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 ( EWHC 1167 (Admin)).
It is certainly not the first time that a domestic court does so in recent times. In 2007 the 10th Division of the Turkish Council of State did so in Al Qadi (see UN Doc S/2007/132 at 39-40 ), but its decision was reversed on appeal by the Board of Administrative Cases (see UN Doc S/2007/677 at 41  and shortly on ILDC). The Queen’s Bench also quashed the AQO in A, K, M, Q & G v HM Treasury ( EWHC 869 (Admin)) but this was again reversed on appeal ( 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.