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Individuals in a pluralist world: The implications of counterterrorist sanctions
Published online by Cambridge University Press: 28 June 2013
Abstract
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)).
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References
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.
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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).
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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.
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40 Art 275(2) TFEU.
41 ‘Restrictive measures’ is the EU law term for sanctions; see art 215 TFEU.
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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
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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).
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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
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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).
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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.