The united nations, the european union, and the king of sweden: Economic sanctions and individual rights in a plural world order

Common Market Law Review

Volumn 46, Issue 1, 2009, Pages 13-72

  Halberstam, Daniel ^a   Stein, Eric ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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EID: 60349128513     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (404)

1. The literature documenting this fact is voluminous. Despite some ebb and flow during the post-Cold War era, the general expansion of activity certainly as compared to the period before 1987 is enormous. See e.g. Mingst and Karns, The United Nations in the Post-Cold War Era, 2nd ed. (Westview, 2000), p. 29.
2. Global Policy Forum, Size of UN Peacekeeping Forces: 1947-2007, www.globalpolicy.org/security/peacekpg/data/pcekprs.htm (last visited 25 Aug. 2008).
3. Global Policy Forum, Peacekeeping Operations Expenditures: 1947-2005, www.global-policy.org/finance/tables/pko/expend.htm (last visited 25 Aug. 2008).
4. Global Policy Forum, Changing Patterns in the Use of the Veto in the Security Council, www.globalpolicy.org/security/data/vetotab.htm (last visited 25 Aug. 2008). The number of vetoes must be understood against the backdrop of the greater frequency of abstentions and the greater use of informal decision-making at the UN. Nonetheless, the drop in vetoes is overall significant.
5. See e.g. Ratner, "Foreign Occupation and International Territorial Administration: The Challenges of Convergence", 16 EJIL (2005), 695, at 696-97.
6. The Security Council may issue binding decisions under UN Charter Chapters VII, VIII and certain decisions under Chapter VI. For a recent analysis of the Security Council powers particularly in the anti-terrorist area, see Denis, Le Pouvoir Normatif Du Conseil De Sécurité Des Nations Unies: Portée Et Limites (Bruylant, 2004), esp. pp. 133 et seq.;
7. Hilaire, United Nations Law and the Security Council (Ashgate, 2005), pp. 32-33 and 280-285.
8. For a detailed treatment, see Farrall, United Nations Sanctions and the Rule of Law (Cambridge, 2007);
9. Herbst, Rechtskontrolle des UN-Sicherheitsrates (Peter Lang, Frankfurt, 1999).
10. Art. 103 UN Charter provides: "In 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."
11. Reisman and Stevick, "The Applicability of International Law Standards to United Nations Economic Sanctions Programmes," 9 EJIL (1998), 126;
12. see also Damrosch, "The Civilian Impact of Economic Sanctions" in Damrosch (Ed.), Enforcing Restraint: Collective Interventions in Internal Conflicts (Council on Foreign Relations, 1993), p. 274.
13. For a more positive view, see Manusama, The United Nations Security Council in the Post-Cold War Era - Applying the Principle of Legality (Martinus Nijhoff, Leiden/Boston, 2006), pp. 115-116, 307.
14. For a strong criticism of the Security Council and EU practice and for suggestions of "minimum procedural standards under the rule of law," see Eur. Pari. Ass., Res. 1597, United Nations Security Council and European Union Blacklists (2008), assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ ta08/ERES1597.htm (last visited 29 Oct. 2008).
15. Some scholars have suggested that the phenomenon of international terrorism does not fit the traditional concept of threat to, or breach of, peace and that it does not provide proper legal basis for Security Council action under Chapter VII. This is a questionable argument in view of the broad discretion of the Council on this political issue. In any event, this power appears to have been generally accepted. See Bianchi, "Assessing the Effectiveness of the UN Security Council's Antiterrorist Measures: The Quest for Legitimacy and Cohesion," 17 EJIL (2006), 881, 886-888. With regard particularly to Resolution 1373 (2000), some authors suggest that by dealing with international terrorism in general (not a specific instance), the Council engaged in legislation and in effect imposed obligations of the Convention against Terrorism on non-parties to that Treaty.
16. See generally Denis, op. cit. supra note 6, at 148-150;
17. see also Ohler, "Die Verhängung von 'smart sanctions' durch den UN-Sicherheitsrat," (2006) EuR, 848 at 854-855;
18. Angelet, "International Law Limits to the Security Council" in Gowlland-Debbas, United Nations Sanctions and International Law (Kluwer Law International, 2001), pp. 71-82;
19. Mégret and Hoffman, "The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities", 25 HRQ (2003), 314-42.
20. See Alvarez, "Judging the Security Council", 90 AJIL (1996), 1.
21. See Cannizzaro, "The Machiavellian Moment? The UN Security Council and the Role of Law," 3 Int'l Org. L. Rev. (2006), 189, at 195;
22. Bowett, "The Impact of Security Council Decisions on Dispute Settlement Procedures", 5 EJIL (1994), 89, at 93;
23. Döhring, "Unlawful Resolutions of the Security Council and their Legal Consequences" in Frowein and Wolfrum, 1 Max Planck Yearbook of United Nations Law (Kluwer Law International, 1997), pp. 91, 108 passim. Many, however, view the extent to which international law limits the Security Council when it acts under Chapter VII as "a most highly controversial question."
24. See Bartelt and Zeitler, '"Intelligente Sanktionen' zur Terrorismusbekämpfung in der EU", 14 EurZW (2003), 712, at 716.
25. Also, when diffusing by peaceful means situations that might lead to breaches of the peace, these same "Purposes" demand that the organization act "in conformity with the principles of justice and international law." Art. 1, UN Charter.
26. The principles further include that Members shall settle their international disputes peacefully in such a manner that "international peace and security, and justice, are not endangered," and that Members shall refrain from the threat and use of force against the territorial integrity or political independence of other States "or in any other manner inconsistent with the Purposes of the United Nations." U.N. Charter Art. 2. The demand of peaceful settlement of disputes and the prohibition against interference in domestic affairs does not prejudice Security Council enforcement measures.
27. See e.g. Randelzhofer, "Article 2" in Simma (Ed.), 1 The Charter of the United Nations, 2nd ed., (2002), pp. 64-68;
28. Müller and Kolb, "Article 2(2)" in Simma, ibid., at pp. 91-100; Delbrück, "Article 24" in Simma, ibid. at pp. 442-452;
29. see also Conditions of Admission of a State to the United Nations, Advisory Opinion, [1948] ICJ Rep. 57.
30. In this context, see also Art. 55c of the Charter providing that the UN should promote universal respect and observance of human rights and fundamental freedoms for all.
31. See generally Angelet, op. cit. supra note 9.
32. Art. 56, UN Charter.
33. Art. 25 follows up with the corresponding duty of the Member States "to accept and carry out the decisions of the Security Council in accordance with the present Charter." Art. 25, UN Charter (emphasis added). The wording of Art. 25 is rather deficient and its meaning has been the subject of considerable controversy. The italicized clause may indicate a conditional obligation on the part of States to carry out only those Council decisions that respect substantive and procedural provisions of the Charter. The italicized clause may also, however, be read as related only to the States' obligation to carry out the decisions of the Security Council.
34. See Delbrück, op. cit. supra note 13, at 455.
35. Wolfrum, "Article 1" in Simma, op. cit. supra note 13, at p. 43 (noting that the general requirement to consider international law and justice was not applied to the maintenance of international peace and security generally, so as to allow the UN more freedom in the core function of preliminary measures).
36. Frowein and Krisch, "Introduction to Chapter VII" in Simma, op. cit. supra note 13, at p. 710.
37. A "curiously eerie debate" has arisen based on the proposed distinction between the "promot[ion] and encourage[ement]" of respect for human rights entrusted to the United Nations, and the "protection" of these rights which allegedly remains the responsibility of the Members. See Mégret and Hoffman, op. cit. supra note 9, 333, at 318-21
38. (quoting Georg Schwarzenberger, Power Politics: A Study of World Society, 3rd ed. (London, 1964), p. 462). Especially in light of the recent dramatic expansion of UN powers as well as the weakening of State sovereignty, we have serious doubts about such a distinction as it applies to the constraints on actions of the UN itself.
39. See id. at 320-326.
40. One scholar notes: "One could argue that the Security Council is, in principle, bound to respect all human rights contained in the Universal Bill of Human Rights. This includes the United Nations Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights ... and the International Covenant on Economic Social and Cultural Rights. Although the UN is not a party to these Treaties by means of ratification, they represent the elaboration upon the Charter's original vision of human rights found in its purposes (Art. 1(3) and Arts. 55 and 56.)", de Wet, "Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime", 14 LJIL (2001), 284 and note 49
41. (citing Normand, Gasser and Fishman). The International Court of Justice has held that racial discrimination is "a flagrant violation of the purposes and principles of the Charter." Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971ICJ Rep. 57, para 131.
42. The ICJ also held that "to deprive human beings of freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights." Case Concerning United States Diplomatic and Consular Staff in Teheran, Judgment, [1980] ICJ Rep. 42, para 91.
43. Frowein and Krisch, op. cit. supra note 17, at 711 (noting also that "during the 1990s, the latter [human rights concerns] have acquired significantly more weight in this process.").
44. On Security Council practice in determining what constitutes threat or breach of peace (including a failure to extradite a State's own citizen), see de Wet, The Chapter VII Power of the United Nations Security Council (Oxford/Portland, 2004), pp. 133-77. She concludes that "grave and systematic violations of human rights... cannot be regarded as purely internal matter anymore."
45. Id. at p. 194.
46. See e.g. Svensson-McCarthy, The International Law of Human Rights and States of Exception (Nijhoff, 1998);
47. Oraa, Human Rights in States of Emergency in International Law (Oxford, 1992).
48. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970),
49. cited supra note 19, at para 110;
50. see also id. at para 115 (noting that Security Council decisions were in conformity with the Principles and Purposes of the Charter and were "consequently binding on all States Members of the UN, which are thus under obligation to accept and carry them out.") (emphasis added).
51. Prosecutor v. Tadic, Case No. IT-94-1, International Criminal Tribunal for Yugoslavia Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (2 Oct. 1995), para 28, www.un.org/icty/tadic/appeal/decision-e/51002.htm (last visited 30 Oct. 2008).
52. Id.; see also Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, [1948] ICJ Rep. 57, 64 ("The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment.")
53. Tadic, cited supra note 23;
54. cf. Organization of African Unity Doc. AHG/Decl.127 (XXXIV), (10 June 1998) (declining to apply UN sanctions against Libya on the grounds of perceived illegality of the underlying resolution). On Ulpian's maxim Princeps legibus solutus est," ("the ruler is unbound by law"), and its development in pre-modern legal theory,
55. see Wyduckel, Princeps Legibus Solutus, Eine Untersuchung zur frühmodernen Rechts- und Staatslehre (Duncker & Humblot, Berlin, 1979).
56. Cf. Reinisch, "Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions," 95 AJIL (2001), 851, at 858-859.
57. In addressing the question of the "constitutionality" of Security Council actions, the Appeals Chamber's decision further indicated that when the Security Council creates a judicial organ under Chapt. VII, any such tribunal must provide "all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments." Tadic, cited supra note 23, at para 45. Put another way, constitutive of the legality of the Security's Council's measures are the principle of proportionality and the observance of human rights.
58. See Brownlie, "The Decisions of Political Organs of the United Nations and the Rule of Law" in Macdonald (Ed.), Essays in Honour of Wang Tieya (Dordrecht, 1993), p. 91, at 93-100.
59. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep. 174, 179.
60. See, e.g., Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, [1980] ICJ Rep. 73, 89-90;
61. Bianchi, op. cit. supra note 9, at 886;
62. see also Restatement (Third) of Foreign Relations Law § 223.
63. Schermers and Blokker, International Institutional Law, 3rd ed. (The Hague/Boston, 1995), p. 824, at 986.
64. See e.g. Ratner, "Foreign Occupational and Territorial Administration: The Challenges of Convergence," 16 EJIL (2005), 695 (discussing the application of International Humanitarian Law to UN territorial administration) (hereinafter Territorial Administration);
65. Fassbender, Targeted Sanctions and Due Process, (20 March 2006), 26 (Study Commissioned by the United Nations Office of Legal Affairs Office of the Legal Counsel).
66. See Alvarez, International Organizations as Law-makers (Oxford, 2005), at p. 180 (noting that certain treaty provisions on human rights could not apply to the UN without modification);
67. Tadic, cited supra note 23, at paras. 43-48 (holding that traditional municipal model of separation of powers cannot be applied to international setting, but that general human rights principles must be preserved).
68. See Report of the ILC on the work of its 58th Session, 1 May to 9 June and 3 July to 11 Aug. 2006), at 279-82 U.N. Doc. A/61/10 (2006) ("ILC Report"). Ago, Second report on State responsibility, [1970] 2 Y.B. Int'l L. Comm'n 177, 189, U.N. Doc. A/CN.4/233.
69. Report of the ILC on the work of its 58th Session, 1 May to 9 Jun. and 3 Jul. to 11 Aug. 2006), at 282 U.N. Doc. A/61/10 (2006).
70. See also Waite & Kennedy v. Germany, 30 ECtHR (1999), 261, at para 67;
71. Brownlie, "The Responsibility of States for the Acts of International Organizations" in Ragazzi (Ed.), International Responsibility Today. Essays in memory of Oscar Schachter (Nijhoff, Leiden/Boston, 2005), p. 355, at 361,
72. See e.g. Matthews v. UK, 28 ECtHR 361 (1999), at para 32 (implicitly rejecting U.K.'s argument that acts adopted by the Community to which U.K. has transferred certain powers could not be attributed to the U.K. by holding that "Member States' responsibility ... continues even after such transfer.");
73. Cf Sarooshi, International Organizations and Their Exercise of Sovereign Powers, (2005), pp. 101-107.
74. Cf. ILC Report, cited supra note 33, at 281, Draft Article 25;
75. Sarooshi, op. cit. supra note 3 5, at pp. 63-64;
76. Bosphorus v. Ireland, 42 ECtHR (2005), 1, at 43-47;
77. M. & Co. v. Germany, 64 Eur. Comm'n H.R. Dec. and Rep. (1990), 138 (holding that ECHR signatory State could permissibly transfer powers to international organizations and then carry out their commands provided that fundamental rights protection within such organizations was equivalent to that in ECHR).
78. But see Behrami v. France, 45 ECtHR (2007) (rejecting admissibility of case against France under ECHR, in part because underlying actions were attributable to UN).
79. See infra at section 3.1.;
80. Ratner, op. cit. supra note 31;
81. but see Behrami, cited supra note 36.
82. See e.g. Tomuschat in von der Groeben and Schwarze, Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäishen Gemeinschaft, 6th ed. (Nomos, BadenBaden, 2004), Art. 281, para 53. Tomuschat speaks of "funktionelle Rechtsnachfolge", i.e. functional legal succession.
83. International Statutes of South-West Africa (Advisory Opinion), [1950] ICJ Rep. 128, 132-138 (holding that UN succeeded to certain rights of League of Nations arising out of South African mandate).
84. The succession theory was accepted by the ECJ with respect to Member States' obligations under GATT and the Convention on North-East Atlantic Fisheries, but not under the WTO Treaty. See Joined Cases 21-24/72, International Fruit Company NV v. Produktschap voor Groenten en Fruit, [1972] ECR 1219, para 18 ("in so far as under the EEC Treaty the Community has assumed the powers previously exercised by Member States in the area governed by the General Agreement [on Tariffs and Trade], the provisions of that agreement have the effect of binding the Community.");
85. see generally, Schütze, "On 'Middle Ground': The European Community and Public International Law", European University Institute Working Paper, (2007) 12-13;
86. Ahmed and Butler, "The European Union and Human Rights: An International Law Perspective," 17 EJIL (2006), 771, at 778;
87. Reinisch, op. cit. supra note 26, at 868;
88. de Wet and Nollkaemper, "Review of Security Council Decisions by National Courts," 45 German Yearbook of International Law (2002), 166, at 189.
89. But see Bohr, "Sanctions by UN Security Council and the EC," 4 EJIL (1993), 256, at 268.
90. See Stahn, The Law and Practice of International Territorial Administration (Cambridge, 2008), pp. 492-496.
91. Some see in this an application of the principle of the Roman law dictum that one cannot transfer more rights than one has, whereas others view functional succession as a distinct argument.
92. See e.g. Thallinger, "Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council," 67 ZaöRV (2007), 1015, at 1026 and note 56;
93. Reinisch, op. cit. supra note 26, at 858;
94. cf. Hilf, "Europäische Union und Europaische Menschenrechtskonvention" in Beyerlin, Bothe, Hofmann and Petersmann (Eds.), Recht zwischen Umbruch und Bewahrung (1995), p. 1193, at 1197 (arguing that Member States can only transfer their powers to the EC subject to the fundamental rights limitations on those powers);
95. Uerpmann, "Völkerrechtliche Nebenverfassungen" in von Bogdandy (Ed.), Europäisches Verfassungsrecht (Springer Verlag, Berlin, 2003), p. 339.
96. On institutional "self-commitment" and territorial administration, see e.g. Stahn, op. cit. supra note 41, at pp. 481-84.
97. Report of the Secretary-General on the United Nations Interim Administration in Kosovo, 12 Jul. 1999, UN Doc. S/1999/779, at para 42.
98. UNMIK/REG/1999/1 of 25 Jul., 1999, available at www.unmikonline.org/ regulations/1999/reg01-99.htm.
99. UNMIK/REG/1999/24 of 12 Dec. 1999, available at www.unmikonline.org/ regulations/1999/reg24-99.htm (making the following, among other obligations, applicable to all persons exercising public power in East Timor: The Universal Declaration on Human Rights of 10 Dec. 1948; The International Covenant on Civil and Political Rights of 16 Dec. 1966 and the Protocols thereto; The International Covenant on Economic, Social and Cultural Rights of 16 Dec. 1966;
100. The Convention on the Elimination of All Forms of Racial Discrimination of 21 Dec. 1965;
101. The Convention on the Elimination of All Forms of Discrimination Against Women of 17 Dec. 1979 ;
102. The Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment of 17 Dec. 1984;
103. The International Convention on the Rights of the Child of 20 Nov. 1989).
104. UNTAET/REG/1999/1 of 27 Nov. 1999, available at www.un.org/peace/etimor/ untaetR/etregl.htm.
105. 6 Aug. 1999, UN Doc. ST/SGB/1999/13.
106. Ratner, op. cit. supra note 5, at 705.
107. See Alvarez, op. cit. supra note 32, at p. 169.
108. See, e.g. de Wet, op. cit. supra note 20, at p. 320.
109. Alvarez, op. cit. supra note 32, at p. 179. The significance of these acts of self-commitment is context dependent.
110. See id. at p. 171 (noting instances in which UN incorporation of human rights suggested that the Council or other acting body implied "that the UN itself... may be bound by at some [human rights] provision.");
111. see generally id. at pp. 169-183.
112. UNMIK's regulation, for example, also renders the ECHR and its Protocols applicable, and both the UNMIK and UNTEAT regulations prohibit capital punishment.
113. Cf. e.g. Ratner, op. cit. supra note 5, at 705-06 (noting that the effect of the international humanitarian law directive remains unclear and will depend on the record of enforcement and implementation).
114. Cf. Alvarez, op. cit. supra note 32, at pp. 88-89.
115. Cf. Fassbender, op. cit. supra note 31, at 17-19. The literature on the EU's development of fundamental rights is vast.
116. See e.g. de Burea, "Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union", 27 Fordham Int'l L.J. (2004), 679;
117. Weiler, "The Transformation of Europe", 100 Yale L.J. (1991), 2403;
118. Weiler, "Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities", 61 Wash. L. Rev. (1986), 1103.
119. See Halberstam, "The Bride of Messina: Constitutionalism and Democracy in Europe", 30 EL Rev. (2005), 775, at 800-801.
120. See e.g. Stahn, cited supra note 41, at pp. 483-84;
121. de Wet, op. cit. supra note 20, at p. 320.
122. Alvarez, op. cit. supra note 32, at p. 180.
123. See Fourth Report of the Analytical Sanctions and Support Monitoring Team, U.N. Doc. S/2006/154, (10 March 2006), 5-19.
124. On general history of UN sanctions, see Gowlland-Debbas, "Sanctions Regimes under Article 41 of the Charter" in Gowlland-Debbas (Ed.), National Implementation of United Nations Sanctions (Koninklijke Brill, 2004), p. 3, at 7-17.
125. "A total of 18 sanctions regimes have been imposed on States, only two of which predate 1990." Manusama, op. cit. swpranote8,atp.189. On a theory of sanctions, see Abi-Saab, "The Concept of Sanction in International Law" in Gowlland-Debbas (Ed.), United Nations Sanctions and International Law (The Hague, 2002), pp. 29-41.
126. On UN-sponsored anti-terrorist treaties and soft law, see Kovács, "The United Nations in the Fight Against International Terrorism" in Nanda (Ed.), Law in the War on International Terrorism (Ardsley, 2005), pp. 41-53.
127. See generally, Paust, "Responding Lawfully to Al Qaeda", 56 Catholic U.L. Rev. (2007), 759, at 760-763.
128. See U.N. Doc. S/RES/1267 (1999). The series of the relevant resolutions of the Security Council also includes: U.N. Doc. S/Res/1333 (2000), 1373 (2001), 1363 (2001), 1390 (2002), 1452 (2002), 1526 (2004), 1617 (2005), 1730 (2006), 1735 (2006).
129. See Al-Qaeda and Taliban Sanctions Committee, Guidelines of the Committee for the Conduct of its Work, U.N. Doc. S/2002/1338 (Adopted 7 Nov. 2002, Amended 10 April 2003), www.un.org/sc/committees/1267/pdf/1267-guidelines.pdf (last visited 30 Oct. 2008) (hereinafter Guidelines).
130. For a detailed description, see Frowein, "The Anti-Terrorism Administration and the Rule of Law" in Dupuy et al. (Eds.), Festschrift für Christian Tomuschat (N.P. Engel Verlag, Germany, 2006), pp. 785-95. The Security Council created a new breed of subsidiary and advisory organs to monitor and coordinate sanctions enforcement in States. In addition to the six Sanctions Committees, there are a Counter-Terrorism Committee, restructured as Counter-Terrorism Executive Directorate, a Monitoring Group of Experts, a Sanctions Enforcement Team, Analytical Support and Sanctions Monitoring Team, and most recent, "a focus point" in the UN Secretariat;
131. see Bianchi, op. cit. supra note 9, at pp. 883, 900-902.
132. On Security Council Resolutions 1193(1998), 1267(1997) and 1333(2000),
133. see Hilaire, op. cit. supra note 6, at pp. 280-85.
134. On sanctions more generally, see Farrall, The United Nations Sanctions and the Rule of Law (Cambridge, 2007);
135. Meron, The Humanization of International Law (Leiden; Boston, 2006), pp. 497-509;
136. Damrosch, op. cit. supra note 8.
137. U.N. Doc. S/RES 1333 (19 Dec. 2000);
138. U.N. Doc. S/RES/1373 (28 Sept. 2001);
139. U.N. Doc. S/RES/1390 (22 Jan. 2002).
140. For subsequent Security Council measures, see Second Report of the Analytical Support and Sanctions Monitoring Team, U.N. Doc. S/2005/83 (Feb. 15, 2005) (hereinafter Second Report);
141. Rosand, "The Security Council's Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions," 98 AJIL. (2004), 745;
142. Miller, "The Use of Targeted Sanc-tions in the Fight Against International Terrorism -What About Human Rights?," 97 Am. Soc'y Infi. L. Proc. (2003), 46.
143. Eighth Report of the Analytical Support and Sanctions Monitoring Team, U.N. Doc. S/2008/324 (14 May 2008), 12, 19.
144. At the end of 2005, the list administered by the 1267 Sanctions Committee contained 466 names freezing a total of S94 million in 34 States (205 individuals and 118 entities). Fourth Report of the Analytical Support and Sanctions Monitoring Team, U.N. S/2006/154 (10 March 2006), 9, 19. Twenty names were delisted by March 2006.
145. Id. at 9. In 2007, 8 individuals were added to the list and 2 were delisted, as were 12 entities.
146. Report of the Sanctions Committee, Appendix, U.N. Doc. S/2008/25 (17 Jan. 2008), 11-12.
147. A significant number of listed names had insufficient identifiers to allow enforcement action. Frowein, op. cit. supra note 61, at 791. Only 23 requests for exemptions were made by only eight States, all but 2 from Europe. Watson Institute, "Strengthening Targeted Sanctions Through Fair and Clear Procedures", (2006), 23.
148. See Bianchi, op. cit supra note 9, at 892-900.
149. For an account of criticism of the sanctions, see Herbst, op. cit. supra note 6, at pp. 24-27.
150. On the problematic nature of the procedure for exemptions, see id. at 26 and Conlon, "The UN's Questionable Sanctions Practices," 45 Ausssenpolitik (1995), 327 (scathing criticism of the administration of sanctions against former Yugoslavia and Iraq).
151. On the implementation of Security Council sanctions see Gowlland-Debbas, op. cit. supra note 60, at pp. 251-368.
152. See Al-Qaeda and Taliban Sanctions Committee, Guidelines, cited supra note 61;
153. Miller, op. cit. supra note 62, at 47, 49-50
154. (citing to the Security Council resolution and Sanctions Committee's guidelines);
155. Hey, "The High Level Summit, International Institutional Reform and International Law", 2 Int'l L. & Int'l Rel. (2005), 5, at 12.
156. See U.N. Doc. S/RES/1452 (Dec. 20, 2002).
157. See Case T-315/01, Kadi v. Council, [2005] ECR II-3649, para 270 (approving a suggestion to that effect by the UK
158. and citing "by analogy" the Order of the President of the CFI in Case T-47/03 R, Sison v. Council, [2003] ECRII-2047, para 39.) (Case T-315/01 is cited hereinafter Kadi (CFI)).
159. U.N. Doc. S/RES/1730 (Dec. 19, 2006).
160. The focal point became operational on 30 March 2007. Al-Qaeda and Taliban Sanctions Committee, Report of the Security Council Committee Established Pursuant to Resolution 1267 Concerning Al-Qaeda and the Taliban and Associated Individuals and Entities, U.N. Doc. S/2008/25 (17 Jan. 2008), 3, note 1
161. (hereinafter Sanctions Committee Report). The Sanctions Committee amended its Guidelines to specify the procedure before "the focal point." Id. at 2-3;
162. see Al-Qaeda and Taliban Sanctions Committee, Guidelines, cited supra note 61, at Sec. 8(d).
163. To improve the effectiveness of the sanctions the Sanctions Committee's Chairman and the Monitoring Team have been visiting States and the Committee has sought to increase contacts not only with States but also with Interpol and other international and regional organizations. Sanctions Committee Report, supra, at 6-9. The Monitoring Team has submitted "no fewer than 347 proposed amendments" to the list which "so far resulted in 324 changes being approved."
164. Id. at 8. We noted earlier the criticism of the Security Council for denying listed individuals basic procedural guarantees in a situation some view as akin to criminal prosecution.
165. See note 63, and generally infra sections 3 and 4.
166. See www.un.org/sc/committees/dfp.shtml (last visited Oct. 30, 2008).
167. Cf. Guild, "The uses and abuses of counter-terrorism policies in Europe: The Case of the Terrorist Lists," 46 JCMS (2008), 173.
168. As of 15 July 2008, 94 individuals and groups were included on the list maintained by the EU Council. See Council Common Position 2008/586/ CFSP, L 188/71.
169. Case T-228/02, Organisation des Modjahedines du peuple d'Iran (OMPI) v. Council, [2006] ECR 11-4665, para 121 (holding EC's fundamental rights standards fully applicable to EC's own decision to list certain individuals as subject to asset freeze regime).
170. For an extensive and exceptionally nuanced treatment of this question, see generally, Alvarez, op. cit. supra note 10.
171. Reinisch, op. cit. supra note 26, at 865.
172. In the Lockerbie case, for example, the International Court of Justice implied that it had the power to hold a Security Council decision ultra vires, although it ruled that in this instance the Security Council action was valid by operations of the "supremacy clause" in Art. 103 of the Charter, which trumped Libya's right under a treaty. Question of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), [1992] ICJ Rep. 3, at 114 (Provisional Measures of 14 Apr.).
173. For a comprehensive treatment of the ICJ advisory opinion incidental review problems and practice, see de Wet, op. cit supra note 20, pp. 1-127, 352-357;
174. Dugard, "Judicial Review of Sanctions" in Gowlland-Debbas, op. cit. supra note 61, at pp. 83-91;
175. Cannizzaro, op. cit. supra note 11, at 193-97;
176. Herbst, op. cit. supra note 6, passim;
177. see e.g. Tavernier, "L'identification des règles fondamentales, un problème résolu?" in Tomuschat and Thouvenin (Eds.), The Fundamental Rules of International Law (Koninklijke Brill, 2006), p. 1, at 6.
178. For an interesting comparison with Marbury v. Madison, see Franck, "The 'Powers of Appreciation': Who is the Ultimate Guardian of UN Loyalty", 86 AJIL (1992), 519.
179. Cf. Tadic, cited supra note 23.
180. Simma, "Bilateralism and Community Interest Confronted", (1994) Académie de Droit International, 229, at 283.
181. It should be noted that there are important differences in the role of judicial review from one legal system to another. For example, "the idea that there could be any State activity which may not be challenged in court is alien to German law", Harlow, "Voices of Difference in a Plural Community," AJCL (2002), 339, at 353
182. (quoting W. Rufner, "Basic Elements of German Law on State Liability" in Bell and Bradley (Eds.), Government Liability: A Comparative Study (1992), p. 252),
183. while in Sweden and Denmark "judicial review takes second place to the ombudsman." Id. at p. 352.
184. Reinisch, op. cit. supra note 26, at 866.
185. 15 law suits were filed in the national courts in Belgium, U.K., Germany Italy, Switzerland, The Netherlands, Pakistan, Turkey and the United States, most without success. See Third Report of the Analytical Support and Sanctions Monitoring Team, Annex II, U.N. Doc. S/2005/572 (9 Sept. 2005), 48-49
186. (hereinafter Third Report) and Fourth Report of the Analytical Support and Sanctions Monitoring Team, Annex, U.N. Doc. S/2006/154 (10 March 2006), 45-47.
187. On implementation of Security Council Sanctions in Sweden, see Andersson et al., "EU Black-listing: The Renaissance of Imperial Power but on a Global Scale," 14 EBL Rev. (2003), 111, at 119;
188. Almqvist, "A Human Rights Critique of European Judicial Review: Counter Terrorism Sanctions," 57 ICLQ (2008), 303.
189. The Queen on Application of Hilal Abdul-Razzaq AU Al-Jedda v. Secretary of State for Defence, [2006] EWCA 327, para 71.
190. Subsequently, another UK Court struck down the government's asset freeze orders as unconstitutional, but only because the government's orders had not been ratified by Parliament. A, K, M, Q & G v. H.M. Treasury, [2007] EWHC 869.
191. Schmal, "Effektiver Rechsschultz gegen 'targeted sanctions' des UN-Sicherheitsrats?" 41 EuR (2006), 566, at 570;
192. Reinisch, op. cit. supra note 26, at 866;
193. Jacobs, "Constitutional Control of European Elections: The Scope of Judicial Review", 28 Fordham Int'l L.J. (2005), 1049, at 1058;
194. Parga, "Bosphorus v. Ireland and the Protection of Fundamental Rights in Europe", 31 EL Rev. (2006), 251.
195. For two U.S. cases involving the application of U.S. legislation exclusively, see infra note 164.
196. See Report of the Chairman of the Sanctions Committee, 5/2008/324, 14 May 2008, at 36-37.
197. In Al Haramain Islamic Foundation, Inc. v. U.S. et al. (D. Ore. 6 Nov. 2008), the District Court held that the freezing of plaintiff's assets violated plaintiff's due process right for failure of prior notice and constituted a "seizure" for purposes of the U.S. Constitution's Fourth Amendment.
198. In response, the Belgian Government initiated a delisting request to the Sanctions Committee. See Third Report, cited supra note 79, at 48-49;
199. see also Gowlland-Debbas, "UN Sanctions and International Law: An Overview" in Gowlland-Debbas, op. cit. supra note 60, at pp. 22-29.
200. See Behrami, cited supra note 36, at 122.
201. Bosphorus v. Ireland, cited supra note 36, 1, at 43-47;
202. see also Waite & Kennedy v. Germany, cited supra note 34, 261;
203. Canor, "Can Two Walk Together, Except They Be Agreed?" 35 CML Rev. (1998), 137.
204. Another alternative would be an action at the same Court for damages caused by the fund blockade and/or loss of business. Several applicants did follow this latter route, albeit without success. See Case C-354/04 P, Gestoras Pro Amnistía v. Council, [2007] ECR1-1579, para 48;
205. Case T-49/04, Hassan v. Council, [2006] 11-52*;
206. Case T-338/02, Segi v. Council, [2004] ECR 11-1647;
207. Case T-184/95, Dorsch Consult v. Council, [1998] ECR 11-667, para 73 (holding that the UN, but not the EC, is responsible for damages caused by an EC regulation implementing a UN resolution);
208. Zagel, "Economic Sanctions of the European Community: A Commentary on Art. 301 TEC," papers.ssrn.com/so13/papers.cfm?abstract-id=862024 (last visited 10 Nov. 2008), 18-19.
209. On the proceedings for interim remedy measures before CFI/ECJ, see Andersson et al., "EU Black-listing: The Renaissance of Imperial Power but on a Global Scale," 14 EBL Rev. (2003), 111, at 135-137.
210. On problems facing applicants before CFI/ECJ, see ibid. at 114-118.
211. Several commentators have suggested this as a possibility in the event that the EC fails to control the abuse of fundamental rights at the EU level. See e.g. Schmahl, op. cit. supra note 81, at 574-76.
212. Cf. Bosphorus, supranote 85.
213. See Case T-306/01, Yusuf & Al Barakaat v. Council, [2005] ECR11-3533 (Yusuf was a Swedish national of Somali origin residing in Sweden, and Al Barakaat was an International Foundation established in Sweden) (hereinafter Yusuf);
214. see also Case T-306/01 R, Aden, Ali & Yusaf v. Council, [2002] ECR 11-2387
215. (Aden, Ali, and Yusaf were Swedish citizens of Somali origin). Aden, Ali and Yusaf were delisted. Individuals, Groups, Undertakings and Entities that Have Been Removed from the Consolidated List Pursuant to a Decision by the 1267 Committee, www.un.org/sc/committees/1267/docs/Delisted.pdf (last visited 20 Nov. 2008).
216. For a portrait of Yassim Kadi as "a multimillionaire businessman with investments and charities that span the globe," see The New York Times, 13 Dec. 2008, p. A6.
217. See Kadi (CFI), cited supra note 67;
218. Hassan, cited supra note 86;
219. Case 253/02, Ayadi v. Council, [2006] ECR11-02139 (Ayadi was a Tunisian residing in Dublin with wife and two children, Irish nationals);
220. See also Case T-318/01, Othman v. Council, Oct. 2006 (legal aid granted);
221. Case T-47/03 R, Sison v. Council, [2003] ECR 11-02047 (interim relief denied);
222. Gestoras Pro Amnestía, cited supra note 86;
223. Segi, cited supra note 86, (dismissing Segi's action for damages), affirmed on appeal in Case 355/04 P, Segi v. Council, [2007] ECRI-1657;
224. A.G. Mengozzi, in his Opinion in Case C-117/06, Möllendorf, at para 108, concludes that anti-terrorist Reg. 881/2002 prohibits transfer of listed person's real estate in performance of a preexisting, but unregistered contract.
225. The Court agreed with the A.G., Case C-117/06, Möllendorf, [2007] ECR I-8361, para 80.
226. See generally e.g. Defeis, "Targeted Sanctions, Human Rights, and the Court of First Instance of the European Community" 30 Fordham Int'l L.J. (2007), 1449. At least 21 cases have been filed with the CFI and ECJ, claiming violations of human rights.
227. Id. at 1449 note 3 (citing www. statewatch.org/terrorlists/terrorlists. html).
228. C-402/05 P, Kadi v. Council (Grand Chamber), judgment of 3 Sept. 2008, nyr (hereinafter "Kadi (Grand Chamber)").
229. See also in this Review the annotation by Gattini, 213-239.
230. OMPI, cited supra note 71.
231. Id. For similar decisions regarding other individuals and organizations, see T-253/04, Kongra-Gel v. Council, judgment of 3 April 2008, nyr;
232. T-229/01, Ocalan v. Council, judgment of 3 April 2008, nyr.
233. T-256/07, People's Mojahedin Organization of Iran v. Council, judgment of 23 Oct. 2008, nyr.
234. Id. at paras. 168-69.
235. Consolidated Version of The Treaty of the Functioning of the European Union, Art. 215, O.J. 2008, C 115/ 47, 144 (Art. 301 EC, as to be amended by the Treaty of Lisbon).
236. Kadi (CFI), cited supra note 67, at para 95. According to one commentator, "[t]his is the most obvious and convincing textual reason why Articles 301 and 60 EC cannot serve as a basis for individual sanctions." Eckes, "Judicial Review of European Anti-Terrorism Measures - The Yusuf and Kadi Judgments of the Court of First Instance", 14 ELJ (2008), 74, at 78. Art. 60 EC reads as follows: "If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned. Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest." Art. 301 EC reads as follows: "Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures. The Council shall act by a qualified majority on a proposal from the Commission."
237. Kadi (CFI), cited supra note 67, at para 89.
238. Given that the Taliban regime lost control over the government in Afghanistan, the necessary link vanished between the supporters (and associates) of that former regime and the "third country" at which the contested regulation would have to be directed for the purposes of Arts. 60 and 301 EC, according to the CFI. See Kadi (CFI), supra note 67, paras. 93-94.
239. The measure was not aimed at establishing a common commercial policy, as the measure did not concern relations with a third country, and could not be said to be aimed at preventing the distortion of competition. A mere "theoretical" risk of distortion would not suffice. Kadi (CFI), supra note 67, at para 111. In particular, the Court noted that the specificity of the Security Council resolutions, coupled with the urgency of their implementation, did not raise the specter of distortions due to discrepancies in implementation across Member States.
240. Id. at para 115. Nor could the references to "solidarity," the "United Nations," and "peace and liberty" in the preamble to the EC Treaty be combined with the EU Treaty objectives to create a general Community objective to ensure peace and security that would sustain legislation based on Art. 308 alone.
241. Id. at paras. 76, 117-19.
242. Id. at para 123. On how politics relate to the original pillar design, see Stetter, "Crosspillar politics: functional unity and institutional fragmentation of EU foreign policies," 11 JEPP (2004), 720.
243. Case C-402/05 P, Kadi v. Council (Opinion of A.G. Maduro), Opinion delivered 16 Jan. 2008, at para 13.
244. The Opinion thereby implicitly leaves open the question about competence to impose sanctions against individuals who do not reside in, or operate from within, a third country, although it may reach individuals who are providing funds to recipients who reside within a third country. See id. at paras. 13-14.
245. Kadi (Grand Chamber), cited supra note 91, at para 226.
246. See e.g. Hermann, "Much Ado about Pluto? The Unity of the Legal Order of the European Union Revisited" in Cremona and de Witte (Eds.), EU Foreign Relations Law (Hart, 2008), p. 19;
247. Cremona, "Defending the Community Interest: the Duties of Cooperation and Compliance", in Cremona and de Witte, ibid., at p. 125.
248. Looking ahead to the Lisbon Treaty, the current strict separation of objectives between those of the Community and those of the Union may become a thing of the past. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Art. 3 TEU (ex Art. 2 TEU, as amended), O.J. 2008, C115/1, 13. See also Art. 352 TFEU (ex Art. 308 TEC, as amended), id. at 153.
249. Kadi (Grand Chamber), cited supra note 91, at para 226 (emphasis added).
250. Ibid., paras. 226-27. Another question about resort to Art. 308 EC is raised by the fact that Art. 301 EC already seems to provide the general power to "take the necessary urgent measures" to get whatever job specified by Art. 301 EC done. If the only relevant objective to be served derives from Art. 3 01 EC itself, it seems strange that one would need to look beyond Art. 301 EC for additional powers of implementation. On the relevance of Art. 308, see Ličková, "European Exceptionalism in International Law", 19 EJIL (2008), 463, at 471.
251. For a more sympathetic view of reliance on the combination of Arts. 60 EC, 301 EC and 308 EC as the legal basis in these circumstances, see Koutrakos, "Legal Basis and Delimitation of Competence in EU External Relations", in Cremona and de Witte, op. cit. supra note 105, 171;
252. Tomuschat, op. cit. supra note 161, at 540.
253. See Case C-376/98, Germany v. Parliament and Council, [2000] ECR I-8498, 1-8524 (Tobacco Advertising) (holding that Community measure must "genuinely have as its object" the prevention or elimination of obstacles to free movement or distortions of competition).
254. In some ways, this debate resembles the old one about the "instrumental" versus "teleological" vision of Art. 133, which, alas, may not have become as "irrelevant" with the introduction of Art. 301 as some had hoped. See Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Hart Publishing, Oxford, 2001), p. 77.
255. Art. 301, cited supra note 97.
256. Art. 60, cited supra note 97.
257. See Eeckhout, External Relations of the European Union (Oxford University Press, 2004), pp. 424-25;
258. Koutrakos, op. cit. supra note 110, at p. 70.
259. It should be noted that if the sanctions are indeed adequately based on Arts. 60 EC and 301 EC alone, the legality of the contested regulation would seem to be undermined by the unnecessary resort to Art. 308 EC. Although the Court has held harmless acting pursuant to an erroneous mandate to include the European Parliament, see Case 165/87, Commission v. Council, [1988] ECR 5545, para 20, the Court has consistently condemned the erroneous resort to a mandate of unanimity instead of qualified majority voting, see e.g. Case C-211/01, Commission v. Council (Bulgaria and Hungary Agreements), [2003] ECR I-8913, para 52.
260. Cf. Schütze, op. cit. supra note 42. In the following discussion we intentionally avoid the descriptors "monist" or "dualist," as neither seems apt any longer to capture the complex interactions among multiple legal systems.
261. See von Bodgandy, "Pluralism, Direct Effect, And The Ultimate Say: On The Relationship Between International And Domestic Constitutional Law" 6 Int. J. Const. L. (2008), 397, at 400 (noting that "from a scholarly perspective, [the terms 'monism' and 'dualism'] are intellectual zombies of another time and should be laid to rest, or 'deconstructed'. The general understanding of the relationship between international law and domestic law should be placed on another conceptual basis.").
262. See also in this Review, Kunoy and Dawes, "Plate Tectonics in Luxembourg: The Ménage à Trois between EC law, International Law and the European Convention on Human Rights following the UN Sanctions Cases", 73-104.
263. Kadi (CFI), supra note 67, at paras. 181-82;
264. see Yusuf, supra note 90, at para 272.
265. Kadi (CFI), supra note 67, at para 183.
266. See text at note 15. The Court cites the Order of the International Court of Justice in the Lockerbie case. See Kadi (CFI), cited supra note 67, at para 184. In Behrami, cited supra note 36, at 122, the Court found the responsibility of the United Nations for acts of units composed of personnel supplied by Member States and NATO to which the Security Council had delegated enforcement functions under Chapter VII of the Charter. The Court cited the Kadi series of cases in connection with the interpretation of Art. 103 of the Charter. Id. at 92.
267. See Kadi (CFI), supra note 67, at paras. 176-208. The Court speaks of "international legal order under the United Nations." Id. at paras. 178, 180. See generally, Bethlehem, "Regional Interface Between Security Council Decisions and Member States Implementation: The Example of the European Union" in Gowlland-Debbas, op. cit. supra note 9, at pp. 291-305.
268. Kadi (CFI), cited supra note 67, at paras. 185-86. This provision applies to third States' agreements concluded before 1 Jan. 1958 or the date of accession for acceding States. On the position of Germany, see id. at para 187. The CFI cites case law of the ECJ applying this provision. Id. at para 186.
269. Id. at para 188.
270. Id. at para 189 (citing ECJ case law).
271. Id. at paras. 190-91 (emphasis added) (citing the Centro-Com case of the ECJ in para 191). In Resolution 1456 the Security Council declared that "[S]tates must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular international human rights ... law." Security Council Resolution 1456, U.N. Doc. S/RES/1456 (20 Jan. 2003), para 6.
272. But note that the Security Council was not acting under Chapt. VII. See id. at paras. 1-5. This resolution was adopted about one year after the application of Kadi and Yusuf and after the adoption of the contested Regulation 881/2002.
273. See id. Art. 9 of the Regulation provides to the contrary that "[t]his Regulation shall apply notwithstanding any rights conferred or obligations imposed by any international agreement...." See also Eckes, op. cit. supra note 97, at 89.
274. Kadi (CFI), supra note 67, at para 199. Cf. Case C-286/90, Anklagemyndigheden v. Poulsen and Diva Navigation Corp, [1992] ECR I-06019, para 9. Along with this statement, the CFI points to Charter Art. 48(2), which requires UN members acting through "the appropriate international agencies" to carry out Security Council decisions. Id. In Yusuf, the same panel of judges elaborates on its findings in Kadi and reaches the same conclusion. Yusuf, cited supra note 90, at paras. 228-284. In this case the Court rejects the argument that the Security Council, in adopting the relevant Resolutions, exercises powers delegated to it by the Community. Id. at para 179. In the more recent case of OMPI, the Court, in distinguishing that case from Kadi and Yusuf on other grounds, confirms its view that the Community, acting through its members, was required merely to transform the Security Council Resolutions into its own legal order.
275. See OAiP/, cited supra note 71, at paras. 100-02. For more on that case, see text at note 92.
276. Kadi (CFI), cited supra note 67, at para 192. The Court indicates that this position "follows from the case law." Dorsch Consult, cited supra note 86, at para 74.
277. Kadi (CFI), cited supra note 67, at para 193;
278. see also id. at para 207.
279. Id. at para 196; see also Arts. 224 and 234(1). Note, however, that Art. 301 speaks expressly of sanctions against "one or more third countries." See Art. 301, cited supra note 97.
280. The doctrine was first developed in the EU in connection with the EC's participation in the GATT. See supra note 40 and accompanying text. In International Fruit, the Court held that to the extent the EC assumed the competences previously exercised by the Member States, and was recognized as doing so by the Member States' treaty partners, the EC became bound by that instrument. International Fruit, supra note 40, at para 18.
281. See also Dorsch Consult, supra note 86, at para 74. Moreover, the validity of a Community act may be reviewed by reference to international law if the latter confers rights upon individuals that they can invoke in court. Id. at para 19.
282. Kadi (CFI), cited supra note 67, at para 203 (citing, by analogy, the EJC cases International Fruit, para 18 on whether the Community is bound by GATT, and Dorsch Consult, para 74). Note that in International Fruit, the Court suggested that the acceptance of the Member States' treaty partners played a role in the Community's functional succession.
283. See International Fruit, supra note 40, at para 16. The CFI in Kadi does not, however, address this latter component of functional succession in the context of Security Council sanctions. Furthermore, it bears emphasis that in the CFI 's view, what might be termed "limited" functional succession - that is functional succession in a limited area of Member State activity - creates an obligation only under EC law, and not under public international law, to obey the UN Charter. Id. at para 207 ("it is not under general international law ... but by virtue of the EC Treaty itself, that the Community was required to give effect to the Security Council resolutions concerned, within the sphere of its powers"). This conclusion also explains the CFI's choice of words that the Charter provisions have only "the effect" of binding the Community. Id. at para 203.
284. See id. at para 202. The Court cites the Common Position 2002/402 of the Council, in which the Council found it necessary to put into effect sanctions against Usama bin Laden, the Al Qaeda network and the Taliban and other associates in accordance with the Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002). Id. at para 205.
285. Kadi (A.G. Opinion), cited supra note 102, at para 22.
286. Id. at para 23.
287. The Court has, numerous times in the past, considered the applicability of international law within the Community's legal order, allowing international legal obligations to be invoked directly in Community and Member State courts. See Case C-104/81, Hauptzollamt Mainz v. Kupferberg, [1982] ECR 3641 (treaties); Poulsen, cited supra note 124 (customary international law).
288. Kadi (Grand Chamber), cited supra note 91, at para 285.
289. See Case C-94/03, Commission v. Council, [2006] ECR 1-1;
290. C-122/95, Germany v. Council, [1998] ECR I-973 (annulling Council decision to approve international agreement that would violate Community nondiscrimination principles). Other precedents cited by the A.G. do not push the point of Community autonomy nearly as far.
291. See Joined Cases C-317 & 318/04, Parliament v. Council & Commission, [2006] ECR 1-472;
292. Case C-327/91, France v. Commission, [1994] ECR I -3641;
293. Opinion 2/94, [1996] ECR I-1759, para 35. Other cases cited by the A.G. for duties of cooperation among the Member States in the implementation of international legal obligations do not, of course, stand for the proposition of acting in opposition to those international obligations.
294. See e.g. Case C-25/94, Commission v. Council, [1996] ECR I-1469, paras. 40-51;
295. Ruling 1/78, [1978] ECR 2151, para 33;
296. and Opinion 2/91, [1993] ECR 1-1061, paras. 36-8.
297. Id. at para 303;
298. Kadi (A.G. Opinion), cited supra note 102, at para 31.
299. Kadi (A.G. Opinion), cited supra note 102, at para 23.
300. See U.N. Doc. S/RES 1333, cited supra note 62, at para 17 ("The Security Council.., [c]alls upon all States and all international and regional organizations, including the United Nations and its specialized agencies, to act strictly in accordance with the provisions of this resolution," which includes a freeze on funds in para 8(c).). The CFI refers to this Resolution prominently. Kadi (CFI), cited supra note 67, at paras. 14, 88, passim;
301. see also e.g. U.N. Doc. S/RES 1390, cited supra note 62, at para 7, (urging "all States, relevant United Nations bodies, and, as appropriate, other organizations .., to cooperate fully with the [Sanctions] Committee and with the Monitoring Group..,.") (emphasis supplied). It is not clear what the CFI would hold if it were to agree that the Community was "an addressee."
302. See text at note 38 supra.
303. For an early argument of functional succession in the context of economic sanctions, see Kuijper, "Sanctions Against Rhodesia: The EEC and the Implementation of General International Legal Rules", 12 CML Rev. (1975), 231. Others have more recently argued that some elements of functional succession may apply to economic sanctions, despite the fact that the EC's powers over economic sanctions - as opposed to a common commercial policy - may not be exclusive. See Eeckhout, op. cit. supra note 113, at 438. Eeckhout notes, however, that other elements of the International Fruit doctrine, such as the recognition of substitution by other treaty partners may not (yet) obtain in the case of economic sanctions.
304. See id. at 439. We are less convinced by the application of functional succession in the absence of exclusive Community powers when the question surrounds a positive international command to take action - as opposed to a negative prohibition against certain forms of action. As long as the EC has not by treaty or secondary legislation displaced Member States' ability to comply with the international obligation, the EC has not substituted itself for the Member States in that arena. Cf. e.g. Nettesheim, "U.N. Sanctions against Individuals - A Challenge to the Architecture of European Union Governance," 44 CML Rev. (2007), 567, at 585;
305. see also Lenaerts and De Smijter, "The United Nations and the European Union: Living Apart Together" in Wellens (Ed.), International Law: Theory and Practice (Martinus Nijhoff, The Hague, 1998), p. 439, at 447-53. According to these authors, the EC is not bound by the Charter or Security Council Resolution except when "the Community considers itself bound ... through substitution for its Members" where the Community has completely taken over the powers previously exercised by Member States. Id. at pp. 447-48.
306. See text at note 17 supra. On EC obligations under international human rights law, see Ahmed and Butler, op. cit. supra note 40, at 772-78 passim. The ECJ has expressly acknowledged the applicability of general international law to EC/EU actions in their internal and external relations, but it has yet to determine the applicability of international human rights law to EC and EU. Id. at 778 and notes 37-38.
307. See section 2 of this article.
308. Kadi (Grand Chamber), cited supra note 91, at para 298.
309. Id. at para 299.
310. Id. at paras. 217-31. In Yusuf, the CFI adds other factors subject to review in an action for annulment: internal consistency and "external lawfulness." Yusuf, supra note 90, at paras. 332-39. The CFI adds, "it is not for the Court to review indirectly whether the Security Council's resolutions in question are themselves compatible with fundamental rights... [or to assess the] evidence relied on by the Security Council or, subject to the limited extent of [ius cogens review,] to check indirectly the appropriateness and proportionality of those measures." Id. at paras. 337-38. Such checks would mean "trespassing on Security Council's prerogatives under Chapter VII," which entail political assessment of both the question whether there exists a threat to international peace and what measures are to be adopted against persons concerned. Id. at para 339;
311. see also Ayadi, cited supra note 90, at paras. 115-18.
312. Kadi (CFI), cited supra note 67, paras. 226-27. The CFI cites the Vienna Convention on the Law of Treaties, Art. 5 and 53, on peremptory norms.
313. See id. at 227 and text at notes 116-118 supra. Cf. Kadelbach, "Jus Cogens, Obligations Erga Omnes and Other Rules - The Identification of Fundamental Norms" in Tomuschat and Thouvenin, op. cit. supra note 73;
314. Tams, Enforcing Obligation Erga Omnes in International Law (Cambridge, 2005).
315. Kadi (CFI), cited supra note 67, at paras. 227, 231.
316. See also text at notes 12-27. The CFI refers to the preamble of the Charter (reaffirming faith in fundamental rights), Chapt. I (the purpose of the UN to encourage respect for human rights) and Art. 24(2) (the Security Council to act "in accordance with the Purposes and Principles of the Charter.").
317. See Kadi (CFI), cited supra note 67, at paras. 227-28. The CFI also cites the Advisory Opinion of the International Court of Justice of 9 July 1996, The Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ p. 226, para 79 (speaking of "intransgressible principles of international customary law"), and also A.G. Jacob's Opinion in Case C-84/95, Bosphorus, [1996] ECR I-3953 (citing para 65).
318. See id. at 231. For a useful survey of domestic, regional and international practice, see Gutherie, "Security Council Sanctions and Protection of Individual Rights", 60 N.Y.U. Annual Survey of American Law (2004), 491-541.
319. Cf. Case C-162/96, Racke v. Hauptzollamt Mainz, [1998] ECR I-3655 (Opinion of A.G. Jacobs), at para 84 (noting that some rules of customary international law, such as international humanitarian law, intend to confer rights on individuals).
320. Kadi (CFI), cited supra note 67, at para 227 (emphasis added).
321. Case C-70/87, Fediol v. Commission, [1989] ECR 1781.
322. Case C-69/89, Nakajima v. Council, [1991] ECR I-2069.
323. See e.g. Eeckhout, op. cit. supra note 113, at 316-24.
324. Racke, cited supra note 148. For a discussion of this case, see, e.g. Wouters and van Eeckhoutte, "Giving Effect to Customary International Law Through European Community Law", in Prinssen and Schrauwen (Eds.), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Europa, 2002), p. 181;
325. Eeckhout, op. cit. supra note 113, at 328-33.
326. Racke, cited supra note 148, at para 48. The Court does not further explain in Racke what it considers to be "fundamental" rules of customary international law. lus cogens, however, would seem to qualify.
327. Racke, cited supra note 148, at para 47.
328. Id. at para 52.
329. Yusuf, cited supra note 90, at para 290. The CFI mentions exemptions for basic expenses including payments for food stuffs, rent, medicines and medical treatment, taxes, public utilities charges, extraordinary expenses, ensuring avoidance of "inhuman or degrading treatment." Id. at paras. 291-92.
330. Id. at paras. 292-303. In Kadi (CFI), supra note 67, at paras. 232-52, the CFI follows the same reasoning in rejecting the property rights claim and the claim of a breach of the proportionality principle. In Ayadi, supra note 90, at paras. 119-42, the CFI responds in some detail to the applicant's charge of ineffectiveness of the exemptions and derogations, and of the impact on his freedom to pursue his business as a taxi driver in Ireland. The CFI notices the possibility for the victim of the freeze to sue national authorities in domestic courts, which may be required, under the Community law principles of effectiveness, ultimately to order the national authority to present the information to the Sanctions Committee, contrary to the standard rule against forcing diplomatic protection. Id. at paras. 150-152. The CFI refers to a case before a Brussels Court. Id. at para 152.
331. Ayadi, cited supra note 90, at paras. 145-146. Art. 1, Protocol 1 ECHR qualifies property rights by making the protection subject to the exception of public interest and "subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...."
332. See Andersson et al., op. cit. supra note 79, at 125 and note 41. According to the three co-authors, even if the freezing is not seen as deprivation at the present time, the longer it continues the more it should be seen as denial/deprivation of property. Id. at 125. Moreover, the ECJ should find the freezing regulation invalid as violating the general principle of proportionality. Id. at 125-126. For ECJ cases dealing with justification for an interference with property rights, see id. at 125 note 40.
333. In Yusuf, cited supra note 90, at para 292, the CFI cites the Universal Declaration provision limiting the scope of property rights. "Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of the property." Id. According to Bartelt and Zeitler, none of the human rights claimed by the applicants in the cases under discussion have reached the status of ius cogens (op. cit. supra note 11, at 716). In Kadi and Yusuf, the CFI "[p]erhaps overgenerously" appeared to consider all human rights as ius cogens. Ahmed and Butler, op. cit. supra note 40, at 780.
334. Tomuschat, annotation in 43 CML Rev. (2006) 537, at 547-548.
335. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005), pp. 518-23 (citing Krause, "The Right to Property" in Eide et al. (Eds.), Economic, Social and Political Rights: A Textbook, p. 143, at 144-45 and other literature).
336. Id. at 520 (citing also the developments in the UN Human Rights Committee and the UN Human Rights Commission at 520-521). The property right is not included in the blackletter section of the Restatement. See Restatement (Third) of the Foreign Relations Law of the United States: Customary International Law § 702 (1986). On the other hand, others stress that the last several decades have been marked by economic liberalization including "marketization" parallel toward democratization.
337. See Simmons et al., "Introduction: The International Diffusion of Liberalism," 60 Int'l Org. (2006), 781, at 782-783. The proportion of democratic countries (presumably with some form of economic liberalization) has climbed between 1980 and 2000 from under 30% to about 60% (while the number of States also doubled to roughly 200). Id. These developments would presumably impact international recognition of property rights. But see Diamond, "The Democratic Rollback - The Resurgence of the Predatory State", 87 Foreign Affairs (April 2008), 36 ("Democracy has recently been overthrown or gradually stifled in a number of key States... .").
338. Hearing the person concerned "could not in any case lead the institution to review its position." Kadi (CFI), supra note 67, at para 258. The CFI points out that the ECJ case law on the right to a hearing was developed in areas where the institutions have broad discretion (such as competition, anti-dumping).
339. See Kadi (CFI), ibid., at paras. 256-257. In Hassan, supra note 86, at para 78, the applicant relied on two judgments of the US Court of Appeals for the D.C. Circuit which held that freezing assets under the Anti-Terrorism and Effective Death Penalty Act of 1996 without prior hearing infringed the constitutional right of due process.
340. See National Council of Resistance of Iran v. Dept. of State, 251 F.3d 192 (D.C. Cir. 2001);
341. see also People's Mojahedin Org. of Iran v. U.S. Dept of State, 182 F.3d 17 (D.C. Cir. 1999). This argument was deemed irrelevant by the CFI because the US cases did not involve measures transposing Security Council resolutions but measures taken by the US under its own sovereign powers. Hassan, ibid., at para 94;
342. Defeis, op. cit. supra note 90, at 1455-1456.
343. Kadi (CFI), cited supra note 67, at para 268.
344. Ibid. at para 269 (citing by analogy the CFI Case T-189/00, Invest Import and Export v. Commission, [2000] ECR II-2993).
345. According to de Wet, the Sanctions Committee, a political body, cannot be viewed as an independent and impartial body and the de-listing procedure before it can hardly be described as neutral. "This situation clearly constitutes violation of the basic due process principles that underpin Article 1(1) of the Charter and Article 14 [of the International Covenant on Civil and Political Rights]." De Wet, op. cit. supra note 20, at p. 354. She concludes that the core of human rights - "notably the right to life, the right to health, the right to self determination and the right to fair hearing are established under customary international law, as well as the applicable international and regional human rights treaties...." The States must secure proper judicial avenues to deal with the violations but the final responsibility rests with them. Id. at 379.
346. Kadi (CFI), cited supra note 67, paras. 261-291. The CFI supports its position by pointing to the information offered by the United Kingdom to the effect that the applicants have the opportunity "to bring an action for judicial review based on domestic law, indeed even directly on the contested regulation and the relevant resolution of the Security Council which it puts into effect, against any wrongful refusal by the competent national authority to submit their cases to the Sanctions Committee for re-examination." Kadi (CFI), cited supra note 67, para 270 (emphasis added) (citing by analogy the Order of the President of the CFI in Case T-44/03 R, Sison v. Council, [2003] ECR 11-2047, para 9). Despite the UK Government's submission in Kadi, however, the viability of such a claim in the UK as a matter of domestic and public international law seems rather mixed.
347. See e.g. R. (AlRawi and others) v. Secretary of State for Foreign and Commonwealth Affairs and another, [2006] EWCA Civ 1279 (AlRawi);
348. R. (Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs and another, [2002] EWCA Civ 1598, [2003] U.K.H.R.R. 76.
349. Kadi (CFI), cited supra note 67, at para 274.
350. International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), at Art. 14(1), U.N. Doc. A/RES/2200(XXI);
351. Universal Declaration of Human Rights, G.A. Res. 217(111), at Art. 10, U.N. Doc A/RES/217(111) (Dec. 12, 1948). In the Covenant, the right refers to a criminal charge or a suit of law, but a UN subsidiary organ would extend it to "an action or inaction taken or purported by a public authority ... ." UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1994/24 (3 June 1994), Annex II, para 4 (cited by Hathaway, op. cit. supra note 162, at p. 648, n. 1744).
352. Art. 47 EU Charter on Fundamental Rights, proclaimed by the Nice European Council on 26 Feb. 2001 on a non-binding basis, 2000/C 364/1, 20, parallels Art. 6(1) ECHR, providing a right to an effective remedy before a tribunal, while Art. 41 includes in para 2 the right to a hearing and reasoned decision. Some suggest that freezing of funds, because of its punitive nature, severity and stigmatization, and because it may lead to criminal charges at the national level, should trigger all the guarantees applicable to a criminal trial. De Wet and Nollkaemper, op. cit. supra note 40 at 177. The authors argue that a right to a fair hearing is not derogable. Id. at 179.
353. Manusama (op. cit. supra note 8, at 125-126) seems to consider the right to a fair hearing as ius cogens, citing only the Yusuf/judgment of the CFI. Another author cites the UN Human Rights Committee General Comment 29 as implying that "fundamental principles of fair trial" are ius cogens. See Orakhelashvili, "Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions", 16 EJIL (2005), 59, at 65. The UNHRC document, however, appears to be limited to the non-derogable nature in states of emergency of principles of fundamental fairness in criminal trials.
354. See U.N. Human Rights Committee, General Comment No. 29, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (31 Aug. 2001).
355. Cf. Kadi (A.G. Maduro Opinion), cited supra note 102, at para 24.
356. Id. at para 37.
357. Id. at para 44.
358. Id.
359. Id.
360. In the words of A.G. Maduro: "Had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order." Id. at para 54.
361. Id. at para 39. Cf. Brunner et al. v. Maastricht Treaty, decision of 12 Oct. 1993, B VerfGE 89, 155; in Re: Wünsche Handelsgesellschaft, decision of 22 Oct. 1986, BVerfGE 73, 339 ("Solange II").
362. Id. at para 30.
363. Kadi (Grand Chamber), cited supra note 91, at para 281.
364. Id. at para 286.
365. Id. at para 287.
366. Id. at para 321 (emphasis added).
367. Id. at paras. 322-25.
368. Id. at paras. 331-48.
369. Id. at paras. 349-51.
370. Id. at paras. 354-71.
371. Id. at paras. 373-76. In response to the judgment, the Commission's latest amendment of the relevant Regulation commits the Commission to "communicate the grounds on which [the] Regulation is based to the individuals concerned, provide them with the opportunity to comment on these grounds and review [the] Regulation in view of the comments and possible available additional information." Commission Regulation (EC) 1109/2008 of 6 Nov. 2008, O.J. 2008, L 299/23, at para 5.
372. Accord Eckes, op. cit. supra note 97, at 90.
373. See Case 90/63, Commission v. Luxembourg & Belgium, [1964] ECR 625.
374. Halberstam, "Comparative Federalism and the Role of the Judiciary" in Whittington, Kelemen, and Caldeira (Eds.), The Oxford Handbook of Law and Politics (Oxford University Press, 2008), p. 142, at 154.
375. See text at notes 56-57 supra.
376. Kadi (Grand Chamber), cited supra note 91, at 298-299.
377. Cf. section 2.3. of this article.
378. See text at notes 147-156.
379. See Fediol, cited supra note 150, and Nakajima, cited supra note 151.
380. See Racke, cited supra note 148.
381. Recall that Racke does not give us any criteria for divining the limits of what constitutes "fundamental" norms of customary international law (see the ECJ in Racke, cited supra note 148).
382. See Racke, cited supra note 148 and accompanying text.
383. See section 2 of this article.
384. Medellin v. Texas, 552 U.S, 128 S. Ct. 1346 (2008);
385. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006);
386. Breard v. Greene, 523 U.S. 371 (1998).
387. Sanchez-Llamas, cited supra note 202, at 350-360.
388. Medellin, supra note 202, at 1357-62.
389. Reid v. Covert, 354 U.S. 1, 15-16 (1957).
390. Accordingly, Posner was able to conclude: "Nothing remarkable here for an American lawyer, who is accustomed to the idea that constitutional rules take precedence over international law. The European Court is a creature of the European treaty system, not the UN; what else is it to do when European law and international law conflict? However, Europeans have long complained of the American practice of declaring that all U.S. treaty obligations are limited by the U.S. Constitution. And it takes a bit of legerdemain to convert regional treaty obligations into a 'constitution', but this is an old story. It turns out that Europeans, too, will not allow international law to supersede their fundamental values. Good for them! " Posner, "A Defeat for International Law and Victory for Progressive Values," The Volokh Conspiracy (blog) (3 Sept. 2008), www.volokh.com/posts/1220493190.shtml (last visited 10 Nov. 2008).
391. See e.g. Art. 11 TEU (listing as one of the objective of the Common Foreign and Security Policy: "to promote international cooperation").
392. See generally Koutrakos, EU International Relations Law (Hart, 2006), pp. 365-71
393. Nuttall, European Political Cooperation (Clarendon, 1992).
394. Bellanova, "The 'Prüm Process:' The Way Forward for EU Police Cooperation and Data Exchange" in Guild and Geyer (Eds.) Security versus Justice? Police and Judicial Cooperation in the European Union (Ashgate, 2008).
395. Under the pressure of the European colonial powers, the United States had consistently abstained on resolutions dealing with such items - until Henry Cabot Lodge, the U.S. Ambassador to the UN, persuaded President Eisenhower to overrule the Department of State opposition to cosponsoring an anti-apartheid resolution which the United States helped to draft. It refers for the first time to the concept of "integration" of races. After General Assembly debate, see e.g. GA. Res. 2054(XX) (15 Dec. 1965), the Security Council adopted U.N. Doc. S/RES 134 (1 April 1960). For a recent review of Security Council practice, see Manusama, op. cit. supra note 8, at pp. 51-62, passim (concluding that most disputes dealt with in the Council since 1990 have been internal in character).
396. See UN General Assembly, 2005World Summit Outcome, GA Res 60/1, UN GAOR, 60th Sess., UN Doc. A/RES/60/1 (2005), at para 139. For a critical review, see Brunnee and Toope, "Norms, Institutions and UN Reform: The Responsibility to Protect", (2006) J. Int. L. and Int. Rel., 121.
397. The debate on the reach of Art. 2(7) reverberates from time to time in the Security Council as its jurisdiction under Chapter VII is challenged (unsuccessfully as in the case of the changed regime in Haiti) on the ground that the situation in question was purely internal and did not rise to the level of a threat or breach of the peace. See S.C. Res. 841, U.N. Doc. S/RES/841 (16 June 1993).
398. As an example of the continuing radiation of the principle of non-intervention, the Representative of China in the Security Council explaining his veto of a draft resolution on Myanmar, spoke of "interfering in their internal affairs" and "the issue was mainly an internal affair of a sovereign State." 5619th Security Council Meeting, U.N. Doc. S/PV5619 (12 Jan. 2007), 3. Qatar's Representative encouraged "the best solution for Member States without interfering in their internal affairs." Press Release, Security Council, Security Council Fails to Adopt Draft Resolution on Myanmar, Owing to Negative Votes by China, Russian Federation, U.N. Doc. SC/8939 (12 Jan. 2007).
399. For an early debate, see "The Spanish Question" in 1 The United Nations Security Council Official Records (London, 1946), 155-200. See generally Franck, Fairness in International Law and Institutions (Oxford University Press, New York, 1996), p. 220, passim.
400. Saudi Arabia, South Africa and the Communist States abstained. Schopen et al., "Nations on Record: United Nations General Assembly Roll-Call Votes (1946-1973)" 30, 358-62 (Canadian Peace Research Institute, 1975).
401. See text at notes 56 to 57 supra. Cf. Cannizzaro, op. cit. supra note 11, at 191 (offering arguments in favour of judicial review by domestic courts);
402. Defeis, op. cit. supra note 90, at 1449 and note 3 (citing instances of such review). According to Orakhelashvili, cited supra note 172, at 85, in Certain Expenses the ICJ "implicitly recognizes the right of Member States to pass judgment on Security Council Resolutions."
403. Subcommittee IV/2/B, Doc. 750 IV/2/B/1, XIII United Nations Conference on International Organization: Documents, (2 June 1945), p. 832. Cf. Alvarez, op. cit. supra note 32, at p. 79.
404. Eighth Annual Report, cited supra note 63, at 17.