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A HUMAN RIGHTS CRITIQUE OF EUROPEAN JUDICIAL REVIEW: COUNTER-TERRORISM SANCTIONS*

Published online by Cambridge University Press:  09 May 2008

Jessica Almqvist
Jessica Almqvist
Affiliation:
García-Pelayo Research Fellow, Center for Political and Constitutional Studies, Madrid.
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Abstract

Litigation involving individuals and entities whose financial assets have been frozen and whose names have been blacklisted in the fight against terrorism is on the rise around the world. However, the global ‘securitization’ of terrorism has rendered court performance of judicial review and the provision of remedies in these cases more difficult. What the main judicial challenges are, the need to overcome them, and how they can be overcome, are identified in this article as questions of central concern in an effort to secure the human right of effective access to justice for persons subjected to counter-terrorism sanctions. Special attention is given to the specific challenges facing the Court of Justice in the European Communities, the manner in which it has responded, and outstanding issues.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 57 , Issue 2 , April 2008 , pp. 303 - 331
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 UNSC, ‘Sixth Report of the Monitoring Team’ (8 March 2007) UN Doc S/2007/132, annex I, 38–40.

2 Case T–299/04 Selmani v Council and Commission [2005] ECR II-00020; Case T–206/02 KNK v Council [2005] ECR II-00523; Case T–229/02 PKK and KNK v Council [2005] ECR II-00539; Case T–333/02 Gestoras Pro Amnistía v Council [2004] OJ C 228, 0040; Case T–338/02 Segi v Council [2004] ECR II-01647; Case T–47/03 Sison v Council [2003] ECR II-02047; Case T–306/01 Aden and Al Barakaat International Foundation v Council and Commission [2002] ECR II-02387; and T–318/01 AJ Othman v Council and Commission (27 October 2006) (legal aid).

3 Case T–47/03 Sison v Council (11 Jul 2007), Case T–228/02 Organisation des Modjahedines du people d'Iran v Council [2006] OJ C 331, 28; Case T–253/02 Ayadi v Council [2006] ECR II-02139; Case T–49/04 Hassan v Council and Commission [2006] ECR-II-00052; Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533; Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649; and Joined Cases T–110/03, T–150/03 and T–405/03 Sison v Council [2005] ECR II-01429.

4 Case C–354/04 Gestoras Pro Amnistía v Council [2007] OJ C 95; Case C–355/04 Segi v Council [2007] OJ C 95, 4; Case C–266/05 Sison v Council [2007] OJ C 82, 4–5; and Case C–229/05 PKK and KNK v Council [2007] OJ C 56, 6–7. See also reference from a German court for preliminary ruling: C–117/06 Gerda Möllendorf and Christiane Möllendorf-Niehuus [2006] OJ C 108, 6.

5 Case T–135/06 Al-Faqih v Council [2006] OJ C 165; Case T–138/06 Thaer Nasuf v Council [2006] OJ C 165, 30–31; Case T–136/06 Sanabel Agency v Council [2006] OJ C 165, 30; Case T–37/07 El Morabit v Council [2007] OJ C 82, 44; Case T–49/07 Fahas v Council [2007] OJ C 95, 43–44; T–75/07 Hamdi v Council [2007] OJ C 117, 22–22; and Case T–76/07 El Fatmi v Council [2007] OJ C 117, 22–23. The first three actions concern SC listing decisions and the rest CEU's own listing decisions.

6 Case C–402/05 P Kadi v Council and Commission [2006] OJ C 36, 19–20: Case C–415/05 P Ysuf and Al Barakaat International Foundation v Council and Commission [2006] OJ C 48, 11–12; and C–399/06 Hassan v Council and Commission [2006] OJ C 294, 30–31.

7 For a comment on the ease with which the CFI has admitted individual applications on this matter (ie accepted the legal standing of the applicants), see C Tomuschat, Case T–306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T–315/01, Yassin Abdullah Kadi v Council and Commission, judgment of the Court of First Instance of 21 September 2005 (2006) 43 CMLR 537, 539.

8 The exceptions are Case T–47/03 Sison v Council (11 July 2007) and Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission [2007] OJ C 331, 28. But note also Case C–229/05 PKK and KNK v Council [2007] OJ C 56, 6–7 in which the ECJ refers the case back to the CFI for judgment on the merits as well as Case C–355/04 Segi v Council [2007] OJ C 95, in which the ECJ recognizes a right to preliminary ruling.

9 T Andersson, I Cameron and K Nordback, ‘EU Blacklisting: the Renaissance of imperial Power, but on a Global Scale’ [2003] EBLR 111, 127 (‘… the blacklisting technique risks emptying the right of access to court of substance …’ (emphasis added)).

10 See international counter-terrorism conventions, eg the Convention for the Suppression of Unlawful Seizure of Aircraft (1971); Convention for the Suppression of Unlawful acts Against the Safety of Civil Aviation (1971); International Convention against the Taking of Hostages (1979); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988); International Convention for the Suppression of Terrorist Bombings (1997); and International Convention for the Suppressing of the Financing of Terrorism (1999). But note that the Security Council has acted under Chapter VII in response to terrorism prior to 9/11; however, these responses have been restricted to condemnation of particular events or the adoption of economic sanctions against specific states. Its actions were never based on the claim that any act of international terrorism is an international security threat.

11 See eg UNGA, ‘Report of the Secretary General's High Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility’ (2004) A/59/656; UNGA, ‘Report of the Secretary-General, In Larger Freedom: Towards Security, Development and Human Rights for All’ (2005) A/59/2005; and UNGA, 2005 World Summit Outcome (2005) A/RES/60/1, para 90.

12 For an analysis of the changing perception of the nature of terrorism since 9/11, see eg W Enders and T Sandler, ‘After 9/11: Is it All Different Now?’ (2005) 49 JCR 259. See also W Enders and T Sandler, The Political Economy of Terrorism (CUP, Cambridge, 2006), especially the introduction.

13 PC Szasz, ‘The Security Council Starts Legislating’ (2002) 96 AJIL 901.

14 But note that the idea about the need for broad executive powers may be traced to the initial US reaction to the attacks of 9/11 as its Congress passed a joint resolution authorizing the President to use ‘all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations’. Authorization for Use of Military Force, Pub L 107–40, §§1–2, 115 Stat 224.

15 See eg A Bianchi, ‘Assessing the Effectiveness of the UN Security Council's Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 EJIL 881, 882; and I Cameron, ‘UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights’ (2003) 72 NJIL 159, 164.

16 UNSC Res 1373 (28 September 2001) art 1 (c). Furthermore, all States are obliged to: ‘prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons’ (art 1(d)).

17 UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267. See also Rosand (n 14).

18 The Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida, Usama Bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them, last updated 14 March 2008 <http://www.un.org/sc/committees/1267/pdf/consolidatedlist.pdf>accessed 30 March 2008.

19 The Analytical Support and Sanctions Monitoring Team was appointed pursuant to UNSC Res 1564 (30 January 2004) UN Doc S/RES/1564 and extended by UNSC Res 1617 (2005) (25 January 2005) UN Doc S/RES/1617 and UNSC Res 1735 (22 December 2006) UN Doc S/RES/1735.

20 UNSC, ‘Sixth Report of the Monitoring Team’ (8 March 2007) UN Doc S/2007/132, para 8.

21 For example, at the moment, certain well-known names are absent from the Consolidated List while others appear on the list even though they are dead or cannot be identified. See ‘Sixth Report of the Monitoring Team’ ibid paras 16 and 18.

22 Note that human rights criticism in this context is rarely, if ever, directed against ‘targeted’ sanctions as such, but against the manner in which such sanctions are implemented. In selecting specific targets, these sanctions are meant to protect innocent civilian populations from harmful effects stemming from collective forms of economic punishment (such as trade embargoes against countries), and in this sense are seen both as more efficient (‘smarter’) and more legitimate (‘humane’). Still, whether the use of ‘targeted sanctions’ in the global fight against terrorism, in fact, serves these objectives is open to debate.

23 See UNGA, ‘Report of the Secretary-General's High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility’ (4 December 2004) UN Doc A/59/565, para 152; and UNGA 2005 World Summit Outcome (2005) A/RES/60/1, para 109. See also ‘Report of Watson Institute of International Studies at Brown University, Strengthening Targeted Sanctions Through Fair and Clear Procedures’ (2006). The report was commissioned by the Governments of Sweden, Switzerland and Germany.

24 See UNSC Res 1452 (20 December 2002) UN Doc S/RES/1452. For a critical comment on its limited implementation, UNHCR, ‘Report of Special Rapporteur on Counter-terrorism’ (2006) UN Doc A/61/267, paras 30–41.

25 Compare eg the UNSC Res 1267 (15 October 2002) UN Doc S/RES/1267, para 5(d) with UNSC Res 1617 (2005) (25 January 2005) UN Doc S/RES/1617, para 2; and UNSC Res 1735 (22 December 2006), UN Doc S/RES/1735, para 5. For a comprehensive overview of improvements in terms of guidance since 1999, see UNSC, ‘Third Report of the Monitoring Team’ (9 September 2005) UN Doc S/2006/154, para 41. But also note that the Monitoring Team believes that more needs to be done in this field. See UNSC, ‘Sixth Report of the Monitoring Team’ (8 March 2007) UN Doc S/2007/132, para 15.

26 UNSC Res 1735 (22 December 2006) UN Doc S/RES/1735, paras 6 and 11.

27 UNSC Res 1617 (2005) (25 January 2005) UN Doc S/RES/1617, para 6; and UNSC Res 1735 (22 December 2006), UN Doc S/RES/1735, para 6.

28 UNSC Res 1735 (22 December 2006), UN Doc S/RES/1735, paras 13 and 14.

29 See UNHCR, ‘Report of Special Rapporteur on Counter-terrorism’ (2006) UN Doc A/61/267, para 40: ‘For those organizations which have been wrongly placed on the lists, either because the intelligence on which the placement was based was incorrect or because the name on the list is an acronym or wrongly spelt, compensation or restitution needs to be made available, in line with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly resolution 40/34 of 29 November 1985, annex) which provides that States should provide redress for victims of crime and abuse of power.’

30 Still, the importance of international justice in the global security context has been felt before. In the last decade, the SC has come to regard international criminal justice as a response to threats against international security.

31 UNSC, ‘Sixth Report of the Monitoring Team’ (8 March 2007) UN Doc S/2007/132, para 1: ‘all appear to agree … that the problem will be with us for some time to come’.

32 UNHCR, ‘Report of Special Rapporteur on Counter-terrorism’ (2006) UN Doc A/61/267, paras 34–36.

33 Case T–47/03 Sison v Council (11 July 2007) para 194 and Case C–229/05 PKK and KNK v Council [2007] OJ C 56, 6–7, para 110.

34 (n 32) para 36.

35 See eg UNSCR, ‘Report submitted by France Pursuant to Security Council Resolution 1455 (2003) Concerning Sanctions against Al-Qá idah’ (2003) UN Doc S/AC.37/2003(1455) 37, 3.

36 See Consolidated List (n 18).

37 The legal basis for Community actions in focus is Articles 11, 15 and 29 of the Treaty of the European Union, and Articles 60, 301 and 308 of the EC Treaty. For a detailed overview of the relevant provisions, see I Cameron, ‘European Union Anti-Terrorist Blacklisting’ (2003) 3 HRLR 2, 225. For a more general human rights-based reflection on the European response to terrorism, see eg C Warbrick, ‘The European Response to Terrorism in an Age of Human Rights’ (2004) 15 EJIL 5, 1018.

38 See eg Council Regulation (EC) 337 of 14 February 2000, para 3, and Council Regulation (EC) 467 of 6 March 2001, para 3.

39 See eg Council Regulation (EC) 467 of 6 March 2001, para 4.

40 Council Common Position of 27 December 2001 (2001/936/CFSP), annex. For the most recent update of the EU listing see Council Common Position of 28 June 2007 (2007/445/EC), annex.

41 There is now new agreement on a de-listing procedure. See Council of the European Union, ‘Terrorist List—Adoption of New Consolidated List’, Brussels, 29 June 2007 (11309/07(Presse 158)). But also note that some de-listing procedure existed before. Compare the listing of 29 May 2006 which does not include nineteen persons reported as ETA members who listed in that of 20 March 2006 (Council Common Position 2006/231/CFSP of 20 March 2006 (2005/936/CFSP), annex).

42 Council Declaration concerning the Right to Compensation, annexed to the minutes of the meeting at the time of adopting Council Common Position 2001/931 and Council Regulation (EC) 2580/2001 of 27 December 2001 according to which: ‘in the event of any error in respect of the persons, groups or entities referred to, the injured party shall have the right to seek judicial redress’. But see Case C–355/04 Segi v Council (27 February 2007) para 60 (‘… such a declaration is insufficient to create a legal remedy not provided for by the applicable texts …’).

43 Article 1(2) of Council Common Position 2001/931 of 27 December 2001 (2001/931/CFSP): ‘persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts; groups and entities owned or controlled directly or indirectly by such persons and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities’. Article 1(3) defines ‘terrorist group’ as: ‘a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. ‘Structured group’ means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure'.

44 For a more detailed overview of the EU procedure, see I Cameron, ‘European Union Anti-Terrorist Blacklisting’ (2003) 3 HRLR 2, 225, 234–35.

45 Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission, [2006] OJ C 331, 28.

46 Council Notice 2007/C144/01 of 29 June 2007. But see Case T–47/03 Sison v Council (11 July 2007) in which the Court of First Instance annuls a Council decision on asset freeze on the basis that the Council has failed to provide a ‘statement of reasons’ and guarantee rights to defence and fair hearing.

47 Council Notice 2007/C144/01 of 29 June 2007.

48 ibid. ‘The attention of the persons, groups and entities concerned is drawn to the possibility of making an application to the competent authorities of the relevant Member State(s) as listed in the Annex to the Regulation in order to obtain an authorization to use frozen funds for basic needs of specific payments (cf Article 5 of the Regulation).’

49 ibid. ‘The persons, groups and entities concerned may submit a request to obtain the Council's statement of reasons for maintaining them on the above-mentioned lists (unless the statement of reasons has already been communicated to them). In this respect, the attention of the persons, groups and entities concerned is drawn to the forthcoming review by the Council of the list, according to Article 1(6) of Common Position 2001/931/CFSP of the Council.’

50 ibid. ‘The persons, groups and entities concerned may also submit a request to the Council, together with supporting documentation, that the decision to include them on the above-mentioned lists should be reconsidered. Any such request should be submitted within one month from the date of publication of this notice. Any such request should be sent to the following address: Council of the European Union (Attn: UNSCR1373 designations), Rue de la Loi 175, B-1048 Brussels.’

51 Council of the European Union, ‘Terrorist List—Adoption of New Consolidated List’, Brussels, 29 June 2007 (11309/07(Presse 158)).

52 Case C–266/05 Sison v Council [2007] OJ C 82, 4–5.

53 Joined Cases T–110/03, T–150/03 and T–405/03 Sison v Council [2005] ECR II-01429. See also Case C–266//05 Sison v Council [2007] OJ C 82, 4–5, paras 43, 48–51.

54 Case T–299/04 Selmani v Council and Commission [2005] ECR II-00020, paras 60–64, 74–75.

55 See Case T–206/02 KNK v Council [2005] ECR II-00523. But see also Case C–229/05 PKK and KNK v Council [2007] OJ C 56, 6–7, in which the ECJ refers the case back to the CFI for judgment on the merits on the basis of the finding that the PKK retains certain existence albeit in reorganized form and under another name (KNK) (paras 37–54).

56 For example, at the time of writing, the Commission has amended Council Regulation (EC) 882/2002 of 27 May 2002 imposing certain restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban about 80 times.

57 But see art 6 of Reform Treaty amending the Treaty of the European Union and the Treaty Establishing the European Community (CIG 1/1/07) (5 October 2007) (at the time of writing not in force) according to which the Charter ‘shall have the same legal value as the Treaties’.

58 For a comprehensive analysis of this matter, see S Peers, ‘Salvation Outside the Church: Judicial Protection in the Third Pillar after the Pupino and Segi Judgments’ (2007) 44 CMLR 883.

59 See eg Case T–338/02 Segi v Council [2004] ECR II-01647, para 46; and Case C–354/04 Gestoras Pro Amnistía v Council [2007] OJ C 95, para 46. See also Case T–299/04 Selmani v Council and Commission [2005] ECR II-00020, para 54.

60 Case T–333/02 Gestoras Pro Amnistía v Council [2004] OJ C 228, 0040, para 40 ff; and Case T–299/04 Selmani v Council and Commission [2005] ECR II-00020, para 56.

61 Case C–229/05 PKK and KNK v Council [2007] OJ C 56, 6–7, para 111.

62 Case C–355/04 Segi v Council [2007] OJ C 95, para 56; and Case C–354/04 Gestoras Pro Amnistía v Council [2007] OJ C 95, para 56.

63 Case C–355/04 Segi v Council [2007] OJ C 95, para 52; and Case C–354/04 Gestoras Pro Amnistía v Council [2007] OJ C 95, para 52.

64 Case C–355/04 Segi v Council [2007] OJ C 95, para 54; and Case C–354/04 Gestoras Pro Amnistía v Council [2007] OJ C 95, para 54.

65 ibid (emphasis added) (identical phrasing in both cases).

66 Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission, [2006] OJ C 331, 28, para 55. Furthermore, ‘it follows from Articles 35 EU and 46 EU that, under Title VI of the EU Treaty, legal remedies seeking a ruling as to the validity or annulment are available only as against framework decisions, decisions and the measures implementing conventions provided for by Article 34(2)(b), (c) and (d) EU, with the exception of the common positions provided for in Article 34(2)(a) EU’ (para 52 of the same judgment).

67 Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission, [2006] OJ C 331, 28, para 154. See also T–47/03 Sison v Council (11 July 2007) para 201.

68 Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission [2006] OJ C 331, 28, para 154.

69 ibid para 159.

70 ibid.

71 ibid.

72 ibid paras 175–81.

73 For an overview of European human rights obligations of ECHR contracting States to grant access to court in relation to antiterrorist sanctions, see I Cameron, The European Convention on Human Rights, Due Process and United Nations Security Council Counter-terrorism Sanctions (Council of Europe, Strasbourg, 2006).

74 M-G G Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 77, 80.

75 Case C–355/04 Segi v Council [2007] OJ C 95, para 50; and Case C–354/04 Gestoras Pro Amnistía v Council [2007] OJ C 95, para 50.

76 Neither the draft European Constitution nor the Reform Treaty entail provisions that, if entering into force, would extend the competences of the Community Courts on these matters.

77 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 181.

78 ibid para 184.

79 ibid para 189.

80 ibid para 202.

81 ibid para 203.

82 ibid para 207.

83 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 214.

84 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 219; and Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 270.

85 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 225; and Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 276.

86 For an eloquent discussion of the basis for CFI competence to check SC resolutions, see Tomuschat (n 7) 545 ff.

87 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 229.

88 See also eg Legal Consequences for States on the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 53, para 115.

89 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, paras 226 and 282. Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 277.

90 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 284; Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 339.

91 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, paras 285–86; Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, paras 340–41.

92 Tomuschat (n 7) 548.

93 See eg DF Donovan and A Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100 AJIL 142.

94 Tomuschat (n 7) 548.

95 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 288; Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 340.

96 UNHRC, ‘General Comment no 29. States of Emergency (Article 4)’ [2001] CCPR/C/21/Rev.1/Add 11, paras 14 and 15: ‘It is inherent in the protection of rights explicitly recognized as non-derogable in Article 4, paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as Article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15.’

97 ibid para 11: ‘The category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstance invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by … deviating from fundamental principles of fair trial, including the presumption of innocence’.

98 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 285; and Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 340.

99 EG Flynn, ‘The Security Council's Counter-terrorism Committee and Human Rights’ (2007) 7 HRLR 371.

100 See eg UNSC Res 1456 (20 January 2003) UN Doc S/RES/1456, para 6, and UNSC Res 1566 (8 October 2004) UN Doc S/RES/1566, preamble.

101 A Bianchi, ‘Assessing the Effectiveness of the UN Security Council's Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’ (2007) EJIL 881, 916.

102 But see Report of Martin Scheinin, Special Rapporteur on the Promotion and protection of human rights and fundamental freedoms while countering terrorism (A/61/267) (August 2006), para 39.

103 For a recent account of the unsatisfactory state of affairs with respect to human rights protection in the European Union, see T Ahmed and I de Jésus Butler, ‘The European Union and Human Rights: An International Law Perspective’ (2006) 17 EJIL 771.

104 R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 43 CMLR 337, 371–72.

105 Tomuschat (n 7) 544–45.

106 Bundesverfassungsgericht, judgment of 22 October 1986, 2 BvR, 197/83, English translation (1987) 3 CMLR.

107 Eg UNSC Res 1390 (28 January 2002) UN Doc S/RES/1390, para 2, which only refers to the list.

108 See eg L Fuller, The Morality of Law (revised edn, Yale University Press, New Haven, 1964) 46–47, 209–10.

109 See eg J Rawls, A Theory of Justice (revised edn, Harvard University Press, Cambridge, MA, 1999) 208–9.

110 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 289; and Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-03533, para 344.

111 Case T–306/01 Aden and Al Barakaat International Foundation v Council and Commission [2002] ECR II-02387, para 76. Similar difficulties were experienced in the Swedish national courts. For example, the applicants mention ‘difficulties in asserting their rights before the national courts. A proposed legal action against the banks could not be brought because insurance companies refused to provide legal protection in two instances’ (para 75).

112 Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission [2006] OJ C 331, 28, para 141.

113 ibid para 155.

114 Case T–315/01 Kadi v Council and Commission [2005] ECR II-03649, para 284.

115 A summary of the case is found in UNSC, ‘Sixth Report of the Monitoring Team’ (8 March 2007) UN Doc S/2007/132, para 8.

116 I Cameron, ‘European Union Anti-Terrorist Blacklisting’ (2003) 3 HRLR 225, 249. See also I Cameron, National Security and the European Convention on Human rights (Kluwer Law, Dordrecht, 2000) 51, 356–57.

117 See Report of Martin Scheinin, Special Rapporteur on the Promotion and protection of human rights and fundamental freedoms while countering terrorism (A/61/267) (August 2006), para 39.

118 Case T–228/02 Organisation des Modjahedines du people d'Iran v Council and Commission [2006] OJ C 331, 28, para 159.

119 Case T–47/03 Sison v Council (11 July 2007).

120 ibid para 205.

121 ibid para 224.

122 ibid para 227.

123 I Cameron, ‘European Union Anti-Terrorist Blacklisting’ (2003) 3 HRLR 225, 249: ‘… the CFI, the ECJ and the EctHR [European Court of Human Rights] do not have such expert knowledge or such security sensitive procedures, and their composition and function as international courts make them inappropriate for such matters’.

124 Council of the European Union, Presidency and CT Coordinator, ‘EU Action Plan on Combating Terrorism’ (13 February 2006) 5771/1/06 Rev 1, para 1.3.1.