The UNSCs Targeted Sanctions Framework - Essay Example

Dissertation Proposal Proposed Topic: A Critical Analysis of the UNSC’s Targeted Sanctions’ Framework Research Question: Is the UNSC’s blacklisting and targeted sanctions regime a threat to its institutional legitimacy? Thesis Argument: Since the end of the Second World War, international law evolved as a central tool for protecting citizens from excessive state power. However, over the last twenty years, a ‘regulatory turn’ has taken place in which ‘states and international organizations’ have implemented a number of measures calculated to restrain the behaviour of individuals.1 The United Nations Security council’s (UNSC) blacklisting and targeted sanctions is arguably, the most ‘visible and controversial’ of this evolving trend in international law.2 The controversy arises out of the fact that the UNSC’s authority for sanctions are contained in Article 41 of the UN Charter 1945 and only applies to states.3 In this regard, non-state actors against whom targeted sanctions and blacklisting are directed do not have direct remedies against the UNSC.4 At the same time, the UNSC does not have direct authority over non-state actors who are legitimate sources of threats to international peace and security, and must therefore, rely on states to give effect to its blacklisting and targeted sanctions.5 This study is important because the need for targeted sanctions and blacklisting is obviated by the threat that individual non-state actors pose to international peace and security. Arguably, non-state actors, especially terrorist organizations, pose the most serious threat to international peace and security.6 By virtue of Article 24 of the UN Charter, the UNSC is responsible for maintaining international peace and security.7 It has been argued however, that the UNSC faces a crisis in legitimacy because its institutional framework is incompatible with today’s security threats.8 Thus the enforceability and in turn, the legitimacy of UNSC targeted sanctions is the focus of this research. This research will focus on the institutional legitimacy of the UNSC as a whole by focusing on its authority to impose targeted sanctions against non-state actors and its blacklisting mandate relative to non-state actors. This research will be divided into three chapters as outlined below. Chapter 1: This chapter will cover the normative and empirical implications of targeting sanctions and blacklisting. This chapter will focus on three questions necessary for establishing the thesis argument: what are targeted sanctions and blacklisting? Why are they important or necessary? What is the UNSC’s authority for implementing targeted sanctions and blacklisting? Are targeted sanctions and black listing proportionate to the ends that they seek to achieve? Targeted sanctions impose travel restrictions, cut off financial supplies and resources that enable political elites to threaten world peace and security.9 The UNSC imposed non-military, economic sanctions against Afghanistan, the Taliban, and al Qaeda as a means of fighting the threat of international terrorism.10 In 1999, The UNSC passed Resolution 1267 which imposed sanctions against the Taliban.11 In 2000, Resolution 1333 was passed by the UNSC to extend the reach of sanctions against Osama bin Laden, al Qaeda and any individual or entity linked to al Qaeda and/or Bin Laden.12 The targeted sanctions regime were not the first instances of international law regulating individual non-state actor behaviour. As Cogan points out, mediated and facilitative law models have been used for a long time to harmonise criminal laws for regulating the behaviour of individuals suspected of a variety of transnational crimes.13 However, since targeted sanctions function to regulate individual behaviour through coercion and when implemented can have a crippling effect on family members and dependents of the targeted individual, the proportionality of targeted sanctions and black listings are questionable.14 Chapter 2: This chapter analyses the UNSC’s authority for imposing targeted sanctions and blacklisting. This chapter develops the thesis argument by investigating the legal authority for the UNSC’s targeted sanctions and blacklisting. Can the UNSC legitimately take action against individuals? Jus cogens binds the UNSC, the question arises over whether or not the UNSC can legitimately enforce targeted sanctions that deny due process to those against whom targeted sanctions are directed.15The UNSC’s authority for sanctions is contained in Article 41 of the UN Charter, 1945. Through this authority the UNSC has imposed non-military economic sanctions against states. Although the legitimacy of these sanctions have not been questioned as they are consistent with Article 41, its proportionality has been questioned.16 Non-military sanctions against states have been known to create humanitarian crises as entire populations are negatively impacted.17 The non-military sanctions against individuals raises both human rights and proportionality issues as they are used against individuals without due process and in the meantime impose hardship on the individual targeted, his/her reputation, business, employees, and his or her dependents.18 Thus the question of the UN’s authority is all the more important since this kind of coercive action must have some enabling law and must include some limitations and conditions in order to be legitimate. As an institution, the UNSC is ‘comprised of’ 15 states including five permanent member states with veto powers.19 The decisions of the UNSC are binding on all of the members of the UN20 and thus ‘carry the full weight and authority of international law’.21 But can the UNSC legitimately impose sanctions against individuals? This is an important question because in order for targeted sanctions to have its intended result, they must be imposed in accordance with ‘due process’ and must have regard to human rights.22 Moreover, although the UNSC is responsible for maintaining peace and security, it must act with respect for human rights.23 However, since a number of human rights are not absolute, some rights may be derogated from in order to protect public safety.24 Moreover, the UNSC derives its power and legitimacy from the consent of member states.25 The question for consideration in this chapter is whether or not the targeted sanctions and blacklisting regime is legitimate since it is enabled by the consensus of the members of the UNSC who vote for and against UNSC Resolutions. Chapter 3: This chapter presents a case study demonstrating how the UNSC targeted sanctions regime is carried out in practice. The European Union (EU) has built up a body of case law on the implementation of the UNSC’s targeted sanctions and thus provides a method by which the legitimacy of the UNSC’s targeted sanctions regime can be tested in practice. The body of case law flows from the case of Kadi v. Council and Commission and engages significant discussion in the literature about the legitimacy of the UNSC’s targeted sanctions. Therefore, a case study will be conducted on the Kadi decision. The EU implemented the UNSC’s Resolutions directing member states to establish blacklisting and targeted sanctions. The EU therefore implemented Council Common Position 1999/727/CFSP and Council Regulation 337/2000 among others. The EU’s blacklisting and targeted sanctions laws and listing have been challenged based on its incompatibility with the European Convention on Human Rights. For example in Yusuf and Al Barakaat International Foundation v. Council and Kadi v. Council and Commission the court of first instance ruled that pursuant to international law, a state is bound to its treaty obligations and cannot relieve itself of those obligations on the grounds that they are incompatible with internal law.26 The court of first instance held that although the Community was not bound by the UN Charter to comply with the UNSC’s targeted sanction’s Resolution, it was bound by the EU Treaty to comply with international law and thus UNSC Resolutions. However, the European court of Justice (ECJ) ruled that UNSC Resolutions were only binding in international law and were not applicable to national law. Thus the ECJ examined the targeted sanctions challenged by reference to EU law and came to the conclusion that they were in violation of human rights, namely, the right to protection by the judiciary, the right to one’s property, and a right to be heard.27 The question for consideration is therefore, whether or not the ruling in Kadi suggest that the legitimacy of the UNSC is tenuous? Or does the ruling in Kadi buttress its institutional legitimacy? As Tridimas and Gutierrez-Fons stated: Kadi is the most important judgment ever delivered by the ECJ on the relationship between Community and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law by also some skepticism towards international law.28 This chapter will examine other cases such as Case 5809/08 Al Dulimi, and Case 10593/08 Nada v Switzerland. Essentially, states are bound by Article 103 of the UN Charter which requires states to implement UNSC Resolutions.29 This chapter therefore considers the legitimacy of the UNSC’s targeted sanctions and blacklisting regime through its implementation and application by the EU. This chapter will demonstrate how the UNSC is legitimized through the consent of member states as manifested by their compliance with UNSC’s resolutions on blacklisting and sanctions. In this regard, the ECJ’s interpretation of member state’s obligations under the EU Treaty and how those obligations are applied compared to international obligations suggest that the institutional legitimacy of the UNSC is at least questionable. But as Kokatt and Sobatta argue, the UNSC has recently implemented a ‘strong review mechanism’ thus reducing the incompatibility of UNSC targeted sanctions with EU law.30 This chapter will consider whether or not this new development reinforces the institutional legitimacy of the UNSC. 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Kott, Juliane and Sobotta, Christoph. ‘The Kadi Case – constitutional Core Values and International Law – Finding the Balance?’ (2012) 23(4) EJIL, 1015-1024. Lukic, Maja. ‘The Security Council’s Sanctions in the Light of Recent Developments Occurring in the EU Context.’ (2009) 3 Belgrade Law Review, 239-250. Mavronicola, Natasa. ‘What is an ‘Absolute Right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights.’ (2012)12(4) Human Rights Law Review, 723-758. Miller, Elin. ‘The Use of Targeted Sanctions in the Fight Against International Terrorism – What About Human Rights?’ (April 2-5, 2003) 97 American Society of International Law, 46-51. Morris, Justin and Wheeler, Nicholas, J. ‘The Security Council’s Crisis of Legitimacy and the Use of Force,’ (2007) 44 International Politics, 214-231. Nelson, Jason, C. ‘The United Nations and the Employment of Sanctions as a Tool of International Statecraft: Social Power Theory as a Predictor of Threat Theory Utility.’ (Spring 2005) 29 Law and Psychology Review, 105-153. Tostensen, Anne and Bull, Beate. ‘Are Smart Sanctions Feasible?’ (April 2002) 54(3) World Politics, 373-403. Tridimas, Takis and Gutierrez-Fons, Jose, A. ‘EU Law, International Law, and Economic Sanctions Against Terrorism: The Judiciary in Distress?’ (2009) 32 Fordham International Law Journal, 660-730. van den Broek, Melissa; Hazelhorst, Monique, and de Zanger, Wouter. ‘Asset Freezing: Smart Sanction or Criminal Charge?’ (2010) 27(72) Utrecht Journal of International and European Law, 18-27. Vlcek, William. ‘Hitting the Right Target: EU and Security Council Pursuit of Terrorist Financing.’ (2009)2(2) Critical Studies on Terrorism, 275-291. Wallensteen, Peter and Grusell, Helena. ‘Targeting the Right Targets? The UN Use of Individual Sanctions,’ (2012) 18 Global Governance, 207-230. Weiner, Allen, S. ‘Use of Force and Contemporary Security Threats: Old Medicine for New Ills?’ (November 2006) 49 Stanford Law Review, 415-504. Textbooks Happold, Matthew. International Law in a Multipolar World, (Oxon: Routledge, 2012). Manusame, Kenneth. ‘Conflict Prevention.’ In White, N.D. and Henderson, C. (Eds.) Research Handbook on International Conflict and Security Law. (Cheltenham: Edward Elgar Publishing Limited, 2013) Ch. 1. Statutes UN Charter 1945. UNSC Resolution 1267 On The Situation in Afghanistan (15 October 1999). UNSC Resolution 1333 On The Situation in Afghanistan (19 December 2000). Cases Case 5809/08 Al Dulimi. Case 10593/08 Nada v Switzerland. Case 4020/05 P; C-415/05P Kadi and Al Barakaat v Council [2008] I-0000. Read More