13 February 2013

Sharing Responsibility for UN Targeted Sanctions

Cross-posted on EJIL:Talk!

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as Kadi, Nada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice.

The UN Security Council has imposed obligations on member-states to implement asset freezes, travel bans, and arms embargoes on ‘listed’ individuals and legal entities ‘associated’ with the Taliban, Al-Qaida, and Osama bin Laden, by virtue of Resolution 1267 (1999). This sanctions regime, conveniently abbreviated until recently as the ‘1267 sanctions regime’, continues in force, even though it has now been split in two by Resolutions 1988 and 1989 (2011). The former resolution (and associated regime) refers to the Taliban and the latter refers to Al-Qaida. The differences between the two regimes focus primarily on the delisting procedure, which is significantly more advanced in the 1989 regime regarding Al-Qaida. In the remainder of this short contribution I will focus on this ‘1267/1989 sanctions regime’.

The targeted sanctions imposed by the 1267/1989 sanctions regime, both as they operated in the past and as they operate today, may be seen as being in violation of the right of access to a court and the right to an effective remedy of the targeted individuals and legal entities (hereinafter, when I refer to individuals this should be understood as encompassing legal entities as well) as this exists in customary international law (apart from its entrenchment in various instruments for the protection of human rights, notably the ICCPR, the ECHR, and the ACHR). Τhe sanctions regime has targeted individuals for a significant period of time (for some of them over a decade) and imposes significant restrictions on them, which may even be characterized as criminal in nature, in particular in view of their duration. Targeted individuals had no real recourse against these restrictions until Resolution 1904 (2009) introduced an ‘Office of the Ombudsperson’. This independent and impartial organ has been established to receive delisting requests from individuals, look into them, and make ‘recommendations’ to the competent Sanctions Committee of the Security Council regarding delisting. However, despite further enhancement of the delisting process in Resolution 1989 for the Al-Qaida regime, recourse remains limited, since in the final analysis delisting remains within the discretion of the Security Council.

We are dealing here with complex conduct, which involves both Security Council and member-state conduct. For its part, the Council sets up a sanctions regime and imposes an obligation on member-states to implement it. For their part, member-states comply with their obligations by implementing the regime against individuals found in any way within the reach of their jurisdiction. The outcome of this complex conduct is the denial of any effective avenue for challenge of restrictive measures on the part of targeted entities, and thus the violation of certain aspects of the right to a fair trial, a right under customary international law. This obligation to respect the right to a fair trial, which includes the right of access to a court and the right to an effective remedy, is incumbent on both the Security Council and the member-states, independently of any relevant (and overlapping) treaty obligations (of member-states only, in practice). This obligation is breached through conduct taken, prima facie, both by the Council and the member-states. How is responsibility for this internationally wrongful act to be shared between the United Nations and its member-states?

In order to answer this question we must untangle the complex conduct, and seek to attribute it to the various implicated entities. The conduct of the UN (through the Council) in setting up the regime and imposing obligations on member-states to implement it is normative in nature. Such normative conduct may itself constitute a breach of the obligation to respect the right to a fair trial: the keeping in force of normative acts in breach of international obligations may constitute an internationally wrongful act even if the normative act has not (yet) been implemented. But if not implemented, there is little chance of any real impact of the act in the ‘real’ world, and thus responsibility for it, while engaged, may remain theoretical. The normative act in our case, however, is implemented by the member-states through their organs, in compliance with their international obligations under Article 25 of the UN Charter. They take both normative and physical conduct in implementing the regime designed by the Council. Already at this point we can detect some ‘sharing’: the UN and the member-states must co-operate, act together, in order to create effects in the real world, that is in order to actually freeze accounts and ban travels, leaving those targeted with no real remedy.

The conduct of the Security Council in setting up the binding regime is attributable to the UN, because the Security Council is a UN organ. The conduct of member-states’ organs in implementing the regime is attributable in the first instance to their states, even though this conduct is strictly conditioned by the obligation imposed upon the states under Article 25 of the UN Charter to comply with binding Security Council decisions.

If we can establish that the normative conduct of the Council is enough to violate the UN’s obligation under customary law to respect the right to a fair trial, then there is little problem: the UN becomes responsible for that violation, while the member-states become responsible for the same violation by virtue of their own conduct in implementing. However, it may be argued that the normative conduct of the Council is not wrongful in and of itself. It is rather its implementation by the member-states that first breaches the international obligation to respect the right to a fair trial. But of course this member-state conduct is imposed by the Security Council. The question is then, how may the UN become responsible for conduct which is, in the first instance, attributable to the member-states (the implementation of the regime)?

There is no reason why the implementing conduct of member-states should not be concurrently attributable to the United Nations. This conduct is taken by member-states’ organs, but it is effectively controlled by means of a binding decision of the UN which imposes on these organs a strict obligation to achieve a given result (the freezing of the accounts of a named individual, among others). The member-state then is acting as an ‘agent’ of the UN (‘a person through whom the organisation acts’). However, the ILC Draft Articles on the Responsibility of International Organisations block this simple concurrent attribution (even though they do in principle admit the potential for concurrent attribution) by requiring, in cases where the alleged agent is an organ of a state, that the international organisation exercise effective factual control over that organ (ie not normative, but actual control on the ground along the lines of Nicaragua and Article 8 of the ILC Articles on the Responsibility of States). In any event, this still allows the UN to be held responsible for the wrongful act of the member-states through the provision on ‘circumvention’ (Article 17 DARIO). This is a problematic provision that does not reflect customary law. It also confuses primary with secondary norms, since it purports to allocate responsibility for the acts of member-states to the international organisation, when in reality what it does is to prohibit ‘circumvention’ of obligations by the international organisation (an act that remains wrongful even when the member-state acting in implementation of the binding decision of the organisation does not perpetrate an internationally wrongful act itself). But the bottom line is that both entities, international organisation and implementing member-states, will engage their international responsibility in the end.

Whether through the parallel perpetration of an internationally wrongful act by independent conduct, then, or through concurrent attribution of conduct, or even through derivative responsibility for the act of another, both UN and member-states are responsible for violating the right of access to a court and the right to an effective remedy. How can this responsibility be implemented in practice?

This is the point where we can see shared responsibility in action, and it’s all on account of significant practice on the part of domestic and regional international courts. Taking domestic courts first, in which I include the EU courts, these may not have jurisdiction over the UN, but they do have jurisdiction over domestic implementing measures of the member-states of the UN. Individuals targeted by the 1267/1989 regime have brought cases before these courts seeking to have the domestic implementing measures struck out or set aside. Here is how domestic and regional international courts have dealt with such claims:

I. If courts recognize that state conduct is conditioned by the UN-imposed obligation, they have difficulty holding the state responsible for the violation of the right to a fair trial, even if they do attribute the implementing act to the state. In doing this, they confirm concurrent, or ‘shared’, attribution of the conduct complained of, but then they either (i) accept that by reviewing the implementing act they must also review the UN act, and thus lapse into a very lax standard of review (see eg Kadi in the CFI, Nada in the Swiss Federal Tribunal); or (ii) they accept that they must incidentally review the act of the international organisation (as above) but then defer to allegedly equivalent protection at the level of the international organisation (Bosphorus in the ECtHR).

II. Neither of the two options above allows courts to properly review either the conduct of the UN, or the implementing conduct of the member-state. So eventually courts abandoned the approach under I. and started pretending that the state implementing conduct was not conditioned by the UN act. This radical disengagement of the two courses of conduct is of course wrong—to claim, as the ECJ did in Kadi, or the UK Supreme Court in Ahmed, or the ECtHR in Nada, that the 1267/1989 regime allows any margin of discretion in its implementation cannot withstand scrutiny. When the Council demands that a particular person must have her account frozen, the obligation is one of result. If the account is not frozen, then the obligation is violated, and so no margin of appreciation or discretion is allowed to the implementing state. And yet, domestic courts have quashed the implementing acts for violation of the right to a fair trial (as guaranteed under domestic law, which in substance coincides with the guarantee in international law). In effect, they can be seen as offering ‘juridical restitution’ (withdrawal of the offending normative act), which is but a method of implementing the international responsibility of the state for violation of the right to a fair trial. Even if it can be argued that such implementation is ‘internal’ to the state (through the action of its domestic courts), the decision of the ECtHR in Nada is a clear example where a state is held internationally responsible for not offering an effective remedy, even though it was internationally bound to act in the (wrongful) way that it did.

In this second set of cases, ‘sharing’ is not limited to attribution (as in the first set, where avoidance mechanisms kick in), but it is taken to its logical conclusion: a type of ‘shared’ responsibility. Here is how: the domestic court implements the responsibility of the state for the violation of the right to a fair trial by effecting ‘juridical restitution’ in striking down the domestic implementing measure. (Even better, the regional international court holds the state internationally responsible and requires that it effect juridical restitution and make compensation in favour of the beneficiary of the rule.) This is the state responsibility ‘part’. The state, however, is forced in this way to breach its obligation to comply with the Security Council decision. Aside from being able to justify this disobedience as a countermeasure, the state is in any event forced in practice to put pressure on the UN to reform the sanctions regime to have it comply with the right to a fair trial. This leads to the implementation of UN responsibility for the violation of the right, and constitutes the international organisation responsibility ‘part’ of the shared responsibility regime. Indeed, the model is not imaginary, but reflects what has happened in practice over the last years, even with the admission of the Security Council itself (which in Resolution 1904 recognises that the reform of the delisting regime is in response to continued legal challenges in member state courts). Responsibility then for the violation of aspects of the right to a fair trial (access to a court and right to an effective remedy) is shared in practice between the member-state and the UN. The member-state is forced by courts implementing its responsibility to implement itself the responsibility of the UN.