Last year, I posted on this blog analyses of domestic cases touching upon UN sanctions, in particular with respect to the 1267 sanctions regime (concerning Al Qaeda and Taliban individuals). My comments on the Abdelrazik case (in the Canadian Federal Courts) can be found here (and in expanded version in the Journal of International Criminal Justice here) and on the Hay case (in the English courts) here. The current post, briefly, draws the attention of our readers to the recent decision of the UK Supreme Court in A, K, M, Q & G v HM Treasury and in Hay v HM Treasury. A more extensive consideration of the Supreme Court’s decision will follow—watch this space.
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  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.