David Shamtoob - First Article (UN Sanctions)[update]

*David Shamtoob is Project Manager and Legal Researcher of International Human Rights and Criminal Justice at the London Centre of International

Law Practice (LCILP)

2016

The (Non) Regulation of United Nations

Sanctions: Proportionality, Due Process

& The Principle of Transparency.

By David Shamtoob*

This paper is downloadable at: http://www.lcilp.org/publications/lcilp-publications/ © David Shamtoob. All LCILP publications are for non-commercial research use only. Distribution of publications from our website for material interest, profit-making and or commercial gain is strictly forbidden.

The Centre for International Human Rights & Criminal Justice 2016

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ABSTRACT

United Nations sanctions constitute an important tool for the maintenance of international peace and security.

The Security Council has imposed sanctions for a plethora of reasons, including to counter terrorism and to

prevent the production of nuclear weaponry. Although such justifications are undeniably noble, sanctions may

often have undesirable repercussions, and numerous calls have been made to introduce regulatory means by

which these may be avoided. This paper focuses on three methods by which the international community has

attempted to reduce such negative impacts, both in terms of comprehensive sanction regimes imposed against

states, and targeted sanctions applied against individuals. In regard of the former, specific mention is made of

the principle of proportionality as found within the law of counter-measures, and in regard of the latter,

attempts to ensure due process rights for those listed are examined. The final section analyses the principle of

transparency – or public access to information – detailing the scope of the principle and its impact upon the

work of Sanctions Committees. The paper concludes that whilst a strict application of the principle of

proportionality is largely inappropriate within the present context, those steps which have been taken in other

regards fall short of the requisite requirements imposed by international law.

INTRODUCTION

In performing its „responsibility for the maintenance of international peace and security,‟1 the United Nations

Security Council („SC‟), acting under Chapter VII of the UN Charter, may employ measures not involving the

use of armed force, commonly referred to as Sanctions. The use of such measures, however, has received

much criticism. Indeed, because Member States are obliged to avail themselves of any other international

obligations in case of conflict with those proscribed by the SC,2 numerous arguments have been advanced that

these regimes are left unregulated, allowing the Council to act with impunity. Yet, the non-regulation of UN

Sanctions raises important concerns: for comprehensive sanction regimes, taken against states, may lead to

„target populations… suffering,‟3 whilst targeted sanctions, imposed against individuals and entities, may entail

substantial infringements on the human rights of those listed.

The following paper therefore, examines three particular means by which the international community has

attempted to regulate sanctions imposed by the SC: Section One deals with the principle of proportionality as

found within the legal doctrine of countermeasures, by which the injurious consequences of sanctions must not

exceed the detrimental act to peace and security initially perpetrated by the target. As shall be seen, a strict

application of the principle is vastly unconvincing, and although the SC has utilised a form of proportionality, it

fails to comprehensively protect the welfare of innocent individuals living within the target state; Section Two

deals with the issue of securing targeted individuals their rights of due process through an examination of two

mechanisms established by the SC to address concerns surrounding the issue. It argues that when set against

the minimum entitlements inherent within the body of due process rights, expounded by the UN office of Legal

Affairs, both mechanisms fail to impose adequate regulatory standards to which targeted sanction regimes

must adhere. Finally, Section Three discusses the issue of transparency, drawing from national and regional

legal systems to conclude that although the withholding of information may be permissible for the protection of

security interests, the SC has largely overstepped this threshold. The paper thus concludes that as a result of

these shortfalls, the rules regulating UN sanctions are both ineffective and insufficient, and are thus in need of

review.

1Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) (1945) 1 UNTS XVI (UN Charter), Art 24. 2 UN Charter, Art 103. 3Mary Ellen O‟Connell, „Debating the Law of Sanctions‟ [2002] 13 EJIL 63, 75.


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1 | THE LEGAL DOCTRINE OF COUNTERMEASURES AND THE PRINCIPLE OF PROPORTIONALITY

The legal doctrine of countermeasures – a term first expounded in the Air Services Agreement arbitration

between France and the US4 and later embodied by the International Law Commission („ILC‟) in its Articles on

State Responsibility5– grants states the right to take non-forcible measures „in violation of their obligations

under international law [and] in response to an international wrongdoing committed by another state.‟6

According to the Commission, who‟s Articles „represent the modern framework of state responsibility,‟7 these

measures must be proportionate;‟8 „the injurious consequences of the response [must therefore] be roughly

equivalent with those of the wrongful act.‟9

At first glance, the application of principles pertaining to countermeasures („CMs‟) may seem largely

inappropriate. „[L]awful countermeasures must be in response to a prior wrongful act,‟10 and must „serve

neither as punishment for past, nor as a means to deter future, wrongs:‟11 Conversely, UN Sanctions may be

imposed on „the existence of any threat to the peace,‟12 having repeatedly been imposed prospectively, whilst

having been implied, somewhat contradictorily, as both „punitive‟13 and „preventive‟14 in nature.

However, despite this disparity there appears to be no logical or legal basis barring the proliferation of the

principle of proportionality into the realm of UN Sanctions. As O‟Connell observes, „[t]he law of

countermeasures developed to respond to the case of unilateral state action, but humanitarian law principles

also originally applied only to states and now apply to organizations and individuals. Countermeasures would

appear equally adaptable.‟15 Furthermore, international law imposes no restrictions on the use of legal doctrines

developed within one body of law to clarify and develop another. In the law of armed conflict regulating

humanitarian relief operations, „an arbitrary withholding of consent [to allow aid into a State‟s territory] may be

drawn from the principle of proportionality under human rights law.‟16 By reason and law therefore, the

principle of proportionality as found within the legal doctrine of countermeasures may justly be applied to the

imposition of sanctions by the Security Council.

Accordingly, the following section is an examination of the suitability of this principle when placed within the

context of UN Sanctions, and since „there is surprisingly little agreement on the role and content of

proportionality in the system of state responsibility,‟17 it shall revolve around Article 51 of ILC Draft Articles

which has been regarded as an authoritative statement of customary international law.18 As shall be seen, on a

strict and theoretical application of the ILC‟s definition, despite its applicability, the principle of proportionality

as developed under the law of countermeasures is a vastly unconvincing doctrine upon which to regulate

sanctions imposed by the SC.

4Air Services Arbitration Case (France v. United States) (1978) 18 RIAA 416 ¶¶ 82-83. 5 ILC, „Responsibility of States for Internationally Wrongful Acts‟ (28 January 2002) UN Doc A/RES/56/83,

Arts 22 & 49-54. 6 Elena Katselli Proukaki, The Problem of Enforcement in International Law: Countermeasures, the non-injured state and the idea of international

community (Routledge 2010), 68. 7 James Crawford, State Responsibility (CUP 2013), 45. 8 ILC (n 2), Art 51. 9 Enzo Cannizzaro, „The Role of Proportionality in the Law of International Countermeasures‟ [2010] 12 EJIL 889, 891. 10Malcolm Shaw, International Law (7thedn, CUP 2014), 578. 11Thomas Franck, „On Proportionality of Countermeasures in International Law‟ (2008) 102 AJIL 715, 738. 12UN Charter, Art 39. 13Nabil Sayadi and Patricia Vinck v. Belgium, CCPR/C/94/D/1472/2006 (29 December 2008) 14 K.T. Huber & A. Rodiles, „An Ombudpserson in the United Nations Security Council: a Paradigm Shift?‟ [2012] 10 Anuarto Mexicano de Derecho

Internacional 107, 111. 15O‟Connell (n 3), 75. 16Emanuela-Chiara Gillard, „The law regulating cross-border relief operations‟ [2013] 95 International Review of the Red Cross 351,362. 17Cannizaro (n 6), 890. 18 WTO, Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (15 February 2002)WT/DS202/AB/R ¶

259.


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However, despite this unsuitability, the concept of proportionality does seem to have played a part in regulating

UN Sanctions, albeit in an analogous form. Consequently, Section 1.2 offers a brief analysis of the two primary

modicums in which disproportionality has been addressed: the provision of humanitarian relief to innocent

populations of target states, and the shift toward targeted sanctions against individuals and entities, as the

latter is dealt with in Section 2 however, the discussion below shall be limited to the SC‟s discretion to issue

obligations in contravention of human rights.

1.1. | On a Strict Application of the ILC Draft Articles

It follows that Article 51 of the International Law Commission‟s Articles on the Responsibility of States for

Internationally Wrongful Acts, states that „[c]ountermeasures must be commensurate with the injury

suffered.‟19 In clarifying this definition, the official commentary identifies both „the purely “quantitative element

of the injury suffered‟ and also „“qualitative”‟ factors such as the importance of the interest protected by the

rule infringed and the seriousness of the breach.‟20 Both limbs are highly problematic when strictly applied to

UN sanctions.

In the case of the former, sanctions have often been imposed preventively in regard of anticipated injury, there

existing no empirical data to aid in deciphering the „quantitative element of the injury suffered:‟ In the case of

Southern Rhodesia, for example, the SC determined that a „continuance‟ of the minority regime constituted a

„threat‟ to the peace.21 Perhaps the anticipated injury should be regarded as having already occurred, but this

would yield unacceptable results. Resolution 1737, imposing various economic sanctions against Iran was

passed in regard of „topics which could have a military nuclear dimension.‟22 The anticipated injury in this case

must have been the use of such topics to build and subsequently deploy a nuclear warhead. If the ILC‟s

definition were applied strictly, Iran would be sanctioned for the cost of deploying nuclear weapons even before

it is proven to have acquired one, this in itself being „incommensurate.‟ Taken strictly therefore, the first limb of

the test propounded by the ILC is practically unworkable, and thus unsuitable to provide a fully applicable

standard upon which to measure the legality of sanctions imposed by the SC.

In regard of „qualitative factors‟, concerns arise as to the delineation of „the interest protected by the rule

infringed.‟ In cases involving CMs under the law of state responsibility; the interest protected by the rule

infringed is often uncontroversial, relying on a specific breach of agreement. The dispute between Hungary and

Slovakia concerning the Gabcíkovo-Nagymaros dams, for instance, revolved around the implementation and

termination of the Budapest Treaty of 16 September 1977.23 Conversely, within the context of UN Sanctions,

the matter is not so straight-forward, because although a breach of treaty obligation may form the basis of a

determination that a state of affairs has engaged Article 39, sanctions have been imposed for a plethora of

reasons outside non-compliance with agreed bi-lateral or multi-lateral obligations, indeed, „non-military sources

of instability in the economic, social, humanitarian and ecological fields have become threats to peace and

security.‟24 The SC is thus afforded wide discretion in identifying the interest protected, so much so that some

have argued that „there are no international legal limits to the enforcement of the Security Council acting under

Chapter VII.‟25 As a result of this unfettered discretion therefore, the second limb is equally unconvincing and

thus does little to regulate the imposition of sanctions by the SC.

19 ILC (n 2), Art 51. 20 ILC, „Report of the International Law Commission of its 53rd Session (23 April-1 June and 2 July-10 August 2001) UN Doc A/56/10, 341; see also,

Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 1997 7, 56. 21 UNSC Res 217 (1965) UN Doc S/RES217 ¶ 1. 22 UNSC Res 1737 (2006) UN Doc S/RES/1737, 1. 23Gabčíkovo-Nagymaros Project (n 7), 11. 24 Note by the President of the Security Council, S/23500, 31 January 1992. 25 Gabriel Oosthuzien, „Playing the Devil‟s Advocate: The United Nations Security Council is unbound by law‟ [1999]12 Leiden Journal of International

Law 549,549.


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A strict application of the ILC‟s definition of the principle of proportionality as found within CM law is thus highly

unconvincing as providing suitable legal constraints upon the Security Council. Some have contended however,

that „countermeasures can only be said to be applicable by way of analogy.‟26 This is preferable, allowing for a

measure of adaptability. As shall be seen, in its analogous form, the principle of proportionality does seem to

have influenced the practice of the SC. However, due to a number of difficulties hampering the effectiveness of

those measures taken to reduce disproportionate sanctions, sanctions imposed by the SC still remain largely

unregulated.

1.2. | ‘Proportionality’ in the Practice of the Security Council

In the spirit of analogy, Farrall has argued that„[i]n the context of sanctions, proportionality requires that… the

effects… upon innocent civilian populations …should be minimised.‟27 Although presenting a definitional stretch

of the codified position of customary international law by the ILC, when taken in this simplified form, the

principle of proportionality does indeed seem to have played a role in regulating sanctions imposed by the SC.

In the context of comprehensive sanction regimes, which have been „heavily criticised due to their potential to

devastate innocent civilian populations,‟28 the SC has taken two major steps to alleviate concerns surrounding

such disproportionate adversity, attempting to provide humanitarian relief to innocents present within a target

state, and shifting toward targeted, or „smart‟ sanctions, imposed against individuals. As shall be seen however,

as a result of practical deficiencies in the implementation of these measures, sanctions are largely left

unregulated, and may remain disproportionate.

With regard to the protection of innocent populations, the SC has purported to reduce the humanitarian impact

of comprehensive sanction regimes, by providing humanitarian relief to target state populations, both in

general and specific terms: Generally – in the case of an embargo on petroleum and armaments against Sierra

Leone – „to establish appropriate arrangements for the provision of humanitarian assistance‟29 and specifically –

in the case of various trade restrictions against Iraq – to ensure the supply of „of medicine, health supplies,

foodstuffs, and materials and supplies for essential civilian needs,‟30 for instance.

Nevertheless, such terminological vagueness, exemplified above, has spawned a perception that „humanitarian

exemptions tend to be ambiguous and are interpreted arbitrarily and inconsistently.‟31 Indeed, SC Resolutions

are normally non-self-executing and must be translated into legislative and regulatory measures at the national

level to secure their implementation. States are thus the principal actors in the implementation of sanctions,

and are thus granted a wide margin of appreciation in interpreting and applying SC Resolutions, despite being

bound to adhere to them by virtue of UNC Art 103.32 Such wide discretion is exemplified by Austria‟s

interpretation of Resolutions 75733and 820,34 which although only referring to assets of Yugoslav agencies and

companies were applied against individual Yugoslavs.35 Such a phenomenon thus creates an ambiguous

relationship between measures adopted by the SC and those measures adopted by individual States in their

implementation. Furthermore, „delays and administrative procedures in the processing of humanitarian

exemptions have hindered humanitarian operations.‟36 In the case of sanctions imposed against the Federal

26Nigel D. White & Nicholas Tsagourias, Collective Security (2013 CUP), 236. 27 Jeremy Farrall, United Nations Sanctions and the Rule of Law (2009 CUP), 223. 28Ibid, 2244. 29 UNSC Res 1132 (1997) UN Doc S/RES/1132 ¶ 14 30 UNSC Res 986 (1995) UN Doc S/RES/986 ¶ 8(a) 31Promotion and Protection of the Rights of Children/ Impact of Armed Conflict on Children, UN Doc.A/51/306 ¶ 128. 32 UN Charter, Art 103:‟ In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their

obligations under any other international agreement, their obligations under the present Charter shall prevail.‟ 33 UNSC Res 757 (1992) UN Doc S/RES/757 ¶ 5. 34 UNSC Res 820 (1993) UN Doc S/RES/820 ¶ 21. 35 Alfred Soons „The Netherlands‟ in Gowlland-Debbas (ed.), National Implementation of United Nations Sanctions: A Comparative Study

(MarinusNijhoff Publishers 2004), 358. 36Claude Bruderlein „Coping with the Humanitarian Impact of Sanctions: An OCHA Perspective‟ (2006)

<http://www.seco.admin.ch/themen/00513/00620/00639/00641/index.html?lang=de&download=NHzLpZeg7t,lnp6I0NTU042l2Z6ln1acy4Zn4Z2qZ

pnO2Yuq2Z6gpJCDdIF8fmym162epYbg2c_JjKbNoKSn6A> accessed 14 January 2015, 5.


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Republic of Yugoslavia37 for example, shipments to Bosnia and Sarajevo were restricted by the Council‟s

clearance procedures already in place.38

From the above therefore, although the SC does seem to have utilised a form of proportionality, albeit one far

removed from the inapplicable definition provided by the ILC, such shortfalls mean that not only are

humanitarian exemptions left to be implemented by States who may interpret them inconsistently, but may be

delayed and limited by the SC‟s own actions, leaving open the possibility of disproportional impacts on civilian

populations, and failing to provide safeguards against the SC‟s own limiting of such measures.

In any case, such shortcomings have to some extent been made redundant. The SC, in a move away from

comprehensive sanctions, has increasingly imposed them against individuals and entities, so called „smart

sanctions‟. This has in a large part addressed the indiscriminate nature of comprehensive sanctions „minimising

the negative humanitarian impact often experienced by large segments of civilian populations.‟39 Yet the issue

of proportionality is still relevant in this context, within which it has received equally less attention. For „smart‟

sanctions, although alleviating the burden placed upon innocent populations may have serious implications for

the human rights of those targeted, particularly in terms of securing those listed their rights of procedural due

process examined in Section 2 below.

For now however, it suffices to say, that the UN seems to retain authority to impose measures in contravention

of human rights. For although the European Court of Human Rights has created „a presumption that the

Security Council does not intend to impose any obligation on member States to breach fundamental principles

of human rights.‟40 One year later that same court provided the SC with a means to rebut this presumption

„having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching

human rights.‟41 The Council may thus proscribe derogation from human rights through the use of particular

language within a Resolution, meaning that sanctions are left largely unregulated in this particular instance. The

following however, examines the extent to which the refutability of this presumption is of any significance

through examining whether due process rights have been safeguarded through other means.

37 UNSC (n 31) UNSC Res 757 (1992) UN Doc S/RES/757. 38PirkkoKourola, „International Protection of Refugees and Sanctions: Humanizing the Blunt Instrument‟ 9 International Journal of Refugee Law 256,

263. 39 Swiss Federal Office for Foreign Economic Affairs, 2nd Interlaken Seminar on Targeting United Nations Financial Sanctions 29-31 March 1999

(Interlaken: SFOFEA in cooperation with the United Nations Secretariat) ¶ 5. 40Al Jedda v the United Kingdom[7 July 2011] App no. 27021/08 ¶ 102 41Nada v Switzerland [12 September 2012] App no. 10593/08 ¶ 172.


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2 | TARGETED SANCTIONS AND THE ISSUE OF DUE PROCESS

Closely intertwined with the principle of proportionality and in the context of smart sanctions lies the issue of

securing those listed their rights of procedural due process. Such rights have been described as „the foundation

stone for “substantive protection” against human rights abuses,‟42 and are guaranteed by a number of major

international agreements.43 They include the right to judicial review, the right to be heard, and the right to a

judicial remedy.44

Within the context of UN Sanctions, the „importance of ensuring that the procedures for listing and de-listing of

individuals and entities comply strictly with due process requirements,‟45 is of crucial concern. Indeed, targeted

sanctions – in particular the freezing of assets – may have substantial impacts upon the rights of those

subjected to such measures, they have, for example, prevented an individual „from working, travelling, moving

funds and defraying family expenses.‟46 The SC has thus attracted criticism for failing to provide the procedural

protection required to ensure the non-arbitrariness of any infringements upon a target‟s fundamental freedoms.

In response to such criticisms, and in an attempt to ameliorate them, the SC has taken a number of steps to

ensure the securement of those rights for sanctioned individuals. Most significantly, it has established an office

of the Ombudsperson in regard of those listed pursuant to Resolution 1267 and a focal point for those others

targeted outside that resolution‟s reach. Both are tasked with handling de-listing requests from individuals.

However, although these mechanisms present a marked improvement from the previous situation within which

„the due process rights of a listed individual were non-existent,‟47 as shall be seen, when compared against an

elucidation of the concept of due process contained within a comprehensive study commissioned by the UN

Office of Legal Affairs,48 both mechanisms fail to meet the requisite level of adherence with such rights, leaving

UN Sanctions largely unregulated.

According to the report, such rights of due process – as understood within the context of the exercise of

Chapter VII powers by the Security Council – contain the following minimum standards of procedural fairness:

the right of the individual or entity to be informed of those measures taken against them as soon as possible, to

be heard by the Council - or a subsidiary body - within a reasonable time, to be advised and represented in his

or her dealings with the Council, and the right to an effective remedy against an individual measure before an

impartial institution or body.49 Since these rights have been „considered as part of the corpus of customary

international law, and… also protected by general principles of law in the meaning of Article 38, paragraph 1, lit.

c, of the ICJ Statute,‟50 they shall form the basis of the following discussion.

42Richard Clayton & Hugh Tomlinson, The Law of Human Rights (2ndedn OUP 2009), 705. 43 See for example: Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) UDHR arts 8-11; International

Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 6. 44Lopez, Cortright, Millar & Gerber-Stellingwerf, „Overdue Process: Protecting Human Rights while Sanctioning Alleged Terrorists: A report to Cordaid

from the Fourth Freedom Forum and Kroc Institute for International Peace Studies at the University of Notre Dame,‟ (2009) <http://kroc.nd.edu/sites/default/files/overdue_process.pdf> accessed 04/09/2015, 2.

45 UNGA, „ Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while

countering terrorism‟ UNGAOR 16th Session Supp No 2 UN Doc A/HRC/16/50, 7. 46UNCHR „Sayadi&Vinck v Belgium’ (29 December 2008) UN Doc CCPR/C/94/D/1472/2006, 5. 47 Dinah Shelton, The Oxford Handbook of International Human Rights Law (OUP 2013),785. 48BardoFassbender, „Targeted Sanctions and Due Process: The responsibility of the UN Security Council to ensure that fair and clear procedures are

made available to individuals and entities targeted with Sanctions under Chapter VII of the UN Charter‟ (2006) Study commissioned by the United

nations Office of Legal Affairs, Office of the Legal Counsel. Berlin: Humboldt-Univerzitatzu Berlin, 6. 49Ibid, 1. 50 Ibid.


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2.1. | Resolution 1730 and the Focal Point In 2006, the SC, established a focal point within the UN Secretariat that allows individuals to submit de-listing

requests directly to the UN, whilst also informing the petitioner of the final decision made by the Sanctions

Committee.51 The right to petition was thus made available to the listed parties of any sanctions committee and

applied even if their state of nationality or residency does not support the delisting request. When set against

those criteria expounded above, this Focal Point, which currently serves as the only mechanism for targeted

individuals and entities sanctioned outside the mandate of the 1267 Committee is completely inadequate.

The right of an individual to be informed of the measures is a matter left untouched by Res 1730, which

involves only a de-listing procedure,52 and although targets are granted the ability to „justify the de-listing

request, and in particular, why he no longer fulfils the criteria for being on the list‟‟53 they are not granted the

chance to hear the evidence against them. Finally, since the focal point is merely a means by which individuals

may petition their listing, meaning that the ultimate decision for de-listing rests with the Sanctions committee,

they are not granted an effective remedy or the right to review by an effective mechanism. The focal point thus

does little to secure targeted individuals their rights of due process, and from a legal standpoint, is in urgent

need of review.

2.2. | The 1267 Ombudsperson The office of the Ombudsperson, operating solely within the context of the SC‟s Al-Qaeda Sanctions Committee

List established by Resolution 1267, granted individuals, groups, undertakings or entities wishing to be

removed from the list the opportunity to submit their request for delisting to an „independent and impartial

Ombudsperson.‟54

In this regard, the1267 Sanctions Regime does seem to have alleviated a number of shortfalls inherent within

the activities of the Focal Point. Most significantly, the Ombudsperson is mandated to „answer specific questions

from the petitioner about Committee procedures,‟ and to „facilitate a two month period of engagement, which

may include dialogue with the petitioner.‟ 55 The ombudsperson thus seems to have fulfilled the right to be

represented.

Despite this strength however, the main issue relating to the Ombudsperson‟s mandate is that of providing

listed individuals and entities the right to review by an effected mechanism, and thereby their right to an

effective remedy. Indeed, although the Ombudsperson has been granted the unprecedented capacity to give

observations and analysis of delisting requests,56 this power is not without substantial limitations.

First, the review is limited only to the „review of the application of the targeted resolution to an individual‟s case

and not on the validity of the resolution itself,‟57 meaning that the SC maintains its „primacy in the maintenance

of international peace and security.‟58 The Ombudsperson thus lacks the power to ensure that SC Resolutions

are created in line with rights of due process.

51 UNSC Res 1730 (2006) UN Doc S/RES/1730 ¶ 1 52Ibid, 1. 53 UNSC Res 1617 (2005) UN Doc S/RES/1617 ¶ 2; UNSC Res 1822 (2008) UN Doc S/RES/1822 ¶ 2. 54 UNSC Res 1904 (2009) UN Doc S/RES/1904 ¶ 20. 55 Ibid, Annex II. 56 Ibid. 57 J. Genser and K. Barth, „When Due Process Concerns Become Dangerous: The Security Council‟s 1267 Regime and the Need for Reform‟ (2010) 33

Boston College International & Comparative Law Review 1, 36. 58 Grant L. Willis, „Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson‟ (2010) 42 Georgetown Journal of International

Law 673, 695.


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Second, and somewhat more importantly, is that the Ombudsperson „has no direct decision making authority

on delisting requests.‟59 Indeed, the formal role of the Ombudsperson is merely to gather and present

information to the Sanctions Committee, who retains the ultimate authority to de-list the petitioner. Although a

nominal improvement was introduced in 2011, making the decision of the Ombudsperson binding after 60 days

if the Sanctions Committee does not reach a consensus,60 this does not satisfy the requirement of the remedy

being granted by an „impartial body‟, the ultimate decision making authority still resting with the relevant

Committee.

Third, as a result of the Ombudsperson‟s inability to enforce the de-listing of a petitioner, the mechanism lacks

the „accessibility element‟ of due process, which requires that „the body that hears the individual or entity is the

same body that has the power to make a binding decision based on the complaint of the affected individual or

entity.‟61 Furthermore, since the Ombudsperson‟s mandate is subject to frequent renewal „contributes to the

perception of the mechanism as temporary.‟62

On the above therefore, the office of the Ombudsperson, although presenting an improvement from the wholly

unsatisfactory Focal Point mechanism, still has scope for improvement in ensuring the fulfilment of due process

rights for those listed.

3 | THE PRINCIPLE OF TRANSPARENCY

The principle of transparency has most often been represented as a right to freedom of or access to

information63 and has found expression in domestic,64 regional65 and international66 human rights systems. It

has been described as a „core human rights principle‟67 and its applicability to the Security Council is

uncontested.68 Within the context of UN Sanctions, the increased propensity of the SC to impose „targeted‟

sanctions has elevated the relevance of transparency, since those adversely affected have an amplified interest

in the reasons behind the measures imposed, especially in regard of their rights of procedural due process. As

the issue of due process has been examined above however, the following section focuses upon the release of

information to the public eye.

It follows that the precise formulation of the principle as applied to the imposition and subsequent

implementation of sanctions regimes – by the Council and its subsidiary sanctions committees respectively –

remains unclear. This lack of clarity has largely been fuelled by the need to arrive at „a realistic balance

between transparency and confidentiality.‟69 Where the former may be understood as an absolute rule requiring

that „the reasons for applying and modifying sanctions [are] clearly expressed by the Security Council and its

sanctions committees;‟70 the latter can be seen as a concept permitting derogation from the principle of

transparency where discussion within the Council „involves confidential and politically sensitive information.‟71

59Ibid, 697. 60 UNSC Res 1989 (2011) UN Doc S/RES/1989 ¶ 23. 61Willis (n 56), 72. 62 Sue Eckert & Thomas Biersteker „Due Process and Targeted Sanctions, An Update of the “Watson Report”‟ (2012)

<http://www.watsoninstitute.org/pub/Watson%20Report%20Update%2012_12.pdf> accessed 01/04/2015, 21. 63DevikaHovell, „The deliberative deficit: Transparency, access to information and UN sanctions‟ in J Farrall and K Rubenstein (eds), Sanctions,

Accountability and Governance in a Globalised World (CUP 2009), 92. 64 New Zealand Bill of Rights Acts 1990 (NZ), s 14. 65Sunday Times v UK App no 6538/74 (ECtHR, 26 April 1979) ¶ 49. 66ICCPR, art 19(2). 67 Office of the High Commissioner for Human Rights, The Human Rights Case Against Corruption, HR/NONE/2013/120 (2003), 8. 68 The Council itself has attempted to „increase the… transparency of its operations‟: UNSC Presidential Statement 78 (2006) UN Doc

S/PRST/2006/78, 1. 69Ambassador Marker of Pakistan, UN SCOR, 49thsess, 3483rd mtg. UN Doc S/PV.3483 (1994), 1. 70 Jeremy MatamFarrall, United Nations Sanctions and the Rule of Law (CUP 2007) 41 71 Astrid Forberg Ryan, „Sanctions Implementation and the UN Security Council: The Case for Greater Transparency‟ [2014]

<http://www.comcapint.com/pdfs/the_case_for_transparency.pdf> accessed 03/03/2015, 5.


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Accordingly therefore, the following discussion illuminates those instances in which the non-disclosure of

information to the public may be seen as acceptable. As shall be seen, through an examination of domestic and

regional legal systems, the sole circumstance in which information may be declared confidential is for the

protection of security interests. The SC, however, seems to have over-stepped the requisite threshold by which

such a justification may be utilised, leaving sanctions largely unregulated in terms of transparency.

Before this examination is initiated however, there is one particular instance within which a lack of transparency

must be regarded as acceptable: The investigative work of Panels of Experts („PoEs‟), established by the SC to

investigate the implementation of sanctions with regard to several sanctions regimes.72 These PoEs are

mandated, generally, to „examine and analyze information from States… regarding the implementation of the

measures imposed in resolutions.‟73 Much of this information is highly confidential, and occasionally one State

may report another for the former‟s failure to adhere with SC Resolutions, which may in turn damage

diplomatic relations if made public. Consequently, to ensure the effective implementation of sanctions, through

cooperation between states and PoEs, „member states must have assurances that their dealings with the PoEs

will be held in the strictest confidence and that sensitive information will not be made public.‟74 It is thus

contended here, that in this particular instance, the hiding of certain information from the public eye in regard

of those submissions made by States to PoEs may prove beneficial to the „maintenance of peace and security‟

as tasked to the SC by Art 39 UNC.

Aside from the above, domestic legal systems seem to indicate toward the permissible non-disclosure of

information only for the protection of security interests. India‟s Right to Information Act 2005 for example,

exempts, inter alia, „all branches of the armed forces, the Ministry of Defense, the Coast Guard [and] the

Department of Atomic Energy‟ from the law requiring full disclosure of internal procedures,75 whilst in the US,

„operational files‟ of intelligence agencies, for example informant‟s identities, may be exempted from the

Freedom of Information Act by the authorisation of both houses of congress.76 There thus exists precedent upon

which to perceive a permissive derogation from the principle of transparency in cases where classified

information is withheld for the protection of security interests.

In this respect, the confidential nature of „documents whose disclosure is likely to endanger the safety or

security of any individual‟ or „the security of Member States or prejudice the security of proper conduct of any

operation or activity of the United Nations,‟77 throughout the UN system resulting, for instance, in the non-

disclosure of information relating the sanctioning of Al-Shabbab North East78 due to „several strictly confidential

annexes containing information whose disclosure may be detrimental…to the welfare and safety of [UN] staff,‟79

may be construed as permissible.

This principle however, is by no means unqualified, with a number of jurisdictions incorporating a balancing test

between public interest and the need to withhold information on security grounds. The United Kingdom, for

example, has incorporated a requirement that „in all the circumstances of the case, the public interest in

maintaining the exemption [to withhold information, must outweigh] the public interest in disclosing the

information.‟80 Largely, this test is strictly construed, the European Court of Justice for instance has held that

72 See for example: UNSC Res 1153 (1998) UN Doc S/RES/1153 ¶ 12; UNSC Res 1425 (2002) UN Doc S/RES/1425 ¶ 3; UNSC Res 1237 (2000) UN

Doc S/RES/1237 ¶ 6. 73UN, „Panel of Experts Established Pursuant to Resolution 1874 (2009) <http://www.un.org/sc/committees/1718/panelofexperts.shtml> date

accessed 05/02/2015. 74Ryan (n 69), 2. 75 Right to Information Act 2005 (India): s.24 76Transparency and Accountability Initiative, „National security transparency and accountability‟ (2011) <http://www.transparency-initiative.org/wp-

content/uploads/2011/09/14-National-security.pdf> accessed 17/04/2015, 77UNSG „Secretary-General‟s bulletin Information sensitivity, classification and handling‟ (2007) UN Doc ST/SGB/2007/6 ¶ 1.2. 78 UNSC, „Letter dated 12 July 2013 from the Chair of the Security Council Committee pursuant to resolutions 751 (1992) and 1907 (2009)

concerning Somalia and Eritrea addressed to the President of the Security Council (2013) UN Doc S/2013/413, 46. 79 Ibid, 9 80 Freedom of Information Act [2000] (United Kingdom) s. 2(2)(b).


11

the test involves, „the widest public access possible [and] [a]ny exception to that right of access must… be

interpreted and applied strictly.81

Unfortunately, the SC seems to have ignored the stringency of this test, particularly in the work of sanctions

committees, tasked with the day-to-day administration of sanction regimes. Indeed, a large proportion of

committee meetings take place in „informal consultations of the whole.‟ These meetings are completely hidden

from the public eye: the public may not attend, no UN press release is issued, and neither UNTV, UN Webcast,

nor the public media may cover them. Yet the majority of committee proceedings are conducted in private; in

the years between 1999 and 2005 the Al-Qaeda and Taliban Sanctions Committee „held thirty-one formal

meetings and approximately 150 informal consultations,‟82 and in the context of the Iraq Sanctions Committee

„discussion of sensitive confidential matters accounted for a mere 2.5 per cent of the committee‟s meeting

time.‟83 Under the justification for the non-disclosure of information for security interests within sanctions

committees therefore, the SC seems to have failed to strike the appropriate balance between public and

security interests, leaving their work largely unregulated.

4 | CONCLUSION

This paper has highlighted that although the SC has taken a number of steps to provide legal constraints upon

its own actions, as a result of: the inapplicable nature of the principle of proportionality to the SC, combined

with the nominal improvements to address disproportionate sanctions; the limited nature of due process

guarantees within sanction regimes, and the inadequacy of transparency within sanctions committees,

sanctions imposed by the SC remain largely unregulated. The laws governing the regulation of UN Sanctions

are thus in urgent need of review.

81 Joined Cases C-174/98 and C-189/98 Netherlands and van der Wal v Comission[2000] ECR I-I, 217 ¶ 27 82Hovell (n 62), 95. 83 Paul Conlon, United Sanctions Management: A Case Study of the Iraq Sanctions Committee (2000 Transnational Publisher), 34.


12

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