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Stepping Up the (Dualist?) Resistance: The English High Court Quashes Domestic Measures Implementing UN Sanctions

Published on October 9, 2009        Author: 

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)). Read the rest of this entry…

 
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Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada

Published on October 7, 2009        Author: 

Elizabeth Prochaska is a Barrister at Matrix Chambers, London. She has recently completed a period as Judicial Assistant to Baroness Hale and Lord Brown in the House of Lords.

Omar Khadr, a Canadian citizen captured by US forces in Afghanistan at the age of 15 and imprisoned in Guantanamo Bay for 7 years, recently succeeded in convincing the Canadian Court of Appeal to order the Canadian government to request his immediate repatriation by the US  (Khadr v. Prime Minister of Canada 2009 FCA 246). This is no small achievement. Until the Court of Appeal’s judgment, no court – international or municipal – had recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state.

 The doctrine of diplomatic protection under which the state asserts its right to make claims on behalf of nationals injured abroad is a promising remedy for the human rights abuse of aliens. Governments can engage in all manner of conduct (some of it traditionally diplomatic, some of it outright hostile) under the guise of the doctrine. But as this brief summary of the current status of diplomatic protection shows it has yet to reach its full potential in either international or municipal human rights law.

 In its report on the subject in 2006, the International Law Commission (ILC) proposed a Convention on Diplomatic Protection which would attempt to resolve the dislocation between the traditional understanding of diplomatic protection as a discretionary right of the state and contemporary human rights vested in individuals. However, the ILC did not adopt the recommendation of its Rapporteur, John Dugard, that the Convention require states to guarantee an individual right to diplomatic protection. Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that states should be encouraged to exercise diplomatic protection ‘especially when significant injury occurred’ to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. Discussions in the Sixth Committee at the sixty-second session of the General Assembly 2007  raised the prospect of imposing a positive obligation on states to protect their nationals abroad, but diplomatic protection is not up for consideration by the Sixth Committee again until next year and it remains to be seen whether a Convention will ever be approved. For now at least, customary international law offers little comfort to those suffering human rights abuse abroad.

 In municipal law, the status of an individual right to protection, or a duty to protect, as the Canadian courts conceptualised it in Khadr, is equally uncertain. Read the rest of this entry…

 

The Honduran Crisis and the Turn to Constitutional Legitimism, Part II: The Pitfalls of Constitutional Legitimism

Published on October 5, 2009        Author: 

In my previous post on this topic, I argued that the international reaction to the Honduran coup potentially augurs a shift in foundational norms governing the relationship between international and domestic legal authority.  I also hinted that I regard such a shift as ill-advised, and noted that some of those in the forefront of the reaction appear to have given little thought to the long-term implications.

As, Doug Cassel’s ASIL Insights analysis notes, “Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government.  Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.”  The two reasons that Cassel cites are distinct:  the latter is a matter of respect for a foreign pouvoir constitué, on the ground that standards of legal interpretation are themselves a matter of local law; the former is a matter of respect for a foreign pouvoir constituant, on the ground that where permanently effective, breaches of constitutional order (whether by insurrection or by an existing regime’s pattern of practice) beget their own legality.  For foreign courts, both of these are ordinarily rationales, not for a mere “margin of appreciation,” but for judicial abstention.

However, it is not unknown for international legal questions to turn on a finding about compliance with domestic law, such as where treaty provisions provide that exceptions to specified human rights must be, inter alia, “non-arbitrary” and delineated in domestic law.  In such circumstances, assessing a claim of  violation requires an independent basis for ascertaining the requirements of domestic law.   The criteria for establishing a violation might be relatively deferential, yielding to plausible claims of local expertise in interpreting local norms; interpretation of legal (including especially constitutional) norms depends on all manner of historical, ideological, political, linguistic, and jurisprudential idiosyncracies, and a high court’s authority to say what is lawful counts for much, even in the face of text apparently to the contrary.  Still, one cannot exclude a second-guessing of local judicial authorities on the merits, especially in cases where courts are suspected of participating in a sham. Read the rest of this entry…

 

Are the US Attacks in Pakistan an Armed Attack on Pakistan? A Rejoinder

Published on October 1, 2009        Author: 

I agree entirely with the first point that Professor Paust makes in his previous post , about the impossibility of imputing the non-state actor attacks to Pakistan due to incapacity. Certainly imputation doesn’t make sense on these facts as he outlines them. However, the second point he makes goes to the heart of my question.

Professor Paust asks, rhetorically, how attacking Al Qaeda in Yemen could be an attack on Yemen as such. But saying that selective targetings of non-state actors on the territory of another state is not an attack on that state ‘as such’ makes those last two words do an awful lot of work, work not everyone thinks they can do. Read the rest of this entry…