Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

judgment, but must beforehand seek a preliminary ruling of the ECJ. Thus, national judges have the authority – and are even obligated – to examine the validity of a regulatory act of the Union, but they cannot set aside such an act in an autonomous fashion.111 If no preliminary ruling is sought, persons alleging a violation of their rights under the ECHR may eventually, after having exhausted the available domestic remedies, take their grievances to the ECtHR by an application against the state con-

cerned, emphasising the existing links to the domestic legal order of that state.112

4.2 The UN

As far as the law of the UN is concerned, no such procedure exists. Here, again, the lack of foresight by the drafters is amply explained by their assumption that the General Assembly and the Security Council would entertain legal relationships only at the high level of inter-state relationships. It has already been observed that this idyllic picture has proven not to be in conformity with realities, inasmuch as the Security Council has begun a practice according to which specific individual human beings, identified by their names and addresses, are targeted in a quasi-direct fashion, although the execution on the ground of such measures is left to domestic authorities. This came as a surprise to most commentators, who took note of the new development, especially through the Kadi case that had to be adjudicated by the ECJ – and yet has a strong virtual link with the ECtHR.

In recent years, the Security Council has intensified its practice of ‘targeted’ sanctions out of the realisation that comprehensive (‘dumb’) sanctions against a country mostly hit the ‘wrong’ people, while the power wielders, those to be blamed for endangering international peace and security, could easily avoid any negative consequences for themselves.113 The sanctions imposed on Iraq after the aggression against

111 Case 314/85, Foto Frost v. Hauptzollamt Lübeck-Ost [1987] ECR 4199, paras. 15–20; Case C-119/05, Ministero dell’Industria, del Commercio e dell’Artigianato v. Lucchini SpA [2007] ECR I-6199, para. 53; Case C-188 and 189/10, Melki and Abdeli [2010] ECR I-5667, para. 54.

112For an extensive study of the openings generated by the jurisprudence of the ECtHR, see Janik, ‘Die EMRK’.

113Consideration clearly exposed by Tridimas and Gutierrez-Fons, ‘EU Law, International Law, and Economic Sanctions against Terrorism’, 672. A general overview of targeted sanctions is given by A. Ciampi, ‘Security Council Targeted Sanctions and Human

the european court of human rights and the un 369

Kuwait were characterised by numerous critics as conducive to the death of thousands of children.114 When, instead, only those responsible for the denounced wrongs are interfered with, innocent victims will generally be spared, although it may happen that persons are included in the circle of addressees who were not involved in any kind of wrongdoing. On the other hand, sanctions against criminal insurgent movements were deemed to deprive such movements of any legitimacy and to cut off their connections with foreign countries.

4.2.1 Travel bans

Two instruments have been developed by the Security Council that correspond to the philosophy of targeting exclusively the responsible perpetrators. On the one hand, travel bans have been issued.115 Such bans were issued, for example, against members of the white racist regime in Southern Rhodesia (Zimbabwe),116 members of the UNITA

rebel movement in Angola,117 members of the Iraqi Government on the eve of the invasion by the US–UK coalition,118 and members of the

Rights’ in B. Fassbender (ed.), Securing Human Rights? Achievements and Challenges of the UN Security Council (Oxford University Press, 2011) 98–140 (hereinafter Ciampi, ‘Security Council Targeted Sanctions’), and E. de Wet, ‘Human Rights Considerations and the Enforcement of Targeted Sanctions in Europe: The Emergence of Core Standards of Judicial Protection’, in ibid., 141–71 (hereinafter de Wet, ‘Human Rights Considerations’).

114See, e.g., A. Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’, American Journal of International Law 95 (2001) 851–72, at 852 (with further references); C. Tomuschat,

Human Rights Between Idealism and Realism, 2nd edn (Oxford University Press, 2008) 101; de Wet, The Chapter VII, 227–33.

115For a comprehensive study, including a few case studies, see E. Cosgrove, ‘Examining Targeted Sanctions. Are Travel Bans Effective?’, in P. Wallensteen and C. Staibano (eds.), International Sanctions: Between Words and Wars in the Global System (London and New York: Routledge, 2005) 207–28. Rich empirical data is provided by R.W. Conroy, ‘The UN Experience with Travel Sanctions: Selected Cases and Conclusions’, in D. Cortright and G.A. Lopez (eds.), Smart Sanctions: Targeting Economic Statecraft

(Lanham: Rowman & Littlefield, 2002) 145–69.

116UN SC, Resolution 253 (1968) concerning Southern Rhodesia (Zimbabwe), 29 May 1968, para. 5(b).

117UN SC, Resolution 1127 (1997) concerning Angola, 28 August 1997, UN Doc. S/RES/ 1127, para. 4. This ban seems to have been particularly porous, see Cosgrove, ‘Examining Targeted Sanctions’, 152–6.

118UN SC, Resolution 1137 (1997) concerning Iraq, 12 November 1997, UN Doc. S/RES/ 1137, para. 4.

Taliban in Afghanistan,119 to exert pressure on account of the massive violations of human rights in the Sudan,120 to counteract similar efforts by Iran,121 with a view to stifling North Korea’s attempts to produce nuclear weapons,122 sanctioning persons fomenting civil strife in Côte d’Ivoire,123 or recently against the leadership of Libya that fought a merciless war against its own people.124 According to a standard formulation in these resolutions, member states are required to prevent ‘entry into or transit through their territories’.125 Technically, the procedure, which also applies in respect of freezing orders, follows a consistent pattern.126 On the basis of information received mainly from intelligence services, a Sanctions Committee of the Security Council, on which all members of the Security Council are represented, identifies the persons subject to the ban or to be hit by a freezing order. Their names are included in a Consolidated List that is communicated to all states.127 Governments then have to enforce the determinations which, since adoption under Chapter VII of the Charter, are binding on all members of the world organisation.

It can easily be imagined that someone covered by a ban finds himself/ herself on the soil of a state party to the ECHR, being stopped there or

119UN SC, Resolutions 1333 (2000) concerning Afghanistan, 19 December 2000, UN Doc. S/RES/1333, para 14; 1390 (2002) concerning Afghanistan, 28 January 2002, UN Doc. S/ RES/1390, para. 2(b).

120UN SC, Resolution 1591 (2005) concerning the Sudan, 29 March 2005, UN Doc. S/RES/ 1591, para. 3(f ).

121UN SC, Resolutions 1737 (2006) concerning Iran, 25 December 2005, UN Doc. S/RES/ 1737, para. 10; 1747 (2007), 24 March 2007, UN Doc. S/RES/1747, para. 2; 1803 (2008), UN Doc. S/RES/1803, para. 5.

122UN SC, Resolution 1718 (2006) concerning the Democratic People’s Republic of Korea, 14 October 2006, UN Doc. S/RES/1718, para. 8(e).

123UN SC Resolution 1572 (2004) concerning Côte d’Ivoire, 15 November 2004, UN Doc. S/RES/1572, para. 9.

124UN SC, Resolutions 1970 (2011) concerning Libya, 26 February 2011, UN Doc. S/RES/ 1970, paras. 15, 16; 1973 (2011), 17 March 2011, UN Doc. S/RES/1973, para. 22. The earlier embargo against Libya, imposed by UN SC Resolution 748 (1992), 31 March 1992, UN Doc. S/RES/748, prohibited any kind of air traffic with the country (para. 4).

125For a full list, see the official website of the UN Security Council Sanctions Committees, www.un.org/sc/committees/.

126See, e.g., the Guidelines of the 1267 Sanctions Committee, 30 November 2011, www.un. org/sc/committees/1267/pdf/1267_guidelines.pdf. By virtue of UN SC Resolutions 1988 (2011) and 1989 (2011), 17 June 2011, UN Doc. S/RES/1988 and UN Doc. S/RES/1989, the mandate of the 1267 Sanctions Committee was confined to Al-Qaida.

127For the latest list, see www.un.org/sc/committees/1267/AQList.htm (updated 13 April 2012).

the european court of human rights and the un 371

being arrested for the purpose of his/her expulsion to the relevant home country. Hitherto there seems to be only one case which has come before the competent courts. In Abdelrazik v. The Minister of Foreign Affairs, a Federal Court of Canada found that Mr. Abdelrazik’s right under the Canadian Charter of Rights and Freedoms to enter Canada, his country of citizenship which had been denied to him because he was listed and purchasing an airline ticket on his behalf, was precluded by a ban on transferring assets to a listed entity, had been breached. The judge held that the remedy to which Mr. Abdelrazik was entitled required the Canadian government to take immediate action so that he be returned to Canada.128 It has also been observed by UK judges that through the effect of a freezing order, a person may be cut off from any opportunity to travel, making him or her effectively a ‘prisoner of the state’.129 The insignificant number of court cases may simply be due to the fact that in matters of immigration all states are endowed with extensive discretionary powers, since decisions on who is admitted to the national territory pertain to the core of national sovereignty. Generally, as opposed to nationals, aliens enjoy no right of admission.

Travel bans, although based on orders issued by the Security Council, are truly domestic measures of the acting state concerned, and can hence be challenged before the competent courts like any other measures adversely affecting individual rights. By contrast, as to the merits, the defence would be restricted. Not only are governments fairly free to take decisions as they see fit on political grounds, additionally, since the Security Council also enjoys broad discretion as to the assessment whether a given situation falls within the scope of Chapter VII of the

128Abdelrazik v. The Minister of Foreign Affairs, Decision, June 2009, 2009 FC 580, referred to in the Eleventh Report of the Analytical Support and Sanctions Implementation Monitoring Team established pursuant to Security Council resolution 1526 (2004) and extended by Resolution 1904 (2009) concerning Al-Qaida and the Taliban and associated individuals and entities, UN Doc. S/2011/245, 13 April 2011, para. 62; see also comment by A. Tzanakopoulos, ‘United Nations in Domestic Courts: From Interpretation to Defiance in Abdelrazik v. Canada’, Journal of International Criminal Justice 8 (2010) 249–67.

129Sedley LJ, UK Court of Appeal, A and others v. HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25, para. 125. In Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and Others (FC) (Appellants) Her Majesty’s Treasury (Respondent) v. Mohammed al-Ghabra (FC) (Appellant) R (on the application of Hani El Sayed Sabaei Youssef ) (Respondent) v. Her Majesty’s Treasury (Appellant), Judgment, 27 January 2010, [2010] UKSC 2, this view was shared at the level of the Supreme Court by Lord Hope, joined by Lord Walker and Lady Hale, para. 60: ‘the effect … can be devastating’.

Charter, no complainant could persuasively argue that the Security Council has misused its discretion. Yet, the question is whether he or she may contend that the inclusion in the list established by the Security Council is due to a mistake, and lastly, a determination is required as to the fairness of a procedure that does not provide for any hearing before decisions are taken. In the last instance, such cases, as long as the implementation of travel bans is entrusted to national rule-setting,130 could arrive at the Court after the available national remedies have been exhausted.131 The problem raised by the fairness of the proceedings will be discussed in the following section in relation to the judgments delivered by the ECJ on the lawfulness of freezing orders.

4.2.2Freezing orders

4.2.2.1Freezing orders implemented by European Union

regulations The second type of sanctions, namely, the freezing of assets, has not (yet) come before the ECtHR,132 but has been handled by the ECJ in a number of key decisions, due to the fact that the freezing orders issued by the Security Council had to be implemented inside the European Union by Community (now Union) regulations that, like the

resolutions of the Security Council, specifically identified their addressees and could therefore be challenged before the European CFI.133 Under the current system, the relevant powers were/are held by the European Community/Union. Whereas originally, when members of a specific ruling elite were targeted, it was relatively easy to determine who belonged to that group, the borderlines became difficult to trace as soon

as the fight against terrorism through the freezing of assets was elevated to the international agenda.134 An elaborate system, directed primarily

against the Taliban operating in Afghanistan, was introduced by

130Obviously, individual decisions denying someone entry into the territory or preventing him/her from leaving a country will always be taken by national authorities, because the EU lacks immigration services of its own.

131According to A. Frank, ‘UNO-Sanktionen gegen terrorismus und Europäische Menschenrechtskonvention (EMRK)’, in S. Breitenmoser et al., Human Rights, Democracy and the Rule of Law: Liber amicorum Luzius Wildhaber (Zürich and Baden-Baden: Dike & Nomos, 2007) 237–60, at 242 (hereinafter Frank, ‘UNO-Sanktionen gegen Terrorismus’), unlimited travel bans are hardly compatible with the ECHR.

132Applications may be pending, but the ECtHR has not yet made any determination on the issue.

133Pursuant to art. 230(4) EC, the admissibility of an action for annulment depended on the applicant being individually affected (‘individual concern’).

134See Cameron, ‘Protecting Legal Rights’, at 190.

the european court of human rights and the un 373

Security Council Resolution 1267 of 15 October 1999135 and was progressively intensified to cover additionally terrorist activities carried out by Al-Qaida.136 Any territorial linkage was hence abandoned.137

After the initial stage, the system was modified to take care of requirements of the rule of law and also of the humanitarian needs of those designated as authors of terrorist acts or sponsors of terrorism. First of all, steps were taken to ensure the basic vital needs of the targeted persons, lifting the ban on that part of the frozen funds necessary for daily survival.138 Additionally, the procedure was ameliorated. States seeking listing of a suspect person were required to submit detailed information. Permanent review of the Consolidated List was made obligatory. Resolution 1904 (2009) has provided that targeted individuals themselves are entitled to address the newly established institution of the Ombudsperson with requests for delisting.139 A careful perusal of the guidelines of the Sanctions Committee under Resolution 1267,140 which were recently again amended by Resolution 1989 (2011)141 in order to take care of legitimate complaints, reveals that a tremendous effort has

135 See para. 4(b): ‘Decides further that … all States shall (b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by- case basis on the grounds of humanitarian need.’

136UN SC, Resolution 1333 (2000) concerning Afghanistan, 19 December 2000, UN Doc. S/RES/1333, para 8(c); UN SC, Resolution 1390 (2002) concerning Afghanistan, 28 January 2002, UN Doc. S/RES/1390, para. 2(a).

137See J.A. Almquist, ‘A Human Rights Critique of European Judicial Review: CounterTerrorism Sanctions’, The International and Comparative Law Quarterly 57 (2008) 303– 31, at 306 (hereinafter Almquist, ‘A Human Rights Critique’).

138UN SC, Resolution 1452 (2002) concerning terrorism, 20 December 2012, UN Doc. S/RES/1452, para. 1(b).

139UN SC, Resolution 1904 concerning terrorism, 17 December 2009, UN Doc. S/RES/ 1904, paras. 20, 21.

140Security Council Committee Established Pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, Guidelines of the Committee for the conduct of its work, 30 November 2011, www.un.org/sc/committees/ 1267/pdf/1267_guidelines.pdf (hereinafter ‘Guidelines’).

141In particular, more information is now made accessible. Individuals seeking delisting are encouraged to submit a petition to the Ombudsperson, UN SC Resolution 1989 concerning threats to international peace and security caused by terrorist acts, para. 26. The Security Council admonishes its Sanctions Committee to ensure ‘fair and clear’

been made to organise the system in such a fashion that it meets the requirements of equity and fairness to the greatest extent. Perhaps the most serious weakness of the system is that any delisting eventually requires the full consent of all 15 members of the Security Council.142 However, Resolution 1989 (2011) gives considerable weight to recommendations of the Ombudsperson to delist a person or entity and also to similar recommendations of a state on whose request a person was listed (paras. 21, 27). Such recommendations can be rejected by the Sanctions Committee only by consensus, and a tight time-calendar eliminates any room for manipulation by postponement. If no consensus on delisting emerges, the Security Council itself, where the veto remains unaffected, will have to make the final determination. This means that, although once a name has been placed on the Consolidated List it will remain difficult to get it removed, the recent reform has profoundly modified the essential features of the delisting procedure.143 In any event, procedural safeguards have been created that prevent the responsible Sanctions Committee from becoming a simple rubber-stamping machine obediently fulfilling the wishes of certain great powers.

To date, the ECJ has not been persuaded by these manifold changes designed to give more room to human rights.144 The first judgments on the issue were delivered by the CFI (now General Court), which had been resorted to by several applicants who challenged the Community regulations transposing the relevant resolution of the Security Council into Community law.145 The applicants contended that the regulations were invalid, since they infringed basic principles of the Community’s legal order, in particular, as far as procedural fairness was concerned. The CFI

procedures, ibid., para. 42. This is a response to a call by the World Summit Outcome, UN GA Resolution 60/1, 16 September 2005, UN Doc. A/RES/60/1, paras. 108, 109.

142‘Guidelines’, Section 4(a).

143Thus, the criticism voiced by G. Abi-Saab, ‘The Security Council Legibus Solutus? On the Legislative Forays of the Council’, in Boisson de Chazournes and Kohen (eds.), Liber Amicorum Vera Gowlland-Debbas, 23–44, at 40 (‘sheer arbitrariness’); J.A. Frowein, ‘The UN Anti-Terrorism Administration and the Rule of Law’, in P.M. Dupuy et al. (eds.),

Common Values in International Law, Essays in Honour of Christian Tomuschat (Kehl: N.P. Engel, 2006) 785–95, at 790–3; and D.L. Tehindrazanarivelo, ‘Targeted Sanctions and Obligations of States on Listing and De-listing Procedures’, in Boisson de Chazournes and Kohen (eds.), Liber Amicorum Vera Gowlland-Debbas 127–71, has lost much of its weight.

144However, the relevant judgments have not been able to take into account the latest procedural improvements of June/November 2011.

145Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649; T-Case 306/01,

Yusuf and Al Barakaat v. Council and Commission [2005] ECR II-3353.

the european court of human rights and the un 375

noted that to review the lawfulness of the regulations amounted to an indirect review of the Security Council’s resolutions, since the Community institutions had done nothing other than, word for word, translate those resolutions into Community law. To undertake such kind of control would lead to a violation of article 103 of the UN Charter, which provides that the Charter takes precedence over any other treaty, and had therefore to be excluded; however, the UN was embedded in the framework of the international legal order where rules of jus cogens were the central pillars, to be respected also by the Security Council. After examining the objections of the applicants one by one, the Court of First Instance (CFI) came to the conclusion that none of the legal principles invoked by them partook of the nature of jus cogens.

The decision triggered a considerable number of comments.146 The positive aspect was that the CFI proceeded from a concept of unity of international law, graduated hierarchically, where European Community law found its place a step lower than the UN system, which on its part was subordinated to the rules of jus cogens.147 The negative aspect was the scarcity of jus cogens rules, so that in cases of errors or mistakes of lesser gravity, no remedy would be available.148

The judgment of the CFI was appealed. In his Opinion submitted to the Court of Justice of the European Union (CJEU), Advocate-General Poiares Maduro made a fervent plea in favour of the integrity of the legal

146See, inter alia, Almquist, ‘A Human Rights Critique’, 319–26; H.P. Aust and N. Naske, ‘Rechtsschutz gegen den UN-Sicherheitsrat durch Europäische Gerichte?’, Austrian Journal of Public and International Law 61 (2006) 587–623; V. Bore Eveno, ‘Le contrôle

‘Rechtskontrolle des UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte’,

Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 66 (2006) 41–71; G. Thallinger, ‘Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council’, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 67 (2007) 1015–40, at 1032–4 (hereinafter Thallinger, ‘Sense and Sensibility’); Tridimas and Gutierrez-Fons, ‘EU Law, International Law, and Economic Sanctions against Terrorism’, 679–702.

147This was underlined by C. Tomuschat, ‘Case Law Comment’, Common Market Law Review 43 (2006) 537–51.

148However, in Ayadi, Case T-253/02, Judgment (Second Chamber), 12 July 2006, wishing to compensate for the less than satisfying outcome for the applicant in Kadi, the CFI stated that national governments were placed under a legal obligation to provide diplomatic assistance to their nationals in support of requests for delisting (paras. 145–9).

order under the treaties for European integration.149 Even decisions of the Security Council of the UN must conform to the tenets of that system; accordingly, there was no obstacle to reviewing Community instruments that were a genuine textual reflection of Security Council resolutions. The applicable yardstick was the European legal order as a whole, not only the core substance of jus cogens. In actual terms, the Advocate-General considered that the denial of information, as well as the denial of judicial remedies, were incurable defects of the challenged regulations. The Advocate-General brushed aside the argument of a violation of article 103 UN Charter as being a matter of international responsibility that could afterwards be settled in some way.150

The ECJ itself followed its Advocate-General to the greatest conceivable extent.151 It emphasised the autonomy of the Community legal order and observed that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty.152

Thus, for the ECJ, as for its Advocate-General, article 103 of the UN Charter – which it did not even mention – was irrelevant. Proceeding from that premise, on matters of substance it also shared the view of its Advocate-General that the lack of information,153 as well as the nonavailability of judicial remedies,154 could not be reconciled with the fundamental principles of the Community legal order. Therefore, the contested regulation was annulled.155

149 Case C-402 and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-6351, Opinion of Advocate-General Poiares Maduro (16 January 2008).

150Ibid., para. 39.

151Ibid., Comments by P.J. Cardwell, D. French and N. White, International and Comparative Law Quarterly 58 (2009) 233–40 (hereinafter Cardwell et al., ‘Comments’).

152Opinion of Advocate-General Poiares Madura, para. 285.

155But only in respect of Kadi and Al Barakaat, supra note 149. At the same time, the Court ordered the effects of Regulation (EC) No. 881/2002 to be maintained, as far as the two applicants were concerned, for a period that should not exceed three months, running from the date of delivery of the judgment. See criticism by A. Bradford and E.A. Posner, ‘Universal Exceptionalism in International Law’, Harvard International Law Journal 52 (2011) 1–54, at 16; G. de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’, Harvard International Law Journal 51 (2010) 1–49, at 4;