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.
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 -). Abdelrazik was detained in Sudan at the request of Canada (id at -) in 2003 and 2005-2006. Read the rest of this entry…