I. Partial Confirmation of Hay

In its decision, HM Treasury v Mohammed Jabar Ahmed and ors (FC); HM Treasury v Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2, the UK Supreme Court largely confirms the High Court’s approach in Hay, and quashes in part the UK’s ‘Al Qaida Order’ (‘AQO’) because it removes the right of access to an effective remedy (see paras 81-82). The AQO is the implementing measure adopted by the UK Executive to give effect to 1267 sanctions. It is subject to the UN Act 1946, which the Court found not to allow the Executive to remove individual rights. The Court also reverses the decision of the Court of Appeal in A, K, M, Q & G, quashing in part the ‘Terrorism Order’, adopted to implement the 1373 regime. The Law Lords clearly distinguished between the two sanctions regimes, one imposing ‘strict’ obligations, and the other allowing for a margin of appreciation (see paras 64, 148, 196 seq and cf the CFI in OMPI at paras 100-102). What is particularly important in the Supreme Court’s decision is that most of the Law Lords fully accept that the domestic implementing measure of the 1267 regime, the AQO, is strictly conditioned by the relevant Security Council Resolutions. The Court clearly finds that subjecting implementation measures to parliamentary scrutiny could lead to the UK breaching its international obligations under the Charter if the implementing measure was defeated in Parliament (paras 47-49). Lord Brown, dissenting, implies that the Court, in quashing the AQO, would force the UK to flagrantly violate the UN Charter (para 204).

II. The Article 103 UN Charter Issue

Still, even though (implicitly) accepting that they would be forcing the UK to breach its international obligations, the Law Lords quashed in part the AQO. They were able to avoid the overriding effect of Article 103 of the UN Charter, confirmed by the House of Lords in Al-Jedda, by clearly stating that the rights sought to be protected by the applicants in the instant case were invoked on the basis of UK domestic, rather than international, law . It can be said that counsel for the applicants had clearly adopted from the beginning a strategy of basing their arguments on domestic law only, in order to anticipate the Treasury’s reliance on Art. 103. In fact this is clear both in counsel’s argument in Hay before the High Court, and in the fact that the only counsel that argued (in the alternative) under the ECHR before the Supreme Court flat-out conceded that Al-Jedda was against him but invited the Court to reconsider! (paras 66 seq). The Court confirmed Al-Jedda, but went on to state that this does not clarify the position with respect to rights enjoyed under domestic law (see para 75). Lord Rodger, at para 174, made it clear that he was concerned with domestic law rights because rights under the ECHR would be caught by Article 103 UNC. It was indeed by relying on the domestic law right of access to a court that the Court finally quashed the AQO.

III. Dualism—Solange—SC Res 1904: Pressure Leads to Concessions

This reasoning of the Court will have many up in arms with respect to its striclty—even radically—dualist approach. However, that ‘radical dualism’ seems in fact to be ill-disguised exasperation of the English courts with the 1267 regime (see eg para 45). Many epithets have been used by English judges to characterize the regime, and none of them are particularly kind or approving. Their most important complaint—like that of many other domestic courts—is the complete lack of access to an effective remedy and the complete lack of any guarantees of judicial protection. Here, much more than about a domestic right, we are talking about a right guaranteed under international treaties and customary law (even if, to avoid Art. 103, the parallel is not drawn by the Court explicitly; still it is implicit in some of the Law Lords’ opinions). In fact, there seems to be a Solange I undercurrent in the Supreme Court’s decision, much as there was one in the ECJ’s Kadi: when stating that the problem with the 1267 regime is the lack of access to a court at a national or international level, the Court could be seen as leaving the door open to future deference to decisions of the Council, should an adequate mechanism for rights protection be established at the UN level.

On 17 December 2009, the Security Council adopted Resolution 1904 (2009), which can be seen as a direct response to the challenges of designations under the 1267 regime in domestic courts, and as an attempt by the Council to anticipate further challenges. After ‘[t]aking note of challenges, both legal and otherwise, to the measures implemented by Member States under [the 1267 regime]’ (at 9th pre-amb), the Council establishes an ‘Office of the Ombudsperson’ (at para 20). In accordance with its mandate, detailed in Annex II of the Resolution, the Office of the Ombudsperson will receive de-listing requests by individuals subject to the 1267 regime and assist the 1267 Committee through information gathering, engaging in dialogue with the interested parties, and presenting a comprehensive report to the Committee, which will be taking the decision on the de-listing request. The Council notes that ‘the Ombudsperson shall perform these tasks in an independent and impartial manner and shall neither seek nor receive instructions from any government’ (at para 20).

The UK Supreme Court rejected this introduction of an Ombudsperson as a radical step towards creating a regime that would deserve its deference. While the move ‘is to be welcomed’ (see para 78), the Law Lords still considered that the 1267 regime does not offer any access to effective judicial remedies (see paras 78, 80, 239). More must obviously be done on the part of the Council to address the courts’ concerns.

Antonios Tzanakopoulos, D.Phil. cand. (Oxford), LL.M. (NYU) (Athens), is Lecturer in Public International Law at the University of Glasgow. A relevant paper presented at the University of Vienna in September 2009 can be found here in draft form.

I. Introduction: the 1267 Regime and Domestic Courts

For quite some time now there has been significant discontent about the fundamental rights implications of Security Council sanctions, in particular individual sanctions under the regime established by Resolution 1267 (1999) and subsequent Resolutions (see eg this blog here and here). The 1267 regime obligates UN Member States to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. But those identified by the Committee have no recourse against their designation, and no other remedy except the possibility to petition the Committee for delisting. Decisions on such petitions are taken in camera and no justification is required (see the Committee’s Guidelines).

Since Security Council decisions are not directly enforceable in most municipal legal orders, Member States of the UN have had to transpose the relevant measures imposed by the Council. This was done through the adoption of domestic implementing acts, usually of administrative character, in order to comply with their obligations under Article 25 of the UN Charter. The fact however that sanctions were imposed ‘on the ground’, as it were, by domestic administrative decisions, combined with the lack of any other recourse, has led affected individuals to attack the domestic implementing measures in the courts of various Member States (see here for the Monitoring Team reports, detailing challenges in the Annex).

II. Domestic Courts Have Teeth

The ECJ, in a decision controversial in its reasoning, if not in its outcome, was the first  court to finally annul such ‘domestic’ implementing measures (in this case adopted on the EC level) acceding to the claim of two listed persons, Kadi and the Al Barakaat Foundation. That decision would have effectively forced the 27 Member States of the Community in breach of their international obligations under the Resolutions and Article 25 of the Charter. The ECJ, however, suspended the effect of the annulment for three months, by which time the Community had adopted new implementing measures.

Still, the ECJ may just have provided the impetus that other domestic courts needed in order to embark upon their own ‘decentralized resistance’ against Security Council sanctions under the 1267 regime. The CFI annulled the domestic implementing measures with respect to Othman, another listed person, without even granting the grace period that the ECJ provided for in Kadi. But most importantly, a month after Othman, on 10 July 2009, the Queen’s Bench of the English High Court quashed the Al-Qaida and Taliban (United Nations Measures) Order 2006 (‘AQO’) in Hay v HM Treasury ([2009] EWHC 1167 (Admin)).

It is certainly not the first time that a domestic court does so in recent times. In 2007 the 10^th Division of the Turkish Council of State did so in Al Qadi (see UN Doc S/2007/132 at 39-40 [8]), but its decision was reversed on appeal by the Board of Administrative Cases (see UN Doc S/2007/677 at 41 [6] and shortly on ILDC). The Queen’s Bench also quashed the AQO in A, K, M, Q & G v HM Treasury ([2008] EWHC 869 (Admin)) but this was again reversed on appeal ([2008] EWCA Civ 1187). That case is one of the first cases to be heard by the new United Supreme Court.

In all these cases where a domestic (or quasi-domestic, in the case of the EC) court has annulled or quashed measures implementing UN sanctions in the municipal legal order (ie in Kadi, Othman, Al Qadi, A, K, M, Q & G, and Hay), the reasoning has been that the domestic measures were in violation of fundamental rights guarantees under domestic law. Even in cases that did not finally result in a quashing of the domestic measure, like the appeal decision in A, K, M, Q & G, the domestic court has taken small but bold steps of resistance against the 1267 regime’s draconian effects. In that latter case, the Court of Appeal only let the domestic implementing measure (the AQO) stand, because it was able to read it as not depriving a listed person of access to a court. In order to do that, the court understood the AQO as allowing full merits-based review of a designation under the Order, even though this designation is automatic as a result of being listed by the 1267 Committee. This was possible in the particular case, because G (the claimant) was listed by the Sanctions Committee on UK recommendation. This meant that the FCO was privy to the record that led to G’s designation. If the domestic court, upon review, found this record not to be sufficient in justifying the severe restrictions resulting from the designation, the UK would be bound to support delisting, with reasonable prospects of success (the court thought), as the UK was indeed the designating State at UN level.  

Hay is not an exception as to domestic law reasoning: the AQO is quashed because, in the case of Hay, it results in the designated person being deprived of its access to a court, something which the sovereign Parliament did not permit in s 1 of the United Nations Act 1946. Like G, Hay had been automatically subjected to the AQO as a result of his listing by the 1267 Committee. Unlike G, however, Hay was not listed by the UN on UK recommendation. The FCO (by its own admission) was not privy to the record that led the designating State to recommend the 1267 listing. So the merits-based review provided for in A, K, M, Q & G was impossible in the instance-the full record could not come before the court and be evaluated. As such, the AQO resulted in unlawful denial of a fundamental right and was quashed.

III. Dualism or Disengagement from Security Council Conditioning?

Annulment of a domestic implementing measure leads necessarily to the State being in breach of its international obligations under the relevant Security Council Resolution and Article 25 of the Charter. Justifying the annulment of the domestic measure on the basis of it being in violation of domestic law, even of constitutional ranking, is of no help: domestic law cannot be relied upon to justify the breach of an international obligation in international law. Still, as has become evident, when courts have annulled domestic implementing measures, they have done so relying on the implementing measure’s incompatibility with other domestic rules. Obviously this invokes a dualist understanding of the relationship between the international and the domestic (or EC) legal orders.

Much has been said about the dualist approach of the ECJ in Kadi, in particular. The ECJ did indeed stress the ‘autonomy’ of the EC legal order and went on to assert that all EC legal acts must fully comply with EC primary law, including respect for fundamental rights. Similarly the English courts in A, K, M, Q & G and Hay argued that an Order in Council in implementation of Council sanctions (the AQO in the instance) can only remove fundamental rights protection if the Parliament has clearly vested the Executive with such power under the UN Act 1946, which it was found not to have done.

However, it may be questioned whether the monist/dualist divide sufficiently explains the domestic courts’ arguments in these cases. In particular in Kadi, the ECJ makes a very crucial point in the midst of its dualist argument. At paras 286 and 288, the ECJ claims that review of the domestic measure does not also subject the international measure to review, neither does it challenge its primacy in international law. This is justified by the court not on the basis that the two legal orders are separate, but rather on the basis that ‘the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions [of] the Security Council under Chapter VII [...], since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each Member [...]‘ (at para 298 [emphasis added]). Effectively the court disengages the domestic from the international measure. It claims: we have an international obligation, but we have freedom to comply with that obligation in the fashion that our domestic law prescribes. We are reviewing here the manner in which we complied (and find it lacking). This softens the dualist argument considerably.

There would be no problem with the ECJ’s approach, if the court had taken into consideration that the international obligation imposed under 1267 is one of result, as it were. The obligation is to freeze the assets of Kadi. If, in the end, Kadi’s assets are not frozen, for whatever reason under domestic law, the international obligation is breached. The CFI had previously clearly drawn that distinction in OMPI (at paras 100-102). There it said that unlike the 1267 regime, which imposed the obligation to take measures against specific persons designated by the UN, the 1373 regime (which was being discussed in that case) imposed an obligation to take measures against a category of persons, who were however not individually designated. Thus, the 1373 regime allows the Member States discretion as to how to comply (ie discretion as to whom to designate). On the contrary the 1267 regime allows none. In circumstances when Member States retain a measure of discretion as to compliance, the domestic court can review the exercise of that discretion under domestic law. When there is no discretion, there is no such possibility: review of the domestic measure means ‘review’ of the international measure at the same time.

The ECJ in Kadi obliterated that distinction between international obligations allowing for no discretion as to the manner of compliance, and those allowing some. As such, it was able to ’separate’ the domestic from the international sphere and claim that, effectively, the EC Member States have still (after annulment) the possibility to comply with the international obligation in a manner compliant with EC primary law. That is highly doubtful. What if Kadi was allowed to contest his designation before a court (that is what EC primary law requires) and convince it that he should not have been listed? How then will compliance with the obligation to blacklist Kadi under the 1267 regime be forthcoming?

The problem is exemplified further in A, K, M, Q & G. The Court of Appeal, faced with challenges to measures implementing both the 1373 and the 1267 regimes, draws a distinction between the two that is similar to the one drawn by the CFI in OMPI: challenges to designations under the former regime are permitted, because the designation is made independently by the State and can be reviewed by the court. Challenges under the latter however are not possible, because the designation is automatic as a result of a 1267 listing (at paras 107-110); still the court immediately obliterates this distinction by claiming that if someone can challenge a measure implementing the 1373 regime through judicial review, then ‘it would [...] be very strange if he could not do so in the case of’ a measure implementing the 1267 regime. The court thus allows review of the AQO to go ahead. In the course of that review (paras 119-21) it finds the order lawful, G (the claimant) however being entitled to merits-based review of his designation: the outcome of that review will determine if the State is bound to pursue delisting.

But, as Hay demonstrates, this merits-based review that A, K, M, Q & G read in the domestic implanting act is not always available, nor is it guaranteed to lead to delisting by the UN Sanctions Committee. As such, the AQO is found, in the instance, to have removed-without parliamentary permission under the UN Act 1946-a fundamental right. In effect, the disengagement from the Security Council measure that took place in A, K, M, Q & G, but was then mitigated by allowing the implementing measure to stand on the basis of a rather imaginative interpretative fine-tuning of the Order, was adopted by the High Court in Hay and carried through to its logical conclusion: the AQO stands because it allows a challenge to the designation and the imposition of an obligation to pursue delisting. But when such challenge is impossible, and when the obligation to pursue delisting would be illusory, then the AQO has to be quashed. And the UK is forced in breach of its obligations under the Security Council Resolution and the Charter.

Unlike the ECJ however, the High Court in Hay is correct when it claims (at para 46) that it is still open to the UK to comply with its international obligation to freeze the assets of Hay: it is, if the Parliament passes legislation which allows the Government to remove the fundamental right of access to a court. This is possible under UK law. It is impossible under primary EC law (and under most constitutions of most States).

IV. Concluding Remarks

Domestic courts, no doubt emboldened by the stance of the ECJ in Kadi, have stepped up their resistance to UN sanctions under the 1267 regime. The draconian effects of the regime and the severe fundamental rights issues raised by it are now coming before domestic courts in different ways: either through direct challenges, as in the cases discussed above, or as a defence on the part of the Government, as in Abdelrazik (discussed here). It is questionable whether blaming the courts of dualism adequately explains their position. It seems that courts are able to claim to be reviewing the domestic acts while not affecting the Member States’ international obligations under the Charter, because they consider that there is enough ’space’ for the State to comply with the international obligation while still complying with domestic law.

There is one thing that is for sure: domestic courts, in one way or another, are forcing the Member States to breach their obligations under the Charter, and at the same time they are sending a clear message to the Council to reconsider sanctions regimes with significant fundamental rights implications, such as that under 1267. A situation whereby domestic courts will constantly-if indirectly-challenge Security Council decisions is obviously not viable in the long term; a modus vivendi will have to be found. Domestic courts are setting out one of the requirements of a future stable relationship (since State Executives did not): adequate protection of fundamental rights in the imposition of severe restrictions on individuals.

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. In 2005, he was research assistant to Professor Giorgio Gaja, the International Law Commission’s Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of the United Nations for wrongful non-forcible measures by the Security Council. Many thanks are due to Dapo Akande, Gleider Hernández & Devika Hovell. The usual disclaimer applies.

I. Introduction

Municipal and regional courts are increasingly engaged by individuals and legal entities in questions relating to UN Security Council measures adopted under Article 41 of the Charter. Most prominent among these are the ‘targeted sanctions’ imposed by Security Council Resolutions (SCR) 1267 (1999) seq, which provide for asset freezes, travel bans and arms embargoes against persons listed by the Committee established pursuant to SCR 1267 (the 1267 Committee). Usually the relevant SCRs are attacked indirectly before the domestic court, the direct attack being on the domestic implementing measures. In the recent case of Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (Federal Court of Canada; currently available here but also to be made available here shortly), the impugned conduct on the part of Canada which gave rise to a claim for the violation of Canadian constitutional rights began long before any listing by the 1267 Committee. The listing only served to complicate matters and to offer an excuse to Canada with respect to a pattern of conduct that pre-dated the listing. The facts provided the opportunity for the Canadian judge to express what has been on the mind of many with respect to the 1267 regime of ‘targeted sanctions’: if you happen to get listed, it is much like being Josef K in Franz Kafka’s The Trial. In this case though-and possibly for the first time-Josef K got an effective remedy.

The Canadian Federal Court held that Canada had violated the constitutional right of Mr Abdelrazik (a dual Sudanese and Canadian national) to enter Canada, even though he was subject to UN sanctions. The court interpreted the SCRs such that the travel ban and asset freeze imposed by the Security Council would not prevent Canada from assisting Mr Abdelrazik’s return to Canada. In so doing, the Canadian court effectively forced upon the Executive its own interpretation of Canada’s obligations under the UN Charter, and required that Canada comply with the court decision. The Court’s interpretation risks a breach by Canada of the SCR and the UN Charter,, should the Security Council interpret its own Resolution differently. The situation is not unlike the one forced upon the European Community and its Member-States following the ECJ’s decision in Kadi: either breach the obligation stemming from the Security Council decision (by removing Kadi’s asset freeze) or disobey the ECJ (by maintaining the freeze). In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law. The case marks yet another step in a new era that sees domestic and regional courts asserting with confidence their (indirect) jurisdiction over UN sanctions regimes.

II. Factual Background

Abousfian Abdelrazik was jailed in Sudan in 1989 after the successful military coup of Omar Al-Bashir. In 1990 he managed to flee to Canada, where he was first granted refugee status and then Canadian citizenship. In March 2003, after some of his acquaintances had been charged or convicted for participating in terrorist attacks, Abdelrazik returned to Sudan, claiming he had been continuously harassed by the Canadian Security Intelligence Service (the CSIS) in the wake of the September 11 attacks (at [9]-[12]). Abdelrazik was detained in Sudan at the request of Canada (id at [66]-[91]) in 2003 and 2005-2006. He spent 11 and 9 months in detention without charge, during which time he was questioned by the CSIS, as well as allegedly tortured by Sudanese authorities. After each detention he undertook several attempts to return to Canada which were thwarted by the Canadian authorities, who seemed to be in no great rush to bring him home (id at [13]-[21]). In July 2006, Abdelrazik was designated as an Al-Qaida associate by US authorities and was subsequently listed by the 1267 Committee (id at [22]-[24]). The listing added another significant layer of complexity to his attempts to return to Canada, as he was now subjected to an asset freeze and a travel ban under the relevant Council Resolutions. Abdelrazik tried to get himself de-listed, but the 1267 Committee denied the request without giving reasons on 21 December 2007 (id at [27]-[29]).

On 29 April 2008, Abdelrazik, fearing that yet another stint in Sudanese detention was looming, sought safe haven in the Canadian Embassy in Khartoum, where he has been living ever since (id at [30]). His repeated attempts to secure a Canadian travel document and safe conduct to Canada were denied by the Canadian Government, despite the latter having expressed (and later reiterated) a commitment to see through his return. In the last instance the Canadian MFA denied Abdelrazik the issuance of the travel document-without giving any reasons-a mere 2 hours before his flight was scheduled to depart, on 3 April 2009 (see id. at [31]-[40]).

III. The Case before the Canadian Federal Court

Abdelrazik brought a case before the Federal Court claiming a violation of his right to return to Canada under the Canadian Charter of Rights and Freedoms (id at [42]). The Court had to decide whether Abdelrazik’s constitutional right to enter Canada had been violated, ie if it had been limited without this being demonstrably justified in a free and democratic society under the Canadian Charter (id at [61]). If this were the only issue at stake, the decision of the Federal Court would present limited interest for international lawyers, save perhaps with respect to the question whether a Security Council Resolution under Chapter VII of the UN Charter is adequate to establish a ‘demonstrably justified limitation’ to a fundamental right (cf eg Case C-84/95 Bosphorus [1996] ECR I-3953 at [21]-[26], in particular [26 in fine]).

However, the Canadian Government argued that it was not Canada, but rather the 1267 Committee that impeded Abdelrazik’s return, having made him subject of a global travel ban and asset freeze (id at [44] and [147]). As a result of this, neither Canada nor anyone within Canada could pay for or provide transportation for Abdelrazik (id at [45]-[46] and [122]-[123]). This was because no one could make available any funds or economic resources for his benefit directly or indirectly (SCR 1822 [2008] at [1(a)]); and further because no one could facilitate his transit through other States’ territories, which includes their airspace, in order to get him back to Canada (id at [1(b)], as interpreted by the Canadian Government in Abdelrazik at [122]-[123]; [147]). If any of these were to happen, Canada would be in breach of its international obligations under the relevant Resolution and Article 25 of the UN Charter.

Mr Justice Zinn was not persuaded by the arguments of the Canadian Government. He found that Canada had violated Abdelrazik’s right to enter Canada under the Canadian Charter (Abdelrazik at [156]), and that the latter was entitled to an effective remedy for the breach (id at [157]). He proceeded to determine that the effective remedy is that Canada must provide an emergency passport to Abdelrazik, as well as the airfare or additional airfare required for him to return to Canada (id at [160]), and an escort to ensure Abdelrazik’s unimpeded return (id at [166]). Finally, Mr Justice Zinn required that Abdelrazik present himself before the Court, so that it be satisfied of his return to Canada, retaining jurisdiction over the case until it is so satisfied (id at [167]-[168]).

IV. The Court’s Engagement with International Law

In the course of delivering its judgment, and despite dealing exclusively with a claim under domestic law, the court engages with international law, and in particular with the 1267 sanctions regime, on a number of levels. These are discussed in turn.

a. Issues of Attribution

Canada put forward a claim that it was not itself, but rather the UN (acting through the Security Council, acting in turn through the 1267 Committee) that impeded Abdelrazik’s return to Canada. Implicit in this claim is the argument that acts of Canadian State organs in implementation of binding Security Council decisions are not attributable to Canada (as they would be under Article 4 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA]), but to the United Nations (see Abdelrazik at [3]; [44]; [147]). But according to the ILC, acts of a State organ that is not fully seconded to an international organization (as when the State organ is implementing a binding IO decision) are only attributable to the Organization if the latter effectively controls them (see here with further references). For the Canadian argument to stand, one would have to accept that the acts of the organ of a State are attributable to an international organization when the State organs are acting under the international organization’s effective normative rather than effective factual control.

It seems however that the ILC rejected such an approach in drawing up its Draft Articles on the Responsibility of International Organizations (DARIO) (see Article 5 DARIO and the ILC Report 2004 at 111[3]-[4] and 113[7]). Also, both the European Court of Human Rights (ECtHR) and (implicitly) the European Court of Justice (ECJ) have considered that acts of Member-State organs are attributable to the Member-States even if they are in implementation of a strict international obligation imposed by an international organization (ie when the obligation leaves no margin of appreciation to the Member-State: see eg ECtHR Bosphorus at [153] and cf Case C-402/05 P Kadi ECR I-0000 at [281] respectively).

But even if effective normative control over the conduct of a State organ by an international organization were accepted as leading to attribution of such conduct to the international organization (which it is currently not, rightly or wrongly), this would still not help Canada. The latter would further need to show that attribution of conduct to one entity (eg an international organization) precludes attribution of the same conduct to another entity (eg a State), something which the ILC has refrained from asserting (see ILC Report 2004 at 101[4] and this blog here). Otherwise, it is perfectly possible that the same conduct is attributable to two different entities (eg under Articles 4 ARSIWA and 5 DARIO).

The Canadian judge does not engage with the (admittedly implicit, if anything) argument, save to note that the act of the Canadian Foreign Minister to deny a passport to Abdelrazik on 3 April 2009 is enough to defeat any claim by the Government that it did not deny Abdelrazik entry into the country (Abdelrazik at [148]). In that he can be seen as applying Article 4 ARSIWA. Canada is finally found to have ‘engaged in a course of conduct and specific acts that constitute a breach of [Abdelrazik's] right to enter Canada’ (id at [156]).

b. Interpretation of Security Council Resolutions

As addressees of Security Council Resolutions, States must be expected to interpret these Resolutions in order to apply and implement them. In many occasions the interpretation will be undertaken by the Executive (eg Swedish authorities continued to make welfare payments to listed individuals under the original regime of SCR 1267 [1999], interpreting these as not falling within the ambit of the Resolution, even before the exceptions adopted by SCR 1452 [2002]), but it may well be undertaken by a domestic court (eg the Irish High Court interpreted SCR 820 [1993] as not having intended to penalize, deter, or sanction those peoples or States not having contributed to the tragic events in Former Yugoslavia, and dismissed a Sanctions Committee decision that found a certain aircraft to fall within the terms of the Resolution: Bosphorus Hava v Minister for Transport [1994] 2 ILRM 551 at 557-8).

In the present case, the Canadian judge has to engage, and indeed engages with the interpretation of SCR 1822 [2008] to a considerable extent, as that SCR contains exceptions to the travel ban. This is because Canada presents the Resolution as prohibiting it from allowing Abdelrazik into the country.

In order to counter the Canadian argument that Canada cannot facilitate Abdelrazik’s travel to Canada, lest it be found in breach of SCR 1822, Mr Justice Zinn observes that 1822 (at [1(b)]) explicitly does not oblige a State to deny entry into its territories of its own nationals. Canada’s claim in turn is that in order for Abdelrazik to make it to the border (and be allowed entry), he must transit through the territory (which includes airspace) of other States. Since SCR 1822 also prohibits transit through territory, Canada would be facilitating the breach of the Resolution (Abdelrazik at [122]-[123]). The Canadian judge goes on to interpret the term ‘territory’ in SCR 1822, and finds that it does not include airspace. In doing this he relies, inter alia, on Canada’s own apparent interpretation of the provision in its submissions to the 1267 Committee on Canadian implementation of the relevant obligations. The submissions only deal with entry into and not transit through Canada. In effect, Mr Justice Zinn applies the principle of non venire contra factum proprium (‘it is not allowed to act contrary to one’s own previous conduct’), not allowing Canada to put forward two conflicting interpretations of the same provision (id at [125]-[126]). He further observes that Canada’s interpretation would lead to the following ‘non-sensical’ result: a listed national would be allowed entry if he happened to be standing on the border, but would not be allowed to travel to that border, as she would have to transit through the territory or airspace of other States. The judge rejects such an interpretation, in effect applying the principle of effectiveness (ut res magis valeat quam pereat): the Security Council could not have intended an absurd outcome (id at [127]). As such, the travel ban is not an impediment to Abdelrazik’s return (id at [128]).

Further, the judge anticipates that Canada will object to his order that the Government pay the airfare for Abdelrazik’s return home on the grounds that this will be a violation of Canada’s obligation to respect the asset freeze imposed under SCR 1822. He states that an exception to the travel ban and asset freeze is provided when necessary for the ‘fulfillment of a judicial process’ (id at [162]). This exception is indeed provided by SCR 1822 (at [1(b)]), but only with respect to the travel ban, not the asset freeze. It is unclear whether the judge is interpreting the exception to the travel ban to include an exception to the asset freeze when necessary, or whether he is simply misreading the Council decision.

Be that as it may, what is most interesting is the court’s interpretation of the term ‘judicial process’. Mr Justice Zinn, citing Canadian precedent, gives the term a broad meaning, so as to include measures of execution ordered by the court. As such he finds that a court order to the effect that Abdelrazik must be brought back to Canada cannot cause the Government to breach its international obligations under the Resolution: Canadian assistance to Abdelrazik would not constitute a violation, as it is ‘in fulfillment of the judicial process’ (Abdelrazik at [163]-[165]). Interestingly, while the Canadian judge relies primarily on Canadian case law to reach this interpretation, his finding accords with the position taken by the ECtHR (eg in Hornsby at [40]), that execution of a judgment is an ‘integral part of the trial’ (discussing the right to a fair trial under Article 6 of the European Convention on Human Rights). Even more interestingly, he confirms his broad interpretation of ‘judicial process’ by resorting to the French language version of SCR 1822, which refers to ‘aboutissement d’une procédure judiciaire’: he finds the plain meaning of ‘aboutissement’ to be ‘outcome, result’, which includes measures required to be taken in execution of a court order (Abdelrazik at [164]; cf Article 33[4] of the 1969 Vienna Convention on the Law of Treaties and LaGrand [2001] ICJ Rep 466 at 502 [101]).

c. Effective Remedy

The interpretation by Mr Justice Zinn of the provisions of SCR 1822 allows him to overcome two distinct hurdles: in the first place, the interpretation of the first exception to the travel ban allows him to defeat the Canadian argument that SCR 1822 requires Canada to abstain from facilitating Abdelrazik’s return. As such, Canada is found in breach of the Canadian Charter. The interpretation of the second exception to the travel ban (in combination with the interpretation of the first) allows the judge to order what he considers to be an effective remedy for the breach: namely to order Canada to facilitate Abdelrazik’s return, even through the provision of financial aid (for the airfare).

Of course neither interpretation is determinative of the position in international law. For purposes of international law, the interpretation of a domestic court is no more determinative than the interpretation of a domestic Executive. They both constitute an exercise in auto-interpretation, which is not binding on the UN and its Security Council, or on any other State. The 1267 Committee could thus find that either interpretation (or both) amounts to a breach of SCR 1822 on the part of Canada.

V. The Underlying Rationale: International Illegality of the 1267 Regime

By ordering the Canada to facilitate Abdelrazik’s return, the Canadian court is in effect ‘pushing Canada into a corner’: the Executive must now either comply with what it believes is the correct interpretation of SCR 1822 and disobey its own court; or it must comply with its domestic court’s decision and risk being found in breach of SCR 1822 and thus Article 25 of the UN Charter. But the Canadian judge does not stop there. In execution of his order, and so as to ensure that the remedy is indeed effective, he orders that Abdelrazik attend before the Canadian court at a specified time and date, and reserves the Court’s right to oversee implementation and issue further orders in this respect (Abdelrazik at [167]-[168]). Mr Justice Zinn does not even give Canada a leeway similar to the one the ECJ gave the Community and its Member-States in Kadi (at [373]-[376]). Admittedly, this may have to do with the fact that the judge believes his order not to be in violation of the relevant SCR-but his guess is at least as good as the Government’s in this respect. In any event, one cannot fail to notice the increasing confidence and robustness of domestic courts when faced-one way or another-with the 1267 regime. What can be said to account for the transformation of the considerable deference in the CFI’s Kadi and the Swiss Federal Tribunal’s Nada (ILDC 461 [CH 2007]), as well as the Turkish Council of State’s Al-Qadi (unpublished in English), to the robust responses in the ECJ’s Kadi and in the Canadian court’s present decision?

The reason why the Canadian judge is willing to take chances, interpreting the relevant SCR and ordering an effective remedy potentially in breach of the SCR (even though he ‘interprets it out’ of the equation), is expressed quite clearly in the section of the judgment dealing with the applicable law. Under the heading ‘Canada’s International Obligations’, Mr Justice Zinn cites Articles 24-25 and 41 of the UN Charter (Abdelrazik at [45]-[46]) and then goes on to describe the 1267 sanctions regime.

He recounts the familiar shortcomings ascribed to the 1267 listing and de-listing procedures: there is no direct hearing, not even in limited form; no independence and impartiality in the consideration of petitions, where the Committee acts as judex in sua propria causa; there are no reasons provided, not even in narrative form, for some of the individuals listed and despite relevant requirements in SCR 1822; finally, the process requires the petitioner to prove a negative (that she is not associated with Al-Qaida), something as easily achievable as proving that ‘fairies and goblins do not exist’ (id at [51]-[53]).

Mr Justice Zinn is unreserved in his qualification of the 1267 regime: he considers it as ‘a denial of basic legal remedies’ (Abdelrazik at [51]) and as ‘a situation, for a listed person, not unlike that of Josef K in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime’ (id at [53]). The literary reference is no doubt powerful and on target-this is what many considered the 1267 regime to be, but Mr Justice Zinn is the first to boldly assert it in writing. As a result, the Canadian judge seems to feel compelled to assert his power to decide the case and order an effective remedy: ‘in light of the shortcomings’, he says, ‘it is disingenuous of [Canada] to submit, as [it] did, that if [Abdelrazik] is wrongly listed the remedy is for [him] to apply to the 1267 Committee for de-listing and not to engage this Court’ (id).

In essence, the very same criticism of the 1267 regime has already been leveled by a Court-namely by the ECJ in Kadi (at [322]-[325]). What is different, and particularly significant in the instance, is that Mr Justice Zinn levels the same criticism but on the basis of international law: the 1267 regime is found to be ‘untenable under the principles of international human rights’ (Abdelrazik at [51]) and to flout the presumption of innocence, ‘a fundamental principle of Canadian and international justice’ (id at [53] [emphasis added]). Where the ECJ criticized the 1267 regime on the basis of fundamental rights under EC law, the Canadian court clearly drew the obvious parallel between domestic rights and international rights of the same content. In substance both the ECJ and the Canadian court claim the violation of a hard core of basic (domestic) rights with universal radiance, embodied in almost universally ratified international conventions and in the Universal Declaration (see further here at part V). This universal radiance is what justifies their reaction. But the Canadian court in the present case makes this parallelism between fundamental rights under domestic and international law explicit, where the ECJ seems to prefer a certain ’splendid isolation’.

VI. Conclusion

The Abdelrazik case before the Canadian Federal Court is not primarily about the 1267 regime, but rather about Canada’s breach of one of its citizen’s fundamental rights which began occurring long before the 1267 Committee came into play. In the event, however, the decision of the Canadian Court boldly engages with the international legal issues raised by the involvement of the 1267 Committee, even if not always convincingly. And in the end it grants Abdelrazik-turned-Josef K his effective remedy.

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. He has an LLM from New York University Law School. During the 57th session of the International Law Commission (2005), he was research assistant to Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of United Nations for wrongful non-forcible measures by the Security Council.

A recent article by White and MacLeod in the EJIL (EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility) discusses, in part, the attribution of conduct of Private Military and Security Companies (PMSCs) to an International Organization (IO) in the context of a peacekeeping operation (PKO). The authors take issue with Article 5 of the International Law Commission’s  (ILC) Draft Articles on the Responsibility of International Organizations (DARIO) and the high threshold of “effective control” that this provision requires for attribution of conduct to an IO. However, Article 5 DARIO is specifically adopted to deal with the attribution to an IO of the conduct of a military contingent belonging to a State, and does not apply in the case of attribution of PMSC conduct. It is Article 4 DARIO that applies in such a case. Paragraph 1 of that provision states that:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

 This being the case, attribution of conduct by a PMSC hired by an IO to the IO is, ostensibly, automatic and thus much easier than attribution of PMSC conduct to a State. In the latter case one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State (see the discussion here, here, here, and here). Could it in fact be so, and how can this difference be explained?

 Both States and international organizations are abstract (fictional) entities, which cannot of course act in the physical world. Rather, conduct always originates in individuals, i.e. natural persons. The ‘normative’ operation of attribution is thus required to bridge the gap between the physical actor and the subject of international law. In the law of State Responsibility, as codified in the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), the conduct of acting individuals is attributed to the State automatically when these individuals are connected to the State through an institutional or organic link (4 ARSIWA, cf 7 ARSIWA). Absent such an institutional or organic link, acts of individuals are only exceptionally attributed to the State when a control link can be established (8 ARSIWA).

 This simplified description of the basic avenues for attribution may disregard certain specific cases of attribution (such as those under 6 or 9 and 11 ARSIWA for example), but it sets out the fundamental distinction, which shall prove to be conceptually useful: if the acting entity is a State organ, the act is automatically attributable. Control over the conduct is not just presumed; it is irrelevant. If the acting entity is not an organ, then the only way in which the conduct can be attributed is on the basis of a showing that the specific conduct in question took place under the control of the State.

 Similar considerations apply to attribution of conduct to international organizations. If an IO organ is acting, attribution is automatic; if not, a control link must be established. While international organizations rarely act in the physical world (in most cases they will be rhetorical organizations, merely passing recommendations, or they will act on the normative level, imposing obligations on States to act), when they do in fact act, that is to say when they do undertake certain operations, they will rarely act through their ‘constitutional’ organs, i.e. the organs identified in the constitutive instrument. The Security Council cannot for example undertake peacekeeping itself; neither can the General Assembly. They both lack any operational capacity of the sort. Peacekeeping must be undertaken by armed forces, and the UN does not possess any.

It is mainly for this reason, namely because of the relative scarcity of IO organs with any operational capacity (or because of the rudimentary organic makeup of IOs), that the general rule of attribution of conduct to IOs does not solely refer to ‘organs’ of the IO, as is the case with the general rule of attribution to States. Rather, it also refers to ‘agents’ of the IO, a term given a special meaning by the ICJ and the ILC. According to the ILC (see here at 104 [2]), the term is to be understood-like the ICJ understands it-’in the most liberal sense’ (citing the Reparation for Injuries at 177). An agent thus is not necessarily an ‘official’ but ‘any person through whom [the organization] acts’ (see the ILC here at 106 [5], and also Reparation for Injuries at 177), i.e. there is no requirement of any official link in this case for automatic attribution to take place. Any conferral of power upon someone to act ‘on behalf’ of the organization would suffice to establish the requisite organic link.

 If this were all, it should be very easy to attribute the acts of a national armed forces contingent participating in a UN-commanded PKO to the UN: if anything, the organization is ‘acting through’ the national contingent, thereby making it its agent. Power to act ‘on behalf’ of the UN will have been granted through the relevant UN decision to establish the PKO, the Status of Forces Agreement, and even on a semantic level by the wearing of a UN ‘blue helmet’. This would mean then that all acts of the contingent, an agent of the UN, in the context of the PKO, are directly and automatically attributable to the UN.

 However, there is an element that causes substantial complication here, or at least the ILC thought so. The national contingent remains an organ of the lending (or home) State, and even more importantly that State retains some jurisdiction (thus: control) over the contingent (most prominently criminal jurisdiction and disciplinary powers). What blocks automatic attribution of its conduct to the IO in such a case is the operation of the general rule of (automatic) attribution in Article 4 ARSIWA: acts of the organ of a State are attributable to that State.

 To respond to this predicament, the ILC adopted Article 5 DARIO. In accordance with that provision, the conduct of an organ of a State that is placed at the disposal of an international organization-but is not fully seconded to it-is only attributable to the organization if the latter exercises ‘effective control’ over that conduct. Otherwise (one would logically assume) it is attributable to the lending State (automatically, as the conduct of its organ). It is to overcome this attribution to the State that effective control over the State organ must be shown to exist. This distinction seems to imply that one has to choose the entity to which the conduct is attributable, i.e. that it can either be the organization or the State, but not both. The European Court of Human Rights (ECtHR) obviously adopted such an approach in Behrami (though implicitly: at [144] and [151], distinguishing Bosphorus) and was much criticized for it.

 However, the ILC itself has not excluded the possibility of dual (or multiple) attribution of conduct to more than one State or international organization at a time (see its 2004 Report at 101 [4]). Why this shouldn’t be the case for a national contingent constituting an ‘agent’ of an international organization and an organ of the lending State at the same time is not entirely clear. But the more troublesome aspect of this provision is that it introduces the perennial debate over the threshold of factual control over an entity for purposes of attribution. It seems that the debate over that threshold will not die down however many times the ICJ confirms it as being that of ‘effective’ control (see Nicaragua at 65 [115 in fine] and Bosnian Genocide at [399]-[407]).  

 The near impossibility of ever proving such a high threshold of control is notorious, whether it is with respect to control of States over private individuals under 8 ARSIWA, or with respect to control of international organizations over ‘not fully seconded State organs’. It has been demonstrated countless times: in the jurisprudence of the ICJ (see Nicaragua at 62-65 [109]-[116] and Bosnian Genocide at [398]-[415]), in Tadić before the ICTY Appeals Chamber, which famously proclaimed the threshold to lie at ‘overall’ control (see here at [131] and [137]), in academic commentary, e.g. in attempts to establish attribution of PMSC conduct to States (see Lehnardt in idem & Chesterman [eds] From Mercenaries to Market [2007] 139; and Hoppe [2008] 19 EJIL 989), and finally in the unfortunate (in this respect at least) Behrami decision of the ECtHR, which did not at all manage to show the requisite level of control but rather re-positioned the threshold to that of ‘ultimate authority and control’ (see for comment Larsen [2008] 19 EJIL 509).

 In their discussion of attribution of PMSC conduct to an international organization in the context of a peacekeeping operation, White and MacLeod struggled with the need of proving that the organization exercises effective control over the PMSC under Article 5 DARIO and advocated a lowering of the threshold of control as well, in-line with UN practice and along the lines of Tadić.

However, when an international organization employs a PMSC in the context of a peacekeeping operation, Article 5 DARIO is not called into operation. Since the PMSC is not an organ of any State, its actions are in the first instance attributable to no one. As such, there is no need to show any sort of control over the conduct to overcome some prima facie attribution, as is the case with the organ of a State employed by an IO.

 Indeed, given that an ‘agent’ is ’someone through whom the organization acts’, the mere existence of some sort of agreement between the PMSC and the IO should suffice for the establishment of the agency link. It is significant, if only at a semantic level, that recent academic commentary on the possibility of the UN employing PMSCs for PKOs has used the terms ‘agency agreement’ to describe the link between the IO and PMSCs (Patterson [2008] 13 JCSL 215 at 216, 221, 230 [emphasis added]). If this is in fact the case, the PMSC becomes an agent of the international organization without the added complication of anyone else retaining any control over it. Article 5 DARIO does not come into play, and attribution of PMSC conduct within the PKO context to the international organization is rather automatic under Article 4 DARIO. There is no requirement to show that the organization does in fact control effectively each and every instance of conduct.

 This latter statement is important indeed. Attribution of conduct on the basis of an institutional or organic link encompasses all conduct of the organ or agent acting in official capacity (even if in excess of authority or contravention of instructions, unless in purely private capacity). This means that there is almost no need to look into the specific conduct-any conduct is automatically attributable (with the very rare exception of purely private conduct). Conversely, attribution of conduct on the basis of a control link, because exceptional, may take place only on a case-by-case basis, enquiring into the level of control over each and every specific instance.

 In order to attribute the conduct of PMSCs to IOs employing them in the context of PKOs, the mere showing of a contractual link will suffice for the qualification of the PMSC as an IO agent. The attribution of the conduct of the agent (the PMSC) to the IO will then be automatic. There will be no need to show factual control of the IO over PMSC conduct, which in any case would be well-nigh impossible if the threshold is effective control. In this instance, at least, it appears that PMSC conduct is easier (than usual) to attribute to an entity clearly bound by international law.

 There is a caveat here, however. In its 2004 Report (at 109 [13]) the ILC notes that private conduct under the direction or control of the IO will be attributable to the IO under 4 DARIO as the conduct of an agent; if a contractual link suffices to make a person or entity an IO agent, a fortiori effective control should turn them into an agent’ as well. In this way the Commission explains why there is no provision in DARIO corresponding to 8 ARSIWA: because it is simply not needed. What this does, however, is to spoil the neat scheme presented above that goes organic link-automatic attribution of all conduct; control link-ad hoc attribution of specific conduct. Under 4 DARIO, a person or entity may become an ‘agent’ also when the IO exercises effective control over them, in the absence of any contractual link. But then one would have to enquire into the specific conduct to determine whether it was directed or controlled. And it will only be that specific directed or controlled conduct that is attributable. How is thus one to know-in the case of an IO agent-whether all conduct is attributable on the basis of the organic link or only specific conduct may be attributable on the basis of a control link?

 Presumably the ILC offers guidance in the following passage: ‘in exceptional cases, a person or entity would be considered, for the purpose of attribution of conduct, as entrusted with functions of the organization, even if this was not in accordance with the rules of the organization‘ (see here at 109 [13] [emphasis added]). When the person or entity is someone to whom the organization has entrusted functions in accordance with its rules, the link is organic and attribution automatic. If, on the other hand, a person or entity seems to be someone through whom the organization is acting but there has been no overt delegation of functions (even through a contractual arrangement), then specific private conduct may be attributable if the organization directs or controls it. This is considered to be a de facto delegation of functions which may be presumed to be in violation of the rules of the organization. This distinction that must be drawn when applying 4 DARIO opens the door to a whole new set of issues that are not susceptible to abstract answers: what is in accordance with the IO rules and what is not? Would the employment of a PMSC constitute a delegation of functions allowed by the IO rules? If yes, then we’re back to automatic attribution, but if not, we’re exactly in the same situation as when trying to attribute under 8 ARSIWA or 5 DARIO.

 Still it is argued that in most cases, the employment of a PMSC in the context of a PKO, if done formally through a decision of the competent organs of the IO and the conclusion of an agreement between the IO and the PMSC, will establish an organic link and lead to automatic attribution. The question thus remains why attribution of PMSC conduct to IOs should be easier than it is to States. The answer could lie in the fact that organizations are much less comprehensively structured than States. States have a multitude of organs through which they act, and in principle become automatically responsible only for the conduct of these organs belonging to their official structure. They do so not because they control these organs, but because they explicitly selected them in order to act through them with a prospect of permanence. There are very few such organs of IOs, not to mention that they have not been selected by the organization but rather by the States adopting the constituent instrument. The organization will thus need to act through other entities as well (if not mainly), particularly given that few constituent IO organs (if any) have any operational capacity. As such, it makes sense to extend automatic attribution to those entities the organization entrusts with functions and thus explicitly selects to act through, even without the prospect of permanence. Where the organization could not have used any of its organs, it used the PMSC. Where the State could have used its army, it used the PMSC. If it seems that this does nothing but offer States a much larger possibility for evasion of attribution, it is because it is true. But this is arguably a problem and an unfortunate evolution of the law of attribution to States and of the parallel policy preference for privatization. One should not be hasty to extend such a problematic situation to the law of attribution to IOs, which seems to be able to avoid the pitfall in principle.

 One final note; something often forgotten is that attribution of conduct does not necessarily mean engagement of responsibility. However trite, this fact-when ignored-can cause significant confusion. Whether the conduct will constitute a breach of international law depends on the entity to which it will be attributed. E.g. certain conduct attributable to the UN may not be in breach of UN obligations under the Charter or general international law; but if the same conduct is attributable to a State it may be in breach of the State’s international obligations under a specific treaty. Even more importantly, even if conduct is attributable to two or more subjects of international law simultaneously (e.g. if the conduct of a contingent contributed to a PKO is simultaneously attributable to both the IO [4 DARIO] and the lending State [4 ARSIWA]), this does not necessarily mean that the responsibility of both subjects will be engaged so as to lead to joint and several responsibility: what may constitute a breach for the State may not constitute a breach for the IO and vice versa. This will depend on the primary obligations incumbent on the specific subject.

 Further, when there is an international obligation on the State or the international organization to act to prevent certain (private) conduct, it is the omission to act to prevent the conduct that is attributable to the State or the organization (as a State or organization organ’s failure to act) and in breach of the international obligation, rather than the conduct in question itself. In such a case attribution is often self-evident, but a required step nonetheless.