The Need for International Judicial Review of UN Economic Sanctions
© T.M.C. Asser Press and the author(s) 2015
Ali Z. Marossi and Marisa R. Bassett (eds.)Economic Sanctions under International Law10.1007/978-94-6265-051-0_1212. The Need for International Judicial Review of UN Economic Sanctions
(1)
Faculty of Law and Political Science, Allameh Tabatabai University, Dehkadeh Olympic, 148968451 Tehran, Iran
Abstract
In the beginning of 1990s, with the disappearance of the flames of Cold War, the UNSC began to establish economic sanctions against States that were thought to endanger international peace and security. In many cases, these sanctions were so severe that they seemed to contravene human rights standards. Such concerns gave rise to the idea of subjecting UNSC measures to judicial review in the international legal system. Many experts believe that the burden of maintaining international peace and security is so important that the UNSC should be free to apply any due strategies or actions. Although the UN Charter does not identify any body or organization to control the UNSC, by reference, one can infer that the UNSC’s actions are not absolutely unlimited. Several recent cases from the ECJ have made international law experts hopeful of resolving this predicament. These cases have served as a kind of indirect judicial review, influencing the UNSC by removing its sanctions and directing its performance. This is notable in that the ECJ is outside of the UN framework.
12.1 Introduction
The UNSC is the UN body entrusted with responsibility for the maintenance of international peace and security. Since international law has developed from jus ad bellum to prohibit the use of force, the UNSC has the singular responsibility of declaring that a situation amounts to a threat to or breach of peace or an act of aggression.1 In exercising this responsibility, the UNSC has wide discretion. It adopts resolutions prescribing measures in concrete cases. Sanctions are among the measures that have been used by UNSC.
The large increase in the number of resolutions adopted by the UNSC since the end of the Cold War makes it more likely that the legality of certain of its resolutions will be disputed, which might, in turn, expose the need for some form of judicial review. This chapter begins by analyzing the shortcomings of UNSC-imposed sanctions and their adverse impact on human rights. In the second part of the chapter, the case law of the ICJ and ECJ is presented to affirm the possibility of judicial review of UNSC action. The recent case law of the ECJ, in particular, indicates that the UNSC is subject to judicial review. While ECJ review of sanctions has not been direct, in the absence of any independent mechanism and procedure by which the decisions of UN political organs can be subject to legal scrutiny, this indirect review is welcome.
12.2 The Need for Judicial Review of UN Sanctions
Comprehensive UN sanctions were criticized in the early 1990s for their adverse humanitarian impact. The experience of Iraq demonstrated the shortcomings of comprehensive sanctions regimes.2 In response, the UNSC designed targeted sanctions regimes. Although the move toward targeted sanctions3 during the 1990s was aimed at reducing the human costs and unintended consequences of comprehensive sanctions, all sanctions, even targeted ones, impact and invariably restrict certain rights.
Like comprehensive sanctions, targeted sanctions can have severe effects on human rights. For instance, travel bans interfere with freedom of movement,4 and financial sanctions impact property rights5 and might also affect an individual’s privacy, reputation, and family rights.6 If these sanctions are wrongly imposed without granting the listed individuals the opportunity to be heard to challenge the measures, violations of the rights to access courts, to a fair trial,7 and to an effective remedy might also be violated.8
In the extreme, sanctions could conceivably violate the right to life9—for instance if a travel ban prevents a targeted individual from leaving a country to seek medical aid,10 or if financial sanctions are so stringent that a target does not have resources to buy basic goods such as food. Existing UN sanctions regimes, however, invariably include the possibility to grant exemptions precisely to avoid such situations.11 A travel ban could also conflict with other rights and freedoms such as the right to seek asylum,12 or the freedom of religion—for example, if the target’s religion requires pilgrimages.13 UN sanctions committees have also routinized exemptions for travel for religious purposes.14
Sanctions regimes have had particular problems since the UNSC—through its sanctions committees—started to impose measures on individuals rather than States without simultaneously offering recourse to individuals to challenge the measures. It is thus not surprising that individuals targeted by UNSC resolutions, be it in the form of travel bans or asset freezes, have attempted to raise fundamental rights complaints in different fora in order to have such resolutions invalidated or declared inapplicable or otherwise ineffective.
12.2.1 Targeted Sanctions and the Rights to a Fair Trial and an Effective Remedy
The rights to a fair trial and an effective remedy are included in the UDHR.15 The right to a fair trial is embodied in Article 10 of the UDHR: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Article 8 of the UDHR on the right to an effective remedy provides for “the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
The ICCPR also protects these rights.16 The right to a fair trial is recorded in Article 14(1), which states, in relevant part, “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ….”
The right to an effective remedy is included in Article 2(3):
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
The right to an effective remedy as enshrined in ICCPR Article 2(3) does not have a general scope; it is only applicable when another right protected by the ICCPR is involved. A UN-imposed sanction freezing assets would infringe on the right to access to property. However, this right is not included in the ICCPR. In contrast, Article 8 of the UDHR provides for a right to an effective remedy for acts violating a wide range of fundamental rights if those rights are granted or protected by constitution or law. Another significant difference between the two provisions is that UDHR Article 8 requires a remedy by a competent national tribunal, whereas Article 2(3) of the ICCPR speaks of “competent judicial, administrative, or legislative authorities,” which grants more room for nonjudicial remedies.
12.2.2 The Right to a Fair Trial under the ECHR
Article 6 of the ECHR encompasses the right to a fair trial. It states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”17
The ECtHR has ruled that the concept of criminal charge bears an “autonomous meaning,” which is independent of the characterization of a measure pursuant to national law.18 Relevant considerations to determine whether a certain measure qualifies as a criminal charge are: (1) the nature of the offense charged; (2) the severity of the sanction at stake (having regard in particular to any loss of liberty, a characteristic of criminal liability); and (3) the group to whom the legislation is applied (small and closely defined groups of potential offenders are suggestive of a disciplinary or administrative rather than a mainstream criminal offense).19
In determining what constitutes a civil right or obligation, the ECtHR has been less straightforward. As with the concept of criminal charge in the context of the ECHR, the concept of a civil right or obligation also has an autonomous meaning, independent of national qualifications.20 However, the ECtHR has not provided guidelines to determine whether civil rights or obligations are involved in certain cases; rather, it has chosen to deal with the issue on a case-by-case basis. As a result, expropriation of property21 and some forms of social security22 have been considered as falling within the realm of ECHR Article 6(1), whereas disputes relating to tax liability, for example, have been viewed as public law issues and not covered by Article 6(1).23
The issue of the status of targeted sanctions is particularly important with regard to sanctions imposed under UNSC Resolution 1267(1999). Under that resolution, targeted individuals are listed on the basis of their association with the terrorist organization Al-Qaeda.24 The criteria for listing, therefore, bear a criminal law connotation. In the case of the Côte d’Ivoire sanctions, in which individuals can be listed on the basis of relevant information that they are responsible for serious violations of human rights and international humanitarian law or that they publicly incite hatred and violence, the issue is the same.25
In addition to the criminal connotation of listing, some have also argued that the aim of the sanctions appears punitive and that the effect of the sanctions may rise to a level similar to criminal penalties. Yet the Analytical Support and Sanctions Monitoring Team, established pursuant to UNSC Resolution 1526 (2004) Concerning Al-Qaeda and the Taliban and Associated Individuals and Entities (1267 Monitoring Team), has consistently held that the sanctions are “designed to prevent terrorist acts, rather than provide a compendium of convicted criminals” and that the sanctions cannot be characterized as criminal in nature. The 1267 Monitoring Team also emphasized that the sanctions “do not impose a criminal punishment or procedure, such as detention, arrest or extradition, but instead apply administrative measures such as freezing assets, prohibiting international travel and precluding arms sales.”26 In short, a criminal law connotation does not mean that the sanctions should be characterized as criminal penalties.
Whether targeted sanctions could alternatively be qualified as civil obligations is difficult to answer given the casuistic case law of the ECHR on this point. Presumably, the answer will differ between types of sanctions. Asset freezing might be qualified as civil, but it is rather unlikely that travel bans would be so qualified. Although individuals may be listed on the basis of criteria that closely resemble the definition of a crime, it is relevant to consider the nature and the aim of the sanctions in characterizing it. The latter two aspects, at first glance, do not sustain a conclusion that sanctions should be equated with criminal charges.
The qualification of sanctions as either criminal charges, civil obligations, or as measures of another character is important for two reasons. First, the characterization indicates the evidence required for the statement of case that may lead to listing. If sanctions are characterized as criminal charges, the required evidence for listing an individual would have to meet a standard of beyond reasonable doubt. If, on the other hand, the sanctions are characterized as administrative, the evidentiary burden for listing is lower. In this case, it could still be maintained that the longer a person’s name is on the list and the longer his assets are frozen, the more harmful the effect. On that basis, it might be argued that the evidentiary standard that must be met should increase after an individual has been listed for a defined period of time. A second reason that the characterization is relevant is that characterizing sanctions as either criminal charges or as civil obligations would have direct consequences for the requirements of any possible review mechanism. If ECHR Article 6 is applicable, then the review mechanism must be judicial in nature. If Article 6 is not applicable, then the right to an effective remedy under Article 13 may still apply, but this provision sets a lower bar for review: the remedy need not necessarily be judicial.
Whether the sanctions fall within the realm of ECHR Article 6(1) on the right to a fair trial is a matter of controversy. Yet even if Article 6 were applicable, it may still be possible to limit its applicability on the basis of national security. The right to a fair trial in the ECHR is not phrased in absolute terms, as is, for example, the prohibition of torture in Article 3. Therefore, it may be possible to invoke national security issues as a justification to limit certain rights under Article 6. The text of the ECHR does not, however, mention this possibility. As regards limiting or excluding the access to a court for reason of national security, the ECHR has not given clear guidelines that apply directly to the due process issues arising in the context of UN sanctions. In the Tinnelly Case, however, the ECHR noted:
The Court recalls that Article 6 § 1 embodies the ‘right to a court’, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.
However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.27
Even assuming that the application of Chapter VII of the UN Charter offers grounds to declare a state of emergency, once Article 6(1) applies, there should be some access to a court. However, as noted above, Article 6(1) of the ECHR may not be applicable at all. If not, the ECHR can still pose procedural requirements, namely under Article 13, concerning the right to an effective remedy.
12.2.3 The Right to an Effective Remedy under the ECHR
Article 13 of the ECHR reads: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in official capacity.” As with Article 2(3) of the ICCPR, the right to an effective remedy does not have a general scope but is only relevant when another right of the ECHR is involved.28 Unlike the ICCPR, the ECHR protects the right to property. From that perspective, Article 13 of the ECHR is applicable. Furthermore, Article 13 of the ECHR does not require a judicial remedy but speaks instead of a remedy by a national authority, granting room for the use of nonjudicial remedies. What qualifies as an “effective remedy”? Since the remedy need not be judicial, investigation by an ombudsman or administrative or other nonjudicial procedures may also qualify as long as they are effective. According to the ECtHR, to determine whether a certain remedy is effective, one should assess the powers, procedural guarantees, and authority of the institution involved.29 Furthermore, whether a certain remedy can be deemed effective depends on the context of the case at hand.
For the purposes of this analysis, two cases may be of particular relevance—the Klass Case and the Leander Case. In the Klass Case, which concerned secret surveillance, the ECtHR held that a remedy should be as “effective as could be having regard to the restricted scope for recourse inherent in any system of secret surveillance.” In the Leander Case, which concerned security checks, the court further held that even if no single remedy under the national system might be effective on its own, the aggregate of remedies as a whole might still qualify as effective.30 More specific guidelines as to what constitutes an effective remedy might be found in a recommendation of the Committee of Ministers of the Council of Europe, which addresses the right to an effective remedy for rejected asylum seekers against decisions on expulsion.31
12.3 The Possibility of Judicial Review of UN Sanctions
The previous section addressed the shortcomings of targeted sanctions. The need for judicial review of security sanctions was reaffirmed. In this section, the focus is on the possibility of this judicial review. In this regard, the case law of ICJ and ECJ is analyzed.