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Published online by Cambridge University Press: 28 June 2013
Counterterrorist sanctions against individuals are a prime example of pluralism. Multiple claims of constitutional authority (in resolutions of the UN Security Council, under European Union law, and national law) assume to govern the same legal situation. Choosing between these different authorities has great implications for the legal situation of individuals. This paper analyses the legal position of individuals facing this plurality of claims of constitutional authority and how their rights are largely dependent on the choices of domestic courts. Attention will be given not only to procedural and judicial rights but also to the broader implications of individual sanctions as an example of pluralism. What does it mean for popular sovereignty? Do patterns or guidelines emerge of how courts should address multiple claims of authority? The paper takes into account the latest amendments of the UN sanctioning procedure (Resolutions 1988 and 1989 (2011)).
1 The term ‘domestic’ refers to EU and state structures, e.g., domestic courts are national and EU courts.
2 Pluralism has attracted much attention and is understood very differently by different scholars. See on this e.g.: C Eckes and S Hollenberg, ‘Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al Jedda, Ahmed and Nada’ (2013) Maastricht Journal of European and Comparative Law, Pt 2 ‘Theoretical Framework’; Krisch, N, ‘Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space’ (2010) 24 Ratio Juris 4, 386–412CrossRefGoogle Scholar in particular on the evolution of Neil MacCormick’s understanding of pluralism; Introductory notes in Avbelj, M and Komárek, J (eds), ‘Four Visions of Constitutional Pluralism: Symposium Transcript’ (2008) 2 European Journal of Legal Studies 325.Google Scholar
3 The distinction between these two terms relates to the question of ‘ultimate authority’. It is explained in the second part of first section below.
4 Previously called 1267 Sanctions Committee, at the time responsible for listing those associated with Al-Qaida and the Taliban.
5 <http://www.un.org/sc/committees/1267/aq_sanctions_list.shtml>, accessed 15 March 2013. On 31 December 2011, the Al-Qaida Sanctions List consists of 251 natural persons and 85 legal persons.
6 Counter-Terrorism Committee (CTC).
7 First introduced by: Guidelines of the Al-Qaida Sanctions Committee for the conduct of its work, adopted on 7 November 2002, as amended on 10 April 2003, 21 December 2005, 29 November 2006, 12 February 2007, 9 December 2008, 22 July 2010, 26 January 2011 and 30 November 2011 (‘Guidelines’) para 7; available at: <http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf>, accessed 18 January 2012.
8 UN SC Res 1730 (2006), para 1.
9 UN SC Res 1822 (2008), paras 25–26.
10 UN SC Res 1904 (2009).
11 UN SC Res 1452 (2001).
12 UN SC Res 1989 (2011), para 1.
13 UN SC Res 1988 (2011), para 1.
14 UN SC Res 1988 (2011) refers explicitly to Afghanistan.
15 See, e.g., an interview with Ms Prost of 16 July 2010, available at <http://www.thenational.ae/thenational/news/world/no-fly-list-appeals-can-be-filed-online>, accessed 18 January 2012.
16 Before the Lisbon Treaty, the Union also implemented UN lists but its competence was highly controversial, see Eckes, C, ‘Judicial Review of European Anti-Terrorism Measures: The Yusuf and Kadi Judgments of the Court of First Instance’ (2008) European Law Journal 74–92.Google Scholar
17 The two separate legal bases have given raise to new problems of delimitation which go beyond the scope of the present paper. See Application in Case C-130/10, Parliament v Council, joined by the Commission, the Czech Republic, Sweden, and France as interveners (order of 10 August 2010). See on the choice of the post-Lisbon legal basis for individual sanctions: Eckes, C, ‘EU Counter-Terrorist Sanctions against Individuals: Problems and Perils’ (2012) 17(1) European Foreign Affairs Review 113–32.CrossRefGoogle Scholar
18 Pre-Lisbon this used to be a CFSP common position; post-Lisbon the instrument is called CFSP decision.
19 See ex-Article 301 EC and Article 215(2) TFEU.
20 Case 50/76 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR-00137, paras 5 and 7. This is explicitly confirmed by the state reports of, e.g., Austria and the Netherlands in the Database on National Implementation Measures of UN Sanctions, and Respect for Human Rights of the Committee of Legal Advisers on Public International Law (CAHDI), Council of Europe.
21 This includes review of both the TFEU (former Community) instrument and the CFSP decision (adopted under the TEU), see art 275(2) TFEU. See, however, Eckes (n 17).
22 See the discussion in: UK Supreme Court, Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants); Her Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant); R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury (Appellant), judgment of 27 January 2010, [2010] UKSC 2.
23 See for an explicitly descriptive approach: Griffiths, J, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1, 1–55.Google Scholar See also for a distinction between ‘explanatory’, ‘normative’ and ‘epistemic pluralism’: N Walker, ‘The Idea of Constitutional Pluralism’, EUI Working Paper LAW 2002/1, 27 ff.
24 See e.g.: Habermas, J, ’Does the Constitutionalization of International Law Still Have a Chance?’ in Habermas, J and Cronin, C (eds), The Divided West (Polity, Cambridge, 2006) 115Google Scholar; German Constitutional Court, BvR 1481/04, 2004 para 36, referring to a ‘gradually developing international community of democratic States under the rule of law’. This characterization depends, of course, on the definition of constitutionalist tendencies, which can be broadly understood to comprise ordering principles, engagement rules, identification of shared values and approximation of rules and principles. See also Eckes and Hollenberg (n 2).
25 Krisch, N, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, Oxford, 2011)Google Scholar, chs 8 and 9 discusses, for instance, the European Convention and global risk regulation; see also J Komárek, ‘The Legal World beyond the State: Constitutional and Pluralist?’, presentation at the conference ‘Constitutionalism in a New Key?: Cosmopolitan, Pluralist and Public Reason Oriented’, Berlin, 28–29 January 2011.
26 Legal pluralism is, of course, to some extent an expression of political pluralism.
27 See also Report of the European Center for Constitutional and Human Rights (ECCHR), ‘Blacklisted: Targeted Sanctions, Pre-emptive Security and Fundamental Rights’, December 2010.
28 Comprehensively: Eckes, C, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, Oxford, 2009)Google Scholar; on the infringement of human rights: G Harpaz, ‘Judicial Review by the European Court of Justice of UN ‘Smart Sanctions’ against Terror in the Kadi Dispute’ (2009) 14 European Foreign Affairs Review 1, 65–88; Lavranos, N, ‘The Impact of the Kadi Judgment on the International Obligations of the EC Member States and the EC’ (2009) 28 Yearbook of European Law 616Google Scholar ff; T Tridimas, ‘Terrorism and the COJ: Empowerment and Democracy in the EC Legal Order’ (2009) 34 European Law Review 103; Lavranos, N, ‘Judicial Review of UN Sanctions by the European Court of Justice’, 78(3) Nordic Journal of International Law (2009) 343–59, 357CrossRefGoogle Scholar; International Commission of Jurists, ‘Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights’ (2009), available at <http://ejp.icj.org/IMG/EJP-Report.pdf> 116; ECCHR report (n 27); on the relationship between EU and international law: Cannizzaro, E, ‘Security Council Resolutions and EC Fundamental Rights: Some Remarks on the COJ Decision in the Kadi Case’ (2009) 28 Yearbook of European Law 593Google Scholar ff, 599; De Jesus Butler, I, ‘Securing Human Rights in the Face of International Integration’ (2011) 60 International and Comparative Law Quarterly 125–65Google Scholar; C Tomuschat, ‘The Kadi Case: What Relationship Is There between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?’ (2009) 28 Yearbook of European Law, 663Google Scholar; Halberstam, D and Stein, E, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46 Common Market Law Review 13–72, 66Google Scholar ff; T Tridimas, ‘Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments’ (2011) 13 Cambridge Yearbook of European Legal Studies 455–90, 457Google Scholar; Genser, J and Barth, K, ‘When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform’ (2010) 33 Boston College International and Comparative Law Review 1, 24.Google Scholar
29 In January 2012, approximately 40 cases are pending before the General Court and the Court of Justice against the 30 different EU sanctions regimes (including those targeting the political elites of countries, see <http://ec.europa.eu/external_relations/cfsp/sanctions/docs/measures_en.pdf>), see Report of the Committee of Legal Advisers on Public International Law (CAHDI) UN Sanctions and Respect for Human Rights, March 2011, fn 17. Prominent cases against measures under the 1267 regime are: General Court, Case T-85/09, Kadi v Commission, judgment of 30 September 2010; Court of Justice, C-402/05 P and C-415/05 P, Kadi I, [2008] ECR I-6351; Court of First Instance, Case T-315/01, Kadi v Council and Commission [2005] ECR II-3649; currently pending: More than 40 cases are pending against different EU sanctions (including country regimes), see in particular C-130/10, Parliament v Council, joined by the Commission, the Czech Republic, Sweden, and France as interveners (order of 10 August 2010); C-584/10 P, Commission v Kadi (Application OJ C 72/9, 5 March 2011); C-593/10 P, Council v Kadi (Application OJ C 72/9, 5 March 2011); C-595/10 P, UK v Kadi (Application OJ C 72/10, 5 March 2011). On 20 January 2012, 27 of the 29 judgments given by the EU Courts in the category ‘CFSP’ concerned sanctions in some form (counterterrorist or other).
30 See on a similar distinction between applicability and scope of fundamental rights: Thies, A, ‘EU Membership of the WTO: International Trade Disputes and Judicial Protection of Individuals by EU Courts’ (2013) 2(2) Global Constitutionalism Special Issue.Google Scholar
31 Court of Justice, C-402/05 P and C-415/05 P, Kadi I, see (n 29) para 296. It must only ‘take due account’.
32 Eckes, C, ‘Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order’ (2012) 18(2) European Law Journal 230–50.Google Scholar
33 Berman, P, ‘Global Legal Pluralism’ (2007) 80(6) Southern California Law Review 1155–1238.Google Scholar
34 UN SC Res 1730 (2006).
35 UN SC Res 1904 (2009).
36 UN SC Res 1989 (2011) para 21.
37 Similarly: Ginsborg, L and Scheinin, M, ‘You Can’t Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime’ (2011) 8 Essex Human Rights Review 1, 7–19.Google Scholar
38 See literature in (n 28).
39 Ninth report, UN Doc S/2009/245, 13 May 2009, para 28: ‘[T]he Team believes that the Committee can take advantage of this independent scrutiny of the implementation of its decisions. If national and regional courts provide a forum for listed persons to bring additional information to the fore and to express their grievances, they may allow a better evaluation of the strengths or weaknesses of the cases against them, especially when the challenge is brought in the courts of the designating States, which will likely have the most information against them.’
40 Art 275(2) TFEU.
41 ‘Restrictive measures’ is the EU law term for sanctions; see art 215 TFEU.
42 Boisson de Chazournes, L and Kuijper, PJ, ‘Mr Kadi and Mrs Prost: Is the UN Ombudsperson Going to Find Herself Between a Rock and a Hard Place?’ in Rieter, E and de Waele, H (eds), Evolving Principles of International Law (Martinus Nijhoff, The Hague, 2011) 141–62.Google Scholar
43 Case T-284/08, People’s Mojahedin Organization of Iran v Council (OMPI III) [2008] ECR II-3487, para 73.
44 GC, Kadi II, para 171. This was an evaluation of the rules under Commission Regulation 1190/2008.
45 GC, Kadi II, para 173.
46 State sovereignty is often explicitly or at least implicitly understood as popular sovereignty – ultimately as an expression of ‘we the people’ as the sovereign of any given state. Compare on ‘popular constitutionalism’: see Komárek (n 25) 5 and fundamentally; Kurtulus, EN, State Sovereignty – Concept, Phenomenon and Ramifications (Palgrave, New York, 2005) 42.Google Scholar
47 Many constraints but certainly the growing interdependence lie outside the influence of states and are hence not subject to their consent. States are limited both in their negative liberty (free of constraints) and positive liberty (the possibility to achieve certain objectives). See for a distinction: Berlin, Isaiah, Four Essays on Liberty (Oxford University Press, Oxford, 1969) 180.Google Scholar
48 MacCormick, N, ‘Risking Constitutional Collision in Europe?’ (1998) 18(3) Oxford Journal of Legal Studies 517–32, 530.Google Scholar
49 Ibid 530.
50 Nico Krisch calls this the ‘rule of law critique’; see Krisch (n 2) 394.
51 CJEU, Kadi I, see (n 29).
52 CFI, Case T-315/01 Kadi v Council [2005] ECR II-3649. The Court of First Instance is since the entry into force of the Lisbon Treaty called ‘General Court’.
53 CJEU, Kadi I, see (n 29).
54 See EU Regulation 1286/2009, O.J. 2009 L 346/42, of 22 December 2009.
55 GC, Case T-85/09, Kadi II [2010] ECR II-5177.
56 CJEU, Joined Cases C-584/10 P, C-593/10 P, and C-595/10 P (pending), see (n 29).
57 March 2013.
58 Eckes, see (n 32).
59 G de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’, Jean Monnet Working Paper No. 01/09, 4, criticizing the ECJ for expressing ‘important parts of its reasoning in chauvinist and parochial tones’; Klabbers, J, Treaty Conflict and the European Union (Cambridge University Press, Cambridge, 2009) 219Google Scholar, criticizing the ECJ in acting like an ‘ostrich’.
60 See for a full account of the CoJ’s ruling: Eckes, C, ‘International Sanctions against Individuals: A Test Case for the Resilience of the European Union’s Constitutional Foundations’ (2009 15(3) European Public Law 351–78Google Scholar; A Gattini, ‘Joined Cases C-402/05 P and 415/05 P, Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council and Commission, judgment of the Grand Chamber of 3 September 2008, nyr’ (2009) 46 Common Market Law Review 213–39; Tridimas, T and Gutierrez-Fons, J, ‘EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?’ (2009) 32 Fordham International Law Journal 660–730.Google Scholar
61 Swiss Supreme Court, Youssef Mustapha Nada v Staatssekretariat für Wirtschaft [2007] 1A.45/2007.
62 Case 50/76 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR-00137, paras 5 and 7.
63 After UK Supreme Court’s decision in Ahmed (see (22)) the UK started to rely on EU legislation for the implementation of UN Security Council Resolution 1267, see The Al-Qaida and Taliban (Asset-Freezing) Regulations 2010 No 1197 and The Al-Qaida (Asset-Freezing) Regulations 2011 No 2742.
64 UK Supreme Court, Ahmed (n 22).
65 Admittedly this is an understanding of fundamental rights that is quite unique to the UK: see Dicey, AV, Introduction to the Study of the Law of the Constitution (3rd edn, Macmillan, Basingstoke, 1915)Google Scholar, stating: Parliament has ‘the right to make or unmake any law whatever; and … no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament’. This has not changed with the adoption of the Human Rights Act 1998 – see UK Supreme Court, Ahmed (n 22) para 111, per Lord Phillips; 193 per Lord Brown; and 240 per Lord Mance.
66 Polish Constitutional Court, European Arrest Warrant case, Judgment of 27 April 2005, No P 1/05.
67 ECtHR, Nada v Switzerland, Judgement of the Grand Chamber, Appl No 10593/08, 12 September 2012, 196–9. Eckes and Hollenberg, see (n 2).
68 This seems to be criticized by S Eckert and T Biersteker, ‘Due Process and Targeted Sanctions an Update of the “Watson Report”’, available at <http://www.watsoninstitute.org/pub/Watson_Report_Update_12_12.pdf> 26–7.
69 See also Boisson de Chazournes and Kuijper (n 42).
70 AG Maduro, C-402/05 P and C-415/05 P, Kadi I, para 44.
71 Krisch, see (n 25) 165.
72 See (n 25).
73 Ginsborg and Scheinin, see (n 37). Generally on the effects of noncompliance: Tzanakopoulos, A, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP, Oxford, 2011) 203.Google Scholar
74 Ninth report, UN Doc S/2009/245, 13 May 2009, para 27.
75 See, e.g., Swiss Supreme Court, Nada (n 61).
76 See in particular art 6 and 13 ECHR.
77 See in particular art 14 ICCPR.
78 See literature in (n 28).
79 E.g., Swiss Supreme Court, Nada see (n 61); UK Supreme Court, Ahmed see (n 22).
80 See (n 29).
81 Cameron, I, ‘Respecting Human Rights and Fundamental Freedoms and EU/UN Sanctions: State of Play’, European Parliament Policy Department report, October 2008, 38–9.Google Scholar
82 Court of Justice, C-402/05 P and C-415/05 P, Kadi I, see (n 29).
83 See de Wet, E and Vidmar, J, ‘Conflicts between International Paradigms: Hierarchy versus Systematic Integration’ (2013) 2(2) Global Constitutionalism Special Issue.Google Scholar
84 Court of Justice, C-402/05 P and C-415/05 P, Kadi I, para 304.
85 See literature in (n 59).
86 See (n 48) 519. He also argues that ‘pluralism under international law’ suggests that we do not need to do so ‘quite as fast’. See also Krisch (n 25) 23.
87 Not only but also in the context of the sovereign debt crises, see: ACELG blog, <http://acelg.blogactiv.eu/2013/03/01/italian-elections-and-the-european-union-till-politics-do-us-part/>.
88 The Member States have moved the legal instruments mitigating the crisis in the realm of public international law (e.g., the European Stability Mechanism). This raises many questions to the limits of EU law and might contradict EU law in several ways. It also highlights the internal constitutionalization that Member States escaped.
89 This term is taken from MacCormick (n 48) 519.
90 Consider, e.g., the Lisbon Treaty declaring that the EU shall accede to the ECHR (art 6(2) TEU; Declaration 13) despite the fact that its human rights protection has been recognized as equivalent to Convention standards (ECtHR, Bosphorus v Ireland, App No 45036/98, (2006) 42 EHRR 1) and that it has adopted a legally binding Charter of Fundamental Rights (art 6(1) TEU). See also Eckes, C, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76(2) Modern Law Review 254–85.Google Scholar
91 See, e.g., for the specific case of individual sanctions ECtHR, Nada (n 61).
92 Ginsborg and Scheinin, see (n 37). Perhaps, the years of the Rolling Stone’s approach (‘you cannot always get what you want’) to human rights protection in the area of counterterrorism are over and we should remain less retro and more forward-thinking.