XVI. United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 331.

F Table of Case Law I     The Case-​Law of International Tribunals and the Monitoring Bodies of Human Rights Treaties 1 European Court of Human Rights

Lawless v Ireland (App No 332/​57) ECHR 1 July 1961. Golder v UK (App No 4451/​70) ECHR 21 February 1975. Ireland v the United Kingdom (App No 55310/​71) ECHR 18 January 1978. Guzzardi v Italy (App No 7367/​76) ECHR 6 November 1980. Eckle v Germany (App No. 8130/​78) ECHR 15 July 1982. Foti and Others v Italy (App No 7719/​76, 7781/​77, 7913/​77) ECHR 10 December 1982. Campbell and Fell v UK (App No 7819/​77 & 7878/​77) ECHR 28 June 1984. Niemietz v Germany (App No 13710/​88) ECHR 16 December 1992. Malige v France (App No 27812/​95) ECHR 23 September 1998. Waite and Kennedy v Germany (App No 26083/​94) ECHR 18 February 1999. Rotaru v Romania (App No 28341/​95) ECHR 4 May 2000

Bibliography

197

Jėčius v Lithuania (App No 34578/​97) ECHR 31 July 2000. T.P. and K.M. v the United Kingdom (App No 28945/​95) ECHR10 May 2001. Al-​Nashif v Bulgaria (App No 50963/​99) ECHR 20 June 2002. Sidabras and Džiautas v Lithuania (App No 55480/​00 & 59330/​00) ECHR 27 July 2004. Gunnarsson v Iceland (App No 4591/​04) ECHR 20 October 2005. Behrami v France, Saramati v France, Germany and Norway (App No. 71412/​01 & 78166/​ 01) ECHR 2 May 2007. Berić and Others v Bosnia and Herzegovina (App No 36257/​04) ECHR 16 October 2007. Cudak v Lithuania, (App No 15869/​02) ECHR 23 March 2010. Al-​Jedda v The United Kingdom (App No 27021/​08) ECHR 7 July 2011. Nada v Switzerland (App No 10593/​08) ECHR 12 September 2012. Al-​Dulimi and Montana Management Inc. v Switzerland (App No 5809/​08) ECHR 26 November 2013. Hassan v the United Kingdom (App No 29750/​09) ECHR 16 September 2014. Klausecker v Germany (App No 415/​07) ECHR 6 January 2015. Al-​Dulimi and Montana Management Inc. v Switzerland (App No 5809/​08) ECHR GC 21 June 2016.

2

General Court and the Court of Justice of the European Union

Case 26/​62, Van Gend en Loos v Administratie der Belastingen [1963] E.C.R. 12. . Case 6/​64, Flaminio Costa v E.N.E.L., [1964] E.C.R. 585. Opinion 1/​91, [1991] E.C.R. 1991 I-​06079. Case C-​286/​90 Poulsen and Diva Navigation [1992] E.C.R. I-​6019. Case C-​84/​95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others. [1996] E.C.R. I-​3953. Case C-​177/​95 Ebony Maritime [1997] E.C.R. I-​1111. Case C-​162/​96 Racke GmbH & Co. v Hauptzollamt Mainz [1998] E.C.R. I-​3688. Case T-​315/​01, Kadi v Council and Commission [2005] E.C.R. II-​3649. Case T-​306/​01, Yusuf and Al Barakaat v Council and Commission [2005] E.C.R. II-​3533. Case T-​253/​02 Ayadi v Council [2006] E.C.R. II-​2139. C-​459/​03 Commission of the European Communities v Ireland [2006] E.C.R. I-​4635. Case T-​49/​04, Hassan v Council and Commission [2006] E.C.R. II-​52. Joined Cases C-​402/​05 P and C-​415/​05 P Kadi and Yusuf v Council and Commission [2008] E.C.R. I-​6351. Joined Cases T-​37/​07 and T-​323/​07 El Morabit v Council [2009], not published in the E.C.R. T-​85/​09 Kadi v Commission [2010] E.C.R II-​05177. Opinion of Advocate General Bot, European Commission and Council v Kadi, 19 March 2013.

198 Bibliography Joined Cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P European Commission and Others v Yassin Abdullah Kadi [2013] E.C.R. 00000 Opinion 2/​13 [2014] ECLI:EU:C:2014:2454. Case T-​127/​09 Abdulrahim v Council and Commission [2015].

3

International Court of Justice

4

Permanent Court of Arbitration

5

UN Human Rights Committee

6

International Criminal Tribunal for the Former Yugoslavia

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-​West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971], Advisory Opinion, ICJ Rep. Nuclear Tests (Australia v France) [1974], ICJ Rep. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1985] ICJ Rep. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v United Kingdom) and (Libya v United States of America) [1993] ICJ Rep. Application Instituting Proceedings, filed on 23 December 2008, Jurisdictional Immunities of the States (Germany v Italy) ICJ. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, International Court of Justice, [2010] Advisory Opinion, ICJ Rep.

Iron Rhine (Ijzeren Rijn) Railway (Belgium v the Netherlands) [2005] PCA Rep.

Communication No. 1472/​2006, U.N. Doc. CCPR/​C/​94/​D/​1472/​2006 (2008)

IT-​94-​AR72, Prosecutor v Dusko Tadić a/​k/​a/​“Dule”, ICTY Appeals Chamber, Interlocutory Judgment on Jurisdiction of 2 October 1995.

7 Arbitral Tribunal Constituted under Annex VII of the United Nations Convention for the Law of the Sea

Southern Bluefin Tuna case (Australia and New Zealand v Japan) [2000], Arbitral Tribunal constituted under Annex VII of the UNCLOS, Award on Jurisdiction and Admissibility.

II National Case-​Law 1 Belgium

Sayadi & Vinck v l’Etat Belge, 18 February 2005, Decision of the Tribunal de Première Instance de Bruxelles.

Bibliography

199

2 Canada

Case T-​727/​08 Abdelrazik v Minister of Foreign Affairs and Attorney General of Canada [2009] FC 580.

3 Germany

2 BvR 2735/​14 –​Bundesverfassungsgericht, Order of 15 December 2015, English Press Release No 4/​2016 of 26 January 2016, available at . BGHSt 41, 127 –​Rechtsprechung des Bundesgerichtshofs, Judgment of 21 April 1995, available at .

4 Ireland

Dubsky v Government of Ireland Judgment of 13 December 2005 [2005] IEHC 442.

5 Kosovo

Decision SCA-​09-​0042 (29 November 2012) of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, panel of EULEX judges.

6 Netherlands

Case 10/​04437 Mothers of Srebrenica et  al v State of The Netherlands and the United Nations Judgment of the Supreme Court of 13 April 2012. Case C/​09/​295241/​HA ZA 07-​2973 Judgment of The Hague District Court of 17 July 2014. Case C/​09/​456689 /​HA ZA 13-​1396 Judgment of The Hague District Court of 24 June 2015.

7 Switzerland

Decision BGE 133 II 450, 1A 45/​2007 Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment of 14 November 2007, Decisions BGE 2A.783/​2006; BGE 2A.784/​2006; BGE 2A.785/​2006 of the Swiss Federal Tribunal of 23 January 2008.

8

United Kingdom

Liversidge v Anderson [1942] AC 206 (HL 1941) Arab Monetary Fund v Hashim (No. 3) [1990] 2 ALL ER 769 HM Treasury v Ahmed [2010] UKSC 5. J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418. R (Al-​Jedda) v Secretary of State for Defence [2005] EWHC 1809 (Admin). R (Al-​Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, [2007] QB 621.

200 Bibliography R (Al-​Jedda) v Secretary of State for Defence [2007] UKHL 58 (2008). R (Ahmed) v Her Majesty’s Treasury [2010] UKSC 2 R v Secretary of State for Home Department: Ex parte Simms [2000] 2 AC 115. Secretary of State for the Home Department v Al-​Jedda [2013] UKSC 62. Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3.

9 United States

Secretary of State for the Home Department v Rehman [2001] 3 WLR 877. Eugene Dennis, et al. v United States, 341 US 494 (1951). Clarence Brandenburg v State of Ohio, 395 US 444 (1969). Hamdi v Rumsfeld, 542 U.S. 520 [2004]. Boumediene v Bush, 128 S. Ct. 2270 [2008]. Mohammed v Secretary of State for Defence Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843.

Index 2005 World Summit Outcome 21 Ahmed 28–​9, 81, 98–​9, 100–​5, 133–​4, 143–​144, 174, 177–​178 Al-Dulimi 82, 88–​9, 98–​9, 122–​34, 156–​7, 170, 175, 178 Al-Jedda 81–​3, 106–​112, 115, 128, 121, 131, 149, 160–​5, 171, 175, 178 Al Qaida 13–​7, 20–​3, 84–​8, 100, 105, 123, 140–​141, 144, 148, 151, 155–​6, 159, 173 Al-​Qaida and Taliban Order 2006 100–​5 Arbitrariness 24, 50–​3, 80, 110–​7, 132–​4, 150, 157, 160, 168, 171–​7 Arms embargoes 14 Asset freeze 146, 174 Ayadi 86–​7, 141 Basque region/​e ta 79 Behrami and Saramati 106, 163–​4 Bin Laden, Usama 16–​17, 87, 159 Blacklisting 1, 13, 15–​9, 21, 25–​7, 30–​5, 79–​80, 97, 158, 173 Bonn-​Berlin Process 40 Bosphorus 33, 66, 111, 122–​3, 132, 170 Cold War 10, 44 Delisting 20–​5, 29, 31, 38, 41, 52, 80, 88, 133, 140, 150–​1, 157, 171 Detachment 81, 90–​9 Droit-​de-​l’hommisme 135, 139 Due process  Ensuring 159 Guarantees  Lack of 24, 38 Reform 40–​1, 150–​2, 154–​5, 169, 175 Dworkin, Ronald 67, 93 EU 65–​6 Autonomy 67 Character of 73–​5 Constitutional project 69–​70 Treaty of the European Union 65, 93, 85 European Convention on Human Rights  Article 5 48–​9, 83, 106, 109, 112–​3, 162, 171 Article 6 32–​3, 87, 124, 126, 129, 131–​2

Article 8 33–​5 Article 13 36–​37 Article 14 34 Protocol No 1, Article 1 35 Extradition 13–​4 Financial Guantanamos 1, 140–​1 Financial sanctions 13, 20, 32, 35, 40 Harmonisation 81, 106–​122 Human Rights  Effects of judicial engagement 171 Free speech rights 138 Freedom of assembly 138 Genuine protection 139–​40, 145 Limits of judicial protection 176–​177 Publication rights 138 Resistance of national authorities 149 Role of international politics 148 The right to a fair trial 30–​2 The right to a remedy 36 The right to property 35 Hussein, Saddam 29, 35, 88 ilc Report of Fragmentation 83, 114, 161 Internal armed conflict 10 International Criminal Court 23 International Criminal Tribunal for the former Yugoslavia 23, 90 International stability 168 Iraq 15, 29–​30, 35, 46–​7, 82–​3, 88, 107–​110, 123–​5, 127 Development Fund for Iraq 35 isis 14–​15, 22–​5, 39, 52, 173 Judicial activism 171 Judicial dialogue 168 Judicial restraint 170 Jus cogens 86–​89, 92, 113–​4, 129–​30 Kadi 81–​2, 84–​5, 91–​111, 133–​4, 140–​1, 150–​7, 167–​71, 174, 178 Kant, Immanuel 54, 94 Kelsen 56, 58, 61, 65 Khmer Rouge/​Cambodia 12

202 Index Kosovo 46–​7 eulex 63–​4 nato Led Kosovo Force 163 The Special Representative of the Secretary General in Kosovo 51 unmik 44, 46–​51 League of Nations 55 Legal Pluralism 115 Libyan Islamic Fighting Group 144 Lockerbie case 58 Magna Carta 137 Nada 33–​4, 81–​2, 87–​9, 119–​23, 128, 133–​34, 145, 157, 169, 175, 177–​8 National Resistance through constitutional dualism 81, 99–​105 Nicaragua case 165 Proportionality 32–​4, 131 Sayadi and Vinck 34, 146–​8, 157, 169, 171, 177 Schuman Declaration 69, 71 September 11 terrorist attacks 11, 13, 38, 136, 140, 145, 159 Solange 95, 166 Southern Rhodesia 12 Subordination 80–​90 Systematic integration 155–​7, 131 Taliban 13–​7, 20, 23, 58, 100, 105, 148 Terrorism  Financing of 26 Supporting 13 Threat to the peace 10–​11 Threats to international peace and security 8–​10 Travel bans 13–​15, 33, 84, 87, 146, 173–​4 Ultra vires 99, 101, 103–​7, 174 UN Charter  Article 1 8, 121 Article 2.4 61, 64, 165 Article 24 58, 102 Article 25 56, 58, 83, 102, 109, 166 Article 39 8, 10 Article 41 9

Article 42 9 Article 43 108 Articles 52 64 Article 53 64 Article 203 83 Article 103 77–​82, 102, 105–​113, 123, 129–​31, 145–​146, 160, 166–​8, 174 Chapter vii 20, 26, 45, 56–​8, 173–​4 United Nations  1267 committee 14, 16–​9, 21–​2, 38, 43, 96, 140, 145, 147–​8, 150, 158, 173, 176–​7 Force of the Charter 79 General Advocate Bot 94, 157–​8, 171 Office of the Independent Designations Adjudicator 42–​44 Security Council Due Process Reform 169, 175  The Copenhagen Process on the Handling of Detainees in International Military Operations 45, 50, 161 The Final Report of the Stockholm Process 40 The Focal Point 20, 22, 25–​6, 173 The Special Rapporteur on Counter Terrorism and Human Rights 31, 38, 41–​43, 151, 154, 165–​6, 173, 178 UN Analytical Support and Sanctions Monitoring Team 14 UN Assistance Mission for Iraq 110, 112 UN Commission on Human Rights 42, 159 UN Deputy Ambassador 38 UN Group of Like Minded States 40–​1, 154, 173, 178 UN High Commissioner for Human Rights 35 UN High-​Level Panel no Threats, Challenges and Change 11 UN Human Rights Committee 34 UN Office of Legal Counsel 21 UN Office of the Ombudsperson 20–​5, 26, 44, 94–​6, 105, 140–​1, 150–​2, 154–​7, 159, 170, 173 UN Secretary General on Human Rights Defenders 159 UN Security Council International Missions 46  UN Security Council Legal Limits 58–​9 

203

Index UN Working Group on Arbitrary Detentions 50 Unity of international law 168

Wiki leaks 38, 147, 151, 176 World Summit Outcome of 2005, General Assembly 38

Vienna Convention 70, 115–​8, 131

Youssef 82, 85, 144, 156, 159, 158, 171