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The Security Council's 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review

Published online by Cambridge University Press:  27 January 2015

STEPHAN HOLLENBERG
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Abstract

From a due process perspective, the essential problem with the UN Security Council's targeted sanctions regime is the persistent lack of sufficient access to confidential material relied upon for the designation of targeted individuals. Despite the Security Council's efforts to amend the procedures of the sanctions regime, it is highly unlikely that this deficiency can ever be remedied within its present top-down structure. Therefore, this article proposes to decentralize the regime's designation procedure, to mitigate the problem of being unable to challenge or review confidential information and evidence, which underlies an individual's designation. Such an amendment would entail that the designation of a particular individual and the possible subsequent judicial review procedure would take place domestically, prior to a universal blacklisting by the UN Sanctions Committee. As a consequence, any confidential material relied upon could stay within the designating state, and would be shared only with courts and possibly special security-cleared advocates, within that domestic legal order. This would make it more acceptable for the relevant authorities to make such information available.

Keywords

confidential informationdomestic courtseffective remedySecurity Counciltargeted sanctions
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 28 , Issue 1 , March 2015 , pp. 49 - 71
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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References

1 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, European Commission and United Kingdom v. Yassin Abdullah Kadi [2013] ECR I-0000 [hereinafter Kadi II Appeal]. See infra note 20.

2 Kadi II Appeal, at para. 134. See also subsection 2.2.1.

3 On the multiple normative layers involved in this issue see: Eckes, C. and Hollenberg, S. J. ‘Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al Jedda, Ahmed and Nada’, (2013) 20 Maastricht Journal of European and Comparative Law 220CrossRefGoogle Scholar.

4 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119, Art. 25.

5 Ibid., Art. 103.

6 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221; CETS 5 [hereinafter ECHR], Arts. 6 and 13 and International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Arts. 2(3) and 14. In addition to being part of the human rights law catalogue, these rights are also tools to secure the protection of other human rights in particular instances.

7 See R (on the application of Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, ILDC

832 (UK 2007), at para. 35 and also HM Treasury v. Mohammed Jabar Ahmed and others [2010] UKSC 2 & UKSC 5; ILDC 1533 (UK 2010) [hereinafter Ahmed], paras. 74 and 175.

8 In the Kadi I case the Court of Justice clearly separated the EU legal order from general international law. See Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I-06351 [hereinafter Kadi I], at para. 288. It relied on the constitutional principles of the European legal order, which it found could not be prejudiced by obligations imposed by an international agreement. Ibid., at para. 285. Thereby it equated to a certain extent the EU legal order with a domestic legal order. It granted the UN Charter a position in the EU legal order's hierarchy in between primary and secondary EU law. Ibid., at paras. 307–8. Note that on the basis of the CJEU's characteristics that are most relevant for the analysis, it will be considered a domestic court for the purpose of the present discussion. See similarly S. J. Hollenberg, Challenges and Opportunities for Judicial Protection against Decisions of the Security Council diss. University of Amsterdam, 11 June 2013, 14–15.

9 See on this dualist approach Hollenberg, supra note 8, at Chapter 6.

10 See ibid. and UN Charter, Art. 103.

11 See, e.g., Kadi I, and Kadi II; The Netherlands v. A and Others [2011] LJN: BQ4781, at para. 5.5, and The Netherlands v. A and Others [2012] LJN: BX8351; ILDC 1959 (NL 2012), at para. 3.6.2; see also Ahmed. Even the ECtHR in Nada v. Switzerland [2012] ECHR 1691 appeared to require domestic courts to take such approach, with regard to the right to an effective remedy. See ibid., at paras. 212 and 176.

12 Special Rapporteur ‘Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’, (26 September 2012) UN Doc A/67/396, at para. 23. See also Blokker, N., ‘Reviewing the Review: Did the European Court of Justice in Kadi Indirectly Review Security Council Resolutions? On the Downside of a Courageous Judgment’, in Bulterman, M. et al. (eds.) Views of European Law from the Mountain: Liber Amicorum Piet Jan Slot (2009), 315Google Scholar at 325.

13 de Wet, E. ‘From Kadi to Nada: Judicial Techniques Favouring Human Rights over United Nations Security Council Sanctions’, (2013) 12 Chinese Journal of International Law 787CrossRefGoogle Scholar, 788–90; C. Feinäugle ‘COMMISSION v. KADI. Joined Cases C-584/10 P, C-593/10 P, & C-595/10 P’, (2013) 107 AJIL 878, 882.

14 See discussion in section 3.1.

15 See supra notes 11 and 12.

16 See supra note 6.

17 According to the Court of Justice this general principle of EU law has been enshrined in Arts. 6 and 13 of the ECHR. Kadi I, at para. 335.

18 Kadi II Appeal, at para. 337. Note that for reasons of readability this article will when necessary use the male pronoun only. This choice in no way reflects the writer's perspective on gender emancipation, and the use of the male pronoun should be understood to include the experiences of all persons. An exception is made in relation to the Ombudsperson, since a woman currently holds that office.

19 These are also publicly available at <http://www.un.org/sc/committees/1267/narrative.shtml> (last visited 29 November 2013).

20 The CJEU consists of the Court of Justice and the General Court. See Treaty on the European Union, as amended by the Treaty of Lisbon, Official Journal C83 of 30.3.2010 (TEU), Art. 19. When relevant this article will distinguish between the Court of Justice and the General Court. Otherwise it will refer to the overall institution of the CJEU.

21 In order to ensure the effective application of a decision to freeze an individual's assets, it is inevitable that the targeted individual is not informed of the sanction before its actual application. Obviously, this practice is necessary to avoid the targeted individual being able to transfer his funds from one to another account before they can be frozen. The EU judiciary accepted that for that reason, the targeted individual's enjoyment of this fundamental right could be limited lawfully in relation to the procedure leading to the initial decision to impose sanctions. This limitation must be remedied, however, by communicating to the targeted individual the decision, and the grounds and evidence underlying that decision, immediately after the imposition of the sanctions. See Case T-228/02, Organisation des Modjahedines du peuple d’Iran v. Council of the European Union [2006] ECR II-4665 [hereinafter OMPI], at para. 140; see also Kadi I, at paras. 336–7 and 3489.

22 See OMPI, supra note 21, at para. 94. See also Eckes, C. and Mendes, J., ‘The Right to be Heard in Composite Administrative Procedures: Lost in Between Protection’, (2011) 36 European Law Review 651Google Scholar, 651.

23 OMPI, supra note 21, at para. 140.

24 Kadi I supra note 8, at paras. 34–9.

25 Ibid., at para. 349; Case T-85/09 Kadi v. European Commission [2010] ECR II-05177 [hereinafter Kadi II First Instance], at para. 181; OMPI, supra note 21, at para. 165.

26 Kadi II Appeal, supra note 1, at paras. 137–9.

27 Ibid., at para. 137.

28 Ibid., at para. 116.

29 Kadi II First Instance, supra note 25, at para. 177. See also Hollenberg, supra note 8, at 313–4.

30 Kadi II Appeal, at paras. 142–9.

31 Ibid., at para. 114.

32 Ibid., at paras. 148–9.

33 Ibid., at para. 149.

34 Ibid.

35 Ibid., at para. 140.

36 Ibid., at para. 122.

37 Ibid., at paras 151, 154, 157, and 160.

38 Ibid., at paras. 152–3, 155, 158–9, and 161–2.

39 See infra subsection 2.3.

40 Kadi I, supra note 8, at para. 342; OMPI, supra note 21, at para. 148.

41 See Kadi II Appeal, supra note 1, at paras. 146–7. See also Kadi I, supra note 8, at para. 342 and OMPI, supra note 21, at para. 141.

42 Chahal v. The United Kingdom [1996] (App. No. 22414/93).

43 See Kadi I, supra note 8, at para. 344; Kadi II Appeal, supra note 1, at para. 146; OMPI, supra note 21, at para. 156.

44 Chahal, supra note 42, at para. 131. See also Öcalan v. Turkey, Judgment, 12 May 2005, ECHR (App. No. 46221/99), at para. 106.

45 Chahal, supra note 42, at para. 131.

46 Ibid. See infra note 49.

47 The mechanism originated in Canada, and is in place in countries such as New Zealand and the United Kingdom. See J. Ip, ‘The Rise and Spread of the Special Advocate’, (2008) Public Law 717, 719, and 728. In response to the Chahal decision the UK adopted the special advocates procedure in special immigration cases. See House of Commons Constitutional Affairs Committee, The Operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates’ Seventh Report of Session 2004–05 Vol. I [hereinafter House of Commons], at para. 48. Subsequently, the UK extended this model to other categories of cases, including those concerning anti-terrorism measures, such as preventive detentions and control orders. Ibid., at para. 50. See also Ip, at 721. In the latter context, the fairness of the procedure was subject to judicial review in several cases brought by individuals who were suspected of being involved in terrorism-related activities. See A and Others v. The United Kingdom, Judgment, 19 February 2009, ECHR (App. No. 3455/05) and Secretary of State for the Home Department v. AF (FC) and another [2009] UKHL 28 [hereinafter Control Orders II].

48 See House of Commons, supra note 47, at para. 23.

49 Note that the ECtHR has not given ‘a ringing endorsement’ of the special advocates procedure as such. See House of Commons, supra note 47, at para. 49. It merely considered what should be the minimum level of disclosure of confidential information in cases in which a special advocates procedure is in place. Moreover, it confirmed that a special advocates procedure could be a means to ensure a fair balance between the conflicting concerns, in the sense that it could provide an important safeguard in addition to an independent court. However, the procedure has not been free from critique. See Ip, supra note 47, at 731 and House of Commons, supra note 47, at para. 86. Problematic is, for example, that in practice special advocates primarily submit arguments for the release of allegedly confidential information. Their representative function remains limited, since they are, in principle, allowed to receive instructions from the adversely affected individuals only before they have had access to the confidential material. Therefore the affected individuals can only instruct the special advocate in advance, on the basis of the executive's statement summarizing the case. See Control Orders II, supra note 47, at paras. 72–4 and Hollenberg, supra note 8, at 309–11.

50 E. de Wet, ‘Distilling Principles of Judicial Protection from Judicial and Quasi Judicial Decisions’ (expert workshop on Due Process Aspects in the Implementation of Targeted United Nations Security Council Sanctions, organized by the Fourth Freedom Forum and Kroc Institute for International Peace Studies at the University of Notre Dame New York 30 October 2009), at 18.

51 A and Others v. The United Kingdom, supra note 47, at paras. 205 and 220.

52 See Control Orders II, supra note 47, at paras. 71 and 119.

53 See ibid., at para. 116.

54 A and Others v. The United Kingdom, supra note 47, at paras. 205 and 220. See also Control Orders II, supra note 47, at paras. 59, 65, 80–1, and 116.

55 It appeared to have been the government's intention to make statutory provision for special advocates from the outset. Still, two years after the adoption of the domestic implementation, no such procedure was yet in force. This delay remained unexplained. A, K, M, Q, & G v. HM Treasury [2008] EWCA Civ. 1187, at paras. 57–8 and 153. See also supra note 47.

56 As to the lack of such procedure in relation to the EU autonomous sanction regimes see Eckes, C., ‘Decision-making in the Dark? Autonomous EU Sanctions and National Classification’, in Cameron, I. (ed.) EU Sanctions: Law and Policy Issues concerning Restrictive Measures (2013), 177Google Scholar at 191.

57 This can of course be explained by the fact that that states do not have any discretion when implementing the sanction measures imposed by the Security Council. They can do no other than taking the prescribed measures against the individuals designated by the Sanctions Committee. See Hollenberg, supra note 8, at 29–35. But even if such special procedures were available, most domestic authorities that implement these sanctions do not possess relevant confidential information themselves, as will be considered further in subsection 2.3. This makes a special advocates procedure rather meaningless, since there is no information available that can be shared with such advocate.

58 Kadi II First Instance, supra note 25, at para. 176.

59 The General Court referred to the suggestion of employing such procedures made by the Court of Justice in the Kadi I case, but went on to ignore it in the application to the present case. Ibid., at para. 134.

60 Kadi II Appeal, supra note 1, at para. 129. See also subsection 2.1.2.

61 A and Others v. United Kingdom, supra note 47, at para. 220.

62 See also Control Orders II, supra note 47, at para. 86. See to the same effect Lord Phillips, at para. 59.

63 Control Orders II, supra note 47, at paras. 86 and 120.

64 Kadi II Appeal, supra note 1, at para. 129.

65 See, respectively, Kadi I, supra note 8, at para. 326 and Kadi II First Instance, supra note 25, at para. 144.

66 Kadi I, supra note 8, at paras. 321–6. Kadi II First Instance, supra note 25, at para. 126–7.

67 Such argument bears similarities to the Solange I reasoning. See BVerfGE 37, 271 of 29 May 1974, and Eckes, C., ‘Test Case for the Resilience of the EU's Constitutional Foundations’, (2009) 15 European Public Law 351Google Scholar, 371. See also Hollenberg, supra note 8, at 293–4.

68 For example, in the preamble to UNSC Res. 1904 (17 December 2009) UN Doc. S/Res/1904, the UNSC took ‘note of challenges, both legal and otherwise, to the measures implemented by Member States’.

69 See section 3.1.

70 Kadi II Appeal, supra note 1, at para. 133. See Nada, supra note 11, at para. 211.

71 Kadi II Appeal, supra note 1, at para. 133.

72 Ibid., at para. 134.

73 Ibid., at para. 124.

74 Ibid., at para. 130.

75 See to the same effect: Kadi II First Instance, supra note 25, at para. 129.

76 Ahmed, supra note 7, at para. 81.

77 See also De Sena, P. and Vitucci, M., ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values’, (2009) 20 EJIL 193CrossRefGoogle Scholar, at 225.

78 Kadi II First Instance, supra note 25, at para. 135.

79 Kadi II Appeal, supra note 1, at para. 122.

80 Ibid., at para. 123.

81 HAY v. HM Treasury and Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1677 (Admin.), at para. 30.

82 Compare A, K, M, Q, & G v. HM Treasury, supra note 55, at paras. 119–20 to HAY v. HM Treasury, supra note 81, at para. 30. See Hollenberg, supra note 8, at 319–20.

83 Kadi II Appeal, supra note 1, at paras. 1269. See also Hollenberg, supra note 8, at 315.

84 Kadi I, supra note 8, at para. 350. See also Kadi II First Instance, supra note 25, at para. 144.

85 A and Others v. The United Kingdom, supra note 47.

86 Ibid., at para. 205.

87 Ibid., at paras. 218–19.

88 Secretary of State for the Home Department v. MB and AF [2007] UKHL 46 [hereinafter Control Orders I], at para. 35.

89 A and Others v. The United Kingdom, supra note 47, at para. 205. In the following paragraphs 206–9, it considered the role a trial judge may play in situations concerning the use of confidential information in criminal proceedings. See also Baroness Hale in Control Orders I, supra note 88, at paras. 62–3 and 65, and C. Eckes, EU Counter-Terrorist Policies and Fundamental Rights; The Case of Individual Sanctions (2009), 198. See, similarly, Barak-Erez, D. and Waxman, M., ‘Secret Evidence and the Due Process of Terrorist Detention’, (2009) 48 Columbia Journal of Transnational Law 3Google Scholar.

90 See A and Others v. The United Kingdom, supra note 47, at para. 208. See also Control Orders II, supra note 47, at para. 78, and see Ip, supra note 47, at 734.

91 See A and Others v. The United Kingdom, supra note 47, at para. 219, and to the same effect Control Orders II, supra note 47, at paras. 86 and 121.

92 Control Orders II, supra note 47, at para. 121.

93 Kadi II Appeal, supra note 1, at para. 126. See also the Draft Rules of Procedure of the General Court (17 March 2014) ST 7795 2014 INIT, Art. 105.

94 Kadi II Appeal, supra note 1, at para. 127.

95 Ibid., at para. 128.

96 Ibid., at para. 129.

97 Ibid.

98 Ibid., at para. 125.

99 This concern might be mitigated if the procedure as indicated in the draft rules of procedure for the General Court is followed. There it is held that the General Court will invite ‘the party concerned to produce, for subsequent communication to the other main party, a non-confidential version or a non-confidential summary of the information or material, containing the essential content thereof and enabling the other main party, to the greatest extent possible, to make its views known’. Accordingly, the Court will not itself compose such summary. Still, it is then for the Court to consider whether it can base its judgment on information not communicated to the party concerned. If so, it takes account of the fact that that party has not been in a position to respond to such information. Draft Rules of Procedure of the General Court, supra note 93, Art. 105(6) and (7).

100 Kadi II Appeal, supra note 1, at para. 115.

101 See D. Cortright, ‘Human Rights and Targeted Sanctions: An Action Agenda for Strengthening Due Process Procedures’, (November 2009) The Fourth Freedom Forum and the Kroc Institute for International Peace Studies, at 17, and Special Rapporteur, ‘Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’, (26 September 2012) UN Doc. A/67/396, at para. 26.

102 A, K, M, Q, & G v. HM Treasury, supra note 55.

103 Ibid., at paras. 119–20.

104 HAY v. HM Treasury, supra note 81, at paras. 7 and 30. See also Hollenberg, supra note 8, at 319–20.

105 Consecutive amendments made it possible to grant certain exemptions for humanitarian purposes, UNSC Res. 1452 (20 December 2002) UN Doc. S/Res/1452, and UNSC Res. 1735 (22 December 2006) UN Doc S/Res/1735; to require states transmitting names to provide a statement of reasons, UNSC Res. 1617 (29 July 2005) UN Doc. S/Res/1617 [4]; and a triennial re-examination procedure was introduced, UNSC Res. 1822 (30 June 2008) UN Doc. S/Res/1822, at paras. 25–6. In addition, it established a Focal Point to which the designated individuals could address their complaints directly. UNSC Res. 1730 (19 December 2006) UN Doc. S/Res/1730. Finally, the Security Council introduced the Office of the Ombudsperson, UNSC Res. 1904 (17 December 2009) UN Doc. S/Res/1904, and extended her competences, UNSC Res. 1989 (17 June 2011) UN Doc, S/Res/1989 and UNSC Res. 2083 (17 December 2012) UN Doc. S/Res/2083.

106 CJEU's groundbreaking decision in Kadi I influenced several other courts. See supra note 11.

107 See supra note 105. For an overview of this development including an evaluation of it by domestic and regional courts, see Hollenberg, supra note 8, at 88–98 and 288–94.

108 UNSC Res. 2161 (17 June 2014) UN Doc. S/Res/2161 Ann. II.

109 See supra note 107.

110 See, e.g., ‘Letter dated 30 July 2012 from the Ombudsperson addressed to the President of the Security Council’ (30 July 2012) UN Doc. S/2012/590, at para. 34; ‘Letter dated 31 July 2013 from the Ombudsperson addressed to the President of the Security Council’ (31 July 2013) UN Doc. S/2013/452, at paras. 47–9; and ‘Letter dated 31 January 2014 from the Ombudsperson addressed to the President of the Security Council’ (31 January 2014) UN Doc. S/2014/73, at paras. 29 and 61–2. Moreover, it is unclear to what extent the targeted individual has an opportunity to respond to that material. There is a significant divergence in opinion on this issue between the Ombudsperson and targeted individuals’ lawyers. See Special Rapporteur, ‘Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (26 September 2012) UN Doc. A/67/396, at para. 43.

111 Presently, the Ombudsperson has concluded agreements with 14 states on the sharing of information, see ‘Letter dated 31 January 2014’, supra note 110, at para. 11. See also <http://www.un.org/en/sc/ombudsperson/accessinfo.shtml> (last visited 8 July 2014). However, from the one agreement made publicly available on the website it appears that these agreements only indicate how the confidential information has to be treated, if shared. It does not at all create an obligation for states to actually share such information with the Ombudsperson.

112 See ‘Letter dated 31 January 2014’, supra note 110, at para. 61.

113 See also Hollenberg, supra note 8, at 97.

114 In contrast to the position of the individual within the EU. See C. Eckes ‘International Law as Law of the EU: The Role of the European Court of Justice’, in E. Cannizzaro, P. Palchetti, and R. Wessel (eds.) International Law as Law of the European Union (2012), 353 at 355.

115 J. Alvarez, ‘Judging the Security Council’, (1996) 90 AJIL 1.

116 A single permanent member of the Security Council can block any request for de-listing on its own. This logically follows from UNSC Res. 2161 (2014), supra note 108, at para. 43. See also Tladi, D. and Taylor, G., ‘On the Al Qaida / Taliban Sanctions Regime: Due Process and Sunsetting’, (2011) 10 Chinese Journal of International Law 771CrossRefGoogle Scholar, 788.

117 For example on what information to provide, and whether to allow to be mentioned as the designating state. UNSC Res. 2161 (2014), supra note 108, at paras. respectively 47 and 53.

118 Feinäugle appears to have had a somewhat similar amendment to the sanction regime's proceedings in mind when he suggested a “delegation solution”. Feinäugle, supra note 13, at 882.

119 See UNSC Res. 1373 (28 September 2001) UN Doc. S/Res/1373. Similar to the presently discussed 1267 sanctions regime, the 1373 regime requires states to freeze the funds of individuals who are suspected of being engaged in (supporting) international terrorism. However, an important difference is that within this regime there is no central UN Sanctions Committee to designate the individuals who have to be targeted by all UN member states. It is for states themselves to designate the individuals and take the required measures against them. The EU seeks to implement this 1373 regime centrally at the EU level, therefore EU member states need to transmit the names of the individuals they intend to target to the competent EU authorities.

120 See Common Position 931/2001/CFSP, 27 December 2001, Art. 1(4). But see Eckes and

Mendes, supra note 22, at 659.

121 This is called a composite administrative procedure. See Eckes and Mendes, supra note 22. See also OMPI, supra note 21, at para. 117.

122 On the originator controls principle (ORCON) within the EU see Eckes, supra note 56, at 186 et seq., and D. Curtin, ‘Top Secret Europe’ (Inaugural lecture delivered upon appointment to the chair of professor of European law) (20 October 2011) University of Amsterdam.

123 As to these special advocates see section 2.1.2.

124 This could be evidenced, for example, by the review conducted by a US District Court in a case brought by Mr. Kadi against his designation by the American Office of Foreign Assets Control (OFAC). The District Court was in a position to evaluate confidential material relied on by OFAC. Eventually, it found the material available to amply support OFAC's findings and its determination to continue Mr. Kadi's listing. Kadi v. Geithner, No. 09-0108, 19 March 2012, memorandum opinion (US District Court for the District of Columbia). Remarkably, some seven months after this decision, the Sanctions Committee delisted Mr. Kadi from the UNSC list, after having considered the Ombudsperson's comprehensive report <http://www.un.org/News/Press/docs//2012/sc10785.doc.htm> (last visited 5 February 2013). Mr. Kadi remains, however, on the American list. <http://www.un.org/News/Press/docs//2012/sc10785.doc.htm> (last visited 5 February 2013).

125 Doorson v. The Netherlands, Judgment, 26 March 1996, [1996] (App. No. 20524/92), at para. 76. See also G. Van Harten, ‘Weaknesses of Adjudication in the Face of Secret Evidence’, (2009) 13 International Journal for Evidence and Proof 1, at 14–18.

126 See supra note 47. See also Eckes, supra note 56, at 191–6; S. Turner and S. Schulhofer, ‘The Secrecy Problem in Terrorism Trials’, (2005) Brennan Center for Justice at NYU School of Law, at 17 et seq.; and Roach, K., ‘Secret Evidence and its Alternatives’ in Masferrer, A. (ed.), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (2012), 179CrossRefGoogle Scholar at 181.

127 See supra note 49. See also Van Harten, supra note 125, at 12 et seq., and Roach, supra note 126, at 182–5.

128 Roach, supra note 126, at 182–5. Note that the draft rules of procedure of the General Court of the EU envisage also a possibility for a confidential exchange of information. See Draft Rules of Procedure of the General Court, supra note 93, Art. 105, which largely follows the Court of Justice's decision in Kadi II Appeal, supra note 1, at paras. 126–9.

129 C. Möllers, The Three Branches: A Comparative Model of Separation of Powers (2013), at 142 et seq. See, e.g., L. Slocum ‘OFAC, the Department of State, and the Terrorist Designation Process: A Comparative Analysis of Agency Discretion’, (2013) 65 Administrative Law Review 387, at 402.

130 Craig, P., ‘Unreasonableness and Proportionality in UK Law’, in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (1999), 85Google Scholar at 87; and Rytter, J., ‘Terrorist Threats and Judicial Deference’, in Jenkins, D., Jacobson, A., and Henriksen, A. (eds.), The Long Decade: How 9/11 Changed the Law (2014), 229CrossRefGoogle Scholar at 236. See, e.g. OMPI, supra note 21, at para. 159.

131 R. Alexy, A Theory of Constitutional Rights (2002), 399. See also C. Chan, ‘Proportionality and Invariable Baseline Intensity of Review’, (2013) 33 Legal Studies 1, at 14.

132 Jordão, E. and Rose-Ackerman, S., ‘Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review’, (2014) 66 Administrative Law Review 1Google Scholar, at 38. See also A and Others v. Secretary of State for the Home Department [2004] UKHL 56, at para. 42.

133 Rivers, J., ‘Proportionality and Variable Intensity of Review’, (2006) 65 Cambridge Law Journal 174CrossRefGoogle Scholar, at 204 et seq.

134 Smith and Grady v. The United Kingdom, (2000) 29 EHRR 493, at paras. 137–9. Rytter, supra note 130, at 234. See also Rivers, supra note 133, at 202–3.

135 Note that in the Sayadi and Vinck case in infra note 137, it turned out not to be that self-evident that the state that requested listing would upon a request for delisting actually obtain such delisting. This situation may have changed due to UNSC Res. 1989 (17 June 2011) UN Doc. S/Res/1989, at para. 27.

136 See ICCPR, Art. 17.

137 UN Human Rights Committee ‘Views of the Committee Concerning the Communication Submitted by Sayadi and Vinck’, (29 December 2008) CCPR/C/94/D/1472/2006 (Sayadi and Vinck).

138 Ibid., at para. 10.7.

139 Ibid.

140 An analogy could be drawn here with the accreditation procedure for National Human Rights Institutions (NHRI) under the Paris Principles by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). See Statute of the ICC, as amended on 20 March 2012, sections 5, 6 (24), 9 (38), and Ann. I.

141 See for a reasoning to a similar effect Hollenberg, supra note 8, at 255–6.

142 See subsection 2.1.2, and House of Commons, supra note 47, at 23.

143 See subsection 2.2.2.

144 Fulfilment of a judicial process is a valid exception to the travel ban. UNSC Res. 2161 (2014), supra note 108, at para. 1(b).

145 Where possible the UN Ombudsperson also visits targeted individuals. See, e.g., ‘Letter dated 31 January 2014’, supra note 110, at para. 10.

146 When the CJEU is asked to review the lawfulness of the Council's decision, that review will concern only whether the Council could have lawfully concluded that a decision by a competent national authority based on serious and credible evidence and clues existed, and possibly some additional material the Council chose to rely on. Case T-256/07 People's Mojahedin Organization of Iran v. Council of the European Union [2008] ECR II-3019, at paras. 57–8, 144–5, and 147. With regard to the content of the decision of the competent national authority, the Court will ascertain only whether that authority based its decision, in its own assessment, on serious and credible evidence or clues. Ibid., at para. 68. It will not itself engage in a review of the existence of the ‘evidence or clues’ on which the national authority's decision was based, or whether these were indeed ‘serious and credible’. Accordingly, the review by the European judiciary in cases concerning the EU's implementation of sanctions under the 1373 regime considers merely formal elements. The possibility for judicial review of the substantive grounds and evidence must be guaranteed, in principle, at the national level, before the competent national authority or on an appeal of that authority's decision. See Eckes and Mendes, supra note 22, at 660 and Eckes, supra note 89, at 311 et seq.

147 Kadi II Appeal, supra note 1, at para. 133.