Security Council targeted sanctions, due process and the 1267 Ombudsperson.

Author:Willis, Grant L.
 
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TABLE OF CONTENTS INTRODUCTION I. BACKGROUND OF TARGETED SANCTIONS AND THE 1267 SANCTIONS REGIME A. Security Council Targeted Sanctions B. The Security Council's 1267 Sanctions Regime 1. Overview of the 1267 Sanctions Regime 2. Evolution of the 1267 Sanctions Regime's Listing and Delisting Procedures C. Due Process Based Legal Challenges to the 1267 Sanctions Regime D. 1267 Sanctions, Administrative or Punitive in Character II. IS THE UNITED NATIONS SECURITY COUNCIL UNBOUND BY RELEVANT RULES OF INTERNATIONAL LAW WHEN ADOPTING TARGETED SANCTIONS PURSUANT TO ITS CHAPTER VII POWERS? A. In General, Are International Legal Norms Applicable to the Security Council? B. Sources of International Law That Are Applicable to the Security Council 1. The U.N. Charter 2. Jus Cogens and the Security Council's Power to Derogate from Applicable Law C. Conclusions on the Security Council and the Rule of Law III. IS THE SECURITY COUNCIL OBLIGED TO ENSURE THAT RIGHTS OF DUE PROCESS ARE MADE AVAILABLE TO INDIVIDUALS AND ENTITIES DIRECTLY TARGETED WITH SANCTIONS UNDER CHAPTER VII OF THE U.N. CHARTER? A. Right of Due Process as Customary International Law and/or a General Principle of Law B. Implied Duties Doctrine C. Universal Declaration of Human Rights D. U.N. Charter E. Jus Cogens F. Other Legal Bases G. Conclusions on Possible Legal Bases for an Obligation on the Security Council to Comply with Due Process IV. SUBSTANTIVE PRINCIPLES INHERENT In THE RIGHT OF DUE PROCESS V. DOES THE CREATION OF THE 1267 OMBUDSPERSON RECTIFY THE REGIME'S NONCOMPLIANCE WITH DUE PROCESS STANDARDS? CONCLUSION INTRODUCTION

This article proceeds in five parts. The article will begin by examining the evolution of the Security Council's non-military sanctions policy, from traditional collective sanctions to the recent use of targeted sanctions. Part I will continue by describing a few of the most recent and noteworthy international and domestic judicial challenges to the Security Council's Taliban/A1-Qaeda sanctions regime. (1)

Part II analyzes the preliminary question of whether the Security Council can ever be obligated to comply with an international legal norm or whether the Council has a unique status in the international legal sphere that provides it is unbound by international law when it exercises its Chapter VII powers. The article then explains how the Security Council can be obligated to comply with certain relevant international legal norms, supported by holdings of the International Court of Justice. Part II also examines the sources of international law that are applicable to the Security Council. The United Nations Charter and jus cogens norms are the most significant legal limitations to the Security Council's Chapter VII powers, but other sources of international law, such as treaties, custom and general principles of law may bind the Council if certain conditions are satisfied.

To build on the conclusion that the Security Council may be obligated to comply with international legal norms, Part III discusses the most prevalent arguments with respect to legal bases that establish a Security Council obligation to ensure that rights of procedural due process are made available to individuals directly targeted with sanctions under Chapter VII of the U.N. Charter. Specifically, this Chapter scrutinizes such legal bases as the implied duties doctrine, the Universal Declaration on Human Rights, U.N. Charter provisions, and due process as a jus cogens norm.

Part IV brings together the discussions in the prior two parts by examining the substance of the Security Council obligation regarding procedural due process standards. This Chapter identifies the international legal principles implicit in an individual's right to due process and the legal foundations of such a right. Part IV concludes by indicating the substantive legal principles inherent in the right to procedural due process.

Working on the conclusion that the Security Council is under a legal obligation to comply with procedural due process standards when it directly targets individuals with sanctions, Part V explores the significance of the establishment of the Taliban/Al-Qaeda sanctions regime's Ombudsperson. In particular, this Part evaluates whether the establishment of the Ombudsperson brings the sanctions regime into compliance with internationally accepted procedural due process standards discussed in Part IV, and thus whether the Security Council can be found to satisfy its obligation under international law to secure due process rights for targeted individuals. Specifically, Part V examines the Ombudsperson's powers to ascertain whether this new body can provide targeted individuals with direct access to an independent decisionmaker that is empowered to grant an effective remedy. This part then concludes by arguing that the Ombudsperson is significant because it targeted individuals have direct access to it, it is independent from the Security Council and it is empowered to review delisting requests, then offer personal 'observations'. However, it is further contended that the lack of power of the Ombudsperson to provide an effective remedy to affected individuals, means that the sanctions regime is still not fully in compliance with applicable due process standards.

In sum, the purpose of this article is to analyze whether, given the Security Council's exceptional status in international law, there are any legal bases for a Security Council obligation to ensure that rights of procedural due process are made available to individuals directly targeted with sanctions under Chapter VII of the U.N. Charter. Upon establishing such legal bases, this article discusses whether or not the Security Council is in compliance with its legal obligation to respect the due process rights of individuals' in the Taliban/A1-Qaeda sanctions regime now that it has established the Office of the Ombudsperson for that regime.

  1. BACKGROUND OF TARGETED SANCTIONS AND THE 1267 SANCTIONS REGIME

    1. Security Council Targeted Sanctions

      In 1945 the United Nations was established as an international organization whose raison d'etre was the maintenance of international peace and security. The U.N. system was formulated to deal with states, which are the principal subjects of international law, and the United Nations Security Council (UNSC) was ascribed the power to take actions that are binding on states in response to threats to international peace and security. Under Chapter VII of the United Nations Charter, the Security Council may take enforcement measures to maintain international peace and security. Such measures range from economic and/or other sanctions not involving the use of armed force to international military action. Articles 39 (2) and 41 (3) of the U.N. Charter cover the portion of the UNSC's sanctions system that does not involve the use of armed force. (4) Essentially, under this branch of the UNSC's sanctions system, the Council may utilize its enforcement powers under Chapter VII of the U.N. Charter to adopt resolutions that impose mandatory rules on all states. (5) Such resolutions generally establish sanctions regimes that contain enforceable, legally binding obligations on all states. (6) Moreover, U.N. member states are obligated to comply with these Chapter VII resolutions under Articles 24, (7) 25, (8) and 103 (9) of the U.N. Charter.

      Typically non-military sanctions are directed at a state and are intended to apply pressure on that state to comply with the objectives set out by the Security Council without resorting to the use of force. The targeted state may then choose to comply with the Security Council's demands to have the sanctions lifted. This traditional form of state sanctioning came under extensive condemnation following the early 1990s, (10) when sanctions imposed on Iraq with the purpose of weakening the Iraqi government were widely alleged to have had devastating humanitarian effects on the Iraqi population. (11) UNICEF and Save the Children contended that the Iraq sanctions regime "destroyed society in Iraq and caused the death of thousands, young and old." (12) The U.N. Secretary-General even recognized the problem with these collective sanctions in a statement to the Security Council: "the humanitarian situation in Iraq poses a serious moral dilemma.... we are in danger of losing the argument ... about who is responsible for this situation in Iraq--President Saddam Hussein or the United Nations." (13) This criticism of UNSC collective sanctions against Iraq, which was based on a widespread belief that this type of sanction unfairly harmed civilians and had an severe impact on the most vulnerable segments of the population, eventually led to a rethinking of the purposes and approaches of UNSC non-military sanctions regimes. (14)

      Consequently, the Security Council recently made a qualitative change in the way that it seeks to maintain international peace and security through the use of non-military sanctions. (15) This new Security Council sanctions policy is based on two concepts. First, individuals rather than states should be the targets of sanctions, (16) and second, international terrorism should be characterized as a threat to international peace and security. (17) While the issue of sanctions targeting non-state actors, including individuals, never came up during the drafting of the U.N. Charter at the San Francisco Conference, the Security Council has actually applied sanctions that target non-state actors since 1966. (18) The power to direct sanctions at individuals and other non-state actors has been an implied or customary power of the Security Council for over forty years.

      This new policy of "targeted" or "smart" sanctions has been put to frequent use in the Security Council's struggle to counter the financing of international terrorism since 11 September 2001. The Security Council has argued that targeted sanctions regimes have the benefit of...

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