The european courts and the security Council: Between dédoublement fonctionnel and balancing of values

European Journal of International Law

Volumn 20, Issue 1, 2009, Pages 193-228

  De Sena, Pasquale ^a   Vitucci, Maria Chiara ^b  

^a UNIVERSITY OF NAPLES FEDERICO II   (Italy)

^b UNIVERSITY OF PALERMO   (Italy)

Author keywords

[No Author keywords available]

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EID: 65449138779     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn077     Document Type: Review

References (197)

1. App. Nos 71412/01 and 78166/01 Behrami and Behrami v. France and Saramati v. France, Germany and Norway, ECtHR judgment of 5 May 2007, available at www.echr.coe.int.
2. App. Nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/ 05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/03, 1177/05, 1180/ 05, 1185/05, 20793/05, and 25496/05, Berić and Others v. Bosnia and Herzegovina, ECtHR judgment of 16 Oct. 200, available at www.echr.coe.int.
3. Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2005] ECR II-3533, and Case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II-3649.
4. Council Reg. (EC) 467/2001 of 6 Mar. 2001 (prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Reg. (EC) 337/ 2000), OJ (2001) L67/1, Commission Reg. (EC) 2199/2001 of 12 Nov. 2001 (amending, for the fourth time, Reg. 467/2001), OJ (2001) L295/16, and Council Reg. (EC) 881/2002 of 27 May 2002 (imposing certain specifi c restrictive measures directed against certain persons and entities associated with Osama bin Laden, the Al-Qaeda network and the Taliban, and repealing Reg. 467/2001), OJ (2002) 139/9.
5. Infra note 12.
6. SC Res. 1267 (1999) whereby the Sanction Committee (Al Qaeda/Taliban Committee) was established; SC Res. 1333 (2000) (whereby the SC instructed the Sanction Committee to maintain an updated list of the individuals and entities designated as associated with Osama bin Laden, including those in the Al-Qaeda organization), and SC Res. 1390 (2002), on the basis of which the applicants were listed and subjected to the abovementioned restrictive measures (both in the Yusuf and Kadi cases): On this procedure see Rosand, 'The Security Council's Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions', 98 AJIL (2004) 745.
7. Div. Ct. [2005] EWHC 1809 (Admin), judgment of 12 Aug. 2005 on the application of Hilal Abdul-Razzaq Ali Al-Jedda v. Secretary of State for Defence
8. CA (Civil Division) [2006] EWCA Civ. 327, judgment of 29 Mar. 2006 on the application of Hilal Abdul-Razzaq Ali Al-Jedda v. Secretary of State for Defence
9. HL [2007] UKHL 58, judgment of 12 Dec. 2007 on the application of Al-Jedda v. Secretary of State for Defence. All three decisions are available at www.hmcourts-service.gov.uk.
10. Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation, decided on 3 Sept. 2008, not yet reported, available at curia.europa.eu.
11. For the relevant references see infra sect. 3.
12. A discussion on this aspect is carried out, with specific regard to the Yusuf and Kadi judgments, by Bore Eveno, 'Le contrôle juridictionnel des résolutions du Conseil de Sécurité: Vers un constitutionnalisme international?', 110 RGDIP (2006) 827, at 836-837
13. a general overview of the debate about an emerging international constitutionalism can be found in De Wet, 'The International Constitutional Order', 55 Int'l Comp LQ (2006) 51, at 57 ff.
14. Case T-253/02, Chafiq Ayadi v. Council of the European Union [2006] ECR II-2139
15. Case T-49/04, Faraj Hassan v. Council of the European Union and Commission of the European Commission [2006] ECR II-52.
16. Supra note 4.
17. The right to the use of property, the right to a fair trial-particularly the right to a fair hearing-the right to an effective judicial remedy: such rights have been invoked in the light of both the reference made by Art. 6(2) of the EU Treaty to the ECHR, and the case law of the ECJ, in the Yusuf (paras 190-191)
18. Kadi (paras 138-148)
19. and Hassan cases (paras 69-85)
20. the applicant also pleaded a violation of the right to respect for private and family life; in the Ayadi case, a direct reference was made to the ECHR (paras 98-99); the applicant argued that the restrictive measures reduced him to stealing in order to survive, and that such a situation constituted degrading treatment prohibited by Art. 3 ECHR as well as a denial of respect for his dignity under Art. 8.
21. Para. 246 of the Yusuf judgment, supra note 3; Art. 297 EC establishes a duty of consultation 'to prevent the functioning of the common market being affected by measures which a Member State may be called upon to take, inter alia, 'in order to carry out obligations it has accepted for the purpose of maintaining peace and international security'; according to Art. 307 EC, '[t]he rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more member states on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.
22. See the Yusuf judgment, supra note 3, at para. 274, where a reference is made to Art. 5 EC.
23. Ibid., at para. 273: Specifi c references are made to Arts 25, 48, and 103 UN Charter, as well as to Art. 27 Vienna Convention.
24. Yusuf judgment, supra note 3, at para. 275.
25. Ibid., at paras 277-283.
26. Supra note 13.
27. With regard to the right to the use of property, 'arbitrary deprivations' of property come to the fore (see paras 293-294 of the Yusuf decision,
28. supra note 3, paras 242-243 of the Kadi judgment,
29. supra note 3, as well as paras 117 and 92, respectively, of the Ayadi and Hassan judgments,
30. supra note 11). For the right to a fair hearing and the right to an effective judicial remedy see, respectively, paras 307 and 341 of the Yusuf judgment and paras 268 and 286 of the Kadi judgment (as well as paras 117 and 92, respectively, of the Ayadi and Hassan judgments)
31. for the right to respect for private and family life see para. 126 of the Ayadi judgment and para. 127 of the Hassan judgment; for the alleged violation of the prohibition of degrading treatments (Art. 3 ECHR) see para. 120 of the Ayadi judgment.
32. According to Nettesheim, 'U.N. Sanctions against Individuals - A Challenge to the Architecture of European Union Governance', 44 CMLRev (2007) 567, Art. 10 provides for a mere duty of the EC' not to prevent Member States from fulfilling their duties or the make such fulfilment unduly difficult', whereas a duty of the EU 'to take on obligations of the member states' could not be supported by Art. 307, this norm being simply a 'division of power norm' between the EU and the Member States (at 584)
33. for similar criticisms see also Vandepoorter, 'L'application communautaire des decisions du Conseil de Sécurité', 52 Annuaire français de droit international (2006) 102, at 122.
34. Conforti, 'Decisioni del Consiglio di sicurezza e diritti fondamentali in una bizzarra sentenza del Tribunale comunitario di primo grado', 11 Diritto dell'Unione europea (2006) 333, at 342.
35. Cannizzaro, 'A Machiavellian Moment? The UN Security Council and the Rule of Law', 3 Int'l Org L Rev (2006) 189, at 202.
36. See Tomuschat, 'Case Law-Court of Justice', 43 CMLRev (2006) 537, at 546.
37. Bore Eveno, supra note 10.
38. Yusuf judgment, supra note 3, at para. 254 (emphasis added).
39. Ibid., at para. 255.
40. Ibid., at para. 275 (emphasis added).
41. In this respect see the views expressed by Nettesheim and Vandepoorter, supra note 21.
42. In a similar vein see Eeckhout, 'Community Terrorism Listing, Fundamental Rights, and UN Security Council Resolutions. In Search of the Right Fit', 3 European Constitutional L Rev (2007) 183, at 191-192
43. see also the Opinion of Poiares Maduro AG (16 Jan. 2008) in Case C-402/ 05 P, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, not yet reported, at para. 39.
44. The applicability of Art. 103 to the UN SC resolutions is widely admitted: See infra sect. 3.
45. See, e.g., Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629, and, more recently, Joined Cases C-10/ 97 to C-22/97, Ministero delle Finanze v. IN.CO.GE.'90 and others Srl [1998] ECR I-6307.
46. Supra note 1.
47. See infra in this sect.
48. For a general overview on the question of the extraterritorial jurisdiction see P. De Sena, La nozione di giurisdizione statale nei trattati sui diritti dell'uomo (2002)
49. more recently see also Cerone, 'Out of Bounds? Considering the Reach of International Human Rights Law', Center For Human Rights and Global Justice Working Paper No. 5 (2006)
50. De Schutter, 'Globalization and Jurisdiction: Lessons from the European Convention on Human Rights', 6 Baltic Yrbk Int'l L (2006) 143
51. F. Coomans and M.T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties (2004).
52. Palchetti, 'Azioni di forze istituite o autorizzate dalle Nazioni Unite davanti alla Corte europea dei diritti dell'uomo: I casi Behrami e Saramati', 90 Rivista di diritto internazionale (2007) 693
53. Larsen, 'Attribution of Conduct in Peace Operations: The "Ultimate Authority and Control" Test', 19 EJIL (2008) 509
54. Lagrange, 'Responsabilité des Etats pour actes accomplis en application du chapitre VII de la Charte des Nations Unies', 112 RGDIP (2008) 85
55. Sarl, 'Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases', 8 Human Rights L Rev (2008) 151.
56. As will be made evident below (infra sect. 5), the Court draws a further consequence from the attribution of the alleged acts and omission to the UN instead of to member states: It does not consider it necessary to assess the equivalence of the human rights protection in UNMIK and KFOR.
57. More than a qualification, it seems to be a total displacement of the rights at stake. In this decision there is no room for the balancing of interests ruling, normally operated by the Court. See infra sect. 5.B.
58. UN Doc. A/59/10, at 109.
59. Various elements allow one to state the attribution of UNMIK's activities to the UN: UNMIK is a subsidiary organ of the SC, and the Secretary-General could waive the immunity of UNMIK personnel (while for KFOR personnel requests were to be referred to the relevant national commander: See Behrami and Saramati, supra note 1, at para. 46).
60. But see contra the UN submissions referred to in the Court's decision, at para. 120.
61. Stein, 'The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of its Member States?', in C. Tomuschat (ed.), Kosovo and the International Community, A Legal Assessment (2002), at 181, 191
62. Cerone, 'Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo', 12 EJIL (2001) 469, at 485-487.
63. See also Brownlie, 'The Responsibility of States for the Acts of International Organizations', in M. Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (2005), at 355, 361.
64. Behrami and Saramati, supra note 1, at para. 134.
65. Ibid., at para. 141.
66. While the Court uses the term 'delegation', as had already made clear (ibid., at para. 43), that term and the term 'authorization' are used interchangeably. For a clear and convincing demonstration that not every kind of authorization can be considered legitimate according to the UN Charter see Picone, 'Le autorizzazioni all'uso delle forza tra sistema delle Nazioni Unite e diritto internazionale generale', 88 Rivista di diritto internazionale (2005) 5. The author identifies several conditions which must be met in order for the authorization to be legitimate (at 13-15)
67. in particular, for what concerns KFOR, see at 50-51 and at 60, note 160, in fine.
68. Still, two different chambers of the ECtHR have confirmed in two recent cases that the actions and inactions of KFOR are in principle attributable to the UN, quoting the Behrami precedent: App. No. 6974/05 Kasumaj v. Greece, judgment of 5 July 2007, at para. 3 and App. No. 31446/01 Gajic v. Germany, judgment of 28 Aug. 2007, at para. 1, available at: www.echr.coe.int.
69. Bernhardt, 'Art. 103' in B. Simma et al. (eds), The Charter of the United Nations. A Commentary (2002), at 1292, 1295-1296
70. Thouvenin, 'Article 103' in J.P. Cot, A. Pellet, and M. Forteau (eds), La Charte des Nations Unies. Commentaire Article par Article (2005), at 2132, 2135.
71. See also the Order of 14 Apr. 1992 of the ICJ in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992 [1992] ICJ Rep. 3, at 15, para. 39.
72. See also for further reference Kolb, 'Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?', 64 ZaöRV (2004) 21.
73. Behrami and Saramati, supra note 1, at para. 148 (emphasis added).
74. Cannizzaro, supra note 23, at 200-201, n. 24.
75. Actually, an analysis of the legal writings extending the scope of Art. 103 to authorizations shows that the reason behind such extension is always teleological, not to obstruct the implementation of UN sanctioned collective measures (D. Sarooshi, The United Nations and the Development of Collective Security (1999), at 151) and not to hamper the effectiveness of the system of collective security (Frowein and Kirsch, 'Art. 39' and 'Art. 42' in Cot et al. (eds), supra note 45, at 729 and 759).
76. Behrami and Saramati, supra note 1, at para. 149 (emphasis added).
77. Ibid., at paras 94, 101, 108, 111, 115, and 117.
78. As a consequence, the Court totally disregards the human rights protection which is also enshrined in the UN Charter: See infra sect. 5.
79. Supra note 2. Moreover, this decision has been followed up in later cases. On the one hand, there are the cases, already quoted supra at note 44, regarding the attribution to the UN of KFOR's acts and omissions
80. on the other hand, there is a case attributing to the UN removals from office ordered by the High Representative for Bosnia and Herzegovina: App. Nos 45541/04 and 16587/07, Dragan Kalinić and Miograd Bilbija v. Bosnia and Herzegovina, judgment of 13 May 2008, available at: www.echr.coe.int.
81. On the latter case see infra notes 87 and 88 and corresponding text.
82. See the conclusions of the Bonn Peace Implementation Conference, by which the Peace Implementation Council (PIC) approved the High Representative's authority to remove from office public officials considered to be violating legal commitments of the Peace Agreement: UN Doc. S/1997/979.
83. See also SC Res. 1144 (1997) and 1722 (2006).
84. The Constitutional Court, by its AP 953/05 decision of 8 July 2006, had ordered domestic authorities to secure an effective remedy in respect of removal from office by the High Representative. The High Representative deprived the Constitutional Court judgment of any practical effect by declaring, in his decision of 23 Mar. 2007, that his acts could not be challenged before any court, so as not to undermine the implementation of the civilian aspect of the Dayton Peace Agreement.
85. This wording replaces the 'ultimate authority and control' of the Behrami and Saramati decision, supra note 1.
86. Even if the Court refers to Bosnia's acceptance of the international administration (Berić and Others, supra note 2, at para. 30), one can cast doubt on the degree of consent freely expressed by Bosnia at the signature of Dayton Agreement.
87. Quoted in Berić and Others, supra note 2, at para. 17.
88. See supra note 7.
89. For a critical comment see Arcari, 'Autorizzazioni del Consiglio di sicurezza, tutela dei diritti dell'uomo e occupazione militare in Iraq: il caso Al-Jedda di fronte ai giudici britannici', 89 Rivista di diritto Internazionale (2006) 1083
90. Palchetti, supra note 36, at 708 ff.
91. See supra note 7.
92. Al-Jedda, supra note 7, at para. 23.
93. Ibid., at para. 34 (emphasis added).
94. We can already anticipate that various Law Lords have nevertheless felt the need to find a balance between the duty to follow the content of the SC Resolution imposing detention and the detainee's fundamental rights under the Convention. See infra sect. 5.B.
95. Scelle, 'Le phénomène juridique du dédoublement fonctionnel', in W. Schätzel and H.J. Schlochauer (eds), Rechtsfragen der internationalen Organisation, Festschrift für Wehberg (1956), at 324, 331
96. Scelle's model has been recently recalled by P.-M. Dupuy as a more general source of inspiration for framing the relations between international law and national legal systems: 'Unité d'application du droit international à l'echelle globale et responsabilité des juges', 1 European J Legal Studies (2007), available at: www.ejls.eu, at 4
97. for some critical remarks in this regard see Y. Shany, Regulating Jurisdictional Relations Between National and International Courts (2007), at 97.
98. Cassese, 'Remarks on Scelle's Theory of "Role Splitting" (dédoublement fonctionnel) in International Law', 1 EJIL (1990) 210.
99. Suffice it to think that Scelle, far from describing the Permanent Court of International Justice as a states' agent, considered it 'a collective body fulfilling a judicial function' on behalf of a sort of 'suprastate society', such as the League of Nations: ibid., at 218-219.
100. With respect to SC decisions targeting individuals in the context of the fight against terrorism see, e.g., Cannizzaro, supra note 23, at 200
101. as well as Alvarez, 'Hegemonic International Law Revisited', 97 AJIL (2003) 871, at 876-877
102. for what concerns the international administrations see Stahn, 'The United Nations Transitional Administration in Kosovo and East Timor: A First Analysis', 5 Max Planck Yrbk UN L (2001) 105, at 119, where one reads: 'the United Nations has, in both cases, assumed the classical powers of a state within the respective territories'
103. Bothe and Marauhn, 'UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration', in Tomuschat (ed.), supra note 41 at 217
104. and, more generally, D. Sarooshi, International Organizations and their Exercise of Sovereign Powers (2005).
105. Behrami and Saramati, supra note 1, at paras 147-149
106. Berić and Others, supra note 2, at paras 26-30.
107. In this regard see supra notes 18-20 and the corresponding text.
108. Behrami and Saramati, supra note 1, at para.
109. Scelle's monism is not a normative monism, in so far as it stems from the basic assumption that the legal orders (including international law) are social phenomena aimed at regulating different aspects of the individual life (Précis de droit des gens (1932) I, at 28
110. Régles Générales du droit de la paix, 46 RC (1933) IV 331, at 341-344)
111. it has been considered as an 'extreme form of monism' by Thierry, 'The Thought of George Scelle', 1 EJIL (1990) 193, at 200.
112. The connections between this approach and Kelsen's theory have been highlighted by Jouannet, 'L'idée de communauté humaine à la croisée de la communauté des Etats et de la communauté mondiale', 47 Archives de philosophie du droit (2003) 191, at 208-212.
113. Cassese, supra note 65, at 212 (emphasis added).
114. Règles Générales du droit de la paix, supra note 71, at 351.
115. The reference here is to Art. 1(3), Art. 55, and Art. 56, by virtue of which the member states of the UN pledge themselves simply to promote universal respect for human rights and to cooperate with the UN itself with this aim.
116. With specific regard to the case law of the CFI see Sciso, 'Fundamental Rights and Article 103 of the UN Charter before the Court of First Instance of the European Communities', 15 Italian Yrbk Int'l L (2006) 137, at 148 ff.
117. It does seem excessive to conclude that such obligations can be formally traced back to the Charter - and, thus, to Art. 103 - simply because they are aimed at implementing the principles (of which they are considered specifications) enshrined in the Charter itself.
118. Cannizzaro, supra note 23, at 201.
119. See the preambles to SC Res. 1456 (2003), 1535 (2004), 1617 (2005), and 1787 (2007).
120. See, for instance, SC Res. 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), and 1617 (2005).
121. For the amendments to the listing and de-listing procedures provided for by SC Res. 1730 (2006) and 1735 (2006) see Arcari, 'Sviluppi in tema di tutela dei diritti di individui iscritti nelle liste dei comitati delle sanzioni del Consiglio di sicurezza', 90 Rivista di diritto internazionale (2007) 657. The same conclusions could equally be applied even after the adoption of SC Res. 1822 (2008).
122. GA Res. 60/288 of 8 Sept. 2006.
123. GA Res. 61/171 of 1 Mar. 2007 and GA Res 62/159 of 11 Mar. 2008.
124. GA Res. 62/272 of 15 Sept. 2008.
125. See Zimmermann and Stahn, 'Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo', 70 Nordic J Int'l L (2001) 423, at 447
126. Aznar-Gómez, 'Some Paradoxes on Human Rights Protection in Kosovo', in P.-M. Dupuy et al. (eds.), Völkerrecht als Weltordnung - Common Values in International Law, Festschrift für/Essays in Honour of Christian Tomuschat (2006), at 15, 26, and 40
127. Ingravallo, ' La tutela dei diritti umani nel Kosovo sotto amministrazione diretta dell'ONU' in A. Cannone et al. (eds), I Studi in onore di Starace (2008) 447.
128. The document in question, a paper issued by the Special Representative of the Secretary-General on 12 Jan. 2000, is quoted by Stahn, supra note 67, at 163.
129. In addition to Annex 10, the respect for human rights is the very topic of Annex VI to the Agreement.
130. See the High Representantive's Order on the Implementation of the Decision of the Constitutional Court of Bosnia and Herzegovina in the Appeal of Milorad Bilbija et al., AP-953/05 of 23 Mar. 2007, available at: www.ohr.int.
131. See supra note 53.
132. There is a standard preambular para. in the decisions affecting individual rights, where the High Representative declares himself to be ever conscious of the need to balance in due proportion the public good with the rights of individuals.
133. Supra sect. 4.
134. Supra sect. 2.
135. For a general and very in-depth analysis of the principle of proportionality in the case law of the ECtHR see S. Van Drooghenbroeck, La proportionalité dans le droit de la Convention européenne des droit de l'homme (2001)
136. more recently, see also Arai-Takahashi, 'The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR', 74 British Yrbk Int'l L (2004) 435.
137. Opinion of Poiares Maduro AG, supra note 30, at para. 25.
138. Ibid., at paras 29-33.
139. Ibid., at para. 26 and Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others [1996] ECR I-3953 (decided on 30 July 1996)
140. the individual interests at stake were both the right to property and the freedom to pursue a trade or business, allegedly infringed by EC Reg. 990/93 (implementing SC Res. 820 (1993)), according to which 'all vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro) shall be impounded by the competent authorities of the Member States'.
141. App. No. 13258/87, M. and Co. v. FRG, DR 64 138.
142. App. No. 43036/98, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, judgment of 30 June 2005, available at: www.echr.coe.int, at para. 155
143. for critical analyses of this judgment see, recently, Haratsch, 'Die SolangeRechtsprechung des Europäischen Gerichtshof für Menschenrechte', 66 ZaöRV (2006) 927, at 936 ff.
144. and Lavranos, 'Das So-Lange-Prinzip im Verhältnis von EGMR und EuGH', 41 Europarecht (2006) 79.
145. Ibid., at para. 148.
146. Behrami and Saramati, supra note 1, at para. 151
147. Berić, supra note 2, at para. 29.
148. For a critical view on the equivalent protection test see Conforti 'Le principe d'équivalence et le contrôle sur les actes communautaires dans la jurisprudence de la Cour européenne des droits de l'homme', in M. Breitenmoser et al. (eds), Human Rights, Democracy and the Rule of Law. Menschenrechte. Demokratie und Rechtsstaat. Droits de l'homme, démocratie et état de droit. Liber amicorum Luzius Wildhaber (2007), at 173, 179-180.
149. Still, the Court decided not to review these acts, considering them functional to the effective fulfilment of the UN imperative peace and security aim. See supra note 50 and the corresponding text.
150. For a possible different outcome, at least in relation to the ECHR's violations which can be traced back to SC resolutions against terrorism, see infra sect. 5.C., nn 138, 139, and the corresponding text.
151. See supra notes 40 to 44 and the corresponding text.
152. We are not concerned here with the high threshold established by the Court for rebutting the presumption: See Ciampi, 'L'Union européenne et le respect des droits de l'homme dans la mise en oe uvre des sanctions devant la Cour Européenne des droits de l'homme', 110 RGDIP (2006) 85, at 98.
153. Behrami and Saramati, supra note 1, at para. 151.
154. App. Nos 14553/89 and 14554/89, Brannigan and McBride v. United Kingdom, judgment of 23 Mar. 1993, at paras 63-66
155. App. No. 21987/93, Aksoy v. Turkey, judgment of 26 Nov. 1996, at paras 71-84.
156. See UNMIK Statement on the Ombudsperson Special Report No. 3, referred to infra at note 111
157. but see contra Stahn, supra note 67, at 166-167.
158. See the Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, adopted by the Venice Commission at its 62nd plenary session, 11-12 Mar. 2005, available at: www.venice.coe.int, in particular at paras 97 and 99.
159. In the Al-Jedda case, supra note 7, various Law Lords felt the need to find a balance between the duty to follow the content of the SC Res. imposing detention and the detainee's fundamental rights under the Convention: See the Al-Jedda House of Lords decision, at paras 39, 126, 130, and 136.
160. SC Res. 1244 (1999), at para. 11 letter j and also UNMIK Reg. 1999/24 of 12 Dec. 1999, available, as are all UNMIK documents, at: www.unmikonline.org.
161. See UNMIK Regs 2000/38 of 30 June 2000, 2006/6 of 16 Feb. 2006, and 2006/ 12 of 23 Mar. 2006. We will not deal here with the changes in the Ombudsperson's mandate, as they result from the second Reg., because it is not applicable to the facts at stake. Even if the jurisdiction of the Human Rights Advisory Panel does not cover the facts under examination, we will nevertheless mention it to show that nothing has really changed, at least not for the better, even after the most recent regs.
162. For a commentary on the Human Rights Advisory Panel see Knoll and Uhl, 'Too Little, Too Late: The Human Rights Advisory Panel in Kosovo', 10 European Human Rights L Rev (2007) 534, at 543.
163. UNMIK Reg. 2000/38, sect. 3, at para. 4.
164. Ombudsperson Institution, Special Report No. 3 on the Conforming of Deprivations of Liberty under 'Executive Orders' with Recognized International Standards of 29 June 2001, available at: www.ombudspersonkosovo.org.
165. See the transcript of the Press Briefing of 2 July 2001, UNMIK Statement on the Ombudsperson Special Report No. 3, available at: www.unmikonline.org/pio.htm.
166. The applicability of the European Convention is provided for in Art. 2(2) of the Constitution, contained in Annex IV of the Dayton Agreement.
167. See supra sect. 3.
168. See Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation, supra note 8, at para. 283; for a first commentary on this judgment see Tridimas and Gutiérrez-Fons, 'EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?', available at: www.coleurop.be.
169. Ibid., at para. 286; emphasis added.
170. The reference here is to the unequivocal statements made by the Court at paras 301-305 of the judgment, supra note 8 (see also infra).
171. For some critical remarks on the opposite attitude adopted by the CFI with regard to Arts 297 and 307 EC Treaty and to Art. 103 UN Charter see supra sect. 2.
172. Kadi appeal judgment, supra note 8, at para. 285.
173. Ibid., at para. 293.
174. Ibid., at paras 318 and 319.
175. More precisely, it is stated that the above provisions 'cannot be understood to authorise any derogation from the [EC] principles of liberty, democracy and respect for human rights and fundamental freedoms': supra note 8, at para. 303.
176. On this point, see supra sect. 5.A., at note 80.
177. Kadi appeal judgment, supra note 8, at para. 322.
178. That is, in order to receive a de-listing request, verify its novelty, forward the request - for their information and possible comments - to the designating government(s) and to the government(s) of citizenship and residence, inform the petitioner of the determinations of the Sanction Committee relating to his/her request (see points 1-4 and 8 of the 'de-listing procedure' provided for by Res 1730); supra note 80.
179. Kadi appeal judgment, supra note 8, at paras 323, 324, and 325.
180. For the appropriate references, as well as for a discussion on the role that this principle might have played in the framework of the Behrami and Saramati decision, see supra sect. 5.B.
181. See particularly paras 339-342 of the judgment, supra note 8.
182. This is what can be substantially drawn from paras 343 and 344.
183. See para. 249 (for the position of the appellants), paras 250-251 (for the position of the Court), and para. 253 (for the final statement of the Court).
184. At para. 263, whereby both the Bosphorus judgment of the ECJ (supra note 95) and the Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland decision of the ECtHR, supra note 97, are recalled.
185. At para. 268.
186. App. No. 696/05, Dassa Foundation and Others v. Liechtenstein, judgment of A0 July 2007, available at: www.echr.coe.int: at section B of the judgment, 'Compliance under Article 6 of the Convention'; it has to be recalled that Art. 6 of the ECHR, in so far as it is relevant, reads: '[i] n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair... hearing within a reasonable time by [a]... tribunal established by law.... Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law'. In a similar vein, with specific regard to the targeted sanctions, see also Fassbender, "Targeted Sanctions and Due Process', 3 Int'l Org L Rev (2006) 437; contra, Cameron, 'The ECHR, Due Process and UN Security Council Counter-Terrorism Sanctions', Report prepared for the Council of Europe (2006), at 2.
187. More generally see Cameron, 'UN Targeted Sanctions, Legal Safeguards and the ECHR', 72 Nordic J Int'l L (2003) 159, and Schilling, 'Der Schutz der Menschenrechte gegen Beschlüsse des Sicherheitsrats. Möglichkeiten und Grenzen', 64 ZaöRV (2004) 343.
188. See, among the others, App. No. 41673/98, Bruncrona v. Finland, judgment of 16 Nov. 2004, at para. 69, as well as App. No. 13616/88, Hentrich v. France, judgment of 22 Sept. 1994, at para. 49.
189. In this regard see the critical remarks made supra, in sect.
190. On this point see supra sect. 5.B.
191. SC resolutions imposing targeted sanctions against suspected terrorists tend to be implemented in the domestic legal orders through domestic acts (see V. Gowland Debbas (ed.), National Implementation of United Nations Sanctions (2004), at 103, 195, 233, 523). But it has to be stressed that in an increasing many instances these resolutions have been incorporated into EC regulations which do not need-in principle - any domestic act of implementation as a consequence of their 'direct effect': Furthermore, violations of the ECHR could be asserted (e.g., in the field of the protection of reputation, which is encompassed in art. 8 of the Convention) as a direct consequence of such resolutions, irrespective of their domestic implementation.
192. According to para. 4 (Decision making) (a) of the Guidelines of the [Al-Qaida and Taliban Sanctions] Committee for the Conduct of its Work (Adopted on 7 Nov. 2002, as amended on 10 Apr. 2003, 21 Dec. 2005, 29 Nov. 2006, and 12 Feb. 2007), '[t]he Committee shall make decisions by consensus of its members'; an identical provision can be found at para. 8 with regard to the delisting procedure.
193. And this in spite of any formal consideration on the attribution of the above acts to the UN: In this regard see De Sena, supra note 35, at 237, as well as Schilling, supra note 133, at 345; more generally see also M. Hartwig, Die Haftung of Mitgliedstaaten für internationale Organisationen (1993), at 277.
194. In the light of which the balance pursued by the ECJ was actually carried out in the Kadi judgment (supra this sect.).
195. Unlike Art. 6 of the Convention, Art. 13 does not provide for a right to a judicial remedy (see, e.g., App. No. 9248/81, Leander v. Sweden, judgment of 26 Mar. 1987, at para. 77); from the relevant case law of the ECtHR it emerges, however, that both the availability of an individual remedy and the existence of independent controlling authorities (irrespective of their non-judicial nature or non-binding powers), as well as of ultimate judicial control over the acts of such authorities are the minimum conditions which must be in place to avoid arbitrary restrictions of the rights safeguarded by the ECHR, and thus by its Art. 13 (App. No. 5029/71, Klass and others v. Germany, judgment of 6 Sept. 1978, at paras 70-72).
196. In the absence of these guarantees, what is ultimately impaired is the very essence of the right to an effective remedy, which goes against the general principle that the very essence of the Convention rights must be guaranteed, not only in any cases of restriction, but also in cases of derogation under Art. 15 of the Convention (see supra sect. 5.B).
197. It can be underlined that the conditions just mentioned are clearly not met in the ambit of the freezing procedures provided for by SC resolutions, given that the de-listing procedure in fact continues to be intergovernmental in nature - in spite of the amendments to it introduced by SC Res. 1730 (2006) (supra this sect.) - and it is manifestly incompatible with the need for a genuine, individual remedy, as provided for by Art. 13. What is more, the irreconcilability of this procedure with the standards which can be drawn from the case law of the ECtHR is confi rmed not only (and not so much) by the fact that the de-listing procedure is carried out by the same states which proposed the listing in the first place (that is, not by an independent authority), but also by the fact that the final decision is not subject to any form of judicial review.